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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 wUUag.
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
^ ^^^clare 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, 0 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
wcofwy 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
•^teQuate 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 ciiUlMig
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-
^tiga.^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 bcyood
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. 0 (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 0
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 definite location does not preclude subsequent grant of the
™d to another company; United States v. Oregon, etc., Ky. Co.,
101 Fed. 318. holding ** grant land " in aid of railroads until actually
103 U. S. 745-764 Notes on U. S. Reporto.
selected and set apart may be disposed of at the pleasure of Fed-
eral government; affirmed in 189 U. S. 113.
Syl. 2 (X, 110). Fixing route passes lieu land title.
Approved in Oregon, etc., R. R. Co. v. United States, 109 Fed. 515,
holding until deficiency in primary grant is Icnown, the title to the
indemnity lands in lieu thereof remains in the government.
SyL 4 (X, 110). United States only can question title.
Approved tn Walsh v. Ck)lumbus, etc., R. R. Ck>., 176 U. 8. 479,
44 L. 553, 20 Sup. Ot 397, holding tlUe to ** grant land " to aid in
building canal to be forever used as public highway reverts If use
is restricted.
(X, 100). Miscellaneous.
Cited in Claris v. Herrington, 186 U. 8. 200, 46 L. 1130, 22 finp.
Ct 874, holding innocent purchasers for value of lands unlawfully
selected by railroad are not protected where company never re-
ceived patent or certificate therefor.
103 U. S. 745-753, 26 L. 422, COUNTY OF JASPER V. BALLOU.
Syl. 1 (X, 110). Exchange of bonds removes prior doubtfulness.
Approved In City ot Santa Cruz v. Waite, 98 Fed. 396, holding
cities authorized by statute to refund *' outstanding indebtedness, as
evidenced by bonds and warrants thereof," cannot issue bonds to
pay secured bonds of mortgaged water company, since bought bj
city.
103 U. S. 754-756, 26 L. 322, THE CONNBMARA.
Syl. 1 (X, 111). Appeal rests upon a certain sum.
Approved in Jones v. Mutual Fidelity Co., 123 Fed. 513, holding the
jurisdictional value of matter in dispute is measured by the whole
and not by the separate parts divided when collected; Hagge v.
Kansas City, etc., Ry., 104 Fed. 393, holding injunctive relief in Fed-
eral court of equity may be had, provided the injury to each of sev-
eral complaints amounts to $2,000.
Distinguished in Illinois C. R. R. Co. v. Adams, 180 U. a 40» 45
L. 414, 21 Sup. Ct 255, holding a bill for injunction against taxes
by a railroad sufficiently states the jurisdictional amount by specify-
ing sum larger than Jurisdictional limit
103 U. S. 756-764, 26 L. 554, RAILWAY CO. v. SPRAGUBL
SyL 2 (X, 112). Bonds control mortgage.
Approved in Hooper v. Stump, 2 Ariz. 266, 14 Pac. 800, holding
default of interest before maturity of principal authorizes exorcise
of power of sale contained in mortgage on default of principal cr
interest
Syl. 4 <X, 113). Bonds with attached coupons are valid.
Approved in Buffalo L., etc., Co. v. Indiana Gas Co., 162 N. Y. 7&-
56 N. E. 508, holding due and unpaid coupons still attached to bon£
385 Notes 00 U. S. Reports, 103 U. S. 704-788
iK suffident to put purchaser on 1t<qulrj'. tliougti their presence does
not necesearilj vitiate bond.
m tJ. S. 764-766, 20 L. 458. HINCKLBY v. JtORTON.
S;l. 1 (X. 113), Second appeal amy state Kuhaequent proi%edIngs.
Approved In Southern B. & L. Aesn. v. Carey, 117 Fed. 32S. hold-
ing ^bere second appeal Is not allowable, mandamus Ib the remedy
tor correction of errors accruing after arrival of mandate; James t.
Ceut, Trust Co.. 108 Fed. 931, holding If Circuit Court foils to modify
Its decree remanded by Circuit Court of Appeals, the remedy Is by
sppeal, not by mandamus.
'03 TJ. S. 780-709, 20 L. 007, CLARK t. KILLIAN.
Syi. 2 (X, 114). BUI of review corrects decrees.
-A-r>proved In BIythc Co. v. Hinckley, 111 Fed. 837, holding bill
**' *"^vlew must be filed within time limited by statute for taking
*** ^-jipeal If new matters are not discovered since decree; Copeland
/■- ^injDning, 104 Fed. 171, holding original decree may be brought
~^rore Supreme Court for re- exam I nation after period prescribed by
"^■^w- for inimediate appeal by a bill of review.
, -'^IstlngTilBhed In Hendryx v. Perkins, 114 Fed. SOS, holding a bill
.~*^K* swelling a prior decree, and decree is thereby vacated, terminates
■"^wtlon on Beeond bill, hence is final and appealable.
^*^L 3 (X, 114). An Imperfect appeal cannot be heard.
;K'proved tn Guarantee Co. of North America v. Phenlx Ids. Co.,
Fed, 172, holding defendant In error who does not sue out writ
^j^^ Mirror cannot confer jurisdiction upon an appellate court to con-
^^r qnestions suggested by assignment.
^^^ IJ. S. 770-779, 26 L. 488. COUNTY OF WILSON t. NATIONAL
BANK.
y). 2 (X, 114). Intent may make a note negotiable.
S.-^-^ ^^"^[iprovL-J in Murpliy v. ArkausaB. etc.. Imp. Co., il7 Fed. 727. hold-
^^^^^^^ a note negotiable In form, as between maker and payee, la not
^^^arWed of its negotiable character by a restrictive Indorseiuent
^^yL 6 (X, 115). " To anivey " escludes " to locate."
—Approved In Steele v. Buel, 104 Fed. 072, holding Federal laws
J^^ ^mpt to debtors and bankrupts the property exempt to tbem by
^^^ State law.
~^^^*^ U. S. 780-783. Not cited.
^^^^ n. S. 783-786, 26 L. 459, NATIONAL BANK y. INSURANCH
CO.
4/1. 1 (X, 115), Contract does not bind Independent parties.
Approved in Hunter v. Bobbins, 117 Fed. 924, holding no one can
Vol 11 — 20
103 U. S. 786-839 Notes on U. S. Reporti.
sue at law for a breach of a contract except the parttes or p:
to it; the remedy must be sought in equity if at alL
103 U. S. 786-794. Not cited.
103 U. S. 794-797, 26 L. 461, EX PARTE RAILWAY CO.
Syl. 1 (X, 117). Mandamus not usable as appeal writ
Approved in The Union Steamboat Ck>., 178 U. S. 319, 44 L.
20 Sup. Ct 905, holding inferior court's decision upon any n
left open by mandate and opinion of higher court is reviewable
upon a new appeal; Florida v. Helen -S. Burbridge, 41 Fla. 4(
So. 1020, holding mandamus can only be resorted to where th<
no other adequate remedy, as by " appeal " or " writ of &
Utah V. Booth, 21 Utah, 96, 59 Pac. 555, holding appeal prefe
to mandamus except where it Is apparent that the int^est ol
tice requires Issuance of latter. •
103 U. S. 797-506. Not cited.
103 U. S. 806-820, 26 L. 612, THOMPSON ▼. PBRRINH.
Syl. 1 (X, 120). Holder's bonds Invalidated by notice.
Approved in Pickens Tp. v. Post, 99 Fed. 663, holding a bom
purchaser before maturity is not affected with constructive i
of a suit respecting such paper.
Syl. 2 <X, 120). Invalid bonds may be validly ratified.
Approved in Baltes v. Farmers' Irrigation Dist, 60 Nebr. 33
N. W. 84, holding a statute Imposing a condition in the sellii
certain bonds must be complied with; Central Baptist Chur>
Manchester, 21 R. I. 359, 43 Atl. 815, holding no private righ
tervening, the legislature can validate a deed which was b
invalid.
Syl. 3 (X, 120). Bona fide purchaser unaffected by ratification
Approved In Tulare Irrigation Dist v. Shepard, 185 U. S. 1
L. 779, 22 Sup. Ct 535, holding de facto corporation receiving
consideration for bonds cannot set up defense of never legal!
corporating to injure bona fide holder; Brunswick Terminal C
National' Bank, 112 Fed. 816, holding creditor looks to those
are stockholders at the time he lends his credit and to thoi
should be content to look for collection of debt.
103 U. S. 821-828. Not cited.
103 U. S. 828-839, 26 L. 618. BROWN v. SLEE.
Syl. 1 (X, 121). Obligations of a contract are binding.
Approved in Mathews Slate Co. v. New Empire Slate Co.
Fed. 980, holding option contracts free from fraud made upon
c^ent consideration impose upon the makers ^an obligation to
form them specifically; Chadsey v. Condley, 62 Kan. 855, 62
664, holding unilateral agn'eement in form and optional in ince
1 u. s
IteportB,
104 D. S. 1-18
I>econ3n absolnte nhen option is accepted and obligRttoQ of vendor
and rendee becomes mutual; Peterson v. Cbase. 115 Wis. 242, 91
-V. W. 688, boldlng provision in contract for sale of land to reconvey
to vendor for certain sum ivbeD purchaser concluded to sell is valid.
Syl. 2 (X, 122). Contract to reconvey — Failure to tender perform-
BDce as waiver.
Approved In Uvermore v, Brauer, 128 Fed. 268, holding plaintiff
[QsliiTig no offer to perform contract for sale of vessel with insur-
aace paid up and making tender impossible for dcrendaot cannot
103 TZr. S. 830-847, 26 L. 557, RICHMOND MIN. CO. v. EUREKA
Ml\. CO.
Syl. ] (X, 122). Division line may become a boundary.
Approved in Kennedy Co. v. Argonaut Co., 189 U. S. 7. 23 Sup,
Ct. sci, 47 L. 680, holding the boundary line agreed on flses the
■^elits of the parties in length on the lode and ao involves tie
^xtraJaterai right as between them; Montana Min. Co. v. St. Louis
^*n-. etc., Co.. 102 Fed. 432, holding intention of parties determined
"*** only by terms of conveyance but by the subject-matter and
*a»ToutidlDg circumstances: M. O, P. Co. v. B. & M., etc., Co., 27
-Vlont 320, 75 Pac. 1125, holding absence of eome express agree-
wie-nt or one strongly Implied for circumstances, surface boundary
'>K>eB should not be held controlling.
CIV UNITED STATES.
104
S. 1^. Not cited.
a. 5-18, 26 L. 643. RAILROAD GO. T. KOONTZ.
yi. 1 (X, 123). Corporation suable where busineas is transacted.
etc., Banii v. Aronsteln. 117 Fed. (107,
I
- "*-l>E»roved in London, Paris,
.^^•*5li:,g transfer bf shares to citizen of Coiiforuia in foreign cor-
,„_*"'*^tion doing business in CalKornla is in accordance with laws
~'aiifomla. and not those of domicile of corporation; Texas,
^Vy- <2o. V. Davis, 03 Tex. 388, 55 8. W. 563, holding statute,
- 'ting corporation doing business In State from suing on
I ^^t: uQtil articles of incorporation are filed, has no bearing i
^*^*-state c "'— -
^yi. 5 {X, 124), Corporation is citizen where organized.
. -^-Dproved in Goodwin v. Boston, etc., R. R., 12T Fed, 980, hold-
^ corporation chartered In New Hampshire, by consolidation
^e corporation of Masaachnsetts and Maine, cannot be sued by
'*«en of New Hampshire in Federal courts; Freeman v. Amerl-
n
104 U. S. 5-18 Notes on U. S. Reports. 888
can Surety Ck>., 116 Fed. 551, holding corporation is citizen of
State where incorporated for purposes of Federal jurisdiction;
Pacific Mutual Life Ins. Go. ▼. Tompkins, 101 Fed. 544^ holding
citizen of West Virginia loses his residence therein, likewise right
to bring suit, by moving family to Virginia and residing there
four years.
Syl. 6 (X, 124). Ck>rporatlon may contract in other State.
Approved in Howard v. Gold Reefs, 102 Fed. 658, holding pre-
sumption of nonresidence not overcome because of name of corpo*
ration, the property owned, and the business done in such State;
dissenting opinion ii) Southern, etc.. Bridge Go. v. Stone, 174 Mo.
41, 73 S. W. 460, majority holding foreign corporation may con-
demn land under statute permitting domestic corporation so to do,
though not so empowered by State of creation.
Distinguished in Southern, etc.. Bridge Go. v. Stone, 174 Mo.
32, 73 iS. W. 463, holding foreign corporation may condemn land
under statute permitting domestic corporations so to do, though
not so empowered by State of creation.
Syl. 7 (X, 125). Removal — Lease by foreign corporation.
.Approved in Home Ins. Go. v. Virginia-Garolina, etc., Go., 100
Fed. 686, holding insurance contracts being interdependent, an
ancillary bill is valid on ground that courts of law cannot give
relief, and injunction operates upon plaintilf, not State court.
Syl. 10 (X, 127). Removal is a Federal question.
Approved in Goodwin v. New York, N. H. & H. R. R. Co., 124
Fed. 358, holding if railroad in Massachusetts can be sued by
citizen of Gonnectlcut, and vice versa, Incorporating making it
permissible, Massachusetts' citizen cannot declare corporation in
Massachusetts citizen of Connecticut; North American Transporta-
tion, etc.. Go. V. Howells, 121 Fed. 698, holding no necessity
for haste being * shown, plaintiff's application to take deposition
erroneously granted if prior to first day of succeeding term when
•d<efendant must appear; Ashe v. Union, etc., Ins. Co., 115 Fed. 235,
liolding in removal suit, if attorney for defendant, without power
of attorney, executes bond motion to remand should be denied,
though bond was ratified prior to motion; Coker v. Monaghan
Mills, 110 Fed. 806, holding pendency of petition for removal not
presented to State court not ground for Federal court enjoining
proceedings in State court; Hickman v. Missouri, etc., Ry., 97
Fed. 120, holding State denying removal is ousted of jurisdiction
by Federal court of defendant's petition, and record of case dis-
close rights of removal; Pennsylvania Co. v. Leeman, 100 Ind.
18, 66 N. E. 49, holding appeal from denying removal petitlOB
made after amended complaint filed after answer, original com-
plaint not on record, difference between complaints presumed
too slight for removal; Hickman v. Missouri, etc., Ry. Co., 151
Notes on U, S, Rerorta. 104 U. S. 18-40
Mo, 655, 52 S. W. Sr>3, holding where the real party to the action
IB the Stale, the actiog la not removable to Federal court, though
defendont Is cltiECa of another State; dissenting opinion In Cal-
vert T, Railway Co., 64 S. C. 147. 41 S. B. 965. majority holding cor-
poration of another State U nonresident of South Carolina for pur-
poses of removal to Federal court though such corporation be-
comes domestic by statute. See SB Am. St. Rep. 021, note.
Syl. 12 (X, 127). Removal — Transcript fllable after reversal oC
Jndgment.
Approved In McDonnell v. Jordan. 17S D. S. 234, 44 L. 1050, 20
Sup. CL 8S8, holding statute. pGrmitling removal tn will contests,
"any time prior to trial" application comes too late after a mls-
Wfll in State court.
IS. 123). MIscellBncous.
Cited In Home Ins. Co. v. Virglnla-Carolinia, etc, Co., 109 Fed.
SSD, holding Federal court can entertain Jurisdiction at law and
enter full Judgment thereon, notwithstanding Judge of State court
Tilnks they are not removable.
IW TJ. a. 18-24. 2G L. 635, SHANKS v. KLEIN.
Syl. 1 (S, 128). Partnership realty is personalty in equity.
Approved in State v. Neal, 29 Wash. 393, 69 Pac. 1104. holding
wle being necessary to proper distribution of partnership estate,
court has jurisdiction to order sale of realty by partnership ad-
ministrator, without the showing of general administrator,
IW XJ. S. 25-30, 26 L. 037. SMITH v. McCULLODGH.
Syi. 1 IX, 128). Mortgage— Derivation ot intention.
^-Dproved In Lawrence v. Times Printing Co., 22 Wash. 492, 01
"**^- 169, holding chattel mortgage not explaining " franchisee "
Inereln, assignment of same by sheriff to purchaser, description
'"'* IndefiDlte for plaintiff to assert Just any particular right.
"^l 3 (X, 130). Enumerated does not include unenumerated
■*-6proved in Central Trust Co. v. Worcester, etc., Co., 114 Fed.
*. holding an order appointing a receiver in a suit to foreclose
' dortgage, although broad in Its terms, not construed to cover
^operty not Included In the mortgage; Murray v. Farmville, etc.,
^ R., 101 Va. 272. 43 S. E. 55G, holding another railroad sulrae-
■Wemiy purchased not Included In mortgage covering after ac-
QQlred property " connected with " or " relating to " mortgagor
f^Uroad.
104 U. S. 30-40. 26 L. 047, MARTIN v. COLE.
Sjl. 1 (X. 130). Parol agreement does not effect indorsement.
Approved In L'nlon Selling Co. v, Jones, 128 Fed. 677, excluding
Pttroi proof to vary ordinary meaning of " tjuality guaranteed"
1
104 U. S, 41-M Notes on U. S. Eeports. 390
Id contract for sale at binder twine; Levy & Cohn Mule Co. v.
Kauffman, 114 Fed. 175, holding parol eTldence of ngreement made
before, or at time of accepting drafts. Inadmissible to vary abso-
lute terms written contract In hands of third party without notice:
Oahn V. Dalley, 105 Fed. 838, holding without actual notice the
Indorseea of a note cannot be bound by an unknown agreement
at the original parties; Nortlieni Nat. Bank v. Hoopea, 98 Fed.
938, holding contract of Indorsement and delivery of negotiable
note not contradicted or changed by contemporaneous parol agree-
ment; AndruB T. Btazzartl. 23 Utub, 254, 63 Fac. 803. holding all
contracts made by guardian of ward binds guardian personally,
hla protection being the right to charge expenditure to ward's
estate; Providence, etc., Ins. Co. v. Board of Edu. of Morgantown,
etc.. 49 W. Va. 377, 38 S. E. 686, holding all oral negotiations and
stipulations preceding and accompanying the execution of a writ-
ten agreement are merged In it. and are not admissible la evidence.
Syl. 2 (X, 131). Indorser of bankrupt's note is liable.
Approved In Moch v. Market St. Nat. Bank, 107 Fed. 807, hold-
ing liability of bankrupt's indorser of commercial paper becomes
absolute as a debt after filing petition and provable against bts
esUte after liability becomes fixed; In re Gerson, 105 Fed. 892,
holding bankrupt's note not maturing before filing petition Is prov-
able after maturity as founded on express contract and not as debt
of " filed liability."
104 U. 6. 41-44. Not cited.
104 D, S. 44r-51, 2G L. G52, KING v. WORTHINGTON.
Syl. 2 (X, 131). Competency of witness on removal of cause.
Approved in Slavens v. Northern Poc. Ry.. 97 Fed. 262. holding
section hand working under direction of conductor is a feUow ser-
vant and company is not liable for Injuries to one occasioned by
negligence of other.
104 U. S. 52-54, 26 L. 6B8. DRIESBACH v. NATIONAL BANK.
Syl. 1 (X, 132). Usurious interest not part of principal.
Approved In Tucker v. AlesandrofC. IS3 U, S. 436, 4G L. 270, 22
Sup. Ot, 200. holding where the signatory powers have themselves
fixed the terms upon which deserting seamen siiall be surrendered
the terms of treaty cannot be enlarged; Haseltlne v. Central Nat.
holding on set-ofT on note to national bank because of usurious
Interest actually paid in cash upon renewals of note given to
national bank cannot be set off in an action against the note if
statutory: Central Kat Bank v. Haseltlne, 15a Mo. ftl, 55 S. W. 101"
holding no set-off on uotc to national bank because of usurious
Interest paid, separate action necessary by statute to recover back
Interest paid; affirmed in 183 U. S. 136; First NaL Bank of Morris-
town V. Hunter, 109 Tenn. 96, 97. 70 S. W. 372, holding usury
391
NaUoual Bank v. Insurance Co. 104 n. S. 54-T7
r-liarged by national bank in diacouDtlng notes recovered not by
Betting up croas-bll! In action by bank on notes, but by separate
action; Charleston Nat. Bank v. Bradford, 51 W. Va. 258. 41 S. B.
I5J^, boldlng ]a action by national bank on last note usurious Interest
paid bank on renewing series of notes, cannot be applied In eatls-
fMCticn of tbe debt; dissenting opinion in Citizens' Nat. Bank v.
fr'oa-naan, 111 Ky. 223, 63 S. W. 758, majority holding discounting
Ity national bank of note at usurious rate is merely " charging "
ao£ "talcing" usurj', and debtor's statutory right to recover twice
aiaaoxint paid Inapplicable, See 85 Am. St. Rep. 538. note.
I>iatingui8hed In Haseltlne v. Central Nat Bank, 155 Mo. 74. 56
S- W. 807. holding national bank knowingly charging greater Interest
rx^-t^ than State law permits must reiund twice the amount paid
i:f ^<7t!on of debt Is two years from transaction.
X04 TJ. 8. 54-77, 26 L. 683, NATIONAL BANK v. INSURANCE CO.
^^-1. 1 (X, 132). Debt of trustee Is his ludivtdunlly.
-^k-ffproved In In re Davis, 119 Fed. 950. holding bank receiving
•* ^x»«cial deposit " from purchaser of Insolvent partnership cannot
»-I>10lr fund In payment of debts after partnership Is declared
t»^i3linipt, but continues trustee; People's Nat. Bank v. Mjers. 65
*■*-»»«:>. 123, 69 Pnc. 164. holding one receiving money belonging to
tlalrd persoD through design or misdirection cannot retain It In
r>aa..yinent ot the debt owned Ijy the one who gave It; Lindsay v.
^•*«-ook8. S2 Mo. App, 309, holding bank deposit under B.'b name as
^^*nt and notlflcntion at same time that funds belonged to another
"^^as notice to bank of trust fund; Globe, etc.. Bank v. National
^ajafe. Qi Nebr. 416, 418, 89 N. W. 1032. holding trust fund cannot
7* appropriated by bank in reduction of depositor's indebtedness
'^^ "^111 be liable for full amount by the true owner, the cestui;
bolting V. National Bank, 99 Va. 58. 37 S. B. 805, holding bank
'^'^eiving money on deposit for an agent cannot disregard that
"'ei-^at by applying money to a debt due It from principal's agent.
^yi, 2 (X, 133). Trust funds unchanged by deposit
■^E>uroved In Honter v. Robblns. 117 Fed. 923, 924, holding
^Uitij has jurisdiction requiring accounting by treasurer ot cor-
'"**'** tion and to charge bank as trustee when corporation funds were
^^t»o^ted known by bank as sucb; Ehjaide v. Graves, 137 CaL 641,
*^«c. 370, holding Intestate receiving trust fund from decedent's
est^ (-^ administrator of Intestate is trustee thereof, although sum
^^**l'ved Is greater than trust fund; Cushman v. Goodwin. 95 Me.
^®- 50 Atl. 52, holding trust funds m hands of testatrix retain
.^*^ character in bands of another succeeding to control upon her
^^\i, if identity is established; Turts v. Latshaw, 172 Mo. 373, 72
^T. 683. holding surviving partner continuing firm's business
^*ai
J
k.u&M.;i
Not«8 on V. 9. Reports.
^
■■^'m .[■ j«*«t» oMll asaig&fflent mlslog inextricably tbe prop^=«
<*UA lu» awn. Uw wbole becomes partnership estate.
•fjL i iX, 1331. IdeotiSed trust funds give beneficiary process*
M'licuk'wi Ui Bilto T. Scbllep, 127 Fed. 107, holding ebippers
gwuiii teuL *jy loTwardeT to factor for sale wLere factor dlrectei^K-
i-EUuL ii> aliisnivra oiaj icuover from proceeds held by bankr~^
r(v»^uU«c; In ns Woods & Malone. 121 Fed. 600, 801, holding tu^
rtviu >ido at culton delivered to wrong factor who sold same. af^H
wiwtl tiwvniinx bankrupt. Is recoverable where assets are grea —
ilutu .luiouut of cctton; Hutchinson t. Le Roy, 113 Fed. 208. I^^
Ikuiiilutf iiltviv ijledgor'a property without his consent was convert
iDM uHtiuif, equity will fellow it If Identified, provided rights of i
uiKttui [*«r»UDB are not prejudiced; Terre Haute, etc., R. R. Co.
CiML. fU b'ed. S36. boldlut; share of earnings of leased railroad tJt
hwLUIt palil to lessor but mingled with lessee's funds, the receive
iuu»i rvsiure said amount from subsequent earnings; RiehardsoD r.
Nuw Urlea^s, etc.. Co., 102 Fed. 784, bolding money wrongfully
luiusU*^ wltii mass thereof, amount known, equity can direct pQ»-
sMiwoc ajid wrongdoer or his successor to take said s\Sm froiu the
UMtw; Wales v. Waterbury Mfg. Co., 101 Fed. 129, bolding an
lufHuSer Is liable for entire profits of manufacture and sale of
nrtloU valueless hut for the patented device; Citizens' Bank v.
Kucker, 138 Cal. 609, 72 Pac. 47, holding where husband and wife
ciMiuivi» lu the wife's purchasing land with tmst fund, creditor'!
judsinvut against husband does not affect Hen on land for tmst
(uoni-y; WrMwlhouse v. CrandnlX 107 HI. 113. 64 N. B. 292, 2&4. hold-
lUK Hpec'lal deposit made and hank gives receipt showing conditiouK
tlM subsequent mingling of funds in nowise destroyed cbaractei
(it trust fund when receiver is appoluted; New Farmers' Bank'*
TruMtee v. Cockull, ReceWer, 100 Ky. 590, 51 S. W. 5, holding fundi
belli by bank as trustee and mingled with general assets. In sb
iWBlguuient licnefi claries are creditors with no priority in the di»
tl'ltutlou; Paul v. Draper, lOS Mo. 200, 59 S. W. 78, holding relation
of lusulveut bank and cestui is that of creditor and debtor It
guai'dtan makes a "general" and not "special" deposit, tbough
buuk bad notice; Pearson v. Haydel. 90 Mo. App. 259, 200, holding
where trust funds are commingled with trustee's, all the assets of
truHlve win be treated as trust property except what he can dl»
tluguished na owning; Fogg v. Bank, 80 Miss. 756. 32 So. 2S5, bolding
by Oode provision deposit of public money and mingled with bank't
la trust fund and collectible from insolvent bank's assets befoA
Judgment of unpreferred debts; Lincoln v. Morrison. 64 Nebr. 832;
DO N, W. 000. holding the changed portion of trust fund retained
by trustee n'ho dissipates the remainder In Its altered form repre-
i».'uU such fimd and cestui may so claim ; Bank Comrs. v. Trust
National Bauk v. Insurance Go. 104 U. S. 64-77
Oo^ 70 N. H. 548, 49 Atl. 120, holding insolvent institution mis*
AX^lying money or property, no trust is created in suoh claimant's
^avor It such cannot be traced to specific property; York v. York
Ck>., 68 N. H. 420, 37 Aa 1039, holding where company is
debtor nor trustee of another company, the receiver of
ixiBolvent company must return full amount from assets to cover
r^inds used; Piano Mfg. Ck>. v. Auld, 14 S. Dak. 520, 86 N. W. 23, 86
^ Tn, St Rep. 774, holding band collecting money for various
stiran^ers and mingling same with its own funds, on becoming
^^^^Bolvent the mon^ is ratably distributed to creditors; Coleman v.
^N'attonal Bank, 94 Tex. 607, 63 S. W. 868, 86 Am. St Rep. 873,
^^l^ing husband depositing wife's money with understanding that
^would check it out, payment of checks signed with wife's name
liQsband as agent exonerates bank; Peters Shoe Ck). v. Murray,
Tex. Civ. 261, 71 S. W. 978, holding plaintiff sending draft to be
^^^^Hected and bank remitting by draft which drawee refused to
has only debt claim against collecting bank's assignee; Fitz-
-«raM V. Irby, 99 Va. 84, 37 S. E. 778, holding fees due a lawyer
by clients in purchasing land are recoverable by his personal
^''^Preaentatives who are entitled to chargo the land purchased. See
^^otes, 86 Am. St Rep. 803; 82 Am. St Rep. 520.
^yL 4 (X, 136). Constructive notice maintains equities.
-Approved in Gtoyser-Marion Gold Min. Co. v. Stark, 106 Fed. 563,
;^^^^ing corporation is liable where it cancels certificate and trans-
stock on signature of trustee, known as such, without inquiry
cestui or his assent thereto; Carroll County Bank v. Rhodes, 69
48, 63 S. W. 70, holding bank taking tax deposits for collector's
^^l>ts, the bondsmen of collector making good the shortage will be
^^^rogated to rights of State in funds; Jeffray v. Towar, 63 N. J.
*^Q- 544, 53 Atl. 187, holding depositary receiving deposit under
circumstances sufficient to put him on Inquiry whether trust prop-
^*^, and no Inquiry was made, is charged with constructive notice;
Sl^ute v» Hinman, 34 Or. 583, 58 Pac. 883, holding general deposit
^t estate funds known as such by bank cnunot be impressed with
^ trust after general assignment of bank.
Syl. 5 (X, 138). National bank in liquidation is suable.
Approved in Jewett v. United States, 100 Fed. 838, holding na-
tional bank president chosen by shareholders to close affairs in
liqtiJdation, etc., is ** agent " within statute and punishable as such
tot misapplying its assets; Sherman v. Sherman, etc., Co., 64 N. J.
^' ^. 63 Atl. 229, holding foreign special agent collecting money
*^ Without authority mingles same with funds of his principal,
*fl iQaoivent corporation, receiver thereof is trustee for f ul amount
104 U. B. 78-02 Notes on U. S. Reports.
104 U. 3. 78-83, ^6 L. C58. KELLI t. PITTSBURG.
SyL 4 (X. 139). Mimlclpalitj' can tax city farming land.
Approved Jn Ulbbcn v. Smltlt, 101 U. S. 323, holding due p
at law applies iu assesBment for local ImproTement wen though f
members of -levying board were owners of lota abutting on tt^^
Improvement; Turpln v. Lemon, 187 U. S. 58, 23 Sup. Ct. 23, 47 K — -
74, holding tax sale by sterlfl will not be set aside as Illegal i^ *
not complying with statute unless plalntlft showa his Injury b'.^SI
its appUcaUon; Duncan v. Ramlsh. 142 Cal. 691, 7(1 Pac. 0«3, bole*-
lag person assessed for street Improvement cannot attack assess — -
ment on groond that finding tliat beneflts exceeded damages, where
he failed to flle statutory remonstrance; State v. Barker, IIC Iowa.
102. 89 N. W. 200, holding statute authorizing District Court to
appoint troHtees of waterworks In cities of flrst class is uncon-
stitutional, as divesting city's controlling its property; Bai'fleld v.
Gleason, 111 Ky. 514. G3 S. W. 968, holding taxation for local Im-
provements Is based upon equivalent not upon exact compenaatlon,
and courts will not Interfere with legislative discretion properly
exercised; Wood v. Quimby. 20 R. I. 490. 40 Atl. 105, holding notice
^ven by town assessors of a fire district which fails to meet the
necessary requirements Is fatally defective: dissenting opinion In
French v. Barber Asphalt Paving Co., 181 U. S. 335, 45 L. 886, 21
Snp. Ct. 629, majority holding property will be taken by lawful proc-
ess of legislature authorizes a street pavement and apportions en<
tire cost npon abutting lots according to their frontage.
Distinguished In French v. Barber Asphalt Paving Co., 181 U. S.
358, 45 L. 895, 21 Sup. Ct. 63S. holding property will be taken by
lawful process if legislature authorizes a street pavement and ap-
portions entire cost upon abutting lots according to their frontage.
(X, 139). Miscellaneous.
Cited In Mayor, etc., of South Morgantown v. City of South
Morgantown, 49 W. Va. 731, 40 S. E. 16, holding In absence of
constitutional prohibition, legislature has power to divide large
municipalities, reorganize them, and to consolidate small ones In
the promotion of public Interest.
104 U. 8. 83-87. Not cited.
104 U. S. 88-92, 26 L. 062, KI.EIN v. INSURANCE CO.
Syl. 1 (X, 141). Insurance contract la one of entirety.
Approved In Modern Woodmen of Am. v. Tevis, 117 Fed. 372.
holding by-laws of fraternal insurance constitute part of contract,
and agent cannot waive forfeiture when beneficiary falls to meet
premiums as required.
Syl. 3 (X, 141). Failure to pay premiums forfeits policy.
Approved In Iowa Life Ins. Co. v. Lewis, 187 TJ. S. 347, 23 Sup.
Gt. 130, 47 L. 211, holding forfeiture having accrued on Insurance
^ k.
^
Kotes on U, S. R^iiorts. KM V. S. 03-90
IMJiicj- company does not waive same by sending r.ccepted note to
«eeni prior to maturity, note not being paid then; MncMohon T.
T^'nited States L. Ins. Co., 128 Fed. 302, holding lusuranpe company
<^a*iaot cancel policies for nonpayment of draft sent by insured
■^nd aecepifMl by Insurer in payment for such policlea: Manbnttan
I-ife Ina. Co. t. Wright, 120 Fed. 85, holding In Insurance time of
K^^Taient of premium Is the essence of contract, and stipulation to
"CliSt effect Is ralid and enforceable; Scbmertz t. United States Life
3zis. Co.. 118 Fed. 255, holding indulgence of Insurance company in
X>ajiuent of premiums and acceptance after stipulated time In cer-
t:a.in year or years does not estop the denial of repetition; Mat.
It«?serTe Fund Life Assn. v. Summons, 107 Fed. 422, holding pro-
■^islone of life Insurance policy that although delivered policy will
>>e ineffective until first premium bad been paid is valid and en-
i'orteable: Hlfe v. Dnlon Cent. Lite Ins. Co.. 129 Cal. 460. 62 Poc.
■4!>. holding where parties under tbe insurance policy aCTeed to
*i»o<llfy the terma of the contract In nullifying certain conditions
therein the same Is binding; Equitable Loan Co. v. Waring, IIT Ga.
*>&*•, 44 S. E. 314, holding corporation having charter authority to
«3enl in stocks, etc., and to issue Investment certificates payable la
Instalments can by same authority subject bolder to fine nr forfei-
ture; Tibblts v. Mut.. etc.. Ina. Co., 169 Ind. 673, 675, 65 N. E. 1034,
*>oWlnr provision In insurance policy, making same forfeitable If
I>*"einlura8 are not paid at or before a certain hour on certain days,
's valid: Weils v. Vermont Life Ins. Co.. 38 Ind. App. 623, 62 N. E.
"*t2. holding Insurance policy nonforfeitable after three annual pay-
"•ents, with right to receive paid-up policy wltbln sis montlis after
"^''aiilt, right Is forfeited after that period; dissenting opinion In
•Columbian, etc.. Assn. v. Hopper. 24 Ind. App. 186. 53 N. B. 1067,
****Jortty holding Insured becoming sick while in good standing does
***** Torfeit membership If sick benefits are In excess of subsequent
unpaid: dissenting opinion In Maginnis v. Knickerbocker Ice
. 112 Wis. 396, 88 N. W. 304. majority holding grantee of land
■ *l» conditions subseQuent atiflched forfeit* on breach of conditions,
''S grantor may Invoke Jurisdiction of equity to quiet title thereto.
'^ notes. 86 Am. SL Rep. n2, 01.
a^-Ciistlngulsbed In Maginnis v. Knickerbocker Ice Co.. 112 Wis. 398,
^^'^ S^. w. 303, holding grantee ot land with conditions subsequently
<^hed forfeits on brcacb of conditions, and grantor may ioroke
^■•^diction of equity to quiet title therelo.
^*~*"* U. S. 93-99, 26 L. 665, METCALF v. WILLIAMS.
^-3?1. 2 (X, 142). Equity relieves against fraud.
jj, ^"^ l>proved In Buekl, etc.. Lumber Co, v. Atlantic Lumber Co.. 116
j^^**i, 6, holding bill not demurrable for want of equity where set-off
* '^^^«jed and established by undisputed evidence was excluded from
■ ^**'.*-; Elolton v. Davis, 108 B'ed. 149, holding Judgment obtained by
104 U. S. 91>-110 Notes on U. S. Reports.
administrator, claimed to have been obtained by fraud, cannot b
set aside unless the proof is clear, distinct, and certain; Allen
Allen, 97 Fed. 529, holding Judgment unimpeachable in equity o
ground of fraud practiced by successful party, if it appear that
fraud, if attempted, was unsuccessful.
Syl. 4 (X, 143). Word " agent " after name mere description.
Approved in National Surety Co. v State Bank, 120 Fed.
holding Federal court, sitting in equity, has Jurisdiction to enjo
unconscionable Judgment of State or Federal courts that depri^
defendant of meritorious defense; Holt v. Sweetzer, 23 Ind. A
242, 55 N. E. 256, holding parol evidence admissible in fixing r
sibility where note is signed by corporation name and followed
two others with words ** Sec'y" and "Pres."; Brooks v. Twitch
182 Mass. 445, Go N. E. 844, 94 Am. St Rep. 6G5, holding coi
entering Judgment in case and all parties thereto assenting in w=:
ing upon record to expunge Judgment and begin anew, case can
retired; Small v. Elliott, 12 S. Dak. 574, 76 Am. St Rep. 632,
N. W. 93, holding defendant's signature followed by " Pt" p
Evidence is admissible as between original parties tn explai
the character and capacity; dissenting opinion in Andrus v. B
zard, 23 Utah, 261, 63 Pac. 896, majority holding parol evidence
admissible in reformation of contract where parties knew the t
and language used was intended, though mistake was made
legal effect
104 U. S. 99-105. 26 L. 668, DUDLEY V. EASTON.
Syl. 1 (X, 143). Bona fide creditors have valid claims.
Approved in First Nat. Bank v. Pennsylvaijia Trust Co., 124
970, holding removal of bank's mark on steel billets, taken as b.
rity without bank's knowledge, did not destroy lien because of ^
company's subsequent bankruptcy; Taylor v. Taylor, 59 N. J. Eq-
45 Atl. 440, holding bankrupt's trustee holds property subjec-t
creditor's lien if latter acquired equitable lien by filing credit:
bill before bankruptcy proceedings.
104 U. S. 106, 107. 26 L. 670, KOON v. INiSURANCB CO.
Syl. 1 (X, 144). Stipulation regarding sealed verdict waiv-
polling.
Approved in Smith v. Paul, 133 N. C. 70, 45 S. E. 349, holdln
when unanimity is required any part to be affected by the verdlc-^
can demand, as matter of right, to have Jury polled.
104 U. S. 108-110, 26 L. 671, JONES v. RANDOLPH.
Syl. 1. (X, 144). Instruction cannot assume existence of facts.
Approved in Dolan v. United States. 123 Fed. 54, holding co
errs in instructing jury to assume facts not in evidence or deter^
mined from evidence in the case.
17 Notes on D. S. Reports. 104 TJ. S. lll-l-U
IN C. S. Ill, 112. 26 L. 703. NEVADA BANK V. SEDGWICK.
-•"yl. 3 ff, 144). Federal government taxes foreign State bank.
.Ipprovwl in Corry v. Baltimore City, 06 Md. 322, 53 Atl. M3,
lioldine Slate may Impose a tax on the stock of a domestic cor-
jmratloD uwned by a nonresident; Commercial Nat. Bank t,
Cliuinbera, 21 Utah, 341, 61 Pac. 563, holding property of national
liaak doing business In a particular State Is taxable Id that State
iBlmt such power Is In some manner curtailed.
'M n. S. 112-119. 26 L. 639. RAILItOAD CO. t. MELLON.
Syl, 1 (X. 1*4). Letters-patent limited to Invention.
Approved In Schrelber. etc., Mfg. Co. v. Adams Co.. 117 Fed. 934,
(loldlng language of patent being clear and unamblgnous, courts
cannot enlarge same, though it be too narrow to include actual In-
TCDiion of patentee; American Bell Tel. Co. v. National Tel., etc.,
■ Co., lOB Fed. 997. holding where a patent Is so broad In language
as to Include every other of the general cInsB. the same la void;
Pelfer v. Brown Co.. lOQ Fed. D40. holding patent not adequately
co-s-erlng the actual Invention of patentee is a matter that cannot
be retiKHlted by the courts; Santa Clara, etc.. Lumber Co. v. Preacott.
102 Fed. 506, holding patent claims cannot be enlarged by introduc-
ing a particular feature of the drawing while other features are
treaied as nonessential; Stokes Bros. Mfg. Co. v. Heller, 101 Fed.
2**^. bolillng patent is not Infringed wliere proof Is entirely lacking
^^ proving sameness of form, function, mode of operation, and
combioaUon; Bowers v. Pacific Coast Dredging, etc., Co., 99 Fed.
'• liolding two patents granted not conclusive of lack of Identity
devices, and one being an Improvement of other, patentee's
^"t inralld without former patentee's consent
'"* C S. 120-125. Not cited.
^'^ tl, s. 120-141. 26 L. 073, BARTON v. BARBOUR.
^^- 1 (S, 146). Receiver equitably sued by court's leave.
gij^t»»roved In Hitz v. Jenks, 185 U. S. 109. 4G L. 856. 22 Sup, Ot
' bolding property sold by trustee without special leave of court
p^'^ts no title if he held as receiver and party to suit removed to
jj^^fal court; Montgomery v. Enslen. 120 Aia. 669, 28 So. 631.
•^'rig, although action la for money demanded, and not for specific
l*^rty. Injunction will lie In restraining action against receiver;
g '^"S T. Ward. 89 Mo. App. 190. holding suit in justice court
^*^'*-'Ust receiver not jurlsilletional unleaa statement avers leave of
^^'t appointing him, and receiver's appeal Is no waiver.
^*L 2 (X, 147), Receiver legally sued by court's leave.
^»e 74 Am. St. Bep. 286, note.
Sj-L 3 (X, 148). Receiver not suable in another State.
Approved in In re Qatman et at., 114 Fed. 1009, holding action
^ Ktate court agalngt trustee for taking property claimed by plain-
104 D. S. H2-1&9 Notes on U. S. Oeporta.
sos'l
tiff bat belonging to bankrupt's estate Is enjolnable by Feder^n
court; International Trust Oo. t. United Coal Co.. 27 Colo. 254, &^
Pac. C24. boldlDs equity cannot autliorlzc receiver to lucnr ladebte^^*
neea carrying on buHlness and mate same a paramount Hen upo-^J
corpus of property without consent of prior tlenboldera. See 7--*^
Am. St. Itep. 283, note.
Syl. 4 (X, 148), Receiver caseB mnat be In equity.
Approved In lu re CbriHtensen, 101 Fed. 244, holding proceedings
in bankruptcy being of equitable cognisance, creditor's claim
against trustee who contests Is for the court, not Jury,
Syl. 5 (X. 148). Jury trial not binding In equity.
Approved In Morse v. Franklin Coal Co., 12.'i Fed. SM. bolding
Involuntary bankrupt la entitled to jury trial rcspeetlog his insol-
vency and acts of bankruptcy, but not to determine whether tlie
petitioners sre In fact creditors; Home Ins. Co. v. Virgin la .Carol In a.
etc., Co.. 109 Fed. 691, holding where plaintiff sued several defend-
ants In State court and defendants begin equitable suits in Federal
court to secure Justice, Federal court can enjoin plaintiff's pro-
ceeding. See 74 Am. St. Rep. 290. note.
Syl. e (X. 14S). Receiver personally liable for personal wrongs.
See 74 Am. St. Rep. 2S9, note.
Syl. 7 (X. 148). Equity determines receiver's rights and liabilities.
Approved In Fidelity Ins., etc.. Co. v. Norfolk, etc.. Co.. 114 Fed.
393. holding after company's property is In receiver's hands, judg-
ment rendered against company on suit brought prior to receiver's
appointment gives no priority over mortgage bondholders; First
Nat Bank v. Wyman. IG Colo. App, 472. 66 Pac. 457, holding claim
for money borrowed to keep private railroad In operation gives no
precedence over mortgage secured by company's bonds. See 72
Am. St Rep. 86. note.
Syl. 8 (X, 149). CouR obtaining Jurisdiction bars other courts.
Approved in Leigh v. Green, 62 Nebr. 354, 89 Am. St. Rep, 760,
86 N. W. 1097, bolding bolder of tax Hen may foreclose In State
court, obtaining decree of sale, although an action Is pending
Federal court between other parties concerning such lands.
(X, 146). Miscellaneous.
Cited In 74 Am. St. Rep. 290, note.
104 D. S 142-145. Not cited.
104 U. S. 140-159, 26 L. 679. INSURAN'CE CO. v. RAILROAD CO.
Syl. 2 (X. 150). Connecting carriers are not jointly liable.
Approved in Earte v. Cliesnpenke. etc.. Ry., 127 Fed. 241. hold-
ing defendant. Virginia railroad, whose cars were transported
through Pennsylvania by other Hues, being member of freight
line having office there, not stiabie in Pennsylvania; lUlnolB Cent.
' Kotea on U. S. Reporta. 104 V. B. 150-170
R- S. Co. T. Foulks, 101 III. GO, 60 X. E, 803. bolding defendant
■*^lx^ad and onotber railroad conducting continuous line, each Is
liable Tor negligence of Its servant In mlablUing frelglit, although
agent of other; Taffe t. Oregon B. R. Co.. 41 Or. OS, 6T Pac. 1017,
Iiolding In connecting railroads where written contract was for
general carriage, stlpnlatloa relesBes liability of carrier on Unes of
cooaectlug carrlers-
104 U. S. 1D9-170, 2C L. 686, DAVIS v. WELLS.
SyL 1 (X. 151). Guarantee muHt notify acceptance In offer.
Approved In German Sav. Bank t. Drake Rooting Co., 112 Iowa,
187. 83 N. W. 9C1, holding lu action on guaranty for payment of
all indebtedness accruing to bank for certain principal within cer-
tain time, principal's Insolvency Is sufflclenl excuse tor failure to
give guarantor notice of advancements or of state of account on
f-spiration of guaranty; Donnelly v. Newbold. 94 Md. 223, 50 Atl.
»14, holding where guaranty la collateral, depending upon s con-
(lltion, then default In meeting condition necessitates giving guar-
antor notice or he Is released; National Oil, eic, Line Co. v. Teel,
^ Tei. 591, B8 S. W. 880, holding aaBlgnee of defective contract
^.■ooveying no interest In land but only an option lacks protection
**' t>uirchaBer for valuable consideration where legal title la Involved.
C>iatingni9hed In Acme Mfg. Co. v. Reed. 107 Pa. St. 366. 47 Atl.
""^T'. holding guarantor of payment of order not liable to guarantee
1**Ies3 latter notifies of acceptance, though order stipulated ac-
**ptanee without notice after lapse of certain time.
Syi. 2 (X, 151). Gnaranty — Notice Inapplicable In requested «c-
'^Ptance.
Approved In Hernley v. Brannnm. 23 Ind. App. 304, 55 N. H.
'■'•. holding where defendant agrees payment of note secured
"y mortgage, If plaintiff releases mortgage. In action on guaranty
* Is unnecessary to allege diligence In collecting note; Welch v.
"'alsh, 177 Mass. 577, 00 N. E. 441, where guarantor agrees to
**^y certain sum. In default of another, a lapse of twenty-three
''***nthB la no defense, notice by guarantee not being given; Nelaon
*^^S- Co. V. Shreve, 84 Mot App. 523, 68 8, W. 377. holding where
S^aranty results from creditor's requests, no notice to guarantor
**»a^t he has been opfepted Is necessary to bind him.
^yl. 3 (X. 152). Nominal consideration supports contract of
*''»»-anty.
-^-fproved In Stiver t. Kent, 105 Fed. 841, holding one slgnlns
r**** tract reciting consideration, and guaranteeing payment of note
**^ loan made on such guaranty, Is absolutely liable.
^^■1. 4 (X. 152). Contract of guaranty construed liberally.
-^Eproved In Donnelly v. Newbold. 94 Md. 224, 50 Atl. 515. hold-
^ whether guarant.v Is original or collateral depends upon Intent
** Is a question for the Jury, not matter of assumption by court.
104 U. S. 171-196 Notes on U. S. Reports.
SyL 5 (X, 152). Notice unnecessary in unconditional guaranty.
Approved in Kent v. Silver, 108 Fed. 366, holding wrltt»i
anty, attached to note and delivered with it, is an absolute
not conditional, as requiring notice of acceptance.
104 U. S. 171-175. Not cited.
104 U. S. 176-179, 26 L. 704, MINING CO. T. OULLINS.
Syl. 1 (X, 153). Statute giving lien liberally construed.
Approved in In re Lawler, 110 Fed. 137, holding stal
protecting persons performing labor In certain concerns is bi
enough to include traveling salesmen giving time for hire th4
as establishing priority of lien.
iSyl. 2 (X, 153). Overseeing foreman entitled to laborer's li<
Approved in Idaho Mining, etc., Co. v. Davis, 128 Fed. 398, hOBZ=:^»>1d-
ing services rendered by foreman and watchman of a mine is Inl. m m,
and a lien thereon for such labor Is valid; Johnson t. McGlu
10 N. Mex. 522, 62 Pac. 984, holding architect preparing plans
specifications, and superintending the construction th^reund^,
lien for services rendered throughout; Sutton t. Con. Apex
Co., 15 S. Dais. 414, 89 N. W. 1021, holding lien upon pro]
subsequently mortgaged by superintendent, who was also si
holder, has priority over mortgage, if mortgagee was in no^"«v^^lse
misled by such conduct.
104 U. S. 180-184. Not cited.
104 U. S. 185-191, 26 L. 716, THE ANNIE LINDSLBY.
Syl. 3 (X, 154). Vessel approaching another must port helm.
Approved in The Pilot Boy, 115 Fed. 875, holding burden of p
Is upon steamer to prove that she took necessary precautioo.
avoiding collision with schooner, otherwise she Is presumed at
(X, 154). Miscellaneous.
Cited in The George W. Roby, 111 Fed. 612, holding necees
requiring lookout, absence from duty was flagrant negligence,
burden rests upon the Roby to prove the collision inevitable.
104 U. S. 192-196, 26 L. 707, MINING CO. v. ANGLO-OALIFO
BANK.
Syl. 2 (X, 155). Agent's acts long established bind prineipaL
Approved in Sun Printing & Publishing Assn. t. Moore, 18^
S. 650, 46 L. 373, 22 Sup. Ct 244, holding managing editor of ne
paper is impliedly vested with power to contract for newsge^
to extent of chartering a yacht; Kennedy v. Citiz^is' Nat.
119 Iowa, 126, 93 N. W. 72, holding where dark entered a
of Judgment in Judgment docket, but did not make entry in
book, there was no Judgment to appeal from; Trent v. Sher
24 Mont 264, 61 Pac. 652, holding corporation permitting ItB
V.
Notes on U. S. Reports. 104 D. S. 197-213
periDiendent to coutract for machinery sad sign as " manager " does
Dot estop corporation in denying superintendent's issulns personal
checks on corporation money.
SjL 3 <X, 155). De facto officer's note binds company.
-Approved In Supreme Conncil A. 8. of H. v. Orcutt, 119 Fed.
botding member fralerniti order suspended, and thereafter
'^ceires no notice of assessmenta due. his rlgbta unprejudiced by
tallate to tender nor waived In application for reinstatement; Texar-
kana, etc.. Ry. Co. v. Bemis L. Co., 67 Ark. 551, 55 S. W, 947.
holding signing company's name for years to notes without an-
tborlty, but known to directors, eald act binds company, even
tbongb sum borrowed was used by president.
iOl U. S. 197-208, 20 L. 708, INSURANCE CO. v. TREFZ.
SyL 1 (X, 156). Untrue statement Invalidates life insurance
Policy.
Approved in McClain v. Provident, etc., Soc., 110 Fed. 94. hold-
^**g statements made by au applicant for life insurance. If not
■*»a.terial to risk, will be considered represen tot Ions and not war-
'"a*»tles; dissenting oplDlon la Mutual Lite Ins. Co. v. Simpson, 88
^**«>:x:. 338, 31 S. W. 502, majority holding false answer by applicant
**<>*- Insurance to question constituting a warranty, though not
*****- Serial to risk, constitutes a breach of the contract.
^SyL 2 (S. 15G). Insurance — Answers refer to the questions asked.
-Approved in Black v. Travelers' Ins. Co., 121 Fed. 734, holding
'fcodily inflrmily to constitute a warranty must amount to an
~%ual inroad on the physical health; Supreme Lodge K. of P. v.
=»sler, 2G Ind. App. 343, 50 N. E. 881, holding In suit on policy,
"■^^^KBsed alleged to have suicided, charge to Jury to consider and
"^^ ^igh the Instinctive love of life, ordinarily existing, was proper.
*-^::Vi tJ. 8. 209-213, 26 L. 719, WILLIAMS v. NOTTAWA.
iSyl. 1 (X, 156). Assignor being remediless, assignee will be.
_^^ Approved In Walte v, Santa Cruz, 184 U. 8. 326. 46 L. 567, 22
^^"«p. Ot. 336, holding suit by transferee of bonds and coupons
^^ aiding for collection only, and uniting others to secure Jurisdlc-
^%onal amount, do^ not Involve Federal Jurisdiction; Robinson v.
^^..ee, 122 Fed. 101^, holding action Federal court to recover realty
•i*y purchaser not dismissed because owner of property sold (or
"biases tendered scrip In payment which was refused; PaclBc, etc.,
Xns, Co. V. Tompkins, 101 Fed. 542, holding removal of suits
^ependlDg upon citizenship. Bald citizenship must exist at com-
toiencement of suit, for residence is lost in State removed from;
Strang v. Richmond, etc., Ry. Co., 101 Fed. 515, holding until
damages have been determined at law a blU Is Improperly brought
VoL 11 — 28
X*-
104 D. S. 213-244 Notes on U. S. Reports.
because plaintiff is prevented carrying out contract with defend
ant, due to latter*s fault
Syl. 2 (X, 158). Federal Jurisdiction collusively obtained
dismissal.
Approved In Excelsior Wooden Pipe Co. t. Pacific Bridge Ck)
185 U. S. 288, 46 L. 014, 22 Sup. Ct. 683, holding recital in
allowing an appeal *' from final order and decree dismissing sal M.
suit for want of Juris *' sufflcientiy certifies to warrant direct
appeal; Kunkel v. Brown, 00 Fed. 505, holding amount for Juris J
dictional purposes in Federal court is determined by plaintiff's claiflr .
in good faith in his pleadings, though made under mistake (^
fact; Board of Comrs. v. Schradsky, 97 Fed. 2, holding whei
assignee holds coupons of municipality colorably to invoke F
eral Jurisdiction, Federal court will deny the maintaining of 8U<
suit.
104 U. S. 213-216. Not cited.
104 U. S. 210-222, 26 L. 721, UNITED STATES T. TAYLOR.
Syl. 3 (X, 150). Knowledge of repudiation of trust — Limitatio:
Approved in Miller & Lux v. Betz, 142 Cal. 452, 76 Pac.
holding proceeds held by treasurer after sales of swamp
under Pol. Code, § 3426, held in trust for purchasers, hence stat
runs from repudiation.
(X, 150). Miscellaneous.
Cited in Bacon v. Board of State Tax Comrs., 126 Mich. 29,
N. W. 310, holding a liberal construction must be given to t
tax laws for public purposes, hence ** citizen '* means natl
naturalized citizens, and resident aliens.
104 U. S. 223-227, 26 L. 713, LORING V. TRUE.
Syl. 3 (X, 160). Treasurer's acts within scope bind corporatio
Approved in Geyser-Marion Gold Min. Co. v. Stark, 106 F
560, holding corporation negligently canceling certificate and trarBft
fer of stock on trustee's signature to assignment without inqoS.
for cestui, or for his assent thereto, is liable.
104 U. S. 22S-244, 26 L. 723, CONNER v. LONG.
Syl. 1 (X, 160). Title remains in bankrupt until conveyance.
Approved in Leathen, etc., Lumber Co. v. Nalty, 109 La. 336,
So. 350, holding bankrupt's property remains in him until Judge
register assigns or conveys the same by an instrument under
hand.
Syl. 3 (X, 160). Sale prior to bankruptcy — Proceeds.
Approved in In re Reynoltis, 127 Fed. 762, holding adjudicati
of bankrupt. 'y vests title to bankrupt's property in possession
court and chattel mortgagee cannot seize IL
Notes on U. 8. Reports. 104 U. S. 261-279
IDIstiiignislied in dissenting opinion in Thomas ▼. Nortliwestem,
., Ins. Co., 142 Cal. 86, 75 Pac. 668, holding payment of subsequent
minms on policy reciting payment of first was condition sub-
s^^^xient, and burden of showing default rested on company.
^jrl. 10 (X, 164). Insured may show waiver of nonforfeiture.
-Approved in Knarston v. Manhattan Ldfe Ins. CJo., 140 Cal. 67, 73
. T43, holding waiver of forfeiture of life policy by extension of
of payment of premiums protects insured till insurer repudiates
«3rtension; Illinois Life Assn. v. Wells, 200 Dl. 455, 65 N. B.
p holding Insurance company waiving payment of premiums
I>oUcy stipulated and failure of assured to pay prior to his death
ot fatal to beneficiary's recovering.
• 8. 261-270. 26 L. 732, HALE v. FINOH.
1 (X, 164). Judgment does not bind uninterested party.
-^I^Xiroved In Barker v. Pullman's Palace Car Co., 124 Fed. 560,
g representatives making contract and then signed by princi-
evidencc that agents understood the terms differently from
in the writing will not warrant reformation; Hauke t.
r, 108 Fed. 925, holding one not mentioned but interested in
sustaining land title may sell his interest thereafter and sub-
^'^ently if sued by plaintiff, purchaser can plead decree.
2 (X, 164). No s];>ecial words make a covenant
Pproved in Rhfnelander v. Farmers', etc., Co., 172 N. Y. 534, 65
^. 504, holding a trustee of a railroad mortgage will not be bound
any covenant unless one can be collected from the whole instru-
ct
U. S. 271-279, 26 L. 742, NATIONAL BANK v. JOHNSON.
^^yL 1 (X, 165). Indorsing less than face in discounting.
^•^pproved in Black v. Bank of Westminster, 96 Md. 429, 54 Atl.
"^ holding notes, checks, and drafts habitually indorsed by agents
corporation are properly received in evidence as indorsed by
^^poration.
^yl. 2 (X, 165). National bank equality with person statutory.
—Approved in State v. Franklin Co. Sav. Bank, 74 Vt 259, 52 Atl.
^1, holding special charter permitting savings bank to receive
^^ney on deposit, commercial deposits and savings too as a whole
-^ 11 be " deposits " and taxable.
3ByL 8 (X, 165). Banks and banking — Charging higher than
al rate usury.
Approved in Second Nat. Bank v. Fitzpatrick, 111 Ky. 233, 63
W. 461, holding statutory penalty for national bank taking USU17
twice the amount of entire interest paid and not twice amount
excess over legal interest
104 V. S. 27a-291 Notes on U. S. Report!.
Dlstlngulslied In Dflggs v. Plia>nlx Nat. Bank, 177 V. 8. 555, 4— ^
L. 885, 20 Sup. Ct. 735. holding flmliDgs of tacts unnecessary whpi*-^
qnestioa before court Is the sufHolency of the averments of b
connterclaim a
10* D. S. 279-201. 26 L. 735. BELK t. MEAGHER.
Syl. 1 (X, 165). Required work performed protects mtnerf^ -
claims.
Approved In Teller t. United States, 113 Fed. 281, holding occw —
pant or mJneral claim before patent Is issued and price paid canDi» .^
cut timber thereon witli Intent to export or remove the same.
Syl. 2 (X, 160). Mining claims mny be sold.
Approved in Ah Kle v. McLean, 3 Idaho, 544, 32 Pac. 202, bol-M: '
Ing prior to "alien act" no liiwa existPd In the United States •
Idaho prohibiting ahens holding and working mining ground a^t=3
der lease from one qualified; Lavagnlno v. Uhlig, 26 Utah. 25, '
Pac. 1051, holding under U. S. Kev. Stat., i 2859, party falling
Instltuto action to recover mining claim barred after delay of sev> — '
Syl. 3 (X, 106). Locator has exclusive rlgbt of possession.
Approved In McKinley Creek Mining Co. v. Alaska United M= ~
Ing Co., 183 U. S. 572, 46 L. 335, 22 Sup. Ct. 87, holding notices up— ^
stump in creek giving enact measurcmenta from definite and = —
certainable points are sufficient tor location of placer claims; Ib>_^—
Culloch V. Murpby, 125 Fed. 151, holding burden of proving nb^^^
doumcnt and failure to do assessment work vests upon party "B". j^
ing. and proof must be clear and convincing; Cosmos, etc., Co.
Gray Eagle, etc., Co., 104 Fed. 46, holding equity will not gr^^^
Injunction nor appoint receiver on preliminary hearing, thus
prlvlng defendant of property, unless equities are strongly In cc~ —
plaluant's favor; Calhoun Gold Min. Co. v. AJax Gold Mln. Oo._
Colo. 24, 59 Pac. 016, holding exceptions in favor of subsequent
locator do not include right to drive a tunnel through such locat ^-
for purposes of discovery; Horst v. Shea, 23 Mont. 397, 59 Pac. ^^^S
holding statute requiring adverse posaesaion for one year prioc^~""~
bringing action Cor recovery of mining claim Is Inappliuabl^-
realty patented as placer ground; Lockbart v. Leeds, 10 N. y^^C^
597, 63 Pac. 52, holdiug bill for Injunction restraining defeu^B- ^^
from Interfering with real estate cannot be maintained nierel^^
substitute for action of ejectment; dissenting opinion In Cob."*^^*
Exploration Co. v. Gray Eagle, etc., Co., 112 Fed. 21, majw*:^^^
holding mining land lawfully occupied by one engaged In explo*^--^
same la not "vacant" within act and open to settlement duK"^^"
sueh time. See notes, 87 Am. St. Rep. 409, 414, 415.
Distinguished In McKay v. McDougall, 25 Mont. 203. &4 Pac. <^
bolding relocator filing defective notice, plaintiff who formerly e
io formerly » ^^^ I
Notes on U. S. Reports. 104 U. S. 279-291
p^xided work on claim can return without losing prior rights if
rotmm is made before notice is amended.
Syl. 4 (X, 167). A valid location precludes relocation.
Approved in Fee v. Durham, 121 Fed. 469, 470, 474, majority
holding in contemplation of law a locator's possession and worlc
are continuous from Saturday night to Monday morning, and re-
loeation on this ground is impossible; Oiive Land, etc.. Go. ▼. 01m-
stead, 103 Fed. 573, holding one subsequently acquiring title by
Ally legal means to public land located as mining land has prior
rt^riit: thereto if no discovery has been made; Nevada Sierra Oil Co.
▼- S!ome Oil Co., 98 Fed. 680, holding one in actual possession of
^Toveimment land cannot be ousted by fraudulent and clandestine
entry thereon for purpose of locating it as mining claim: Crown
I^oln-t Min. Co. v. Buclc, 97 Fed. 465, holding every vein whose
^Peac la within limits of location extending downward vertically on
^ree x)ublic land vests in the locator; Buffalo Zinc, etc., Co. v.
Orurop, 70 Ark. 539, 69 S. W. 577, 91 Am. St. Rep. 97, holding rights
^^ orfce temporarily stopping work except that of assessment are
'^^t forfeited by entry of another who homesteads land; dissenting
^Pinion in Northmore v. Simmons, 97 Fed. 392, majority holding
e^eral law requiring certain work annually does not preclude State
^^qviirlng certain things within ninety days, though same expire
ore termination of year.
^yl. 5 (X, 168). Mere possession gives locator no rights.
-Approved in Lockhart v. Johnson, 181 U. S. 527, 45 L. 985, 21
_ ^X>. Ct. 669, holding first locator not having done requisite work
having left mine, the relocator entering peaceably, location
ests in him; Thallman v. Thomas, 111 Fed. 279, holding every
^'^petent locator may initiate lawful claim to unappropriated pub-
^ land by peaceable adverse entry and location while in possession
"those having no superior right; Miller v. Chrisman, 140 Cal. 447,
Pac. 1084, holding locator of oil claim is not in actual bona fide
session, no discovery being made; hence claim is open to peace-
^^« entry by others; Purdum v. Laddin, 23 Mont. 389, 59 Pac. 154,
^^^ding filing with county clerk a statement giving description of
m by metes and bounds is invalid; corners must be described;
l^^nolds T. Pascoe, 24 Utah, 221, 66 Pac. 1065, holding the same
<M)very pomt cannot be used for location of two or more claims
^ted upon the public domain,
^yl. 6 (X, 168). Error includes only trial court's consideration.
-Approved in Walton v. Wild Goose Mining, etc., Trading Co.,
Fed. 219, holding statute provision requesting charge of court
l)e in writing without oral explanation will not of itself invalidate
^gment though court orally answered a question; Harkins v.
t>wn, 108 Fed. 578, holding where trial court admits unsworn
104 U. S. 291-^19 Notes on U. S. Reports.
statements, tbe error is not cured by cautioning the Jury not to
influenced hy them.
Syl. 8 (X, 160). Authenticated copy of public record admissibr;
Approved in Jesse D. Garr Land & Live Stock Co. t. Unit
States, 118 Fed. 823, holding where records of local land ot&ce
burned, the substituted book is offlciaT as showing public lands
is admissible in evidence.
104 U. S. 291-300, 26 L. 745, GILES v. LITTLB.
Syl. 1 (X, 160). Wills — Testator's intent from language and ^
cumstances.
Approved in Cowell v. South Denver Real Estate Co., 16 G-^ *«i^K>lo.
App. 118, 63 Pac. 994, holding power of sale to be made for 1 mi ii(
interest of estate, given by will to executrix, cannot divest estat^^^^^ ^t
devisees unless absolutely necessary.
Syl. 2 (X, 169). Disposal of fee may be conditionaL
Approved In Woodbridge v. Jones, 183 Mass. 553, 67 N. E,
holding will of one who is childless, giving wife the use for
and power of disposal, empowers her during life to make fee
conveyance. See 84 Am. St. Rep. 151, note.
104 U. S. 300-303. Not cited.
104 U. S. 303-310, 26 L. 769, LIBBY v. HOPKINS.
Syl. 3 (X, 171). Definite directions make fund a trust.
Approved In In re Davis, 119 Fed. 956, holding bank recei^J
funds for definite purpose cannot retain same to offset debts
it by firm subsequently bankrupt; St. Louis, etc., Co. t. McPeti
124 Ala. 456, 27 So. 520, holding in action against firm for moi
collected by deceased partner as plaintiff's agent, no recovery xinl*
plaintiff proves his money was mingled with firm's funds; SI
man v. Sherman, etc., Co., 64 N. J. Eq. 63, 53 AtL 229,
special agent collecting money is presumed to transmit directly ^®
principal in usual way practiced in foreign countries, to viol l^te
which binds agent
104 U. S. 310-319, 26 L. 749, PICKERING v. McCULLOUQH.
Syl. 1 (X, 172). Old devices without novelty not patentable.
Approved In Westinghouse Air Brake Co. v. Christensen ^^^SXig.
Co., 128 Fed. 442, holding Boyden patent for valve mechanism _ **
automatic air brakes infringed; Rodiger v. Davids Mfg. Co.t
Fed. 964, 965, holding Rodiger patent for paste cup was m<
combination of old devices performing old function, hence 1'
patentable Invention; Drake-Castle Pressed Steel Lug. Ck>— ^*
Brownell, etc., Co., 123 Fed. 90, holding substitution of ste^^ ^**
wrought-iron for cast-iron in structure is not a patentable in^
'«Iy
« Notes on U. S. Reporls. 104 D. S. 310 -33!>
"00 irbere the only advantage is attributable to Inherent qualities;
^^I Coast, etc., Co. v. Jackson, etc., Co., 117 Fed. 298, Uoldlng
ranjfc/n^tion in a faucet-bushing and valve being but an aggrega-
tlon. i>r-«ducing no new resnlts, amounts to no Invention; Goodyenr
Tire, etc., Co. T. Rubber, etc., Co., 116 Fed. 369, holding combina-
fon ira rnliber tires reaultlng In no new mode of operation, tlie
fi2ii(;a<3iiH performed in substantlallj the old manner is void pntent-
'b\j: IPorter v. Single Tnbe. etc., Co.. 112 Fed. 422, holding com-
olnntl^iii of new and old elements which perform new and addi-
'fonal. functions accomplishing new and useful results is valid;
^- ^ Wott Iron Worka v. Hoffmann, etc., Mfg. Co., 110 Fed. 773,
'"**** a new combination of old elements patentable must pro-
"Hce ^ j,g^ jimj useful result which Is the product of the comhinn-
^ ^.ad not an aggregation; Dodge Mfg. Co. t. Collins. 106 Fed.
™*- *»oldlng 0 combination of old devices In a patent to be aus-
^'^^l must produce a new result.
*** XJ. S. Jia-321, 26 L. 740, SAGE v. WYNCOOP.
S'l. \ (X, 174). Insolvent's acts easily proved preferences.
^,^*-t>Iiroved in Klrchberger v. American, etc.. Burner Co., 128 Fed.
rt|^' boldlng In suit for fntrineement of patent acetylene gas burner,
Q Oxidant to show anticipation must show lava named In spect-
_^^^tl«n would be practically operative; Babbitt v. Kelley, 06 Ma
,-,-?*^- 534. 70 S. W. 386, holding creditor's agent having reasonable
-^^J^^se to believe that debtor is Insolvent when he does a preferen-
^^1 act In favor of agent's principal affects the latter.
^^ D. 8. 322-329.
^^ U. 8. 32i>-333,
Syl. 2 (X, 175).
Not Cited.
26 L. 772, WOOD v. BAILBOAD CO.
Government land grants are In priesentt.
Approved In United States v. Mullan Fuel Co., 118 Fed. 664, hold-
'-^ig Federal court cannot maintain action to recover value of timber
^^ut on unaiirveyed land within limits of railroad grant, title belns
parted with.
:i(>4 n. S. 333-339. 2S L. 755, EGBERT t. LIPPUANN.
Syl. 1 (X, 176). Public use Invalidates subsetjuent patent.
Approved in I'oung v. Clipper Mfg. Co.. 121 Fed. 061, holding
paper fastener exhibited for two years before filing application for
patent is not patentable on ground of prior public use; Thomson-
Houston El. Co. V. Lorain Steel Co., 117 Fed. 252, holding the pub-
lic knowledge of two years Invalidates a subsequent patent using
carbon for copper brushes In electric motors.
Syl. 2 (X, 176). Two years' public use defeats patent.
Approved in Swain v. Holyoke Mach. Co., 102 Fed. 914, holding
instalment of turbine wheel in factory for two years, as practical
test, constitntea a prior public use, which will defeat the patent
104 U. S. 340-385 Notes on U. S. Reports. 410
Syl. 3 (X, 177). Patents — Use for tests not public uses.
Approved in Swain v. Holyoke Mach. Co., 109 Fed. 158, 108,
iioldiug single sale by patentee of his invention used more than
two years before patent, application invalidates patent unless sale
was made for perfecting invention.
104 U. S. 340-349. Not cited.
104 U. S. 350-3'5C, 2G L. 783, MILLER v. BRASS CO. ^
Syl. 1 (X, 178). Application must describe patent.
Approved in Fay v. Mason, 120 Fed. 510, holding where a reissue
is for the same invention, a broader claim than that in the original
patent will not invalidate it; Pfenninger v. Heubner, 99 Fed. 443,
holding after patent filed for nineteen months and after examining
defendant's device patentee cannot in his reissue cover device uf
defendant; dissenting opinion in Tecktonius v. Scott, 116 Wis. 455,
8G N. W. 677, majority holding Federal court declaring "T.'s**
patent equivalent to " S.'s," and " S." sells to " T.," reserving right
to manufacture, and then makes '* T.'s," violates no contract.
Syl. 2 (X, 181). Right of reissue lost by laches.
Approved in United Blue-Flame Oil Stove Co. y. Glazier, 119
Fed. IGO, holding a five years* delay in applying for reii>sue on
ground of inadvertence, accident, or mistake, invalidates the re-
issue unless excused by special circumstances; Pelzer t. Meyberg,
97 Fed. 970, holding letters of original patent being too narrow, an
unexcused delay of twelve years in applying for reissue constitute
laches that invalidate.
Distinguished in Wooster v. Trowbridge, 115 Fed. 724, holding in
trustee's suit for infringement of patent, which was assigned to
another, the decree in absence of statute cannot be questioned after
twenty years; Crown Cork, etc., Co. v. Aluminum, etc., Co., 108
Fed. 853, 855, 857, holding a reissue is valid within six months if
strictly confined to the invention described in the original and
included under the statement therein.
Syl. 3 (X, 183). Reissues upon broader claims condemned.
Approved in Troy Laundry, etc., Co. v. Adams, etc., Co., 112 Fed.
439, holding claims of a patent cannot be broadened by a reissue to
cover structures which the courts had previously decided did not
infringe.
104 U. S. 356-385, 26 L. 786, JAMES T. CAMPBELL.
Syl. 1 <X, 183). Owner's consent necessary to use patent.
Approved in Standard Fireproofing Co. v. Toole, 122 Fed. 652,
holding members of State capitol commission, contracting for a
specified patent, cannot be held for infringing because contractor
used the invention without owner's authority; Dickerson t. Sheldon,
98 Fed. 622, holding article which infringes a patent, sold by United
«1 Notes oil V. S. KeporU. 104 U. S. 35C-,TS5
StatM for Tlolatlon of cusloms laws, Is unvendable by tlie par-
chaaer witli knowledge or the infringement
Sfl. 2 (S. 183). Jurisdiction ot Court ot Claims doubtful.
nisiJnfcuIsbed In Dickerson t. Sheldon, 98 Fed. (!23, holding patent
sold by Federal government, for violation ot eustoma laws, gives
aljMlme title to the propertj but not to patent right.
SrL 3 (X, IS-!). Federal officer protected In using patent.
-Approved in Sheriff v. Turner, 119 Fed. 7S4, holding Federal in-
3 *-nictloQ 1b not the remedy to prevent army officer, acting under sec-
•■^lary of war, from building sewer which will diacharge pollullou
**r3i'n auotber's land; Internaitonnl Postal Supply Co. v. Bruce, 114
-S^eiJ. 512, bolding plea to Jurisdiction to complainant's bill, clalra-
*■*•« its patent Is naed by Federal government, being sustained, rele-
S''*tes complainant to Court of Claims.
Syl. 4 (X, ISl). Reissue cannot embrace Inrentlon not specified.
.Approved In Morrin ». Lawlor, 90 Fed. 9S0, holding circumstances
^-*'e of marked aggravation when defendant.^ not only copy sub-
*^*xtially the patents, but when done with entire knowledge of
"^•^ixiplatnant's exclusive right; Pfenulnger v. Heubner. 0!) Fed. 443,
^■^iciing claim for reissue amounting to nothing more than n broad-
^■***xiig of original patent for purposes of monopoly, the device cannot
^*^ "Valid; M'Bride v. Kingman, 97 Fed. 224, holding patentee making
^** Xirovement, the functions over the old being the same, la protected
***** J against those who use the very improvement
^Syl. fi (X, I8fi). Prior patent covers patentee's right
^__^ -^\pproyed in Thomson-Houston Elec. Co. v. Black Blver Traction
""*-* - . 124 Fed. 512. holding patent composed of coacting parts and
^^^^'"♦ented as a whole, no other valid patent can be Issued to the In-
.^^^*itor for one of the parts; W()oster v. Trowbridge, liri Fed. 724,
^^^^^Idlng after twenty years' aciiuiescence creditors of corporation
^^^*-xinot question trustee's contract to divide damages In infrlnge-
^*-*-^nt suit the same being united with that of another.
.^^ "Distinguished In Ide v. Trorllcht, etc.. Carpet Co.. 115 Fed. 145,
^^^^ildlng suit for infringement against several claims good only lu
^*^^rt, costs should be equitably divided among those only who
*^Xfrlnged the patent
(X, 183). MiscellaneoUB.
Cited In Btelnmetz v. Allen. 102 U. S. 561. 24 Sup. Ct. 422, holding
* •avalid rule 41, patent office practice, preventing Inventor from
~V^tiit]ng lu one application process and apparatus claims for aub-
^tantlally same Inrentlon; International Postal Supply Co. v. Bruce.
^14 Fed. 511, holding although court's Jurisdiction was doubtful.
telea of postmaster that he bad never used patents lu the office was
Sustainable on authority of 40 Fed. &79.
104 U. S. 386-410 Notes on U. S. Reports.
104 U. S. 386-407, 26 L. 757, DAVIS v. GAINES.
SyL 7 (X, 187). Purchaser becomes mortgagee in void sale.
Approved in Marx t. Glisby, 130 Ala. 513, 30 So. 521, holding
of seyeral beneficiaries will be dismissed regarding tmst propert:^^
hands of purchaser under unauthorized trustee sale unless
accounts for benefits of sale; Baker v. Martin, 156 Ind. 60, 60 N»
176, holding mortgage by administrator against land, the wlf<
hETe one-third undivided interest if not remarried, is good a;
her share if she remarries; Junior Order B. & L. Assn. v. 8h;
63 N. J. Eq. 503, 52 Atl. 834, holding an execution sale being
judgment debtor was not estopped from recovering premises,
against mortgagee, debtor having done no acts nor made
statements.
104 U. S. 407-410, 26 L. 823, HYDE v. RUBLE.
Syl. 1 (X, 188). Removal — Diverse citizenship or separable 4
troversy requisite.
Approved in Geer v. Mathieson Alkali Works, 190 U. S. 432,
Sup. Ct. 809, 47 L. 1125, holding separable controversy existd — f**
between plaintifTs and defendant's companies to which the
dividual defendants are not necessary parties, the case is rigi
fully removed to Federal court; Harley v. Home Ins. Co., 125 F
793, holding defendant and plaintifiT of same ^tate Joined to d
fendant of another, who applies for removal, same is determinab
from complaint alone; Seaboard Air Line Ry. v. North Caroli
R. R. Co., 123 Fed. 631, holding, although there are other defen^^
ants in State where suit is pending, a defendant citizen of
other State can remove suit on ground of local prejudice; Smedle:^-
v. Smedley, 110 Fed. 258, holding where there was not a separabl
controversy between plaintifiT and defendants, a removal was im^
proper, and cause was properly remanded; Yountsey v. Hofifman,
108 Fed. 701, holding where removal was obtained by one of sev-^
eral defendants on ground of separable controversy and suit i
dismissed as to the one, Federal Jurisdiction ceases; Broadwa
Ins. Co. V. Chicago, etc., Ry., 101 Fed. 510, holding a suit Im^
properly removed remanding is not affected by claim of defendant
that no cause of action is stated on the merits; Colburn v. Hill
101 Fed. 505, holding writing suit, after removal, with other sultsf^
between some of same parties, subsequently commenced In saic^
court, does not affect jurisdiction of court; Jarvis v. Crozier,
Fed. 755, holding, when necessary for removal, Federal cour
may rearrange the parties, and whore an infant is a party a
point guardian ad litem to represent him; Gates Iron Works
Pepper, 98 Fed. 450, holding same codefendants being adversely i
terested and citizens of same State with defendant, the latter
not remove cause on simple ground of diverse citizenship.
413 Notes on U. S. Reports. 104 U. S. 410-418
104 XJ. 8. 410-418, 26 L. 797, BRONSON v. SCHULTBN.
Syl. 1 (X, IM). Decrees under court's control during term.
^^Pproved in Tubman v. Baltimore, etc., O. R. R. Co., 190 U. 6.
3d» 23 Sup. Ct 778, 47 L. 947, holding Judgment dismissing case
for ^vrant of prosecution cannot at subsequent term be set aside
^v-l&er^ no showing of fraud or surprise is made; United States v.
L^lTiTiIor, 125 Fed. 86, holding, indictment for murder, defendant
I^^^Aded guilty to manslaughter shown by evidence, and Judgment
^^^L8 passed thereon on ground court still had power to vacate
^^■^eirs; Menge v. Warriner, 120 Fed. 817, holding Judgment dis-
''^^^^slng one of sevaral defendaiits Jointly charged, not final, per-
*Mttliig an appeal or writ of error while action is pending as to
<>tilieir defendants; Walker v. Moser, 117 Fed. 232, holding motion
^*^'toi"tained regarding the Judgment during same term when Judg-
was rendered continues Jurisdiction of court to decide at
snbsequent term; dissenting opinion in Hendryx v. Perkins,
Fed. 809, majority holding neither bill to vacate decree
Iraud nor bill of review is maintainable after nine years,
^^^*^X>lainant knowing of decree, no valid excuse ofiTered for
*^l^^; In re Ives, 113 Fed. 913, holding in absence of stat-
^^^^ creditor cannot maintain a petition to vacate an adju-
^^^^^tion in bankruptcy after it is made; Phelps v. Mutual,
^^^•. Assn., 112 Fed. 463, holding State court acquiring Jurisdic-
r^^^^ and rendering Judgment, Jurisdiction continues until Judgment
^^tisfied and includes power to take all proper proceedings to
. — ^^ same; Reynolds v. Manhattan Trust Co., 109 Fed. 99,
^^^^l^lng Circuit Court of Appeals cannot revoke mandate where
Ion to revoke is not made until after expiration of term
^^hich decree was entered; Empire Min. Co. v. Propeller, etc.,
• 108 Fed. 904, holding plaintiff's motion in Federal court, same
txi State court, to strike cause from docket, not passed on till
^^^Midant can remove Judgment to Supreme Court; City of Man-
V. German Ins. Co., 107 Fed. 55, holding order for new
application being made in due time, is proper remedy for
l^^^pacity of Judge who tried suit; United States v. One Thousand
Hundred and Twenty-one Pounds of Fur Clippings, 106 Fed.
'» holding, after term, court pronouncing Judgment cannot va-
same unless at such term steps are taken toward its vacation;
for V. Vermont, etc., Co., 104 Fed. 710, holding Federal
of equity has no power to vacate a decree on motion made
close of term at which it was entered; Tyler v. Aspinwall,
Cyonn. 497, 47 Atl. 766, holding divorce of wife subsequently
'XTied cannot be set aside by strangers, who, but for the mar-
would have had an interest in the husband's estate; King-
v. Chubb, 8 Kan. App. 168, 55 Pac. 474, holding motion for
trial heard and decided, court has no Jurisdiction at subse-
■t torm to' reopen and reconsider said motion; Warner v. Dona-
10* U, S, 4ia-i27 Notes on U. S. Reports.
414
line. 00 Mo, App. 44, T2 8. W. 494, holding an appellant tailing
to fll« biB traDHcrlpt witliln time limited, motion to dismiss wUl
be granted as court bad no Jurisdiction; Ilorton v. State. (>3 Nebr.
38, 88 N. W. 147. holding a party obtaining money under a judg-.
ment Hubaeijuently reversed, the court has power to compel restl-]
tutlon by Bunimary proceedlnga.
Syl. 3 <X, 194). Relief forfeited by long acquiescence. i
Approved In City of Manning v. German Ina. Co.. 107 Fed. BT,\
holding motion to vacate Judgment made at subsequent term l>|
invalid, the only exception to general rule being that relating to'
clerical miataliea; A. B. Dick Co. v. Wiehelman. lOG Fed. S3T.
holding a decree cannot be vacated six terms after entry (or
eiTora of fact or law, except clerical mistakes only.
(X, 191). Miscellaneous.
Cited in McDonnill v. .Jordan. 178 U. S. 234, 44 L. lODO, 20 Sup-^
Ct 888, holding application for removal will contest to Federal,
court because of local prejudice, if authorized by statute permitting
removal before trial, comes too late after mlstriaL
104 O. S. 41D. Not cited.
104 U. S. 420-^27, 26 L. 800, QUJNBY v. CONLAN.
Byl. 1 (X, 194). Pre-emptl oner's right Invalid without entry.
Approved in Boynton v. Haggart, 120 Fed. 82S, holding subsequent
purchaser from same grantor, land not dclinitely described, may
avail himself of registry laws estopping prior purchaser undtv
unrecorded deed; Johnson v. Gallegoa, 10 N. Mex. 4. 00 Pac. 72,
holding in alternative Judgment la replevin, no election being made at
that time, return of property before levy sntlsSes Judgment and
further proceedings are illegal; Rio Grande W. Ry. v. Power Co.,
23 Utah, 41, 03 Pac. 1000. holding settler on unsurveyeil government
land complying with statutory requirements acquires no title by
purchasing from prior settler unless by actual eutry at proper office.
Syl. 2 (X. 194). Pre-emptive right ineffective against existing
occupant.
Disiingulstied in United Statei
ing State court having tried caus
rights of parties even though j
proceedings passed to Federal gi
3 V. Eisenbeis. 112 Fed. 194. hold-
e atill has Jurisdiction to determine'
It the time title In condemnation
jvernraent.
Syl. 4 (X, 105). Finding of Jnry in equity advisory.
Approved In Murphy v. Patterson, 24 Mont. 5S2. 03 Pac. 377,,
boldlng where referee la ordered to take testimony bis findings arft,
only advisory and not a apechil verdict. ,
Syl. 5 (X, 1951- Land department findings of facts conclusive. ,
Approved in Clark v. HiTrlngton, ISS U. S, 210, 40 L. 113, 22 Sup.
4U
Notes on U, S. Reports. 104 D. S. 428-442
Ct 874, boldlng railroad gets no title to sections, tbey being for
iKHn^stead purposes by net of Congress, even tbougb laod depart-
ment approve company's selection; Huwley v. Diller. 178 U. S. 400,
*4 L. 11G2, 20 Sup. Ct. 901. boldlng secretary of Interior reversing
deoEsion of commlssioDer of general land office rejecting and can-
tiling fraudulent entry did not exceed Jurisdiction conferred by
law; Black v. Jackson, 177 U. S. 357, 44 L. 805. 20 Sup. CL 651.
holding legal rigtits given by Federal Constitution cannot be waived
t>X Stale statute abotisblng distinction between I^gal and equitable
suits regarding bomesteuda under Federal governmeul; In re Sing
Tact, 120 Fed. 395, boldlng Cliinese applying for admission to
United States, failing to prove citlieosbip, the adverse decision of
Inspector is conclusive If not appealed from; King v. McAndrews.
iXl Fed. 864. boldlng patent of United States Is presumptive evi-
dence that the department had jurisdiction and tliat It rifthtfuliy
^^erclaed it, and patent cannot be attacked collnternlJy; Jeffords v.
^■^**»«. 2 Ariz. 167, 11 Pac, 354, refusing to review decision of re-
'^^^t'Kr^T of land department, acting also as register by order of depart-
"•^^Kit, toucbing conflicting claims to possession of mining claim:
**'0;onnor v. Gertgens, 85 Minn. 4SS. SO N. W. 872. holding all quea-
*^**:»-s of fact arising In land department of general government are
^-^^*^Xu8lvely within control of the appropriate officers of that depnrt-
*^**«i^*3t; Small t. Rakestraw. 28 Mont. 418, 420. 72 Tac. 748, holding
^**X]gli secretary of Interior Is wrong that residence In voting pre-
" ***::?t precludes residence at same time In another for homestead
^^^^**"poBe8, courts will not Interfere; Diana Shooting Club t. Lam-
^^11. 114 Wis. 50. 80 N. W. 8S5. 91 Am. St. Rep. 000. holding
■^».1e license to hunt confers no right to bolder to go upon lands
*^:»ed by private parties without their permisslotL See 75 Am. St.
^^"Jt. 882, note.
^-* U. S. 428-^1, 26 L. 802, NESLIN v. WEI.I.S.
^jL 3 |X; 108). Registration of conveyance operates as notice.
-Approved in Cady v. Purser, 131 Cal. STiO. holding purchaser of
I sberlfTs sale In aljsence of actual notice is protected If
~''^^*^3rlgage was recorded In wrong book.
*-^^k.4 U. 8. 441, 442, 20 L. 7G5, VIGEL v. HOPP.
Syl. 1 (X. 109). Declaring deed a mortgage is conditional.
Approved In Oe Roux v. Glrard, 103 Fed. 801. holding realty
^^Xaimed by plaintiff under foreign will sold for taxes, conveyed
^*-*ter period of redemption to defendant, no fraud being shown,
^^Ivests plalnUfTs title.
Distinguished In Harvey v. Sellers, IIB Fed. 700. holding com-
l^Ialnant's contract to flnancier and exploit certain patents of defend-
^.nt for one-third shore of profits created trust entitling him to
Cualntaln equity suit In Federal court.
104 U. S. 442-482
Not
1 0. S. Reports.
418
104 D. 8. 442, 443, 26 L. 824. BBADLEY v. UNITED STATES.
Syl. 1 (X, 200). Interest tendencies no bar to wltneas.
Approved In United States t. Lee Huen, 118 Fed. 450, holding
Chinese wltnesB In deportation proceedings la not an Interested
witness, thus creating discretionary cIrcumstauceB because of ouch,
fact. ^^^
104 U, S. 444-449. Not cited, ^^^|
104 U. S. 450-462. 28 L. 827, HAWES T. OAKI-AND. ^^H
Syl. 1 (X, 200). Stockbolder can sue corporation for franl
Approved in Corbus v. Gold Mining Co., 187 U. S. 459, 462, 4G3,
23 Sup, Ct. lo8, 160, 47 L. 25S, holding stockholder's suit to restrain
corporfttlou paying license la dlsmlsslble. no demand bavlng been
uinde on Its directors, and damage not Irreparable, corporation
making no defense: Dlckerman v. Northern Trust Co,, 176 U. S. 188,
44 L. 429, 20 Sup. Ct. 313, holding In trustee suit (or all stockholdera
to foreclose mortgage no rights to set-off against some Individual
bondholders for unpaid Htock. for bonds are an entirety; M'Kee t.
Cbautauqua Assembly, 124 Fed. Sll. holding member nonstock
corporation may sue out Federal Injunction where mismanagement
wilt result In creation of debts, Involving all corporation's property,
value exceeding Jurisdictional amount; Kessler v. Ensley Co., 123
Fed. 551, holding corporation being estopped, or honestly and fatrl7
refusing, to authorlxe suit, a minority stockholder's suit In behalf of
corporation is likewise estopped; New Albany Water-Works t.
Ijouisvllie Banking Co.. 122 Fed. 778, holding granting of pre-
liminary Injunction does not warrant appointing receiver where
no other mismanagement la shown than that of leasing all property
of corporation by directors; Metcalf y. American School Furniture
Co.. 122 Fed. 118, holding corporation whose charter gives right to
dispose of property may accept another corporation's stock as pur-
chase price, transaction being bona fide; GodchauK v. Morris. 121
Fed. 484, holding Federal court having Jurisdiction may order
realty sold in place other than courthouse of parlsb, for decree,
though erroneous. Is binding unless reversed on appeal; Blklns t.
City of Chicago, 119 Fed. 958, 959, holding lessor stockholder of one
company has no right of action against city, the ordinance requiring
two railway systems to give transfers, both operating as lessee;
Dickinson v. Consolidated Traction Co., 114 Fed. 241. holding when
allegations of bill are wanting that directors were requested to briny
action to Bet aside lease, the jurisdictional fact Is omitted; BavlngB
& Trust Co. T. Bear Valley IiT. Co.. 112 Fed. 704, holding stock-
holder cannot question deed of company Id absence of showing that
corporation failed after proper application to bring suit to set aside
deed; Mumford v. Ecuador Development Co.. Ill Fed. 643, holding
majority stockholders can contract with the company, but minorl^
41T
Notes on U. S. Reports. 104 U. S. 45()-!(;j
^^ have same set aside If at all oppressing their rights, fraudu-
lently, as minority stockholders; Bimber v. Gallvada Colonization
^•» HO Fed. 59, holding bill in equity In Federal court dismissible
^Sainst fraudulent Issue by corporation unless stockholder at time
*^<i demand first made for corporation to sue; Metcalf v. American,
'^^-» Co., 108 Fed. 911, holding minority stockholder can have cor-
^^^^'^tion transfer, in restraint of commerce, set aside, but bill for
damages unmaintainable, since it inures to all stockholders;
"^ay V. Missouri Land, etc., Co., 101 Fed. 484, 485, holding be-
'^se of diminished value more threatened, resident minority stock-
er cannot have receiver appointed, in statutory absence, when
^^^^**XX)ration is solvent with majority stockholders nonresident;
^Ji V. Williams, 100 Fed. 174, holding where complainant owns
s than one-fifth of the stock, he will be refused an injunction. If
^ter injury will result to the majority; Kimball v. Cedar Rapids,
^ed. 131, holding stockholder of water-works may bring suit In
l.eral court to restrain city from fixing water rates which de-
stock of any earning ability; Louisville, etc., R. R. Co. v.
^^1, 128 Ala. 156, 29 So. 867, holding stockholder must show in
^^1. either that he requested officers or corporation to right the
ng, or aver facts constituting excuse for not requesting; Zuelly
• C^asper, 160 Ind. 460, 67 N. E. 105, holding taxpayer may main-
action against county auditor and commissioners for restitu-
^x^ of former moneys illegally allowed him by latter who refuse
^ «iue him; Tevls v. Hammersmith, 31 Ind. App. 282, 283, 287, 66
«• 'M. 80, 81, holding stockholder maintaining action for benefit of
^^"^^^■Xwration must allege and prove demand made to directors to
and their refusal unless such would have been unavailing;
et al. V. Schwenk et al., 112 Iowa, 735, 84 N. W. 916,
stockholders of corporation may maintain suit In equity
^^Inst its officers to recover money misappropriated by the cor-
; Fry v. Bush, 63 Kan. 439, 65 Pac. 704, holding stock-
er's petition is objectionable in uniting distinct and discon-
causes in same count, and In joining plaintiffs and defend-
, parties without common interest; Ulmer v. Maine Real Estate
., 93 Me. 326, 45 Atl. 41, holding stockholder's bill in equity for
^^^^^■XJoratlon's ultra vires act must show that both officers and cor-
X^oi'ation refused to act In the matter; Flynn v. Third Nat. Bank
^^ Detroit, 122 Mich. 645, 81 N. W. 573, holding bank directors'
^^i^ligence causing loss, and one of them being appointed receiver,
refusal to bring action not prerequisite for stockholder's bring-
action; Loomis v. Missouri Ry. Co., 165 Mo. 487, 489, 65 S. W.
^^^ 967, holding plaintiff stockholder falling to make slightest
tovestlgatlon within five years required by statute, which would
*^ave disclosed fraud, he is barred by laches; Niles v. New York, etc.,
. ^ ^M 176 N. Y. 126, 68 N. E. 145, holding action to recover for con-
•P*'acy among corporation officers to wreck concern must be brought
Vol 11 — 27
•Lt^s on U. S. Reports.
%
. .:- .-■.'• L'iver, or by shareholder after demand a
■1 l^axLer. «5 Ohio St 365. G2 N. E. 331, holdl
... l.r^'Lurs violating national bank act, and ba
-' ;.!.»;. :o sue directors, shareholder may maintain act
^lI dLiureliolders; Farwell v. Babcock, 27 TeK. Civ. 1
iiling appeal from interlocutory order appoint!
.L;iiuer!» on ex parte hearing is proper, no notice
..i.'», no notice of appeal being necessary; Joy ▼.
..t-vsa Co., 24 Tex. Civ. 90, 58 S. W. 174, holding minor
.'eiui; barred by laches in suit against dlrectora
' . ..oLUiiy applied is not barred on other grounds becai
.iL. See 72 Am. St. Rep. 55, 58, 97, notes.
«. ,^.:.SLieU in Davis, etc., Mfg. Go. v. Los Angeles, 189 U.
Sup. Ct. 501, 47 L. 781, holding subcontractor having a ci
• .ucdy at law cannot enjoin criminal proceedings aga!
ti..\vt'cs In erecting gasworks as infringing municipal o
. \iaLliews y. Bank of Allendale, 60 S. G. 199, 38 S. E.
:!,; Mil of stockholder of bank in process of liquidation
..... iuolo as stating two causes of actions in asking for accoon
.: .li'poiiitment of receiver.
<> 1. 'J \ \. 200). Federal jurisdiction unobtainable by coUusio:
\.i.tiio\i'a In Cotting V. Godard, 183 U. S. 113, 46 L. 110, 22
'«. u, holding suit by stockholders against corporation to rest
...uicvuiout of statute is not collusive because officers of cori
lou a^L'ee that statute is unconstitntional; Goldman v. Fun
'..L.. Co.. 101 Fed. 468, holding where courts of Ganada should
>.4.i, assignment to citizen of United States, by collusion, will f
loiliiug In bringing suit in Federal court
10^ U. S. 462-468. Not cited.
104 11. S. 469-479. 26 L. 775. LOUISVILLE t. SAVINGS BANK
Syl. 2 iX, 207). Gourts recognize fractional days when necesi
vpproved in Board of Comrs. v. Vandriss, 115 Fed. 871, hoi
le^iislatlve act. nothing said to contrary, takes effect on the da
passage, and is regarded in effect during the whole of that
Scoville V. Anderson, 131 Gal. 595. 63 Pac. 1015, holding fra(
of days not considered in computing time between the levy o
auai-tmunit and the Institution of insolvency proceedings; 1
N»t. Hank of Ft. Wayne v. Ft. Wayne, etc.. Ice Go.. 1(K> La.
JO Si>. 381. holding if difference in time can be ascertaine
icvvniod seizure will take precedence of a subsequently reco
fiaio, for t*ourts will recognize fractions of day: Galveston. H.,
li.v. Co. V. Lynch, 22 Tex. Civ. 33S. 55 S. W. 390. holding act
I'uiorgoncy clause on special issues controls in cases submitte
.lury on the day it became law after the hour of governor's si
cure. See 78 Am. SL Rep. 382, note.
119 5OTB «L C. :&. ■agM.aa. IM T. &
cited IB Unoa Jt F^usssaT Butk t. Qtj of Memphis. Ul Fed.
% hoidi2^ c&srser srxziieii bj Tecsesce to bamk. n?^ainn|: paj-
*ot of tix «■ iftares tsimaibcd in bra of all other tax, does not
ciCBlic £n>B tax «■ ea?riaL
»< t. & Sm-diM. » L S12. DRAPER r. SPRIXGPORT.
^ 1 'X. 21X^ Bofsids of t«ca fide purchaser ralid.
ipnwed a IfWjKUrz^ t. Xew York. 101 Fed. 009. holding Grare*-
Cid Icrlas eesaed to he a distinct municipality, prorisions of the
cteter mwBL he i— iti imJ to Indode its ralid debts. Inclodlni: a
bud
IW C fi. 986^121 S U filK. STEWART r. LANSING.
S!rL 2 ^X. 21I.L BSHs and notes — Indorsee's right for ralue is
Tafil
Iffrored m fidraids t. Bates Co., 117 Fed. 52S, hoKlinj: hoKior
if BSBxapal VcbmSs porchased after maturitj not an iinuvvnt px^r
\it j«vre be acquired title through prior boKior »tu>
l«f«re matnritj: D'Esterre v. New York. UM Kt\i tMi\
'a ssaxatoiy issuance of bonds in all sulv»t:int;al re-
104 U. S. 512-552 Notes on U. S. Reports, 42C
spects same, coming Into hands of Innocent third party for Talne,
municipality cannot avoid liability.
Syl. 4 (X, 213). Right to note inapplicable to two.
Approved in Hanrlcls v. Gurley, 93 Tex. 479, 55 S. W. 120, boldini
decision of right of inheritance precludes same question of law ii
different suit between same parties where plaintiff claims othei
lands under same right
Syl. 6 (X, 213). Court instructs jury when facts permit
Approved in Neiminger v. Cowan, 101 Fed. 790, holding in qnes
tlon of contributory negligence where conclusion follows as mattci
of law that no recovery can be had, court may properly direct 'th<
verdict
(X, 211). Miscellaneous.
Cited in Edwards v. Bates Co., 117 Fed. 543, holding holder o1
municipal bonds illegally issued, purchased after maturity, musi
prove title acquired through prior holder who took them for value
without notice of invalidity. '
104 U. S. 512-515. Not cited.
104 U. S. 515-519, 26 L. 814, EX PARTE GORDON.
Syl. 2 (X, 213). Admiralty jurisdiction extends to maritime con
tracts.
Approved in The Underwriter, 119 Fed. 737, holding no actua
necessity existing for pledging vessel where libelant, furnishing
coal, linew the vessel to be under charter, he being on inquin
regarding its terms, libel will not be sustained.
Syl. 3 (X, 213). Admiralty has Jurisdiction over navigable waters
Approved in Pouppirt v. Elder Dempster Shipping, 122 Fed. 98»
holding owner of foreign ship liable in personam in Admiralt:
Court of United States for injury to American passenger on big*:
seas.
Syl. 4 (X, 214). Admiralty acquiring jurisdiction damage na
restrain able.
Approved in O'Neal v. United States, 190 U. S. 38, 23 Sup. Ct 77'
47 L. 946, holding jurisdiction of Federal District Court over perse:
and subject-matter unchallenged, court may punish for contemin
and Supreme Court cannot review on writ of error.
104 U. S. 519-547. Not cited.
104 U. S. 547-552, 26 L. 816, STOW v. CHICAGO.
Syl. 1 (X, 216). All advantages of invention are inventor's.
Approved in Ex parte O'Neal, 125 Fed. 968, holding proceeding
Federal District Court having jurisdiction, punishing relator C
assaulting bankruptcy trustee as contempt, not reviewable in C
cult Court on habeas corpus writ; Eames v. Worcester Poljrtechis
i21
Notes on U. S. Keports, 104 U. S. K3-591
/□sttttite, 123 Fed. 71. holding simple element la combination In*
stead of two In prior one, perrormlng same results, mectaanlsm
heing similar, Is an infringement
lO* V. S. 553. 554, 26 L. S40, GKIGGS t. HOUSTON.
SyL 1 (S, 217). Facts undisputed court may direct verdict
Approved in Marauch v. Texas & Pac. II. R. Co.. IS4 U. S, 191,
46 I'- 496. 22 Sup. Ct. 346, holding jurj reasonably JustlQed In In-
rei-ricg tiiat locomotive caused tlie fire also In Inferring that proof
sbo^ed negligence because of Inadequate fire apparatus; Mitchell v.
Potomac Ins. Co.. 183 U. S. 4S, 46 L. 77. 22 Sup. Ct 24. holding an
Instruction submitting to tbe Jury a question which Is not baaed
c»«a jiny evidence Is properly denied; District of Columbia v, Moul-
coii, 182 U. S. 582, 45 L. 1241. 21 Sup, Ct S42, holding broken steam
roller, unchanged in appearance, left near curb of street for two
A^Lya, frighlening horses, was not case of negligence for jury: I*at-
toxi -V. TeiaB & P. It. R. Co.. 179 V. S. 660. 45 L. 363. 21 Sup. Ct. 27C.
tiolding locomotive fireman not waiting for regular Inspection, and
Is^cause of such Is negligent. Injuring himself, court may direct a
■*-erclIct for defendant: Nelnlnger t. Cowan. 101 Fed. 789. holding
^"^'I'ience disclosing contributory negligence which was a proilmate
<;a».iise Df the Injury Justifies the court In directing a verdict for the
<l.-ereB(lant: Barber v. Southern Ind. R. R. Co.. 30 Ind. App. 410. Cfi
^^*'- E. 73, holding railroad employee In eonstniction work, riding
'^onae on fiat car Instead of in caboose, does not contribute to bis
**Vjury If flat car Is derailed; Ketterman v. Dry Fork R. R. Co.. 48
^^- Va. 613. 37 S. E. 6S6, holding facts undisputed, whether a case
»s actionable negligence Is question of law for judge, but when
facts are disputed judge must submit to Jury.
**** tr. S. 554-556. 26 L. Sll. JONES v. BUCKELL.
Syi. 2 (X. 210). Appellate court requires evidence of point
■*-t>tiroved in Southern Pac. Co. v. Arnett 126 Fed. 77, holding not
rror- In inHtruciing jury to allow Interest from time of demand upon
****»geM allowed for breach of contract to transport stoch with
^^a^inahlecare: South Peun. Oil Co. v. Latshaw, 111 Fed. 599. Iiold-
® Appellate court will not review retiiaal of Instructions asked,
*^»s bill of exceptions contains evidence relied on making In-
j **«:;tlons applicable to case submitted to jury: Downing v. State,
. 'Np'yo. 378, 09 Pac. 2G5, holding Instructions erroneous under any
^ *'^^uce, bill of exceptions will not be dismissed for failure to set
tbe evidence.
* TT. S. 576-591. 20 L. 836, COUNTY OF CLAT v. SOCIETY FOR
SAVINGS.
^»1. 1 (X, 221). Bonds fair on face bind county.
"^.pprored In Keith Co. v. Citizens' Sav., etc., Assn., 116 Fed. 20,
d
TJ. S. 550-S79. Not cited.
i
104 u. s. r)i'-»-ijr>ii
r- -^ ^ L". S. Reports.
spocts same, cuuiinc
municipality cuiimi
Syl. 4 (X, :2ix». «
Approved in II;
decision of riui.. 'ji
different suii u
lands undi:r inwI.o
Syl. 5 (X. i!l.-:i
Approved ■"
tlon of con*'-''
of law tiint •■
verdlri.
(X. i:ii.
riio.i :: •■• -
muiiii-iii:i-
wi; .1..
V
T
. •- riieir identity as requ
i.iy for value are not v
'• • .. ..esi L-annot stand If repug
Viii^tleld, 2 Ariz. 308, 15
^ . iiLicilng school superinte
. o superintendent $2,000 In
<«euciUK opinion In White v. 2
. . . y iiolding act amendatory
.^Led for four years does no
...^KiH lies for salary due.
;i.e cannot impair contracts part
.; V. Keddingfield, 125 N. C. 285
• addition of few more powers
juc repeal old act, thus creating
.1..
i.erent long paid cures mere Irrei
.^C4i V. raducah, 117 Fed. 055, hold!
.> .or uine years, complainant pure
..tauuc repudiate on ground of me
. A asiiington Oo. t. Williams, 111 :
...^ LH>ud8 payable pro rata from am
.we right of action at law and cannot
. «.;reene County, 130 Ala. 632, 29 S
.^ does not repeal the general, count
..-111 road. Issued under the general, i
. .vo, Jtf L. »45, BONAPARTE v. TAX
.■-. Foreign corporation stock taxable
. iacou V. Board of State Tax Gomrs.,
. -oidiug ^tate statute taxing stock of f<
1 .a i» not unconstitutional, though capitc
« »\oU where corporation was organized.
<. V.U4. Not cited.
. . « J IS '^ h- 861, EX PARTE ROWLANI
\. '.y). Contempt inapplicable to court'i
.V
.. u In re Roose. 107 Fed. 949, holding
^a:\ u» sivure discharge from Imprlsonme
. . .1 p.my to tho cause, hence not subject 1
ti.iuu^ t>S Fed. 989.
,v. -:it»). l>uty unperformed, public officer
^.^ *vvl lu Karmers* Nat. Bank v. Jones, 105 Fe
*^ Notes on U. S. ReporU. 104 U. S. 618-^31
^"^H^damiw will He against a State board for purely ministerial acts
^'^^ined by positive requirements of law, but not for acts leaking
State pecuniarily liable.
U. S. 618-020, 26 L. 849, DAVIS v. FREDERICKS.
ijl 2 (X, 225). Debtor's wife secure against creditor's bilL
90 Am. St Rep. 521, note.
U. S. 621-624, 26 L. 869, UNITED STATES v. McBRATNEY.'
«dyL 1 (X« 225). Exclusive governmental Jurisdiction in Federal
-vrts.
^Approved in State v. Ck)lumbia George, 39 Or. 137, 65 Pac. 607,
Iding general government not relinquishing jurisdiction in Fed-
court, murder on an Indian reservation triable only in Federal
fiyL 2 (X, 226). Exception of Indian reservation on admission of
te.
distinguished in Territory v. Delinquent Tax List 8 Ariz. 807,
Pac 312, holding in absence of treaty restrictions railroad across
^Uan reservation taxable by territorial government
U. 8. 625-631, 26 L. 870, MOORES v. NATIONAL BANK.
fi^L 1 (X, 22Q. Supreme Ck>urt recognizes State Statute Limita-
^pproved in Hale v. Coffin, 120 Fed. 474, holding where a State
*^=^tiite places limitations of time on a legal remedy. Federal court
^^ equity will recognize that statute.
Sj^L 2 (X, 227). Judgment reversible for unbolstered ruling.
^X>proved in Alaslca Commercial Co. v. Dlnkelspiel, 121 Fed. 322,
*H>l^ljig court permitting counsel to argue on a matter objected to
^^^ not in evidence commits a prejudicial error permitting reversal
^^ Jxidgment; United States v. Gentry, 119 Fed. 76, holding pre-
>tion of prejudice exists if court erroneously admits evidence,
'When it clearly appears there was no prejudice, no ground for
is present; dissenting opinion In Chicago House W. Co. v.
ley, 117 Fed. 81, majority holding where court's charge for
Lges for permanent Injury, considered as a whole, was not
»^eous as imposing incorrect measure, there should be no re-
^; dissenting, opinion in Choctaw, etc., R. R. Co. v. Tennessee,
j^ ^ed. 30, majority holding a slight error in charge, where court
*^«une coimection correctly enumerated things constituting negii-
^c^, was no ground for reversal; dissenting opinion In Heer v.
1, etc., Co., 118 Wis. 67, 94 N. W. 792, majority holding
• ^ —-mission of evidence of business profits of plaintiff in suit for
^^^^*les not shown error, where verdict not equivalent to two-
annual profits.
104 U. S. 631-657 Notes ou U. S. Reports. 4B
(X, 226). Miscellaneous.
Cited in Choctaw, etc., R. R. v. HoUoway, 114 Fed. 465, holdSj
where error complained of did not and could not prejudice, th^
was no ground for reversal.
104 U. S. 631-635, 26 L. 873, HOPT v. PEOPLE.
Syl. 1 (X, 227). Intoxication admissible in unpremedltatec:
murder.
Approved in Hempton v. State, 111 Wis. 135, 86 N. W. 598, hold-
ing evidence of voluntary drunkenness at time of murder Insig-
nificant, unless jury is satisfied of murderer's incapacity to Intend
said crime; Gustavenson v. State, 10 Wyo. 323, 68 Pac. 1010, hold-
ing instructions given regarding voluntary Intoxication, coupled with
conditions showing defendant knew right from wrong, nnpreju-
dicial, defendant being acquitted of charge in first degree.
Syl. 2 (X, 228). Record supplies instruction, statute reqnlrhig
writing.
Approved in Hatfield v. Chenowith, 24 Ind. App. 348, 56 N. Bw 53,
holding on return of verdict, court commits no error in directing
the jury orally merely to retire and answer unanswered interroga-
tories, same being " direction " not ** instruction."
(X, 227). Miscellaneous.
Cited in Murphy v. Massachusetts, 177 U. S. 150, 44 L. 714, 20
Sup. Ct 641, holding prior sentence voidable in itself and being
set aside at instance of accused, he was not put in double jeopardy
by subsequent sentence.
104 U. S. 636-657, 26 L. 875, SMELTING CO. v. KEMP.
Syl. 1 (X, 228). Public lands — Regularly issued patents unassail-
aJble collaterally.
Approved in Bockfinger v. Foster, 190 U. S. 125, 23 Sup. Ot 839,
47 L. 979, holding one claiming under homestead laws cannot
maintain suit against town trustees who hold land in trust foi
town site, title being in general government; Snowden v. Loree, 122
Fed. 497, holding adverse statutory possession necessary to glv€
title must be open, notorious, distinct, and hostile for twenty-one
years, and any other claim is not sufllcient; Boynton v. Haggart,
120 Fed. 828, holding innocent purchaser for value of right, title,
and interest of grantor, by registry statute, may estop holders ol
real title under prior unrecorded deed; King v. McAndrews, 111 Fed.
864, 866, 873, holding United States patent is presumptive evidence
that land department had Jurisdiction and rightly exercised it, and
attack thereon, being indirect and collateral, cannot prevail; Peabod^i
Gold Min. Co. v. Gold Hill Min. Co., Ill Fed. 820, holding patent
issued for mineral lands on representation of quartz claims, but in
reality were placer, no ground for cancellation of patent, govern-
4:25 Notes on U. 8. Reports. 104 U. S. 636-657
nient uninjured by representation; Bunker Hill, etc., Co. v. Empire
State, etc., Co., 108 Fed. 192, holding claims overlapping, junior
under-ground ownership of ledge is bounded by the extension of a
plane passing through the line of the senior claim; King v. M*An
dre^^v^s, 104 Fed. 431, holding statute authorizing homestead entries
^^y on ** unappropriated public lands " makes void a homestead on
^*^<i appropriated, but which at time was restored to public domain;
^^ver-sed in 111 Fed. 864; Cosmos, etc., Co. v. Gray Eagle, etc., Co..
104 B'ed. 44, holding defendant in possession of property not de-
I>rive<i thereof on preliminary hearing either by injunction or
^^XH>intment of receiver, unless complainants show strong equities
tixelr favor; Peabody Gold Min. Co. v. Gold HiU Min. Co., 07
660. 662, holding, trespass upon mining claim nor claim of
claim against regularly issued patent by laud department
no Federal question; affirmed in 111 Fed. 820; Miller v. Grun-
'» 141 CaL 457, GG Pae. 859, holding in suit to quiet title to swamp
claimed under patent it cannot be shown to be based on in-
survey; Phillips v. Carter. 135 Cal. 606, 87 Am. St Kep. 154,
Pac 1082, holding patent regular on its face and legally issued,
tee by defendant as to its invalidity will be rejected, he not
himself with paramount title; Standard Quicksilver Co.
- ^Babishaw, 132 Cal. 119, 64 Pac. ;L15, holaing defendants not con-
ing themselves with the paramount title nor in any way in-
'^8ted at time patent was issued, the patent cannot be collaterally
^t^t^-oked; Small v. Rakestraw, 28 Mont. 419, 72 Pac. 748, holding
'e secretary of interior for lack of evidence commits mere
of Judgment In deciding residence necessary to homesteading,
_ will not interfere; Brokken v. Baumann, 10 N. Dak. 457, 88
• "^V. 85, holding premises never being actually or constructively
^^^iiX)led by husband or wife as home, homestead right not attach-
**^^» hence mortgage after proving up is valid; dissenting opinion
^ Salisbury V. Lane, 7 Idaho, 385. 63 Pac. 388, majority holding
^^^tfcption of certain private property from taxation under statute
ng all private property taxable, exemption must be in specific
8, admitting of no doubt
2 (X, 232). Patent void on face collaterally impeachable.
Ctlnguished in Lockhard v. Asher Lumber Co.. 123 Fed. 490.
holding patent for larger amount of land than 20O acres, the
'^tory quantity showing but a single survey, is void on its face
collaterally impeachable; Kansas City M.. etc., Co. v. Clay, 3
^^ 328, 335, 29 Pac. 10, 13, holding In ejectment prior location
.^^'^^tkineral deposit may be shown to avoid patent under Rev. Stat.,
- ^^L 3 (X, 233). Patent legally conclusive of department's juris-
^^^=^^n.
^^X^proved in Calhoun Gold Min. Co. v. AJax Gold Min. Co., 27
104 U. S. 657-680 Notes on U. S. Reports. 426
Ck)lo. 29, 69 Pac. 618, holding mining claim patent being iBsned
conclnslyely settles, as against collateral attack, that ererythlng
was done In making valid location; Johnson v. Fleutsch, 176 Ho.
464, 75 iS. W. 1008, holding assignee of land warrant, locating
same and securing certificate of entry as legally required, is not
responsible for register's neglect in reporting location; State t.
Webster, 28 Mont 110, 72 Pac. 297, holding statute requiring town
sites of public domain, before surveying and platting, to be held
in trust for the then occupants, district judge cannot sell to
strangers; Small v. Lutz, 41 Or. 578, 69 Pac. 827, holding finding by
secretary of Interior that lands were subject to homestead entry
was conclusive against one claiming same from State as swamp
land.
Distinguished in Lockhard v. Asher Lumber Co., 123 Fed. 487,
holding Federal court Is bound by decision of highest conrt of
State construing State statutes, but not In obiter dictum.
Syl. 4 (X, 233). Irregularities In grant foreign to strangers.
Approved In Small v. Rakestraw, 28 Mont. 421, 72 Pac. 748,
holding holder of legal title under patent on erroneous ruling of
land department Is divested by plaintiffs proving his title; Power
V. Sla, 24 Mont 250, 251, 61 Pac. 470, 471, holding statute requiring
filing for record In proper book,' one claiming under forfeited clal^i
states only conclusions of law by alleging that he caused record
notice made.
Syl. 6 (X, 233). Single patent may include several claims.
Approved In Peabody Gold MIn. Co. v. Gold Hill Mln. Co., 97 T
Fed. 661, holding patent Including ground extending more than.«:
800 feet on either side of lode does not render It Invalid on Its^
face as to the excess.
Syl. 8 (X, 234). Labor Improving mine is assessment work.
Approved In McCulloch v. Murphy, 125 Fed. 149, holding
ponderance of evidence establishing validity of mining location b]
defendants, and required assessment work done In certain year,
renders relocation of subsequent year void; Yreka Min., etc., Co.
V. Knight, 133 Cal. 548, 65 Pac. 1094, holding whether work on on!
two of three contiguous mining claims was for the benefit of th<
group of claims was a question for the Jury. See 87 Am. St Bep.^
409, 410, note.
104 U. S. 657-668. Not cited.
104 U. S. 668-680, 26 L. 886, KOSHKONONG v. BURTON.
Syl. 1 (X, 235). Coupons being negotiable separable actions maln-^^
talnable.
Approved In Walte v. Santa Cruz, 184 U. S. 828, 46 L. 668^
Sup. Ct 336, holding suit by transferee of bonds not wltbln
^^'S^ Notes on U. S. Reports. 104 U. S. 680-707
^^^^'•^ion of Circuit Court, he holding same for collection only and
xable bonds were united to secure jurisdictional amount
I. 2 (X, 235). Legislature may bar existing cause eventually.
fiproved in Bradley v. Lightcap, 201 IlL 623, 66 N. E. 550, holding
:e purchaser on foreclosure of trust deed neglects obtaining
on his certificate for five years after expiration of redemption,
haser acquires no title; Norris v. Tripp, 111 Iowa, 118, 82 N.
^11, holding legislature may not bar instanter suit on existing
>« of action, but must give reasonable time within which to
«cute same under new statute; Kreyling v. O'Reilly, 97 Mo. App.
71 S. W. 374, holding statute barring foreclosure of mortgage
trust deed in two years applies to suit to enforce mortgage
3i8t surplus resulting from sale under prior mortgage; Osh-
Water-Works Co. v. City of Oshkosh, 100 Wis. 218, 85 N. W.
holding city charter amendment requiring no suit to be brought
nst city until claim was disallowed by council, did not render
^udment invalid as impairing contracts.
rL 3 (X, 236). Overdue bond interest coupons draw interest.
>:i>proved in Board of Comrs. v. Geer, 108 Fed. 482, holding statute
'"Wing interest on any bond, bill, or promissory note after same
imes due applies to municipal bond interest coupons, they being
effect negotiable.
»^L 6 (X, 236). Subsequent laws cannot impair existing contracts.
pproved in Rondot v. Rogers Tp., 09 Fed. 209, holding State
>Teme Court holding election of township invalid does not in-
date bonds sold before said decision; Seton v. Hoyt, 34 Or. 280,
.m. St Rep. 649, 65 Pac. 970, holding county treasurer indorsing
it paid for want of funds," entitled holder thenceforth to draw
then legal interest rate, though same is changed later.
U. S. 680-689. Not cited.
n. S. 689-693, 26 L. 894, MASON v. SARGBNT.
^L 1 G^ 237). Taxing inheritances dates from tenant's death.
pproved in Knowlton v. Moore, 178 U. S. 75, 44 L. 083, 20 Sup.
761, holding amount of each distributive share and not wbole
^c^ecedent's personal estate is the amount upon which progressive
of war tax is imposed.
U. S. 694-707, 26 L. 896, MERRITT v. WELSH.
L 4 (X, 237). Actual color determines dutiable sugar quality.
pproved in Hills Bros. Co. v. United States, 123 Fed. 478, hold-
halved lemQUS in brine are ** fruits in brine," and on free list,
not lemon peel, and dutiable, though brine renders pulp in-
104 U. S. 708-768 Notes on U. S. Beportl. 428
104 U. S. 708-727. Not cited. *
104 U. S. 728-734, 26 L. 908, UNITED STATES v. SAVINGS BANK.
Syl. 1 (X, 238). Illegal Federal taxes are recoverable.
Approved in Dooley v. United States, 182 U. S. 229, 45 L. 1090,
21 Sup. Ct 765, holding Circuit Court has Jurisdiction to recover
back duties illegally exacted and paid under protest upon imports
into Porto Rico from New York.
Syl. 2 (X, 238). Appeal from revenue collector's decision.
Approved in Chesebrough v. United States, 192 U. S. 263, 24 Sup.
Ct 265, holding written application to revenue commissioner to
refund money voluntary spent for stamps not appeal to him within
Rev. Stat, S 3226, entitling petitioner to sue.
104 U. S. 735, 736. Not cited.
104 U. S. 737-757, 26 L. 910, HEALD v. RICE.
Syl. 1 (X, 239). Identity of patent and reissue as question of law.
Approved in Singer Co. v. Cramer, 192 U. S. 275, 24 Sup. Ct 295,
holding question of infringement where patents are comprehensible
and clear is question of law determinable on writ of error.
SyL 2 (X, 239). Original patent never basis for reissue.
Approved in Yale, etc., Mfg. Co. v. Sargent 97 Fed. 107, holding
an improvement in an ordinary mortise lock making the same more
useful and secure does not disclose a patentable invention.
Syl. 3 (X, 239). Combination unpatentable if not novel.
Approved In Rodlger v. Davids Mfg. Co., 126 Fed. 965, holding
Rodlger paste cup being merely combination of old devices per-
forming old function Is void for lack of patentable invention; Wis-
consin, etc., Co. V. American, etc., Co., 125 Fed. 7G9, holding patent
carpet ■ cleaner not being an invention of a primary character, a
subsequent machine very similar thereto Is not an Infringement;
National Moter Co. v. Thomson Meter Co., 106 Fed. 540, holding
description given by patentee which accomplishes the result sought
is valid, though he did not understand the scientific principles of
operation.
104 U. S. 757-766, 26 L. 917, BRITTON v. NICCOLLS.
Syl. 1 (X, 240). Bills and notes — Place of execution is maker's
residence.
Approved in Rose v. McCracken, 20 Tex. Civ. 639, 50 S. W. 153,
holding no place of payment designated in note, maker may desig-
nate place and deposit money there to prevent his l)eing in default
104 U. 8. 767, 768. Not cited.
fj»
Notes on D. S. Reports. lOi U. S
7TO-7T4. Not cited.
S. T75-783. 26 L. 324, WARNOCK v. DAVIS.
Assign meat good If Insarable Interest exists.
JW U. B. 708. 770, 26 L. 922, BLAIB t. GRAT.
Sj'I. a (X, £41). Charter determines use of unpaiiJ subscriptions.
■Approved in Brunswick, etc.. Co. v. National Banlc, 09 Fed. 039,
oo'iling whi;re statute of another State prescribes period of llmlta-
(lon resardLng corporation liability, law of forutu, If contrary, does
not gro-v-«rn.
m XJ.
^^- a. (X. 241).
'*I>I»«-<jyed in Foster v. Preferred Accident lua. Co., 125 Fed. 539.
hollin.^ notwithstanding clause In policy relative to proof of In-
letest. -the beteflclary as " friend " will be entitled, where insured
^^J*-v»eB paying and company receiving premium; In re Sllngbuff,
=d. loS, holding endowment life insurance policy assignable
terms passes to banlfi'upt trustee to be realized upon and
Bvailable In payment or debts; Manhattan Life Ina. Co. t.
fisy. uu Fed. G8, holding creditor to whom debtor assigns life
^'**"**»3ee policy has a continuing insurable Interest wherii there
,^^^*«»8 a haiance still owing; Union Fraternal League t, Walton,
^ ** *^B. e. 7T Am. St. Rep. 355. 34 S. B. 319, holding one having
. "*^»irable Interest in life of another cannot get Insurance thereon,
**«:»e may insure his own lite for the benelit of another; Bf^lknap
^■_ •* <:>"»inBton. 114 Iowa. 209, 80 N. W. 209, holding debtor Insuring
j^j^_^ *^*re In favor of his creditor creates no wagering contract, since
<^«:edltor has an insurable interest In debtor's lite; Strode v.
IV. 381, holding
of debtor, insuring lattcr'a life in excess of
^V>tedneas does not make policy void, but creditor becomea trus-
tor excess amount; Manley v. Manley. 107 Tenn. 200, OJ S. W.
j^j " ^^ireditor has an Insurable interest In debtor'
__^^^r Bros. Drug Co., 101 Mo. App. 634, — "' "
liolding constitution of beueQclal association, establishing relief
Y^~^ Members and their "families" In event of death. Includes
^^^*ieQta of certificate In favor of member's mother,
distinguished In Life Ins. Clearing Co. v. O'Neill, 106 Fed. 802,
^^5, holding .
^^>e an adult
relation of father and son Is not sufflcleut to
an Insurable Interest In hia father's life. See
^tes, 87 Am. St. Rep. 507, 509, 510, 512.
Syl. 2 (X, 242). Assignment valid, assignee advancing money
Approved In In re Sllnglutf. 106 Fed. 158, holding endowment
t»olley payable to wife only at death of banlirupt Is husband's
^Jivestment during life, hence goes to trustee In bauliruptcy; Man-
ViS'ttan Life Ins. Co. v. Hennessy. 09 Fed. 70. holding notwlthStandr
^ng subsequent assignment, creditor to whom debtor assigned life
policy as security, and who paid premium for twenty ypars, got
i
104 U. S. 783-797 Notes on U. S. Reports. 490
absolute right; Metropolitan Life Ins. Co. v. Brown, 159 Ind. M7,
65 N. E. 910, holding one may insure his own life in good faith
and assign policy in good faith to person having no Insurable In-i
terest therein; Farmers & Traders' Bank v. Johnson, 118 Iowa,
284, 285, 91 N. W. 1075, holding an assignment of life policy to
secure loan to beneficiary was valid, at least to extent of assignee's
claim with interest, regardless of insurable interest; Mutual Life
Ins. Co. T. Richards, 99 Mo. App. 93, 72 S. W. 489, holding assign-
ment of life policy to one paying premiums, but having no other
Insurable interest though absolute in form, gives him interest only
for payments made.
Distinguished in Chamberlain v. Butler, 61 Nebr. 738, 739, 86 N.
W. 482, holding one may lawfully insure his own life, and after-
ward assign the policy to another having no insurable interest, If
done in good faith.
104 U. S. 783-785, 26 L. 928. FOX v. CINCINNATL
SyL 1 (X, 243). City's act reviewable by State court
Approved in Walsh v. Columbus, etc., R. R. Co., 176 U. S. 478, 44
L. 553, 20 Sup. Ct 397, holding proprietor of lands crossed by
canals State contracted with Federal government to maintain
cannot take advantage of default, he not being party to the contract
104 U. S. 786-797, 26 L. 779, WOOD v. WEIMBR.
Syl. 1 (X, 244). Mortgagee may replevy chattels, officer refusing.
See 80 Am. St Rep. 748, note.
Syl. 2 (X, 244). Costs In State court are final
Approved in In re Michigan Cent R. R. Co., 124 Fed. 732, hold-
ing decree against party to proceeding for costs to be paid to clerk
for services rendered and awarding execution therefor is final as
being appealableii
CV UlsITED STATES.
i^4
U. 8. 1-3, 28 L. 1027, WADE t. WALNUT.
fL 1 (X, 246). Supreme Court follows State's Jurisdictional
approved In State v. Kyle, 166 Mo. 297, 65 S. W. 765, holding
^ndment changing only the mode of procedure, passed after
mission of reputed crime, is not ex post facto as aggravating
-^^ifecting crime.
U. S. 3, 4, 26 L. 939, SWOPB Y. LEFFINGWBLL.
fh 2 (X, 246). Supreme Court affirms sustained Federal laws.
3>proved in Baldwin y. Maryland Use of Hull, 179 U. S. 222, 45
.62, 21 Sup. Ct 106, holding the two cases being identical, Judg-
it establishing liability to pay taxes for certain years is res
Lcata for such years.
yL 8 (K^ 246). National bank may enforce security deed.
pproved in First Nat Bank of Sutton t. Grosshans, 61 Nebr.
-Ml. 85 N. W. 545, holding national bank, taking security on real
te on contemporaneous loan, may enforce same, though Federal
-ute prohibits that character of security^
srl. 4 (X, 246). Federal government controls national bank acts.
pproved in Savings & Trust Co. v. Bear Valley Irr. Co., 112
701, holding one corporation, mortgaging to another corpora-
for loans, is estopped to deny its power to mortgage or lender
lold such security.
U. S. 4. 5, 26 L. i^aS, CLARK v. FREDERICKS,
yl. 2 (X, 247). Objections raisable at proper time.
pproved in Robinson, etc., Co. v. Belt. 187 U. S. 50, 23 Sup. Ct.
^-47 L. 69, holding objection to validity ot assigrnment for creditors
want of acceptance and to form of Judgment not raisable for
"^^ time in United States Supreme Court
U. S. a Not cited.
U. S. 7-12, 26 L. 998, POLLARD v. VINTON.
yl. 2 (X, 247). Bill of lading transferable, not negotiable.
approved in The Carlos F. Roses, 177 U. S. 665, 44 L. 933, 20
Ct. 807t holding assignment of bill of lading carries with it
[431J
105 U. S. 13-24 Notes on U. S. Reports. 432
the Intention of parties, hence is open to explanation eyen in
hands of innocent party for vaine.
SyL 3 (X, 248). Bill of lading, receipt, and contract.
Approved in Planters', etc., Mfg. Co. v. Elder, 101 Fed. 1003,
holding bill of lading' receipt for goods and contract to carry, and
as receipt is prima facie only and open to explanation; Parker v.
Railroad, 133 N. C. 347, 45 S. E. 6G2, holding carrier, though ac-
cepting shipment under contract ** subject to delay,** has burden
of showing exercise of due diligence to avoid delay in carrying
and delivering.
Syl. 5 (X, 248). False bill of lading not binding.
Approved in The Isola Di Procida, 124 Fed. »43, holding Federal
courts hold master powerless to bind shipowner or ship by false
bill in any particular.
(X, 247). Miscellaneous.
Cited in Hindman v. First Nat. Bank, 98 Fed. 566, holding bank
making false statement regarding financial condition of one of its
customers, thus misleading third party, will be liable If loss results
from deceit.
105 U. S. 13-24, 26 L. 961, GREENWOOD v. FREIGHT CO.
Syl. 1 (X, 249). Corporation refusing stockholder may seek rights.
Approved iu Dickerman v. Northern Trust Co., 176 U. S. 188, 44
L. 429, 20 Sup. Ct. 313, holding corporation acting in good faith can
give bonus iu stock as inducement in taking its bonds, and dissent-
ing stockholders cannot interfere effectively; Elkins v. City of
Chicago, 119 Fed. 959, holding city may require transfers between
two leased railway systems, and stockholder of lessor company not
interested in lessee's receipts cannot sue city alleging impairment
of contract
Syl. 2 (X, 249). Statute repealing existing franchise impairs
contract
Approved in Newburyport Water Co. v. Newburyport, 103 Fed.
587, holding where legislative grant to private corporation to build
water-works is not exclusive, the subsequent grant to city to build
competing water- works is constitutional; Mercantile, etc., Deposit
Co. V. Collins Park R. R., 101 Fed. 350, holding city letting fran-
chise for street railway in absence of any reservation, city cannot
authorize another company a joint use, nor can eminent domain
apply; Mercantile, etc., Deposit Co. v. Collins Park R. R., 99 Fed.
817, holding legislature cannot prohibit construction of street* rail-
road without consent of corporate authorities of city, for an ordi-
nance granting such franchise is law of State; Deposit Bank of
Owensboro v. Daviess Co., etc., 102 Ky. 187, 188, 201, 39 S. W.
1033, 1034, 1037, holding proviso in national bank act does not pre-
Notes on U. S. Reports. 105 U. S. 24-^6
▼ent State taxing national banks at greater rate tban that Imposed
upon most favored State banks; Gregg ▼. Granby Min., etc.» Ck>.,
164 Mo. ^528, 65 S. W. 314, holding by reason of reservation in
charter, relative to electing directors, the legislature was empowered
to alter or amend same, and change Impaired no contract
Syl. 3 (X, 249). General law permits altering or amending
charter.
Approved in Looker ▼. Maynard ex rel. Dusenbnry, 179 U. S. 52,
45 L. 81, 21 Sap. Gt. 23, holding statute permitting each stock-
holder to cumulate his votes upon one of many director candidates,
le^rislature may constitutionally amend, alter, or repeal same with-
out impairing contract.
Syl. 5 (X, 251). Repealing charter destroys no absolute rights.
Approved In Redfield v. Baltimore & O. R. R. Co., 124 Fed. 930,
holding Federal court is without Jurisdiction, where stockholder and
domestic corporation are both citizens of same State, in suit against
foreign corporation as trustee in fraud; M'Kee v. Chautauqua As-
sembly, 124 Fed. 811, 813, holding legislature under power reserved
in grant may lawfully amend corporation charter by enlarging its
scope, no property rights or contracts being Impaired; Woodson v.
State, 69 Ark. 527, 05 S. W. 467, holding statute requiring mining
corporation to weigh coal before screening does not abridge right
of laborer to contract with corporation; Appendix, 97 Me. 593,
holding legislature restrained by State and Federal Constitutions to
impair contract obligations once lawfully made by corporation, but
it can prohibit making new contracts.
106 U. S. 24-36, 26 L. 1001, THE SCOTLAND.
SyL 1 (X, 251). Maritime law operative provided country adopts.
Approved in Pouppirt v. Elder Dempster Shipping, 122 Fed. 988,
holding Federal Admiralty Court has Jurisdiction in personam
against owaer of foreign ship for injuring American passenger on
high seas. Irrespective of law of ship*s flag; Rundell v. La Cam-
pagnle, etc., 100 Fed. 600, holding in tort on foreig^n vessel upon
high seas. Federal Court of Admiralty cannot enforce local laws
of foreign nation, but general admiralty wiii be administered.
SyL 2 (X, 251). Shipping — Statutes limiting liability are mari-
time law.
Approved In Oregon R. & N. Co. v. Balfour, 179 U. S. 56, 45 L.
^i, 21 Sup. Ct 29, holding proceedings under congressional statute
-Smiting liability of shipowner, and Supreme Court rules in that
are admiralty cases within meaning of judiciary act.
YoL U — 28
*
IDS n. S. 37-51 Notes on D. S. Reports. 484 4
8;l. 4 <X. 252). Collision in tote\eD waters, foreign law applies. .
Approved la TLe Robert Dollar. 115 Fed. 225. holding Teaatia .
foreign to ports of State, like domestic vessels, are liable on trane-
actlons wltliia said State, and sabject to statutory liabilities.
Syl. 7 (X. 1253). Lex fori applies iinleKS proven Inapplicable.
Approved in Rnndell v. La CHmpngQle, etc. 100 Fed. S61. hold-
ing In torts on high aeaa, parties being of different nationalities.
Federal Admiralty Court la governed by law of tiie forum, the
general adtulralty law.
Syl. 10 (X, 253). Collision — Limited UabUIly act not abBotule
limitation.
Approved In In re The Bnrelu No. 32, 108 Fed. 673, holding
proceeding In admiralty for limited liability nnder statute sbould
not be entertained where there Is but one known claim.
Syl. 12 IX. 2M). Pleading limited liability necessitates depositing
amount
Approved In In re The Eureka No. 32, 108 Fed. 874, holding ship-
owner obtains full relief In original action by anawer setting up
statutory limltatioD of liability, value of vessel, and making proof
accordingly.
PC 2511. Miscellaneous.
Cited m Piiclfic Coast v. Reynolds. 114 Fed. 882. holding voyage
termiuaEiug because of ship's stranding, passengers having prepaid
fare with stipulation not return same, such considered as freight
earned.
1(B D. 8. 37-45. Not cited.
106 D. 8. 45-51, 26 L. 1028. HEAD v. HARGRAVH.
Syl. 2 IX. 255). Attorney's opinion controlling Jury erroneons.
Approved In Laflln t. Shackleford, 08 Fed. 374. holding assign-
ment of error on ruling rejecting evidence embracing entire record
In former suit, moat being Immaterial, raises no question of admla-
slblllty of oilier portions.
8yl. 3 |X, 25B). Jury's knowledge determines weight of evidence.
Approved in Pennaylvanla Co. v. Schofleld, 121 Fed. 816, holding
while jury arc not bound to follow in very footsteps of witnesses,
yet award for damagoa must necessitate some evidence to assist
or guide ih.sm; Nyback v. Champagne L. Co.. 109 Fed. 738. holding
fact properly submitted to Jury, It is error for Judge to direct ver-
dict for plaintiff "because the evidence on the ijuesllon is all on
one side;" I.ai'ayette Br. Co. v. Olsen. 108 Fed. 3.10, holding whei'e
defective plank cauacd death of employee. It Is competent for the
Joty, lu judging expert's opinion, to use their own knowledge and
435
Notes on D. S. BeporU.
105 U. a. 53-73
--■xperience; Talotor t. Franklin Snt. Bank, 107 Fed. 828, boldlng:
the master 1b not bound by the opinion of other lawyers as to the
T'a.Itie of sn attorney's services, for which claim Is made; Sanders
V. Graves, 105 Fed. 850, holding action by attorney for services,
iury not ItouDd to accept expert opinion &9 to amount owed, bnt
tbey mnst use their own opinion: Beverldge v. Lewis, 137 Cal.
B2S. 67 Pac. 1040, holding Instruction permitting jurors to use their
Individual Jadgment within their knowledge, acquired through ex-
perience and observation, waa not erroneous; Hoyt v. Chicago, etc.,
Ry.. 117 Iowa, 302. 90 N. W. 72G, holding Instruction that in connec-
tion with tbc testimony as to damages, Jury may use their own
Jn<J^ment in sucb matter was not error: Ilanck v. Cedar Rapids
Sas Co.. 116 Iowa, 13, 89 N. W. 88, boldlng guided by the evidence,
JtXf^ may find damages to be less in amouni than that of the
"^Jac^ontradlcted evidence of wllnessea; Brownrigg v. MasHengale, 87
**'<>- App. 195. 70 S, W. 1105, holding error In refusing instruction
'■**^»-'t Jury were not bonnd by testimony <if eiperts as to value of
^^■^"t-win servitea, waa harmless; Kingsbury v. Joseph, 04 Mo. App.
***^- 68 8. W, 95, holding where testimony of both parties show,
*^**^i30ut contradiction, facts entitling plaintiff to recover, verdict
^*^*-^«3me8 question oC law, being equivalent to agreed caae: Hoy-
r*^*^,^ V, Henske, 153 Mo. 75, 55 S. W. 88, holding Instruction that
^^^^^^^t are not bound by opinlona of experts, and thut any or all
__^* ^^^~*aaonable portions of such opinion may be disregarded, is correct;
r^^^^^sler V. 'I'rump. 62 Ohio St 144, 56 N. E. 657, holding in quan-
^*^ *^^fc3 meruit, where plaintiff offers evidence that Infers promise to
■^*'^^&-, and nature and extent of service rendered, case should be
j^ ^^* "■:=»mltted to Jury; Ladd v. Wltte, 116 Wis. 42. 92 N. W. 388, hold-
^^~^^^K action on quantum meruit for physician 'a service, there being
-^^^ conSict In experts' opinions, jury cannot disregard same and
^*-^ tbelr oivii Judgment.
'^ U. S. 32-59. Not cited.
S D. S. 60-73, 20 L. 1008. TAYLOR v. TPSILANTL
Syl. 2 (X. 258). Railroad — Public nature of corporation deter-
*- Snes power.
Approved m Minneapolia t. Janncy, 86 Minn. 120, 90 N. W. 316.
^^ilding expositions calculated to promote the material Interests of
^--**e people are public In their character, and the right of taxation
**"tiplies.
Byl. 3 (X, 258), In certain rightM Federal follows State.
Approved in Loeb v. Trustees of Columbia Township. 179 U, S.
'*«2, 45 L. 291. 21 Sup. CL 1S2, holding Federal court in determin-
**ig contract rigbts as affected by State Constitution will follow
^tale Constitution as Interpreted by highest State court at time of
105 U. S. 73-94 Notes on U. S. Reports. 436
contract; Provident, etc., Assur. Soc ▼. Hadley, 102 Fed. 800,
holding disputed rights being adjudicated in State where contract
is closed are determinable according to law of that State.
SyL 4 (X, 258). Federal court upholds authorized bond issne.
Approved in Sheafer v. Mitchell, 109 Tenn. 211, 71 S. W. 94,
holding after thirty-five years lapse of time every reasonable pre-
sumption should be indulged to uphold a tax deed, numerous sub-
sequent conveyances having been made.
Syl. 5 (X, 258). Judicial construction is part of statute.
Approved in Gross v. Board, etc., 158 Ind. 535, 64 N. E. 27, hold-
ing county oflicer accepting salary by legislative act in lieu of com-
mission estops his claiming compensation under former statute,
though act was declared unconstitutional; State v. Mayor, etc, of
City of Bristol, 109 Tenn. 323, 70 S. W. 1033, holding legislature
may, by implication, grant municipal corporation power to levy
taxes to pay municipal debts, unless Constitution requires grant
Co be in express terms.
Syl. 6 (X, 258). Bonds valid when Issued continue valid.
Approved in Gulf & Ship Island R. R. Go. v. Hewes, 183 U. 8.
72, 46 L. 89, 22 Sup. Ct. 28, holding charter with exemption from
taxation is contract with State, and subsequent legislation repeal-
ing exemption raises Federal question, and bill is sustainable on
writ of error.
(X, 257). Miscellaneous.
Cited In Michigan Sugar Co. v. Auditor-General, 124 Mich. 679,
83 N. W. 627. holding act of 1897, granting sugar bounty to manu-
facturer of beet sugar, being unconstitutional, no action thereunder
was Justifiable.
105 U. S. 73-76, 26 L. 1024, NEW BUFFALO TOWNSHIP T.
IRON CO.
Syl. 2 (X, 259). Bonds valid when issued continue valid.
Approved in State v. Mayor, etc., of City of Bristol, 109 Tenn.
823, 70 S. W. 1033, holding municipal bonds in bona fide holder after
being declared valid by Supreme Court, statute authorizing Issu-
ance cannot be reconsidered on appeal.
Syl. 4 (X, 259). Consolidation corporation bonds valid If
authorized.
See 89 Am. St. Rep. 632, note.
105 U. S. 77-94, 26 L. 1111, HAMSNOCK v. LOAN, ETC., CO,
SyL 1 (X, 259). Punctuation is no part of statute.
Approved in Commissioners of Highways, etc. v. Ellwood, 1
111. 307, 308, 61 N. E. 1034, holding where sections of statute ai
harmonious, there is nothing which makes it necessary to construe
r
-W Notes on U. S. Reports. 105 U. S. 94-97
^uiy section to have a different meaning; Manger ▼. Board of Exam-
diners, eta, 90 Md. 669, 45 Atl. 893, holding court in construing
^statute of two sentences, the latter as punctuated having no mean-
.Mng, may change punctuation, being no part of statute, to give
C:o.
SyL 2 (X, 260). Vacation appointment of receiver is void.
.Approved in Hardware Co. v. Stove Co., 88 Tex. 487, 27 S. W.
, h<Hding insolvent cori>oration ceasing to do business, or con-
ing all its property, incapacitates itself to continue doing busi-
and cannot prefer creditors. See notes, 72 Am. St Rep. 38, 91.
yl. 4 (X, 260) Use of property determines franchise value.
pproved In People, etc. v Tax Comrs., 174 N. Y. 442, 67 N. E.
holding a granted franchise is, like all other property, taxable,
a special franchise tax takes nothing from the grant nor im-
contractual obligations
'jl 5 (X, 260). Franchise, property lien has primary value.
pproved in State Trust Co. v. Kansas City, P. & G. R. R. Co.,
Fed. 404, holding after court of equity has entered decree fore-
ing railroad mortgage, and property has been sold, uilsecured
of mortgagor eannot intervene, claims not being prefer-
«al.
^1. 7 (X, 260). Railroad franchise and personalty not redeemable.
Pproved In Pacific N. W. Packing Co. v. Allen, 116 Fed. 515,
g statute providing sales of realty shall be subject to redemp-
not applicable to sale of wharf, fishing and fish-canning plant
personalty thereto belonging.
XJ. S. 94-97, 26 L. 939, LEHNBENTER v. HOLTHAUB.
- 1 (X, 261). Patent evidence of novelty and utility.
X>proved in Sanders v. Hancock, 128 Fed. 434, holding patent-
^ combination, claim No. 2, of Hardy patent, for improvement
Notary disk plows, which produces novel result; Lamb Ejiit
Co. V. Lamb Glove & Mitten Co., 120 Fed. 272, holding
8S of manufacture in a patent is material where claims refer
^X>«cifications and drawings, describing such means and limited
^■^■"tocle produced; Consolidated Rubber Tire Co. v. Finley Rubber
' dk)., 116 Fed. 632, holding though elements in rubber tire were
^till if the differentiation produced new and useful results,
8 of invention are sustained; Goss Printing-Press Co. v. Scott,
ed. 259, holding reassigning patent by corporation to patentee
me terms as original assignment, though voidable under State
corporation, assignee may sue for infringement; Animarlum
FiUoon, 102 Fed. 898, hplding evidence showing that in
use the device had proved operative and useful, same was
^^^ged by a device of similar nature; Stephenson v. Allison, 123
N
105 V. 8. 97-122 Notes on V. S. Reports. 438
Ala. 448. 26 So. 282, holding Issuance of letters -pa tent la presamp-
tlon ol patentability of the article, and facts beyond a reasonable
doubt are necessary to overcome this presumption: dissenting opin-
ion in Tecktonius v. Scott. 110 Wis. 454. 86 N. W. 676, majority
holding court holding "■T." Infringing "S." and its equivalent, sale
of " S." to " T." reserving right to manutaeture " S." and then
mRnutacture "' T." Instead violates no coDtract.
SyL 2 (X, 262), Patent infringed by scarcely perceptible change.
Approved In Wheel-Truing Brake-Shoe Co. v. Car Wheel, etc.,
Co., 124 Fed. 903, holding UofTniBi) patent for an abrading shoe
for tmlng up car wheels being valid, any combination not novpl
and aeeful la an infringement
Syl. 3 (X, 202). Patent infringed proves lU utility.
Approved in Goss Printing- Press Co. v. Scott, 108 Fed. 258, hold-
ing printing machine being Infringed sufficiently proves its utility.
105 D, S. S7-90. Not cited.
105 U. S. 100-122. 26 L. 1080, BLBNNBRHASSETT v. SHERMAN.
SyL 1 (X, 262). Creditors preferred except In bankruptcy.
Approved In Clayton v. Exchange Bank, 121 Fed. 634. holding
where mortgage Is kept off records to maintain storekeeper's credit,
mortgage debts lose priority over bankrupt proceedings.
SyL 2 (X, 263). Creditor's settlement must be bona fide.
Approved In Corwine v. Thompson Nat. Bank, 105 Fed. 200, hold-
ing In ease of principal and agent, where one of two Innocent parties
muat suffer, the one furnishing the opportunity for Inflicting Injury
must Butfer; Bunch v. Schaer, 66 Ark. 104, 48 S. W. 1073, holding
grantee withholding conveyance from record permitting grantor
to bold himself out as owner cannot assert title against bona Bde
creditor if grantor becomes Insolvent; Curtis v. Lewis, 74 Conn,
371, 60 Atl. 8S0. holding mortgage withheld from record, not fraudu-
lent as to creditors In the inception, until mortgagor becomes In-
solvent, renders It fraudulent against other creditors without knowl-
edge; Kirkbusch v. Corwlth. 108 Wis. 616, 85 N. W. 152, holding
mortgage unrecorded during four years at mortgagor's request,
thus giving him falee financial standing, was fraudulent against
persona dealing with him.
SyL 3 (X, 263). Creditor knowing insolvent debtor's mortgage
Invalid.
Approved tn National State Bank of Terre Haute t. Sandford,
etc.. Tool Co., 157 Ind. 18, GO N. E. 702, holding mere failure to
record mortgage within statutory period, mortgagee promising to
pay during said time, was not fraudulent as against subsequent
creditors.
439 Notes on D. H. Bepocts. 105 U. S. ]2'_'-lo!)
I05 U. S. 122-128, 26 L. 940. McCORMICK t. KNOS.
S jL 1 (X, 264). Mortgagee HBtlsfylng lien entitled to remuneration.
Approved in Amerlcaa Loan, etc., Co. v. Atlanta, etc., Ry., 5*0
Fe«3. 3tS. holding Junior mortgagee redeeming from sale under senior
mortgagee must offer to pay entire first mortgage debt.
lOS U, S. 126-132, 26 L. W2, AGER t, MURRAY.
SjL 3 (X. 264). Equity relieves against Ineffective legal execution.
-A-Pproved In Huntington t. Jones, 72 Conn. 49, 43 Atl. 566, liold-
in^ creditor's bill to reacb debtor's Interest in trust estate not de-
murrable because plaintiff had adequate legal remedy, trustee com-
bining with debtors to thwart garnishment proceedings; Stevenson
^- AfcFarlnnd. 182 Mo. 167, 62 3. W. 697, holding plaintiff in gurnish-
"*^Dt relative to garnishee can enforce no demand against garnishee
^*'*iJeh the debtor would not be entitled to recover; Geist v. SI.
-'^ouls. 156 Mo. 649, 79 Am. St. Rep. 549, 57 S. W. 787. holding statute
*^^W»ptlng municipal corporatron from garnishment process, plaintiff
■'*^'*J»^ng Judgment against defendant, a city employee, cannot
^^^'ntaln creditor's bill against defendant city.
^yi. 5 IX, 265). Patent right may become equitable Judgment
-*-t*proved In Jewett v. Atwood, etc., Co., 100 Fed. 648, holding
— ^^*^»at Is merely incorporeal right excluding others rrom using the
^*~*?titlon. and Is assignable or transferable only according to law
its creation.
*~*^ XI. 8. 132-142. Not cited.
• U. S. 143-150, 26 L. 968, SCOVILL t. THAYER.
^yL 1 IX, 266). Corporation's powers are determined by cbarter.
:^ ^^^^_ Approved In West v. Topeka Sav. Bank. 66 Kan. B33. 72 Pac.
^-^^5, holding corporation eulng stockholder for unpaid subscriptions.
^^^^-Ve petition tenders an Issue upon question of necessity and stock-
■^Dlder may meet Issue by pertinent allegations.
8yl. 2 (X, 266). Capital increased by charter ultra vires.
_ Approved in Burt v. Richmond, 107 Fed. 388, holding stock being
^^"^lly pledged at time certain shares were transferred the transferee
^^^■as not subject to a shareholder's liability; Attorney -General v.
-^Inssaehusetts Pipe Line Gas Co., 17G Mass. 21, 60 N. E. 390. hold-
*■ «ig vote of gas and elet'trlc-llght commissioners being necessary
'^iy statute, In any corporation's Issuing stock, any other proceeding
~^vill be invalid.
Syl. 7 (X, 267). Defrauded creditors may sue defrauders.
Approved in Great Western MIn.. etc.. Co. v. Harris. 12S Fed. 329.
%30, 331. holding stocliholders not liable to corporation creditors
lor dividends received in good faith while corporation solvent;
4
106 U. S. 143-159 Notes on U. S. Reports. 44C
Stratton's Independence y. Dines, 126 Fed. 977, holding action
against executors to recover alleged false representations niade In
Dngland by decedent, the laws there govern; hence cause of action
did not survive.
Syl. 10 (X, 268). Stockholder's contracts invalid regarding cred
itors.
Approved in Dickerman v. Northern Trust Co., 17G U. S. 202, 44 L
434, 20 Sup. Ct. 319, holding declaration by purchaser that bondi
are fully paid up and unassessable is conclusive between corpora
tion and purchaser, but creditors cannot suffer thereby; Dewees<
V. Smith, 106 Fed. 441, holding controller's decision that cortaiz
assessments of shareholders of national bank be requisite does noi
signify that further assessments cannot be made; Fouche v. Mer
chants' Nat Bank, 110 Ga. 842, 36 S. B. 262, holding creditor oi
corporation to recover against stockholder therein upon an unpaic
stock subscription, it must appear that defendant was stockholdei
at time when liable in law; Bent v. Underdown, 156 Ind. 518, 6<
N. £}. 308, holding corporation agreeing, stockholder need pay ii
only the percentage agreed upon, but if corporation becomes in
solvent creditors are not bound by the agreement; State Trust Ck)
V. Turner, 111 Iowa, 673, 675, 82 N. W. 1032, 1033, holding wha'<
property at excessive value received by corporation in payment fo]
shares of stock, owner of such stock is liable to creditors foi
difference between true and face value; John W. Proctor Land Co
V. Cooke, 103 Ky. 104, 44 S. W. 393, holding shareholder transferrinf
land to corporatfon in full payment for stock, land proving of lea
value, creditor assenting thereto at time cannot subsequently com
plain. See 76 Am. St. Rep. 135, note.
SyL 11 (X, 269). Subscribed stock trust fund for creditors.
Approved in Colorado Fuel, etc., Co. v. Sedalia, etc., Co., 13 Colo
App. 479, 59 Pac. 224, holding unpaid stock subscriptions bein{
trust funds for general corporate creditors, such stockholder canno'
set off his unpaid subscriptions for money advanced to corporation
McClure v. Paducah Iron Co., 90 Mo. App. 578, holding property
overvalued given corporation in payment for shares, contractini
parties having knowledge, renders shareholders liable to credlton
for sum between par and real value; Crofoot v. Thatcher, etc, 11
Utah, 229, 57 Pac. 175, holding unpaid subscriptions, evidenced b:
note, constitute trust final for creditors, and Statute of Limitation!
runs only from time cestui is notified of repudiation.
Syl. 12 (X, 269). Equity may require unpaid subscriptions paid.
Approved in Kroeger v. Calivada Colonization Co., 119 Fed. 64£
holding court in entering decree for director for amount corporatioi
owes him may deduct therefrom the amount of unpaid subscrlp
tions; Harris v. Gateway Land Co., 128 Ala. 659, 29 So. 613, holdlni
Notes on U. S. Reports. 105 U. S. lCa-174
/odlgment creditor of Insolvent cori>oration having execution returned
"no property found,*' can maintain bill for unpaid subscriptions or
otlier equitable assets in payment thereof; Vermont, etc., Ck). v.
I>eolez, etc, Co., 135 Gal. 683, 87 Am. St Rep. 146, 67 Pac. 1058,
holding where application for stockholder's shares to be transferred
w^AS made by a third party who produced no authority, stockholder
remained liable for unpaid subscriptions; Standard Cotton, etc., Co.
r. JE>iccel8ior Refining Co., 108 La. 81, 32 So. 224, holding stockholder,
director, acting in good faith in advancing money to tide corpo-
through difficulties, ranks as an ordinary creditor; Simmons
T. rjCwtyloT, 106 Tenn. 740, 63 S. W. 1126, holding bill by receiver
to eiiforce subscriptions, not showing order of court appointing re*
cefl^v^^r to bring suit, was error to overrule demurrer to bill.
&yT, 14 (X, 270). Stockholders' liabilities date from assessments
macl^.
J^pproved in McDonald v. Thompson, 184 U. S. 76, 46 L. 440, 22
Sup. Ct 299, holding the demand starting Statute of Limitation
was shown by comptroller making an assessmenic upon shareholders
and directing receiver to begin suit against paareholders; Gold v.
Pajmter, 101 Va. 718, 44 S. E. 921, holding under Va. Code 1887.
I 2920, actions to recover stock assessments must be brought within
tliree years after assessment due, that is, after call made. See notes,
96 A^m. St Rep. 984, 986.
(^» 266). Miscellaneous.
Ci^ed in Cobb v. Overman, 109 Fed. 68, holding penal bond of sub-
seqaent bankrupt securing payment of obligee of annuity during
Mfe creates absolute liability at time of filing petition.
^05 TJ. s, 160-166. Not cited.
105 XT. g 166-174, 26 L. 1015, RAILROAD v. ELLERMAN.
SyL 3^ (X, 271). City's powers building wharves purely admin-
wtrative.
-Approved in Denver Power, etc., Co. .v. Denver, etc., R. R., 30
^- ^i4, 69 Pac. 571, holding land not needed or used for railway
P'^Po^^g^ but appropriated for railway purposes, may be condemned
J^ ^^^er public purposes; Browne v. Turner, 176 Mass. 15, 56 N. E.
» ^otding lease not transferring title, legislature can lease a tun-
^^i:k8tructed by city for term of years for adequate compensa-
syu
2 (X, 272). Wharves — Party claiming under city rights
limits
/'^t^lroved in Hudspeth v. Hall, 113 Ga. 7, 38 S. E. 359, holding
j^^^ officials authorizing the eptablishment and maintenance of
-^ ^^ ^erry, their judgment is unquestioned by proprietor of another
^■^X^ly established, though same failed financially; Texarkana,
lOa U. 8. 175~2ir
B on U. S. RcporU.
i
etc., Ky. T. Tesas, 28 Tei. Civ. 554, 67 S. W. 527, boldlng city anthojH
IzlnfT a railroad to lay a track la street, may not thereafter, wltbox^
railway's coDBent, authorize aoother railway to use the track.
105 U. S. 175-183, 28 L. 1034, MANUFACTURING CO v. BRADLEY.
Syl. 1 (X, 272). Corporation's Indorsement after maturity prom-
issory note.
Approved in Teniaon v. Patton, 95 Tex. 292. 67 8. W, 94, bolding
quorum of directors aellias land tbrougb defendant's fair and full
diBcloBure for the then Talue would not reader sale Invalid ai
fraudulent.
Syl. 4 (X, 273). QeneraUy stockholders' liability legally equitably
Approved In Boblnson v, Lee, 122 Fed, 1012, holding action to
recover realty by purebaser at tas sale not dlsmlsslble as callnslTe
because owner tendered State scrip as taxes and refused: Grabam
V, Carr, 130 N. C. 274, 41 S. E. 380, holding receiver of iDsolTent
corporation may sue director for retom of property sold bisi, or ttx
value, and court may enter money Judgment for the amount.
105 U. 8. 183-189. 26 L. 1037, UNITED STATES t. HUNT.
Syl. 2 (X, 274). Transcript from treasurer's prima facie evlilenc*.
Approved In Harvey v. United States. 97 Fed. 455. 459. boldfng
Incomplete transcript from books of treasury department Is suf-
flclent after tblrty-three years to warrant Judgment against suFetlefl
of former United States marshal since dead.
1(» U. S. 189-217, 26 L, 975, ROOT v. RAILROAD.
SyL 3 (X, 275). Patent — Eerecoveiy equitably estopped by legal
recovery.
Approved in National Folding Box, etc., Co, v. Dayton Paper
Novelty Co., 97 Fed. 332, holding Supreme Court allows no Intefeat
on profits In lufrlugement cases prior to master's liquidating dam-
ages, unless under special circumstances of fraud.
SyL 4 (X, 375). Equity Jurisdiction Includes aU Incidental qnea-
Dlstlngnlshed In Crown Cork, etc^ Oo, v. Aluminum, etc., Co.,
lOS Fed. 869, holding equity suit to enjoin Infringement and for an
account not defeated because claimant has not made use of patent
but recently granted,
Syl. 0 (X. 276). Legal remedy complete equity cannot, relieve
Distinguished In Feuno t. Primrose, 116 Fed. 51, holding equity
bas Jurisdiction where factor sues for settlement of accounts with
his principal. If dealings were numerous and settlement lniprac>
tlcable at law.
Notes on V. 8. Beporta. 105 U. S. 217-230
8^1- 11 (X, 278). AccountlDg la InfilDgoment Incidental In equity.
Approved In Victor Talking Machine Co. v. American Grapho-
plioae Co., lis Fed. 51. bolding former licensee under patent cannot
join as complainant In Infringement suit for past intringementa,
snlesa subsequent licensee assignees are Jolneil.
Dlstingnlsbed in Fenno v. Primrose, 115 Fed. 51. holding equity
and law courts bare concurrent Jurisdiction In actions of account,
asd ii« (withstanding couslgnmeuta were numerous, action at law
shonltl. be allowed to proceed.
Syl. 12 (X, 2T8), Legal remedy Inadequate gives equity Jnrlsdic-
Uao.
Approved In Kissinger- Is on Co. t. Bradford Belting Co., 123 Fed.
®3> holding discovery o[ other United States patents bearing on
Question of anticipation not sufficient for bill of review after an
»ppeai In aljsence of unnsnal circumatances; Edison P. Co. v. Haw-
tborne, etc., Co., 108 Fed. 632. holding equity bas Jurisdiction In
'nfrjagement of patent when bill states facts upon which right to
**"ue equitable relief may properly vest.
*^> 274). Miscellaneous.
Cited In United States Mining Co. v. Lawson, 115 Fed. 1008, bold-
^K bin failing to show complainant Is without adequate legal
''eine«ay_ Federal court of equity cannot try title merely because In-
•**uictlon la prayed to prevent trespass.
^**5 tJ. 8. 217-224, 26 L. 1039, NATIONAL BANK t. WATSON
Bank.
^yl. 1 (X. 278). Certificate delivery with full power transfers.
-^-Bproved In Manchester St. Ry. \. Williams, 71 N. H. 317, 52
*1. 404, holding charter granted and all stock subscribed for. sub-
^^*lption rights are properly rights and capable of assignment,
^^irise giving right to participate In management.
*'-'^ U. 8. 224-230, 26 L. 1117, WAItKEN v. STODDART.
^rL 1 (X, 2S0). Contract breacb loss should decrease.
-approved in Armlstead v. Bed River, etc.. R. K, Co., 108 La. 178,
So. 459, holding plalutiCTs attempts to deliver c<
Q seed at profit,
^^tng obstructed bj defendant's bridge, thus losing profits, latt
■j^*«i be held for the loss; Creve Cteur Lake Ice Co. v. Tamm, 90
^^^*. App. 197, holding vendor of merchantable commodity falling to
^>Miigh goods according to promise, vendee must provide himself as
^'^'^sply as possible in lightening tbe loss; dissenting opinion in
*'"oaiinaa'8 Palace-Car Co, v. King, 99 Fed. 386, majority holding
*^a^lotiir"s ticket virtually warranting car passing over lines named
ticket, defendant liable for breach by plaintiff's being compelled
leave car, with enhanced damages.
I-JlBtlngulsbed In Tbe Tbomaa P. Sheldon, 113 Fed. TSl, holding
lOG U. S. 231-252 Notes on U. S. Reports. 444
rule requiring reasonable diligence of injured party by breach of
contract means not reduced damages because of afterthought, but
refers to prudent actlB at time.
105 U. S. 231-236. Not cited.
105 U. a 237-243, 26 L. 1018. DAVENPORT T. COUNTY OF-
DODGE.
Syl. 1 (X, 282). Nebraska precincts have no corporate existence—.
«
Approved In Mather v. San Francisco. 115 Fed. 39, 40, holdlnj
bonds issued regularly by supervisors for widening street, holdei
may sue corporation in Federal court and compel provision
raising special fund; Clapp v. Otoe Co., 104 Fed. 470, holding bondsi
issued by county board commission in Nebrasl^a, upon favorable
vote of precinct electors, are bonds of county whose board laaue^
them.
Syl. 2 (X, 283). Federal mandamus lies after bond judgment.
Approved in dissenting opinion in Grand County v. People, 1^^
Colo. App. 246, 64 Pac. 686, majority holding party obtaining jnd^g
ment against county, the Judgment concludes county, and plaintif- .
may maintain application for mandamus compelling county to lev"-*«
tax.
105 U. S. 244-246. Not cited.
105 U. 8. 247-249, 26 L. 986, BURLEY v. FLINT.
Syl. 1 (X, 284). Statutory period expiring bars redemption.
Approved in National Nickel Co. v. Nevada Nicliel Syndicate, 1 "
Fed. 48, holding defendant in foreclosure suit, court having juc-* z
diction of parties and subject-matter, who raised no obJectK.-*
thereto till subsequent to statutory period is barred.
105 U. S. 249-252, 26 L. 1070, SCHEFFER v. RAILWAY CO.
Syl. 1 (X, 284). Recovery necessitates death being proxlm ^^
cause.
Approved In St Louis I., etc., Co. v. Bragg, 69 Ark. 405, 64 fl. ^^
227, holding nervous prostration alleged caused by plaintifTs
covering she had to cross cattle-guard, train approaching, not natus^
and probable consequence of defendant's negligence.
Syl. 2 (X, 284). Injury being probable negligence was wrong.
Approved in Lauterer v. Manhattan Ry., 128 Fed. 644,
holding one attempting to board moving train assumes risk
cannot recover when fatally crushed between train and static
Cole V. German Savings & Loan See, 124 Fed. 122, holding plaint
falling down elevator opened by supposed elevator boy, eleval
being above hall quite dark, boy*s act and not defendant's
injury; Kelly v. Jutte, etc., Co., 104 Fed. 958, holding injury m
due to owner's failure to furnish reasonably safe place and applf^
Notes on U. S. Reports. 106 U. 8. 25^-262
but solely from foreman^s negligence, fellow-servant rule
apples; Cleveland, etc., R. R. Co. v. Stewart, 24 Ind. App. 385, 56
N. £. 921, holding complaint showing injury caused by fright only,
noi: connected with any physical injury to plaintiff, falls to show
defendant's negligence as proximate cause; Parmenter v. City of
If arion, 113 Iowa, 303, 85 N. W. 92, holding instruction was erro-
xieouB that If defendant permitting certain platform to be so con-
BtxQcted, letting objects drop, the assumption being that objects
^v^ene left thereon; Baltim<M*e City, etc., Ry. Co. v. Tanner, 90 Md.
3X9, 45 AtL 189, holding expert may state whether deafness of per-
son injured was natural and probable result of the accident; Daniels
▼• New York, etc.. R. R., 183 Mass. 399, 67 N. B. 426, holding in-
■touctlon advocating recovery where injured one committed suicide
^"Uring Insanity, If he had not "rational volition," is misleading;
dissenting opinion in Southern Pac. Co. v. Yeargin, 109 Fed. 443,
***ft^rity holding negligence in failing to construe message properly
** sole proximate cause, and whether engine was equipped with
X*ix>per headlight, were questions for the Jury.
•^^^ XJ. S. 253-258, 26 L. 987, MANUFACTURING CO. v. COWING.
^yi 3 (X, 287). Patents — Infringer must return profits.
-approved in Penfield v. Potts. 120 Fed. 486, holding in Infring-
machlne patentee is entitled to realize entlFe profits accruing
_ ^^ sale of machine for special marl^et obtainable from part !n-
^^'^ged; Plaget Novelty Co. v. Headley, 123 Fed. 898, holding manu-
,^^^^urer of Infringing article liable for entire net profits of sale,
-^^^^re evidence shows salability primarily due to patented feature;
^les V. Waterbury Mfg. Co., 101 Fed. 129, holding Infringer liable
entire profits by manufacture and sale of device where* but for
•«nted feature, article would have been unsalable.
U. S. 258-261. Not cited.
U. S. 262. 26 L. 989, BRANDIES v. COCHRANE.
^yL 1 (X, 287). Taking security, signing citation perfects appeat
-Approved In McKenzie, 180 U. S. 547, 45 L. 662, 21 Sup. Ct
holding supersedeas writ by Circuit Court of Appeals to
'^^^trict Court after allowing appeals, signing citation, bond ap-
^^oved. Jurisdiction valid though appeal papers were not filed;
^t^amberlain Transp. Co. v. South Pier Coal Co., 126 Fed. 167, hold-
^^S unless time is enlarged before its expiration, an appeal will be
dismissed- according to Federal rule 14, subd. 5; Williams Bros. v.
^«.^age, 120 Fed. 499, holding appeal dismissible if not filed in
time in District Court, nor transcript filed at term next succeeding
taking appeals, and court laclsing proper testimony; Alaska Gold
^in. Co. V. Keating, 116 Fed. 565, holding failure to file formal
petition defect of form only, where clerlt issues writ of error, judge
^^^i^Milt Court Appeals approves bond, and Issues citation; Gorh&m
lOG U. 8. 203-302 Notes on D. S- HeportB.
T. Broad Rlv. Tp., 113 Fed. 84. holding petition to amend wnc "'
error nuae pro tunc, after case haa been removed by writ of err**'''
will be granted for clerical error; AniJerBon v. Comptoia, 109 ti'^"'
976, bolding Circuit Court Appeal Jodge allowing appeal from * ^
ferlor court's order, all necessary steps being taken, said court ^-^
quires Jurisdiction to enforce its writs; Loveless v. Bansom, ^"__n.
Fed. 301, holding Judgment of trial court approving bond on '^^'-i^
of error doea not operate aa writ of error, since Judge nor co^*""^ ^
could Issue such writ; In re Flechtl, 107 Fed. G19, holding iipp^^^^
allowed by approval of appeal bond and citation la unnecessflry,
appeal is taken during term wbea order appealed from was enter
De Lemos v. United States. 107 Fed. 122. bolding dIstlncUon
In Federal appellate courts between " appeals " and " writs
error," and Judgment In criminal cases never been reviewable e
cept by writ of error; N'orcross v. Nave, etc. Mercantile Co., U
Fed. 797. holding appeal Incomplete though appeal was allow£
and appeal bond was filed, If all aaid ateps were not within stat'
tory limit after decree.
105 U. 8. 263, 2G4. Not cited.
105 D. 8. 265-267. 26 L. 1025. KBTSER r. FARR.
Sjl. 1 (X, 288). Accepting bond, docketing cause appeals case.
Approved In Fltzpatrick v. Graham, 119 Fed 354. holding Clrcc
Court of Appeal has Jurisdiction to review joint judgment ngain
defendants In ejectment, all Joining in writ or severance of Intere
appearing In record: Riverdale Cotton Co. v. Alabama, etc. Mi
Co,. Ill Fed, 433, holding Federal Circuit Court rendering decn
from which appeal .Is pending has power, upon ancillary bill,
grant Injunction restraining subsequent suit In State eoort.
165 U. 8. 267-270. 26 L. 1026, THE 8. E. TRTON.
Syl. 3 IS. 289). Appeal for delay court uses discretion.
Approved in M'Cutcheon v. Hall Capsule Co., 101 Fed. 548, ha
Ing single exception to whole charge, not directing court to partL
lar poition objected to, raises do review question, and except
Irremedial In assignment of error.
8yl. 4 <X, 289). Schooner's acts being unjustifiable relieve steSEC
Approved in The Pilot Boy, 116 Fed. 875, bolding collision
schooner and steamer, burden on steamer to show ahe took prc»
precautions and same would bave proved eSectlve but for schoo.*
106 U. S. 271-2m Not cited.
105 D. 8. 278-302. 26 L. 1090, LOUISIANA V. PILLSBURT.
Byl. 1 (X. 290). Consolidated muulcipalily liable for cities" de^*^"^
Approved In Mound City Land. etc.. Co. v. Miller, 170 Mo. 25^«
B. W. 72U, 91 Am, SL Rep. VUG, holding statutory estabilsbmeu <^
*B Notes on D. 8. Reports. 105 U. S. 303-318
ir>\mgt district, condemnBtlon of land not uacouatitutional, deprlv-
Inj rij&t of Jury, no sucb right being accorded.
1(6 C. S. 303. 304. 26 L. S89, RUSSELL v. STANSELL.
M- 1 (X, 292). Appeal nnd error — Jurisdictional amount un-
oliiiiinabre by uniting amounts.
■ipprored In Wbelesa v. St. Louis. 180 D. S. 382, 45 L. 585. 21 Sup.
^ W3. holding separate Interests or complaiaantB for relief ngaluBt
"BNesaiiients cannot be united to give Federal Jurisdiction In Clrcnit
Gujn
DteilngTijahed In Louiaville. etc., R. R. v. Smith, 128 Fed. 4, hold-
'«f railway may Join several landowners in suit to prevent Inter-
'weoce With right of way. where rights asserted are snuie.
^* tf. S. 3(K-318. 26 L. 1M4, SUPERVISORS v. STANLEY.
^r'- 1 (X, 292). Taxes paid recoverable unauthorized officer col-
'wilng.
Approved Id People's Nat. Bank v. Marye. 191 D. 8. 283, holding
' 'Mist tender of taxes on natloual bank stock roust be shown be-
'1'^ equity will grant injunction for collection, assessment being at
loo high rate; dissenting opinion In State v. Smiley. 05 Kan. 27S,
*" Pac, 210, majority holding in penal statute agBlnst restraining
™^> Words of limitation cannot be introduced to make HpeciUc
"^ *8 only expressed in the general.
' - 2 (X. 292). Tailng certain class eicludea other classes,
^^j\'*S>»>nTed in State v. Smiley, 65 Kan. 247. 248. CO Fac. 201. 202.
, **S constitutional validity of statute, objected to only liy those
1
'ta(-«
seuy
enactment applies and against whom nttempts to enforce
: (X. 292). Taxation — National bank shares like other
*-ltIeB
tav **I>i"o*ed In Nevada Nat. Bank v. Dodge. 110 Fed. 62, holding
jg ^'*^ion of stockholders In national banks with right to reduction
Cl^ ^me as that of local banks and other moneyed Individuals;
!(, "^'tiland Trust Co. v. Lander, 62 Ohio St. 271, 58 N. E. 103S. bold-
ly ^late right to tax shares of national bank roust barmonlase with
**»g of individual citizens of State.
jj^S'i. 4 (S. 293). Statutes — Invalid portion nonlnjurloua to valid
J. "^fproved In State v. Smiley, 65 Kan. 255, 69 Pac. 204. holding
^1 ^^er speciflcally limited not eipresslble In general terms, ana
I j^^ Station of the general language to specific power will not be
j/^tolled: People v. Butler Street Foundry, 201 111. 249. 66 N. E. 353.
1^ '*31ng amendment being unconstitutional and not repealing certain
^'^tJon by implication, said section stands as though never amended,
**t withstanding constitutional provlaloo.
1
lOS n. 8. 819-322 Notes on U. 8. Reports.
Syl. 6 (X, 293). Taxation — Assessment failing to make deduc
voidable.
Approved in Red River Valley Nat. Bank v. Craig, 181 U. S.
46 L. 1000, 21 Sup. Gt 707, holding with reference to the mortg
one not injured by a statute cannot raise the question of its Tali<
Olark V. Kansas City, 176 U. S. 118. 44 L. 497, 20 Sup. Ct
holding not unconstitutional for city to discriminate between agr
tural lands and other lands with reference to annexation, for S
can classify object of legislation; Brigham City v. Toltec Ranch
101 Fed. 87, 88, holding defendant in ejectment cannot mail
writ of error reviewing Judgment awarding plaintiff possessioi
ground title in third person, he disclaiming any interest in prop<
Syl. 9 (X, 294). Taxation — Statutory compliance conditioii i
edent to relief.
Approved in New York ex rel. New York Clearing H. Bldg.
V. Barker, 179 U. S. 284, 45 L. 193, 21 Sup. Ct 123, holding con
tion not denied equal protection of law where undervaloatia
assessment may be corrected by assessor or individual.
105 U. S. 319^22, 26 L. 1052, HILLS v. EXCHANGE BANK.
SyL 8 (X, 294). National bank may defend shareholder's sbai
Approved in First Nat. Bank v. Covington, 103 Fed. 531, hoi
national bank may sue in equity in behalf of its shareholdei
enjoin collection of taxes upon its shares under law claimed t
invalid.
Syl. 4 (X, 295). Stockholder entitled to reduction of debt
Approved in Williams v. Patrick, 177 Mass. 162, 58 N. B.
holding Jury should be permitted to find subsequent tender wal
where defendant's statement in effect meant he would refuse te
of stock if made; Ashley v. Rocky Mt. Bell, etc., Co., 25 Mont
294, 64 Pac. 767, holding telephone company terminating leas
instrument because of default payment, subsequent refusa
accept payment, deposit in court not necessary to begin suit
Syl. 6 (X, 295). Tender refused is tender waived.
Approved in United States v. Edmonston, 181 U. S. 508, 4
976, 21 Sup. Ct. 721, holding purely voluntary payment by mis
of $2.50 per acre for public land instead of $1.25, purchaser hia
lawful claim against Federal government.
8yl. 7 (X, 295). Bank may secure reduction for shareholders
Approved in Mercantile Nat Bank v. Mayor, 172 N. Y. 41, €
B. 759, holding equity will not restrain collection of national
tax assessed at full value, though realty was assessed at G€
cent, discrimination being Just
Notes on U. S. Reports. 105 U. S. 32*2-;}5U
U. S. 322-327, 26 L. 1053, EVANSVILLE BANK v. BRITTON.
SyL 2 (X, 296). National banks assessed like other properties.
Approved in First Nat. Bank of Richmond v. Turner. Treas., 154
^ad. 458, 57 N. E. Ill, holding shareholders in national bank are not
r^ititled to deduct from the assessed valuation of the stock their
fide indebtedness; National Bank of UnlonvIUe v. Staats, 155
lo. 58, 55 S. W. 627, holding statute gives full legal remedy by
^y^irmittlng one assessed to appeal from assessor to county board of
^^^^nalizatlon.
:J,CKS U. S. 328-342. Not cited.
U. S. 342-346, 26 L. 1127, OTTAWA v. NATIONAL BANK.
SyL 1 (X, 208). Estoppel by recitals in municipal bonds.
Approved in Walte v. Santa Cruz, 184 U. S. 317, 46 L. 564, 22
). Gt. 332, holding city having power to issue refunding bonds
iZA discharging Indebtedness of specific kind, purchaser may rely
ufK>n bond recitals as applying to that class; City of Defiance v.
Sclimidt, 123 Fed. 7, 8, holding city bonds with recital of legal
Issuance not invalid in possession of bona fide purchaser, because
or anconstitutionality of the special act of issuance; Fairfield v.
Rural, etc., School Dist, 116 Fed. 844, holding school district issuing
i^funding t)onds, legal recital thereon, is absolutely estopped to
deny their validity in hands of innocent purchaser; Independent
School Dist V. Rew, 111 Fed. 9, holding municipal corporation issu-
es negotiable bonds estopped to deny same in bona fide purchas-
er's liands, though fair on face, proceeds thereof being unlawfully
diverted; Jeff Davis County v. National Bank of Paducah, 22 Tex.
^^▼. 160, 54 S. W. 40, holding bonds issued before county was
divided are valid in hands of bona fide purchaser, qnd parent county
can collect pro rata from new counties; dissenting opinion in City of
Santa. Cruz v. Waite, 98 Fed. 397, majority holding statute authoriz-
^^IT cities to refund " outstanding indebtedness, evidenced by bonds "
infers no power to issue bonds to purchase water company subse-
^^ XJ, S. 347-350, 26 L. 1099, MANCHESTER v. ERICSSON.
^^i« 2 (X, 299). Municipality controlling bridge question for jury.
'^t>X)roved in Faust v. City of Cleveland, 121 Fed. 813, holding
'^^s duty to keep stream free from obstructions is statutorially
^^^^^ed. municipal corporation not liable for injuries to vessels Ue-
«n^^ of obstructions.
^^» 298). Miscellaneous.
CI
^ — in Workman v. Mayor, etc., of New York, 179 U. S. 583,
. ^- 329, 21 Sup. Ct. 224, holding maritime law and not local law
. ^^*^^ines liability of city where another vessel is injured by fire-
^ ^wned by city in fire department.
Vol. 11 — 29
f
105 U. S. 350-362 Notes on TJ. S. Re
105 U. S. 350-355, 26 L. 1055, IXSURANCE CO. T. FOLEY.
Syl. 2 (X, 290). Trial — lOBtmctlon mnBt follow uiico a trad levied
proof.
Approved Id HoUura y. GermaDls Life Idb. Co., 139 Cal. 647, T3
Poc Q92. holding warrBtil; tt:at insured Is temperate in ueln^ llqljxors
vltlatea policy only if be Is addicted periodically which has heocnoe
IiabltuB); Supreme Lodge K. O. F. t. Foster, 26 lud. App. 342, 3^
N. B. 880, holding action on policy, defendant claiming ileceas^^
Hulclded. wife's statement of what deceased told her last time se^^ ^
alive was admiHslble as throwing some light; Henn v. Metropolffjt- ^^g
Life Ins. Co., 67 N, J. L. 316, 51 Atl. 691, holding Insurer knowin^^^'
that Insured could not possihly answer question, the warranty n'll^'
be one based upon belief of insured.
105 D. S, 355-362, 26 L. 090, BENNECKE t. INSDRANCE CO.
Syl. 1 (X. 299). Contracts — Waiver must be IntenUonal tcltb
knowledge.
Approved m Henry v. Lone, 128 Fed. 256, holding telegram by
principal on receiving deed from agent empowered to sell realty.
that laud must be differently described, not ratification of notes of
purchaser; Hartford, etc., Co. v. Plymer, 120 Fed. 629, holding steam-
ship manager who was director authorizing superintendent to sell
certain vessel, later ratlQcatlon presumed made with knowledge
by corporation existing at time of sale; Supreme Lodge KQigblK of
Pythias V. Wellenvoss, 119 Fed. 676, holding fraternal order accept-
ing premiums or assessments from a member after a right of
forfeiture is known Is a waiver of such right; United Benevolent
Soc. V. Freeman, 111 Ga. 360, 36 S. E. 766, holding Insured flid not
Impliedly waive defense relative to policy, he having no knowledge
at time of act regarded as the waiver; Balto. Life Ins. Co. v.
Howard. 95 Md. 259, 52 Atl. 401, holding officers of life Insurance
company accepting payments of premiums after forfeiture for non-
payment should know of the forfeiture, and on this ground waived
forfeiture; Wilson v. Meyer, 23 Utah. 538, 65 Pac. 491. holding sur-
Tlving partner bidding on deceased partner's Interest when offered
for sale by executor constituted no waiver to surviving partner
settling Arm's business; Reed v. Union Life Ins. Co., 21 Utah, 310,
61 Pac. 24, holding principal agreeing to divide commission with
agent, the latter securing busluesa. cannot dispose of his own right
and thus deprive agent of his reward.
Syl. 2 (X, 300). Ratlflcatlon must be with full knowledge.
Approved In Cunard SS. Co. v. Kelley, 115 Fed. 681. holding
steamship company whose agent Issued unauthorized bills of lading
for certain goods does not ratify act by ignorantly accepting on
board Bubstltuted goods.
^
u
•I
i
Notes on U. S. Reports. 105 U. S. 362-401
105 U. S. 362-370, 26 L. 1128, ASYLUM v. NEW ORLEANS.
SyL 2 (X, 300). Taxing, charter exempting impairs contract
o'bligations.
Approved in Preeport Water Co. r. Freeport, 180 U. S. 608. 45 L.
09!% 21 Sup. Ct 501, holding municipal corporation can gruut ex-
dnsiTe prlTileges only on explicit terms, and if inferred from other
pOT^ers must not only be convenient but indispensable; State v.
Alabama Bible Society, 134 Ala. 634, 32 So. 1011, holding charter
exempting property from taxation, it would be impairing obligation
o^ contract *to alter same unless that right were constitutionally
ingrafted; Female Orphan Soc. v. Board of Assessors, 109 La. 541,
33 So. 5d3, holding property of charitable institution leased for
>^vexiue, not embraced in charter, nor in act amendatory thereof,
•object to taxation by subsequent Ck>nstitution; State ex rel. Cun-
nin^liam y. Board of Assessors, etc., 52 La. Ann. 234, 26 So. 877,
lioldlng property used for revenue connected with charitable instita-
tlon, though exempt from taxation by prior legislative act, is not
■tooe adoption of Constitution; Sl^anea teles W. W. Co. v. Village
ot Skaneateles, 161 N. Y. 167, 55 N. E. 565, holding franchise granted
^ X^laintilT not being exclusive did not prevent village from grant-
^'^ another franchise of same nature and contracting with the
*; dissenting opinion in Ward v. Southern Mut Ins. Co., 112
^^96, 37 8. E. 902, majority holding charter restricting insuring
P*^l>«rty for more than three-fourths value was not inviolable
coutijijict between State and company, preventing subsequent legis-
**tioii creating liability for full value.
^^^ TJ. S. 370-380. Not cited.
^^* tJ. S. 381-392, 26 L. 1100, THE FRANCIS WRIGHT.
^^L 2 (X, 302). Evidence adduced court finds material fact
-A^pproved in Louisiana v. Weston, 107 La. 46, 31 So. 383. holding
^"Jectlon to charge of Judge to Jury is before retirement of Jury; if
**^^e first time on motion for new trial will not be considered;
^eliberg v. Greiser, 24 Mont 493, 63 Pac. 43, holding Supreme Court
*^^^<5a«Ionally overlooking infraction of rule, requiring briefs to con-
^^ specification of error, does not require rule abrogated or over-
*^^lced In other instances.
Syi 3 (X, 302). Appeal and error — Exception by bill to Supreme
A.i>proved in King v. Smith, 110 Fed. 97, holding delivery to
^onee of bonds while donor was unconscious immaterial where
^Ottor while conscious directed the delivery.
105 T7. S. 393-401, 26 L. 1072, HEWITT v. PHELPS.
Sy^- 8 (X, 303). Estate creditor may sue trustee.
Aj>i>roved in Wells-Stone, etc., Co. v. Aultman, Miller, etc., Co.,
^ ^- i>ak. 522, 84 N. W. 378, holding trust estate being exhausted
105 U. S. 401-132
ee, ciiuitj- will require benertcini
105 U. 8. 401-108, 2a U 10T5, HAUSELT v. HAHRISON.
SyL 1 (X. 302). Specific advances nature of mortgage.
Approved In Howaril v, Delgado & Co., 121 Fed. au. holding
terveners making advoDces under contract and Iskiug sugar [u p
ment shipped rapidly are entitled to sugar in receiver's tiandB. e
being unobtainable: In re Olzendara Co., UT Fed. 181, 182. hoiil
DO statute existing making the possession of goods fraudulent,
equitable Hen thereon for advances la valid and enforceable; Edwa_
T. Barstow, 21 It, I. 505, 45 Atl. 580, holding express agreem.
that Interest of ecstui in trust estate shall stand as collateral
obllgation creates equitable Hen on assignor's Interest In said estf
Syl. 2 (X, 303), Unrecorded chattel mortgage rold against cr
Appitjved In Sheldon v. Wickham, 101 N. Y. 506, 55 N. E. 10
holding chattel mortgage transferred for benefit of creditors a
not be treated as void for fraud by assignee under statute, becai
it was not filed.
Syl. 3 (X, 304). Bankrupt aaslgnee has bankrupt's rlgbts only
Approved In Duplan Silk Co. v. Spencer, 115 Fed. 095, holdl
trustee In bankruptcy In proving bankrupt's title to persona
subjects himself to all valid legal and equitable claims of otliers
saJd property: Lynam v. National Bank, 98 Me. 45S, 57 Atl. 8
holding bank receiving deposit from Insolvent Intended for beu<
of Intter's creditors wUh knowledge thereof cannot set off agal
It claims against depositor's account; Elmore t-. Symonds. 183 Ma
321, 07 N. E. 316, holding trustee In bankruptcy may recover moi
paid after bankruptcy for advances, pursuant to prior agreemc
and bill for specific performance unmaintainable.
106 U. S. 408-418. Not cited.
105 U. 8. 418-122, 26 L. 1131. UNITED STATES v. RINDSKOPF
Syl. 2 (X, 306). Revenue collector's assessment prima facie t
dence.
Approved In United States v. National Surety Co., 122 Fed. i
holding taxes paid upon spirits distilled during period of bond
performance of duty secured by bond, a failure to discharge wh
makes sureties responsible.
105 U, 8. 423^30. Not cited.
105 U. S. 430-432, 28 L. 1142, DOWELL v. MITCHELL,
Syl. 1 (X, 30C). Equity unable to relieve Jurisdiction ceaaes.
Approved In Miller v. Carlisle, 127 CaL 330. 59 Pac. 786, hold
several separate mechanics' lien claimants cannot aggregate amou
J
Ka
I U. S. Reports. 105 U. S. 433-459
to gite court JurtBdlction to render Judgment where ench Bepsrate
amotmt fallB below required amount.
105 n. 3. 433-^47. 20 L. lOflO, RUSSELL v. FAHLEy.
Sfl, 1 (S, 306). Equity decreeing costs no appeal Ilea.
AppivYed Id West t. East i^nat CeJnr Co., 113 Fed. 745, holding
ilie awarding of costs in equity Is dlscrelloniirr wltb tlie court, &nd
CO appeal lies from Its action In the matter.
SyL 2 (X, 307). No nndertoklng required equity decree damages.
Approved In MncFnrlane v. Garrett & Burr. 3 Pennew. (Del.) 44.
iS All. 175. Iiolding declaration charging wrongfully suing out
iDjuiicIlon, falling to allege maliciousness and lack of probable
Pause, bad on special demurrer.
SyL 3 (X, 307). Injunction ~- Court may require undertaking.
■Approved in Tuilock v. Mulrane, 184 U. S. 510, 4(! L. G66, 22
Sup. ci. 377. holding attorney's fees tor diHsolving of Injunction not
^^ element of damage on Injunction bond given In Federal court,
"•ougli local laws differ; Brigga v. Neal. 120 Fed. 228. holding mort-
S»ge© In possession of going concern to keep same operating by
'^"''IS of mortgage cannot be charged rental, but only to account
^O*" ne-t proceeds; West v. East Coast Cedar Co., 113 Fed. 744, hold-
'*1S equity may require bond on Issuance of Injunction and assess
aiiiae«s for breach of such bond on dissolving injunction,
Sri. 4 (X. 307). Injunction — Absence of statute court asaesses
^^Pt»roTed In Tuilock v. Mulvane. 184 U. S 505, 521. 46 L. 663.
^^' 22 Sup. Ct. 375, 381. majority holding attorney's fees for pro-
Mn^ dissolution of Injunction, no element of damages on Injunc-
„*"' t»«nd In Federal court, though State law Is otherwise; KIrker "
•^^ of express power, but by law,
30S -^-^ g 447-453. Not cited.
^ X:i. 8. 434-459, 26 L. 1133, LOUISIANA t. TAYLOR.
(, ^^T 1 (X. 300). Municipal aid unaffected by subsequent Constltu-
j^ "^^Xaproved !n dissenting opinion in White v. Ayer. Auditor. 126
gj ^^. 604, 36 S. E. 142. majority holding inandnmus would Issue to
^_. ^^* auditor to Issue warrant for Inspector's salary, and to State
j^^^ surer to pay It; dissenting opinion Id Abbott v. Beddingflehl;
,r^ X C. 235, 34 S. E. 420, majority holding that subsequent statute
jj/^^^^ repeal former under which officer holds office and oust him
^* Xjgli his term has unexpired.
98 Fed. 508. holding receiver appointed by equity court, be
mmon-law bond, his sureties not reached by equity In ub-
I
105 D. 8. 40fMS0 Notes on U, S. Bcporti.
4»
(X, 309). MIscellaoeouB.
Cited ]n Territory v. Wlngfleld, 2 Ariz. 30S. 15 Pac. 141, holding
under Arie. law March 12. ltiHT>. fixing sularles of Ei-bool superb'
tendent $GO0, of probate Judge, ex-offlclo superln ten dent $2,000 Id
full. Judge entitled to botli salaries.
105 U. S. 4(»-i8G, 20 L. 1007, TELEGBAPH CO. v. TEXAS.
S;l. 1 (X, 309). Telegraplis being interatate congreasional regula-
tion applies.
Approved In Lottery Case. 188 U. S. 351, 23 Sap. Ot 325, 4T L.
49&, boIJlng carriage of lottery tickets by express company from
one State to another is Interstute commerce, and Congreas naay pro-
blblt same aa a Federal offense; Reilley v. United States, 106 Fed.
904, holding an enterprise Involving business Intercourse between
parties In different States. Instruments being trnnsporied, is inter-
state commerce, though the scheme be one of lottery: In re Appeal
of Union Tank Line Co.. 201 III. 350. 6S N. E. 505, holding foreign
corporation cars (not railroad corjJoratlon), principal office in an-
other State, merely In transit therefrom, are interstate instruments
not taxable by Illinois; State v. Allgeyer. 110 La. 840, 34 So. 799.
holding license tax upon business of buyer of cotton for export is
duty upon exports within meaning of Federal Constitution.
Syl. 2 (X, 309). Telegraph imder revised statute goverament
agent.
Approved in State v. Western Union Tel. Co.. 165 Mo. 519, 65 S. W,
TT8, holding assessment of telegraph company under laws of an-
other State, board oF equalization can consider only costs or value
on the laxable property.
Syt. 3 (X. 309). Telegraph property taxable by State.
Approved In State v. Western Union Tel. Co., 165 Mo. 519. B25, 65
S. W. 778, 780, holding though telegraph company was an instru-
ment of interstate commerce. Its property not exempt from State
tasatlou.
Distinguished In Cumberland, etc., H. R. Co. v. State, 92 Ud, 684,
48 Atl. 507, holding State taxing railroad on gross receipts In same
proportion as line in State bore to whole length was not interfering
with interstate commerce.
Syl. 4 (X, 310). State tasing messages regulation of commerce.
Approved in dissenting opinion in Austin v. Tennessee. 1T9 U. S.
373, 45 L. 238, 21 Sup. Ct, 143, majority holding product such M
tobacco is recognized as a legitimate article of commerce, though
to a certain extent it is under police power of States.
Syl. 5 (X, 311). State within Jurisdiction may tax messages.
Approved In Atlantic & Pacific Tel. Co. v. Philadelphia. 190 U. S.
163, 23 Sup. Ot 818, 47 L. 999, holding telegraph company engaged
t Notes on U. S. lleiKins. 105 U. S. 467-538
In Interstate commerce may be taxed reasonable license fee by
man icIpaUty wltb reference to supervision of poles end wires
therein; Ohio Valley, etc.. Receiver v. Lander, etc.. 104 Ky. 447, 47
S, 'VV. 348, boldlng State may regulate reasonable separation of
■wtilte and colored passengers wltbln State without violating Inter-
state commerce: Postal Tel. Co. v. Ricbmond. 99 Va. 107. 8ti Am. St.
Rei>- 881. ^7 S, E, 791, boldlng wbile city may tax foreign telegrapb
<^«rQpaiiy on Its property therein, o larger las ipvied In lieu thereof
violates Interstate commerce; Wall T. N. & W. H. K., 52 W. Va.
■«&6. 44 S. E. 299. iH Am. St. Rep. MH. holding In suli against rail-
road to recover damages for cattle beEng killed In transportation,
atta.ctainent of freight car does not violate Interetate commerce law.
105 i;, S. 46T-509. Not cited.
105 D. S. 509-526. 26 L. 951, FRENCH v. GAPEN.
Syl. 2 ex. 313). Unobjected interveners same as original parties,
.■approved in Atlantic Trust Co. v. Dana. 123 Fed. 221. holding
^'ta^re receiver required by appointing order to defend suit to
cst^bllsb Hen loses, decree binds all parties to suit in wblcb receiver
■PEXilnted; East Coast Cedar Co. v. People's Bank. Ill Fed. 450,
bolt^ing creditors wltb liens against Inlerest of tenants In common
of ^ract of land are necessary parties In sale not In partition suit
<:3£. 313). Miscellaneous.
edited In Ft Wayne Water Power Co. v. Board of Comra,, 24
^"3- App. 518, 57 N. E. 148, boldlng trustees having right to dispose
*•' "tB-ust estate, purchasers took property free from trust and of any
*^ duties Imposed upon trustees.
lOS XS. S. 527-538, 26 L. 1157. TRUSTEES v. GREENODGH.
^^1. 1 (X, 313). Appeal lies from decree taxing costs.
-A-pproved In West v. East Coast Cedar Co.. 113 Fed. 743. holding
**»^ awarding of costs In equity la discretionary with the court, and
** sppeal lies from Its action in the matter; Foster v. Elk Fork OH.
^'*'^-. Co., 99 Fed. 617, holding costs In equity are discretionary with
^^'*»»t and no appeal lies from Federal decree of costs except where
^^^*3e payable from fund In court
^ Jl. 3 (X, 314). Receiver paying costs appeal lies.
I -"Approved In Eaii Claire v. Pa.vson, 107 Fed. 557, holding court
-^ '^^rlng city to pay receiver his disputed claim against city, there
^^'»:ig no provision for return of the money. Is appealable as flnal
^ ^■■=^*ee; Edgell v. Felder. 99 Fed. 327, holding decree In favor of non-
^^^ianlcal parties, but court appointees, whose compensation for aer-
*^^s was adjudicated, is final for purposes of appeal; Los Angeles
^~ *:-08 Angeles C, etc., Co.. 134 Cal. 123. 66 Pac. 199, holding order
-- *^'*:llng receiver's account In pending action was a flnal determina-
L '^^^ of the rights, hence a final Judgment and appealable; Staples
105 U. a 527-538 Notes on U. S. Reports. 4^
V. Barclay, 30 Colo. 430, 71 Pac. 375, holding statute proyldlnsr ^^
bill and costs to run against party and his security, sureties bee^^^^
liable upon Judgment against their principal and may appeal; ^^''^Vi^
V. Crawford, 10 N. Mex. 740, 65 Pac. 157, holding decree allow^ ^
compensation to master and his attorney, in default of which p
erty to be sold to raise fund, is final and appealable therefrom; Ba
V. Williams Bank Co., 42 Or. 219, 70 Pac. 713, holding creditor
pearipg when receiver's report was heard and not objecting
allowance made was afterward precluded from raising invalid^ "
of claim.
Syl. 4 (X, 314). Appeal lies from independent collateral declsi
Approved In State v. District Court, 28 Mont 234, 72 Pac. 6
holding court should settle bill of exceptions tendered in due ti
but appeal lies whether bill Is part of record, incorporation beiir:^
necessary for hearing; Battery Parle Bank v. Western Carolhr^
Bank, 126 N. C. 533, 36 S. E. 40, holding appeal may be taken froc
order allowing receiver of insolvent bank before final settlemen
commissions, objected to by creditors, as order Is final; Mllac
V. Hill, 29 Tex. Civ. 576, 69 S. W. 449, holding while sunriTlng p
ner should tv'ind up business, District Court should assume jurisdLK
tion permitting widow to declare her interest in firm assets as OQXzm.
munlty property.
Syl. 5 (X, 314). Trust estate must bear administration expem
Approved in Elk Fork Oil, etc., Co. v. Foster, 99 Fed. 600, ho
)ng cost of receivership, receiver being appointed by court's o
motion, chargeable against funds In receiver's hands, and not o:'
party, conduct being proper; Alexander v. Atlanta, etc., R. R. 0
113 Ga^ 207, 38 S. E. 778, holding minority stockholders of corpo
tion who succeed in enjoining it from doing supposed ultra vi
acts not entitled to attorney's fees, acts not being ultra vires; Sto
V. Omaha Flr6 Ins. Co., 61 Nebr. 837, 86 N. W. 469, holding expen
of procuring a receivership of insolvent corporation, including s»*
vices of attorney, are properly chargeable against the funds brouj
into the court's control; Read v. Memphis Co., 107 Tenn. 437,
S. W. 771, holding trust deed conferring all necessary powers
protection of holders of bonds entitles trustee to be reimbursed
all necessary disbursements.
Syl. 6 (X, 314). Interest party reimbursed for saving trust.
Approved in Randolph v. Scruggs, 190 U. S. 539, 23 Sup. Ct
47 L. 1171, holding services rendered to assignee In general deed
assignment prior to adjudication in bankruptcy, filed within f(
months from assignment, are preferred claims against estate;
re Michigan Cent. R. R. Co., 124 Fed. 731, 733, holding one
mitted to intervene in railroad foreclosure, who later became in
tricably Interested, was party to suit and entitled to appeal
I . S. Reports. 105 U. S. 627-538
;:N.n Trust Co., 102 Fed. 31, holding
-iTfi :iikI reprehensible course In his con-
I entitled to disbursements claimed to
:. «\.iitrnl of r,a. Ry., 100 Fed. 165, 166.
'•• :i:iir ot lilniself and others, obtaining ap-
it.r iin»porty already In court's custody, does
■ inj's fi'o: rhlnizy v. Augusta, etc., R. R., 98
'I'isi'l successfully recovering on foreclosure of
"Mtitled to compensation from fund, but counsel
i-.torvciiers is without the sale; Mohr-Well Lum-
1). IfH) Ga. r)S5, 34 S. E. 1008, holding party nor
•=ile4l to allowance of property proceeds which he
'iwd in receiver's hands for his exclusive benefit;
'viiulee Land, etc., Co., 80 Mo. App. 626, holding one
" other stockholders and creditors entitled to prosecute
•\'m trust property, expenses thereof payable out trust
= ■ V. National Bank, 20 Tex. Civ. 202, 49 S. W. 710, hold-
■■- i..*L.irs counsel fee In procuring receiver for firm property to
. 1 11 self and other unsecured creditors was properly charge-
' sreneral assets of Insolvent firm.
■^'irulshed In Phlnlzy v. Augusta, etc., R. R., 98 Fed. 777, hold-
- "'istee accepting trust and employing counsel, but no further
* >-' re(iuired nor labor to be performed, is entitled to compar-
"'^fW .small allowance; Succession of Keman, 105 La. 601, 30 So.
^^-'. lioldiug parties exclusively Interested In their own behalf,
'.li^' attorneys, etc., to annul specific legacy, not entitled to allow-
:iiie, though estate Is greatly enriched thereby; Somerset Ry. v.
i:'.rie, OS Me. 530, 57 Atl. 889, holding one bringing adversary pro-
' lin^s to take possession of trust property from those entitled
u*it entitled to reimbursement out of trust fund.
Syl. 8 (X, 316). Costs Federal court regulated by statute.
Approved In Speiser v. Merchants' Exch. Bank, 110 Wis. 512, 86
X. W. 245, holding trustee diverting money to his own use should
pay compound Interest, but unjustifiably paying by misunderstand-
ing his duty, simple interest is payable.
Syl. 9 (X, 316). Contribution applies bondholder properly applying
funds.
Approved in McNamara v. Provident, etc., Soc, 114 Fed. 914,
holding complainant having no substantive or substantial interest
in the subject-matter of the suit could bring no strict bill of inter-
pleader.
Syl. 10 (X, 316). Court disapproves extravagant fees from trust.
Approved In Braman v. Farmers' L. & T. Co., 114 Fed. 20, holding
appellate courts will not interfere with lower court's discretion in
fixing receiver's compensation unless it has been abused; Lynch y.
105 U. S. 53D-5U5 Notes on U. S. Reports. 4»
Splcer, 53 W. Va. 431, 44 S. E. 257, holding it Is error for courts to
allow exorbitant attorney's fees out of dead men's estates.
Syl. IX (X, 316). Trust litigation beneficial costs court's discretion.
Approved In In re Goldvllle Mfg. Co., 123 Fed. 585, holding bank-
rupt court ordering sale of mortgaged pro];>ert7, various attorneys
pro and con contesting validity of mortgage not entitled to fees, not
having benefited bankrupt proceedings; Phinizy v. Augusta, etc.,
R. R., 98 Fed. 778, holding trustee's contract with counsel for ser-
vices in foreclosure of railroad mortgage in Federal court will not
bind that court to allow contract amount
(X, 313). Miscellaneous.
Cited in Richardson v. Tyson, 110 Wis. 588, 86 N. W. 255, holding
though compensation of guardian ad litem was fixed by agreement,
the circumstances of appeal were so different that compensation
should be made independent of agreement
105 U. S. 539-549. Not cited.
105 U. S. 550-552, 26 L, 1106, GUIDET v. BROOKLYN.
Syl. 2 (X, 318). Mere change paving stone not patentable.
Approved in Galvin v. Grand Rapids, 115 Fed. 517, holdini^ com
bination changing form only producing better result but wltbou'
changing mode of operation is not a patentable invention.
105 U. S. 553-558, 26 L. 1166, GORDON v. BUTLER.
Syl. 2 (X, 318). Fraud — Property having contingent value di
age unrecoverable.
Approved in Marklem y. Fales, 130 Mich. 72, 89 N. W. 584, hol^^^^^d*
ing representation that harrow would be put upon the market ^ at
certain price was future possibility and not present facts, hern
not fraudulent vitiating contract; Donoho v. Equitable Life Assur.
etc., Soc., 22 Tex. Civ. 198, 54 S. W. 648, holding an insuran
agent's statement not being fraudulent, but merely an expressi^
of opinion, plaintiff was not entitled to recover amount stated ~
agent; Buena Vista Co. v. Billmyer, 48 W. Va. 388, 37 S. B. 5^
holding statement fraudulently made with reference to present
past is actionable, but an expression of opinion as to the futures^
not so regarded.
105 U. S. 559-565, 26 L. 1109, PACKET CO. v. CATLETTSBU
SyL 1 (X, 319). Municipal wharf charges not tonnage duty.
Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U
163, 23 Sup. Ct 818, 47 L. 1000, holding municipality may co
telegraph company engaged in interstate commerce to pay Uc^
for enforcement of local government supervision of its poh
wires.
Notes on U. S. Reports. 105 U. S. 566-599
yL 3 (K, 319). City may own and rent wharres.
X>proyed In Portland v. Montgomery, 38 Or. 224, 62 Pac. 768,
an ordinance of a city prescribing a wharf line will be pre-
ed to be reasonable and valid unless the contrary is shown.
U. S. 566-576. Not cited.
XT. S. 576-578, 26 L. 1176, CORBIN v. VAN BRUNT.
^L 1 (X, 321). No removal nonresidents being mere adjuncts.
:x>proyed in Smedley v. Smedley, 110 Fed. 258, holding whert
e is not a separable controversy between plaintiff and defend-
the cause cannot be removed to the Federal conft.
:3stingnished in Lake St El. R. R. y. Ziegler, 99 Fed. 122, hold-
removal of cause depends upon interested individuals, and
tees being merely formal parties were not indispensable.
U. S. 578-580, 26 L. 1176, EX PARTE HOARD.
fl. 2 (X, 321). Mandamus cannot perform office of appeaL
pproved in Utah v. Booth, 21 Utah, 95, 59 Pac. 555, holding
le Supreme Court has original Jurisdiction to issue writ . of
adamus, and though same is proper remedy, still writ will not
issued unless Justice requires.
U. S. 580-599, 26 L. 1177, LOOM CO. v. HIGGINS.
:^I. 1 (X, 321). Specification sufficient if intelligent to skilled.
pproved In Dowagiac Mfg. Co. v. Superior Drill Co., 115 Fed.
» holding one is liable for infringement where the changes made
not break up or essentially vary the principle of the original
^ntion; Brammer v. Schroeder, 106 Fed. 930, holding claim of
^^nt not invalid for failure to include devices which readily sug-
b themselves to skilled mechanic, or are pointed out in specifi-
on.
2 (X, 322). Evidence admissible explaining terms of patent.
pproved in Keller v. Piesen, 114 Fed. 608, holding describing
sufficiently to be understood by those skilled in the art is
that is required, and evidence is admissible from implication.
jrl. 3 (X, 322). Machine appendage unnecessary, specification
laining clearly.
pproved in Carnegie Steel Co. v. Cambria Iron Co., 185 U. S.
46 L. 986, 22 Sup. Ct. 712, holding process of mixing molten
^%al being thoroughly described in specification, it became un-
«ssary to show the mode of attaching the various parts.
yl. 5 (X, 322). Known elements patentable becoming newly
:ful.
pproved in Carnegie Steel Co. v. Cambria Iron Co., 185 U. S.
46 L. 989, 22 Sup. Ct 715, holding process in making iron and
105 U. 8. 580-509 Notes ou U. 8. Reports. -ino
steel, being arraogemeDt of known elements, producing n«w and
beneficial results, never attained before, evidences Invention; Farm-
ers" Mfg. Co. V, SprakB Mfg. Co., 127 Fed. (597, holding patentable
and Infringed East patent for ventilating barret nhlcL. because of
utility and cheapnesa, went Into immediate and extensive use;
Lowrle T. H. A. Sleldrum Co., 124 Fed. 702, holding garment fast-
ener for attachment to corset, not buying been anticipated, and
perfoi'mlng new functions, shows invention and is infringable:
Westinghouse. etc., Co. v. Chrlstensen. etc.. Co., 123 Fed. 309, hold-
ing valve In train pipe connected with other apparatus, while old
element, became new and different theory in emergencies, hence
patentable and lit frln gable; Klandr-Weldon Dyeing N. Co. v.
ateadwell D, M. Co., 122 Fed. 642, holding parts of dyeing apparatus
wbile all old, but fashioning and combining In new way, producing
beneficial results, makes them patentable; Peters v. Union Biscuit
Co., 120 Fed. 684, holding potent for packing crackers, while a
combination of two old eleineuta. the results being new and useful.
Involve Invention; Dowagiac Mfg. Co. v. Minnesota Moline Plow
Co., 118 Fed. 141, holding Hoyt grain drills are Infringed 'oy
changing the forni of the parts without essentially changing the
principle of operation, pervading original Invention; Emerson, etc..
Mfg. Co. V. Van Nort, etc., Co., US Fed. 082. holding though bear-
ings separately considered or in other combination were old and
well known, it old results were more economical and efficient. It la
lUTention; Consolidated Rubber, etc., Co. v. Flnley Rubber Tire Co.,
116 Fed. 633i holding rubber tires wbile composed of old elements,
being differentiated from all prior Inventlous, producing new and
useful results, are patentable and infringable; Goodyear Tire, etc.,
Co. V. Rubber Tire, etc., Co., 116 Fed. 371, holding rubber-tire wheel
combining old elements resulting In no new mode of operation, the
parts performing only the old functions. Is not patentable; Dowa-
giac Mfg, Co, v, Superior Drill Co., 115 Fed. 904. holding extensive
public use oC piitent does not conclusively establish novelty or
nttlltyi but is persuasive evidence of those qualities unless due to
otlier causes; CimiottI Unhalrlng Co. v. American Unhairlng Co..
115 Fed. 502, holding In unhairlng machine the sectlonat Druah.
while an old element, was patentable for the rotary motion, the
same being a novelty; Klulocli Tel. Co. v. Western El. Co.. 113 Fed.
665, holding Improvement fur multiple switchboard not void for
want of novelty iu device, and having displaced others, same can
be Infringed; Westinghouse, etc., Co. v. Union Carbide Co., 112 Fed.
421, holding where each pateut involves new combination of both
old and new elements, performiug new, additional, and useful func-
tions, each discloses Invention; R. Thomas, etc., Co. v. Electric.
etc., Mfg, Co., Ill Fed. 930. holding white Insulators themselves
Qtted together were not novel, the ll(]uld glaze In fusing, being su-
L
lei
Notes on U. S. ReportB. 105 U. 8. 600-eW
perlor, constituted Invention not before onticipated; Star Brass
Works T. General Electric Co.. IH Fed, ^00, bolding departure rrom
former menna tliougb small, jret the device displacing otbers pre-
viously emplojed deeldes issue In favor of Invention; Hallock t,
OsTison. 107 Fed. 485, boldlng patentees baving Invented uew
device and used it for new puipose applied to a new mncblne, lUe
^tJDe is valid, disclosing patentable iDreotlon-, Xatlonal Hollow, etc.,'
Co. V, Intercbangeable. etc., Co., 100 Fed. 707, 708. holding an in-
'■entJon being result of progressive Improvements, each Inventor la
entitled to bis oivn combination so long as It difFers from those
"f hfs competitors; Winslow v. Branson, 106 Fed. 181, boldlug an
'Ok w^i particularly described as to Its essential feature Is not in-
rrJng^^ by another that laeks that feature; Krajewskl t. Pbarr,
06 -E^^, 513^ holding a breaking and cutting cane machine Is In-
'"^S^s-^ by a machine whleb accomplishes the same result In prac-
"eaU^i.. the same manner; Bliss r. Reed. 102 Fed. 908. holding
nou^^ji two luvoniions be upon tbe same general line. If they are
****^«t they are both valid; Dodge v. Porter, 98 Fed. 628, bolding
„ ***»iatlc tube, where all Interior tubes v
ticm
mi ted by vulcaniza-
B not anticipated by any tubes made pre-
> similar; Irwin v. Haseelman, 07 Fed.
ir simple applied Id new way, accomplishing
resiilta, patentability favors patent on proof of utility and
j/^^"*»l3r acceptance; Stephenson v. Allison, 123 Ala. 448. 26 So. 292,
^ '■^Ing In Infringement vel non, the rule Is that the preaumptir-
"tfl prevent chafing, '
(^**«ly. though same w
_ " Vjolding device old o
. ttatentability. arising from grant of letter, must stand until
^fcome by proof beyond reasonable doubt.
8yi, 8 [X, 3241. Drawing or model may show patent.
.^ Approved in Bracewell v. Passaic Print Works. 107 Fed. 470, 481..
^T)ldlng the specification [ailing clearly to describe and distinctly to
^Talm the aniline-black process as required by statute and belug
Anticipated renders same unpatentable.
(X, 321). Miscellaneous.
Cited in Weatinghouse. etc., Co. v. Saranac Lake, etc., Co., 108
I'ed. 224, holding electric currents by secoudary generators void for
anticipation, date of application being date of lavention, and paten-
tee bas burden proving invention of earlier date.
105 D. S. 60<>-604, 26 L. 1184, NEW OltI.EANS v. MORRIS.
Syl. 3 (X, 325). Contracts not Impaired city conveying water-
Approved In Lake County Water, etc., Co. v. Walsh, 100 Ind. 44,
G3 N. B. 534. holding water-works system and electrlc-llghilng plant
held for public purposes cannot be conveyed without express legis-
lative authority.
n
J05 U. S. 005-013
Not
1 U. S. Reports.
i
I
105 V. S, B05-SU, 26 L. 1180, OGLESBY t. ATTRILIi.
SyL 1 (X, 325). CouHs refuse esamiuatloa corpora Uon'i UwfitJ^
acts.
Approved Id Nashua Savings Bank v. ADglo-Amcricati Co., ISS
U. 8, 230, 23 Sup, Ct. 51H. 47 L. T8C, holding Bubscrtber to atocfc in
foreign corporation subjects LImself to laws of foreign corporation
in respect to the powers and obligations of such corporation; Ameri-
can Alkali Co. V. Campbell, 113 Fed, 40*. holding registered owner
of corporation preferred stuck, on call during continuance of sueh
ownership, beconies liable though be made no express promise to
pay; Seliey v. American Lubricator Co., 119 Iowa, 600, 93 N. W.
Q93, holding plainliCf's employment admitted, but definite contract
time denied as alleged, court erred in remarking " plalntlfTs contract
covers that time and was ready to work;" Anglo-American Land,
etc.. Co. v. Dyer, 181 Mass. 507, Oi N. B. 417, 92 Am. St. Bep. 440,
holding necessity or wisdom of nsscssment within the power of the
directors to make it cannot be controverted, at least in absence of
fraud.
105 V. S. 011-613, 28 L. 1135, UNITED STATES v. CAHLL.
Syl. 1 (X, 326). Indictment — Statutory charges completed add-
ing necessary clement a.
Approved In Conrad v. United States, 127 Fed. 800. holding
fatnlly defective indictment for obstructing mails under Rev. Stat.,
i 3995, not alleging " knowingly and willfully " the language of
statute; Dalton v. United States, 127 Fed. 546, holding Indictment
for fraudulently using mall defective for failure to allege facts
constituting specific scheme charged; Mllby v. United States, 109
Fed. 041, holding statutory Indictment Insufficient, defendant
charged with scheming to defraud without charging that defend-
and did not Intend to. or would not, do as promised; Bartlett T.
United States. lOG Fed. 8S5, holding indictment of perjury for
falsely omitting assets from sworn bankruptcy schedule Is defective
without direct charge of accused having other property at same
time; United States v. Greene, 100 Fed. 947, holding where indict-
ment for conspiracy to defraud Federal government sets forth no
statement or circumstance showing In what respect such claims
were fraudulent, same was lusutflclent; Haugbn v. State, 159 Ind.
415, 416, 65 N. B. 2S8. holding information charging bunco steering
alleging "duress and fraud" in securing sum Is void, the nature of
duress and fraud not being made certain; Stale v. Meysenburg,
171 Mo. 44, 71 S. W. 232, holding Indictment is bad unless every
fact which Is an element In prima fade case of guilt is stated,
otherwise accused will not be thoroughly informed; State v, Wllker-
son, 170 Uo. 191, TO S. W. 480, holding Indictment following lan-
guage of statute and specifying further facts constituting the some^
u.
Reports. 105 U. E
Ue Indictment snffirtcntly mdivtiluated the offense; disBentlog oplD-
JoD In Wrlgbt t. United States. 108 Fed- 814, .815, 816. majority
toidiag indictment literally following statute, followed by sfate-
"lenc c( nature of the cocsplracy and act done, is sufficient.
Dlstingiilshed In In re Bellab, 116 Fed. 72, T3, holding act of
wiuti-tiptcy charged In statutory langunge, defendant being left
'1 Qo ^oDbt as to accusative nature, It is unnecessary to particulailze
furtti^r.
Sjri_ 3 (X, 327), Indictment must allege knowingly falsely uttered.
-*t»xaroved In Salla v. United States, 104 Fed. aiZ, holding Indlct-
'usQ-t charging defendant with conspiring "to knowingly and ivlll-
_ 'y ■*' obstruct malls insufficient to charge violation of sfatote.
wlttx^
il showing defendant knew said b
lil c
105 -^;^ g G14-fll8, 26 L. IISO, LINCOLN t. FRENCH.
^^'"X, 2 (X, 328). Presumptions may sometimes supply facta.
j^"*"^S*3)roved in Ragadnle v. Southern R. R. Co., 121 Fed. 926, hold-
g^^ evidence against railroad for burning building near track on
rt ^-*-*(l that fire was communicated by locomotivea was insufficient
^'lag that fire was so set.
"^*^ U a 618-630. Not cited.
^*^ 17. 8. 630-636. 26 L. 1194, THE POTOMAC.
^yi. 3 (X. 330). Collision — Net profits recoverable during repairs.
Approved in The Columbia, 109 Fed. 671, holding in suit for
.^^Ulsion damaged vessel delayed for repairs, provisions of charter
^^xlag demurrage competent evidence being prima facie in absence
^^f other proof.
Syl. 4 (X, 330). Insurance — Insurer paying loss entitled to sub-
jugation.
Approved In The Livingstone. 122 Fed. 233, holding abandonment
of vessel with full know^ledge of legal rights and remedxee. by
virtue of transferrin); and claiming total loss, vested in the under-
writer; Mason v. Marine Ins. Co., 110 Fed. 456, holding abandon-
me>it of ship to insurers for constructive total loss vests insurers
wlUi entire ownership and all IncldenlB, though insurance was not
for Its full value: The Livingstone, 104 Fed. 922. 925, holding In-
surer of cargo paying (or Its loss Is subrogated to rights of insured,
and contributory fault of vessel affecting latter's rights In cargo
affects insurers; The St. Johns, 101 Fed. 472, 473. 474, 475, 476,
holding right of subrogation applicable where marine Insurers pay
(or loss, partial or total, resulting from coUisiou. and Is Independent
of any abandonrneat; Egan v. British, etc.. Ins, Co.. 193 IIL 302,
HI N. E. 1084. holding marine insurance company paying loss due
to wrongful act of another la subrogated to rights of Insured and
nay sue In hla name for reimbursement.
105 U. S. G3G-667 Notes on U. S. Reports. 464
Syl. 5 (X, 330). Insurer's subrogation proportional to amoout
paid.
Approved in international Nav. Co. v. Atlantic, etc., Ins. Oc,
100 Fed. 322, holding insurers pay for particular average loss to
ship in proportion the loss bears to policy value, and not in pro-
portion to actual value.
105 U. S. 636-640. Not cited.
105 U. S. 640-046, 26 L. 1197, UPTON v. MCLAUGHLIN.
(X, 331). Miscellaneous.
Cited in Interstate B. & L. Co. v." Edgefield H. Co., 109 Fed. 603,
holding complainants bill claiming in good faith sum exceeding
Federal Jurisdictional amount is valid, although defense apparent
on face of bill reduces below jurisdictional amount
105 U. S. 647-658, 26 L. 1200, EX PARTE BOYD.
Syl. 4 (X, 332). Discovery unobtainable for self-sufficient conrt.
Approved In Mutual Reserve, etc., Assn. v. Phelps, 190 U. S. 159,
23 Sup. Ct. 710, 47 L. 995, holding Federal court has no Jurisdiction
to enjoin State court after passing Judgment where other matters
supplementary to case were being considered in execution of Judg-
ment; Regina Music Box Co. v. F. G. Otto & Son, 124 Fed. 748,
holding Federal equity court will not enforce State statute for
supplementary proceedings in aid of execution, which proyides
statutory legal remedy as substitute for creditor's bill; Snfford v.
Ensign Mfg. Co., 120 Fed. 482, holding Federal court of equity ta
without Jurisdiction where bill is based on contract and pi ays for
discovery and accounting, there being a complete legal remedy;
Hudson V. Wood, 119 Fed. 769, holding defendant debtor of Judg-
ment debtor in creditor's suit cannot object to making discovery
because bill waives answer under oath; dissenting opinion in
Wright V. Superior Court, 139 Cal. 479, 73 Pac. 150, majority hold-
ing action pending in one superior court, another superior court can-
not enter bill of discovery and enjoin proceedings in first court
except preventing multiplicity of suits.
(X, 331). Miscellaneous.
Cited in Williams v. Crabb, 117 Fed. 197, holding State legislature
cannot confer substantive rights in suit inter partes unavailable to
other citizens, nor deprive Federal court of Jurisdiction on point
of citizenship.
105 U. S. 659-667, 26 L. 1136, CORBIN v. COUNTY OP BLAOK-
HAWK.
Syl. 1 (X, 332). Assignee has assignor's right — Federal court.
Approved in Glass v. Concordia Parish Police Jury, 17« U. S.
210, 44 L. 437. 20 Sup. Ct 347, holding Probate Court ordering
sale, purchaser of warrants is assignee within congressional act
465 Notes On U. S. Reports. 105 U. S. C67-09G
1875 and can sue in Federal court If suit were entertalnable be-
fore assignment; Ban v. Columbia So. Ry., 117 Fed. 26, holding
partner cannot bring suit in Federal court in his own right and as
assignee of his copartner imless bill shows diverse citizenship of
i^m; Virginia-Carolina, etc., Co. v. Sundry T. Co., 108 Fed. 4rz,
tiolding fire insurance policy requiring insurer's consent to train-
f^r property creates new contract between insurer and transferee,
*^id latter can sue in his own name.
J>l8tinguished in Hoadley v. Day, 128 Fed. 304, holding 25 Stat.
^5S2, limiting Federal jurisdiction over suits in promissory notes
t>y assignees, does not prevent jurisdiction in foreclosure trust deed
a soaring accommodation notes.
SyL 2 <X, 332). Under statute assignee may enforce contract.
^I^lstinguished in Brooks v. Laurent, 98 Fed. 651, holding lessor
txk9.y sue assignee of lessee in Federal court, diverse citizenship
^^*^ting, though defendant assignor was of lessor's State.
XJ. S. 667-671. 26 L. 1204, POST v. SUPERVISORS.
Syl. 2 (X, 333). State Constitution upheld Federal court ac-
-A^pproved in Wilkes County Comrs. v. Coler, 180 U. S. 521, 45 L.
^^^- 21 Sup. Ct 463, holding Federal court follows State court
oeolaring the State law at time bonds were put upon the market;
^Tliompson v. McConnell, 107 Fed. 36, holding decision of State court
allowing the State's policy to liberally construe its exemption stat-
utes is binding on the Federal court; Cumberland B. & L. Assn. v.
Sparks, 106 Fed. 102, holding decisions of State court regarding
r^corditig of mortgages, and notice thereby given, establishes rule of
P^'operty and will be followed by Federal court; Louisville, etc., R.
^ ^^- T. Lansford, 102 Fed. 66, holding Supreme Court of Alabama
'^Phol^I^g constitutionality of State statute giving damages, Fed-
®^^ <^onrt will be bound thereby.
^^1- 3 (X, 334). State statute unconstitutional Federal court
'8^ees.
/approved in State ex rel. Caillouet v. Laiche, 105 La. 88, 29 So.
* folding bill passing one house and amended by second, but
^n^m^ut never concurred in by first house, the act was uncon-
'"^tioiial.
^^ ^- S. 671-691. Not cited.
^^ tr. g 691-696, 26 L. 1108, SWIFT CO. v. UNITED STATES.
Ij *• ^ (X, 335). Statute ambiguous executive officers' interpreta-
^l>plies.
^ d?^*^^^^ *° United States v. Edmonston, 181 U. S. 514 (see 45
^^«. 21 Sup. Ct. 720, holding purely voluntary payment by mls-
VoL 11 — 30
105 U. S. G3C-0(H
gurts.
4m
Syl. 5 (X. 3301.
paid.
Approved in In;.
100 P^ed. 322, liol.r
ship in proportJM .
portion to act U.I I .
105 u. s. (;3»; <;i"
105 U. S. mo i:!
(X, 331 J. m:
Cited in Int.-.
holding coi]!!)!;!
Federal juris.!:
on tace of !•'!.
105 U. S. »;I7 » :
Syl. 4 (X. :•
Approve t!
23 Sup. CI. V
to enjriin S;
SUpplonUMil;!]
nient; Um'w.
holding I'l.
suppk-nnMi;.
statutory i
Ensign .\'
witliuui
disci )V»'r.
HUllSnli
nuMii 1 1
\V:-ip;l,:
in;; ;i.-
noi i ■
ex«M|.
r -.
(<!
1 astead of $1.25, j^lves no
• "epayinont of overcharge;
>. ;;10, 45 L. 873. 874, 21 Sup.
il of lading is equivalent to
• vports, and is constitutionally
•!. :::t5 Fed. 67fi, holding contract
. .1 subsequently because of some
.-lumated so far as it remains
. :13 Fed. 641, holding words of
-« .am. these must prevail notwith-
.j *;. ' I dicers of other departments of
i:ib. 106 Fed. 445, holdiu«$ comp-
•• -ft "Statutes may successively nssesfi
. viui bank and receiver may sue tc
-m .^7 Am. St. Rep. 203, note.
. -:X PARTE MA SOX.
.• dai >.'ourt-martial absolutely scpreine
•.;aus;hry, 183 U. S. 383, 46 L. 246. 25
- .- .il i.*ourts-martial affirmed by militarj
us -ivil courts except where such wai
. .' .ower; In re Brodie, 128 Fed. G66
.. -.uartial prescribing confinement at hare
..rwing authority may direct for life.
-10. STEVENSON T. TEXAS RY.
. .. u '.ion superior to unrecorded mortgage
.14 -^auk V. Sandford, 99 Fed. 157. holding
-L-.^a^e not multifarious in Joining defend-
..I ax sale against mortgagor, sale made
! '.y. MARSH V. Mcpherson.
i:.^.t:'e sfoures damage goods below contract
.. ..ci:!i ch Mfg. Co. V. Gray, 129 N. C. 440. 40
...(..t Liaoliiue of certain capacity is sold, none
V. .. i;'.:naj:os are difference between purchase
V . uv' ielivored.
.vx.'i iciick'ut removing defect the damage.
V ! .Ill Koduction V. Peck, 120 Fed. 91, hold-
.\as (.out rat- tod for. plaintiff cannot sub-
.. -.ut's tor defendant's breach without evi-
V . ■•s wrre 5?peculative; North Chicago, etc.,
'J l\'d. t»73, holding motor sold without
.... tta:u N\ork and failing, damages would be
Notes on U. S. Reports. 105 U. S. 71S-739
necessary to remodel to meet contract requirements; Huyett,
., Mfg. Co. V. S. R. Gray, 126 N. C. 115, 35 S. B, 236, holding
.<^]iine of certain capacity by contract warranty, lesser supplied,
ages are difference between value of property furnished and
cost of one contracted for.
U. S. 71&-727. Not cited.
U. S. 72S-733. 26 L. 957. COUNTY OF BALLS v. DOUGLASS.
yL 1 (X, 337). De facto officer's bond issue absolutely valid.
pproved in Cent R. R. & Bank. Co. v. Farmers' L. & T. Co., 113
413, holding ancillary receiver, after paying expenses of his
Ivership, must account and remit to receivers in original juris-
~^lon all funds and assets remaining; Baltimore Bldg., etc., Assn.
. .^^derson, 09 Fed. 495, holding though bill under which receiver
v regularly appointed was dismissed for want of jurisdiction,
^ties of embezzling receiver are nevertheless liable.
yL 2 (X, 338). Bona fide holder's legal bond unquestionable.
j[)proved in Commercial Bank v. Sandford, 103 Fed. 102, hold-
land sale under tax execution by deputy sheriff, whose acts
TiflT approved, is valid although judge had not confirmed
's appointment required by statute.
I 4 (X, 338). Bondholder's rights of time of issue.
:i)proved in Loeb v. Trustees of Columbia Tp., 179 U. S. 492, 45
1, 21 Sup. Ct. 182, holding Federal court will interpret contracts
ccordance with State Constitution, as same was interpreted by
^*Kli€8t State court at time of making contract; Padgett v. Post, 106
^'^^- 603, holding though act under which bonds were issued re-
^i'tiired levy of annual tax to meet indebtedness arrearage may
"^ naet by single levy.
^yh 5 (K, 338). Municipal bonds evidential without revenue
•tamp.
-Approved in D'Esterre v. New York, 104 Fed. 611, holding munici-
^"ty having power to issue bonds, bona fide holder is protected
^^iuat irregularities on part of agents in negotiating them.
• 105 U. g. 733-739, 26 L. 1220, RALLS COUNTY COURT v. UNITED
S'l^ATES.
Byl. 3^ (X, 339). Validity county bonds unquestioned in mandamus.
^POr-oved in Board of Comrs. v. Coler, 113 Fed. 724, holding
county issuing negotiable bonds authorized by statute, payment
'w s^oc]^ subscribed in railroad estopped by recitals therein to
deny ^^qj^ as against bona fide holder; dissenting opinion In Grand
Countr^r V, People, 16 Colo. App. 226, 220. 246, 64 Pac. 679, 680, 686,
™*jOfl'^y holding Judgment creditor on county warrants cannot man-
1*0111^ commissioners to levy tax for their payment, without show-
"* "t^tutory amount in payment was not exceeded.
105 U. S. 739-774 Notes on U. S. Reports.
SyL 3 (X, 339). Authorized bonds Implies tax levy.
Approved in United States v. Saunders, 124 Fed. 128, holdl
municipality having legal authority to Issue bonds there is inferen
authorizing levy of tax to meet payment in absence of constitutio
or statutory inhibition; United States v. Capdevielle, 118 Fc
814, holding La. drainage act, conferring power to do draina
work in New Orleans, In absence of express otherwise, authoriz
special tax levy to discharge debt; Village of Kent v. United Stat
113 Fed. 236, holding word " may " in statute, relative to levy!
tax to meet special municipal debt, means "shall;" State v. May
etc., of City of Bristol, 107 Tenn. 324, 70 S. W. 1033, holding
conferring power to issue city bonds impliedly confers power to h
tax to pay bonds and accruing interest
Syl. 4 (X, 340). Authorized bonds payable by special tax.
Approved in City of Cleveland v. United States, 111 Fed. S^ *6.
holding water and light being for " general piu-poses " and llmi M M ^?d
expenditure therefor, council cannot levy special tax in paym. ^: s-^t
of excess or for Judgments.
105 U. S. 739-765. Not cited.
105 U. S. 76&-772. 26 L. 959, PAPER BAG MACHINE CO- ▼•
NIXON.
SyL 3 (X, 342). Infringement suit not maintainable in licenscu^ m-^'s
name. •
Approved in Excelsior Wooden Pipe Co. v. Seattle, 117 Fed. X^
holding patentee's grant of exclusive right to manufacture arti<
in certain territory does not entitle grantee to sue for infringemi
therein.
Syl. '4 (X, 342). Appeal on costs alone not considered.
Approved in In re Michigan Cent R. R. Co., 124 Fed. 732, holdJ
decree of Federal court allowing costs to clerk under statutory pr^
visions is not in exercise of court's discretion, hence is appealabh
The Longfellow, 104 Fed. 368, holding vessel-owner in proceedlDj
to limit liability relative to sinking vessel, denying liability am
issue is against them, costs may be taxed thereon; Foster v. El^
Fork Oil, etc., Co., 99 Fed. 617, holding costs in equity vest Ir:^
discretion of court and no appeal lies except where they are mad^
payable from fund in court.
105 U. S. 773, 774, 26 L. 937, THE MANICE.
Syl. 1 (X, 342). Aggregate of claims shipowner's limited liability..
Approved in Hagge v. Kansas City, etc., Ry., 104 Fed. 393, hold-
ing landowners' property injured by overflow of stream, cau«
by defendant's negligence, may unite for injunctive relief in Fed-
eral court, the individual injury being $2,000.
CVI UNITED STATES.
TJ. S. 1, 2, 27 L. 72, PARKER v. MORRILL.
t\, 1 (X, 343). Jurisdictional amount not appearing, appeal
^-* «s xiQissed.
-^ Improved In Cowell v. City Water Supply Co., 121 Fed. 55, 56,
holding Federal jurisdiction determined by amount or value
<:h complainant claims to recover or that which defendant will
'^^^^^ if complainant obtains recovery he seeks.
U. S. 3, 4, 27 L. 73, BOSTWICK v. BRINKERKOFF.
^1. 1 (X, 343). Supreme Court reviews merited Judgment only.
-pproved in Schuyler Nat. Bank v. Gadsen. 179 U. S. 681, 45 L.
21 Sup. Ct. 918, reaffirming rule; Macfarland v. Brown, 187
246, 23 Sup. Ct 107, 47 L. 162, holding decree of Court of
sals of District of Columbia reversing District Supreme Court
remanding cause ** for further proceedings " is not final and
^X>:K> ^^lable to Federal Supreme Court; Chesapeake & Potomac Tel.
V. Manning, 186 U. S. 242, 46 L. 1146, 22 Sup. Ct. 883, holding
ict Court of Appeals making complete disposition of contro-
cy, leaving ministerial duty of entering final injunction to Dis-
Supreme Court, wfts final for appeal purposes; Haseltine v.
tral Nat Bank, 183 U. S. 132, 46 L. 118, 22 Sup. Ct 50, holding
.Kment reversing judgment for trial court, granting recovery under
ite and remanding " for further proceedings," not final, and writ
srror will not lie; Morgan v. Thompson, 124 Fed. 205, holding
s^^ment Federal Court of Appeals reversing inferior court, re-
■^■^iding case for further proceedings, not final, hence not review-
in Federal Circuit Court of Appeals; Mercantile Trust Co. v.
^ago, etc., Ry. Co., 123 Fed. 392, holding decree on intervening
tion against receiver to deliver certain property or in default
Lccount therefor is interlocutory, not final, therefore, not appeal-
S West V. Bast Coast Cedar Co., 113 Fed. 743, holding an order
.ting to the injunction bond and damages thereunder, while not
the pleadings, was in execution of decree, hence final and
lable; Bast Coast Cedar Co. v. People's Bank, 111 Fed. 449,
^^ng decree in partition suit ordering sale of land, leaving only
^tibutlon of proceeds to be done, is final for purposes of appeal;
v. Bluefield, etc., Co., 106 Fed. 591, holding decree which
nitely rejects theory upon which plaintiff's suit is based which
X^ut in issue by the pleadings is final and appealable; Coltrane v.
[469]
Sates on U. 8. Reports.
t holding order on liiterrenias petition of
; resident corecelver to act wltli receWa
I petition Ii not final and appealable; Far-
ir.<a Nebr. SCO. S5 N. \V. 505. folding in roreclosnre
'•^ HiHMMHUt~ '<&!)■*'*»(* belug found personally liable, tbe decree
(•^■■mUm^ nrttaScfciicT of Judgment was not final and appealabl&
U«Ah. i^Zr^a: U 78, EX PARTE BALTIMORE & OHIO B. R.
^^ I ' It^.iainL Admiralty — Causes distinct, decrees not joinable.
iptfWf t:'fii HtwH'ntltic opinion In Waslilugtoa Co. v. Williams, 111
r«^ M^ r«ij^atty boldlns eacli holder having separate legal right
■* -iir'-Ml IT1 "T uniting In equity to establish validity of twnds,
UmWW^ iWittltUcIty of suits not eutertalnable.
''iMjimwflMil In Wastiiugton Co. y. Williams, 111 Fed. 814, hold-
■v^cMJI. ^ktUwr faSTtng separate legal right of action preventing
'UlUW^iK -Mtalty to establish validity of bonds, equity suit to avoid
f- of BUlts not eutertalnable. ^^^^
t«f4.Ua^r-a. Not cited. ^^H
twfc U. !», tS-lK 27 L. 96, THB NEW ORLEANS. "^^^
1!^ i iX. M7>. Statement anotber suit luadmlsslble collision cbbk
:$«« W .VW. St Bep. 358, note.
IMI^V. * 1T-2B. 2T L. SI, THE NORTH STAR.
SyL 1 tX S47). Collision ~ Equal fault each vessel pays half.
■\iHt€^\^ m The Albert Dumols, ITT U. S. 256, 259. 44 I,. TOO,
1W& At $ui|<. Ct. COl, boldlng valid claims asscrlable under llmlted-
iMiMiii.v Act for damages, loss of life by collision, (bough local law,
(Kv« '"J >lvu or privilege against vessel; The Marlska, 107 Fed. 991,
tMhlUi^ wbere libeled vessel la compelled to pay entire damages sbe
UM> cufiMX'e coutribulloD against the other vessel, not within Jurla-
slKllwU. by Independent suit; In re Laiieland Transp. Co., 103 Fed.
Ji», XS:i. hiJdlug hotb vessels being in fault for collision, one sinking
wtUt ti«r cargo, the cargo-owner has superior lien, in absence of con-
*wcl> ^iifvii fund available.
i^l. » iX. 347). Collisions — Statute Umiting liability applicable
bftiauc* • truck.
Ai^rovi-d In The George W. Boby, 111 Fed. 619. boldlng vessd
■Uitk Id cuillslon, damages being awarded owner for total loss, be
•.iOLUot rtwuver additionally earnings under unexpired time cbarter.
Sf L H iX, 34S). Both parties pay costs appeals unsustalned,
.\pprovod In Dounell v. Amoskeag Mfg. Co.. 118 Fed. 19, holding
ift ault for damages for Improper detention where both have ap-
M«gJlM) and neither maiiftaiued tbe appeal there ia no o
AVWKllui: costs.
I ia DO occaalim_£aE.
J
Notes on U. S. Reports. 106 U. S. 30-85
U. S. 30^38, 27 L. 65, PHOENIX INS. CO v. DOSTER.
yh 1 (X, 348). Evidence conclusive case withdrawn from jury.
.pproved in Marande v. Texas & Pac. R. R. Co., 184 U. S. 191, 46
-^86, 22 Sup. Ct. 346, holding where evidence Is undisputed or is
such conclusive character that court would set aside verdict,
may direct verdict; Patton v. Texas & P. R. R. Co., 179 U. 8.
45 L. 363, 21 Sup. Ct. 276, holding court properly refuses to
^ve question to Jury regarding negligence causing injury, where
^ence overcoming negligence is unquestionable.
»yL 2 (X, 349). Customarily receiving overdue premiums waives
'Ofeiture.
approved in Modem Woodmen v. Tevis, 111 Fed. 117, holding
ritual collection by clerk of local camp of benefit assessments
■hin certain time waives prompt payment according to terms of
•:^ — tificate and by-laws; Union, etc., Ins. Co. v. Whitzel, 29 Ind. App.
65 N. B. 17, holding time of payment of premium being extended
application for paid-up policy made during that period was in
e, policy being still in force.
»yL 3 (X, 350). Time material in paying premiums.
approved in Schmertz v. United States Life Ins. Co., 118 Fed. 256,
<]lQg granting indulgence to insured beyond stipulated time in
^cy for payment of premium in one year not binding insurer to
iiar indulgences for subsequent year; United States Life Ins.
*- V. Lesser, 126 Ala. 584, 28 So. 651, 652, holding company having
ulesced in agent's waiver of payment of premiums when due,
^^annot be insisted that terms of policy shall control regarding
'eiture.
L 4 (X, 350). Insurance — Customary notice gives reasonable
Lum time.
-^r>I)roved in Union Central Life Ins. Co. v. Caldwell, 68 Ark. 522,
^. W. 361, holding dividends paying premium loans, insurance
^X>«ny should notify assured or beneficiary of dividends declared
forfeiture, dividends being insufficient to meet the obligation.
348). Miscellaneous.
^ ^^tied in United States Life Ins. Co. v. Lesser, 126 Ala. 580, 28
^^^ ^i50, holding insurance company accepting business of alleged
t: through general agent who employed him, the question of
^:!y was for Jury regarding extension of time,
"^^^ XJ. S. 39-47. Not cited.
^^^ XJ. S. 47-85, 27 L. 47, CHICAGO, ETC., R. R. v. FOSDICK.
^^^X 1 (X, 351). Nonpayment interest mortgage enforceable.
j^ "^X^proved in Kimber v. Gunnell Gold Min., etc., Co., 126 Fed. 140,
1^ ^^^ng although debtor gives mortgage or trust deed to pay cred-
^'^^^ ratably, in absence of express stipulation or statute no defense
lOe U. S. 47-85
Nulet
1 U. ;
Reports.
472
c. Ry., 117 Fed. 640, holding
(is was not pressed, Interest
c eulltf of gross laches, thus
I
each creditor sulDg on bonds; Central Trua^ Co. t. California, etc,,
Ry. Co., 110 Fed. 71, holding Individual bondholders may iDterrene
to contest validity of certain bonds Id suit by trustee to foreclose
mortgage securing the bonds; Union Central Life Ins. Co. v. Cald-
well, G8 Ark. 525, 58 S. W. 302, holding life Insurance policy for-
feited for nonpayment of premlu'm, tender was not necessary where
correspondence shows that company would not have accepted.
Syl, 2 (S, 352). Mortgages — Interest unpaid foreclosure defeats
equity redemption.
Approved in Gunnison v. Chicago, t
where railroad mortgage securing bo
never paid, trustee and bondholders a
barring them after twenty-five years.
Syl. 3 (X, 352). Mortgages — Foreclosure decree must state fall
particulars.
Approved In In re Wiseman et al., 123 Fed. 1S5, holding baols-
nipt's liability, as surety on administrator's bonds, not provable
against bis estate wbere decree against administrator in Probate
Court was not final; Wells v. Northern Trust Co., 195 Ul. 297,
29S, 63 N. R 140, boldlng foreclosure decree allowing tea days
to pay,. or defaulting, property sold sixty days' notice, short time
granted harmless error, sale conSrmed after six months.
Syl. 6 (X, 353). Mortgages — Foreclosure may require all instal-
ments paid
Approved in Rumsey v. People's Ry. Co., 154 Mo. 247, 55 S. W.
624, boldlng trust deed of railroad property declaring default of
bonds due. after thirty days, Justifies foreclosure for entire amouat.
Syl. 8 (X, 353). Mortgage — Written request required.
Approved IQ Guardian Trust Co. v. White Clirfs, etc., Co., 109
Fed. 52S, 530, holding corporation giving mortgage provision that
for nonpayment interest trustee could foreclose, certain number
bondholders demanding, not necessarily preveuted without demand;
Citizens' Bank v. Los Angeles, etc., Co.. 131 Cal. 191, 63 Pac.
464, holding trust deed securing bonds single bondholder of tin-
pald coupons may foreclose, the trustee refusing upon demand,
whether refusal was arbitrary or unlawful; Schultze v. Van Doren,
64 N. J. Eq. 469, 53 Atl. 818, holding, though mortgage provides
trustee shall bring suit, single bondholder or several may Bue
wbere trustee Imposes terms which complainants were not bound
to accept.
Syl. 10 (X, 354). Execution decree of another decree appealabla
Approved In Llde v. Park, 132 Ala. 223. 31 So. 360, holding
decree on failure to amend within certain time, bill being dismissed,
was simply interlocutory, permitting statutory appeal In thirty
days; Plaisted t. Cooke, ISl Mass. 110, 63 N. E. 133, holding
*'^3 Notes on U. S. Reporta. 106 U. S. 86-108
no formal decree of dismissal is entered, the case still re-
°^^-*«is on the doclset of trial court, and an appeal will be dismissed.
^yl. 11 (X, 354). Decree reversed, dependent decree fails.
-A.x>proved in Montana Mining Co. v. St. Louis Mining & Milling
Co., 186 XI. S. 82, 46 L. 1042, 22 Sup. Ct. 747, holding where second
Stftd^ment, Itself not final, renders first judgment not final, sub-
s^qxient writs of error must be dismissed. See 96 Am. St Rep.
« 132, note.
tJ. S. 86-89, 27 L. 114, EQUATOR CO. v. HALL.
^yl.-l (X, 354). Statutory new trial binds Federal court.
-Approved In Files v. Davis, 118 Fed. 468, holding action on
^^'^'^chment bond In suit pending In Federal court is ancillary,
^xnce maintainable in same court irrespective of citizenship or
ount Involved. •
U. S. 89-95, 27 L. 79, COTTON-TIE CO. v. SIMMONS.
^3yl. 1 (X, 355). New patent not makable from old.
-A^pproved in Brown v. Puget Sound Reduction Co., 110 Fed.
bolding purchaser of patented machine may use the particular
^oliine purchased, but its defectiveness gives him no right to
^^stltnte therefor an infringing machine.
2 (X, 355). Patent parts are repairable.
^^pproved In Goodyear, etc., Co. v. JaclLSon, 112 Fed. 149, 150,
^ing purchaser of a patented machine, who simply repairs a
ken or worn-out element, does not thereby infringe patent
. 3 (X, 355). Vendor intending, selling article infringes.
-A.i>proved In National Phonograph Co. v. Schlegel, 117 Fed. 628,
though complainant's contract with manufacturer of pat-
^^as that of selling at certain price, equity will not enjoin pur-
selling for less price.
r. S. 95-99. Not cited.
r. S. 9^108, 27 L. 69, BACON v. RIVES.
. 1 (X, 356). Nominal party does not prevent removal.
^-X>proved in Wirgman v. Persons, 126 Fed. 453, holding where
controversy was between complainant and defendant, the
^ — WW diversity of citizenship existing, removal not prevented
^^ ^CDinder of nominal defendant having no interest; Williard v.
^^^-tianburg, U. & C. R. R. Co.. 124 Fed. 802, holding railroad
oyee suing leased railroad and its lessor in tort presents
, ^ able controversy, and cause is removable by lessee company,
^^^'^^ of another State; Person v. Illinois Cent. R. R. Co., 118 Fed.
. * holding railroad lessor and lessee being sued for death of
'^ i*B employee, not separable controversy for removal, plain-
100 U. B. 100-123 Notes on U. S, neporta. 474
tiff and lessor of snme State; Higgina v. Baltimore, etc., H. R..
89 Fed. Ml. holding bill In State conrt against stockbolder In-
volving ownership of slock held by him. formal Joinder of coi-
poration will uot. beeauHe of joinder, prevent removal; Lake St.
FA. II. R. V. Zlogler. 91) Fed. 121. bolding trustees being but formal
parties, tbelr joinder as defeudflnts did not deprive Federal court
of Jurisdiction If Individual defendants conid remove.
106 V. S. 109-118, 27 L. 81. BAILEY v. RAILROAD.
Syl. 1 (X, 358). Income tax applies to present Inconie.
Approved in Peacock, etc., Co. v. Williams, 110 Fed. 916. hold-
ing under Carolina decisions bolding judgment on motion where
whole pleadings were frivolous, answer In Federal court denying
under oath material jurisdictional allegations Id complaint not
frivolous. ,
Syl 4 (X, 301). Railroad earnings not doubly taxed.
Approved In lu re Macon Sash, etc., Co. 112 Fed. 332, holding
enactment of uniform system of bankruptcy nuilifiea subsequent
appointment of receiver by State court.
106 U. 8. llS-123. 27 L. ST. STEAMSHIP CO. v. TUGMAN.
SjL 1 fX. 3581. Corporations are citizens of State creating.
Approved In Great Southern Fire Proof Hotel Co. v. Jones, 177
U. S. 456. 44 L. 845, 20 Sup. Ct. 093, bolding limited partoersblp
association created under Pennsylvania laws when suing In Federal
court must allege citizenship of individual members where Juris-
diction depends upon diverse citlzensliip.
Syl. 2 (X. 350). Cltizenahip properly shown petition or record.
Approved In Roberts v. Pacific, etc., Ry. & Navigation Co., 121
Fed. 790, holding one defendant not of plaintiff's State, and other
foreigner, does not deiM-tve Federal L-ourt jurisdiction, nor prevent
removal where either defendant could have removed; Green v,
Heaston. Recr., 154 Ind. 130, 50 N. E. 88, holding petition for removal
of cause to Federal court alleging diverse " residence " instead of
"citizenship" is insufficient. If pleadings do not show diverse citi-
zenship,
Syl. 3 (X, 359). Filing petition and bond removal complete.
Approved in Waters v. Central Trust Co., 120 Fed. 471, holding
application for removal being postponed for a week, and attorney
applied for extension of time to plead, such appearance was special,
not conferring Jurisdiction; AsUe v. Union Cent., etc., Ins. Co., 115
Fed. 235, holding removal from State court to Federal court being
on ground of diversity of citizenship, the cause Is removed Ipso
facto on filing petition and bond; Cteur D'Alene Ry. Co. v. Spaldtng,
0 Idaho, 102, 53 Pac. 108, holding where State court properly trana-
ferred the cause on the showing made, its jurisdiction waa restored
by order of Federal court remanding the cause back.
Notes on U. S. Reports. 106 U. 8. 124-141
. 4 (X, 361). Removal — A compelled defense no waiver.
pproved In Texas, etc., Ry. Co. v. Britton Davies, 93 Tex. 387,
S. W. 563, holding filing sufficient petition and bond to transfer
eie to Federal court, defendant did not waive that right by being
I>elled to defend in State court.
XJ. S. 124-141, 27 L. 104, PRITCHARD v. NORTON.
3 (X, 361). Contracts — Law expressly or impliedly Incor-
controL
-A^pproved in Plnney v. Nelson, 183 U. 8. 148, 46 L. 127, 22 8up.
• S4, holding California stockholders in Colorado cori>oration con-
otlng with reference to California Civil Code places them same
^ixig with stockholders of domestic corporations relative to Call-
business; Hale V. Tyler, 104 Fed. 761, holding special receiver
by Minnesota court can maintain ancillary suit in Federal
of other jurisdiction enforcing statutory liability of nonresi-
't stockholders of Minnesota corporation; Mutual Life Ins. Co. v.
97 Fed, 267, holding New York insurance company issuing
from its Washington office, application made there, is New
: contract, it determining deaths and payments thereunder;
nson V. Pease, 28 Ind. App. 611, 63 N. E. 480, holding defense
'ailing where married woman of Indiana becomes surety, if
executed bond in Ohio under which law she can contract; Balti-
^, etc.. Railroad Co. v. Reed, 158 Ind. 32, 92 Am. St. Rep. 208,
. E. 490, holding court will presume rule preventing recovery
master under fellow-servant rule, and complaint alleging such
in another State is demurrable; Alexandria A., etc., R. R. Co.
^hnson, 61 Kan. 421, 422, 59 Pac. 1064, 1065, holding citizens of
^as agreeing to performance of contract in another State,
of latter State determine interpretation and effect of
Succession of Miller v. Manhattan, etc., Ins. Co.,
La. 655, 34 So. 724, holding validity of assignment life
determinable by law of place of assignment, not by law
X^^ace where policy was issued, or insurance paid, being distinct
. -:iract8; Atwood v. Walker, 179 Mass. 518, 519. 61 N. E. 60, hold-
'^ contract of one State for purchase of land in another State,
ft of State where contract was made will govern as to damages;
j^ — ^d Nat Bank of New York v. Steel, 129 Mich. 437, 88 N. W. 1051,
I *^^ Jng compiled laws relating to favorable representations concem-
^' another, requiring writing signed by person chargeable aflTects
21^^^^ remedy; In re St. Paul & K. C. Grain Co., 89 Minn. 115, 94
j^ ^^^. 222, 223, holding enforcement of pledge of personal property
jj^ -^^ State where pledged property is actually situated, and laws of
7»^^^^^ State determine its validity; Limerick Nat. Bank v. Howard,
"^" ~ H. 17. 93 Am. St Rep. 493, 51 Atl. 643, holding note executed
payable in Vermont and in hands of indorsee, whether he is
106 U. S. 142-166 Notes on U. S. Reports. 476
" bona fide bolder " as an Issue is for tbe laws of Vermont to decide;
Fidelity, etc., Assn. v. Harris, 94 Tex. 35, 57 S. W. 638. 86 Am. St. Rep.
818, bolding Pennsylvania law requiring warranty of trutb of an-
swers to questions in life insurance application, being material to
risic, govern tbe contract; Jones v. National Cotton Oil Co., 31 Tex.
Civ. 423, 72 S. W. 250, bolding action on contract for cottonseed
meal unenforceable in Arkansas, place of malting and performance,
cannot be maintained in Texas wbere enforceable; Western Union
Tel. Co. V. Blake, 29 Tex. Civ. 225, 68 S. W. 527, bolding failure to
transmit message from Arkansas to Texas, causing mental angnish,
recoverable for in Texas tbougb not recognized in Arkansas; Thomas
V. Western Union Tel. Co., 25 Tex. Civ. 400, 61 S. W. 603, holding
wbere failure to deliver telegram in Arkansas causes mental dis-
tress to citizen of Texas, who at time was in Arkansas, laws of
Arkansas govern; dissenting opinion in Keene Five-Cent Say. Bank
v. Reid, 123. Fed. 228, majority bolding provision in note for con-
struction "according to laws of State of Kansas'* did not Intend
including all local decisions as part of contract as governing. See
73 Am. St Rep. 752, note.
SyL 7 (X, 364). Parties presume law upholding contract made.
«
Approved in Hieronymus v. New York, etc., Assn., 101 Fed. 14,
holding whether contract is usurious is determinable by law of that
State, especially, if thereby it is valid, while otherwise under law of
borrower's State.
106 U. S. 142-147, 27 L. 110, WING v. ANTHONY.
Syl. 1 (X, 364). Reissue disffering from original patent
Approved in Kircbberger v. American, etc.. Burner Co., 128 Fed.
607, holding wbere original specification of patent gas burner dis-
closed nature of invention and suggested process, amendment proper
to include claims covering process.
106 U. S. 147-154, 27 L. 85, JESSUP v. UNITED STATES.
Syl. 3 (X, 364). United States may take unprohibited bond.
Approved in Laffan v. United States, 122 Fed. 335, holding bond
given United States by internal revenue collector for faithfully
performing duties by all deputies, bis appointees, enforceable,
though not required by statute. See 90 Am. St Rep. 201, note.
106 U. S. 154-160, 27 L. 149, THE NEVADA.
Syl. 4 (X, 365). Ocean steamer should use greatest care.
Approved in The Northland, 123 Fed. 60, holding it is imperative
that steamship in making landing at dock in river, other vessels con-
stantly passing, that an efficient lookout should be maintained.
106 U. S. 160-166. Not cited.
*TT
I U. S. Reports.
10S XT. S. 166-178. 27 L. 134. CLOUGH v. BARKER.
Syl, 2 (X, 3GG). Similar patent differently use<l not InfringiDg.
■*-I»I>roved In Cliisiiolm v. Jobnaon, lOG Fed. 200, holding ac'
^^^*atal use at pea-ahelllng proceBS not appreciated or understood
*t "time cannot operate to anticipate or Involldale patent suhae^
m^ntly granted for suc!i process; Powell v. Leicester Mills Co,. 103
^^**3„ 487, holding patent Issued for alleged Infringing device used
(•y defendant entitles him to beneflt of presumption arising from
8ti*;l> fact of not Infrliiglng prior patent.
Syl, 3 (X. 387). Another substantially using patent Infringes.
-Approved In Durfee r. Bawo, 119 Fed. 859, holding crosa-plna In
S^'yiriour bells used simply to suspend the tubes and not Improve
*l**ality of tone do not Infringe Harrington patent; Dowagiac Mfg.
CJo- V. Minnesota Mollue Plow Co., 118 Fed. 141, holding changing
forin of parts of patented combination without essentially varying
I**"! If Iple. or mode of operation of original Invention Is an Infringe-
ment; Crown Cort. etc., Co. v. Aluminum, etc., Co., 108 Fed, 808.
***^l<i Ing the patent of bottle -8 topping device never having lieen In use
**^rore Painter's first Invention, the some was patentable and In-
^^^'^SabJe: Bowers v. Pacific Const Dredging, etc., Co.. 99 Fed. 748,
****'«a-lng defendant after hearing, being perpetually enjoined from
'"^^K^lnging complainant's patent, duty demands the obtaining of
"^^^'-^xrt's opinion before employing a device which may Infringe.
lO^ U g 178-181, 27 L. 138. CLOUGH v. llANUFACTUBING CO.
^3-1. 1 {X, 367). More BlmpUfied patent held valid.
.^ -^^ pproved In Crown Cork. etc. Co. v. Aluminum, etc,, Co., 108
■^^*a.. 8G6, holding defendant's device may contain features supple-
r*^^Xiting and modifying another patent and it too be patentable and
*^*'«7ingable.
■"-O^ tl. S 181-183. 27 L, 129, OSBORNE ▼. COUNTY OF ADAMS.
Syl. 1 (X, 387). Grist-mll] not Included " Internal ImprovementB."
Approved in Dodge v. Mission Tp., 107 Fed. 831, 833, holding con-
^ti-uction of factory to manufacture sorgiium cane Into sugor,
^i^lng private, township bonds not issuable for this use under act
XJetmitting for public purposes; Great Western Nat. Gas &. Oil t.
"Hawkins, 30 Ind. App. 571. 60 N. B. 7R!). holding condemnation per-
mitted by statute, gas company must allege a public use and not
simply that real estate was necessary for Its pipe line.
100 U. S, 183-187, 27 L. 90, SCHOOL DISTRICT v. STONE.
Syl, 1 (X, 36S), Municipal bonds Issued wltliln authorized limit
Approved In Stanley County v, Coler, 190 U, S. 450. 23 Sup. Ct.
810, 47 L. 1134, holding purchasers of county bonds purporting au-
thorised Issue not entitled to assume, in sustaining validity, that
106 U. 8. 188-105 Notes on U. B. Reports. 47B
iDcompIeted railroad was begun before adoption of Gonstltatlon
antedating charter.
Byl. 2 (X, 368). Bonds valid notwithstanding municipal officer's
acts.
Approved in Clapp v. Otoe Ck)., 164 Fed. 481, holding recital
In municipal bonds authorized under statute, of issue under foil
statutory requirements, estops corporation defending action by inno-
cent purchaser; Hughes Co. v. Livingston, 164 Fed. 315, holding
bond recital stating compliance with authorized act permitting Issue
estops municipal body denying validity of same, every relative dnty
presumed to have been discharged.
Syl. 3 (X, 368). Notwithstanding recitals constitutional prohibi-
tions are showable.
Approved in Peck v. Hampstead, 27 Tex. Civ. 87, 65 S. W. 657,
holding where Constitution limits rate to be levied by city, pur-
chaser of bonds is required to take notice if such limit was reached
before issuance.
Syl. 4 (X, 368). Clear bond recitals estop corporation's deniaL
Approved in Clapp v. Village of Marice City, 111 Fed. 107, hold-
ing bond recital of paying certain village indebtedness under sec-
tion 2761, and referring to ordinance authorizing their Issuance, suffi-
ciently expresses purpose.
106 U. S. 188-190, 27 L. 156, SCHWBD v. SMITH.
Syl. 1 (X, 369). No a{)peal separate claim under |5,000.
Approved in Wisconsin Cent. Ry. Co. v. Phoenix Ins. Co., 123 Fed.
990, holding Federal Jurisdiction not involved, statute permitting
suit for single loss against several companies, liability being sepa-
rable and each under $2,000.
106 U. S. 191-195, 27 L. 131, FRASER v. JEMISON.
Syl. 2 (X, 370). Removal only in dififerent States citizenships.
Approved in Geor v. Mathieson Alkali Works, 190 U. S. 432, 23
Sup. Ct. 809, 47 L. 1125, holding separable controversy and diverse
citizenship existing between plaintiffs and two corporations as de-
fendants Justify removal to Federal court; Smedley v. Smedley,
110 Fed. 258, holding plaintiff suing H., E., and S.,* to recover land,
there being no separable controversy between plaintiff and de-
fendants, suit cannot be removed to Federal court; Broa\lway Ins.
Co. V. Chicago, etc., Ry. Co., 101 Fed. 509, holding insurance com-
pany seeking subrogation agniust railroad, latter cannot remove
on separable controversy, lumber company being indispensable
party in determining liability of railroad in causing fire; Colbum ^
V. Hill, 101 Fed. 505, holding equitable distribution of assets of in- -
solvent corporation between its creditors being single cause, suit zi
not removable, citizenship of some necessary defendants beings
47» Notes on U. S. Reports. 106 U. S. 196-251
idoxm^dcal with complainant's; Green v. Heaston, Recr., 154 Ind. 129,
'. E. 88, holding when the right to remove is claimed upon a
:s?ence in citizenship same must be alleged, it being insufficient
lege residence.
I S. 196-251, 27 L. 171, UNITED STATES v. LEE.
X 5 (X, 371). Taxation — Tender of unrecognized tenant not
)ted.
^^stinguished in United States t. Edmonston, 181 U. S. 508, 45
'8, 21 Sup. Ct. 721, holding money voluntarily paid to the gov-
lent cannot be recovered.
X 7 (X, 372). Sovereignty not suable without its consent
iproved in Coulter v. Weir, 127 Fed. 005, holding biU against
^or in official capacity to restrain collection of franchise tax
State is in effect suit against State and not maintainable;
Id Ck>pper Co. v. Freer, 127. Fed. 205, holding suit by West
':lnia corporation to restrain attorney-general from suing in
< of State to forfeit franchise is suit against State; Standard
X>roofing Co. y. Toole, 122 Fed. 652, holding State officers in their
■Mai capacity do not infringe patent used in capitol building
.use contractor had no license from patentee; Union Trust Co.
teams, 119 Fed. 793, holding suit against State attorney-general
lets performed in his official capacity is suit against State, and
iral court is without Jurisdiction; Sheriff v. Turner, 119 Fed.
'» 785, holding army officer acting under orders of secretary of
in constructing sewer, equity will not enjoin on behalf of
^r owner who claims injury from pollution; Bowker v. United
:<es, 105 Fed. 899, holding United States suing in admiralty for
ry to government vessel in collision, court will not entertain
8-bill against United States for damages; Smith v. The State,
734, 68 Pac. 643, holding State sues city, enjoining city
'lals from contracting expenditures beyond amount authorized
law, and majority of city council confessing judgment, same
binding.
rL 9 (X, 372). Ejectment against Federal officers.
l)proyed in McConnell v. Arkansas Brick Mfg. Co., 70 Ark.
» 69 S. W. 566, holding penitentiary commissioners who exceed
1 T authority in contracting with reference to convict labor may
^snjolned in performance of their unlawful acts; Hauns v. Cen-
^ Ky., etc.. Asylum, 103 Ky. 575, 45 S. W. 894, holding father.
^^3gh agent, the custodian of child, being negligent, contributing
^ death, he cannot recover under statute for his own benefit;
im Mills Co. V. Lord, 42 Or. 90, 69 Pac. 1036, holding State
:B)ly owning land on stream, its riparian rights do not include use
raters for the needs of 1,300 people in State institutions.
106 U. S. 252-314 Notes on U. S. Reports. 480
106 U. S. 252-255, 27 L. 145. RICHARDSON v. HARDWICK.
Syl. 2 (X, 375). Optiou vests no present estate.
Approved in Nelson v. Stephens, 107 Wis. 145, 82 N. W. 160,
holding plaintifif after expiration of option, agreeing to accept ten-
der of purchase money made by holder of option, with a condition,
not a binding option.
Syl. 3 (X, 375). Defendant receiving benefit unilateral contract
binds.
Approved in Dennis v. Slj'field, 117 Fed. 477, holding In libel for
breach of contract, a general allegation that libelants had at all
times performed requirements is sufficiently specific.
106 U. S. 255-260. Not cited.
106 U. S. 260-264. 27 L. 147. WALLACE v. PENFIELD.
Syl. 4 (X, 376). Missouri voluntary conveyance not fraudulent
per se.
Approved in Loy v. Rorick, 100 Mo. App. 113, 71 S. W. 844,
holding money given by husband to wife while not In debt and
invested by her In mill shares, property is hers and not subject to
his debts.
106 U. S. 265-271. Not cited.
106 U. S. 272-285, 27 L. 196, FINK v. O'NEIL.
Syl. 1 (X, 378). Generally no execution against exempted home-
stead.
Approved In Kean v. Calumet Canal Co., 190 U. S. 486, 23 Sup. Ct
662, 47 L. 1148, holding title to swamp land from Federal gOTem-
ment unaffected by resurvey of land covered by water at times of
original survey and patents granted under resurvey; Allen v. Clark,
126 Fed. 740, 741, affirming Claris v. Allen, 114 Fed. 375, 377, holding
though Virginia homestead laws apply to contract debts, and ex-
emptions not valid against State fine, exemption may be asserted
against fine due to Federal government; Thompson v. McConnell,
107 Fed. 36, holding State law exempting homestead therein from
execution is binding on Federal courts.
(X, 376). Miscellaneous.
Cited in Clarlt v. Allen, 117 Fed. 700, 701, holding Federal court
In Virginia reconveying judgment cannot levy on realty there,
since ** In like causes " does not give government right of State.
106 U. S. 286-314, 27 L. 117, MILTENBERGER v. LOGANSPORT
RY.
Syl. 6 (X, 380). Railroads — Preserving expenses have priority
over mortgages.
Approved in Boyce v. Continental Wire Co., 125 Fed, 742, hold-
481 Notes on U. S. Reports. 106 U. S. 280-314
Ing mortgagee not estopped claiming prior right to net earnings of
receivership as against Judgment creditors because It opposed use
of property providing earnings; Louisville & N. R. R. Co. v.
Afemphis Gaslight Co., 125 Fed. 99, holding complainant failing to.
allege dates and amounts of diversion or that they occurred within
time expenses accrued insufficient to give priority over mortgagee;
Southern Ry. Co. v. Ensign Mfg. Co., 117 Fed. 421, holding one
fc^nowingly furnishing car wheels for leased road, relying upon pay
io isixty days, has no preference over mortgagees, mortgage not in-
^^^'tKiiiig said road; Bank of Commerce v. Central Coal, etc., Co., 115
^^<1- 880, holding debts represented by receiver's certificate author-
i^^€X by court in administering railroad property have priority over
c-oD^^IJany's preferential debts; Bibber- White Co. v. White River,
R. R. Co., 115 Fed. 790, holding where property Is worth only
;'tandiug mortgage, equity court will not authorize receiver to
expenditures, same becoming first lien, without giving bond-
l*<=^l<-l«r8 hearing; Farmers* L. & T. Co. v. American W. Co., 107 Fed.
^^» 28. 30, holdinc: chancellor may take from income earned by
l^'ttr^r receiver to restore ironey diverted In payment of interest and
^^^^^cre-sspry engines by former receiver; Farmers' L. & T. Co. v.
ti'tlgart, etc., R. R., 106 Fed. 567, holding trustee suing to foreclose
^^tgage on railroad, receiver's certificates. Issue order by court
naeet relevant debts, same have priority over mortgage; Lee v.
nsylvania, etc., Co., 105 Fed. 408, 409, holding claims against
^tiroct railroad for supplies, maintaining Its earning capacity, and
X>x"eservlng its franchise gives preference from earnings of receiver-
ship over mortgage debt; First Nat. Bank v. Ewing, 103 Fed. 183,
**ol<ilng completion, maintenance, and Safe operation of railroad
*>elng necessary, court may' authorize contracting debts by receiver,
^^^ same takes precedence over prior mortgages; New York
^e^curlty, etc., Co. v. Louisville, etc., R. R. Co., 102 Fed. 393. 394,
^i«ling the burden of railroad receivership shall fall first upon the
^^•"Poratlon and then, In Inverse order, upon Its successive grantees
^^ ''a^ortgagees; Maryland Steel Co. v. Gettysburg, etc., Ry., 99 Fed.
J^^* 152, holding debt of electric company in rebuilding power-house
^^*^f oyed by fire does not permit court preferring payment in dis-
^ ^^iiig lien of prior mortgage covering entire property; Van Frank
'j ^irooks. 93 Mo. App. 426, 67 S. W. 691, holding one entitled to
^^'^tory lien upon property of Insolvent railroad and having legal
- ^^o^y could not intervene In foreclosure suit to secure a priority;
j^^^xruational, etc., Ry. v. Coolidge, 26 Tex. Civ. 600, 62 S. W. 1100.
^ing receiver paying taxes on all insolvent corporation property
^ X)rior lien over traffic lien on town lots not used In business,
^^^X>t for taxes paid thereon; Kampman v. Sullivan, 26 Tex. Civ.
"^^ ^ S. W. 376. holding receiver of railroad issuing certificates as
^^«rlzed, same became first lien on entire property and so re-
Vol. 11 — 31
Notes on U, 8. Beporta.
a D. S, 350-3C0
corporation for mnllcious prosecuilon when some has no office or
aigeacj In the State; Frawley v. PennsylvaDlo Cnaualty Co., 124
Fed, 2€2, 2G3. 2S5, holding aervipe of summons being Invalid, cor-
poration sued in another State maj quietly stand on Its rights and
attacli judgment when tried to enforce; Cady t. Associated Colonlen.
119 Fed. 423, holding Federal court on removal acquiring jurisdiction
over foreign corporation, same Is not limited hy laws of the State
nor decisions thereof under the service made; Moredock v. Klrby.
118 Fed. 185, holding nonresident doing business in another State
t»y so doing do?s not waive right to object to Judgment without
peracDBl service iif process; Doe v. SpringHeld, etc., Mfg. Co., IIH
Fe^a. 688, holding broker cot businesa agent within Cal, Civ. Code,
t 411, service upon him In admiralty suit inefFectual in giving juris-
diction over foreign corporation; M'Cord Lumber Co. v. Doyle, 1)7
F*«^ 23, holding fundamental rights of defendant not violated, mode
of strviee prescribed by State In obtaining Jurisdiction over foreign
corporation recognized Qy ITederal court; Watkina Land, etc.. Co.
v. Elliott. 62 Kan. 292, 02 Pac. 1005, holding mortgage-loan company
making securities payable at agency in another State, paying
*ame there, does business there, and service upon its officer is valid;
Abbe?I]Ie Electric, etc., Co. v. Western ElKttrleal, etc., Co., Gl S. C.
374, 39 s. E. 563, holding service upon agent of defendant corpora-
tloii ivhlle In the State attending to corporation businesa was good
■errloe.
^71. 2 (X, 366). Personal citation on agent binds corporation-
Approved In Brice v. Chicago, etc., Ry., 95 Tei. 65, 65 8. W. 31.
molding foreign corporation doing business in another State through
local company, service npou latter in suit for personal injury binds
5^»T>oratlon; Prick Co. v. Wright, 23 Tex. Civ. 342, 5S S, W. 610,
"ol^lug record showing defendant foreign corporation, uud allega-
**** of local agent In State proved, service valid though record doea
**' ahow corporation is doing business there,
^y]. 3 (X, 386). Corporation doing business, State's consent
"^^^^essary.
^proved In Bellly v. Philadelphia, etc., Ry. Co., 109 Fed. 350,
holding suit in admiralty. In personam, maintainable against
j^*~t>«ratlon of another State in any district In which service may
Ixad upon It; Howard v. Gold Iteefs, 102 Fed. 658, holding rail-
corporation is llbe other corporations in matter of residence,
^Eenship. etc., and may be citizen of two or more States.
^^1. 4 (S, 387). Reasonable statutory citation valid.
pproved In BIdred v, American, etc., Car Co., 103 Fed, 211,
Olng location of property in Kentucky conferred no jurisdiction,
^kaplainant and some derendnnts being citizens of said State, no
^^gaiioD that res Involved 1b within district; M'Cord Lumber
35a
*^»tt.
106 U. S. 950-^60 Notes on U. S. Reports. 4S4
Co. y. Doyle, 97 Fed. 24, holding mere withdrawal by defendant
company of its local office from Duluth, after contracting liability,
did not exempt it from being served according to local statute;
MUwauI^ee Trust Co., Recr. v. Germania Ins. Co., 106 La. 672, 31
So. 209, holding State may enact that those representing Insurance
companies within her limits shall be considered agents upon whom
service of process may be made; Aldrich v. Blatchford. 175 Mass.
371, 56 N. E. 701, holding foreign corporation employing attorney
to sue defendant In Massachusetts thereby assents to attorney's
receiving sufficient service in counter suit.
Distinguished in Smith v. Empire State, etc., Devel. Co., 127
Fed. 464, holding foreign mining corporation maintaining office in
Spokane subjects itself to service in action in Washlngtoi) courts
for injury committed In Idaho.
Syl. 5 (X, 387). Process — Business in State supports personal
Judgment
Approved in Conley v. Mathieson Alk&U Works, 190 U. S. 411,
23 Sup. Ct 730, 47 L. 1116, holding service of summons within
State on resident directors of foreign corporation insufficient in
giving Jurisdiction of corporation, business having ceased therein;
Louden Mach. Co. v. American, etc.. Iron Co., 127 Fed. 1009, hold-
ing insufficient to confer Jurisdiction on Iowa court service o
Illinois corporation president incidentally stopping in Iowa to ad-
Just claim in suit; Earle v. Chesapeake, etc., Ry., 127 Fed. 237
holding service on secretary in Pennsylvania of Virginia corporatioE
gives court no Jurisdiction where neither statement of claim, su
mons, praecipe, nor return allege operation therein; Central Grah
& S. Exch. V. Board of Trade, 125 Fed. 466, holding service upoi
agent of foreign corporation is not service upon corporation unles
it be engaged in business therein where agent is served; Ne
River Mineral Co. v. Seeley. 120 Fed. 200, holding Judgment r<
citing " process was duly executed on the defendant according
to law " is not conclusive, the record showing that statute wa
not followed; Eldred v. American, etc., Co., 105 Fed. 456, holdini
service of process on one who is merely shown to have beer-
director of such corporation two years previously confers no jurii
diction; Millan v. Mutual, etc., Assn., 103 Fed. 769, holding fo
eign corporation ceasing to do business in Virginia no long
amenable to Jurisdiction of courts of that State, under Code, § 1
Swann v. Mutual Reserve, etc., Assn., 100 Fed. 927, 928, holdin
bank simply receiving premiums due foreign insurance compa
for convenience of policy-holders does not constitute doing buslne
by company in the State; Eureka, etc., Co. v. California Ins.
130 Cal. 155, 62 Pac. 393, holding California corporation no long
doing business in Alabama, service upon its former agent
who defaults, Judgment would not sustain suit in California; Mn
tual Reserve Fund, etc., Assn. v. Boyer, 62 Kan. 34, 61 Pac. 38^1
-ua
V. 8. ilpports.
106 U. a. 3m-370
liolding rorelgn corporatlou having done buslneas In Kansaa not
5u»bJe ihere upon pulley elsewhere Issued. If before Issue it bad
(eased to do buslnesa in State. See 85 Am. St. Rep. 913. note.
Sjl. 6 (X, 389). Agent cited prima fade of authority.
Approved in Entauuel v. Feirls, 83 S. C. 121. 41 S. E. 25. hold-
Ins nonresident Indirlduals not reached by publication of suoi-
mons, and personal service thereof, wlien act Is personal and
not Id rem; Abbeville Electric, etc.. Co. v. Western Dlectrlcal,
eto., Ca. 61 8. C. 3S4, 39 S. E. DOT. holding service upon soles-
man visiting the State in relation to transaction out of which
suit arose Is good service upon foreign corporation. See 85 Am. St.
Rep. SOT, note.
lOe XJ. g. 360-370, 27 L. 201, VAN WYCK v. KNEVALS.
Syl. 1 (X. 389). Railroad potent Issued, Hue definitely fixed,
.Approved In Jamestown & Norlhern R. R. t. Jones. 177 XJ. S. 132.
*4 l^ 701. 20 Sup. Ct. 571. holding actual construction of rail-
road, although a profile mop of road has not been filed, is definite
l<»<^atioB under act of Congress 1875, granting land; TTnlted States
V- Oregon, etc.. R, R. Co,, 176 U, S, 42. 44 L. 3fH, 20 Sup, Ct. 265.
holding Dot filing map of general railroad route, but map of definite
location that precluded subsequent grant of lands to another com-
I>any; Collfornla Reduction Co. v. Sanitary Reduction Works. 1211
fed. 43, holding ordinance, under police power (or protection of
E>ablie health, is not unconstitutional In Incidentally giving one
person a monopoly In certain business.
Syl 2 (X. S90). Grant to Slate prevents raUroad grant.
Approved In Southern Pac, R. R. Co. v. Bell, 183 tl. S. 681. 48
** 38«, 22 Sup. CL 234, holding secretary of Inierlof not author-
ized to withdraw land from Indemnity limit prior tO any selectldn
**y TttUroad based on ascertained losses In plaee limits.
Syl. 3 IX, 390). Properly filing map definitely flXes rente.
Approved in Hewitt v. Schultz. 180 U. S. 151. 45 1.: 470, 21 Sup.
^^ 313, holding Id ejectment purchasers from railroad uf lands
'thin indemnity limits cannot offer certificate never recognized
*" land department, railroad never having made Selections; Tar-
^^y V. Madsen. 178 C. B. 223. 44 h. 1046. 20 Bup. Ct. S51, holding
■"^cord evidence, filing map with secretary of Interior and decla-
^*'ion or entry local land office, determines relative rights of
•"^llfond and eutryman respecting public lands; United States v.
^'otniiern Pac. Ry, Co.. 177 U. S. 441. 44 L, 838. 20 Sup. Ct 708,
''oldlng mere failure to complete railroad withlu period preserlbed
y Congress does not Ipso facto cause same to revert to govern-
'"•'nt, an act being esseotial; United States v. Chicago, etc., Ry., .
*** Fed. 972. holding Federal government iBSulng patent to rall-
'"**^**- a prior In^vidual right existing, government may sue to
lOG U. S. 371-;»>5 Notes on U. S. Reports.
cancel patent, and court will recognize equities of the parts
Utah, etc., R. R. Co. v. Utah, etc., Ry. Co., 110 Fed. 800, hole
two railroads claiming same route, that one Is prior In r
which definitely adopts the line and then files the map of 1.
tion so adopted; Southern Pac. R. R. Co. v. United States,
Fed. 923, holding railroad not "definitely fixed" until locaa
has been approved by company, preventing changes at option,
map of such location filed properly with government; Denve
R. G. R. R. Co. V. Wilson, 28 Colo. 10. 62 Pac. 845, holding-
though a settler has only an inchoate right in actual occupiM
he must be compensated if Ihie of railroad Is built across-
claim; Power v. Sla, 24 Mont. 250, 61 Pac. 470, holding def«Q&
claiming under forfeiture by plaintifTs cannot allege simply
they caused record notice of location to be made, same l>
mere conclusion; Toltec Ranch Co. v. Babcock, 24 Utah, 194
Pac. 879, holding defendant's adverse possession of twenty yi
being prior to railroad's filing certificate of location, defend
had title against railroad's grantee.
Distinguished in Manley v. Tow, 110 Fed. 250, holding no ti
to land in railroad, purchaser therefrom of piece in actual a:
open possession, same known to purchaser, latter not bona fl<
purchaser.
Syl. 4 (X, 391). Only government can object to railroad gnu
Approved In Walsh v. Columbus, etc., R. R. Co., 176 U. S. 480,
L. 553, 20 Sup. Ct. 397, holding proprietor of land crossed by can
contract of maintenance between State and Federal govemme
cannot sue State for default, he being no party to contract; Jot
v. Oemler, 110 Ga. 213, 35 S. E. 380, holding failure of lessee tn
State to comply with conditions working a forfeiture of lease, oi
the State can institute proceedings to reclaim the lands.
Syl. 8 (X, 392). Quieting title — Extrinsic evidence needed, o
veyance clouds title.
Approved in Chamberlain v. Baker, 28 Tex. Civ. 500, 67 S.
533, holding no cloud upon title, grantor seeking to enjoin Judgm*
creditor selling under execution, realty held by plaintiff un<
conveyance made and recorded before levy.
106 U. S. 371-379, 27 L. 232, EX PARTE CtlRTIS.
Syl. 2 (X, 393). Congress may prohibit political donations.
See 79 Am. St. Rep. 564, note.
106 U. S. 371-390. Not cited.
106 U. S. 391-395, 27 L. 219, LANSDALE v. SMITH.
Syl. 1 (X, 394). Unreasonable delay unexplained equity refu
relief.
Approved in Kessler v. Ensley Co., 123 Fed. 563, holding Fede
court of equity will not relieve against fraudulent conveyai
487 Notes on U. S. Reports. 106 U. S. 395-399
within the ten years allowed by statute in which to commence
action because of laches; Potts t. Alexander, 118 Fed. 886, holding
plaintiff's application to file replication nunc pro tunc after order
dismissing cause for failure to file same should be denied for un-
explained laches; Nash v. Ingalls, 101 Fed. 649, holding suit gov-
erned by State statute, one's laches due to inexcusable neglect do
not prevent bar by limitation; Phillips v. Piney Coal Co., 53 W. Va.
^ 44 S. B. 776, holding married woman statutorily authorized to
*<^ ii:^ respect to her separate property, places her on equal footing
^th teme sole regarding laches; Beecher v. Foster, 51 W. Va.
^7, -^2 S. B. 652, holding Statute of LimitaUons begins to run
Agaick^ implied trust from time wrong was committed by which
I>er8ox» becomes chargeable as trustee by implication.
Syl- 2 (X, 896). Forfeited lease unredeemable after forty-five
'^I>X>roved in DeRoux t. Girard, 112 Fed. 96, holding heirs of
ffiort^^agor cannot impeach mortgage for fraud forty years after
mort^^age was executed and thirty-three years after foreclosure and
****» X>06sesslon having been notorious; Old Times Distillery Co. v.
^■«^^^, etc., Swasey, 104 Ky. 620, 47 S. W. 611. holding two dis-
^**"^' concerns using same brand ten years, one cannot claim un-
J^^^^-In prior right against other, latter having spent large sums
^^^^ertislng same; Wampol v. Kountz, 14 S. Dak. 338. 85 N. W.
^^ folding one passively permitting another to purchase in good
*^^^ unoccupied land cannot assert title thereto after thirteen
v®**"^^, vendor's forgery having been knowingly concealed; Scott v.
^^lixich, 24 Utah, 389, 67 Pac. 1071, holding deceased locator of
^_ '^^ permitting others to work same for fifteen years, adminis-
cannot hold patentee as trustee, deed of mine being lost and
<» 394). Miscellaneous.
.,^^ti«d in Marshall v. Hall, 51 W. Va. 580, 42 S. E. 646, holding
-^j^*** purchasing $12,000 farm, paying $9,000 and giving receipt for
^/^^^^^ legacy left him in trust, same remains lien against land for
^^>^I'8 benefit.
^^ Xj. S. 395-399, 27 L. 00, KING v. CORNELL.
X 1 (X, 396). Repeals by implication are not favored.
X^proved in The Adula, 127 Fed. 858, holding Rev. Stat, SS 4664.
I "^ « ^ giving district attorney sum not exceeding $3,000 for services
^^^ize cases beyond legal compensation not repealed by general
^*^ Iry act; Roberts v. Pacific, etc.. Ry. & Navigation Co.. 121 Fed.
holding plaintiff suing in his own State may sue citizen of
her and an alien as defendants In Federal court under Judiciary
of 1887-88; Lloyd v. Supreme Lodge K. of P., 98 Fed. 71. hold-
subsequent change of conditions of life insurance policy per-
106 U. 8. 399-137 Xotee on U. S. Reports.
II P I II M
leatH ■ ^in
milted by by'laws depend upon whottaer disease canslng deatC ~
became fatal before or After by-lawa took effect.
Syl. 2 (X, 397). Removal — Aliens not permitted by IS75 act. '
Approved In Roberts v. Paclflc, etc.; Co., IM Fed. 577. hoIdlDg^^B. f,
nltbougli time for fillog petition expiring, State court may perml f .i^^^lt
amendment of removal petition if allegation shows cltizeosblp n ■ w nf
petitioner to be same ns at commencemenL ^
100 U. S. 399-420. Xot cited. I
100 D. 8. 429-432. 27 L. 237, GRANT v. PHCENIX INS. CO. I
Syl. 1 <X. 400). Appeal and error— Decree must be final oiiMrii ^"
merits.
Approved In Mercantile Trust Co. v. Chicago, etc., B. B. Co., 12^ ii— -
Fed. 392, holding decree directing delivery of property, or an ac ?=»--^^'
counting and to pay rent for use. Is Interlocutory and not Bnnr -*^ ■*'
decree and appealable; Brodhead t, Mlnges, 198 111. 516, 64 N. E ^— ^ '
DOS, holding decree foreclosing mortgage and cause retained I
court for reasonable time to clear title not Bnal decree and m
appealable.
Syl. 2 (X. 401). Appeal and error — No sale ordered decree n(
final.
Approved In Parmele v. Schroeder, 61 Nebr. 561, 65 N. W. 565.. «
holding decree not final and appealable until court bas finally de '
termined and disposed of entire controversy, leaving only minis ^s^"
terial functions.
106 U. S. 432-437, 27 L. 230, WOODENWARE CO. v. UNITED
STATES,
Syl. 1 (X, 401). Damages for conversions.
Approved In Pine River Logging & Improvement Co. v. United
States. 186 U. S. 293, 204. 40 L. 1171. 22 Sup. Ct. G25. holding per-
son knowingly purchasing timber unlawfully cut from Indian reser'
vatton, damage recoverable by Federal government is value of
logs when delivered; United States v. McKee, 128 Fed, 1004, hold-
ing defendants taking bark from public domain due to mistake In
survey and without knowledge of mistake liable only for stumpage
value of bark; Sweeney v. Hanley. 126 Fed. 103, holding Idaho
statute permits majority owner of mine to mine same and account
to minority owner for net proceeds, but oBly in absence of wrong-
doing; Potter V. United States, 122 Fed. 53, holding one making
homestead entry In good faith intending to acquire same, govern-
ment cannot recover value of timber cut from land and sold to
purchaser; Powers v. United States, 119 Fed. B87, holding one's
ignorance to keep record as legally required will not be held for
added labor and espense value for converting timber from public
land; United States v. Homcstake Min. Co., 117 Fed. 482, 485.,
it»-«— ^ '
Notes on U. S. Reports. 106 U. S. 432-437
bolting in action for willful trespass for co verting public timber,
der^mdant may prove that act was committed in honest belief of
1 right; English v. United States, 116 Fed. 627, holding statute
rding unlawful cutting of public timber " with intent to ex-
poirt: or dispose of same " does not authorize persons to cut for
priva.te use; United States v. Price Trading Co., 109 Fed. 244.
ing timber unlawfully cut from public land, claimed by govern-
agent, cannot be soJd, giving title to railroad, though it could
h.SL\r^ cut same later; United States v. Teller, 106 Fed. 451, holding
d&ock^^ige for cutting railroad ties on government land will be value
oZ -fcxrees on land If trespass was unintentional, and value of ties
if ira.'tientional; Gentry v. United States, 101 Fed. 54, holding Federal
action for conversion of timber from public land, cut in belief of
la^^r^-mil right, liab41ity will be value of timber in its original place;
Ctolca^n Reward Min. Co. v. Buxton Min. Co., 07 Fed. 422, holding
coin.xxion-law rules assessing damage may be changed by State
8ta,t:"tate, regarding wrongful conversion of personal property therein
loeaa^^d and Federal court will enforce same; Birmingham Mineral,
®tc.^ Co. V. Tennessee, etc., Co., 127 Ala. 147, 148, 28 So. 682, hold-
i^fir '^iSmber willfully cut and made into ties and sold, owner of land
^®^^ *"eeover from purchaser the value of ties at time of purchase;
-A.lt^. M. & S. Co. V. Benson, etc., Co., 12 Ariz. 366, 367, 16 Pac. 567,
*^^^^-»g measure of damages for wrongful extraction of ores is
^^^^^ on dump, less cost of hoisting; Central Coal, etc., Co. v.
Heo.x^ Shoe Co., 69 Ark. 304, 63 S. W. 50, holding purchaser from
**^^ "Wrongfully cutting timber ties on plaintiff's land liable for
^^^^ at time and place of conversion and 6 per cent, interest;
-^ l*^**«ntee Trust, etc., Co. v. Drew Investment Co., 107 La. 257,
^^^. 739, holding partnership wrongfully selling timber of third
^^''^^>ii to innocent purchaser, latter held for value of stump, he
^-^^ng, former for value after reaching market; Missouri, K., etc.,
^iJo. of Texas v. Starr, 22 Tex. Civ. 356, 55 S. W. 395, liolding
ier*8 timber, cut without his authority, its value, based upon
tlon when purchased, is recoverable in hands of innocent pur-
sr; Chappell v. Puget Sound Reduction Co., 27 Wasli. 67. 01
fit Rep. 822, 67 Pac. 392, holding purchaser of standing timber
continues cutting in good faith after expiration of contrnot.
;e is value of timber standing at time of conversion; dissent-
^^pinion in Teller v. United States, 117 Fed. 585, majority hol<l-
^ payment of price vested in "M." the equitable title to land
^^lation as of the date of application, including ties cut there-
^^^tingulshed in United States v. Anthony R. R., 192 U. S. 542,
^lip. Ct. 339, holding measure of damages for timber cut by
on public lands, in belief that such were adjacent, value
^tue and place of cutting.
p
W 100
I
I holi
I
I or 1
U. S. 437^57 Notes on U. S. Reporta. 4» *
100 U. 8. 437-*45. 27 L. 208. MINTURX V. UNITED STATES.
Syl. t (X, 403). Importer's bond inaures payment custom daties.
Appi-oved la Uogue v. State es rel., 2S Ind. App. 287. C2 N. E. 657,
liolaiiig luchea of clly couDcil lu re-electing the detaulting treasurer
uieinlH^r of hl'IiooI board doefi Dot relieve blE aurc-tles on ground j
or Ills ineligibility.
108 U. 8. 445. 440. Not cited.
lOfl U. S. 447-157, 27 L. 226. STEEL v. SMELTING CO.
Syl. 1 (X, 401). Unoccupied tou-n iiLte public domain permitted m
mined.
Approved In Boeknnger v. Foster. 190 U. S. 125, 23 Sup. Ct. 839. ,<
47 L. 070, holding bomesteuder cannot maintain suit against trusteea ^^a
Loldlng town site lands In trust under 1300 aot for site occupants, . «
Federal government retaining title until conveyance.
Syl. H (X, 404). Public lands — Patent unassailable except by dl M
rcct proceedings.
Approved In King v. McAndrews. Ill Fed. SGt, holding patent of "^fc*
Iniid within lis Jurisdiclzlon evidences Judgment of liind department'^V' ->
and constitutes conveyance of legal title Impervious to collateral *r ,»
attacks; James v. Germanla Ins. Co.. lOT Fed. 601. holding one at- — -^
tacking patent or decision or department for mistake of fact mu3t^K~-E
prove such In every particular before department before court will J"--^
consider original Issue; Cosmos, etc., Co, v. Gray, etc.. Co., 104 Fed. _ ^
44, holding court Is without Jurisdiction to determine rights of '-■- "
paitlea In land, the title still In United States, and contest Still K ->
pending in land department; Kansas City M., etc., Co. v. Clay, 3 ^t^
Ariz. 328. 329, 29 Pac. 10, holding under Rev. Stat., i 2258, reserv ~
Ing from pre-exemptlon lands on which known mines exist, fact of — •-
aucb mines may be shown In ejectment against patentee; Rogers -^^
V. De Cambra, 132 Cal. StH, 00 Pac. S&4, holding where panics In -^
ejectment are same as In former proceeding In land department, >— -
and facts same. Judgment of department for plaintiff was con- —
elusive; Standard QuidEBllrer Co. v. Hablshaw, 132 Cal. H9. 04 =*
Pac. 115, holding where defendants bad no rights affected at time "^
of issue of patent It Is no concern of theirs whether land was prop- -'~
erly disposed of; Calhoun Gold MIn. Co. v. AJas G<)ld Min. Co., 27
Colo. 29. BO Pac. BIS, holding receiver's receipt Issued prior to loca-
tion of tunnel site, which was prior to Issue of patent, does not ^
permit collateral attack by tunnel owner. See 75 Am. St Rep, 882.
SyL 4 [X, 407). Special tribunal having authority Sndlngs con-
clusive. __
Approved In Bailey v. WUeford, 126 Fed, 807. bolding where
defendant elects to litigate whole matter in State court and having
fully presented bla entire case, Federal court will not take ]uri»-
Notes on U. S. Reports. 106 U. S. 447-457
^icrtrion; In re Shig Tuck, 12G Fed. 395, holding Chinese applying for
a.<lixmlssion to our shores, making no claim to citizenship or failing
I>r^ve same, inspector's adverse decision is absolutely conclusive;
ton V. Haggart, 120 Fed. 828, holding auditor and governor of
are empowered to determine parties entitled to swamp
laxid. granted State by act of CJongress, 1850, and Issue patents
for; Small v. Rakestraw, 28 Mont 419, 72 Pac. 748, holding
of secretary of interior, that residence for voting in one
prec^inct precludes residence in another for homestead purposes,
tlio-^jK^h wrong court cannot interfere; Small v. Lutz, 41 Or. 578, 69
. 827, holding secretary of interior holding lands applied for
^5ct to homestead entry was conclusive over previous State
^olciijig same swamp land; Altschul v. Clark, 39 Or. 328, 65 Pac.
C3o, holding State granting right of selection to road company,
latt^^^:» filing in local land ofllce, government title did not pass until
«'PI>:r^oved by secretary of interior; Schendell v. Rogan, 94 Tex. 595,
® ^5« W. 1005, holding when commissioner sold land classified asf
** ^ * <^ultural land his acts are conclusive upon the State and are
^^^ subject to revision.
S^X 7 (X, 407). Patent illegally issued void all time.
-^-X>prov«d In Ledbetter v. Borland, 128 Ala. 423, 29 So. 580, hold-
curt is not prevented from treating as void patent which ap-
- on its face as issued without authority, and extrinsic proof
!* ^-^^ missible in proof; Plpln v. Lautman, 28 Ind. App. 78, 62 N. E.
' ^^=^lding fraud to vitiate a Judgment must be extrinsic to the
^^^'•^^r tried in the case; Power v. Sla, 24 Mont. 250, 61 Pac. 470,
J ^^ing allegation simply that record notice of location of mining
^-^""^^ was filed does not signify verification as required or recor-
In proper county.
1 8 (X, 406). Patent false testimony attacked direct proceedings.
p '"^^^^iproved in Peabody Gold Min. Co. v. Gold Hill Min. Co., Ill
821, holding one not having claim at time of issue of patent
^ — -^ot maintain suit to set aside patent on ground of fraud prac-
on land department.
1. 9 (X, 409). Improvements knowingly no title no estoppel.
X^proved in Rood v. Wallace, 109 Iowa, 11, 12, 79 N. W. 451, 452,
^ng act to quiet title to land in plaintifl^'s possession, State's
X* —ion of intervention should be dismissed. State having no title,
^^'^^gh pladntlfif fails to prove his; Crabtree v. Bank, 108 Tenn. 495,
*^ W. 800, holding both parties thinking sale of land valid,
'^d of levy disclosing flaw, equitable estoppel to claim reliet
list sale does not arise by acquiesence.
•L 12 (X. 409). Public lands — Ejectment fraud no defense se-
ig patent
0^ -X>proved in Phillips v. Carter, 135 Cal. 606, 87 Am. St. Rep. 154.
^^ac. 1032, holding in ejectment defendants cannot give evidence
i V. S, 458-^87 Notea on D. S. tleporta.
Ill defcnttag patent ualesB ttey coanect tUemselveB with tbe i» '
mount source or title, or claim superior equities.
(X, 401l. MlBoellHneoue.
Cited In King v. McAiidiewa, 111 Fed. 865, holding an ati^^'^-
upon pBlcnt not only being collaterdl but aa Interposition of ftj*" -c^'
tuble defense to legal cause, same not permissible In Dationul o
106 U. S. 458-464, Not cited.
106 U. S, 464, 466, 27 L. 302, CLAHK v. KEITH.
Syl. 1 (X, 410). Appeal and error — No re-ex a ml nation
suit same matter.
Approved lu Guarantee Co. of North America v. Phenix Ins, Co., - -
124 Fed. 174. holding one securing Judgment granting all retief '^
sought cannot maintain writ of error or appeal to reverse or modify "*
it or to review Tormer proceedings; Teiaa. etc.. By, Co. v. Wilder, ■
101 Fed. IDS), .holding questions once considered and decided liy
au appellate court will not be re-examlnetl on a subsequent appeal
or writ of error In the same case.
106 U, S. 466, 467, 27 L.. 207. MORRILL v, JONES.
Syl. I (X, 411). Treasurer may regulate operation of revenue law.
Approved In In re Page, 128 Fed. 318, holding paragraph 473, tariff
act 1S&7, admitting free animals for breeding purposes, Includes
importation Into United States of Percheron horses by Canadian
dtlKen; Van Lear v. Elsele, 126 Fed. 827, holding Arkansas Hot
Springs being Federal property, Congress may del^nte power either
expressly or by implication to secretary of interior to regulate same;
Brubl V. Wilson, 123 Fed. K>8, holding collector of port ot entry of
imported goods Is custodian of such goods until payment of duties
thereon, and treasury department cannot change statutory effect;
Dlmmlck v. United States, 121 Fed. 643. holding regulations ol
treasury department regarding deposit of Federal money under
Rev. Stat, i 5482, same are admissible in prosecution under said
statute: United States v. Maid, 116 Fed. 651, holding departmental
regulation requiring nonmlneral affidavit in homestead entry, one
does not commit perjury In mailing false affidavit, same not being
material; Hoover v. Sailing, 110 Fed. 47, holding courts may In-
terpret statute contrary to Interior department when letter's con-
Etiuctlon Is clearly wrong, thus changing rights created under sucb
statute.
106 U. S, 46&4S7, 27 L. 270, BRANCH v. JESUP,
Syl. 3 (X, 412). Charier permitting railroad may snil franchise.
Approved In New Albany Waterworks v. Louisville Banking Co.,
L22 Fed. 780, holding corporation organt»^-d under general s
to supply water to municipality la quasi-public and can exercise no
tuthorlty which is not expressly conferred by statute; Blue Mt.
liKS Notes ou U. S. Reports. 106 U. S. 48T-G0J
Forresl Assn. v. Borrowe. 71 N, H. 77, 51 Atl. 873. holding Btocb-
liolder cannot be permitted to retain tfie stock and enjoy the bene*
HtH incident to Ita ownership without Incurring tbe burdens thereof;
Coal Creek Mln., etc., Co. v. Tennessee C. etc.. U. R. Co., lOfi
Tenn. 675, 62 S. W. 107, holding corpornlion having Btatiitory
Prirtlegc to dispose oF properly to amount business of corporation
■"equlres. lease Id excess not questioned except by State.
Syl. 6 (X, 412). Railroad — Mortgage after acquired property
•^OTer-s branch.
approved la Central Trust Co. v. Washington County R. B. Co..
*^* T^a. 817, holding railroad mortgage describing property
***etber now ht'ld or aL-qiilred by mortgagor," malies such mort-
®^ cover main branch line BubseQuently purcliased by mort-
'■*C, Hi). Miscellaneous.
,^?>ted In Coal Creek Min., etc., Co. v. Tennessee C, etc., K. R. Co..
^7* Tenn. 67B. G2 S. W. lOS, holding in absence of an enabling
I t<3te quasi-public corporations cannot mortgage, sell, or lease
Tranchlaes or corporate property essential to Its operation.
*"^ U. S. 487-504, 27 U 233, PARKBRSBDRG v. BROWN,
^yl. 2 (X, 413). City cannot help manufacturing enterprise.
Approved in United States v. Capdevielle. US Fed. 815, holding
*-jOalslana drainage acts authorizlug special aHsessment against New
'^Heans for drainage costs. In absence o[ provisions otherwise, au-
■^horlzes levy of special tax also; Dodge v. Mission Tp., 107 Fed.
*32, 833, holding township bonds Issued to promote sugar manu-
facture and act of legislature authorizing Issue are t>eyond the
powers of each and void, being private use.
Syl. 3 (X, 414). Bonds void no estoppel or ratlflcation.
Approved in Clarke v. Town of Northampton, 120 Fed. 662, hold-
ing municipal bonds void In tlieir Inception for want of iHsning
power, payment of Interest thereon, however long, no ratlflcation,
estopping pleading of Invalidity; Great Western NaL Gas & Oil Co.
V. Hawkins. 30 Ind. App. 508, 00 N. E. 7CS, holding condemnutlon
proceedings by gas company in laying pipe line must show fur-
nishing of gas to public and not that realty is necessary for pipe
line: Opinion of the Justices ot the Senate. 175 Mass. COO, 57 N. E.
070, holding the power to give rewards after the event for con-
.'ipicuous public services, if It exists at all, cannot be limited to
military service; Yates v. Taylor County Ct., 47 W. Va. 388. 35
S. E. 2S. holding Judgment of a court ordering or confirming a
donation made out of county treasury without lawful authority la
void, and will be prohibited.
Distinguished In Travelers' Ins. Co. v. Mayor, 69 Fed. 669, 670.
holding city giving bonds payable to bearer for stock in foreign rail-
J
juul bank using money obtain *•* ]
ot escape liability by setting i-^^_:t^*
rs. T. Irvlue, 126 Fed. 693. liok:^ iS-
liMJ U. S. 5&5-521 Xotes oil U. S. Reports
road, purchaser coDDot enforce payment agnltist clly In any
the contract being absolutely void.
Syl. 4 (X, 414). Bonds void, city not trustee, repayment
Approved In Aldrlch v. Chemical Nat. Bank, 17G U. S. 630
L. 615, 20 Sup. Ct. 503, holding national bank u.slng money obtala
by Its vice-president as a loan c
absence of direction; Board ot C
Ing bona flde purcbasera for full value ot county bonds in payment o ^^
outstanding warrants are eubrogated to rights under warrants.^
though bonds were void; Coffin v. Board of Comrs.. 114 Fed. 521.— -
holding fact that money paid on bonds iKsued to fund Indebted- --
ness did not directly reach the treasury of county cannot avail as ^
a defense: Geer v. School Dlst, 111 Fed. 690, holding purchaser '
of void school bonds from original taker succeeds to anme right o(
recovery on Implied obligation which original purchaser from dis-
trict enjoyed; New York Life Ina. Co. v. Board of Comrs., 99 Fed.
852, holding county Issuing bonds under statute subsequently de-
clared uncoDBtitutlonal and erecting building, bondholders may
tollow property Into which money has gone and secure restitution;
Equitable Loan Co. v. Waring, 117 Ga. 633, C3T. 44 S. E. 336, 337.
holding mere tact that an enterprise depends for Its success, to some
extent, on forfeitures and lapses, not alone sufficient to render the
scheme unlawful; Municipal Security Co. v. Baker Co., 31 Or. 401.
65 Pnc. 371, holding though county could not be constitutionally
tenant In common of realty, suit to recover five-eighths of really
on warrants outstanding is not precluded: Tennessee Ice Co. r.
Halne, 107 Tenn. 15B, 64 S. W. 30, holding fact corporation pur-
chases goods under ultra vires contract Is insolvent does not pre-
vent seller repudiating contract and suing for proceeds of goods
received by corporation.
106 U. S. 505-519, 27 L. 130, CLARKSON v. STEVENS.
Syl. 1 (X, 415). Instalments paid, ship completed, title passes.
Approved In The John B. Ketcbam, 97 Fed. 878. holding person
paying Instalments on vessel being built gets no title till com-
pleted and delivered, though he purchases machinery himself and
places therein; Yukon River, etc., Co. v. Gratto. 136 Cal. 540, 542,
60 Pac. 253. holding defendant constructing barge for plaintiff
paid as work progressed, and defendant complied, plaintiff paying
only part, title did not pass enabling plaintiff bringing trover.
106 U. S. 519-521. 27 L. 265. TATTERSON v. LYNDE.
Syl. 1 (X, 415). Capital stock trust fund for creditors.
Approved In Joues v. Mutual Fidelity Co., 123 Fed. 513, hold-
ing absence statutory authority general unsecured legal creditors,
having no Judgment, cannot, on ground ot Insolvency, maintain bill
to appoint receiver to distribute corporation's aaseta.
Not
1 U. S. Reports. 106 U. S. 521-J
DisUaealshed In Wyman v. Bowman, 127 Fed. 2()1, 203, uphold-
ing contract between corporation nnd majority directors, latter ad-
vauoicg money to pay debis and former giving preference OTer
utiier creditorB.
Syl. 2 (X. 41G). CorporatloQS — Subscriptions port asaets. col-
lectible by corporation.
■A^tiptoveA Id Taylor v. Cummings, 12T Fed. 110, holding under
Hu«-,i'B Kev. Stat. 1S!)3, chap. a2, declaring stockholder's liability.
'*'&'*iber8 of Arm organizing corporation, innocently adopting book-
kecf^n-f'g erroneous valuation, not liable for deficiency; Falco v.
Ka uplsch C, etc., Co., 42 Or. 424, 70 Pac. 287, holding under Oregon
CoiistltutJon unpaid subacrlptlons on corporation capital stock pass
''■^ other assets to bankrupt trustee, be being only party to bring
***"'i«eedlngs thereon. •
^jl. 3 {X. 416). Creditors enforce unpaid subscriptions in equity.
-Approved lu Brunswick Terminal Co. T. National Bank, 99 Fed.
r^^. holding action in Maryland by stockliolder against stockholder
*^ <jeorgia corporation. Statute of Limitations of latter State govern
^ tlioee of Maryland differ.
■'-*^ U. S. 521^25. Not cited.
^^■'^ D. S. 525-532, 27 L. lf!3. UNITED STATES v. STONE.
Syl. 4 (X. 418). Surety liable during collector's term.
Approved In Kirk v. United States, 124 Fed. 3S3. holding since
^^Ire facias on forfeiting recognizance is an original process in
^X)ecial proceedings, latter's doubtfulness Jnstifles granting Injunc-
tion pendente lite, restraining marabal's execution sale; Harvey r.
XJnlted States, 97 Fed. 455, holding fragmentary transcript from
treasury department books covering only portion of term, insufll-
<2lent to warrant Judgment against his sureties thlrty-tliree years
ftfler term expired.
106 U. S. 532-535. 27 L. 209, SUELTON v. VAN KLEECK.
(X, 418). Miscellaneous.
Cited In Halsted v. Forest Hill Co., 109 Fed. 823, holding bill of
review will not lie In Federal court of equity after the time for
taking ao appeal has passed.
lOfl U. 8. 536. 537. 27 L. 204, UNITED STATES v. DEXVIR.
Syl. 1 (X, 419). Officer Improperly refusing disbursement Interest
charged.
Approved In United States v. Butler, 114 Fed, 582, holding suit
to recover funds abstrac;ed from disbursing officer without his
knowledge, and deriving no benefits, no demand proved Interest
prior to writ not recoverable; Newport Wharf, etc.. Co. v. Drew,
141 Cal. 108, 74 Pac. 690, holding trustees of public Joining with
contractor In suit by materialman not liable to latter for Interest
lOti U. S. 537-^558 Notes on U. S. Reports. 496
in funds held by them; Maloy ▼. County Gomrs., 10 N. Mex. 650, 62
Pac. 1107, holding county treasurer failing to pay balance to his
successor liable for interest thereon from default, but he is relleyed
if county gives receipt in full.
106 U. S. 537-542, 27 L. 300, DETROIT v. DEAN.
Syl. 2 (X, 420). Corporations — Directors positively refusing
stockholder may sue.
Approved in Corbus v. Gold Mining Co., 187 U. S. 462, 23 Sup.
Ct. 100, 47 L. 259, holding bill for injunction for corporation's benefit
which it could not have obtained or any other individual similarly
situated proves futile; Dickerman v. Northern Trust Co., 176 U. S.
188, 44 L. 429, 20 Sup. Ct. 313, holding corporation may give in good
faith bonus to purchasers of bonds, and dissenting stockholders can-
not have deduction of par value of stock from bonds; Redfield t.
Baltimore & O. R. R. Co., 124 Fed. 931, holding foreign corporation
owning majority of domestic corporation stock not suable as trustee
in fraud by stockholder of domestic, if latter is of State with coai'
plainant; Elkins v. City of Chicago, 119 Fed. 958, 959, holding cor-
poration citizen of same State, stockholder cannot enforce corpora-
tion rights, his demand and refusal of directors being formal only.
106 U. S. 542-645. Not cited.
106 U. S. 546-551, 27 L. 254, PIERCE v. INDSBTH.
Syl. 2 (X, 421). Courts judicially notice notarial seals.
Approved in East Building, etc., Assn. v. Williamson, 189 U. S.
125, 23 Sup. Ct. 529, 47 L. 739, holding decisions of one State re-
garding corporations thereof not given same force and effect in
another State involve constitutional denial of full faith and credit;
Barber v. International Co., 73 Conn. 602, 48 Atl. 764, holdhig
certified copy of recovery of judgment in California is admissible
in Connecticut against insolvent corporation for application of
receiver.
106 U. S. 552-558, 27 L. 273, TURNER v. FARMERS' LOAN &
TRUST CO.
Syl. 2 (X, 421). Federal court lacking Jurisdiction remands cause.
Approved in Strang v. Richmond, etc., Ry. Co., 101 Fed. 515, hold-
ing action for breach of contract until damages have been ascer-
tained and legal remedy exhausted, equity can have no Jurisdiction;
Colburn v. Hill, 101 Fed. 507, holding subsequent suit commenced
in Federal court, though consolidated with another removed there,
cannot affect jurisdiction of court over removed suit though other
was remanded.
Syl. 6 (X, 422). Confirmation sale appeal only report examined.
Approved in Mootry v. Grayson, 104 Fed. 617, holding decree, no
lack of jurisdiction upon face, modifying former decree, regarding
Notes on U. S. Reports. 106 U. S. 558-^593
^flitions of sale, same cannot be collaterally attacked in separate
U. S. 558-577. Not cited.
U. S. 678-583, 27 L. 249. ELGIN v. MARSHALL.
yL 2 (X, 424). Jurisdictional limitation involves no collateral
j:)proved in M'Kee v. Gliautauqua Assembly, 124 Fed. 811,
ing bill of nonstock corporation member showing that mis-
agement will possibly cause loss of property exceeding juris-
lonal amount. Federal court will restrain ultra vires acts; Gowell
<Z31ty Water Supply Go., 121 Fed. 57, holding value in dispute
L^^itloning Jurisdiction of Federal court is amount complainant
L.Kns or that which defendant will lose if the complainant succeeds;
t.^le V. Atkinson, 115 Fed. 387, holding Arkansas court determin-
possession of property' without regard to ownership, Federal
L^rt therein has no jurisdiction, allegation of value being $5,000.
, 424). Miscellaneous.
«ed in Waite v. Santa Cruz, 184 U. S. 328, 46 L. 568, 22 Sup. Ct.
'^ holding where plaintiff does not own bonds or coupons, but
«~^s them for collection, the same cannot be united to give Federal
^ ^diction if each is below necessary amount.
► U. S. 583-585, 27 L. 207, PAGE v. ALABAMA.
^1. 1 (X, 426). Fourteenth Amendment implies nondiscriminat-
criminal penalties.
T)proved in State v. Montgomery, 94 Me. 204, 47 Atl. 1G8, holding
-utory provision discriminating between citizens and aliens
rding peddlers is obnoxious to Fourteenth Amendment of Gon-
^tion, hence is void.
Brl. 2 (X, 426). Gonstitutional law — Discrimination adultery
^e and black valid.
_pproved in People of State of New York v. Bennett, 113 Fed.
holding New \ork law discriminating between records of wages
e on certain race courses and those made elsewhere is not
gnant to Fourteenth Amendment to Constitution.
U. S. 586-589. Not cited.
U. S. 589-593. 27 L. 298, THOMPSON v. PERRINB.
i^l. 4 (X, 427). Coupons payable bearer holder not assignee.
pproved in American Colortype Co. v. Continental Co.. 188 U.
^07, 23 Sup. Ct. 266. 47 L. 405, holding Federal jurisdiction on
^ ^" ^rse citizenship of foreign corporation suing State residents not
^^^ated, as domestic corporation assignee where new agreement
'^'^^ made from old terms; Waite v. Santa Cruz, 184 U. S. 324, 46
VoL 11 — 32
106 U. S. 594r-612 Notes on U. S. Reports. 488
L. 507, 22 Sup. Gt. 335, holding transferee of bonds for collection not
of Federal Jurisdiction under congressional act of March, 1875, nor
obtainable by uniting, separate amounts being too small; Loeb y.
Trustees of Columbia Township, 179 U. S. 486, 45 L. 288, 21 Sup.
Gt 180, holding under judiciary act of August, 1888, assignee of
corporation choses in action payable to bearer may Invoke Federal
jurisdiction, irrespective of citizenship of original holder.
106 U. S. 594, 595, 27 L. 265, PRAY v. UNITED STATES.
Syl. 1 (X, 427). Weigher ** when employed " not paid Sundays.
Approved in Montgomery v. iEtna Life Ins. Go., 97 Fed. 919,
holding '* general manager " on stationery as company directed and
performance of duties not usually performed did not imply promise
on part of company to pay additionally.
106 U. S. 596-605, 27 L. 251, RED ROCK v. HENRY.
Syl. 1 (X, 427). Statute — Irreconcilable conflict latter repeals
former.
Approved in United States v. Hampton, 101 Fed. 715, holdin
Rev. Stat., § 4716, regarding pensions, was not repealed by implion —
tion by act of June 27, 1890; Fair Haven & W. R. R. Co. v. Fai^
Haven, 75 Conn. 447, 53 Atl. 962, holding where two acts are reacs
together and the burden of railroad assessments for street i
provements is unchanged, there is no repugnancy or repealing; Doai
V. Board of Gomrs. of Logan Co., 3 Idaho, 46, 26 Pac. 170, holdins
a strained construction of Constitution not required nor permltt
in order to worlL the repeal of statutes not clearly repugnant theret
Syl. 3 (X, 428). Statutory construction — Imputation of bad fait!
Approved in Territory v. Wingfleld, 2 Ariz. 308, 15 Pac. 140, hoh
ing under Ariz, act 1885, fixing school superintendent's salai
at $600, and prol)ate judge's, also ex officio superintendent, at $2,
in full, entitled judge to ^2,600.
106 U. S. 605, 606. Not cited.
106 U. S. 607-612, 27 L. 286, PORTER v. UNITED STATES.
Syl. 1 (X, 428). Navy must act alone securing bounty.
Approved in The Manila Prize Cases, 188 U. S. 267, 23 Sup.
420, 47 L. 471, holding vessel of Federal navy men armed pri
pally for defense, though within signal distance of a capture,
entitled to participation in prize money.
Distinguished in Dewey v. United States. 178 U. S. 517, 44
1173, 20 Sup. Ct. 983, holding in determining superiority or
feriority of enemy's vessels destroyed, size and armaments,
together with number of men upon same, alone determine amo
of bounty money.
Notes on U. S. Reports. 106 U. S. 6ia-644
TT. S. 613-C20, 27 L. 295, ALBRIGHT v. TEAS.
1 1 (X, 429). No removal royalties not involving patent
xaprovecl In Excelsior Wooden Pipe Co. v. Pacific Bridge Co.,
TJ. S. 286, 46 L. 913, 22 Sup. Ct. 682, holding patentee by
er putting in issue title to patent Federal Jurisdiction not
because licensee was trying to prove contract concerning
^xlt; Standard, etc., Co. v. Leslie, 118 Fed. 559, holding patentee's
"to recover royalties on machines made by defendant within
3 diction of State, although defendent understood incidentally
ontrovert plaintiffs evidence as to patent construction; Ather-
Jdach. Co. v. Atwood, etc., Co., 102 Fed. 954, holding validity
contract involved in suit for infringing patent, not being one
een parties to suit, it is collateral, and not within Federal
i ^diction; M'Mullen v. Bowers, 102 Fed. 496, holding parties
^^S of same State, and question of infringement being dependent
on^ , c^^nstructlon of contract, Federal courts were without jurisdic-
tioi:^; Kurtz v. Strauss, 100 Fed. 801, holding Federal court has
J^o J^irisdiction, under patent laws, where bill by patent-owner seeks
B1>o<?Ifle performance of contract regarding manufacture of same;
A-^l^^rton Mach. Co. v. Atwood, etc., Co., 99 Fed. 114. holding
of same State cannot prove ownership of patent in Federal
of equity by virtue of Federal patent laws; Carleton v. Bird,
^^ ^*^e. 188, 47 Atl. 155, holding grantee of two letters-patent can-
^ot maintain action in her own name against defendant for violat-
^^ Covenant In contract between defendant and her grantor.
^^ tJ. s. 620-622. Not cited.
^^ tJ. 8. 022, 623. 27 L. 311, COUNTY OF MADISON r. WARREN.
f^j^ 1 (X, 430). Written stipulation waiving jury precludes
'^^^^aiuination.
^^^t>«-©ved in Ham v. Edgell, 106 Fed. 822, holding questions de-
. ^^ ^t trial in Federal court on writ of error cannot be re-exam-
^ • I'^cord not afl3rmatively showing jury was waived by writ-
^^^ si:ipulatlon.
^^ '^. S. 623-629. Not cited.
S. 629-644, 27 L. 290, UNITED STATES v. HARRIS.
106 XJ,
yi. 2 (X, 431). Courts presume Congress observes delegated
^ '^^Proved in Karem v. United States, 121 Fed. 259, holding act
^^^er In its terms than constitutional provisions, courts can-
HiQit act by construction, and bring it within the constitutional
^.^^^t of power; dissenting opinion in State v. Smiley, G5 Kan.
^^» 276, 69 Pac. 210, 211, majority holding "anti-trust law" not
^^nfllct with guaranty of right to acquire property by lawful
8. BepotW- ot-
S ^^'^'^'iX ^°^^'C-an. ^^^.Si^^'^t tor J^ «a^
^PV^S^^oVdiuJ^teudtu^^J States -t, ^^trt^^^'^V.
*=^**rteeBtV^ ^^'t statute de«>^«« ^''LV^^*
■85^- * r ♦evs-?^^^*^^ State toaS *« ^^pect to
^'^''^ 20 SUP- ^',„,potatVo« ^';I,cieUa«. 2 2. ^S^^.X^*'**-
4* ^- ^'ot tove\g«J^f states v. ^ ^ ^^'^'L „,\a\ng P*'*^'
oral >»u®^ «<u\ttee»* '^ ._ an? t*''^ riVR^^ „i
•e"^*'^''! else ot V«ape'^*>
10 00 ottoe^
501 Notes on U. S. Reports. 106 U. S. ^7-679
1(^ U. S. 647. 648, 27 L. 08, THE STERLING.
Sjrl.. 1 (X, 432). Vessels at fault, damage apportlonable.
Api>roved in The Mallng, 110 Fed. 239, holding vessel free from
faille injured through concurring faults of two others, damage
shonl^^ be apportioned between them in discretion of court
106 TJ. S. 648-660, 27 L. 211. FITZPATRICK v. FLANNAGAN.
Syi, 2 (X, 432). Partnership — Creditor has legal and equitable
rt gilts.
-A^I>proved in In re Green, 116 Fed. 120, holding, under Code
'owai, § 1317, tax levied against firm becomes individual debt
°^ r>«i.rtner, and, under bankrupt act 1898, § 64a, is preferred claim
agair^st bankrupt's estate; In re Keller, 109 Fed. 120, holding sole
Part:xier continuing business, agreeing to meet debts and becomes
^^^^I'vent, creditor cannot prove claim except on surrendering pref-
^'"^*=^'tial payments during insolvency.
^^"l. 3 (X, 433). Surviving partner continuing answerable deceased
reproved in Millhiser v. McKinley, 98 Va. 209, 35 S. E. 446,
c>lci:Ing deed of partnership property, being prior to bankruptcy
^^^» secured the firm creditors by giving preference, and was valid.
1. 5 (X, 434). Knowingly made false promise not defendable.
:X)proved in Simon v. Goodyear, etc., Co., 105 Fed. 580, hold-
if rubber company's agent In contracting meant plaintiff to
^rstand that its five factories had quit, which was not true,
same was fraudulent.
U. S. 661. 662. Not cited.
U. S. 663^668, 27 L. 307, CHICAMING v. CARPENTER.
yl. 4 (X. 435). Towns — Bonds issued after sixty days valid.
ee 89 Am. St. Rep. 632, note.
U. S. 608-672. Not cited.
U. S. 672-679, 27 L. 271, HAYWOOD v. ANDREWS.
^ Syl. 1 (X, 435). Equity — Assignee cannot enforce assignor's
^"^al right.
Approved in Eau Claire v. Payson, 107 Fed. 556. holding city
^^'^ing rent to water company, legally enforceable, and action being
^^uitably assigned by mortgage, does not give assignee right to
^ ^Ue thereon in equity.
Syl. 2 (X, 436). Patent — Assignee cannot sue Infringement in
equity.
Approved in Excelsior Wooden Pipe Co. v. Seattle, 117 Fed. 145.
holding patentee granting exclusive right to manufacture and
• 106 U. 8. 670-702 Notes oq U. S. Reports.
Bell patent article, within specIRed terrltorj, grantee (
for inrrlngemeat one Belling tbereln what was manufactnrE^^^^^^-ed
ODtalde.
106 U, S. 678-C99. 27 L. 258, GAY v. PARPART. J
Syl. 4 (X. 437). Partition dct^ree In equity orders conveyance. ~~^
Approved In dlaeentlng opinion in Helnze v. Butte, etc., Ml _^^^^l^
Co., 128 Fed. 27. majority holding In suit partitioning mlalu ^^k^he
property, ownership of one Interest lieing In dispute, court luii ■ ",'
appoint receiver, cotenante still ululng, if necessary to protect all.
Syl. 6 (X, 437). Consent decree not res judicata.
Approved In National Foundry, etc., WorltB v. Oconto City, etc^ >* -^-^
Co., 113 Fed. mi. holding pending Federal suit to establish m ^r-m-^f^
cluinic'B lien, property In defendant's poHsesaion, State court ca^E^ ■=" -^•'
foreclose mortgage thereon, and Federal decree not binding absei*: -^^=^'''
mortgagee.
106 D. S. 700-702. 27 L. 266. GRAND TRUNK RY. v. CUMMINGK ^^^^
8yl. 1 (X. 438). Subsequent testimony waives objection dfrectin*:=» -**
verdict
Approved In McCrea v. Parsons, 112 Fed. 919, holding Jury walve-^^
In Circuit Court whleh finds generally only, appellate court ca -*-^^^
consider only the rulings made during trial to which eKCeptlon ^-^'^^
have been preserved; Mexican Cent. Ry. v. Glover. 107 Fed. S&d^^-"'^^
holding refusal of peremptory Instruction for defendant at clos- ^^^^^
of plalntlfTB evidence was proper, if wheo requested defendnn ^^-^^^
had not rested; Greenfield v. Johnson, 30 lad. App. 130. 65 N. E^^^^^^^^^^^
543, holding party introducing evidence on his behalf, after court -''"'
has ruled adversely to his motion that court direct verdict, walve^^^^^^^
right to consider ruling on appeol; Rhodius v. Johnson, 24 Ind — ^^
App. 403, 56 N, E. 943, holding trial court refusing to direct ver -^"
diet for defendant on plalniifC'a evidence cannot be Independent::^^^^^-^^
assignment of error, but remedied only by motion for new trials- ■" 'j
Barabaaz v. Kabat. 91 Md. 58. 5B, 46 Atl. 339. holding Introduction ^
of evidence after his motion to direct verdict close of plalntlfTs __^
case bad been denied, defendant waived any error In denial or "
such motion: Matthews v. Clough, 70 N. H. 601. 49 Atl. 638. hold- _
Ing where plaintiff excepts generally to an instruction, It la not ^
sufficient to raise the ground that such Instruction was Inconsist-
ent with other instructions given; Bopp v. New York, etc.. Transp.
Co., 177 N. Y. 30. 69 N. E. 123, holding Joint defendant In negli-
gence suit moving for nonsuit and on denial, excepting thereto.
and subsequently introducing evidence waives refusal of nonsuit.
Syl. 2 (X, 438). Master and servant — Railroad and servant con-
tributing railroad liable.
Approved In Deseraut v. Cerlltos Coal B. R. Co., 178 n. S. 421.
U It. 1133, 20 Sup. Ct. 972, holding act of Congress, March 3,
303 Notes on U, 8. Reports. 106 D. S, 700-702
1891. makes It Imperative tbat mloeoTCDer keep same free from
£as, beiK^e not relieved hj workman disregarding Inatructlona;
Cudahp Packing Co. v. Aatlies. 117 Fed. 120, boldlng master's neg-
ligence in not furnishing proper elevaior appliances, negligence
of fellow servant in operating same will not prevent Injured ser-
vant rei-overlng; Choctaw, etc., R. R. v. Holloway. 114 Fed. 462.
holding iuatructlon that rnltroad was hable for injury resulting
rrom brakes on engine unless plaintifT knew and assumed the
risk of Uieir absence was proper; The Anchorla, 113 Fed. 085, hold-
">g sblp.Jndder rungs projecting so that loading appllnnces were
liable to catch, gangwayman having no knowledge, was owner's
''uty to give him notice; Baltimore, etc., R. R. v. Camp, 105 Fed.
-^f. holding negligence due to train dispatcher, instruction prop-
f^y refused In taking question of plalnflfTs violating rules from
jury, an^ directing for defendant because conductor was negli-
gent; Felton V. Harbeaon. 104 Fed. 740, holding master Uable for
'njury to servant, negligence of vicft-prlaclpal being proslmate
"ontriliutlDg cause, though negligence of fellow servant was also
contributory; Maupin v. Texas, etc., Ry., 09 Fed. 51, holding t
* ^ Eiegllgence, conlributing to Injury of bis
0 defense
by
f^®' fellow servants were also guilty of negligence which ^-
•"Ibut^d thereto; Dobson v. New Orleans, etc., R. R. Co., 52 La.
***»- 1133. 27 So. 072, holding foreman of work train injured
^**Hlsion, accident contributed to by conductor's abandonment
p ^•'^In. defendant not relieved by fellow-servant rule; Hayes
i^^^^^rlck Steams, etc., Co.. 130 Mich. 293, 89 N. W. 050, hold-
•^ *gligence of fellow servant not warning plaintiff, instruction
'':>reaian to pass over trapdoor, did not relieve defendant that
J, ** negligence alone was proximate cansc; Noble v. Bessemer
. ^^Hiship Co., 127 Mich. 113. 86 N. W. 524, 89 Am. St. Rep, *39.
'i-lng fellow servant who had charge of work, having knowledge
<3etect of certain tool, will not relieve employer tor Injury ;o
^**t>loyee caused thereby; Gulf. etc.. Hy. v. Powell. 25 Tex. Civ.
^^> 60 S. W. 980. holding where switch foreman's negligence
^^Used derailment of tender injuring lirokeman, dangers of such
*-*ftlure were not among the assumed risks of appellee's service;
Missouri, etc.. Ry. v. Hanntg, 20 Tei. Civ. «50. 49 S. W. 117, hold-
ing if the negligence of railroad boss and that of fellow serranta
oacb had a share In producing the Injury the defendant would
lie liable; Howe v. Northern Pac. Ry., 30 Wash. 580. 70 Pac. 1104,
holding a fireman who was injured by a collision of two trains
cannot be held a fellow servant of both or either conductors;
Sroufe V. Moran Bros. Co., 28 Wash. 401, (iS Pac. 902. holding
negligence of servant appointed by foreman to give signali
Ing death of plaintiff's intestate, does not relieve defendant, said
servant being vice- principal; Costa v. Pacific Coast Co., 26 Wash.
Id I
i
107 U. S. 1-20 Notes on U. S. Reports.
142, 6C Pac. 400, holding gas tester being the representative o(K
principal duties of defendant was not fellow servant of plaintiff,
and to refuse to charge otherwise was not error; Nelson v. Wil J
ley, SS., etc., CJo., 26 Wash. 554. 67 Pac. 239, holding negligence
of mate as principal in not warning plaintiff that he was Intending
to drop gangplank upon the deck caused the injury.
CVII UNITED STATES.
107 U. S. 1-3. Not cited.
107 U. S. 3-20, 27 L. 340. EMBRY v. PALMER.
Syl. 1 (X, 441). Acceptance of money as bar to appeal.
Approved in Southern R. R. Co v. Glenn, 98 Va. 319, 36, S. E.
holding where decree is entered for less than party claims, recelvi —
payment of sum so decreed is not waiver of errors nor estop
from appealing from decree as to sums not allowed.
Syl. 8 (X, 442). District of Columbia Supreme Court — Ju<
ments.
Approved in Deposit Bank v. Frankfort, 191 U. S. 516» hoi
adjudication of Federal court establishing tax exemption contrj
though based on State court judgment, Is equally effectual as
adjudicata as though Federal court had reached its conclusion ^
upon an original question; Hancock Nat. Bank v. Famum, 176 U *
645, 44 L. 622, 20 Sup. Ct 508, holding Circuit Court judgni^
against corporation which by laws of State where renaered Is bL
ing on stockholders must be given same effect in another Stat
suit therein against stockholder;. Union & Planters* Bank v. Citv^^
Memphis, 111 Fed. 572, holding where by State law judgmen^^i:^
tax suit was conclusive only as to particular taxes. State judgnr^ ^^^^
pleaded in Federal court would be given such effect only, not\w^ M^ '^^
standing Federal rule; Babcock v. Marshall, 21 Tex. Civ. 148-^ ^^
S. W. 729, holding owner of foreign judgment by fraudul&xx. "^^^J
violating promise to dismiss it, pursuant to agreement for se'ti
ment, may be denied recovery on equity principles authorial
remedy by injunction, in suit on such judgment in this State.
94 Am. St. Rep. 533, noto.
Syl. 4 (X, 442). Equitable relief against judgment.
Approved in National Surety Co. v. State Bank, 120 Fed. 59-
holding Federal equity court may enjoin State court from enfor*^
ing unconscionable judgment; Holton v. Davis, 108 Fed. 149, detei^-
mining insufficiency of evidence of fraudulent conspiracy betweei^
S.
e-
500
Burgess V. SeUf
r V. S. 20-38
an idnjiDJslrator, as pInlDtlfT In an actloa. lila counsel, and tbe
tlefcndiiDt. to JuKtIfy eojoining defeDdnnt from avHlllng lilmself
of bencJit of Judgment: Pittsburg, etc.. Ry. v. Keokuk, etc., Co.,
107 Fed, 786, holding bill of review on ground of fraud iii obtaining
decree should ehow how complalnanta were put on inquiry as lo
alli'geil tarts, by what menus tUey learned them, or why by exercise
oC ordinary prudence they might not have been made before litiga-
tion tipgun; Spokane, etc., Min. Co. v. Pearson, 28 Wash. 12fi, 68
fac. KS, refusing to enjoin default Judgment though good defense
exists, where defendant failed to make defense through negligfuce.
107 U. 8. 20-38, 27 L, 35», BURGESS v. SELIGMAN.
Syl. I (X. 443). Liability of pledgee of stuck to corporation's
cretlUors.
A;ipn)ved in Northern Assur. Co. v. Grand View BIdg. Assn., 183
V. S. 348, 4fi L. 230. 22 Snp. Ct. 148, arguendo.
Diatlnguiehed In Hurlburt v. Arthur, 140 Cal. 111. 73 Pac. 737.
taolOing under Civ. Code, 9f 321. 322, exempUon of holder of bank
stock as collateriil security from liability to creditors can only be
^''ailed of, where it appears on face of corporation's books that he
bolds stock only as pledgee; Wentworth Co. v. French. 178 Mass.
*^. 57 N. E. 700, holding under Pub. Stat., cbap. 105, i 25, providing
'•"St stock eertiflcate issued as pledge shall bo state and give
P'eOgor's name who alone shall be responsiltlc as stoehholder, when
^*^*'Qcate stated That it was beld as security for Its note, but
Qol state that he was pledgor, pledgee could vote stock.
^yi, 4 IX, 444), Co-ordinate Federal and Stale Jurisdiction.
. -^Ouroved in United States Sav. & L. Co. v. Harris. 113 Fed, 35, 36,
<*«<J|>3g {.'ederal imurt not hound to follow State court deciaions in
vnlning Jaw governing loan, between loan association of one
and member restdliig In State wbere court la sitting. secured by
'^•^tsage on l^ml In latter State; Davis V. Mills, 90 Fed, 42, hold-
* C'omp. Laws Mont., p. 728, i 400, requiring corporations to
^4nlly Ble Qn.iucial reports and making trustees of one who does
l.luble for Its debts Tiot penal statute, so as to permit enforce-
'** * out of Stall! of trustee's liability thereunder.
^^1. 5 (X. 444). Courts — Binding effect of State decisions,
^^ Xiproved In Board of I,i<iuidatioa v. Louisiana ei rel. Wilder,
* U. S. 038. 45 L. 334, 21 Sup. Ct. 200. holding sale of city bonds
(^_ *^^ ay debts ot Nuw Orienus school board in oliedience to command
^ ^*-^. Const. 1838, art. 317, does not Impair obligation of prior con-
(^^^ ■^-"rts of city with holders of Its bonds who were entitled to payment
^^ of proceeds nf ad valorem tax from which also the new bonds
^^~~**t be paid: Lneb v. Trustees of Columbia Township, 179 U. S.
^^ : 45 L. 291, 21 Sup. Ct 183, determining validity of Ohio act Gen.
(lid
'u
1
107 U. S. 20-38 Notes on U. S. Reports.
AsB^m,. April 27, 1803, providing for making of street ln]proTenieii.«tK^
nnil Isauimce of towu bonds to pay for them; Wnrburtun v. Wbll^^^a- ,_
ITtt U. S. 400. 44 L. 553. 20 Sup. Ct. 409, holding Wash, act IBOET*- '
giving adtnlnlstmtion and dl^poaltlon of eommunlly property t:*~
hiisUnud. did not destroy cotumutilty system of propeny: In c^
Stalker, 123 Fed. 9C4. holding under bankruptcy act. 5 648. provid!n«7»- j
that nil taxes legally due and owing by bankrupt shall be entltl^^ ^
to preferred payment, city is entitled to preference in payment •-
ossessments levied (or local improvements; Hale v. Coffin. 114 Fe-^^ ■
570. determining right of action of receiver appointed in one Sta »— i-
to Rue legatee of stockholder In another State to recover asscssmeiz:^ ^
Fred Miller Brewing Co. v. Capital Ins. Co.. JH Iowa, 589, 82
W. I02C. upholding Rev, Stat., misc., i 2891. authorizing clerk
enter judgment, default Judgment In vacation; National Foundf ,■
etc.. Works v. Oconto City, etc., Co., 113 Fed. 70C, arguendo.
Syl. 6 (X, 446). State statutory construction contrary to pr ^^-
Federal.
Approved In Security Trust Co. v. Black River NaL Bank., E. M
U. S. 22C, 23 Sup. Ct. 57. 47 L. 154, holding nonresident owner
claim against decedent's estate cannot maintain suit against adm
Istrator In Federal court, where suit If brought In State court i
have been barred; Board of Comrs. v. Travelers' Ins. Co., 128 F"~
824, upholding county bonds valid at time of isauance accord^ — » ^^^
to law as settled In State courts at that time though holding sut^^^ ^e-
quently reversed; Great fio. Fireproof Hotel Co. v. Jones. 116 J" " ^sa-
71)9. upholding Ohio mechanics' lien statute of April 13, 1S94. glv-^* ^***
independent lien to subcontractors; Brunswick, etc., Co. v. Natlo — *-^^^
Bank, 112 Fed. 810, holding Federal court need not follow St- -:^^'^*
decision construing stature relating to stockholder's liability, wh„ ^^^re
trniisftction before it, upon which liability Is asserted, occurred pm^ — :*or
to such construction, and correctness of decision aubsequei^B- "^'^
doubted by court which made it; Southern Pine Co. v. Hall, 105 F^^^^*^'
02, holding where under Miss, act of 1871, corporation was auttr*^ ^or-
Ized to receive swamp land patents from State on filing bond v*^ :S^t*
sureties approved by governor, and bond was filed, signed by C«=^**''
sureties but not by company and approved by governor ^«- ^**
patents Issued, nnd later legislature recognized validity of pat^^ ^^'^*'
company took title; Clapp v. Otoe Co., 104 Fed. 47B, toldlog bw*:^*^*
issued by board of county commissioners in Nebraska on vot^ *^
electors of precinct under Comp. Stat. Nebr., E9 3518-3520, are bc»«=^*^'
of county Issuing them; dissenting opinion in Bucki & Son Luin ■ — ^'^^
Co. T. Fidelity, etc., Co., 109 Fed. 407, majority bolding under £' * ^'
Itev. Stat. 1892. { 1646, reasonable attorney's fees expendeil ^^*
defendant In procuring dissolution of attachment, aside from lla ^^^^^^
expended for trial of main case, are recoverable as damaged ,
action on attachment bond.
50T
Burgess y. Seligman. 107 U. S. 20-^8
I>ist:Iiigui8hed !n Wetzell y. Paducah, 117 Fed. (>51, holding act
Ky. Vlarch 17, 1870. making it unlawful for Judge to submit more
^Ji One tax proposition at any one election, does not apply to
bond election ordered by city council under charter.
^y^ 7 (X, 446). Federal construction of State statute.
^Pr^tr-oved in Stanley County v. Coler. 190 U. S. 444. 445. 23 Sup.
^ ^X-i, 47 L. 1131, 1132, affirming 113 Fed. 708, holding North
^rolixia decision construing statute and holding invalid county
niiiroQ.^ aid bonds, which had been issued thereunder and sold to
^*^a. fide purchaser, is not binding on Federal courts; Yazoo & M.
J- ^- B. Co. V. Adams, 181 U. S. 583. 45 L. 1012. 21 Sup. Ct. 730,
^•^^r* mining tax exemptions under Mississippi statutes; Freeport
J^^er Co. V. Freeport, 180 U. S. 595, 597, 45 L. 687. 688, 21 Sup. Ct.
^^» 497, holding act 111. of April 9, 1872, empowering cities to con-
^^^ with water companies for supply of water for public use for
f^^^iod not exceeding thirty years, and 111. act April 10, 1872, era-
ering cities to authorize construction and maintenance of water-
^^:k8 at such rates as may be fixed by ordinance and for period
^ot more than thirty years, did not authorize contract giving
pany right to charge certain rate for thirty-six years; Mitchell v.
^t Nat. Bank, 180 U. S. 481, 45 L. 632, 21 Sup. Ct 422, holding
ranee in State court of claimant against insolvent's estate
^Dse claim is denied by highest State court precludes claimant
thereafter proceeding against insolvent in Federal court in
begun before proceedings in State court begun; Board of
^^^ncilmen v. Deposit Bank, 124 Fed. 24. holding Circuit Court
ee based on estoppel created by State judgment, and which has
XI affirmed by Supremo Court, will not be reversed because State
reversed judgment of estoppel, where when rendered such
^^ent was in accordance with State decisions; Bancroft v.
^comico County Comrs., 121 Fed. 882. holding Code Pub. Gen.
^%¥8 Md., art 23, §§ 187, 188. providing that on sale of railroad
er mortgage purchaser shall be authorized to form corporation
all powers and immunities of original owner, passes to succeed-
corporation tax exemption; City Water Supply Co. v. City of
mwa, 120 Fed. 314, holding where Circuit Court of Appeals in
by taxpayer determined that contract made by city was void,
decision is binding on Circuit Court in subsequent suit between
parties involving different contract but one made pursuant
^ame ordinance, notwithstanding contrary State decision; United
8 Sav. & L. Co. V. Harris, 113 Fed. 38, holding Federal court
bound to follow State court decision in determining law govern-
^oan, between loan association of one State and member residing
^tate where court is sitting, secured by mortgage on land in
1^ State; Independent School Dist v. Rew, 111 Fed. 11, determin-
107 U. S. 38-102 Notes on U. S. Reports.
•
ing validity of tnunicipal bonds containing recital of issuance pur —
Buant to legislative autliority for purpose of refunding municipality*!
debt; Philadelphia v. Atlantic, etc., Tel. Co., 102 Fed. 258, holdfn
where defendant contests validity of city ordinance on grounc^
that license charges imposed by it are unreasonably high and
tiff's evidence shows large additional expenses incurred by city, b^
reason of defendaiit's poles and wires, and this evidence is not b;:
defendant, court slould direct verdict for plaintiff; Southern Ry.
North Carolina Corp. Com., 09 Fed. 165, construing S. C. rallroa
commission act of 1891.
107 U. S. 38-59. Not cited.
107 U. S. 59-63, 27 L. 383. PEOPLE v. COMPAGNIB OENERAL^ -f— .^
TRANSATLANTIQUE.
Syl. 1 (X, 450). Commerce — Tax on alien passengers.
Approved in Austin v. Tennessee, 179 U. S. 344, 373, 45 L.
238, 21 Sup. Ct. 132, 143, upholding Tenn. act of 1897, prohlbltli
importation of cigarettes; Williams v. Fears, 110 Ga. 591, 35 S.
701, upholding act of 1898, taxing emigrant agent
107 U. S. 64-84. Not cited.
107 U. S. 85-89, 27 L. 328, SCHMIDT v. BADGER.
Syl. 1 (X, 451). Duty on bottles containing dutiable articles.
Approved in Smith & Co. v. United States, 124 Fed. 292, hol<
bottle filled with articles dutiable under tariff act 1897, are
dutiable under paragraph 99, schedule B, section 1, chapter 11
said act.
107 U. S. 90-97, 27 L. 367, HALL v. MacNEALE.
Syl. 1 (X, 452). Patents — Sale as prior use.
Approved in Swain v. Holyoke Mach. Co., 109 Fed. 158,
affirming 102 Fed. 914, holding construction for and absolute
to customer of turbine wheel and its installation in factory
purchaser for use therein more than two years prior to applicat::^
for patent constitutes prior use defeating patent.
Syl. 2 (X, 452). Patentable Invention.
Approved in Rodiger v. Davids Mfg. Co., 126 Fed. 965, hol^ 3
void for laclc of novelty Rodiger patent for paste cup, consisting'
cup with two compartments, to accomplish softening of mucll
by evaporation of water.
107 U. S. 98-102, 27 L. 413, GREEN BAY, ETC., R. R. CO.
union; ETC., CO.
Syl. 1 (X, 452). Corporate liability on ultra vires contract
■ Approved In Richmond Guano Co. v. Farmers', etc., Glnnc
119 Fed. 710, holding notes given by corporation, created to b
and operate cotton-seed-oil mill and operate ginnery in connect
f.
S09
K01f8 u
tlier«?"lUi to manipulate cott
m atmfuctured by anotber ar
Town, etc.. Co.. 103 Ky, 150, i
tt> liold oorporatJoQ liable on
U. S. IteirortB. 107 U. S. liG-l:^!
11 seed for fertilizers, for fertillBers
void; Hhorer, Recr. v. Mlddlesboro
: S. W. 440, holding In action seeking
guarantee dividends on
I rtiarter provlnloiia authorla-
lOT D. S. 102-110. 27 L. 325, MYRICK v. MICHIGAN CENTRAL
B. B. CO.
Syl. 1 (X, 454(. Duty of connecting carrier of cattle.
Approved in Texas & P. R. R. Co. v. Relas, 183 U. S. G25. 46 1...
3W>. 22 Sup. Ct. 25,'>, holding cotton unloaded by connecting car-
rier at its pier, without giving notice of its arrival to succeeding
<?arrier, does not await Turtiier conve.vanee wltbln bill of lading
relieving carrier from liability otber tUan as warehouseman "while
said property awaits further conveyance;" Pennsylvania Co, v.
DIcksoii, 31 Ind. App. 45S, 07 N. E. S40. holding erroneous in-
struetlon fn damage suit against railway for failure to deliver
BtoobL, that connecting carrier was defendant's agent for whose
rtelnys defendant was liable.
Syl. 2 (X. 4^5). Liability of connecting carrier beyond own line.
Approved In St. Louis, etc., Ry. v. Ewlng, 114 Fed. 1020, following
rule; Farmers' L. & T, Co. v. Northern Pac. R. R. Co.. 120 Fed.
^"^"^ t fcolding receivers authorized to continue business of railroad
'^**'**PHtiy may contract tor transportation beyond line of their road
*■*** assume liability tor entire distance over connecting lines; Taffe
*"- *^«'egon R. B. Co., 41 Or. 03. 71. 117 Pac. 1017, holding carrier.
•»»»«3er contract, not liable for loss beyond its own iine; disHentlng
"S>Jnion In Ireland v. Mobile, etc.. R. R.. 103 Ky. 410. 49 S. W. 454.
._ ^Jority holding carrier Issuing through bill of lading becomes
j.^**'* for injury to goods in transit, whether such injury occur on
**Wii or connecting lines.
^'. 4 (S, 455). Courts — State decision on contract of carriage.
J '^X'Droved in Independent School Dlst. v. Rew. Ill Fed. 11. de-
jj '**litlng validity of municipal refunding bonds having certificate
ji * they are issued pursuant to authority of statute; Plttman v.
^^*>lHc Ei. Co., 24 Tei. Civ. 5S7, B9 8. W. 950, holding where law
^- ^tnte when contract of carriage is made, though It be for Inter-
^. '^^ shipment, forbids carrier from limiting common-law liability,
^ ■**ilatlon In such contract limiting carrier's liability to certain
^^ cegardless of value la void.
Tj. S. 110-123. 27 L. 3-'S4. BUSH v. KENTUCKY.
^^S-J. 1 (X. 453). Effect of quashal In Circuit Court o
removal.
in State court; Rodman i
t prejudice not
J
107 U. S. 123-161 Notes on U. S. Reports. 610
way Co., 65 Kan. 648, 70 Pac. 6i3, holding when Federal court dis- _
misses removed suit without prejudice. State Jurisdiction may again
be invoked.
107 U. S. 123-126. Not cited.
107 U. S. 126-132, 27 L. 330. POTTER v. UNITED STATES.
Syl. 1 (X, 457). Liability of receivers for moneys — Irregularities. ^
See 91 Am. St. Rep. 559, note.
107 U. S. 132-147, 27 L. 332, HOFFHEINS v. RUSSELL.
Syl. 2 (X, 457). Patents — Mechanical equivalents.
Approved in Milwaukee Carv. Co. v. Brunswick, etc., Co.,
Fed. 188, upholding Lochman patent, carving machine, combinin
new elements with old elements arranged in novel manner.
107 U. S. 147-161, 27 L. 431, MONTCLAIR v. RAMSDELL.
Syl. 2 (X, 458). Statutes — One subject embraced in title.
Approved in Detroit v. Detroit Citizens' St. R. R. Co., 184 U. S.
46 L. 609, 22 Sup. Ct. 419, holding provisions of Mich, street rallwa
act of March 27, 1867, making act applicable to corporations
like character already organized, is within object of act as e:^
pressed in title; Geer v. Board of Comrs., 97 Fed. 438, uphold!
Colo. Sess. Laws 1889, pp. 31, 32, entitled **An act to enable
several counties of the State to refund their bonded debt whia
was matured or may hereafter mature, and to issue bonds in sat^
faction of Judgments and matured bonds;*' Cook v. Marshall C
119 Iowa, 399, 93 N. W. 377, holding Code, § 5007, providing
assessment of tax against any person dealing In cigarettes, a
the real property within or whereon same are sold and manner
collecting same, is sufficiently expressed in title, "An act to revi
amend, and codify the statutes in relation to crimes and their punir
ment; " In re Kol, 10 N. Dak. 498, 88 N. W. 276, upholding La
1897, chap. 87, entitled "An act relating to societies organized
purpose of securing homes for orphans or abandoned, neglected,
grossly ill-treated children, by adoption or otherwise, and provld
rules for regulation of the same;" McNeeley v. South Penn Oil
52 W. Va. 641, 642, 44 S. E. 518, holding void Acts 1872-73, c
61, fixing three years' limitation for suits to recover land le
for oil or other mineral.
Distinguished in Stewart v. Tennant, 52 W. Va. 572. 44 S. B-
228, holding void act of March 25, 1873, entitled "An act conc^^^^'
ing limitation of actions in certain cases."
Syl. 3 (X, 458). Statutes — Insufficient title.
Approved in St. Anna's Asylum v. Parker, 109 La. 599, 33
616, holding tax exemption contained in charter granted u
Constitution of 1845 was validly granted in act of leglsla
^^^ Notes on U. S. Reports. 107 U. S. 162-173
eiiaot:«d under usual title to Incorporate an asylum; State v. Ana-
«>nci^ C. M. Co., 23 Mont. 501, 59 Pac. 855. upholding Laws 1897,
^- ^"i5, entitled "An act to amend section 705 of title X of Penal
^-^^^, to have cages m all mines cased in;" dissenting opinion in Peo-
I^*^ ^. George. 3 Idaho, 87. 26 Pac. 989, majority holding yoid act
^^ Xlarch 3, 1891, entitled "An act to create and organize counties
-^Ita and Lincoln, to locate county seats of said counties, and to
I>K>ortion debt of Logan county."
Syl. 5 (X, 459). Holder of negotiable security presumed bona
-Approved in Pickens Tp. v. Post. 99 Fed. 662, holding purchaser
negotiable municipal bonds from prior holder acquires all rights
such prior holder, and such rights cannot be affected by his own
^o^wledge, at time of his purchase, of defenses to such bonds.
U. S. 162, 163, 27 L. 436, MONTCLAIR v. DANA.
SyL 1 (X, 459). Trial — Peremptory instruction.
-Approved in Ragsdale v. Southern R. R. Co., 121 Fed. 926, up-
^^olding direction of verdict for defendant in action against rail-
for burning of building near track; Thomason v. Southern Ry.
-, 113 Fed. 81, upholding direction of verdict for defendant in
^O'tlon for injuries sustained by boy injured while trying to rescue
brother from being crushed by turntable; Hodges v. Kimball. 104
. 750, upholding direction of verdict in action for death of brake-
who was killed while disobeying rules; Nieninger v. Cowan.
Fed. 789, upholding direction of verdict in action for injury
I'ailroad crossing where evidence showed contributory negligence.
^^7 U. s. 163-173, 27 L. 397, RUSSELL v. ALLEN.
Syl. 1 (X, 460). Charitable trusts — Omission to name trustees.
-A.pproved in Estate of Winchester, 133 Cal. 275, 65 Pac. 476,
**^^l<iiiig fact that an unincorporated educational society receives a
^**^ntable devise and thereafter becomes incorporated does not
^^^eat its right to the devise.
^yl. 2 (X, 460). Equity jurisdiction over charitable uses.
-Approved In In re Stewart's Estate, 26 Wash. 38, 66 Pac. 150, re-
^^^rming rule.
"^yl. 4 (X, 461). Charitable trusts — Indefinite number of bene-
^ries.
-Approved in John v. Smith, 102 Fed. 223, upholding will de-
*^ing property to executors in trust for school purposes in certain
r^^^^^n ; Estate of Upham. 127 Cal. 94, 59 Pac. 317, upholding residuary
^^^Se to legally constituted and qualified trustees or managers of
- Oood Templar's Orphans Home, in a specified locality," in trust
J ** t^lie use and benefit of the orphan children of said institution;
'^ *'**^ Creighton'g Estate, 60 Nebr. 807, 84 N. W. 277. holding in a
107 U. S. 174-191 Notes ou U. S. Reporte. 51:
devise where certain trustee Is appointed with power to selec
beneficiaries or designate the object of the charity, and devise i
plan for application of funds bestowed, court will, through trustee
execute the charity; Haynes v. Carr, 70 N. H. 482. 49 Atl. 641, up
holding provision that Income of estate be expended for benefi
of poor and destitute in State, and for charitable and educatlona
purposes therein.
Syl. 5 (X, 4G1). Gift for charity not existing.
Approved in Brigham v. Hospital. 126 Fed. 797, sustaining gift b
will for founding of hospital for indigent poor entire residuary ei
tate, which trustees were directed to accumulate for twenty-fl^
years.
Syl. 7 (X. 462). Trust to unestablished institute for education •
boys.
Approved in John v. Smith. 102 Fed. 222. upholding will devlsia
property to executors in trust for school purposes in certain tow"
107 U. S. 174-191. 27 L. 401. JONES v. HABERSHAM.
Syl. 3 (X, 463). Law governing charitable devises.
Approved in Brigham v. Hospital. 126 Fed. 797, holding valid^
of charitable gift for nonexistent charity by Massachusetts testae
governed by Massachusetts law where land also situated therei
Norton v. House of Mercy. 101 Fed. 3S9, holding where plain ti
New York charitable corporation, who could take and hold reaill
not exceeaing $50,000 in value, was made beneficiary under will o;
Kentuckian. filed petition in intervention, in suit by heirs against
executor to determine rights, and court ' decided it already held
$50,000 worth of realty and could not take under will, such Judg-
ment estops plaintiff from suing in another State grantee of heirs
to recover lands; Pritchard v. Henderson, 2 Pennew. (Del.) 557, 41
Atl. 377, holding defendant in ejectment in this State not estoppe<
to deny fiiidings of court of another State as to validity of wil
with respect to lands in this State.
Syl. 4 (X, 463). Validity of charitable devise as against kin.
Approved in Handley v. Palmer, 103 Fed. 42, holding wher
testator having realty and personalty in Pennsylvania, and hi
domicile in that State and also realty in Virginia, devises residue o
estate to city in Virginia, validity of such residuary devise as n
spects property in Pennsylvania is governed by law of that Stat<
Syl. 6 (X, 463). Trust devise — Condition against alienation.
Approved in E:state of Gay, 138 Cal. 556, 94 Am. St. Rep. 73, 7
Pac. 709, holding void direction in will setting apart certain pei
nianent Income to be used in keeping lot where testator should b
interred in good condition; Rolfe, etc.. Asylum v. Lefebre, 69 N. I:
241, 45 Atl. 1088, holding under trust devise on condition that tmi
tees shall hold and apply estate to specific charity with no powc
^^^^ Notes on U. S. Reports. 107 U. S. 102-205
^^ SO-le by them during term of ninety-nine years, court may autlior-
**® c^cnveyance if for best interests of estate.
Syi 10 (X, 464). Perpetuities — Devise to one charity over to
anotlier.
-A.i>proved in John v. Smith, 102 Fed. 222. upholding devise to
ex:eciitors in trust for school purposes in certain town.
Syl. 12 (X, 465). Corporation's power to own property — Attack
l>y individuals.
-A^pproved in Brigham v. Hospital. 126 Fed. 801, 802. holding
'^'^li ether gift to nonexistent charity beyond statutory power to hold
*s void as to excess, becoming resulting trust for heirs, cannot be
«"alsed collaterally; Manchester St. Ry. v. Williams, 71 N. H. 321,
^2 -A.tL 466, holding when agent of corporation sells property as
*^*s own, vendee who has notice of principal's claim cannot assert
ownership on ground that contract by which corporation acquired
title was ultra vires and void.
Syi. 15 (X, 466). Trust devise to persons to form corporation.
-Approved in Brigham v. Hospital, 126 Fed. 797. sustaining resld-
^^i^ devise to trustees to accumulate for twenty-five years, then
^^> be applied in funding hospital for indigent poor.
CX.^ .463). Miscellaneous.
Cited in Union Pac. Ry. v. Mason City, etc.. Ry., 128 Fed. 236,
^^^^<iing Supreme Court's declaration in 163 U. S. 564, that Taclflc
'^ilroad acts require road to share bridge and tracks with Rock
***^^rid, controlling decision.
TJ. S. 192-205, 27 L. 438, ATLANTIC WORKS v. BRADY.
L 2 (X, 466). Patent laws intended to reward discoveries.
-^-I>proved In National Casket Co. v. Stoltz, 127 Fed. 160, holding
^^•-JXfcllton patent for face plate for burial caskets, consisting of
^'^^ ^*A ^parent gauze over sliding frame, in place of glass com-
^°*^^*^ly used, not patentable; Union Biscuit Co. v. Peters, 125 Fed.
^^^^» liolding Peters patent No. 621,974, for package for biscuit or
^^^<^teers, void for lack of novelty; National Tube Co. v. Spang,
^ed. 29, 30, holding Patterson Patent No. 581,251, for manu-
re of tubing, void for want of invention; Uanifen v. Armitcsje.
^^'^ :^ed. 849, upholding Bywater Patent No. 374,888, for knitted
0-8ti-^^jjlian; Western El. Co. v. Anthracite Tel. Co., 113 Fed. 843,
tiol(3.ti]g Carty patent No. 449,106, for improvements in telephone
clrevi^its, void for lack of novelty; Kinloch Tel. Co. v. Western El.
^•» 113 Fed. 665, upholding Seely patent No. 330,067, for Improve-
iBCti^ in grouping annunciators for multiple switchboards; Parsons
V. ^^Linneapolis, etc., Co., 106 Fed. 944, holding Albertus & Jolm-
80^^ patent No. 556,326, for band cutter and feeder for threshing
jXiacblnes, void for lack of invention.
Vol II — 33
r
l(i7 V. S. 205^251 Notps on U. S. HepoHl.
Syl. 3 (X. 4C0). Pleading patent In answer.
Approved in Url t. Hirech, 123 Fed. 571, applying nile In su Jt tor
Inri'lngement of trade-mark.
Syl. 4 (X, 460). Evidence — Testimony at varlani'C with toi^ <aurt.
Approved in Bnri' Car Co. v. CJiicago, etc.. Ry. Co.. 110 Fed '''5.
iipplylag rule In holding that Barr patent No. 340,134. for co'n^^ Qd^
Iron car, was void on gi'ound that patent wae not original Inrec=^*- ''^'oa.
1(17 D. S. 205-216. 27 L. 484, NEW YORK. ETC., CO. v. MEMt— *EI8
WATER CO.
Syl. 1 (X. 4C9). Equitable relief to assignee of chose In actlo^^«=« .
Approved 111 FIudBon v. Wood, llfl Fed. 707. holding In cred^^ tor"!
ault in Federal coui't by Judgnent debtor against Judgment ae^^C^nd-
ant and another, alleged to be his debtor on mere money deD:^^i'iid,
([UPBtion of tatter's indebtednesB cannot be tried; American, etc,
Guarantee Co. v. Home Watpr Co., 115 Fed. 170, holding mort -S^Ke
given by water company, coverlns; rentals accruing to it under <^d-
tract with city, 1b only assignment of chose iu action as to ^ucli
rentals, and mortgagee cannot sue city in Federal courts to ea^^^orw
payment of aame where boib mortgagor aud city belong In ^^^jinie
State; Ean Claire v. Tnyson, 109 Fed. 079, and Eau Claire v. Pa^^'son,
107 Fed. 555, holding trustee In mortgage executed by wnl-^r ^crom-
pany, claiming right by virtue of mortgage to collect rentals- *3ne
company, cflunot sue city In Federal court for rentals where oltJ
and company belong to same State.
Syl. 3 (X, 470). Equity — Adequate remedy at law.
Approved In Cruickshank v. Bidwell. 17Q U. S. SI. 44 L. 38r«- . ^^
Sup. Ct. 283, denying Injunction to restrain customs collector ^T"*"***"
enforcing act of 1897, to prevent importation of Impure tea^* ^^
sole ground of Invalidity of act.
107 n. 8. 215-220. Not cited.
107 U- S. 221-251. 27 L. 50G, KRING v. MISSOORI,
SyL 1 (X, 471). Ex post facto — Change of law as to plea.
Approved In State v. Goddard, 162 Mo. 235, 02 S. W. 708. hol.3 ^^ ^
where one la accused of murder in first degree and convlciei3
second degiee, and Judgment reveraed and new trial granted, '"
may be tried for murder In first degree.
Syl. 2 <X, 471). Ex post facto laws — Remedy and offense.
Approved in State of Louisiana v. Fourcliy, 106 ha. 750, 7
So, 328, holding attorney cannot be disbarred In civil action for icL ^
which, when committed, he could have been disbarred only alte*-^
trial and conviction In criminal courL
Syl. 4 (X, 472). What are ex post facto laws.
Approved in Mallett v. North Carolina. 181 U. S. 594, 45 L. lOlS.
21 Bup. Ct. 732, holdlus provision in N. C. act of 1899, for ap-
^^ Notes on U. S. Reports. 107 U. S. 251-318
peal l>y State In criminal case from grant of new trial, not ex post
^*cto as applied to cases in which trial had been had, though new
^^ liad not been granted before statute passed; Cassard v. Tracy;
Cassard v. Zacharie. 52 La. Ann. 845, 27 So. 372. holding provisions
®^ Constitution of 1898, conferring jurisdiction on courts of appeal*
'^Poti questions of fact, in certain cases did not operate reti-o-
«P«ctlvely.
^^"^ U S. 251-264, 27 L. 386, BOWDEN v. JOHNSON.
^^1. 1 (X, 473). Transfer of stoclj in fraud of creditors.
^Xproved In Rankin v. Fidelity Trust Co., 189 U. S. 240, 23 Sup. Ct.
^^^^*» 47 L. 794, holding pledgee of national banls stock which he
^H>^ as collateral security for loan is not chargeable with personal
^^llity for debts of bank imposed on shareholders by Rev. Stat.,
^X51, unless he either became owner in fact or held himself out
Owner; Robinson v. Southern Nat. Bank, 180 U. S. 306, 45 L. 540,
^up. Gt 387, holding bauk receiving national bank stock as secur-
» and on default proceeds to sell stock and bid it in, ih not liable
stockholder when it never has transfer made on books of national
:^i; Matteson v. Dent, 176 U. S. 531, 44 L. 576, 20 Sup. Ct. 423,
^^^^ing widow and heirs of shareholder in national bank, to whom
*^^l)ate Court allots shares but who let stock stand in name of
^^^^sed without any notice of their title, are liable to assessments
stock in caae of bank's insolvency; People's Home Sav. Bank
^teickard, 139 Cal. 289, 294, 73 Pac. 859, 861, holding where in
on to recover unpaid stock subscriptions on call, made to pay
^"^^^^ ^Jlitors after corporation's insolvency, court found that defendant
^ ^ ""^ transferred stock to insolvent for purpose of avoiding liability.
Ing that she was stockholder at date of call was unnecessary
;.ustain Judgment for unpaid balance.
yL 4 (X, 474). Omission of defendant to testify.
X)proved in Earle v. Carson, 188 U. S. 51, 55, 23 Sup. Ct. 258,
47 L. 378, 379, holding bona fide sale of national bank stock,
e in exercise of power given to stockholders by Rev. Stat.,
\ ^:l.S9, to transfer stock like other personal property, was not void
as :f rand on bank's creditors, because bank was insolvent at time
ot -transfer; Ballard v. Chewning, 49 W. Va. 517, 39 S. E. 173, apply-
ing x'ule in setting aside deed of trust as in fraud of creditors.
lOT TJ. S. 265-318, 27 L. 552, EX PARTE WALL.
^yl. 3 (X, 476). Disbarment for gross misconduct.
Approved in In re Lentz, 65 N. J. L. 138, 40 Atl. 763, refusing to
^isbar attorney who had wrongfully appropriated moneys of client
Xyi>^ Who had paid over prmcipal and interest before rule had been
applied for.
107 U. S. 319 Notes on U. S. Reports. :^=^:^^X6
Syl. 5 (X, 476). Disbarment for Indictable offense.
Approved In State of Louisiana v. Fourcby, 106 La. 752, 758,
So. 329, holding attorney cannot, In civil action, be disbarred
acts which, when committed, he could only have been disbai
after trial and conviction in criminal court; In re Nowian & Simps
65 N. J. L. 143, 46 Atl. 570, holding where alleged miscon^^zr^ net
involves criminal offense, court will not disbar attorney in advi^^^3.zice
of conviction unless evidence against him is clear and convinc
Syl. 6 (X, 476). No Jury in disbarment proceedings.
Approved in In the Matter of Z., 89 Mo. App. 436, disbarr r
attorney for malpractice and deceit; In re Simpson, 9 N. Dak. ^
83 N. W. 553, holding Rev. Codes, § 432, giving Supreme G
power to disbar attorneys is merely legislative affirmance of e
ing power; Morrison v. Snow, 20 Utah. 266, 72 Pac. 930, c
attorneys to show cause why license should be revoked for
professional conduct for charges against judge made in pleadin
action for fraudulent representations; In re Evans, etc., Roger!
Utah, 387, 62 Pac. 919, disbarring attorney who, on charge ox -^t,
champerty, appeared before court and confessed that be indxi
court to render final judgment in Ills favor in previous action,
ground of his having been guilty of champerty, and who in
barment proceedings claimed innocence; State v. Shumate, 48
Va. 361, 37 S. B. 618, upholding jurisdiction of Supreme Ck)urt
Appeals over writ of error to Circuit Court judgment disbarri
attorney for acts done as for a contempt.
SyL 8, 9 (X, 477). What is due process of law. ^*=:r:^^'
Approved in Rutz v. Michigan, 188 U. S. 507. 23 Sup. Ct 391^
47 L. 566, upholding Mich. Pub. Acts 1899, act No. 237, regardln^^
registration of physicians; State v. Moore, 2 Pennew. (Del.) 321. 4<C^
Atl. 675, upholding prosecution by information and trial by courts
without jury; Rankin v. Jauman. 4 Idaho, 63. 36 Pac. 505. holding
Rev. Stat. 1887, § 7459, provides due process of law for removal of
officers therein named for the offenses therein designated; dis-
senting opinion in Hartigan v. Board of Regents, etc.. University, ^
49 W. Va. 37, 46, 38 S. E. 708, 712, majority holding notice and
hearing not required of proceeding by university regents for re- ^'^
moval of professor.
SyL 10 (X, 478). Mandamus to reinstate attorney.
Approved in State v. Shumate. 48 W. Va. 302, 37 S. E. 619. -
arguendo.
107 U. S. 319, 27 L. 499, ROTH v. EHMAN.
Syl. 1 (X, 479). Courts — State decision upholding foreign decree.^
Approved in Mutual Life Ins. Co. v. McGrew, 188 U. S. 312.^
23 Sup. Cf. 380, 47 L. 486, holding averment in answer in suit b;
divorced wife on insurance policy on husband's life that by virtu
1^
517 Notes on U. S. Reports. 107 U. S. 320-361
of Hawaiian laws, and divorce thereunder, all her rights in policy
had passed to and become property of husband, is not assertion
of right under treaty.
107 U. S. 320-325. Not cited.
107 U. S. 325-335, 27 L. 319, OIL CO. v. VAN ETTEN.
Syl 3 (X, 480). Sales — Rislv foUows title.
Approved in Hagins, etc. v. Combs, etc., 102 Ky. 169 (see 43 S. W.
223), holding title to personalty passes where nothing remains to
be done by seller, though it is subsequently to be weighed and
measured to ascertain price.
iSyl. 4 (X, 480). Objection to account within reasonable time.
Approved in Dunavant v. Fields, 68 Ark. 540, 60 S. W. 422, re-
afflrinlng rule; Fitzgerald v. First Nat Bank, 114 Fed. 481, hold-
IMS one receiving without objection account stating debits and
oredits between him and other party to accopnting is thereby
estopped from denying correctness of account thus stated, in ab-
sence of fraud or mistake; Patillo v. Allen- West, etc., Co., 108
Fed. 730, holding complaint setting out contract under which
plaintiff sets out amount due and that plaintiff sent defendant
statement showing amount claimed thereunder, and that defend-
ants made a payment on the contract, is not sufficient as com-
plaint on account stated; Montgomery v. JEtna Life Ins. Co., 97
F*ed. 919, holding where defendant was employed as general agent
of insurance company within certain territory by written contract,
on commission, and he rendered monthly accounts crediting himself
with commissions, fact that he was directed by company to des-
ig:uate himself as " general manager " did not entitle him to extra
compensation as general manager; Cunningham v. Brackett, 180
Mass. 242, 62 N. E. 251, holding where plaintiff and defendant's
testator had agreement whereby former was to manage latter*s
property on commission and during latter's lifetime paid brother
^° full all rents without deducting commissions and on demand
^^ executor, plaintiff rendered account In which no mention made
^^ commissions, plaintiff not estopped from claiming commissions.
^^7 XJ. S. 336-347. Not cited.
^^7 rr. s, 348-361, 27 L. 378, CHAPMAN v. COUNTY OP DOUGLAS.
^5^1. 2 (X, 481). Compensation by municipality obtaining property
'inia^fuiiy.
^^ reproved in Aldrich v. Chemical Nat. Bank, 176 U. S. 630, 44
^- ^as, 20 Sup. Ct. 503, holding national bank which iises in its
*^^sioes8 money obtained by its vice-president as a loan from an-
otli^^ national bank cannot escape liability to account therefor
^^ ground that loan was not negotiated by it or that it could
^^t itself legally have borrowed the money; Geer v. School Dlst.,
107 U. S. 348-361 Notes on U. S. Reports. S18
111 Fed. 689, holding school district having power to create to-
debledness and which by vote borrows money and uses it is liable
to lender, and cannot avoid liability because lender innocently
accepted bonds which were void by reason of limitation on power
to issue bonds; Fernald v. Town of Oilman, 123 Fed. 801, hold-
ing one who in good faith loaned money to town to be used for
corporate purpose, taking its bonds therefor, is entitled to recov»?r
In an action for money had and received, where bonds are void
for want of power in town to -issue same; Tennessee Ice CJo. v.
Raine, 107 Tenn. 156, 64 S. W. 30, holding where corporation bad
received and retained benefit of executed contract that It had
no power to make under charter cannot plead ultra vires to action
to recover what is due upon equitable adjustment
Distinguished in State of Washington v. Pullman, 23 Wash. 588,
63 Pac. 266, holding contract by town to purchase water pipe laid
by another party outside town limits* at price in excess of $2,000,
being ultra vires under Gen. Stat., §§ 683, 696, 697, fact that town
has received benefit thereof does not estop it from denying validity
of contract.
Syl. 3 (X, 482). Rescission by vendor of unlawful county contract.
Approved in Lee v. Board of Comrs., 114 Fed. 747, holding where
county commissioners representing that they had complied with
law and that they had right to do so purchased bridges, and is-
sued orders for payment, and thereafter payment enjoined, holder
of orders may sue to remove bridges; New York Life Ins. Co. v.
Board of Comrs., 99 Fed. 852, holding void 93 Ohio Laws, p. 172,
legalizing void county bonds; Municipal Security Co. v. Baker Co.,
39 Or. 399, 65 Pac. 370, holding, though voluntary agreement en-
tered into by county involving liability beyond limit of indebted-
ness is void, one contracting with county in such transaction
may recover property transferred on returning unpaid warrants;
McGillivray v. Joint School Dlst., 112 Wis. 357, 88 Am. St Rep.
S71, 88 N. W. 312, holding where express contract for material
for school has been performed and material wrought into build-
ing, contract is binding on district to amount of constitutional
limit of indebtedness and void as to balance.
Distinguished in Travelers' Ins. Co. v. Mayor, 99 Fed. 669, hold-
ing purchaser of negotiable municipal railroad aid bonds which
city had no power to issue cannot recover from city amount of
such bonds as money had and received to city's use.
Syl. 5 (X, 483). Limitations — Unauthorized municipal contract
Approved in Geer v. School Dist., Ill Fed. 692, holding where
school district issued and sold bonds which were void for want
of power to issue same, but district recognized validity by levy-
ing taxes to pay interest thereon, limitations did not run until dis-
trict took action hidicating intention to repudiate.
Notes on U. S. Reports. 107 U. S. 361-402
ll>istln^i8hed In Municipal Security Co. v. Balier Co., 39 Or.
65 Pac. 370, holding whc-re county purchased chattels at time
lion It was in debt beyond constitutional limit and warrants so
were declared by appellate court ultra vires, cause of action
suit to recover chattels accrued on delivery of chattels.
XOT rr. S. 361-365, 27 L. 495, JAFFRAY v. McGEHEE.
Syl. 2 (X, 483). Assignment authorizing sale contrary to statute.
-Approved in High Grade Bricls Co. v. Amos, 95 Md. 602, 53
-^^1- 150, arguendo.
Syl. 3 (X, 484). State construction of assignment for creditors
-A.i>p>roved in Robinson, etc., Co. v. Belt, 187 U. S. 46, 23 Sup.
47 L. 68, holding assignment for benefit of Creditors, though
release by creditors as condition of preference, is valid in
Territory in view of Arkansas decisions.
S. 365-378, 27 L. 419, WIGGINS TERRY CO. v. EAST
LOUIS.
. 2 (X, 485). State license on ferries on boundary streams.
-^I>I>roved in St Clair Co. v. Interstate Transfer Co., 192 U. S.
-^^, 465, 466, 24 Sup. Ct 302, 303, 304, holding unconstitu-
111. Rev. Laws 1874, chap. 55, penalizing carrying on ferry
license, applied to carrying railway cars across Missis-
from Illinois to Missouri; Yost v. Lalce Erie, etc., Co., 112
749, holding vessels engaged in interstate or foreign commerce
by corporation of State, which are registered under laws
^^Xiited States and have name of home port on stern, have tax
^^^^ In home port; Newport News, etc., Ry. v. Newport News, 100
®^ X61, 40 S. B. 646, upholding municipal license tax on cars
7^^ additional tax on poles; dissenting opinion in Rosenbloom v.
St^t^^ 64 Nebr. 363, 89 N. W. 1061, majority upholding Comp. Stat
^1» chap. 77, art. 1, §§ 152-154, imposing license tax on peddlers.
^^^siingulshed in St Clair, etc., Co. v. Interstate, etc., Co., 109
®^- ^743, holding State cannot impose license fee on ferry across
^^^5"*ble boundary stream where corporation owning such ferry
^^"•^izen and resident of another State and ves.<^els employed have
**^ ^Itus in other State.
^^'^ '^l:!. 8. 378-402, 27 L. 609, KOUNTZE v. OMAHA HOTEL CO.
^^^^ 1 (X, 486). Appeal bond in foreclosure.
'^^^^:^roved in Green Bay & M. Canal Co. v. Norrie, 118 Fed. 925,
^ ^^:ig damages sustained by appellee by violation of injunction
^ ^^^ Jig appeal cannot be recovered in action on supersedeas bond;
o<^^:^ y^ Brown, 104 Fed. 206, holding measure of damages for
^-^h of condition of bond to answer all costs and damages, which
^^ •" supersedeas, in writ of error to reverse personal Judgment
107 U. S. 402-413 Notes on U. S. Reports.
for money Is amount due obligee by terms of Judgment, damage
for delay, and costs; Russia Cement Co. v. Le Page Co., 1
Mass. 359, 55 N. E. 75, holding supersedeas bond on allowance
error to Circuit Court by United States Circuit Court of Appea
when Judgment for defendant in error is for recovery of mon
and is secured by attachment, and by bond to dissolve attachme:
does not dissolve attachment
Distinguished In Woodworth v. Northwestern Mut Life Ins. C
185 U. S. 362. 46 L. 949, 22 Sup. Ct. 679, holding obligee in boi
which supersedes an order of Circuit Court confirming sale
foreclosure and directing execution and delivery of deed, is entltl
on aifirmance of order and execution of deed, to recover re:
accrued and collected after confirmation of sale.
SyL 4 (X, 488). Receiver for mortgaged premises.
Approved in Boyce v. Continental Wire Co., 125 Fed. 742, he
ing where receiver has been appointed in foreclosure suit,
ground of insolvency of mortgagor and inadequacy of secuc
equitable right of possession and right to net income of prop
is in mortgagee; H. B. Claflin Co. v. Furtick, 119 Fed. 431, h
ing Federal court may on preliminary application, without not
In suit to foreclose chattel mortgage appoint receiver to pres^
statu quo; Pacific Northwestern, etc., Co. v. Allen, 109 Fed.
upholding" appointment of receiver for corporation on applica^l
of mortgagor where it appears that corporation is probably
solvent and that it is for best interest of all parties that busine&i^
be continued. See 72 Am. St Rep. 75, note.
107 U. S. 402-406, 27 L. 527, HAHN v. UNITED STATES.
Syl. 1 (X, 488). Statutes — Contemporaneous executive constrn
tion.
Approved in Fairbanl: v. United States, 181 U. S. 308, 45 L.
873, 21 Sup. Ct. 658, holding stamp tax imposed on foreign bill of
lading by war revenue act of 1808, § 6, is void as tax on exports;
United States v. Dietrich, 12G Fed. 67G, holding under Rev. Stat,
$ 3739, preventing contracts held by members of Congress, office
of postmaster hold by senator from Nebraska terminated by
operation of law; M'Fadden v. Mountain View Min., etc., Co.,
97 Fed. 677, holding 27 Stat. 62, restoring to public domain
portion of Colville reservation, and opening it to settlement on
president's proclamation, did not, of itself, in advance of procla-
mation, give right to locate mining claims therein.
107 U. S. 407-413, 27 L. 592, CAMPBELL v. UNITED STATES.
Syl. 1 (X, 489). Treasury regulations as to drawbacks.
Approved in United States v. Legg, 105 Fed. 933, holding im-
porter entitled to make entry of merchandise required of him bj.
i
i
521 Notes on U. S. Reports. 107 U. S. 414-453
Rex, Stat., { 2785, when he presents himself with papers and offered
to make entry and pay duties, entry will be considered to have
been made at time, though collector refused to receive papers for
putpose of investigation.
Distinguished in Dooley ▼. United States, 182 U. S. 229, 45 L.
1O80, 21 Sup. Gt 765, holding action to recover back duties illegally
e^Eacted and paid under protest upon imports into Porto Rico from
^ew York is within Jurisdiction of Circuit Court as court of claims.
SyL 2 (X, 480). Treasury regulations for recovery of drawback.
-Approved in Hartw^l Lumber Co. v. United States, 128 Fed.
30S, holding where vessel's tender of entry refused because of
change ih tariff laws requiring record at customs-house, not required
'»efore, tender not vitiated by failure to maintain.
Syl. 3 (X, 490). Tariff — Purpose of drawback.
, Approved in Swan & Finch Co. v. United States, 190 U. S. 146,
^ Sup. Ct. 703, 47 L. 986, holding drawback provided for by 30
^^A^. 211, will not be allowed on goods placed on board vessel
bovixid for foreign port to be used and consumed on vessel during
^^T u. S. 414-437. Not cited.
U. S. 437-444, 27 L. 631, MERRIAM v. UNITED STATES.
^SyU 1 (X, 491). Construction of contracts.
-^Wpproved in Western Union Tel. Co. v. American Bell Tel. Co.,
"^ Fed. 687, construing contract for rentals or royalties from tele-
^Dnes; Burke Land, etc., Co. v. Wells, Fargo & Co., 7 Idaho, 57,
Pac 91, holding where respondent purchased all latter*s prop-
and agreed to pay therefor a sum equal amount due other
^l)ellant and agreed that said purchase price was secured by
^^rtgage executed by one appellant to other, respondent estopped
deny validity of mortgages as to any part of price; Gregory v.
llage of Lake Linden, 130 Mich. 374, 90 N. W. 31, admitting parol
Idence in construing contract by village to purchase water; Cam-
V. McCoy, 48 W. Va. 381, 37 S. E. 639, refusing parol evidence
explain contract between parties to suit whereby they agree to
^^uploy additional attorney to obtain rehearing; Johnson v. Pugh,
TIO Wis. 170, 85 N. W. 642, refusing parol evidence of circumstances
nder which building contract was made where terms thereof are
nambiguous; Boden v. Maher and Another, 105 Wis. 543, 81 N. W.
^^63, holding parol evidence admissible to prove circumstances under
^^vhich excavation contract was made.
:i07 U. S. 445-453, 27 L. 537, COOK COUNTY NAT. BANK v.
UNITED STATES.
SyU 4 (X, 492). Special act repeals former acts.
Distinguished in King v. Pomeroy, 121 Fed. 293, 294, holding
remedy of creditor's suit to enforce liability of shareholders of
107 U. S. 454-463 Notes on U. S. Reports.
national banks in voluntary liquidation provided by 19 Stat. 6S
§ 2, is cumulative and not exclusive.
107 U. S. 454^463, 27 L. 605, WABASH RY. CO. T. McDANIBLS.
Syl. 2 (X, 493). Care required in selection of railroad employee-:
Distinguished in Choctaw, OlLlahoma, etc., R. R. Co. v.
191 U. 8. 67, 24 Sup. Ct. 25, holding railway liable for death »
brakeman from contact with waterspout negligently placed so :
to hang over passing cars; Weeks v. Scharer, 111 Fed. 331, 3^
liolding shift boss in charge of gang whose duty it is to direct w(
of men and to supervise their work, but who has no authority
hire or discharge, is fellow servant of men, and notice to him
incompetence of fellow servant not notice to master; Hobson
New Mexico, etc., R. R., 2 Ariz. 188, 11 Pac. 553, sustaining - on
general, demurrer complaint alleging engine out of order and
cause of negligence in handling same, plaintiff rightly thereon
injured from collision.
Syl. 3 (X, 494). Care between master and servant.
Approved in Texas, etc.. Pacific Ry. Co. v. Behymer, 189 XJ^
470, 23 Sup. Ct. 623, 47 L. 906, holding whether freight train
handled with ordinary care, and not whether it was handli
usual and ordinary way, is test by which to determine liabilil
railroad for injuries to brakeman caused by sudden bump;
Noranmore, 113 Fed. 369, holding duty of ship to longshoremi
employ of stevedore, relative to suitable appliances in the furiB.
Ing of hook for loading, is fulfilled where hook is reasonable
for the work in hand; Garnett v. Phoenix Br. Co., 98 Fed.
holding master not liable for injuries to servant caused by breaft^
of wrench used in screwing nuts on trestle; Atchison, etc., Ry
Kingscott, 65 Kan. 136, 69 Pac. 185, applying rulo in actioa
Injuries to employee resulting from explosion of oil barrel i^
emptying oil from barrel into tank by means of compressed,
pressure; McGar v. National, etc.. Mills, 22 R. I. 356, 47 Atl.
applying rule In action by employee injured by breaking of
driving spinning frame; Campbell v. Dearborn, 175 Mass. 18S»
N. E. 1042, arguendo.
Syl. 4 (X, 495). Ordinary care defined.
Approved in Garnett v. Phoenix Br. Co., 98 Fed. 196, hold -^Wng
master not liable for injuries to servant caused by breaking '^ ^^
wrench used in screwing nuts on trestle; Downey v. Gemini M. C— J^^®-
24 Utah, 438, 91 Am. St. Rep. 803, 68 Pac. 416, upholding instr*- ^"^^^^^
tion in action against mining company for injury to employe "^^^^
that it was defendant's duty to keep its premises in a reasonatc^ -^
safe condition, such condition as they would have been kept
person of ordinary prudence under the same circumstances.
T
D. S. 483-466. 27 L. 326. BALDWIN' v. STARK.
SyL 2 (X, 495). ConclusiTeneea of land department decEslon.
Approved in Hawley v. Dlller, ITS U. S. 490. 44 L. 1162. 20 Sup.
:t. 891, holding deolslon o( secretary of interior reversing decision
t land commlBsloDer aud rejecting and canceling an entry under
't:iii:tb«r and stone act for fraud la not In excess of jurisdictloii be-
<?a.use attorney-general did not join In conaiderntlon of matter;
:Blacl: V. Jackson. 177 D. S. 35T. 44 L. 805. 20 Sup. Ct. 651. holding
Knandatory injunction to establlsb rigbt to posaesaton of laud
<^Ialmed as homestead cannot be granted by Oklahoma court under
statute abolisblng distinction bet^ieen taw and equity, where no
special equitable grounds are shown; Jeffords v. Illne, 2 Ariz. 166.
1 1 Pae. 335, refuBing to review decision of receiver of land depart-
*neni acting as register under department's orders In controversy
*»s to riglit to possession of mining property.
^*>7 C. S. 486-478. 27 L. 408. CLOSE v. GLENWOOD CEME3TEI1Y.
Syi. 1 (X. 496). Power to alter or amend corporate charter.
pproved in Stanislaus Co. v. San Joaquin, etc., Co., 192 D. S.
24 Sup. CL 245. Iiolding secUon 3, Cai. Stat. 1862. giving supervl-
control of water rates, prohibiting reduction below 1% per cent.
**^*' month proflt. created no contract of State; Looker v. Maynard
*■* *el. Dusenbury. 173 U. S. 52. 45 h. 82. 21 Sup. Ot. 23. holding
^*^-t-nte permitting each stockholder to cumulate votes upon one or
^^**x-e candidates for directors Is wlttain power to alter or amend
**^rter.
^^yl. 3 (X, 497). Estoppel to deny corporate existence.
» -approved In Wabash Screen Door Co. v. Black. 128 Fed. 727.
■ ^^^^^dlng competent in action for injury from breaking of defeetivo
^^^* lley, evidence that two other pulleys similarly constructed had
-_ *~"^)ken in same manner; Jolineoa v. Mason Lodge No. 33. t. O. O. F.,
I -»;^~^* Ky. 843, 51 8. W. 621. holding one borrowing money from cor-
'^ ^~^ration and executing his note tiierefor cannot deny legality of
^,*^snsactlon; Seven Star Grange v. Ferguson, 98 Me. 177, 56 All.
^*~^9, holding one acting as treasurer ot grange, presumably legal cor-
^^•^^jratlon, cannot deny corporate capacity to sue blm for funds held
212,
Syl. 4 {X. 498). Act amending cemetery charter — Reserved
:*^iower.
Approved in Davis v. Coventry, 65 Kan. 562, 70 Pac. 685. holding
Xotowners in cemeteries are members of corporation and entitled to
"Vote in election of oOlcers and on all other matters; Deposit Bank
^f Owensboro v. Daviess Co., etc, 102 Ky. 187, 39 S. W. lO.^a. hold-
ing where under Hewitt bill of 1886, banks were required to pay
taxes at rate of 75 cents on each (100 share, in full of all State.
county, and city taxes, and later Oonstitutloa changed tax so that
107 U. S. 478-526 Notes on U. S. Reporta. 52-
property became subject to taxation at same rate as Individual
there was no impairment of contracts; Oakland Cemetery Co.
People's Cemetery, 93 Tex. 574, 57 S. W. 29, holding unsold lots i
cemetery not subject to sale on execution against company, a
purchasers at such cannot transfer title to new company organiz^^
to carry out same trust.
107 U. S. 478-484, 27 L. 529, WILLIAMS v. JACKSON.
Syl. 1 (X, 498). Priority between trust deeds.
Approved in Mann v. Jummel, 183 111. 530, 56 N. B. 163, r
affirming rule; Hennigs v. Paschke, 9 N. Dak. 497, 84 N. W. 35
holding purchaser of notes secured by mortgage, by neglecting
record assignment of same, forfeited rights under mortgage
against purchaser in good faith In reliance on legal title.
Syl. 2 (X, 498). Decree on setting aside release of trust deed.
Approved in Mann v. Jummel, 183 111. 532, 56 N. E. 163,
affirming rule; Reed v. Jennings, 196 111. 479, 63 N. B. 1007, holdf -^» ^"^
where recorded trust deed authorized release on payment of
cifled sum and purchaser of sum of lots, knowing that sums p
were not sufficient to discharge lots from trust deed, procured
lease from trustee without authority from holders of notes secu
and without compliance with deed, release will be canceled.
107 U. S. 485-511, 27 L. 337, SUN MUTUAL INS. CO. T. OCB
INS. CO.
Syl. 5 (X, 499). Insurer's knowledge no excuse for failure to
close.
Approved in Cable v. United States Life Ins. Co., Ill Fed.
holding insurer not liable where policy delivered to insured's a^
after inquiry as to insured's condition and agent made mislead!
answer.
107 U. S. 512-519, 27 L. 497, THE ADRIATIC.
Syl. 4 (X, 500). Sailer meeting steamer should keep course.
Approved in The Europa, 116 Fed. 699, holding sailing vessel no^^ ^^'^~t^-
Justified in changing course when nearly ahead of closely approach- *
ing steamer, because of mere apprehension of danger.
107 U. S. 519-526, 27 L. 018, DISTRICT OF COLUMBIA r. ARMES. -'
Syl. 1 (X, 501). Lunatic as witness.
Approved in Hart v. Miller, 29 Ind. App. 246, 64 N. B. 247, holding
guardian of lunatic cannot claim on trial of claim against ward's
estate that his ward was not incompetent to testify because he was
not insane.
Syl. 3 (X, 501). Evidence of frequency of accidents at particular
place.
Approved in Vos v. Carroll, 123 Fed. 1008, reaffirming rule; Frank-
CS.
525 • Notes on U. S. Reports. 107 U. S. 526-546
lln ▼. M. K. & G. Ry. Co., 97 Mo. App. 480, 71 S. W. 541, holding
where master furnished lot of mauls from which servant 8elect<'d
one, by reason of defect In which he was hurt, he may show that
whole lot were chipped and slivered; Golden v. Chicago, etc., Ry.
Co., 84 Mo. App. 66, holding where pleading raises Issue whether
object in highway is calculated to frighten horses, evidence that
^t had frightened other horses than those Involved In case Is ad-
missible; Piper V. Spokane, 22 Wash. 150, 60 Pac. 139, admitting,
to action against city for damages for Injuries received through
defective sidewalk, evidence to show that others had fallen at
same place within short time of plalntllTs injury; Meyers v. Falk,
^ Va. 388, 389, 38 S. E. 179, holding master's knowledge of Incom-
Petency of servant or of defects In machinery may be established
^thetT' by actual knowledge, or such frequent acts of Incompetency
on pQ.x-t of servant, or existence of defects for such length of time
*^ knowledge would be presumed.
^^"^ '^^^ S. 526^29. Not cited.
^^^ X3^. S. 529-546, 27 L. 424, PAN A v. BOWLER.
^^1. 2 (X, 503). Recitals In municipal bonds.
^^:^^X>X)roved In Wetzell v. Paducah, 117 Fed. 654, holding where
^/^^^rs and council of city are by charter given such powers that
^^ ^^orlty must be Inferred therefrom to determine whether neces-
^ ^y conditions precedent exist to authorize Issuance of bonds,
l^^ltal by oflBjcers in bonJs that all conditions have been performed
— ^ds city In favor of bona fide purchaser; Kearney v. Woodruff,
5 Fed. 95, holding where Irrigation aid bonds recited Issuance
ter submission to popular vote of certain proposition, It Is no
^fense as against bona fide purchaser that proposition submitted
as not same as that recited in bonds; Independent School DIst. v.
,ew. 111 Fed. 8, holding certificate on municipal bonds that they
^^ave been Issued pursuant to statute for purpose of funding debt
^^stops municipality from denying validity of debt; Hughes Co. v.
■^L.IvIngston, 104 Fed. 313, holding county estopped by recital In bonds
^hat they are Issued in pursuance of legislative act empowering
county to Issue bonds on certain conditions, to deny existence of
conditions; Board of Comrs. v. Sutliff, 97 Fed. 276, holding where
Colo. Laws 1877, p. 218, authorized counties to Issue bonds within
constitutional limit and required clerk to keep book showing amouut
of Indebtedness, recitals In bonds that they were issued in con-
formity with statute estopped county from showing limit of in-
debtedness was exceeded, where clerk kept no book.
Distinguished !n dissenting opinion in Wilson v. Board of Edu-
cation of Huron City, 12 S. Dak. 557, 81 N. W. 958, majority holding
board of education authorized to Issue bonds estopped as against
bona fide purchaser from alleging that It failed to comply with con-
107 U. S. 546-556 Notes on U. S. Reports.
stitutional provision requiring that before such indebtedness hi-.^:
curred provision be made for collection of tax sufficient to pas^.
principal and interest, where bonds recite compliance with all con-
ditions precedent.
Syl. 3 (X, 503). Courts — Binding effect of State decisions.
Approved in Brunswick, etc., Co. v. National Bank, 112 Fed. 816^>
holding State decision construing State statute relating to stock
holder's liability not binding on Federal court, where transactioirx'
before it occurred prior to such construction; Rondot v. Rogeri
Township, 99 Fed. 211, holding State decision holding invalid towni
ship election authorizing issuance of bonds, which was not mad».
until after bonds had been issued and sold, is not conclusive oik
Federal court in action to recover on bonds.
Syl. 4 (X, 503). Irregularity of bond election — Burden of proo^
Approved in Central R. R. etc., Co. v. Farmers' Loan, etc,
116 Fed. 705, holding purchaser of outstanding negotiable
from bona fide holder takes all rights of seller, though purchai
may have had notice of ii:firmity when he bought, even though
bought after maturity.
Syl. 6 (X, 504). Law governing interest on coupons aft^r^- ^ter
maturity.
See 91 Am. St Rep. 740, note.
Distinguished in Vermont Loan, etc., Co. v. Hoffman, 5 Ida!
389, 95 Am. St. Rep. 194, 49 Pac. 318, holding coupon notes gl^
for interest of principal debt which, by their terms, draw intei
after maturity, are in contravention of Rev. Stat., § 1266, and e
usurious.
107 U. S. 546-548, 27 L. 583, Myers v. Swann.
Syl. 1 (X, 505). Removal for prejudice — Citizenship.
Distinguished in Weldon v. Fritzlen, 128 Fed. 614, holding s
cannot be removed into Federal court by mortgagor's nonresid^
creditor, where' mortgagee and mortgagor are fellow citizens,
ground of prejudice; Holmes v. Southern Ry. Co., 125 Fed.
holding under judiciary act of 1888, § 2, removal for local preju
may be had by one defendant who is citizen of another S
though joined with anotlier defendant who is citizen of same S
as plaintiff.
107 U. S. 549-556, 27 L. 549, QUINCY v. COOKE.
Syl. 2 (X, 505). Legalization of railroad aid bonds.
Approved in United States v. Capdevielle, 118 Fed. 814, hoi
authority given bj La. drainage acts of 1858, 1859, 1861,
1871, to make special assessments against New Orleans as
of streets, for cost of drainage work, carried authority for lev
special tax by city to discharge debt.
Notes on U. S. Reports. 107 U. S
107 T. S. 557-567, 27 L. 57S, MILLS COUNTY v. RAILROAD COS.
SyL 2 (X, 506). Swamp lands oot beld in tnist.
-\ pproved In Simpson v. Stoddard Co., 173 Mo. 455, 73 S. W, 707.
iioIdlDg swamp lands devised to State by CougresB in 1850, and by
State lo counties In 1855, 1857, and 1860. were not held by counties
unOer tniBt which ran wltli lands.
Sjl. 4 (X. 506). Compromise pending appeal.
-Approved in State Of Wisconsin v. CommisBlonerH of Publli:
Il-ands, 183 U. S. fi03, 4U L. 393, 22 Sup. Ct 034, dlsralBsing cause
'"or want of jurisdiction.
lOT TJ. S. 568-580. 27 L. 414, READ v. PLATTESMOUTH.
Syl. 1 (X, 506). Limitation on municipality's borrowing power.
-Approved in Geer v. School District No. 11, 111 Fed, 689. 690.
'***'*Hxig school district which had ample power to create debt, aiid
^^faioli voted to Issue bonds, is liable therefor to Innocent purchaser.
^''''*^t"e It bas used proceeds, though debt limit exceeded; Thompson
*'- Town of Elton, 100 Wis. 505. 85 N. W. 427, holding where olflcers
**' »a-»uiilcipality. asaumiog to act for It, and having apparent au-
^***"lty to borrow money to be used for lawful purpose, and ft is
^** ■*^Bed, for benefit of elt.v. action for money had and received lies.
'^^^Btlngulshed in Travelers' Ins. Co. v. Mayor, m Fed. 668, 660.
**"T^ing purchaser of city railroad aid bonds, issued to railroad of
* ■* her Slate In payment of stock subscription, cannot recover of
^^ amount paid for bonds where city bad no power to aid foreign
1^ Vroad.
Statute requiring municipality to pay Illegal
«Ck^
.pproved In Aldrich v. Chemical Nat. Bank. 170 U. S. 631. 44 L.
, 20 Sup. CL 5r>3, holding national banlf which uses In Its busi-
s money obtained by its vice-president as a loan to It from
liher national bank cannot escape liability to account therefor,
ground that loan was unauthorized or that It could not itself
i-e legally borrowed the money: New Vork Life Ins. Co. v. Board
'-^^ Comrs., 106 Fed. 139. 134, upholding Rev. Stat. Ohio. | 2834c.
^^^triulring counties, which had Issued and sold bonds under act
. ~*..iich after sale of bonds was declared void, to recognize obliga*
. ^^^n and reimburse holders tbcreof to amount of principal and
'*^1erest.
Syl. 3 {X, 507). Scope of statute validating municipal bonds.
Approved In Petteison v. Berry. 125 Fed. 006. holding where
^*ider statute in force when notes given proved that contracts bear-
**:»g more than 10 per cent interest were usurious, and before suit
*"^te raised to 12 per cert., notes sued on after rate raised and
*^csrittg 12 per cent not UGurious.
J
107 U. S. 581-591 Notes on U. S. Reports. 628
Syl. 5 (X, 508). Statute containing more than one subject.
Approved in Beatrice v. Masslich, 108 Fed. 745, upholding
Nebr. act of 1887, relating to cities of second class.
107 U. S. 581-585, 27 L. 518. MEMPHIS & CHARLESTON R. R.
V. ALABAMA.
Syl. 1 (X, 508). Courts — Suits by adopted foreign corporations.
Approved in Goodwin v. New Yorls, N. H. & H. R. K. Co., 124
Fed. 358, 360, holding corporation owning railroad system in Massa-
chnsetts and Connecticut and incorporated in both States cannot
be sued in Federal court in Massachusetts by citizen of that State;
Seattle Gas, etc., Electric Co. v. Citizens* Light, etc.. Power Co.,
123 Fed. 503, holding New Jersey corporation organized under
general incorporation laws, and not under gas act, cannot engage
in manufacture and sale of gas in another State; Howard r. Gold
Reefs, 102 Fed. 658, holding facts that name of corporation indi-
cates that it is corporation of particular State and it owns prop-
erty, carries on business, and maintains office in such State, do not
overcome presumption of nonresidency where plaintiff's pleadings
show that it was incorporated in a foreign country; Debnam r.
Southern Bell Tel. Co., 120 N. C. 844, 845, 847, 36 S. B. 273, 274,
275, holding Acts 1890, chap. 62, made foreign corporation domes-
tic, so that such corporations cannot remove suits to Federal courts;
Wilson V. Railway Co., 64 S. C. 165, 36 S. E. 702, holding foreign
corporation complying with statutory provisions as to foreign cor-
porations becoming domestic can remove to Federal court suit by
citizen of this State; dissenting opinion in Calvert v. Railway Co.,
64 S. C. 154, 41 S. E. 068, majority holding foreign corporation
complying with statutory provisions as to foreign corporations be-
coming domestic can remove to Federal court suit by citizen of
this State. See 85 Am. St. Rep. 908, note.
Distinguished In Southern Ry. Co. v. Allison, 190 U. S. 337, 23
Sup. Ct. 717, 47 L. 1083, holding foreign railroad does not become
citizen of North Carolina, for purpose of Federal Jurisdiction, by
complying with N. C. I'ub. Acts 1899, chap. 62, declaring that
such corporation becomes domestic by filing charter with secretary
of State.
107 U. S. 586-591, 27 L. 322. AMBLER v. CHOTEAU.
Syl. 2 (X, 510). Necessity for pleading fraudulent acts.
Approved in Winchester v. Howard, 136 Cal. 452, 64 Pac 694,
holding in action to charge corporation directors with misappro-
priation of funds by officers, use of words ** unlawful " and " mis-
appropriation " did not dispense with necessity for pleading facts
showing misappropriation.
Notes on D. S. Reports. 107 U. S. 591-596
Sy\, 3 (X, 510). AceountiDg should be against corporation as
-Approved in Atlantic Trust Co. v. Dana, 128 Fed. 222, holding
<i^^c?ree against receiver, ordered by appointing order to defend suits
to c^stablish liens, binds all parties to, and interveners in, suit in
icli receiver appointed; Farmers* Mfg. Co. v. Spruks Mfg. Co.,
JPed. 593, holding officers of corporation not liable for infringe-
Tk-^ of patent by corporation, where they are not charged with hav-
jparticipated in infringement, except as officers of corporation;
^rera v. Atlantic, etc., Co., 104 Fed. 893, holding suit for infringe-
n^ of patent cannot be maintained against an individual who is
alleged to have infrinpred, except in his official capacity as offi-
of corporation charged to have committed the infringement,
^which is not shown to be solvent.
XJ. S. 591-595, 27 L. 488, UNION TRUST CO. T. SOUTHER.
1. 1 (X, 510). Imposition of terms on appointment of receiver.
K>proved In Gregg v. Mercantile Trust Co., 109 Fed. 226, 228,
tug claims for legal services rendered railroad in ordinary
of its business under special employment, which do not
contribute to advantage of mortgagees, have no preference
mortgage; International Trust Co. v. United Coal Co., 27 Colo.
60 Pac. 624, holding receiver's certificates issued to secure
^i^xns for labor in canning on business have no priority over
^^^^age- See 72 Am. St. Rep. 91, note.
l^tinguished in Farmors* Loan & Trust Co. v. American W. Co.,
-E'ed. 26, 28, 30, holding where water company owed for engines
receivers appointed on application of stockholders and unse-
•^3 creditors applied income to payment of prior mortgage and
engines unpaid for, and receiver then appointed at suit of
cagees who collected income earned prior to appointment, court
apply this sum to payment for engines; Illinois Trust, etc.,
V. Doud, 105 Fed. 144, holding loan to quasi-public mortgagor
ortgage of its income of money to make beneficial and neces-
addition to its mortgaged property entitled lender to no prefer-
ci^o^ over prior mortgage covering all income and property of mort-
S'^S^z^:* acquired and to bo acquired.
^^ tJ. S. 596, 27 L. 490, UNION TRUST CO. v. WALKER.
^^^ -■- 1 (X, 513). Priority of assigned claim for operating expenses.
'^^^^l)roved In Columbus, etc., R. R. Co. Appeals. 109 Fed. 197, and
^^ '^^^ Assignment Sectional Dock Co., 80 Mo. App. 62, both reaffirm-
^^« ^^-ule.
Vol. 11—34
ox^
Notes on D. S. ReporB.
ST L. 5T4. DAVIS ». SOUTH CAROLINA,
Bemoral — Prosecution against asaistant Fede^
ealth of Virginia v. De Hart. 119 Fed. .«:^21.
I ptoBecutiou tor BsBBUlt committed In repell* »»S
a dcfendaat wbile acting na posaeman under appoi
i ttj <li!tntj inarsbal is removable to Federal court
SyL i (X, 5H). State judgment after removal void.
.ilM»»OT«J la Stale v. Adler. 67 Ark. 477. 55 S. W. 853. holdfe i^S
ir wtiw ^cld U bail be diat-barged on habeas corpus by tribunal **'
i-MUiwtirat JurlsdlctloQ, ball also dlEcbsrged.
IWT V. S. SM-eill, 27 L. 500. BASKET v. HASSELL.
SyL 3 (X, aH). Eiecutlon of gift cauaa morUa.
.lj'l>'^"fwl In Chumbers v. M'Creery. lOG Fed. 308. applying J. ^^ile
vrbvrw buaband gave wire aeceas to aafe-depoalt box in ntalcb btvx:^^*'^
KMi/i, but b* blntaelf collected coupons and sold aome of boo^ ^^'
Wr'Kbl V- UragR, 108 Fed. 32. holding facta and circumstances **
sUltMueuts of Intention ir.ade at other tlmea are InadmlsaihlC! **
IHuv* luIeDI to pnrt with control where they are equally consist; ^ss=**^
wtiti lutvuilon that Instrument ahould remain under decedent's (^*^=^— •*
li-ol tlurlujE life and ahould not be delivered tilt after death; Ho^ ^**
V. ^Illvaii, 114 Iowa, HJi). 87 N. W. 449. holding where deced ^^^^^^
lukvit aon-lD-law to bank and deposits sum in his name, and la'C:^ - ^
.tUKt prior to death, gives scn-in-law raemoranduni directing diap*::^^^^
iluu i>( fund among beneUciaries, there is sulHcient delivery la tr"» — -^'"^
t»r bencflclnrlea lo eonatliute gift causa mortis; Stokes v. Sprag""^^^"^
Ui» Iowa. 87. 81 N. W. IQH, holding where Intestate indorsed no- '^^*^*"
" lu c*se of my death pay to" plaintiff, and friend promised
ilclivvr notes to plaintiff but did not take possession of them
u tor Inifstate's death, there waa not sufficient delivery to o
tuitt fitt cauaa mortis.
SyL 3 (X. 515). tiifts causa mortis and teatamentary diaposlth
.\iiproved In Deiieff v. Helms, 42 Or. IGTi, 160, 70 Pac. 3ai, ho -
Inn wbvre deceased owned deposit in bank and another in hait_
dI N. and day prior to de.ath called N. and H. and banker.
HiiH>>ui)c«d that be gave II. all he had and that H. should
hiui during life, and on death pay all charges, pay himself liberal*
uud lilve remainder to slsier, and Indorsed certltlcale of deposit
U.. Hu<l ordered N. to p:ty money who did so. there was valid gl
LtiiiKa mortis.
Ulstlngulahed >d John.^on v. Colley, 101 Va. 419, 44 8. E. 7Z2, n
holding as gift causa mortis gtft of money to third persona by oi
t day aaylDg. " U be died give It to little colored gL
Llbble,"
Notes on U. S. Reports. 107 U. S. 617-635
4 (X, 515). Gift — Delivery of certificate of deposit,
►roved in Blazo v. Cochrane, 71 N. H. 587, 53 AtL 1027, hold-
«J^_ ^^^^■^^dorsed promissory note may be subject of gift; First Nat.
▼. HoUand, 99 Va. 502, 86 Am. St. Rep. 904, 39 S. E. 128,
ig delivery of stock certificate unindorsed by donor to donee,
^ ^*^ latent to transfer title by way of gift, is effectual as equitable
ass I ^j-ximent; Opitz v. Karel, 118 Wis. 530, 95 N. W. 949, upholding
P*'^**^>X gift of insurance policy payable to personal representatives
^^ SLJSsured, policy providing filing of duplicate on written assign-
ing
5 (X, 515). Gift causa mortis — Retention of controL
X>proved in Castle v. Persons, 117 Fed. 838, holding verbal dlrec-
tioxm l>y creditor to debtor to pay debt which Is not evidenced by
mote or other writing to another, where debtor at time accepts
r and promises donee to make payment to heirs, constitutes
delivery to validate gift of chose in action causa mortis; Dur-
y^«i- ^. Harvey, 183 Mass. 433, 67 N. B. 352, holding where one
^^^>*^'t^inplating suicide placed In envelope agreement whereby cer-
person was bound to pay him $1,000 per month during term
<:^rtain lease and an order to that person to pay half of it to
-t^^tiff and placed it in hands of third person, with directions that
^^ b^ opened only in case of his death or by his direction, there
no gift
r. 8. 617-624, 27 L. 490, BARBER v. SCHELL.
2 (X, 516). Tariff — QuaUfication of designation.
X>x>roved in United States v. Nordlinger, 121 Fed. 692, holding
On citron taxable as "fruits preserved in sugar," under tariff
^€83, par. 302.
r. S. 625-630. Not cited.
^^'^ X:r. S. 631-635. 27 L. 493, HILL v. HARDING.
« 2 (X, 517). Stay of State action pending bankruptcy.
^ ^ proved in In re Horfstein, 122 Fed. 271, holding Bankruptcy
^^^^^^ may enjoin State proceedings which interfere with admlnis-
c^n of estate; In re Geister, 97 Fed. 323, holding where at time
^Ojudication State action pending against bankrupt based on
which discharge in bankruptcy would release, application for
j^ - should be made to State court under bankruptcy act, § 11;
V^^^Xithal V. Nove, 175 Mass. 563, 78 Am. St. Rep. 516, 50 N. E.
l:iolding where, after verdict and before judgment, defendants
adjudicated bankrupts, and thereafter moved to stay proceed-
^- - denial of motion and entry of special judgment to enable
^^*^ ""^'ff to proceed against sureties on bond to dissolve attachment,
more than four months prior to bankruptcy, was proper;
107 U. S. 030-655 Notes on U. S. Reports. 532
Taylor v. Taylor, 59 N. J. Eq. 90, 45 Atl. 440, holding bankruptcy
act 1898, § 67b, does not transfer to trustee right of Judgment
creditor to enforce equitable lien acquired by filing creditor's bill
before banivruptcy proceedings begun, or abate such creditor's right
to prosecute such suit
107 U. S. 636-639. 27 L. 517. DUFF v. STERLING PUMP CO.
Syl. 2 (X, 518). Patents — Prior act.
Approved hi William Mann Co. v. Hoffmann, 104 Fed. 254, hold-
ing Leslie patent No. 581,123, for improvements In binders for loose
leaf ledgers, not being pioneer invention, must be confined to par-
ticular construction of device shown in specification; Stokes, etc.,
Mfg. Co. V. Heller, 101 Fed. 269, holding Stokes patents Nos.
370,400. and 397,254, for in?provement8 In rasp-cutting machines, not
being for primary inventions, are limited to specific combinations
described.
107 U. S. 640-648, 27 L. GOl, GAGE v. HERRING.
Syl. 2 (X, 520). Patents for combination.
Approved in Brammer v. Schroeder, 106 Fed. 921, holding Bram-
mer patent No. 606,044, for improvement in washing machines, in-
fringes Schroeder patent No. 535,465; National Hollow, etc., Co. r.
Interchangeable, etc., Co., 106 Fed. 711, upholding Hein patent No.
361,009, claim 2, for metallic brake beam.
Syl. 3 (X, 520). Patentee must specify new elements.
Approved in Levy v. Harris, 124 Fed. 71, holding Levy patent No.
664,564, for qulll-grinding machine, claim 1, valid, but not infringed;
United Blue Flame Oil Stove Co. v. Glazier, 119 Fed. 164, holding
Blackford reissue No. 11,592, for vapor burner, claim 9, limited by
prior art to specific structure claimed; Norton v. Wheaton, 97 Fed.
•643, 644, holding Jordan patent No. 307,197, for improvements in
<;an-ending machines, not being for pioneer patent, is confined to
•exact elements of device shown.
107 U. S. 649-655, 27 L. 576, SLAWSON v. GRAND STREET R. R.
Syl. 4 (X, 522). Trifling devices not patentable.
Approved in Jones v. Cyphers, 120 Fed. 755, holding no patentable
Invention in Jones patent system for incubator ventilation, consist-
ing of circulation caused by heating outlet pipe; Rodiger v. Davids
Mfg. Co., 126 Fed. 965, holding no patentable invention in Rodiger *
patent mucilage-holder, consisting of double apartment cylindrical J
cup for softening mucilage by evaporation of water; L. E. Water- —
man Co. v. Forsyth, 121 Fed. 106, holding Waterman patent No...*
604.690, for improvement in fountain pens, void for want of patent — z
able invention; Persons v. Minneapolis, etc. Cor., 106 Fed. 944^^
Notes on D. S. Reports. 107 U. S, 6Se-8Tl
faolrting Albertus &, Jobnson patent No. 550.326, for band cutter
an*l feeder tor threshing machine, void for lack of patentable nov-
elty: riumb V. New York, etc., B. R., 97 Fed. MS, holding McKenna
patent Ko. 348,280, for air brake attachment, void for lack of pai-
^nt^lile novelty.
Syl. 5 (s, 523). Patents — Judicial notice of state of art.
■A- Improved In Farraers" Mfg. Co. v. Spruka Mfg. Co.. 119 Fed. 5D5,
•»ol«ltug East patent No. 420,021, for ventilating barrel, void for lack
**'■ E»atentable novelty.
***■'' fJ. S. 655-671, 27 L. 520, UNITED STATES v. BRIXTON.
Syl. 1 (X, 523). Indictment for making false bank entries.
^distinguished in Unitad States v. Young, 128 Fed. 115, holding
^nti-y f)f worthless check actually received aa " cash Item '' not sup-
'^***^ indictment ngalnet national bank cuahler under Rev. Stat.,
8 5209, for making " false entry;" Jewett v. United Stales, 100 Fed.
S30.
bolding indictment under Rev. Stat, i 5209, charging that
fcio^
*^^*s«?d did wiilfully, unlawfully, and fraudulently misapply and
con-Vert assets of national bank to own use, with Intent to injure
^|***i Oefrand assoclatlou, which conversion was done by means to
*'3<i Jury unknown, not uncertain for failure to otherwise allege
funds were misapplied.
^i"X. 5 (X, 524). Indictment In language of statute.
-^tijiroved In United Stales v. Trosper. 127 Fed. 477, upholding
*^*<^"tment under Rev. Stat., |! 5409, probiblting abstracting mall
''■^^^^r, charging tliat defendant did "steal " and take package from
***1^; In re Bellnh, 116 Fed. 75, upholding averment in petition
'-** voluntary iiankruptcy that defendant at certain lime received
^^*^i.fled sum of money from speciUed source, which sum " he has
^»~ since concealed and secreted with intent to hinder, delay, or
j^'"*-.«ud creditors," Rleger v. United Slates, 107 Fed. B2(i, holding
*-*=»dictment under Rev. Stat. S 5201), it Is sufflclent to allege gen-
-^^ *--iy Ihat act constituting offense was done for use. benefit, and
/^^~ ■«aniage of accused, or some person other than bank, and convor-
* ***^*- of fund or credit need not be averred; United States v. Jlc-
**-^»:^e, 107 Fed. 271, upholding Indictment for aiding mlsappllcatlnu
^_ ^*^^ational bank funds, which distinctly charges embeazlement by
^^ *aler: .lewelt V. United States, 100 Fed. 837. upholding Indlct-
^*nt under Hev. Stat., j SIIOB, charging one, as " president, director.
^^^. agent " of national bank In process of liquidation with willfully
, ^^ ^^applylng funds; dissenting opinion In Winchester v. Iluwnrd.
^-^ Cal. 453. 89 Am. St. Rep. lOS, 04 Pac. 694, majority holding
*^j>orate directors not liable for damages resulting from
diligence In mauagemeuL
J
107 U. S. G71-678 Notes on U. S. Reports. 634
SyL 7 (X, 525). Indictment against bank president under Rer.
Stat, S 5209.
Approved in M'Knight v. United States, 115 Fed. 085, holding
averment in indictment charging national banis officer with em-
bezzlement by paying money on note known to be worthless with
intent to defraud bank, luck of knowledge or consent of directors
need not be proved.
SyL 8 (X, 525). Indictment for misapplication of bank funds.
Approved in McKnight v. United States, 111 Fed. 736, holding
intent essential element of offense under Rev. Stat, f 5200, and
must be alleged and. proved; Rieger v. United States, 107 Fed. 034,
holding under indictment under Rev. Stat, S 5209, alleging mis-
application of bank funds by discounting note, proof of actual with-
drawal of money from bank not necessary.
Distinguished in Winchester v. Howard, 136 GaL 445, 89 Am. St
Rep. 163, 69 Pac. 81, holding liability of directors in corporations
does not extend to damages resulting from mere negligence.
107 U. S. 671-676. Not cited.
107 U. S. 676-678, 27 L. 592. NATIONAL BANK OF XENIA T.
STEWART.
SyL 1 (X, 526). Executed national bank loan on own stock.
Approved in Lantry v. Wallace, 182 U. S. 551, 45 L. 1225, 21 Sup.
Gt 884, affirming 97 Fed. 869, holding fact that national bank pur-
chased shares of tts own stock is no defense to action by receiver
of bank against subsequent purchaser of such shares, to recover
assessment made after bank's insolvency; Scott v. Deweese, 181
U. S. 212, 45 L. 827, 21 Sup. Ot 588, holding subscriber to national
bank stock increase who pays amount of subscription for shares in
increase is, as between himself and bank creditors, a shareholder,
though whole amount of proposed increase not actually paid in; ;
Blodgett V. Lanyon Zinc Co., 120 Fed. 896, holding acts and con-
tracts of foreign corporation failing to comply with statutes per- -
mitting it to do business in State where contract made and acts m
done are valid; Brown v. Schleier, 118 Fed. 987, holding lessor of^
realty to bank under lease in which bank covenants to erect build —
ing which shall become part of realty cannot be held accountable^
to creditors because it may have exceeded powers by expending^
more money than allowed by law; Hanover Nat. Bank v. First Nat.^ '
Bank, 109 Fed. 426, holding bank liable for loan made to its presi-
dent to violate banking law.
Distinguished in Buffalo, etc., Ins. Ck>. v. Third Nat Banlc o^
Buffalo. 162 N. Y. 175, 176, 178, 56 N. E. 525, 526. holding nationaC -
bank not entitled as against bona fide purchaser to equitable lien oi
Notes on U, S, Reports. 107 D. S, 078-711
Its Dim sbares for stockholder'a debt tbougb notice to such effect
printed on certificate.
107 D. 8. e7S-«Ql, 27 L. 442, ESOANABA CO. T. CHICAGO.
Sri. 2 (X, 027). Commerce — State regulation In absence of
eongreaglonaL
Aptiroved in Oumminga v. Chicago, 188 U. S. 427. 23 Sup. Ct,
176. 47 L. 530, holding rlrer and harbor act of 1800 did not state
State power to prohlt^lt. without its permission, erection of structure
In navigable rlTer wboll; within Ita limits: llllnola Cent B. R. v.
Chlcagu, 176 D. 8. 664. 44 L. fi20, 20 Sup. CL 516. holding cliarter
of Illiaais Central Railroad Company did not grant to railroad
Waters of I-ake Michigan belonging to State; Clement v. Metro-
politan West Side El. Ry. Co.. 123 Fed. 273, holding Chicago
ordinance requiring commissioner of public worlts to provide ami
maintain vessel a'gnals on all bridges, and providing that It shall
'>e unlawful for vesaela to pass bridge when signals are up or when
bridge Is opening or closing, applies only to city owned bridges;
Prost V, Railroad Co.. 96 Me. 87, 51 AtL 809, holdmg railroad own-
'"S trestle built by legislative and congressional autborlty need
^ot compensate owner of land adjoining channel trestled for dam-
"ee to selling value of land.
SyL 3 (X, 528). Operation of ordinance of 1787 after admission.
-approved in Bollu v. Nebraska, 176 U. S. 88, 44 L. 384. 20 Sup. Ct.
~*®. upholding Nebraska statute permitting prosecution of felonies
y ^formation; Williams v. Hert, 110 Fed, 170, upholding prosecu-
■on tor felony In Indiana on information and trial by court without
'^'y. Mobile Transp. Co. v. Mobile, 128 Ala. 346. 30 So. 846. holding
^ sdmisslon of Alabama all title to shores of lands and beds of
'"^'■igable streams vested in State.
"SJ- 4 (X, 529). Congressional power over navigable streams.
Approved in The Robert W. Parsons, 191 U. S. 20, holding Erie
.^**'*1. though wholly within New Yoric State. Is navigable water of
*"te^ States within scope of Federal admiralty Jurisdiction.
^^ O- S. 6B1-7U. 2T L. 684. TRANSPORTATION CO. t. PAHKEKS-
BtJRG.
"yi. 2 (X, 530). Commerce — Wharfage charges aa tonnage tax.
^^*PnruTed in Cliff v. City of Shreveport 62 La. Ann. 1225. 27 So.
ti aiding where city and parish are authorised by general
"sse
Una,
(xtbly to establish ferries and regulate tolls, courts will not
^innke at Inatance of individuals to fix limit wblcb authorities
^yi- 5 (X 631). Wharfage and tonnage taiea distinguished.
^^t>prDved in City of St. Louis v. Consolidated Coal Co., 158 Mo.
"^^ 59 8. W. 105, Holding »old city ordinance esacUng license from
107 U. S. 7n-7U9 NotM on U. S. Reports.
r of towboat llecDBed by Congreee for coasting trade antl
gaged In Interstate transportation for privilege of towlog bost^ \
or out of harbor.
Sjl. T (X. 531), Mode of rating wharfage — Tonnage tai.
Approved In Cottlng v. GoiJanI, 183 U. S. 05, 40 L. 103. 22 ^-»
Ct. 37, hoiiling Kan. act March 3, 18U7, Umiting charges to
made b; certain stockyai'dN forporatiou without limiting chaBr-.2
to be made by other similar corporations doing smaller busln. ^
denies equal protection of laws.
Syl. 10 (X, 532). Wharves — State regulation In absence
congressional,
Approved in Portland v. Montgomery, 38 Or, 224, 62 Pac. ^
holding 2S Stat 454, 455, j 7. prohibiting construction o( whar ~^
outside harbor lines without consent of secretary of war, does
prohibit city from prohibiting erection of wharves beyond wl>- -
line established by city, nhicb line is within harbor line fixed
secretary of war.
(X, 530). Miscellaneous.
Cited in AOantIc & Pacific Tel. Co. v. Philadelphia. 190 U.
, 163, 23 Sup. Ct. 818, 47 L. lUOO, to [mint that corporation engag
In interstate commerce cannot appropriate public or private pr -"
erty without liability to charge therefor.
107 U. S. Tll-7tl8, 27 L. 448, LOUISIANA v. JUMHU
Sjl. 2 (X, 533). Nonsuability of State.
Approved in Smith v. Reeves, 178 n. S. 447. 44 L. 1148, 20 S^"
Ct. 923, holding Federal corporation cannot sue State In Fede_
Syl. 4 (X, 534). Suit against treasurer Is against State.
Approved In Farmers' Nat Bank v. Jones, 105 Fed. 463, 4 =
holding Federal court has no Jurisdiction over suit against Sl^^
officers to compel them to do acta Imposing contractual liability
State, aa it is suit agaluBt State; dissenting opinion In Soi — ^
Dakota V. North Carolina, 192 U. S. 331. 349. 24 Sup. Ct 281, 3=^
majority upholding Supreme Court's original Jurisdiction of f*^*
closure suit by South Dakota as donee of bonds Issued by No'
Carolina and secured by railway mortgage.
Syl. 5 (X, 535). Mandamus where State Interested.
Approved In Smith v. Reeves, 178 U. S. 439. 44 L. 1143. 20 £^-^
Ct 920. holding action against Stote treasurer to compel S"*^^
through him to perform Its promise to return to tax pa ^''
money that may be adjudged to have been taken under
Illegal assessment Is suit against State within Eleventh Am^^^^
ment; Starr v. Chicago, etc., Hy. Co., 110 Fed. 7, holding where *^ _
cral court la suit by etocbhoidecs enjoined railroad from put;''
J
Notes on U. S. Reports. 107 U. S. 769-812
orce State rate schedule and also enjoined State officers from
^■■=»^^^:>rcing such rates, and in related suits, appeals were taken to
^'^^^^.^ral Supreme Ck)urt which made injunction permanent, succeed-
^■^Sr attorney-general cannot sue railroad for penalties for failure
^^^ ^^xforce rates; Salem Mills Co. v. Lord, 42 Or. 89, 69 Pac. 1035,
'^^^^^^IB^ing suit against State officers to restrain them from usin;;
t^r from certain stream that is granted under certain contract
'%^^een riparian ownei-s and State is not suit against State;
^^ntiiig opinion in White v. Ayer, Auditor, 126 N. C. G05, 36 S.
-^M12, majority holding planting mandamus to compel payment
•alary of chief inspector of shell fish.
L 7 (X, 536). Judicial control over State officers.
:i)proved in State v. Chicago, etc., R. R. Co., 61 Nebr. 549, 86
557, holding Federal Injunction cannot lawfully forbid at-
ey-general from suing for penalties claimed by State under
don 9 of maximum freight law; reversed in 110 Fed. 3.
U. S. 769-812, 27 L. 468, ANTONI v. GREENHOW.
1. 2 <X, 537). Impairment of contracts.
pproved in Craig v. Herzman, 9 N. Dak. 144, 81 N. W. 289,
ing Rev. Codes, S 4795, empowering court to order sale of
ty and proceeds to be divided between mortgagee having first
on land and mechanic's lienholder who had first lien on build-
does not impair obligation of mortgage existing prior to erection
^Duilding and before law was passed; Shickel v. Berry ville L. Co.,
^a. 99, 37 S. E. 816, upholding act of December 22, 1897, chang-
method of enforcing unpaid stock subscriptions; Oshkosh Water-
^rks Co. V. City of Oshkosh, 109 Wis. 219, 85 N. W. 380, uphold-
^ charter amendment changing method of presentation of claims
Against city.
Syl. 4 (X, 538). Judicial control over State officers.
Approved in Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, holding
^here Federal court in suit by stockholders enjoined railroad from
)>ntting in force State rate schedule and also enjoined State officers
from enforcing such rates, and in related suits appeals were taken
to Federal Supreme Court which made injunction permanent,
succeeding attorney-general cannot sue railroad for penalties for
failure to enforce rates; Farmers' Nat. Bank v. Jones, 105 Fed. 464,
holding Federal court has no jurisdiction over suit against State
officers to compel them to do acts imposing contractual liability on
State, as it is suit against State.
^
CVIII UNITED STATES.
108 U. S. 4-14. Not cited.
108 U. S. 14, 15, 27 L. 634, FEIBELMAN v. PACKARD.
Syl. 1 (X, 541). Appeal by one Joint defendant
Approved in Loveless v. Ransom, 107 Fed. 627, reaffirming rule;
Fitzpatrick v. Graham, 119 Fed. 353, upholding Jurisdiction where
two of defendants against whom Joint Judgment had been rendered
failed to Join in petition for writ of error, though they were Joined
in writ; Kidder v. Fidelity, etc., Ck)., 105 Fed. 823, dismissing appeal
by one of several interveners where only complainant and receiver
of one of several defendants was cited; Huebschmann v. Von Ck>ts-
hausen, 107 Wis. 73, 82 N. W. 723, holding where, under Rev. Stat,
S 3075, providing that tenant in possession should be named as de-
fendant, where Judgment rendered against tenant and other defend-
ants, failure of tenant to join in writ of error mere irregularity,
which will not affect review on merits In absence of motioii to
dismiss.
108 U. S. 15-17. Not cited.
108 U. S. 18-24, 27 L. 636, CHICAGO, ETC., R. R. v. WIGQIN8
FERRY CO.
Syl. 2 (X, 542). Federal collateral attack on State Judgment
Approved in Defiance Water Co. v. Defiance, 191 U. S. 191, 194,
holding fact that city council has passed resolution providing for
payment of pending bill of water company, with saving danse
against city being estopped from denying existence of contract
right, does not give Federal court Jurisdiction to enjoin city ftom
appropriating money in water fund to payment of any indebtjedness
other complainant; Union & Planters' Bank v. Memphis, 189 U. S.
75, 23 Sup. Ct. 606, 47 L. 715. affirming 111 Fed. 572, holding State
Judgment for taxes only res adjudicata, in Federal courts as to taxes
for particular years; Manley v. Park, 62 Kan. 563, 64 Pac 31,,
holding Judgment of court having Jurisdiction of parties and snl
Ject-matter is conclusive as to all matters necessarily involved,
except as to Jurisdictional matters appearing in record.
108 U. S. 24-29, 27 L. 638, ST. LOUIS, ETC., R. R. v. SOUTHER
EXPRESS CO.
Syl. 1 (X, 543). What is final appealable decree.
Distinguished in Bowker v. United States, 186 U. S. 139, 46 L. 1092
22 Sup. Ct. 804, holding District Court decree dismissing cro88-Ii
[538]
S39 Kotes on U. S. Reports. 108 D. S. 30~0S
(n admlrsltr to recover damages sustained by odb vesBel In collision
wltl) anotber is not flnal Judgment, reviewable by Supremrj Court
108 IJ. S. 30, 31. Not cited.
lOS U. B. 32-51, 27 L. 641, STEBBINS v. DUNCAN.
Syl. 2 (X, 544). Secondary evidence to prove lost Instrument.
Approred in Gllmore v. Butta, 6] Kan. 31S. S9 Pac. tHG, holding
copy of deposttlon, orlglnai of nlilch was duly taken and Bled
^Ith clert of court and lost, may be read in evidence.
Syl, 4 (X, 546). Obligation of contracts — Law part of mortgage.
Approved in State Sav. Banl£ of Detroit v. Matthews. 123 Mich.
OO. 81 N. W. 918, boidiug a<;t No. 200, "Pub. Acta 1899, amending
niortgage foreclosure laws by shortening time within which sale
of land may be decreed, does not Impair obligation of existing
iiortgages.
108 U, 8. 51-66, 2T L. G4S, CONNECTICUT MUTUAL LIFK INS.
CO. V. CUSHMAN.
Syl. 2 (S, 546). Federal courts preserve State redemptions.
Approved in Interstate B. & L. Asan. v. Edgefield Hotel Co.,
120 ped. 426, and Mcllwalne v. Ellington. Ill Fed. 5S4. both hold-
'*>e where bond given by borrowing member in loan association
***d made payable at home office declares that it shall bo governed
oy laws of State where such Lome office is situated, it Is so governed
"otwithatandlng Becurlty situated In another Slate,
®yl. 4 (X, 546). Mortgages — Contracting with reference to exlat-
**»« laws.
-Approved in King t. Thompson, 110 Fed. 324, upholding Ohio
"^^- Stat. 1880, gg 3393-3400, providing that lien of niorlgagcs of
^^^rganlzed railroad companleB shall be postponed to lien of Judg-
^*^nta recovered against reorganized company for labor or materials
***■ 'or Injuries; Hoolter v. Burr, 137 Cal. 670, 70 Pac. 781. holding
"ere ^t time of execution of mortgage amount required for re-
^niptlon was amount of purchase price and 2 per cent per month
"me of redemption, payment of purchase price and 1 per cent.
■* Pi-OTlded by amendment to Code Ctv. Proc., | 702, is sufficient;
^^Jp«-BIgelow, etc., Co. v. North American, etc. Co., 62 Kan. 534,
**»«, M, holding where property suljject to mechanic's ilen was
fpfajged at certain figure but for lack of bidders no sale made.
*• a-tterward appraisement law was repealed and another order of
^® «nade and property sold without appraisement, repeal of
^*"a-iflement law did not impair contract,
^^1. 0 (X, 547). Judicial sale — Interest on redemption.
^**s«ngijl8hed In Haynes v. Tredway, 133 Cal. 404, 65 Pac. 8&4,
"^Iiig where right of redemption at time of execution of mortgage
^ «ii months but before aale It was extended to one year, time
108 U. S. 66-91 Notes on U. S. Report*. 541
for redemption was governed by law in force when mortgage w&
executed.
108 U. S. 66-73. 27 L. 654, MEDSKER v. BONEBRAKB.
Syl. 1 (X, 547). Wliat is involuntary bankruptcy.
Approved in In re Carleton, 115 Fed. 248, holding where flllni
petition in bankruptcy by one partner, copy was served on th
other partner, and he entered no appearance and was defaulted
proceeding is voluntary on part of both partners as against credito
who sought to intervene and contest on ground that firm was no
Insolvent.
Distinguished in In re F.orbes, 128 Fed. 138, holding on petitioi
of bankruptcy for firm filed by copartner, partner cannot insia
upon proof of act of bankruptcy but may show solvency.
Syl. 2 (X, 548). Appeal — Objections to master's findings.
Approved in Dolese v. McDougall, 182 111. 491, 55 N. B. 64fi
reaflSrming rule; Belding v. Hebard, 103 Fed. 541, applying rule ii
establishing boundary line; Johnson v. Gallegos, 10 N. Mex. 4, 6(
Pac. 72, holding court may of its own motion make additional an(
supplemental findings to those of master, if such additional find
ings are based on evidence, in order to clear up any matter.
Syl. 3 (X, 548). Loan by wife to husband.
Approved in Loveland v. Kearney, 14 Colo. App. 469, 60 Pac. 586
holding when husband borrows money from wife, with proml»
to repay it, there is sufficient consideration for conveyance o
real estate to her by her husband.
108 U. S. 74, 75. 27 L. 640, STUCKY v. MASONIC SAVINGS BANK
Syl. 1 (X, 548). Bankruptcy — Receipt of debt as preference.
Approved in Boudinot v. Hamann, 117 Iowa, 25, 90 N. W. 496
reaffirming rule; Pond v. New York National Exch. Bank, 124 Fed
993, upholding equity jurisdiction over suit by bankruptcy truste
to recover payment by bankrupt alleged to constitute illegal prel
erence; In re Eggert, 102 Fed. 739, holding actual knowledge b;
creditor of debtor's insolvency not necessary, if he has reasonabl
cause to believe him insolvent, in order to determine whether illega
preference was made;. Cox v. Wall, 99 Fed. 549, upholding bill t
equity by bankruptcy trustee to set aside sale of goods by bankrup
in fraud of creditors; Sirrine v. Stover, etc., Co., 64 S. C. 458, 45f
42 S. E. 432, holding certain payment not a preference.
108 U. S. 76-91, 27 L. 656, NEW HAMPSHIRE v. LOUISIANA.
Syl. 4 (X, 549). Suit on State bonds in State's name.
Approved in French Republic v. Saratoga Vichy Co., 191 U. S. 43?
holding rule of nullum tempus cannot be invoked in our courts ii
favor of foreign government suing for benefit of individual whlcl
is its lessee; Louisiana v. Texas, 176 U. S. 16, 25, 44 L. 353, 20 Bui
Bflt^^^^^^^^^Kotes on U. S. Ileporla. 108 U. 8, 92-124
Ct. 236, holding (.'onti'Dversy between State and citizen of another
State, within meaning of Conat.. art. 3, S -■ not created by
enforcement of quarantine regulations by bealtli officer of one
StJtte, to damage of citizens of another State; State v. f^OBt, 113
ViSe. C55, 80 N. W. 022, removing to Federai court suit to restrain
Federal officer doing acte t>eyond bis power: dissenting opinion In
Soutb Dakota v. North Carolina, 102 U. S. 331. 332, 341, 349, 24 Sup,
Ct, 2S1, 285, 289, majority upholding Supreme Court's original Juris-
diction over foreclosure suit by South Dakota as donee of bonds
Issued by North Carolina and secured by railway mortgage.
Distinguished in South Dakota v. North Carolina, 192 U. S. 310,
^ Sup. Ct. 272, upholding Supreme Court's original Jurisdiction
over foreclosure suit by South Dakota us donee of bonds Issued by
Mortb Caroltua and secured by railway mortgage; ^{iBsou^l t.
Ulinois, 180 U, S. 231, 240, 45 L. 508, 512, 21 Sup. Ct. 340, 343,
folding construction by public corporation as State agency of
syHiem of public works to promote health of inhabitants, but wblcb
eadangers health of inhabitants of another State, furnishes suf-
Qciem baslB for controversy between States to give Supreme Court
original Jurisdiction.
*OS U. S. 92-104, 27 L. 002, THE NUESTRA SENORA DE BEGLA.
Syl. 3 (X. 550). Effect of waiver of suit against United States.
-Approved Id TLe Paquete Habaoa, 1S9 U. S. 405, 23 Sup. Ct. 504,
^"^ L. 901, holding naval captora of prize of war, proceeds of which
ft" ixe courts decreed should he restored to claimants, caunot be
"t'ld liable therefor when libels Hied by United States In Its own
l»ehair_
t'latinguisbed In Bowker v. United States, 105 Fed. 390, holding
** admiralty suit by government to recover damages for injury to
^^^vernmeot vessel by collision, crosa-llbel alleging fault of such
^&ael and praying decree against government for damages cannot
^^ entertained.
*OS xj. 8. 105-110. Not cited.
**^ TJ. S. 110-124, 27 L. flC9. OTTAWA v. CARET.
®yi. 1 (X, 551). Powers of municipalities.
-Approved io Coquard v. Village of Oquawka, 192 III. 360, 61 N.
r~*' 603, holding power of municipality to Issue new negotiable bond^
*Viug Incidents of commercial paper, to take plHce of former Issue,
**it»ot be Implied merely from power originally conferred, autborlz-
^^ such former issue; Potts v. Cape May, 66 N. J. L, 545, 4fi Atl.
IT^^' holding under Cape May charter council cannot appoint offici-r
** aaverllae city as resort; Hurley v. Trenton, 06 N. J. L. 530. 49
J *-^ 518, holding right to " repave " not embraced wliLln authority
-^ frentun charier to " repair " streets; dissenting »plnlon in
■**«reland t. MUlen, 126 Mich. 307, 85 N. W, 88S. majority holding
108 U. S. 125-153 Notes on V- S. Reports.
»2
I
under act 1901, creallng office of public works for Detroit and
requiring governor to make provisional appointment, and directing
mayor to fill vacancy In such provisional appointment, mayor may
nppolut where governor's appointment Is void.
Syl. 4 {X. 552). Municipal power to Issue aid bond*.
Approved In dlasenting opinion la City of Fergus Fells t, Fergus
Falls Hotel Co., 80 Minn. 173, SI Am. St. Rep, 254, 83 N. W. 58,
majority holding where municipal officers illegally loaned corpora-
tion's money and took mortgage as eecurlty, city may collect debt
and foreclose as against purchasers of property subsequent to mort-
gage but with notice thereof.
108 D. S. 125-iaO, 2T L. 675, ARTHUR v. FOX.
Syl. 1 (X. 552). TarlCF on nonenumerated articles.
Approved In Hahn v. United SKites, 100 Fed. 637, holding basdles
for penholders, knives, and shoe hooks made from agate or onyx
are subject to duty imposed by tariff act 1883. par, 480, on precious
stones, under similitude clause of Eaid act
108 V. a. 130-132. 27 L. S77, WINCHESTER v. LOUD.
SyL 1 (X, 553). Removal by one defendant.
Approved In Smodley v. Smedley, 110 Fed. 258, holding no sep-
arable controversy exists in suit to recover land; Coiburn v. Hill,
101 Fed. 505, holding creditors' suit, purpose of wblcb Is to obtain
administration of property of insolvent corporation and Incidentally
to exclude certain of defendants from participating In distribution
of BHch property on ground of Invalidity of contract made by cor-
poration on which their rights depend, la Indivisible; Gales Iron
Works V. Pepper, 98 Fed. 450, holding where In Bult to enlorce
mechanic's lien other lienors made defendants and filed iross-
petitloUB for enforcement of Hens, and principal defendant Hied
answer and cross-petition bringing In as defendants a mortgagee and
also a subsequent grantee, who were citizens of same State, tbere
was no removable controversy.
Distinguished In Lake St. El. R. R. v. Zlegler, 99 Fed. 122, boldliig
In suit by corporation against holders of its stocks and bonds Top
accounting and surrender of sucb stocks and bonds on ground <
fraud, trustees not Indispensable parties.
108 U. 8. 132-143. Not cited.
108 U. S. 143-153, 27 L. 682, EWELL v. DAGGS.
Syl. 1 (X, 554). Where beneUt subsists mortgage not barrefl.
Approved In Hanchett v. Blair. 100 Fed. 825. holding where c
poratlon which has given mortgage does not make defense of limi-
tations to mortgage foreclosure, it cannot be pleaded by one lo
wbom corporation has contracted to sell property but who baA]
neither full equitable title or possession; J. M. Coe v. Flnlayson, '
;round of
> ba»
Notes on U. S. Reports. 108 U. S. 14S-153
182, 26 So. 708, holdlDg decree in foreclosure proceedini^s ascer-
amount that mortgage Intended to secure and declaring lien
on l^md mortgaged to secure same is not money decree within
lixnltr^tions statute; Cook v. Union Trust Co., etc., 106 Ky. 807, 51
S- vv^. 601, holding limitations run against mortgagee and in favor
^^ 'V'^ndor's lien, from time of last payment on purchase price
before execution of mortgage.
• 2 GK, 554). Repeal of usury statute, " void."
-^X>l)roved In Turner v. Merchants* Bank, 126 Ala, 413, 28 So.
**S, folding bill to cancel mortgage securing usurious note which
® ^^««counted by banker must make tender of principal and legal
^^texr^gt; Prazier v. Jeakins, 64 Kan. 626, 68 Pac. 28, holding titie
^^ 13d sold and deed by guardian to her husband does not pass to
P^'^^^iiaser who has notice of their relationship, and ejectment may
'^^^intained by ward for its recovery.
''-^^^tinguished in Irwin v. Marquett, 26 Ind. App. 390, 59 N. E. 40,
olci^^^ under Bums* Rev. Stat. 1894, S 6675, providing that all notes,
*^- or other securities, where whole or any part of consideration
be for money on result of wager or for paying money lent at
of such wager for purpose of being wagered, shall be void,
. — given to pay gambling losses is void in hands of bona fide
^*^^ST for value.
^^'l- 4 (X, 555). Obligation of contracts — Repeal of usury statute.
-^X>proved In Petterson v. Berry, 125 Fed. 905, holding where at
^ of execution of note legal interest was 10 per cent, but before
rate raised to 12 per cent, usury no defense where note bore 12
cent; Bvans-Snider-Buel Co. v. M*Fadden, 105 Fed. 299, 300. up-
^^^ing 29 Stat 510, chap. 136, validating recorded chattel mort-
in Indian Territory, as applied retrospectively; Clark v. Darr,
Ind. 701, 60 N. B. 691, upholding Acts 1897, p. 264, S 10, provid-
that where foreign building and loan association is insolvent
iver may bring action necessary to wind up its affairs, though it
Hot complied with laws relating to right to do business in State;
""^^^"get V. Merritt, 155 Ind. 149, 57 N. E. 717, holding obligation of
^l^ttclaim deed made by children in 1883 to widow's land, in which
r*^^y had an interest in expectancy, not impaired by Acts of 1889,
*^~ "430, § 2, providing that where children of former wife had exe-
conveyance of lands in which they had expectancy in fee
^tkg widow's life, such conveyance shall bind interest when
;^^^lred by inheritance from widow; Danforth v. Groton Water
Vale MiUs v. Same, 178 Mass. 477, 59 N. E. 1034, upholding
^t. 1900, chap. 299, prohibiting dismissal of petition pending in
^X>erior Court for condemnation, as applied to petition which had
-<) filed prior to its enactment but report dismissing It had not
^^^*i sustained; Swope v. Jordan, 107 Tenn. 179, 182, 64 S. W. 56,
^^^^ng Acta 1895, chap. 119, validating contracts of foreign cor-
I uh"
I 104
U. 8. lM-1
Note:
00 D. S. Reports.
Iioratlona made before registration ol charter, does not operate t
eated rlgUts of innocent lliird parties; WaLace v. Goodlett_
104 Tenn. CTO, 58 S, W. 314, bolding decree, rendered prior to stat—
or 1897, autliorizing recovery of legal interest and principal o
UBurlouB contract, refUHlng to enforce usurious coutract, will n(
dcfout suit to enforce same contract to extent of principal and^E^ ^B i
legal Interest brought after passage of act.
Diat'.ngulsbed in Knights Templars', etc., Co. v. Jarn
Fed. il42. holding mutual assessment losurance corporation caimocn
BO amend its constitution as to materially lessen value of pollcj~^
by reducing amount of indemnity wLlcli by terms of policy com- —
panj agreed to pay; ErauB-Snider-Buel Co. v, M'Fadden. lOS Fed. -
306, majority upholding 2U Slat. 510, cLap. 136, validating recorded.C3
chattel mortgages in Indian Territory, as applied retroBpectiTely._'^
108 U. S. 163-157, 27 L. tSC, THE BELGENLAND.
Syl. 5 (X, 556). Admiralty decree against respondent and Btipa — M
Approved In The Columbia. 100 Fed. (172. holding where bond haas
been given by claimant of libeled vessel under Rev. Stat., i Ml..
fiual decree awai'diug damages in suit may be entered against both.*
principal and surety at time of Its rendition.
108 U. S, 138-161, 27 L. 691, SHAINWALD v. LEWIS.
Sjl. 1 (S, 558). Removal — Citizenship of necessary parUeo.
Approved In Smedley v. Smedley. 110 Fed. 258, Iiolding bo sep —
amble coutrovei-sy warranting removal existed In suit to recover ~
Syl. 2 (X. 556). Removal — Separable controversy.
Approved In Colburn v. Hill, 101 Fed. 505, holding creditor's «nit -
to obtain administration of property of Insolvent corporation, and .
incidentally to exclude certain of defendants from participating ■
in distribution of such property on ground of invalidity of contract
made by corporation on which rights depend. Is Indivisible.
108 D. S. 161-185. Not cited.
108 U. S. 105-176. 27 L. 688, HILTON v. DICKINSON.
Syl. 6 [X, 558). Amount stated Id declaration as amount in
dispute.
Approved in Lilienthal v. McCormlcii, 117 Fed. 95, holding in suit
to enforce lien given by contract to secure future advances made
tliereunder, and also damages for Its breach, aggregate a
sucb advances and damages claimed In good faith constitute a
til controversy; Battle v. Atkinson, 115 Fed. 385, holding Federal
court in Arkansas has no Jurisdiction of action for unlawful detainer,
where value of premises alleged Is ?5.000, with rental value of J25
w
Notes on U. S. Reports
S U. 8. 1
Wi-moiilli; Greene County Bank v. J. H. Teasdale C. Co., 112 Ted
™2 holding in action for recovery of monpy only nmoucit of dnm
»gea claimed determines Jurisdiction, unless declnratlon on Its (nee
-'ftoB-s such amoont Is claimed In bad faith and merely to give
^torable jurisdiction; Western Union Tel. Co. v. WLito. 102 Fed.
"i- delermining amount Id controversy from defendant's answer
'" aciiou to restrain State suit.
'^ U. s. 17G-193. Not cited.
'"S Cr. 6. 193-19B, 27 L. TOl. UNITED STATES v. BRITTON.
^'- 1 (S, 501). Banks — Procuring discount of solvent malier'a
Dote.
'*-E*X»roved In M'Knight v. United States. 115 Fed. 9S5. 98G. Lold-
. '■-"Vertuent In indictment against banb officer for embezKlenienl
, '*^-jlug out money on note which he knew lo be worthless, with
. ***: lo Injure bank, that transaction was without consent or
^""ledge of directors need not be specifically proved; dissenting
, "^^on in Rieger v. United States, ll>7 Fed. ffiH, majority holding
Q_ *^<llctment under Rev. Stat.. S 5209. for criminal misapplication
_ '^nds of national bank, conversion of fund or credit need not lie
^^^tn^ed.
^ ^distinguished In Rieger v. United States, 107 Fed. 028. holding
,^ 'Udictment under Rev. Stal., f 5200, for criminal misapplication
^ tunds of national bank, conversion of fund or credit need not lie
^erred.
8yl. 2 (X, 561). Banks permitting withdrawal of debtor's deposit.
^ Distinguished In Rieger v. United Btates. 107 Fed. 026. holding In
.^^dlctment for criminal misapplication of untlonul bank fuuds under
"^?{er. Stat.. { 5209, conversion of fund or credit need not be averred
>0S U. S. 100-207, 27 L. COS. UNITED STATES v. BRITTON.
Syi. 1 (X, 5S1). Indictment for conspiracy.
Approved in United States v. Greene. 100 Fed. 046. 947, re-
affirming rule: United States v. McKinley, 126 Fed. 242, and Gantt
V. United States. 108 Fed. 52. both holding indictment under Rev.
Stat., i 5440, charging conspiracy to defraud government of tllli'
to land by means of fraudulent entry under homestead law. need
not allege that it was subject to homestead entrf; United States v.
Greene, 115 Fed. 352. applying rule to Indictment charging con-
spiracy with engineer In charge of government work to defraud
government by obtaining through such officer contracts by wblcii
they were to be paid high prices [or Inferior work; Wright v. United
States, 108 Fed, 81^, upholding Indictment under Hev- Stat., 9 5440,
where it charges that defetidants named "unlawfully did conspire
to defraud United States,'' followed by statement of nature and
purpose of conspiracy and acts done to effect object.
a
r
J08 U, S. 20S-227 Notes on U. 8. Reports.
Syl. 2 (X, 501). Imlietmcnt for conspiracy-
Approved iu Conrad y. United States, 127 Fed. 801. tanldlDg Indict
ment under Rev. Stat., i 30!)5. tor obstructing mails, defective fc
nonallegalion or octlng " knowingly and willfully." not cured I
nlleging knowingly couBpirlng lo obBtmct; Dalton v. United State -
127 Fed. 546, holding defective Indictment uuder Rev. Stai., { 549™
for fraudulent use of malle for lack of partlcuiailzlng la deacriblii^ ■
scheme charged; M'Kenna v. United States. 127 Fed. 91, holding Ie^e: i
sufficient Indictment under Rev. Stat., { 5508, charging defendaa»- a
with couapiracy to injure named citizens of Kentucky In free eier — ■ •
else of right secured to tbeu.
Syl. 4 (X, 5(12). No conimon-ta>' offenses against United States.
Approved in United States v. Dletrlcb. 12G Fed. 078, boldlng per -^^se
son elected to United States senate until he has been accepted l)mz^MM
senate as member is not " uii'mber of Congress," within Rev. Stat*" -^
S 1781, making it an offense for member of Congress lo receir;^'^
brtbe.
lOS U. S. 20S-^217. Not cited.
108 U. 8. 218-227. 27 L. 706. MANHATTAN MEDICINE CO ^
WOOD.
Syl. 3 (X, B64). Infringement of trade-mark — Owner's lal^st ■
rep resent a tlons.
Approved in Worden v. t^alifornia Fig Syrup Co.. 187 U. S. 53Z ^^^
536, 23 Sup. Ct. 105, ltt7, 47 L. 289, 291. refusing equitable rell^» -■
against Imitation of preparation marked in Imitation of " Syni^L-W^
of Figs;" Holzopfel's Composition Co. v. Rahtjen's American Con^ei:^
position Co., 1S3 U. S. 8, 4(1 L. 53, 22 Sup. Ct. B8. holding no rigb=* ^
trade-mark which Includes word " patent " and which describee;^ ■"
article as "patented,'' can arise where tliere is and lias been n.*^^'^
patent; Drl v, Hirach, 123 Fed. 575, refusing to entertain suit tr^
enjoin infringement of " Old Style Nelson County Pure Rye " wher-:*^ —
complainant's buslnesH and trade-mark founded on misrepreseiE^K ^
tations; Edward Thompson Co. v. American Law Book Co.. 12:^^^
Fed. 92G, boldlng publisher of law encyclopedia which fumlshe*-^^
authors of its articles with paragraphs cut from copyrighted digest ^^ ^
of others. Its authors using such paragraphs in compilation of thei * "^
articles, cannot charge another with infringement of copyright*" *^
A. Bauer & Co. v. Distlllerie De La Benedictine, 120 Fed. T7. hoIdK» *
ing complainant to be entitled to protection of "Benedictine" a« -^^
trade-mark need not Indicate in connection wllh Its use that i .■
claims as assignee; Michigan Pipe Co. v. Fremont, etc., Co., liz: -*^
Fed. 287, refusing reconveyance to vendors on ground of breactK ^^^
of contract on part of vendees, where vendora were guilty of bac^ ^
faith and unconscionable acts: Dadirrian v. Tacubian, 88 Fed. S7tS-^
holding complainant cannot protect monopoly iu use of trades^^
W7 Notes on U. S. Reportt. 108 D. S. 228-259
lame, which Is In fact name of article well Iidowd In foreign
'onntrteB, on ground that product to which he applies 11 Is new arti-
*'e. wtxere he has represented by hla lahels and otherwise that It was
'DpIi anieie and hog built up busluesa which he seeks to protect
"Poii suph representatloUH.
J^'stingulshed In Macmahon. ptc. Co. v. Denver, etc.. Co.. 113 Fed.
di& **''''"''B transfer of right to use Irade-niark In connection with
ffee-^m oriicle or one of different inniiufacture la fraud on public
oleii will not be protected.
e representation as to place or
""^^s 85 Am. St. Hep. 87. note.
* ^^. s. 228-237. 2t l. 711. memphis, etc., e. r. co. v. united
States.
g."^ C>p roved in dissenting opinion In Terre Haute, etc., R. H. Co. v.
^^*-«, 159 [„(j. 4!Ki. 65 N. E. 418. majority determining liability of
^^^r-oad created by Laws 1847. p. 77, to an accounting for certain
*Plna fund due State to use of BC'hool fund.
^^ D. 8. 237-243, 27 L. T0», EX PARTE NOHTON.
Syl. 1 (X. 363). Final appealable decree.
Approved la East Const Cedar Co. v. Fooples' Bank. Ill Fed.
"^iH, botding decree In pai'tltion suit in which ouly controveray Is
~Vhetber land should be partitioned In specie or sold and proceeds
divided, which determines sucb Issue and orders vale of land, leav-
ing distribution of proceeds as only tblng to be done. Is final and
appeatable-
108 U. S. 243-266. Not cited.
108 U. 8. 256-259, 27 L. 718. WILKINS y. BLLETT.
Syl. 1 (S, 506). Law governing succeasion of personalty.
Approved In Frotblngliam v. Shaw. 175 Mass. 62, TS Am. St, Rep.
477. 478. ^ N. E. 625. holding where decedent's domicile was within
Btate. succession to pereonalty belonging to him In hands of New
York agents, consisHng of bonds secured by mortgage on New
Hampshire realty, passed under laws of domicile, and property
was subject to collateral inheritance tai.
Syl. 2 (X, 5C6). Place of administration of decedent's estate.
Approved In Tootle v. Coleman, 107 Fed. 44. holding garnishment
by citizen of one State of debtor of same State where creditor
resides, whose debt was contracted and le payable In another State.
Is such attachment of cbose In action as authorizes court to ohtiihi
Jurisdiction to dispose of It by publicBtlon of summons agaiu^i
108 U. S. 260-267 Notes on U. S. Reports. 548
defendant; Maas v. German Sav. Bank, 176 N. Y. 380, 08 N. E. 058.
holding where savings bank pays a deposit standing In name of
decedent in good faith, to his administrator appointed in another
State, such payment Is good as against administrator appointed .
in State of which appointment bank had no notice.
Syl. 5 (X, 567). Payment to administrator of another State.
Approved in Brown v. Equitable L. Assur. Soc, 112 Fed. 84tf, ^
holding where In action by New York administrators of one who^^
died in Honolulu, to recover on policy payable to administrator,^
defendant pleaded that prior Honolulu administrator had recoi
judgment on policy, such defense was good; Gardiner v. Thomdike
183 Mass. 82, 66 N. E. 034, holding payment of legacy to guardiair.
of legatee who was appointed in another State and who, togethea^
with legatee, is resident of such other State, is valid.
Distinguished in Overby v. Gordon, 177 U. S. 228, 44 L. 747, 2X^
Sup. Ct. 609, holding dismissal of proceedings for admiuistratio='
on property In District of Columbia by court of District which ha
obtained Jurisdiction, not required by 24 Stat. 431, where part;
to proceedings in District while they are pending and undecided go
to State and obtains letters on assertion that decedent was do
idled therein.
108 U. S. 260-267, 27 L. 719, HAMPTON v. PHIPPS.
Syl. 1 (X, 567). Subrogation of creditor.
Approved in Swift v. Kortrecht, 112 Fed. 714, holding whe
borrower to surety on note, trust deed to indemnify snch sure
against loss, lender entitled to subrogation to rights of such sure
under such deed and to lien on premises conveyed thereby superi
to that of subsequent judgment creditor; Courtier, etc.. Printing C* -
V. Schaefer, etc.. Brewing Co., 101 Fed. 705, holding where debt
gave sureties mortgage to indemnify them against debts up P^
$25,000, and after giving notes to bank on which mortgagees wer
securities for amounts exceeding amount secured, he contracted deF
to another creditor likewise secured, and became bankrupt, la
two creditors entitled to share ratably in benefit of mortga
National Bank v. Davis, 87 Mo. App. 247, holding surety indemnifi*
by principal is trustee for creditor who can avail himself of su
indemnity; Magill v. Brown Bros., 20 Tex. Civ. 674, 50 S. W. 1
holding whore A. mortgaged land to B. and made second mortg
to C, covenanting with latter to pay off B.'s mortgage and g
deed of trust on other property to secure such covenant, B
learning of such deed of trust could enforce foreclosure to sec
his debt.
Syl. 4 (X, 568). Surety's security to each other.
Approved in American Surety Co. v. Boyle, 65 Ohio St. 494,
N. E. 75, holding where surety on indemnifying bond given
sureties on replevin bond is surety company executing bond
03
la
lo
Notes on U. S. Reports. 108 U. S. 267-287
consideration of premium paid to it by principal obligor in replevin
bon^, right of cosureties to recover cannot exceed amount of pre-
mlazzi paid.
108 XJ. S. 267-269. Not cited.
108 XJ. S. 269-277, 27 L. 719, ROUNDTREE v. SMITH.
Sjrl- 1 (X, 568). Gaming — Evidence of other's intent.
^X>m)roved In Ponder v. Jerome Hill Cotton Co., 100 Fed. 376,
hol^ixig where defendant executed note to brolsers through whom
they- had made contract for future delivery, for amount of loss
pa!<l^ for them by such brokers on contract, which had been sold
befox-^ time for delivery, defendant has burden of showing con-
^ae-t was wagering contract, in order to render note invalid; Hill
^" L-^ Ty, 98 Fed. 97, holding where no actual delivery contemplated
*^^^ oniy that one party shall pay other difference between contract
Prie^ and market price at date for executing contract, contract Is
^ol^ ^ wagering one; Johnston v. Miller, 67 Ark. 180, 53 S. W.
^^*^» holding fact that broker purchased cotton for future delivery
^^ ^^Tie whom he knew could not pay for it and who informed him
ne ^«3«7-^s buying merely for the profit not suflicient to show broker's
'^^^^^ ledge that transaction was speculative, without delivery being
^^ti^mplated; dissenting opinion in Bartlett v. Collins, 109 Wis.
y^* S5 N. W. 706, majority holding in action on brokerage contract
*' ^ales of grain for future delivery, where defendant contended
^^^ contract was wagering one, it was error to charge that burden
^^ on defendant to sho^ that both parties intended transaction
* "^^agering contract See 83 Am. St. Rep. 934, note.
, ^iminguished in Waite v. Frank, 14 S. Dak. 637, 86 N. W. 648,
*^-iijg in suit to recover note given for margins, others who were
, ^^Btomed to deal with plaintiff on his exchange and who knew
^ ^^ such exchange was conducted could testify as to custom of
flings at such exchange with reference to payments.
^^1. 2 (X, 568). Broker's advances on future delivery contracts.
^^Pproved in Parker v. Moore, 115 Fed. 804, holding broker may
^ -»Ver margins advanced to principal though principal Intended
speculate on price, where he kept such intention secret.
XJ. S. 277-282. Not cited.
XJ. S. 282-287, 27 L. 728, LEWHS v. CITY OF SHREVEPORT.
^yi. 1 (X, 569). Municipal power to aid railroads.
jj^ "Approved in dissenting opinion jn City of Fergus P''alls v. Fergus
^lls Hotel Co., 80 Minn. 173, 83 N. W. 56, majority holding wlicre
^^^leipal oflicers in violation of law loaned city's money to imli-
^^al, taking mortgage as security, purchaser of property subse-
^^^nt to mortgage, but with notice of mortgage lien, cannot take
^^antage of fact that ofllcer's act was ultra vires.
lUS U. S. 2(K>-li<>7
Notes on U. S. I.
dc'fendant; Maas v. Corniaii Sav. Bai
h()l(Iin;j: wIkm'o savings ])auk pays a
<l<MMMl«*iit in p)o<l failli. to his adn.
State, such paynicMit is j?oo(l as ; .
in State of wliich appointment ban:
Syl. i> (X, 5«;7). raynuMit to a«l
Approved in P»ro\vn v. Eipiital-:
holding where in action ])y New
died in Honolulu, to recover on
defendant pleaded that prior Ho;.-
judgment on i)oliey, such defensr
183 Mass. 82. (Hi N. E. (>34. hold::
of legatee who was appointed r
with legatee, is resident of sucli
Distinguished in Overhy v. «-
Sup. Ct. ()09. holding dismiss;i.
on property in District of Coli;
obtained jurisdiction, not roi
to proceedings in District whll
to State and obtains letters ■■
iciled therein.
108 U. S. 2(>0-2<57, 27 L. 710. n
Syl. 1 (X, r)G7). Subrogatii"
Approved in Swift v. K«'''
borrower to sun^ty on not*-
against loss, lender entitled <■
under such deed and to lien -
to that of subsequent juilgnt
v. Schaefer, etc., Brewing »
gave sureties mortgage !■»
$25,000, and after giving : •■
securities for amounts ex- '■<
to another creditor lik»-.
two creditors entitled i-
National Bank v. Davi>. - .
by principal is trust e«^
indemnity; Magill v. 1'.
holding where A. m(M-<L
to C, covenanting \\\:..
deed of trust on otiif,
l(»arning of such dee*;
his debt.
Syl. 4 (X, 5(;8). St..
Approved in A mm- .
N. P:. 75, holding .
sureties on replcvii*
- .Y
■ il :■■.'! ta.
. uv., lioU__:=»
• l«\ wife i ^
: '1 wile wa-*'
'..ill not hav ^'
■■•.I? -'Sling wife'"
:! ilivorce suit It
:5i
117. and ChambcrHi
i Mjinu' rule; Copelai
mr taking appeal \»
w will not be enter
\. :l«ama. etc., Mfg. Co.- -
.:■• which has renderei^-*'
■ ancillary bill, restrain^::^^
V action subsequently^^
itVccting rights deter —
•hnermined.
.; :ippeal.
'.;:ia Corp. Comm.,
•zo Co., 178 U. S. 32,
'..OS for errors in decree-«^=^^_J2I
•yx V. Tcrkins, 114 Fed. —
'■.;ough in nature of bill
■..'■\ of court, and decree
■• viewable on appeal.
. y. Ill Fed. 839, 840, bold-
! '.'ase in which no appeal
■me within which bill of
isr be filed within the six
:rvuit Court of Appeals.
::. ports. 108 U. S. 312-335
- . "N V. VITI.
•' copies of statues.
.'•nis. etc., Exp. Co., 101 Fed. 112,
■ \im\i}- by professional sculptor from
/i'lur shown by full-sized drawini^,
w as necessary to first model them in
-■:ist, from which work in wood was
ilrii to free entry under paragraph 575
1 .. T:;i>. BALTIMORE, ETC., R. R. v. FIFTH
Nuisance defined.
i' l.uj V. Chicago, etc., Ry., 118 Wis. 366, 95 N. W.
: . 1.1 liev. Stot. 1898, S 1798, requiring railroads to
. 'iiatinn facilities, company not liable for maintenance
:- ii>Mt>ssary to business, and reasonably located.
•'•t:;i. 1>u mages for and prevention of nuisance.
• i In flisscnting opinion in Austin v. Augusta Term. Ry.
^ «;:;. 71f>. T2\\ 34 S. E. 871, majority holding railroad not
■ liwncr of realty for diminution in market value thereof,
•■•■J. t'lniii noise or from smoke or cinders in prosecution of
!- ys lawful business, wHlcli do not physically affect property
'i<iit iiuToly cause personal discomforts to occupants; Bates
-[■•oU. 171 N. Y. 470, 64 N. E. 184, restraining continuance of
• :i;i!ir(' of large structures for storage of tools on street by sub-
= :i'Lt»rs (»n New York subway as nuisance.
>; I. 4 \X. 573). Private corporations defined.
.\;.jn(.vod in Grand Lodge v. BoUman, 22 Tex. Civ. Ill, 53 S. W.
^■ij. h«)hiiiig where plaintiflT sued defendant as corporation and de-
^♦■!nl;Mit answered that it was not incorporated but was a voluntary
tsvMiiation, and plaintiflT then filed supplementary petition against
•U'fiTidant as voluntary association, and name of association was
siiiiH* in both petitions, supplemental petition did not implead au-
nt iitfr defendant
Syl. 5 (X, 573). Nuisance — Grant of right to erect railroad shops.
Apuroved in Northern Pac. Ry. v. United States, 104 Fed. 603,
lioMing where by reason of nature of clay under right of way
lu<'^itod some distance from river, track settled and additional
woiffht of embankment built by railroad forced clay into river
t-ausing bar, which obstructed navigation, public nuisance created
for wliich railroad is liable; Chicago, etc., Ry. v. First Methodist
Episcopal Church, 102 Fed. 87, 92. holding railroad operating road
in public street and erecting hydrant on station grounds opposite
108 U. S. 317-335 Notes on D. S. Reports. 53 J=-2
cburcb BO tliat iioleea and smoke Incident to stopping snil atariia^^ -B
of trslns at liydrant Interfere with cliurch services, and render -^«
building unflt for uees for wlilcli It waa built, fonstltute private ^t*
nuisance; Wlllla v. K.. etc.. Bridge Co.. 104 Ky. 190, 46 S. W. 4S»^^^^*-y
holding property-owner mny maintain action for damages agalusr ^^
railroad for loss or deterioration In value of realty caused by opera- -^
Hon of trains, by jarring- walls and blowing smoke and clniJer^* — «— «■
•upon premises; Weston Paper Co. t. Pope. 155 Ind. 401, 402, 57 N, E- ^*"t~ J-
72], holding fact that defendant has esijended Inrge sum of monej— .^^ -^- 13
In couBtniction of its plant and conducts It In careful manner, with — «'*_'»-
out malice, Is no defense' to action for damages for polluting stream m."M ■ ^^
by dlBcharglug waste matter Into it. thereby Injuring lower riparian «3«: — ^
owners: Ridge t. Pennsylvania R. R. Co,. 58 N. J. Bq- 176. 43 Atl._ ■: - ^
278, holding where railroad actiulres land in heart of city for ler — —^^kt-
minal purposes It cannot use such land in disregard of comfort and ^E:* -^^
property of others; Terminal Co, v. .lacobs, KM) Temi. 741. 74.3. 72 T^,^ —
S. W. 95T, 058, holding where charter of riillroad gives It autliority ""^^^^
to acquire property for terminals, such right Is no defense to action «r:*^^
against it for damages from nuisance conslsthig of roundhouse -^^^-^^
erected by it. .J
Distinguished in Austin v. Augusta Term. Ry. Co.. 108 Oa. 686, — -^^
690, 694, 34 S. E. 858. 8G0, 881. holding railroad not liable to owner -^^
of realty for diminution in market value thereof, resulting from ^^^
noise or from smoke or cinders In prosecution of company's lawful ^^^
business, which do not physically affect property Itself, but merely "t
cause personal discomforts to occupants.
Syl. 8 (X. 574), Nuisance — Reasonable care — Incidental Incon-
venience.
Approved in Georgia E. R. Co. v. Maddox, IIG Ga. 78. 42 8. E.
321, holding injuries and Inconvenience to persons residing near
railroad terminal authorized by statute, from vibration and noises
of trains and smoke and cinders, are not nuisances; Louisville Ry.
Co. v. Foster. 108 Ky. 749. 57 S. W. 481, determining liability of
street railroad for damages to abutting owner arising from con-
Btniction and maintenance of turntable In street in front of
premises.
Syl. 8 (X, 575). Measure of damages for nuisance.
Approved In Swift t. Broylea, 115 Ga. SS7. 42 S. E. 278, holding
in fixing damages allowed to owner of dwelling which he occupies
as home, for compensation for annoyance occasioned by nuisance,
proof of depreciation in rental value is proper; Weston Paper Co.
V. Pope, 155 Inii. 403, 57 N. E. 721, holding In action for damages
for polluting stream by discharge of waste, causing vile and ob-
noxious odor on plaintiff's premises on same stream, damages may
be allowed for inconvenience and discomfort thereby caused; Cleve-
land, etc.. R. R. Co. V. King. 23 Ind. App. 5S1, 55 N. E. 878, holding
wbure only epeclflc Injury shown to property by nuisance waa pot
[
Notes on U. S. Reports. 108 U. S. SSO-STS
iutlon of well, but Its TBlue not given, and nuisance bad continued
Iir«lTe montlis, and rental value bad depreciated 95 per month,
nitlsance not being permanent, plaintiff could only recover to time
of suit; Bennett v. Marlon, 119 lown. 477, 23 N, W. 560, holding
irlHjre city sewer discliarged sewage Into pool from wbence pol-
latea -water was discharged Into creek, and tbence across plaintiff's
fnrm, nnifinnce being continuing one, plaintiff could recover all
damages within statutory period of limitation not theretotore re-
covered by him in prior suits, notwithstanding original canse of
■ctlon for establisbment of nuisance barred; Daniel v. Ft. Worth,
«^-. By.. 96 Tex. 329, 72 S. W. 579, holding In one action one may
'"^cofer damages for discomfort ot blmHelf and family in use of
aotQe owing to erection and use ot neighboring coal holat, and also
<laiQag^g lor depreciation in value of property.
108 U. s. 336-352. Not cited.
lOS xj. s. 352-380, 27 L. 751. THE CONNEMARA.
^yt. 1 (X, 576). Salvage — Imminent danger of flre.
-*-r*I>i-«Ted in Gilchrist Trnnsp. Cfl, v. 110.000 Bushels No. 1
ortli^jT, Wheat, 120 Fed. 435, holding fact that owners of salved
^ ■«vere owners of salving ship does not preclude them from
O'Veyjng salvage from cargo, where peril wliich rendered service
-,- ^^SMry did not arise from any breach of contract of carriage:
. ••^osephus, 116 Fed. 12,^, holding where tug towing barges, owing
, *"**Ugh weather left them anchored In outer harbor and proceeded
. ^Ot^t to notify owners and remained there with steam up, and
*-*t»t midnight one of bargee caught Are and tug proceeded to
^>ie and extinguished Are. its services were salvage services.
^yl. 7 (X. 577). Right of passenger on salving ship to salvage.
X)istinguished in dissenting opinion in Worliman v. Mayor, etc.,
^' New York, 179 U. S. 588, 45 L. 331, 21 Sup. Ot. 220, majority
^Idlng city liable by maritime law for negligence of servants In
"large of Breboat while hastening to put out fire, In conseiiuence
^r which boat collides with and Injures another vessel.
Syl. 8 (X, 577). Salvage decree not disturbed as excessive.
Approved in Hume v, Spreckels. etc., Co., llo Fed. 57. and The
Trefusls, 98 Fed. 31o, both reaffirming rule; The New Camella. 105
C'ed. 040, holding 5 per cent, of value of vessel excessive as salvage.
Wbere steamer broke shaft lu lake In smooth water and towing to
port only took about two hours; The Boyue, 98 Fed. 448. deter-
Uiiulng amount of salvage for rescuing ships from burning wharf.
108 O. S. 361-367. Not Cited.
lOS U. 8. 36»-378. 27 L. 758, SCRUGGS v. MEMPHIS, ETC.. H. R.
Syl. 3 (X, 578). Receiver for intangible property.
See 72 Am. St Rep. 41, note.
108 U. S. 379-388 Notes on U. S. Reports. 664
108 U. S. 379-388, 27 L. 760, BOESE v. KING.
Syl. 1 (X, 578). Assignment for creditors as act of bankruptcy.
Approved In Patty-Joiner, etc., Co. v. Cummins, 93 Tex. 602, 57
S. W. 567, holding though general assignment under State law
was made for benefit of such creditors only as released assignor
from further liability, it was not Invalid as transfer of property,
except on proceedings against assignor under bankruptcy law, and
nonaccepting creditor could not subject to his garnishment proceeds
of property in assignee's hands.
Syl. 2 (X, 578). Assignment for creditors after passage of bank-
ruptcy law.
Approved in Randolph v. Scruggs, 190 U. S. 536, 23 Sup. Ct 711,
47 L. 1170, holding charge for preparation of general assignment
which is avoided by adjudication In bankruptcy against assignor
on petition filed within four months after making assignment may
be proved as unsecured claim; In re Storck L. Co., 114 Fed. 361,
holding where sole stockholder filed bill In State court alleging its
insolvency and praying its dissolution under State statute which
was decreed, and thereafter creditors filed petition in bankruptcy, .«
such petition will not be quashed, as bankruptcy laws supersed
State insolvency laws; Ketcham v. McNamara, 72 Conn. 712,
Atl. 148, holding insolvency trustee appointed by Probate Cou
in voluntary proceedings begun after passage of bankruptcy act^
cannot set aside insolvent's conveyance as fraudulent, though n
action under bankruptcy act taken either by bankrupt or creditors.
Distinguished in Haijek v. Luck, 06 Tex. 519, 74 S. W. 305, hold-
ing one wlio accepted and received one-third of amount of his clai
under assignment good at common law, though exacting release
where no proceedings were had under bankruptcy act, thereby dis
charges debtor from further liability.
Syl. 3 (X, 579). Validity of assignment for creditors.
Approved in In re Chase, 124 Fed. 759, holding assignee nndei
assignment for creditors may recover for disbursements and se
vices made for benefit of estate prior to filing petition in. bank
ruptcy; Harbaugh v..Costello, 184 111. 116, 75 Am. St Rep. 150,
N. E. 365, holding County Court had no judisdlctlon to entertaii^
petition under State voluntary assignment law after July 1, l;
and order requiring constable to give up property levied on to ai
signee of insolvent debtor on petition filed after that date w
invalid; Patty-Joiner, etc., Co. v. Cummins, 93 Tex. 603, 67 S.
568, holding nonaccepting creditor cannot garnishee proceeds
property in hands of assignee under general State assignment f<
benefit of such creditors only as released assignor from furthi
liability; Binder v. McDonald, 106 Wis. 337, 339, 82 N. W. 157, 15:
holding Rev. Stat Misc., i 1694a, providing that voluntary asslgr
S55
laent -within ten days after attHclimeut stall dissolve attachmeDt.
*^s not superseded by bankruptcy law so long as no bankraptcy
l'roee.efljng8 actually instituted.
"^ 'J. S. 389-400. 27 L. 769. WARREN v. KING.
®*"1- 1 (X, 379). KlgUts of preferred stockhoIderB.
■*-K»l)roved Id Wilson v. Parvln. 119 Fed. 65S, 602. boldloK Tennes-
°T^ "fanlldlng assoclallon could issue prepaid abares bearing fixed
•^eads payable out of profits, but boliiers of eucb sbarea not
*"*^)ed to interest on sbares after association has become InsolTent
^^ eeflHPi
s proflta.
Rights
See 73 Am. St. Rep. 232. note.
of preferred Btoek holders as against
_ -^-■pproved In Guaranty Trust, etc., Co. v. Galveston, etc., R. R..
^/^ ■ Fed. 318, holding contract between corjvoratlon and stockholder
_^ "Which latter Is to recelTe par value or aay part of his stock he-
^^I'e all corporate debts are paid la contrary to public policy and
"^Old; Scott V. Baltimore, etc.. Co.; James v. Same. 03 Md. 498. 49
"^U. 328, holding preferred stock not cumulative and not entitled to
*4^are In net profits after dialritnition of Its preferred percentage;
Black V. Hobart Trust Co,. 01 N. J. Eq. 424, 53 Atl. 829. holding
under Pnb. Laws 1001, p. 245. holders of preferred stock, paying
CDmnlatlve dividends under statute, precluded on company's in-
solvency from enforcing mortgage security to detriment of general
creditors. See 73 Am. St. Rep. 230. note.
108 D. S. 401-417. 27 L. 704, DEVOE MFG. CO.. PETITIONER.
Syl. 1 (X, 379). Admiralty — Seizure of vessel within Jurisdic-
tion.
Approved In Pouppirt v. Elder Dempster Shipping, 122 Fed. 938,
holding Admiralty Court has Jurisdiction of action In perBonam
against owner of foreigu ship to recover for injuries sustained by
American passenger on high seas.
108 U. S. 418^22, 27 L. 774. POST v. PEARSON.
Syl. 1 (X, 580). Contract by officer as corporation's contract
Approved In Second Nat Bank of Akron v. Midland Steel Co.,
133 Ind. 387. 68 N. E. 833. bolding note signed "A., President." and
made on corporation's paper, is presumptively note of individual, but
parol is admissible to show tbat It was contract of corporation.
108 U. S. 422-436. Not cited.
108 U. S. 436^61. 27 L. 780. CLARK t. BARNARD.
Syl. 1 (X. 581). Waiver of Staters immunity from suit
Approved in Smith v. Reeves. 178 U. S. 441, 448, 44 L. 1143, 1148.
20 Sup. CL 921, holding Federal court has no jurisdiction of suit
i
• permits suit only In
i purchase ot other's (fbii-
1U6 U. S. 43C-!ei
against State treasurer where State f
Syl. 3 (X. 581). Foreign corporation
chlse — CitlKeiiBhlp.
Approved in Goodwin t. New York. N. H. & H. R. R. Co.. 12i Fed.
356, 3lil, holding corporation owning and operating railroad in
MaesacbuBetts and Counectieut and Incorporated in botii States
cannot be sued In Federal court In Massachusetts by citizen thereof.
wlio alleges It la Connecticut corporation; Seattle Gas. etc.. Electric
Co, V. Citizens' Light, etc., Power Co., 123 Fed. 593, holding New
Jersey corporation organized under general laws and not ander gas
act cannot engage in gas business In another State; Howard v. Gold
Reefs. 102 Fed. GiiS, holding facts that name of corporation indi-
cates tliat it la corporation of particular State, and that It owns
properly, carries on business, and maintains office in sncb State,
do not deprive it of right to remove suit by citizen of State, where
plaintiffs pleadings show that It was Incorporated In Torelgn State;
Debnain v. Southern Bell Tel. Co., 12G N. C. S45. 36 S. B. 274. hold-
ing foreign corporation domesticated under Acts 1899, chap. 62, can-
not remote cause to Federal court on ground of diverse citizen-
ship; dissenting opinion in Calvert v. Railway Co., 64 S. C. 154. 41
8. B. 968. majority holding foreign corporation complying with
statute as to foreign corporations becoming domestic can remove
to Federal court suit brought by citizen of State. See 85 Am. St.
Rep. 90S, note.
Syl. 4 (X. 582). Inference of Intent to create penalty.
Approved In Sun Printing & Publishing Assn. v. Moore, 183 U. S.
664, 46 L. 378, 22 Sup. Ct. 24fl, holding stipulation In charter party
to pay specified sum, agreed value of vessel in event of nonreturn
ie conclusive as to value of vessel.
Syl. Q (X, 582). Equitable relief against penalty to secure money-
See 86 Am. St. Rep. 63. note.
Syl. 7 {X. 582). No equitable reilef froin statutory penalUes.
Approved In Lyman v. Perlmutter. 166 N. Y. 4.14, 60 N. E. 22,
holding under liquor tax law of IS96, State commissioner of
excise may maintain action on bond required as condition to is-
suance of tax certificate, either for recovery of entire penalty for
breacb of conditions of bond, or for amount of any penalty incurred
or imposed for violation of tlie law. See 86 Am. St. Rep. 53, note.
Syl. 8 (X. 582). Bond to State as statutory penalty.
Approved In Broolcs v. Wichita. 114 Fed. 299. 300, enforcing pro-
vision In lighting contract with city whereby company agrees to
forfeit sum deposited as liquidated damages if electric lights are
not furnished by time agreed; Whiting v. Village of New Balti-
more, 127 Mich. 71, 86 N. W. 405, holding where street railroad
franchise provided for deposit of check returnable on completion of
SB7
u. ;
ReporlB. lOS U. S. 4C2-490
"oa*!, and la case of default to be forfeited to city, and ordinance
'""ovlded for completion by CPrtaln date, and party obtained fran-
^ttlm^ and deposited check but never entered on construction, city
^'»titled to retain check; Salem r. Anson. 40 Or. 346. 67 Pac. 103.
•*- -^fc-m. St. Rep. 490. holding where city grants uae of streets for
^'^*^ trie-ltght plant and eiacte bond coodltloned for completion of
^'^*** within certain time, enm therein epeclBed la liquidated dam-
^^^^ recoverable without proof of actual damages; dlssentlog opin-
'"**- »n State v. Larsou. 83 Minn. 131. 80 N. W. fl. majority holding
*<**;», ^3 eiecuted by applicant for liquor license under Gen. Stat. 1834.
^^*^2(i, la one of Indemnity to protect State, and amount thereof Is
ally to be recovered as entire sum la case of vloliitlou of coudi-
U. a. 462-466. 2T L. 793, MANNING t. OAPB ANN 181NG-
GLASS, ETC., CO.
^^5. jl. 1 (X, 582|. Patents — Public use prior to application.
— "^^pproved In Swain v. Holyoke Macii. Co.. 102 Fed. 014, holding
" -*--^ struct! on for and absolute sale to customer of turbine wheel and
^^^ "tflllation In hl8 factory more than two years prior to application
' -^~-'~ potent for such wlieel constitutes prior use, though practical test
*-^ Glided for experimental purposes.
^"^^^ D. S. 406-477, 27 L. 789, DOWNTON v. YEAGEH MILLING
CO.
^yl. 1 (X, 583). Patents — Prior printed publication of process.
-Approved In Pay v. Mason, 120 Fed. 509, holding Fay reissue No.
"^*-- .6M, for machine for ironing collars and cuffs, and No. 67S.840, to
^~^^~- me Inventor, for improvement thereon, not anticipated and In-
■^CZiS U. 8. 477-490, 27 L. 7ffi, GROSS v. UNITED STATES MORT-
GAGE CO.
8y). 1 (X, 583). Courts — ExamlnuUon of State opinion.
.^ Approved In Land, etc.. Water Co. v. San Joafi Ranch Co., 189
1^^. S. 180, 23 Sup. Ct. 489, 47 L. 7C8. holding Federal right la
"^ specially set up or claimed In State court " where claim of audi
^*^^lght sufficiently appears In motion for new trial, and In asslgn-
~^^entB of error In State Supreme Court, and was fully considered
^n opinion of that court whose decision was adverse to such claim;
■^ulf Sc Ship Islaud R. R. Co. v. Hewes, 183 U. 8. G9. 40 L. 88. 22
Sup. Ct. 27. holding certificate of State chief Justice that validity
«F State statute was drawn in question on ground that it impaired
obligation of contract, and that decision was In favor of such
statute, may be resorted to, In absence of opinion, to show that
Federal question otherwise raised in record was actually passed
upon; Yazoo & M. V. R. R. Co. t. Adams, 180 U. S. 48, 45 L. 418, 21
Sup. Ct. 259, holding certiflcate of State chief Justice that on argu-
108 U, S. 491-522 Notes on C. S. ReporU. SMB^U.
meut of case validity of State etatnte as contraveQfng FederaLK" ^ag
Conetltutlon ivas questioned Is insuffldent to give Jurisdiction on.m~mr-.
error, where statutes complained of are not etated; I^eb v. Trus — ^^
tees of Columbia Township, 179 U. S. 484. 45 L. 28S, 21 Sup. Ct. _^»:
179, holding Circuit Court oplDiaa regularly Hied and trans ml tted_f» —
with record may l>e examined on question at Jurisdiction to review -sjsj
case In order to ascertain whether Federal Constitution contravened K!>-f
by State statute under which Judgment was based was ralsedf^^
below.
Syl. 2 (X. 584). Validation of loans as Impairment Of contracts.
Approved In Joseph Bancroft, etc.. Co. v. Bloede, 106 Fed. 402., ^i«
holding where incorporation laws did not prohibit corporation tTonmzxzM: ■
owning stock. In another corporation, subsequent Constitution aniE» Mn
laws expressly giving such right show that previous acquiring o(fc^::»
such stock by corporation was not against public policy; Burgea"-^^-
T. Merrltt. 155 Ind. 149, 57 N. E. 717. holding Acts 1889. p. 430, I 2. ^=
providing that where children by former wife had executed cod- «=k:«
veyance of lands, In which they had an expectancy In fee durln^s «":>
widow's life, such conveyance shall bind their Interest when ac--^^-*
quired by Inheritance from widow, operates on quitclaim deedt*-^^
made prior to its passage so as to estop grantors from setting mitK *^-*
after acquired title against their grantee: Swope v. Jordan. lOK"*^
Tenn. 179, 182, 64 S. W. 58, holding Acts 1895. chap. 119, vaUdatin^at -=
contracts of foreign corporations made before registration of clinrtenK -^^
is valid hut does not operate to divest vested rights of innocent*' -*^
third persons.
108 U. S. 491-498. Not cited.
108 D. S. 498-509, 27 L. 800, CONNECTICUT MUTUAL LIFE INS, — *^
CO. V. LUCHS.
8yl. 3 (X, 5851. Partner's Insurable Interest In copartner's life.
Distinguished In Life Ins. Clearing Co. v. O'Neill. 106 Fed. 805, —
holding under Pa. poor law adult son has no insurable "^^
Interest In father's life except for purpose of reimbursing himself -'
for payments actually made or to be made, for his father's relief, —
and to protect himself against loss of father's support, when there -
Is reasonable expectation that his father will be able to support —
him.
108 U. 8, 510-513. Not cited.
108 D. S. 514-522, 27 L. 808, VANCE v. VANCE. .
Syl. 1 IX, 586). Recordation acts do not Impair contracts.
Approved In Oshkosh Water-Works v. Oshkosh, 187 U, S. 439, 23 -^
Sup. Ct 234, 47 L. 250, affirming 109 Wis. 219, 224, 85 N. W. 380. —
382, upholding change In city charter provision relative to preseuta- " —
tlon of claims against city; Bradley v. Llghtcap, 201 III. G20. 66 ^^*
N. H. 549, upholding Rev. Stat., chap. 77, | 30, p. 625, providing that "^
S-Ca NotCB on U. S. ReportH. 108 V. S. 522-&11
"^^ben premises mentioued in certificate of sale under foreclosure
^ *nall not be redeemed, legal holder of cerllflc^ale shall be entitled to
•^l^^ at any time within five years, and tliat If auch deed not taken
"^"^^iihln Buch time, certlflcate shall be void as to trust deed executed
*:^ rlor to enactment. See K Am. St. Rep. 887, note.
Sjl. 3 (X, 5S6). Exemption of wives and Infaitts from llmlta-
*r^oa8.
Approved In St Loula Cotton, etc.. Co. v. American Cotton Co..
~^ 2.1 Fed. 199. holding Circuit Court Judgment founded on inadequate
^^cerrice of summons In suit pending In Stale court before suit re-
^^cnoTCd to Federal court not reviewable in Circuit Court of Appeals;
■""Webber v. St. Paul City Ry., 97 Fed. 143, holding under Minn. Gen,
Stat., 3 5912, personal representative of one whose death waa caused
"Viy injury received while passenger on street car cannot maintain
suit for breacb of contract of carriage, where suit aot brouglit in ac-
*ordanee wltb provisions of section 5913; Swaney v. Gage Co., W
Xebr. 632, 90 N. W. 544, holding suit based on Comp. Slat., chaps. 78,
117, authorizing suit for damageH for injuries by rennon of defective
bridge or road, which is commenced more than thirty days after
Injury complained of occurred, cannot be maintained; dissenting
opinion Id Chauncey v. Dylie Bros., 119 Fed. 16, majority holding
under Acts Ark. 1895, p. 217. i 3, giving preference to mechanics'
liens over prior incumbrances, except where prior incumbrance
executed to raise money for improvements, mechanlc'-s Hen prior
to mortgage Hen to raise money to pay for improvements as to part
of proceeds not used to pay for labor or materials.
108 U. S. 522-526. Not cited.
108 U. S. 526-541, 27 L, 812. RUGGLES v, lU^lNOIS.
Syl. 2 (X. 587). State regulation of railroad rates.
Approved In Cltlcago Union Traction Co. v. Chicago, 199 III. 523,
65 N. E. 401. holding Chicago having charter power to limit rate of
street-car fares has power to require railroads to furnish transfers
to connecting lines.
SyU 3 (X, B88). Charter right to fix rates.
Approved in Owensboro v. Owensboro Water- Works Co., 191
U. S. 370. arguendo.
Syl. 4 (X, 588). Extrinsic evidence to explain charter.
Approved In Drake v. Drewry, 109 Ga. 407, 35 S. E. 47, holding
prohlbitlun does not He to prohibit ordinary from passing on con-
test respecting local option election under Pol. Code. S 1541 et acq.
(XI. 587). Miscellaneous.
Cited In Matthews v. Board of Corp. Comra.. 100 Fed. 10. up-
holding finding as to reasonableness of rates established by cor-
poration commission where special commissioner found that rail-
road made fair net profit on rate.
108 U. 8. 641-543. Not cited.
108 U. 8. 543^2. 27 L. 820, HAWI.EY V. FAIRBANKS.
Syl. 1 (X, 589). JolDder of distinct Judgments on appeaL
Approved in Waslilngton Co. v. Williams, 111 Fed. 813. boiainp^ -
Bevernl holders of county bonds cauiiot unite and jointly maiulain:™:
suit in equity to olitain decree eatabllslilng validity ot t>onds anc^j
recovery of amount due tliereou on repudiation of obligations bj^^«
county.
DlKllugiiisiied in Jones v. PidoUty Co.. 123 Fed". 513, holding Juris **
dictioual amouut exlBts wbete aaaets of Insolvent corporation eiceec* —
$2,000, whether or not aggregate claims of creditors esceed such*r-
amount; dIssenUng opinion In Washington Co. v. Williams, 111 Fed Wr»
814, majority holding several holders of county bonds cannot unlt^fc^
and Jointly maintain suit in equity to obtain decree establlsbiu^K. '
validity of bonds and recovery of amount due thereon on repudia--^
tiou of obligations by county.
Syl. 4 (X, 590). Enforcement of Judgment after restraint of citj
officers.
Approved In Clapp v, Otoe Co.. 104 Fed. 478, holding State court
cannot restrain collection of tuxes and so prevent Federal i
from proceeding to Judgment In action of which It has ]arladictloD_. i
□or from enforcing its Judgment by mandamus to compel levy and^C
collection of taxes to pay It; McCullough v. Hicks. 63 S. C. 546, iLJ
S. B. 762, holding State court cannot enjoin enforcement of man
damuB Issued by Federal court to enforce Its Judgment in suit In ->
which it originally had Jurisdiction.
(X, 589). Miscellaneous.
Cited in Kinney v. Eastern Trust, etc.. Banking Co., 123 Fed. 300,
to point that one not party to suit not bound by decree.
108 U. S, 553-536. 27 L. 819, MEATH v. PHILLIPS CODNTT.
Syl. 1 (X, 590). Benewal levee bonds as county debts.
Distinguished In Mather v. San Francisco, 115 Fed. 42, boldlDg
holders of bonds Issued under Cal. act 1875, p. 433, for wtdeuing of
Dupont street, could maintala suit to recover Judgment thereon
against city, to be paid from special fund and to be enforced by
appropriate proceedings to compel It to provide such fund as re-
quired by act.
108 TT. S. 550-500. 27 L. 811, EX PARTE TOM TONG.
Syl. 3 (X, 591). Habeas corpus ts civil proceeding.
Approved In State v. Superior Court, 32 Wash. 146, 147. 72 Pac
1041, holding appeal from order remanding applicant for habeas
n)rpus is ineffectual as stay of proceedings, where no appeal bond
filed within Ave days after notice of appeal as required In civil
actions by Ball. Code, | esoS; State t. Huegon. 110 Wis. 220, 223,
-m
-1
Sei Notes on U. S. Iteports. lOS U. S. 581-570
SS N'. W. 1052, 1053. holding attorney niay appear at request of
public prosecutor at private expense to represent sberlll in habeas
W>»T>ti8 proceedlngB.
lOS tJ. 8. 581-563, 27 L. S25. GIBSON t. BRUOB.
Syl. 2 (X. 591). Removal — When diverse citizenship must exist
-A-E»iiroTed In Huntington v. Pinney, 126 Fed. 23S, and German Sav,.
^*'^-, Soc. r. Dormiizer, 116 Fed. 472. hoth reafllrrulug rule; Kinney
*■- <::«DlumWa Sarings Assn., 191 U. S. 81, holdin;? Circuit Court may
'*^'*"*:»3it amendment of removal petition by addition of specific and
'"***"^I)lete averments of plaintlCTs citizenship; Green v. Heaaton.
'*^<^»r,. 154 Ind. 130, 36 N. E. 8S. holding removal petition allcgine
''"*sxse residence at time of filing complaint Instead of alleging
'^"^rse cltiseusblp at time of commencement of action and also at
**■=* «3 petlHon was filed is InsufflclenL
^**^ XI. S. 564, 505, 27 L. 828, NEW JERSEY ZINO CO. V. TROTTER.
^*jL 2 (S, 692). Jurisdiction determined by value In dispute on
^n-x^al.
~^Vpproved in Battle v. Atkinson, 115 Fed. 387, holding Arkansas
^*^ t Son for unlawful detainer being merely to restore possession. Fed-
^^*1 court has no Jurisdiction where complaint alleges value of
*"^iiilae8 to be $5,000 and rental value $25 per month.
■*-^^*^ D. a. 568. 567. 27 L. 812. EX PARTE BALTIMORE. ETC..
R. R.
Syl. 2 (X. 592). Mandamus cannot correct errors.
Approved In The Union Steamboat Co.. 178 U. S. 319. 44 L. 1085,
So Sup. Ct. 905, holding mandamus does not lie to review decision of
Inferior court on matter left open by mandate and opinlrin of higher
court; Florida v. Helen S, Burbrldge, 41 Fla. 401, 26 So. 1020.
holding mandamus does not lie from Interlocutory order in equity
muse whereby order of publication and publication thereon and
service on nonresident admlulstratrlx sought thereby are set aside;
Utab T. Bootb, 21 Utah, 96, 59 Pac. 555. holdiag mandamus from
Supreme Court will not Issue- when right of appeal exists unless
apparent that Interest of Justice requires It.
108 U. S. 567, 508, 27 L. 824, SCARBOROUGH v. PARGODD.
SyL 2 (X, 593). Filing error in court rendering Judgment-
Approved In Mutual Life Ins. Co. v. Phlnney, 178 D. S. 335, 44 L.
1092, 20 Sup, Ct 909, holding failure of clerh of Circuit Court of
Appeals to indorse writ of error as filed does not defeat transfer of
cause when Judge has done all that la necessary for him to do and
party has done all that is required of him.
108 V. S. 5C8-570. Not cited.
Vol. 11 — 30
109 U. 8. 1. 2, 27 L. 835, OSBORNE v. ADAMS CO.
Sjl. 1 (X, 594). Municipal aid to private enterprises.
Approved In Great Western Nat. Gaa & Oil Co. v. Hawkins,
Ind. App. 571, 6G N. E. 780, holding petition for condemnation
land \3j gas company must show tbat It is engaged In furnlsbS
gas to public, and not merely tbat land is necessary for pipe IB
from wells to city.
109 D. S. 3-62, 27 L. 835, CIVIL RIGHTS CASES.
Syl. 1 (X, 5iM). Fourteenth Amendment.
Approved In James v. Bowman, 190 L". S. 137, 23 Sup. Ct. 6"
47 L, 081, holding Kev. Stat., i 5307, for punishment of bribery
Indlviduala to whom euCCrage is guaranteed by Fifteenth AmetE
ment. is void; Karem t. United States, 121 Fed. 256, 257, 25S, hoM
iDg Rev. Stat., f 5508, puuisblng conspiracy to prevent citizen fro
eserclsing rights or privileges secured by Federal laws or Constit^
tlon, is not appropriate legislation for enforcement of Fifteen -i
Amendment; State v. Montgomery. 84 Me. 204, 47 Atl. lea boldiM
bawlierE and peddlers license law of 1SB3. chap, 306. i 2, Is void =-
discriminating between citizens and aliens.
Syl. 3 (X, 505). Impairment of civil rights by individnals.
Approved in United States v. M'Cleilan, 127 Fed. 374. uphoIdlr=
nnder amendment 13, act Marcb 2. 1SC7. to abolish and forever pr -
hlblt system of peonage, and providing punishment for violatioK:
United States v. Morris. 125 Fed. 323, 324, holding conspiracy f
prevent negroes from exercising right to lease and cultivate Ian-
because they are negroes. Is conspiracy to deprive them of rlgM
secured to them by Federal Constitution and laws within meaning ^
Rev. Stat, i 5508; United States v. Kopp, 110 Fed. 164. boldiiK
Fnyallup Indian not within 2 Supp. Itev. Stat., p. 544, prohlbltiiM
sale of liquors to Indian fur whom United States holds title to laiM
In trust or who is ward of government under charge of Indl^
agent
Syl. 4 (X, 590). Effect of Thirteenth Amendment.
Approved In In re Celestlne, 114 Fed. 553, holding Indian ■M
whom allotment of land in severalty has been made is cltlKen, ai:*
thereafter government Is relieved from duty of repreaentlns bl9
in BuitB involving his personal or domestic rights.
1562]
L
Notes on U. 8. Reports. 109 U. S. 63-1(K;
-"-^^ TJ. S. 63-65. Not cited.
TJ. a 65-74, 27 L. 857, UNITED STATES ▼. GALE.
^yL 1 (X, 597). Act pimishing offenses by election officers.
Approved In Files v. Davis, 118 Fed. 467, holding action on attach-
mt bond in suit pending in Federal court presents Federal ques-
'^n and is within Federal Jurisdiction where requisite amount is
'-^yolved, regardless of citizenship.
SyL 2 (X, 597). Plea as waiver to selection of grand Jury.
Approved in Hagenow v. People, 188 111. 549, 59 N. E. 243, re-
^UHrming rule; State v. Boyd, 56 S. C. 384, 34 S. E. 662, holding
^^notion to quash indictment on ground of disqualification of grand
3uror comes too late after pleading thereto; Reed's Case, 98 Va. 821,
S6 S. E. 400, holding after plea of not guilty it is too late to plead
^n abatement
SyL 3 (X, 597). Manner of objecting to grand Jurors.
Approved in State v. Brownfield, 60 S. C. 514, 39 S. B. 4, holding
that motion to quash indictment because no member of grand Jury
was of same race as defendant and that they were excluded because
of race or color must be sustained by direct evidence; Smith v.
State, 42 Tex. Cr. 221, 58 S. W. 98, and Carter v. Texas, 177 U. S.
447, 44 L. 841, 20 Sup. Ct 689, holding motion to quash indictment
against negro because found by grand Jury from which all negroes
excluded because of race or color when made before arraignment,
and where there had been no opportunity to challenge array, was
proper, reversing 39 Tex. Cr. 354, 357, 48 S. W. 510, 512.
109 U. S. 75-8i, 27 L. 862, OLIVER v. RUMFORD CHEMICAL
WORKS.
Syl. 1 (X, 598). Patents — Exclusive use as license.
Approved in Excelsior Wooden Pipe Co. v. Seattle, 117 Fed. 145,
holding grant by patentee of exclusive license to manufacture and
Sell patented article within specified territory, conveys no title, and
grantee cannot sue for infringement one who uses article manufac-
tured by others outside of territory.
X09 U. S. 84-90, 27 L. 865, PORTER v. LAZEAR.
Syl. 1 (X, 599). Dower not barred by assignment — Bankruptcy.
Approved in In re Shaefl'er, 105 Fed. 352, holding under bank-
ruptcy act 1898, sale of bankrupt's realty by ti-ustee does not bar
^wife's right of dower therein.
:i09 U. S. 90-98. Not cited.
109 U. S. 99-103, 27 L. 870, KING v. GALLUN.
Syl. 2 (X, 600). Patents — Judicial notice of common knowledge.
Approved in Ryder v. Schlichter, 126 Fed. 491. holding Harder
patent No. 627,732, for improvements in silos, infringed by Schlichter
patent No. 653,967, reversing 121 Fed. 99.
r
IjOe V. S. 104-132 Notes oa U. S. IteporU.
109 U. S. 104-106. 27 L. 872, GREEN COUNTT t. CORMESS.
Syl. 1 (X, 601). Municipal aid bonds — Law guvernine.
Approved in Loeb v. Trueteea of Columliia Ton-ushlp. 17!> D.
492, 45 L. 291, 21 Sup. CL 182, holding federal courtB in del"-
mining contract rights as affected by State Constitution enforce ci
tract in a.ccordauce witb Constitution as interpreted at time c
tract made. See 89 Am. St, Hep. 631, note.
Syl. 2 (X, 601). Consolidation caiTies privileges and rrancbiaea_
Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 tJ,
45 h. 400, 21 Sup. Ct. 24T, holding new grant of rranchlses with
meaning of Miss. Const. 1800. { 180, making encb grants Bub]<s
to sanie tax as Individuals, Is made by subsequent consolidation —
railroads having tos exemption prior to Constitution. See 89 Ac*
St. Rep. 624, note.
109 U. S. 106, 107. Not cited.
109 U. S. 108, 100. 27 L. 873. OPELIKA CITY t. DAMEL.
Syl. 2 (X, 602). Amendment reducing amount prayed for.
Approved In Pacific, etc.. Life Ins. Co. v. Tompkins. 101 Fed. 51=^
holding allowance of amendment to doclaration clinngiug allegation
as to citizenship of plaintiff to conform to writ ts within discretion
of court.
109 U. S. 110-117, 27 L. 874. THE TORNADO.
Syl. 1 (X, 003). Judicial supervision of salvage contracts.
Approved in United States v. Morgan, 99 Fed. 572, holding clain =
against United States for salvage in snm of $10,000 Is withli--
jurlsdiction of Circuit Court under 24 Stat, 503; The Thornlej, !)S=
Fed. 743. arguendo.
109 U. S. 117-121. Not cited.
109 U. S.. 121-132. 27 L. 878, MANHATTAN I-II-'E IXS. CO. v — •
BROUGHTON.
Syl. 1 {X, G04). Nonsuit not bar to new action.
Approved In Gilbert v. American Surety Co., 121 Fed. 502, boldinf
queatlons ruled by appellate court not res adjudicata where Judg— "
ment under review is reversed and remanded for new trial aniE
afterward diamlssed by trial court for want of prosecution; Ord-
way V. Boston, etc., R. R.. 09 N. H. 431, 45 Atl, 244, holding judp-
ment upon Involuntary nonsuit ordered on ground that ylalntiff's-
own evidence conclusively showed that he tnew of danger which
caused injury and that with such knowledge' he assumed risk
thereof, as matter of law Is res Judicata.
Syl. 4 (X, 60Q). Insurance — Self -killing by lunatic as suicide
Approved in Seitzlnger v. Modern Woodmen. 204 III. 01, 68 N. E.
479. holding where certificate In beneUt society provided that if
SCS Notes on U. 8. Reporta. 109 U. S. 132-162
tuenaber should, within three years, die by his own band, sane or
insaxie, certificate should be void, there can be no recovery where
member wholly insane when he committed suicide; Manhattan L.
^ »s. Co. V. Beard, 112 Ky. 460. 66 S. W. 36, holding self-destruction
^*lauses in policies mean by sane person, and holding erroneous In-
struction requiring insured to possess sufficient will power to refrain
*o protect defendant; Daniels v. New Yorlc, etc., R. R., 183 Mass.
y^S, 67 N. E. 425, holding voluntary suicide of insane person whose
**JQanity was caused by railroad accident and who Itnew purpose
'^Hd physical effect of his act is new cause, so that his death is not
^^5^ reason of negligence of railroad. See 84 Am. St. Rep. 547, note.
^^>5) U. S. 132-138, 27 L. 883. NEWMAN v. ARTHUR.
Syl. 1 (X. 606). Customs duties — Commercial meaning of terms.
Approved in United States v. Nordlinger, 121 Fed. 692, holding
•^"^horn citron taxable as fruits preserved In sugar under tariff act
^^83. par. 302.
^C)9 U. S. 139-150. Not cited.
^C9 U. S. 150-162, 27 L. 888, HOVEY v. McDONALD.
Syl. 1 (X, 608). Appeal — Receiver not party to suit.
Approved in Los Angeles v. Los Angeles Water Co., 134 Cal. 123^
^^ Pac. 199, holding ordir settling receiver's accounts Is fiuai ap-
pealable judgment; Haigh v. Carroll, 197 111. 196, 197, 64 N. E. 376,
folding where exceptions to receiver's report overruled and receiver
discharged, receiver is necessary party to writ of error to reverse
^rder; State v. District Court, 28 Mont. 234, 72 Pac. 61C, holding
"Mrhere after appoiritment of receiver, court made order fixing com-
pensation, but order contained no provision as to who should be
<ibarged with these allowances, and later receiver's motion to tax
plaintiff with such allowances, order on motion was the appealable
order; Battery Park Bank v. Western Carolina Bank, 126 N. C. 535,
36 S. E. 40, holding order allowing commissions to receivers is
final appealable judgment.
Syl. 2 (X, 608). Appeal suspends power of lower court.
Approved in Sperry, etc., Co. v. Mechanics' Clothing Co., 128 Fed.
1017, refusing to modify preliminary injunction restraining defend-
ant from using trading stamps alleged fraudulently obtained, to
^llow use of portion thereof where question of right reserved.
Syl. 3 (X, 609). Supersedeas — Control of court over judgment.
Approved in McFaddeu v. Swinerton, 36 Or. 354, .62 Pac. 12,
folding where appeal taken from decree in favor of several claim-
^.nts, payment of fund in controversy to them during Its pendency
^id not subject clerk to personal liability, where no oi:der for its
detention was made.
100 U. S. 162-180 Notes on U. S. Beportf.
SyL 7 (X, 609). Appeal from dissolution of Injunction ~ Supei
sedcas.
Approved In Green Bay, etc., Co. v. Norrle, 128 Fed. 807, holding
Injunction restraining defendant from drawing water from pon*
created by plaintiflTs pond on prayer to restore embankment pFohib
tive only, not suspended by supersedeas bond; Green Bay &
Canal Co. v. Norrie, 118 Fed. 024, holding damages sustained
appellee by violation of injunction pending appeal cannot be r
covered in action on supersedeas bond; New Biver Mln. Go.
Seeley, 117 Fed. 982, holding where order granted appeal fro
order dissolving injunction and recited that supersedeas was grants*
to order appealed from on plaintiff entering into bond with
proved security, on such bond being given, injunction continued
force during appeal; Blinn v. Continental, etc., Co., 110 Fed.
holding where after appointment of receiver bill dismissed and
same day rendered decree reciting filing of receiver's report a
lodging of exceptions against it and ordering exceptions referred
master, appeal and supersedeas from former order do not prev
making of statement of receiver's accounts; Graham v. Conway,
Mo. App. 652, holding appeal from order dissolving temporary
hibltion against execution of Justice's judgment does not prev
execution of Justice's Judgment pending appeaL
100 U. S. 162-173. Not cited.
109 U. S. 173, 27 L. 895, GUION v. LIVEBPOOL, LONDON, E:
INS. CO.
Syl. 1 (X, 611). Nonparty cannot appeal.
Approved in Credits Commutation Co. v. United States, 177 ^'
S. 317, 44 L. 786, 20 Sup. Ct. 039, holding statement in order d^ :»^V-
ing intervention that it !s denied because of insuflSciency of peti*^::; ^ ^^
to show petitioner's riglit to intervene shows decision Is not a..«^^fl'
and appealable; Kidder v. Northwestern Mut, etc., Co., 117 B^^^-
©99, holding Federal court cannot review State decision deny^-*^^
intervention on petition by interveners for removal; In re Coluna*^^^
Beal Estate Co., 112 Fed. 645, holding dismissal on demurrex- ^'^
intervention asking to set aside adjudication in bankruptcy, wZie^^*^^
Intervener claimed equitable lien on realty which stood in
of third party, but which was in equity property of bankrupt, whU
lien was acquired through ostensible owner without knowledge
bankrupt's rights, is not appealable.
100 U. S. 174-179. Not cited.
100 U. S. 180, 27 L. 818, EVANS v. BBOWN.
SyL 2 (X, 612). Affirmance where appeal merely for delay. ^p=^i».
Approved in United States v. Ng. Young, 126 Fed. 426^ arguendo^
Notes on TT. S. Reports. lOS U. B. 180-200
ll. e. 190-185. 27 L. S98. WIXTHROP IBON CO. t. MBEKEE.
. I (X, 612). Final appealable decree.
iproTed In Mercantile Trust Co. v. Clilcago, etc., St. Ry. Co.,
■ "ISs Fed. 31(1, boldlr.g decree on Intervening petition against receiver
tllrertiug liellveiy of property to petitioner, or In default to account
for Its value and also to pay rental value while used by hlm, and
TWfers to master to report value of property and rental, and to state
account. Is not appealable, where it expressly states that it ll Inter-
locutory; Tomanses v. Mclslng, 106 Fed. 786, boldlng under Alaska
Code, i 504, district ortliir by which mining claim, together wltb
persoanlty not involved In lltlgntloii. is taken from possession of
one claiming ownership and turned over to receiver to work claim.
' and in so doing nse'perEonalty. la final appealable decree where
^property Is of required v.ilue; Coltrane r. Templeton, 106 Fed. 878,
l^liolillug order entered on Intervening petition of stocbholdeni ap-
VOliitlDg resident eorcceivers to act with receivers previously ap-
INriiited on application of plain tl(T not final appealable decree.
100 V. B. 185-188. 27 L. 000, RETZER v. WOOD.
87L 2 (X, 613). Time to raise defense of limitattona.
Approved In Whitman v. Citizens' Bank. 110 Fed. BOS, reafOnn-
Ins mle-
100 U. S. 18»-19i. 27 L. 001, SNYDER v. MARKS.
8yL 1 (X. 614). Statutory remedy for recovery of taxes exclUBlTe.
Approved In Christie St. Comra. Co. v. United States, 126 Fed.
906, bolding nnder Rev. Stat., J9 322C, 3227, right of acUon to re-
eorer Internal tax Illegally assessed Is barred wltbln two years
after expiration of six months from appeal to commissioner of
Internal i
Ue U. S. 194-200. 27 L. 003, CRAGIN t. LOVBLL.
SfL 1 (X, 614). Petition on setting aside default Judgment at
Approved In Everett v. Independent School District, 109 Fed. 701,
h<rfdlng where bonds In excess of constitutional debt limit have been
Issued b; scbool district which Is subsequently divided into districts
between wbom debt must be equally dtstrlljuted, remedy of bond-
holder on bonds Is In equity.
Byl. 2 (X, 614). Action against undisclosed principal.
Approved In Johns v. Wilson. 180 U. S. 447, 45 L. 617. 21 Sup.
Ct. 447. holding grantee wliose deed contains stipulation that he
"wll! assume and pay off mortgage on land Is personally and pri-
marily liable for deflcleuL'y after proceeds of land have been applied
"to debt. In direct action brought by mortgagee in own name; Good-
year Shoe Machinery Co. t. Dancel, 119 Fed. 695. bolding no action
100 U. S. 200-221 Notes o
at low Ilea agaliist assignee under Hgreement by aaslgnee of e(ic_ «
tract, by which he assumes oblieallons of naslgnor tbereuude-^^
Fnlrfipld v. Rural, etc.. Sci'ool Dlstrlcta, 111 Fed. 110, holdlog wbeHi
school district Is subdivided, remedy of creditor Is against ne~ —
districts in equity, all ot whom roust be joined In suit; Barker -
Pullman's Palace Car Co.. 121 Fed. 566. arguendo.
109 U. S. 200-205, Not cited.
100 U. 8. 205-211, 27 L. B07. BOOTH v. TIERNAN.
Syl. 3 (X, aim. Proof of clerical error In copy of deed.
Approved In Mclntyre v. White, 124 Ala. 17». 26 So. 938, holding*
record of conveyances made by probate judge under Code, f 980, t
only prima fade correct.
109 U. 8. 211-215, 27 L. 810, NEW ORLEANS NAT. BANK '^
ADAMS.
Syl. 1 (X, 616). Mortgage — Inlentloo to pledge necessary.
Approved in Lilicnthal v. McCormick, 117 Fed. 98, construing coi^c:
tract for sale of hops to be thereafter raised, which provided tha -i
it should stand as cbattal mortgage on entire crop to secure ad ■
vauces, qb not giving purchaser lien for damages recoverable toK-
sellcr's brejich of contract.
109 U. S. 216-221, 27 L.. 812, MATTHEWS v. DENSMORE.
Syl. 1 <S, fil6|. Writ not void for preliminary errors.
Approved In Marks v. fShoup, 181 V. S. 564, 45 L. 1003. 21 Sup. Ct
725, holding writ of attachment, though voidable when it has aeaM
of court and everything else on face to give it apparent validity, !f^
sufficient protection to an officer who Is bound to obey it, foi — "
making levy under It; Bonk of Colfax v. Richardson. 31 Or. 531. 75 -
Am. St. Rep. 674, 54 Pac. 363, holding objection on collateral attach
of judgment against nonresident, served with suiuniona by puMtea-
tlou. that it dues not affirmatively appear that summons was Issued
lu notion at or before lesuauce of writ of attachment. Is of no
Distinguished In Murphy v. Moatandon, 3 Idaho. 328, 35 Am. St.
Rep. 281. 28 Pac. 852, holding If attachment affidavit la defective
In not stating what statute reiinires. or if It Is false, court has no
jurisdiction to Issue attachment; Huey v. Brimer, 0 Kan. App. ISt,
68 Pac. 486, holding in action by stranger to writ for attempted
selEure of his property under void writ of attachment, sheriff does
not acquire such special Interest In property as enables blm to
attack bona fides of sale and delivery of such property; Duxbury v.
Dahle. 78 Minn. 431, 713 Am. St. Rep. 411, 81 N. W. 200, holding
where writ of atlachraent issued on defective affidavit and defend-
ant does not appear, writ and all subsequent proceedings. Including
Notes on U. S. Reports. 109 U. S. 221-^7
^^dgment, execution, and sale thereunder are void and collaterally
'Assailable.
^09 U. S. 221-229. Not cited.
:109 U. S. 229. 230, 27 L. 914. KNOX COUNTY COURT v. UNITED
STATES.
Syl. 1 (X. 617). County aid bonds as county debts.
Approved in Ft Madison v. Ft. Madison W. Co., 114 Fed. 294,
affirming 110 Fed. 906, holding contract by city for hydrant rentals
providing that hydrant rentals should be paid out of special tax
fmid to be levied did not limit city's liability to sum collected from
such special tax levy; Gay v. New. Whatcom, 26 Wash/ 396, G7
Pac. 90, arguendo.
109 U. S. 230-238. Not cited.
109 U. S. 238-243, 27 L. 920, ARNSON ▼. MURPHY.
Syl. 3 (X, 619). Exclusiveness of remedy to recover Illegal
Katies.
Approved io De Lima v. Bidwell, 182 U. S. 178, 45 L. 1049, 21
Sap. Ct 745, holding right which owner of merchandise may have
against collector, in cases not within customs administrative act,
^o recover money exacted as duties, not taken away by repeal of
JRev. Stat, § 3011, or by section 25, customs administrative act
a09 U. S. 244-258, 27 L. 922, LOUISVILLE, ETC., R. R. CO. v.
PALMES.
8yL 3 (X, 621). Demurrer does not admit facts impossible in law.
Approved in Crockett v. McLanahan, 109 Tenn. 525, 72 S. W. 952,
'Applying principle in libel suit.
BjL 4 (X, 621). Prohibition of tax exemptions.
Approved In Bancroft v. Wicomico County Comrs., 121 Fed. 879,
**ol^ing under Md. Gen. Laws, art 23, §8 187, 188, tax exemption
f*^-^8es to new corporation formed by purchaser at foreclosure of
■'^^iroad; Adams v. Tombigbee Mills, 78 Miss. 687, 29 So. 472,
*^*i^ing capital stock of factory not exempt by Laws 1882, p. 84, to
^ ^oarage establishment of factories; Reynolds v. Florida, etc., Ry.,
IX'la. 446, 28 So. 866, arguendo.
U. S. 25&-267, 27 L. 927, UNITED STATES v. WALKER.
yl. 3 (X, 623). Administrator de bonis entitled to unadminis-
assets.
approved in Roy v. Squier, 61 N. J. Eq. 186, 48 Atl. 234, holding
ire executor who has so far administered personal estate as to
vert it into money dies, and administration de bonis non is
-^ted, such administrator has no right to demand of executor of
'^aaed executor that part of estate converted into money.
luwn&s
!M«R OD n. B. Reports.
3yl. 4 (X. tsaS). Jadgment outside powers of court void.
Aftiruvnl lu tUtchle t. Rayen. 100 Fed. &32. bolduig sale
itilBi'lHxi rcnlir without bond required by statute confers no tit
uu I'unliHaer: Uiissell V. GliurtlelT, 2S Colo. 418, 65 Pac. 28. 89 At
St. Ui'ii. -^IS, Uotillng In actlou against several defendants, wber
JoUU juilcuient not dcmaiided, court cannot render Joint Judgmen
aaalnM il«r«oiJtt0t8 not aDswerlns; Mortgage Ca r. MuUen, 8 Ear:
-\IHf. Tltl, 54 i'&c. 923, arguendo.
va n. SL :»S-2T4. Not cited.
IU» U. S. 2T5-2T7, 27 L. 935. MONONGAHELA NAT. BANK t
jACuBca
»rL 1 (X. U24). Administrator as witness.
.ViHH:«ved ta Bunker v. Taylor, 13 S. Dak. 445, 83 N. W. 55B, bold
log uutlvr Code Civ. Proc., i 0200, defendant In action hy adminlE
inUi>r CMonot testify against codefendant. tbough he defaulted.
luB U. S. 2TS-2SR. 27 L. !>32. GHACE v. AMERICAN CENT. INS. CO
Sjl. t tX. (KB). Insurance — Procurement of policy by agent.
.\l>l>rov*d in Johnson v. Insurance Co., 66 Ohio St. 16. 63
lUi ranfflruilng rule; Knights of Pythias v. Withers, 177 U. 8, 27>^E-~'
4* L. 7«S, 20 Snp. CL 617, boldlug where TQies of benefit socletK^^*
iuaiJ« oRtcers of subordinate lodges sgeiils of members and mad^ C^
It duty of secretary of lodge so as to be received before last o«i*^
uuMith all dues or all tnembera would stand suspended, wher^"^
luturrd made payments promptly, beneficlory could recover, ase -*
M^Tvtary was agent of grand lodge: Murpby v. ludepeudent Order, ~^*:'
uU-.. 77 Miss. S44, 27 So. G29. holding if beneficiary be not In defaulV K
lu making proof of death, forfeiture of rights cannot be predicatecE^'
MU wilful failure of subordinate lodge officers to perform tbcIcK '
iluty Ln respect thereto, as subordinate lodge la agent of grand lodge;; "^
tiilwanla v. Home Ins. Co., 100 Mo. App. TOO, 73 S. W. 885, hold — ^
luit where insurance agent placed Insurance of corporation partly ln^Kr~
i.tMiilMiUlea represented by him and partly in others negotlatei^^^
tttrutigh other agents, he was a broker, and notice to bim is no^^
tiollci> tniless he is also general agent of Insured; Snyder v. Com—
wervUI Union Assur. Co.. 67 N. J. L. 10. 50 All. 510. holding whereass^
Qriu employed broker to procure Insurance and had for several—
years received notices of cancellation of policies held by firm. an*=-
thereui>ou placed insurance In other companies, question of broker'^
aa[hi.irlty with reference to cancellation and notice thereof Is on^
of fact; Mnrtm v. Palatine Ins. Co.. 106 Tenn. 528, 61 8. W. 1025.
holding notice of revocation given to broker employed by Inaured t<^
procure policy does not release Insurer.
SyL 2 (X, 625). Construction of doubtful contract.
Approved In dissenting opinion in U'Master v. New Tortt tAt»
IM. Co., S9 Fed. 878, majority holding proTiaioo Id policy that
571 Notes on U. S. Reports. 109 U. 8. 278-285
premiums should be paid annually not inconsistent with proTision
fixing time for payment of second annual premium on date six days
less than date of policy, nor does such provision render contract
ambicnious.
SyL 4 (X, <S26). Circuit Court's jurisdiction must affirmatively
appear.
Approved in Great Southern Fire Proof Hotel Co. v. Jones, 177
U. S. 453, 455, 44 L. 844, 20 Sup. Ct 692, holding limited partnership
organized under Pa. act of 1874 not corporation within rule that suit
by or against corporation in Federal court is conclusively presumed,
for purposes of litigation, to be one by or against citizens of the
State creating the corporation; Gastonia Cotton Mfg. Co. v. Wells
Co., 128 Fed. 373, holding corporation whose charter was approved
by governor according to Mississippi law, but whose capital not
paid as required, had no legal citizenship for Federal Jurisdiction;
Gates Iron Works v. Pepper, 98 Fed. 451, holding petition by one of
several defendants for removal on ground of separable controversy
should of itself distinctly show and point out separable controversy,
name parties to it, and state all grounds upon which petitioner
relies; Thompson v. Southern Railway, 130 N. C. 142, 41 S. E. lu,
holding removal petition must specifically allege that petitioner is
nonresident of State and not merely that petitioner is corporation
created under laws of another State.
Syl. 6 (X, 627). Removal — Positive averments of citizenship.
Approved in Watson v. Bonfils, 116 Fed. 160, reaffirming rule;
£isele v. Oddie, 128 Fed. 945, holding allegation by plaintiff of resi-
dence, in California and removal to Nevada temporarily for health,
with intent to return, establishes citizenship if not controverted;
Dalton T. Milwaultee Mechanic's Ins. Co., 118 Fed. 879, holding in-
sufficient averment in removal petition that defendant is corporation
and " citizen and resident ** of State named, unless record otherwise
show that it is organized under laws of that State; German Sav.,
etc., Soc. V. Dormitzer, 116 Fed. 472, holding diverse citizenship
authorizing removal must exist at time of commencement of suit
as well as at time of removal and must be made to appear; Pea-
cock, etc., Co. V. Williams, 110 Fed. 916, holding under South Caro-
lina rule that whole pleading must be clearly frivolous to authorize
court to render Judgment on motion, answer in Federal court con-
taining positive denial under oath of material allegations in com-
plaint not frivolous; Illinois Life Ins. Co. v. Shenehou, 109 Fed.
675, determining citizenship of party residing temporarily In another
State; Fife v. Whittell, 102 Fed. 539, holding petition for removal
on ground of diverse citizenship, which alleges diverse citizenship
and residence of parties, but fails to allege that defendant is non-
resident of State, is insufficient; Green v. Heaston, 154 Ind. 129, 56
N. B. 88» holding insufficient petition for removal on ground of
109 U. S. 285^297 Notes on U. S. Reports. 572
diverse citizenship alleging diveirse *' residence " of parties at time
of filing complaint
(X, 625). Miscellaneous.
Cited in Kinney v. Columbia Sav., etc., 191 U. S. 83, holding
Circuit Court may permit amendment of removal petition before
trial on merits by addition of specific averments of plaintiff*8
citizenship.
109 U. S. 285-297, 27 L. 936, LOUISIANA v. MAYOR OF NEW
ORLEANS.
Syl. 2 (X, 628). Constitutional law — " Contract " defined.
Approved in McFaddin v. Evans-Snider-Buel Co., 185 U. S. 514,.^
46 L. 1019, 22 Sup. Ct. 761, holding attaching creditors havin
actual knowledge of existence of mortgage covering property at-
tached before sumg out attachment acquired no property righ
therein by virtue of default Judgment, of which they were depriye<l^:»
without due process by act of 1897, validating recorded mortgag
in Indian Territory, affirming 105 Fed. 297, 306; City of Cbicag
V. Pennsylvania Co., 119 Fed. 498, holding city may be held liabl(
for injury to property in consequence of mob or riot therein, wher<
such liability is imposed by statute, though every effort made
prevent loss; Ferry v. Campbell, 110 Iowa, 300, 81 N. W. 608, hold
ing Judgment restraining collection of inheritance tax on grounc>
of invalidity of inheritance tax law, not being a contract, may bm
reversed where pending appeal retroactive law curing defects in
prior act was passed; Cassard v. Tracy; Cassard v. Zacharie, 5r
La. Ann. 847, 27 So. 373, holding provisions of Constitution o
1898, establishing and conferring jurisdiction on appellate courti
upon questions of fact, not retrospective, so as to require setting
aside of judgments previously rendered; Marstiller v. Ward, 52
Va. 82, 83, 43 S. B. 181, holding when affidavit is filed of amon
which plaintiff is entitled to recover under Code 1899, chap. 123-
§ 46, in case in which there is office judgment but no order of
quiry for damages, and defendant defaults, mandamus lies to co
pel court to render judgment on affidavit.
Syl. 3 (X, 629). Deprivation of taxing power — Due process.
Approved in Bvans-Snider-Buel Co. v. M'Fadden, 105 Fed.
holding attaching creditors having actual knowledge of existent
of mortgage covering property attached before suing out attac
ment acquired no property rights therein by virtue of defaiCL^'
judgment, of which they were deprived without due process by
of 1897, validating recorded mortgages in Indian Territory; aflSrm*
in 185 U. S. 505; Livingston v. Livingston, 173 N. Y. 382, 388,
N. B. 125, 127, 93 Am. St. Rep. 603, 606, holding judgment for
mony as vested interest is property of which legislature can
divest plaintiff by subsequent statute authorizing courts to an
or modify such judgments on application of either party; Pars
573 Notes on U. S. Reports. 109 U. S. 297-35G
V- Fort Worth, 26 Tex. Civ. 275, 63 S. W. 890, holding where city
charter provided that before city should be liable for damages cer-
tain written notice should be given, averment and proof of such
notice is condition precedent to recovery; dissenting opinion in
Orand County v. People, 16 Colo. App. 246, 64 Pac. 686, arguendo.
See 94 Am. SL Rep. 545, note.
109 U. S. 297-329. Not cited.
109 U. S. 329-336, 27 L. 952, DUBUQUE, ETC., R. R. v. DES
MOINES R. R.
Syl. 2 (X, 630). Reserved lands exempted from railroad grant
Approved in dissenting opinion in Hewitt v. Schultz, 180 U. S.
159, 45 L. 473, 21 Sup. Ct. 316, majority upholding construction
given by land department to Northern Pacific grant act of 1864,
that department was not authorized to withdraw lands within
indemnity limits upon mere receipt and approval of map of definite
location.
109 U. S. 336-340, 27 L. 954, KEYES v. UNITED STATES.
SyL 1 (X, 631). Removal of army officer by president.
Approved in McClaughry v. Deming, 186 U. S. 65, 46 L. 1056,
22 Sop. Ct. 792, holding court-martial composed entirely of regu-
lar army officers cannot try member of volunteer army; Quack-
enbush v. United States, 177 U. S. 25, 44 L. 656, 20 Sup. Ct. 532,
holding reappointment of dismissed naval commander, under act
of 1897, precludes claim to waiting orders, pay, or pay as retired
officer for any time preceding date of reappointment.
109 U. S. 341-^356, 27 L. 956, BERNARD'S TOWNSHIP v.
STEBBINS.
SyL 1 (X, 631). Omission of seal from instrument
Approved in City of Defiance v. Schmidt, 123 Fed. 4, holding
where bonds required to be sealed by corporate seal were by mis-
take sealed with another seal, bona fide holder entitled to equitable
relief requiring affixing of proper seal or enjoining city from set-
ting up its absence as defense; D'Esterre v. New York, 104 Fed.
609, holding departure from provisions of statute authorizing is-
suance of negotiable municipal bonds, in omitting date and name
of payee or in failing to state place of registration in bonds issued
thereunder, does not render bonds invalid; Fisher v. Owens, 132
N. C. 689, 44 S. E. 370, holding in ejectment sheriff will not be
allowed to affix his seal to deed where he has omitted by mistake,
unless such equity set up in complaint.
Syl. 3 (X, 632). Transfers merely to give Federal jurisdiction.
Approved in Defiance Water Co. v. Defiance, 191 U. S. 194, hold-
ing fact that city council has passed resolution providing for
payment of pending bill of water company claiming franchise,
109 U. S. 357-381 Notes on U. S. Reports. 574
with saving clause, against city being estopped from denyln
existence of contract right does not give Clrcolt Ck>urt Jurisdlc
tlon to enjoin payment of water fund money to other creditors
on ground of Impairment of contract; Waite v. Santa Cruz, 1
U. S. 326, 46 L. 567, 22 Sup. Gt. 336, holding suit by transferee o1
bonds not within Circuit Court's Jurisdiction, under act of 1875
chap. 137, If ttansfers made to him for collection merely, and it
necessary Jurisdictional amount is made up by writing bonds o*
owners who separately had less than Jurisdictional amount.
100 U. S. 357-371, 27 L. 962, WARNER v. CONNECTICUT MUT.
INS. CO.
Syl. 1 (X, 633). Strict construction of suretyship contract
Approved in Keatun v. Boughton, 83 Mo. App. 165, applyli
principle to appeal bond.
Syl. 2 (X, 633). Extension of debt without reference to power.
Approved in Daniel v. Felt, 100 Fed. 729, holding where d<
conveys to faiarrled woman in trust for benefit of herself, chr
dren, and husband, with power to sell, subsequent Joint conve
ance by husband and wife, without reference to power in form*
deed to convey children's interest, does not pass children's 1
terest; O'Brien v. Flint, 74 Conn. 506, 51 Atl. 548, holding de»
to wife for life with remainder to son with power to sell f
support of herself and son does not give power to mortgage
raise funds for support of wife and son.
109 U. S. 371-381, 27 L. 966, FLASH v. CONN.
Syl. 1 (X, 633). Extraterritorial effect of penal laws.
Approved in McLoughlin v. Raphael Trucls Co., 191 U. S. 2"
affirming 115 Fed. 87, holding one selling imported books whi
had at his request been impressed with false copyright notice
foreign country, not liable to penalty provided by Rev. Stat., % 45
and its amendment of 1897; In re Remington Automobile & Moi
Co., 119 Fed. 444, refusing to enjoin prosecution of claims agal
corporation to Judgment, after proceedings in bankruptcy,
before adjudication, by creditors of Insolvent New Jersey cor
ration who claim to have causes of action by virtue of New Jers^
law, which if insolvency had not intervened could only have b^
enforced by creditor's bill; Pulsifer v. Greene, 96 Me. 446, 52
923, holding Kansas law imposing double liability on stockhoh
may be enforced against resident stockholder by creditor who
obtained Judgment against corporation In Kansas. See 94
St Rep. 545, note.
SyL 2 (X, 634). Stockholder's liability enforceable In ano- ^her
State.
Approved in Whitman v. Oxford Nat Bank, 176 U. S.
L. 591, 20 Sup. Ct 479, holding action to enforce liability of si
575 Notes on U. S. Reports. lOG U. S. 381-306
bolder under State Constitution and laws which make him liable
to additional amount equal to his stock can be maintained in any
court of competent Jurisdiction; Mattison v. Dent, 176 U. S. 526,
528, 44 L. 574, 575, 20 Sup. Gt 421, holding widow and heirs of
national bank shareholder to whom Probate Court allots shares
in indlTision, but who let stock stand in decedent's name, are liable
to assessments on bank's subsequent insolvency; Kirtley ▼. Holmes,
107 Fed. 6, applying principle in enforcing stockholder's liability
created by Constitution and laws of Ohio; Howarth v. Lombard,
175 Mass. 575, 56 N. E. 890, holding Hill's Wash. Code, § 1511, pro-
viding that bank stockholders shall be liable to creditors to amount
of par value of stock in addition to amount invested In such
stock, is enforceable against resident of State who is stockholder
in insolvent Washington bank; Kulp v. Fleming, 65 Ohio St. 340.
62 N. E. 338, enforcing Kansas Constitution and laws prescribing
stockholder's liability.
SyL 3 (X, 635). Binding effect of State statutory construction.
Approved in Yazoo & M. V. R. R. Co. v. Adams, 181 U. S. 583,
45 L. 1012, 21 Sup. Ct 730, following Mississippi decisions that
tax exemption did not apply to consolidated railroad; Brunswick
Terminal Co. v. National Bank, 99 Fed. 637, 638, 639, holding
Ga. Code 1882, S 2916, providing limitations against rights accru-
ing under statutes and Maryland limitations, applies to action
in Maryland against stockholder in Georgia corporation to enforce
stockholder's liability created by charter.
109 U. S. 381-385, 27 L. 970, TERRB HAUTE, ETC., R. R. CO. v.
STRUBBLB.
Syl. 1 (X, 637). Contract to send stock to certain yards.
Approved in Cer/tral Stock Yards Co. v. Louisville & N. R. R. Co.,
118 Fed. 116, argu*;ndo.
Syl. 2 (X, 637). Refusal of new trial not reviewable.
Approved In Neinlnger v. Cowan, 101 Fed. 789, reaffirming rule;
United States v. Rio Grande Dam & Irrigation Co., 184 U. S.
423, 46 L. 622, 22 Sup. Ct. 430, holding error in denial of continu-
ance and of application for rehearing not ground for reversal.
109 U. S. 385-398, 27 L. 971, MILLER v. MAYOR OF NEW YORK.
Syl. 1 (X, 637). Congressional determination of obstruction of
navigation is paramount.
Approved In Frost v. Railroad Co., 96 Me. 84, 85, 87, 51 Atl.
808, 809, holding building and maintenance of trestle which is
by Congress declared to be lawful structure, and consequent
closing of channel which damages plaintiff's business and selling
value of property adjoining channel, does not entitle him to com-
pensation; Portland v. Montgomery, 38 Or. 225, 62 Pac. 759, hold-
10i> U. S. 3D8-421 Notes on U. S. Reports.
ing act of Congress prohibiting erection of wharf outside harboi
lines without permission of secretary of war does not prohibit clt]
ordinance restraining construction of wharves beyond city har-
bor lines Vhich is within line fixed by secretary.
Syl. 4 (X, 638). What are navigable waters.
Approved in The Robert W. Parsons, 191 U. S. 26, holding Eri*- ^m — =^le
canal, though wholly within New York State, is navigable water o ^zz^- of
United States within scope of Federal admiralty jurisdiction.
109 U. S. 398-401, 27 L. 976, MEMPHIS GAS CO. v. SHELBY C<
Syl. 2 (X, 639). Federal protection of unjust State taxation.
Approved in Hull v. Alexander, 69 Ohio St. 85, 68 N. B. 643, holc^
ing under Ohio Rev. Stat. 1892, § 2859, action by treasurer for di
linquent taxes must be for taxes on duplicate of current year, nc
prior national bank stock taxes.
Syl. 3 (X, 639). Tax exemption must be clear.
Approved in Newport News, etc., Ry. v. Newport News, 100 V
163, 40 S. E. 647, holding municipal ordinance granting to stre-
railroad franchise to construct tracks and operate cars on stree^^^
though silent as to taxation, does not confer Immunity from licei
tax.
lOQ U. S. 401-407. Not cited.
109 U. S. 408-421, 27 L. 979, FAY v. CORDISMAN.
Syl. 4 (X, 641). Patents — Material element of combination.
Approved in Hubbell v. United States, 179 U. S. 82, 45 L. 99,
Sup. Ct. 26, holding Hubbell patent No. 212,313, for improvement
metallic cartridges, not infringed; Dowagiac Mfg. Co. v. Brenn
118 P'ed. 147, holding Hoyt patent No. 446,230, for Improvement
grain drills, being for combination of old elements, not infringed
device made under Christman & Munn patent No. 497,864;
wagiac, etc., Co. v. Smith, 108 Fed. 70, holding Hoyt patent I
440,230, for grain drill, is valid and infringed; Moore v. Eggers,
Fed. 496, holding Moore patent No. 524,542, for hoisting appa
used in digging and refilling sewer trenches, limited by prior =•
Brammer v. Schroeder, 106 Fed. 921, holding Schroeder patent
535,405, claim 1, for washing machine, infringed by Brammer pa
No. 600,044; National Hollow, etc., Co. v. Interchangeable, etc.,
106 Fed. 711, holding Hein patent No. 361,009, claim 2, for
brake beam, infringed by Aglar patent No. 609,396; Reineke v. Dirr
Woods Co., 102 Fed. 353, holding Ballard patent No. 465,911, for
stove, void for want of patentable novelty In view of prior art
Syl. 5 (X, 642). Patents — Material claims of combination.
Approved in Levy v. Harris, 124 Fed. 71, holding Levy p
No. 664,564, claim 1, for quill-grinding machine, valid but no
Notes on U. S. Reports.
J U. S. 421-428
fringed; United Blue Flame Oil Stove Co. v. Glazier. 119 Fed. 163.
holding Blackford reissue No, 11.S02. (or vapor burner, limited by
prior art to apeclflc structure elnlmed and not Infringed; Bosa, etc.,
Mfg. Co. V. Randall, 104 Fed. 358. boldlng Randall patent No,
380.296. tor improved strap trimmer, valid but limited to particular
coDst ruction specified, and not Infringed by Miller patent No.
611,181.
lOfl U. S. 421^26. 27 L. 084, TEIBELMAN v. PACKARD.
Syl. 1 (S, 642). Removal — Action against marshal.
Approved In Howard v. United States, 184 U. S, 881. 46 L, 738, 22
Sup. Ct. 540, npholding Circuit Court's Jurisdiction over suit on
bond of Federal court clerk. Irrespective of dtizensblp; Files v.
Davis, lis Fed. 4fie, upholding Federal Jurisdiction, regardless of
citizenship, of action on attachment bond executed In Federal suit;
State T. Frost. 113 Wis. 649, 89 N. W. 920. holding suit by suit to
restrain Federal receiver from destroying railroad pursuant to order
of court for purpose of selling materials Is removable.
Distinguished in Gablemau v. Peoria, etc., Ry., 101 Fed. 4, T,
holding action against railroad receiver for damages from negli-
gence In operation of road not removable solely on ground tbat
receiver was appointed by Federal court •
Syl. 2 (X, 643). Bankruptcy — Seizure of goods In possesalon of
RDOtber.
Approved la Bryan v. Bernhelmer, 181 U, S. 196. 45 L. 819, 21
Sup. Ct. 560, holding property of bankrupt In hands of third person
Is within bankruptcy act, j 2, giving District Court authority to
appoint receivers or marshal to take charge of bankrupt's property
after filing of petition; In re Smith, 113 Fed. 994, boldlng where
property claimed to belong to one against whom Involuntary bank-
ruptcy petition is filed Is also claimed by third person, wiio Is about
to remove it, court, on petition of creditors, will restrain such re-
moval; Carting v. Seymour L. Co., 113 Fed. 490, holding where
petition filed to foreclose mortgage and appoint receiver showed
that ptaintifT had Insolvency law in view In framing petition It
would lie sustained as foreclosure petition though requiring amend-
ment, and receiver's possession of mortgaged property would not
be disturbed In bankruptcy proceedings against debtor; In re Yonng,
111 Fed. 159, holding where marshal under order of seizure Issued
under backruptcy act. S -- ci. 3, took proiwrtj- from possession
of banlirupt, which latter surrendered as his own, court will not
on motion order property returned to mortgagee who claims he was
in possession under mortgage, validity of mortgage being denied
hj creditors.
Vol. II — 37
1
109 U. S. 426-445 Notes on U. S. Reports. 678
109 U. S. 426-431, 27 L. 986, SMITH v. McNEAU
Syl. 1 (X, 643). Limitatious — Second suit after dlsmlssaL
Approved in Bunker Hfll, etc., CJo. v. Shoshone, etc., Co., 109
Fed. 507, holding Judgment of dismissal for want of Jurisdiction no
bar to another suit for same cause; Alexander v. Gordon, 101 Fed.
95, holding under Arkansas statute providing that where action
commenced within period of limitations is dismissed, plaintiff may
commence no suit within one year thereafter, record of equity suit
to recover possession of land which was dismissed without preju-
dice is admissible to avoid bar of limitations in ejectment; Pitts-
burg, C, etc., Ry. Co. v. Bemis. 64 Ohio St 32, 36, 59 N. B. 746, 748,
holding where suit for false imprisonment in Federal courts against
two corporations was dismissed as to one for want of Jurisdiction
and other obtained Judgment on demurrer because complaint did
not state cause of action, plaintiff could bring new suit within one
year; Tompkins y. Insurance Co., 53 W. Va. 482, 483, 44 S. B. 440,
arguendo.
109 U. S. 432-440, 27 L. 988, BAILBY v. UNITED STATBS.
Syl. 1 (X, 644). Power to collect government claims.
Approved in Thayer v. Pressey, 175 Mass. 233, 235, 66 N. B. 6, 7^
upliolding bill against executrix of owner of patent who had as-
signed it to declare trust in favor of licensee who had prosecatf
claim against government for use of invention to declare trust
moneys awarded to administratrix by Congress for such use; FewellflT
V. Surety Co., 80 Miss. 791, 28 So. 756, 92 Am. St Rep. 628, holdini
Rev. Stat., §§ 3477, 3737, relating to assignment of contracts mad<
witli government, have no application to controversy between in —
dividuals after execution of contract touching disposition of moneyi
received from government.
109 U. S. 440-445, 27 L. 990, JACKSON ▼. ROBY.
Syl. 1 (X, 645) Validity of miners* rules.
Approved In Penn v. Oldhanber, 24 Mont. 290, 61 Pac. 650, bolt
Ing custom of miners in certain district that twenty days' labor
»1 all constitute $100 worth of work void as in conflict witb Bei
Stat., § 2324.
Syl. 2 (X, 645). Mines — Expenditures on one of several daimi^
Approved in Power v. Sla, 24 Mont 251, 61 Pac. 471, reafQrmin .mz^cr. -Jngr
rule. See 89 Am. St. Rep. 411, note.
Syl. 3 (X, 645). Assessment work on mining claims held tn cod^c^k: <^m-
mon.
Approved in dissenting opinion in Fee v. Durham, 121 Fed. 47
majority holding where locator commenced work on December 26t'.
and his employees worked until December 30th, which was Satordi
when they quit work, leaving tools on claim, until Monday whi
tney resumed work, but on Saturday $100 worth of work bad
tt7» Notes on U. S. Reports. 109 O. S. 440-477
**«*n done, and on Saturday night between 12 and 1 plaintiff located
elaJm, plaintiff was trespasser. See note, 8fl Am. St. Rep. 400,
Syl, 4 (X, GIC). Mines — Neither party complying with stntute.
-*r»proved in Tompali Fracli Mining Co. v. Douglass, 123 Fed. Ml,
•^atBrming rule.
I*i BtiDguished In Conway t. Hart, 129 Cal. 488, 82 Pac. 46.
**^Q«ndo.
^°® TJ. 8. 446^68. 27 L. 902, CDNxMNGHAM v. MACON. ETC..
3t. R. CO.
^S-L 2 (S, 646). Suability of State.
^^»proved In Smith v. Reeves. 178 U. 8. 448. 44 L. 1146, 20 Sop.
J^ T124. holding Federal court has no Jurisdiction over suit against
^"^ "-irornia State treasurer in ofUclol capacity, where State permitting
^^*"t against State treasurer provides that treasurer may demand
^* «».l In certain county; Salem Mills Co. t. Lord, 42 Or. 88. 80. 90, 89
, ^ «;. 1035. 103S. holding suit against State officers to restrain them
^^m using more water from certain stream than is granted by cou-
^^ct between riparian owners and State is not suit against State;
>nting opinion in Worliman v. Mayor, etc.. of New York, 179
«, 45 L. 331, 21 Sup. Ct. 22a majority holding city liable by
***aritime law for negligence of servants in charge of flreboat, in
^^nsequence of which boat collides with and Injures another vessel.
Sjl. 3 (X, 047). Interest of State In suit.
Approved In International, etc.. Co. v. Bruce, 114 Fed. 512. ap-
plying principle In suit to restrain use by postmaster of Infringing
loachine; Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, upholding
Federal jurisdiction to enjoin new attorney-general from prose-
oiitlng suits In State court to recover penaities against railroad for
Tailure to put in force statutory rate schedule, where, at suit of
Stockbolders. railroad was enjoined by Federal court from puttln,e
rates In force and Federal officers enjoined from enforcing statute;
Farmers' Nat. Bank v, Jones, 103 Fed. 494, holding Federal court
has DO jurisdiction over suit to compel State officers to Issue bonds
to plaintiff, as it Is in effect suit against State; State v. Chicago,
etc.. R. R. Co.. 61 Nebr. 549, 85 N. W. 657. holding Federal injunction
csnnot restrain attorney- general from collecting penalty under
maximum freight law, reversed In 110 Fed. 2.
Syl. 4 )X, 648). Nonsuabllity of State, suit against officer.
Approved In dissenting opinion In White v. Ayer. 126 N. C. (W4.
36 S. B. 142. majority determining right of chief Inspector of shell-
flsh to compensation.
109 n. S. 488-477. 27 L. 1000. LEROUX v. HUDSON.
Syl. 1 (X, 649). Court's suit against marshal.
Approved In McLean v. Mayo, 113 Fed. 107. dissolving restratn-
iDg order in suit by bankruptcy trustee to restrain action against
i
100 U. S. 478^-i85 Notes on U S. Reports. 58(^
iiiarsbal for seizure of goods under order of Bankruptcy Court, o
ground that it prevented settlement of estate, where defendant*
verified answer disclaims interest in goods in trustee's hands, an<
alleges election to rely on State court remedy against marshal ai
individual.
109 U. S. 47a-485, 27 L. 1003. RANDALL ▼. BALTIMORE, ETC.
R. R. CO.
Syl. 1 (X, 650). Direction of verdict
Approved in Huber v. Miller, 41 Or. 113, 68 Pac. 408, applying
rule in action on note; Marande v. Texas & Pacific R. R. Co.
184 U. S. 191, 46 L. 496, 22 Sup. Ct. 346, holding whether cottos:
was set on fire by »parks from locomotive is for jury, where cottoi
stored in open sheds near tracks; District of Columbia t. Monltoi
182 U. S. 582, 45 L. 1241, 21 Sup. Ct. 842, applying rule in sul
for injuries caused by horse being frightened by steam roller lets' ^
in street; Patton v. Texas & P. R. R. Co., 179 U. S. 660, 45 L. SeSi
21 Sup. Ct. 276, upholding direction of verdict in action by locom<^.
tive fireman for injuries; Ragsdale v. Southern R. R. Co., 121 F<
926, upholding direction of verdict in action against railroad tt
burning of building near track alleged to have been caused
sparks from locomotive; Higgins v. Wilmington, 3 Pennew. (Del
360, 51 Atl. 2, applying rule where plaintiff to avoid threatenc
injury Jumped from fire truck and was injured by falling into er^
cavation in street; Ketterman v. Dry Fork R. R. Co., 48 W.
G13, 37 S. E. 686, applying principle where section hand going hoi
from work on hand car was killed by collision with runaway ci
Syl. 2 (X, 652). Negligence — Province of court and Jury.
Approved in Cleghom v. Thompson, 62 Kan. 734, 64 Pac
holding where defendant shot at dog and killed man he was ii=z=M.ot
liable for damages.
Syl. 3 (X, 653). Location of ground switch in railroad yard
negligence.
Approved in Kilpatrick v. Choctaw, etc., R. R.' Co., 121 Fed.
holding it is not negligence to use unblocked frogs in raih
freight yard whereby feet of employees coupling cars are liabU
be caught, it appearing that such frogs are generally iii us^-
«ame section of country.
Syl. 4 (X, 653). Assumption of risks by servant.
Approved in Kenney v. Meddaugh, 118 Fed. 212, holding firei
assumes risk from proximity to track of mail crane, where he
served in same capacity for over one year and passed crane ixl.
times; Hence v. New York, etc., R. R., 181 Mass. 226, 63 N. B.
holding freight brakeman assumes danger from permanent o
crowded condition of freight yard from its being inadequate
business of road; dissenting opinion in Potter v. Detroit, etc.,
5S1
Notes on U. S. Reports. 100 V. S. 485-504
Co., 1S2 Mich. 197, 81 N, W. 88. majority hoiaing hrakeman does not
aBBUme risk of Injury from telegraph pole placed near track, though
t»e tad passed pole sereral times, where It la shown that other
I>oJ^s not BO placed.
r>iatingulshed in Pntter v. Detroit, etc., R. R. Co., 122 Mich. 188.
Sx N, w. 83, holding hrakeninn does not assnine risk of injnry from
'^l^graph pole negligently placed so near track as to prevent him,
'*^"lien riding on aide ladder, from passing it in safety, though he
t»^<l passed pole several times, wliere It i« shown tliat other poles
Hot so placed.
SyL 5 (X, 654). Who are fellow servants.
^*-Pproved in Weeks v. Scharer, 111 Fed. 333, holding shift boss
*v-in^gg duty it Is to direct work but who cannot hire or discharge
**aex» is fellow servant of men Id his shift; Grattls v. Kansas C, etc.,
^"y- Co.. 153 Mo. 40e. 77 Am. St. Bep. 739. 55 S. W. 116, holding
"''^maii. engineer, and conductor on same train are fellow seryants;
<3Jssentlng opinion in Missouri, etc., Ry. v. Elliott, 102 Fed. 112,
*****Joi-ity holding train dispatcher of one of several divisions of
^^^''oad system, who is engaged nnder superintendent of system, is
^ ^''o'W servant of Oreraan engaged on bis division; dissenting opinion
^'^ ^SiobBon V. New Meiico. etc.. R. R., 2 Ariz. 198. 200, 11 Pac. 558.
"~*'^^- «nnjorlty holding teamster bauling railway ties and drlyer of
"^^^tke of train on which employees rode to dinner not fellow
, ^"""^^^nts precluding former's recovery for injuries; dissenting opln-
.^^^ In Carr v. National, etc.. Loan Co. of Watertown, 167 N. Y.
r-^*^' majority holding switchman employed and paid by telegraph
^ **i ^lany but who served as brakeman for railroad not fellow
^^"«nt of fireman.
. *^^lstingulBhed in Hobson v. New Mexico, etc., R. R., 2 Ariz. 182.
^ac. 549, holding railway teamster hauling ties not fellow
_, ~~ ■"' "^~ ant of engine driver on company's dinner train, hence may
^^^^"ver for latter's negligence; Louisville, etc., R. R. Co. v. Jackson.
^^^ Tenn. 442, 61 S. W. 772, holding freight conductor not fellow
*"Vant of depot agent.
"*-<:*» U. S. 485-504. 27 L. 1006. ELLIS v. DAVIS.
SyL 3 (X. 657). Federal jurisdiction over new State remedies.
Approved in Land Title, etc., Co. v. Asphalt Co., 127 Fed. 19,
*^oldlBg Federal court following Federal practice will enforce
^'tmedy given by N. J, Lawa 1898, p. 208, ttuthoriKlng creditor's
^Ult, enjoining Insolvent corporation and appointing receiver; Sawyer
■v. White, 122 Fed. 227. holding where controversy over validity of
iviU arlKes between citizens of dllTerent States, Federal court
has jurisdiction when State statutes give jurisdiction to Stflte court
of general jurisdiction; Wart v. Wart, 117 Fed. 767, upholding
FederaJ jurisdiction where Iowa statute has provided that original
proceeding may be brought to contest validity of probated will, in
^X
109 U. S. 5IM-512 Notes on U. 8. Repoita. 6SS^
' wblcl) either party may demand Jury; Williams v, Crabb, 117 Fed — -
190, 200, 201, holding where State statutes confer on Stnte ennitsf
court orlfTinai Jurisdiction of suits to contest validity of probatei^K-*
will, Federal Circuit Court has concurrent Jurisdiction wherid— =
requisite dlveralty of cltizcnsliip and amount in controversy exist "^ ^
Hale V. Tyler, 115 Fed. 835, upholding Federal Jurisdiction oveu^ '-
salt by creditor of decedent on behalf of all creditors who may' '
come in, to set aside conveyance made by decedent in lifetlm^^- -^
as fraudulent, notwithstanding pendency of State probate proceed — -
Inga, where State court has not taken possession of property^ :
Hale T. CoSBn, 114 Fed. C74. 075, holding where ftdmlnlBtration oC '
eatate has been completed by State Probate Court and property dis — -
tributed and passed out of Its control. Federal equity court may^ "
Bubject such property In bands of distributee to debt of decedent : :
Myers v. Chicago Sc N. W. Ry. Co., 118 Iowa, 321, 91 N. W. 1079,
holding condemnation suit removable to Federal court; dissenting- ■;
opinion In Wahl v. Franz. 100 Fed. 693, 6W, 695, 696, 700. majority
holding where State Circuit Court under Arlianaas statute baa nc* •
Jurisdiction over will contest except on appeal from Probate Court-
In which case matter is tried de novo therein, proceeding on suets. J
appeal is not suit of civil nature at law or In equity within Judiciary' ''
act of 1888. it 1. 2.
DlstlngniKhed in Wahl v. Franz, 100 Fed. 083, 084. 680, «S7. 68S , , .
holding where State Circuit Court under Arkansas statute has no «:
Jurisdiction over will contest except on appeal from Probate Court- _, -
In which case matter la tried de novo therein, proceeding on sue azirK
appeal is not suit of civil nature at law or in equity within Judicial- ^^-
act of 1888, ES 1, 2.
Syl. 5 (X, 658). State law impairing Federal courts' Jurisdiction.
Approved in Jordan v. Taylor. 98 Fed. 645, holding during tii^czr:^
of administration of eatate in Probate Court and before renditi ^c^^
of executor's accounts, Federal equity court will entertain bill ^^ —
cestui que trust under trust fund comprising general residuary m
tate to set aside executor's sale.
lOB U. S. 504-512, 27 L. 1012, TOWNSEND v. LITTLE.
Syl. J (X, ffi9). Constructive notice — Possession as notice- of
title.
Approved in Atlanta Nat. Bldg., etc.. Assn. v. Gilmer, 128 I^ ed.
295, holding where mother roomed with daughter who i-nnrtnc ted
rooming-house and owned legal title, one lending latter money ^not
charged with notice of motlier's equity; Adams-Booth Co. v. IC ^M^Id
112 Fed. 112, holding tact that at time execution of mort^f -^■'Se
mortgagor's sons resided with father on property and were assis. -9=^ iHk
fattier In conduct of business thereon does not constitute ^ -^"ich
possession by sons as to charge mortgagee with constructive ni_* ^ 'ce
of their right under parol agreement with father; Thomas v, * -J'y
Notes on U. S. ReporU. 109 U. S. 513-521
Flint, 123 Mich. 35. 81 N. W. 945. boiaing under act of 1897, Im-
I»oaing liability on city for injury resulting from defective bridge,
X»»-<ivided reHBonable time to repnir had after notice of defect, 11a-
■^iXlt; cannot be predicated on neglect to make Inspections, tbougb
1 a:».speetlon would liave disclosed Intent defect.
Syl. 2 (X, 6591. Priority of bona fide piirchauer.
Approved la Economy Sav. Bank v. Gordon, 90 Md. 503. 45 Atl.
1 -"U liolding where raorlgnge was witliont title of consideration and
^iTen to secure loan to mortgagee, bona flde lender talcing assign-
«=t» ent of mortgage prevails over Judnnient credltora of mortgagor
'^^'' ho filed creditor's hill to set aside mortgage aa fraudulent because
^*-»ade without conslderationi.
Syl. 3 (X, 659). Special law qualiQes geoeral.
Approved in Dalted States v. Nix, 189 U. S. 205, 23 Sup. Ct, 498,
-^=~3 L. 777, holding 2G Stat. 81, chap. 182. i 10. providing that offend-
^^:mrB agalnat Oklahoma should be taken before United States com-
K^Knlssloner whose office la nearest to place where oCTense was com-
»::»nltted, not repealed by provision of appropriation bill of 1894. that
x^Knarahat cannot charge mileage where he does not take ofrendiir
'«:«> commissioner nearest place of arrest; In re City Trust Co., 121
^^E«'ed. 70S. lioldtug Ohio Iter. Stat., i 6%5, applies only to such
!S. ^borers as are operatlreB, and having been enacted subsequently
"^t <i section 3206a, deprives such laborers of general preference;
■■— M-'own of Alden v. Easton, 113 Fed. 65, construing Spec. Laws Minn.
^^L808, p. 47, relating to Issuance of bonds by towns; D'Esterre v.
"^ — "Sew York, 104 Fed. 610, boldlag special act authorizing lasuance
^czz»f municipal bonda and prescribing form and conditions of such
"^traonds supersedes general statutory provlslona on that subject.
^^^09 V. S. 513-521. 27 L. 1015, UNITED STATES v. JONES.
Syl. 1 (X, 0601- Right Of eminent domain Incident to sovereignty.
Approved in Board of Park Comrs. v. Du Pont, 110 Ky. 754, 62
^. W. 893, upholding Stat, i 2852. part of charter of cities of
^^rst claea, which provides that boiard of park commissioners may
^Drder condemnation of property, though course of procedure not
^yrescrlbed further than to require filing of petition to institute pro-
ceedings.
Syl. 2. 3 (X, 6S0). Eminent domain — Proceedings according to
Stale law.
Approved in Postal Tel. Cable Co. v. Southern Ry. Co., 122 Fed.
160, holding constitutional provision as to jury trial does not apply
10 condemnation proceedings which have been removed, since pro-
cedure prescribed by State must be followed in determining amount
of compensation; Denver Power, etc., Co. v. Denver, etc., R. E.,
30 Colo. 212, 69 Pac. 570, holding railroad right of way cannot
be condemned for reservoir site lo an extent which would wholly
1
100 U. S. 522-548
U. S, Reports.
K^
deprive railroad of Us usi', unless public necessity requlrtB thai
It be takeu; Postal Tel., etc.. Go. v. Chicago, etc.. B. R. Co.. 30 Ind.
App. 681. 08 N. E. J*31, Iioldlng telegraph compnny Incorporated in
this State may acquire right of way for its lines over railroad right
100 U. B. 522-527, 27 L. 1018. THOMAS v. BROWNVILLE. ETC..
R. R. CO.
Syl. I (X, (HIOI. Contract in which corporate directors interested
voidable.
Approved In "Kesaler v. Ensley Co.. 123 Fed. 558, holding refusal
of directors and Ktockholders to lirlug suit to i^et aside contract of
corporation was election not to d>Bl<lrb ti-ansactlon.
Syl. 4 (X, 662). Stockholders as parties to forecloaure of bonds.
Approved In Wyman v. Bowman. 127 Fed. 2Ta, holding receiver
cannot rescind transaction between corporation and directors by
which latter recelvMi assessment made on its stock, and aue OPiglnal
subscribers without returning such assessment
109 U. a. SST-MS, 27 L. 1020, CANADA SOUTHERN R. R. CO. v.
GEBHAUD.
Syl. 5 (X, 663). Corporation subject to home legislation.
Approved In Coltrane v. Templetoc, 106 Fed. 375, reaffirming role;
Nashua Sav. Bank v. ADglo-Amerlcau Co.. 189 U. S. 230. 23 Sup. Ct.
518, 47 L. 78Q, affirming 108 Fed. 767, 784, holding In action by for-
eign corporation to recover call on stock, which by foreign laws is
made debt from stockholder to corporation, for which latter baa
lien on stock, corporation may enforce personal liability that law
of State where action brought restricts remedy to forfeiture and
Bale ot stock; Seattle Gas. etc.. Electric Go. v. Citizens' Light, etc..
Power Co., 123 Fed. 592. holding New Jersey corporation, organized
under general corporation law and not under gas act, cannot
engage in gas business in another State; London, Paris, etc.. Bank
T, Aronsteln, 117 Fed. 607, holding British corporation maintaining
office In California, in charge of managers empowered to transfer
Btock and issue certificates, and which there sold shares, must, on
death of stockholder, transfer such shares to California eiecutor;
Glesen v. London, etc., Mortgage Co.. 102 Fed. 587. holding where
transfer of stock In foreign corporation never made on books of
corporation because of noncompliance with foreign law. and on
liquidation proceedings assessments levied on shareholders, such lia-
bility enforceable against transferror In United States courts; Hud-
son River Pulp, etc., Co. v. Warner. 09 Fed. 189, holding where
by amendment of by-laws foreign corporation acquires lien, which
by laws of country of Its incorporation is paramount to Hen of
previous pledgee, priority of such lien must be recognfaed by
courts of United States; Louisiana v. Southern Fac. Co.. 52 La. Ann.
r.»3 Notes on f. S. Reports. 109 D. S. 650-572
1S2G. 28 So. 3T4. bolding forelfCD lallroiid not empowered by laws
of Its creation to carry on busloess of wafehouaeman cannot carry
on stich business In this State; Childa v. Cleaves. 90 Me. 512. 60
Atl. 718. holding receiver of foreign corporation may ene In this
State resident stockholder to enforce stockholder'a liability created
by iBwa of State of receiver's appointment; Bank Comrs. v. Granite.
^tc. Ana.. 70 N. H. 560, 85 Am. St. Bep. 050. 40 Ad. 126. holding
%vliere asalgnee Is appointed for Insolvent corporation, and ancillary
r«?*eiTer appointed In another Stale, decision of latter Stale Is
binding on courts of former only as to asseta In foreign Stale;
t'^loyd V. NaUonal Loan, etc., Co., 48 W. Va. 340. 38 8. E. 651), hold-
Jns coDtract of foreign building association made with citizen of
tills State, secured by realty situated herein, and by its terras per-
*"ormable in domtcUlary State, most conform to laws of this Slate
** *o premiums; dissenting opinion in So., etc., Bridge Co. v. Stone,
^'^■* Mo. 41, 73 S. W. 463. majorlly holding legislature may confer
"*i» foreign corporation power to condemn lands though it have no
suci, power under laws of State i>f Its creatloa
109 XT. S. 550-553. Not cited.
lOo XJ. 8. 536-572, 27 L. 1030, EX PABTE GBOW DOG.
^3" I. 4 (S, 665). Statutory construction — Reference to repealed
statute.
•^t*I>roved In Cbauncey t. Dyte Bros., 119 Fed. 10. boldiiig under
-Acta Ark. 18»5, p. 217. i 3. giving preference to mechanics' Hens
^^«~ prior incumbrances, unleSB incumbrances executed to raise
r****>^j for improvements, where only part of mortcage proceeds used
^ X*^S (or Improvements, mechanic's lien superior to mortgage as
*^ S>«:>rtlon not so used; Slate v. Columbia GeorRC. 30 Or. 131, 132,
'*^- «5 Pac. 605, holding since Dawes act of 1SS7 does not repeal
*^5" *' ISSi, providing that Indians committing certain named
~^^tkses on a reservation should be tried in Federal courts, an
*^t:-tee on Umatilla Indian reservaiion, charged with offense enu-
^^*^«ted in act of 1885, can be tried only In Federal courts; Mason
" '^i-anbury, 68 N. J. L. 159, 52 Atl. 072, arguendo.
^S-l, 6 <X, 6G6). Extension of criminal law by Indian treaty,
tk iBtlngulshed In United States v. Miller, 105 Fed. 946, holding
*V>al Indians, though off of reservation at time liquor given them.
^*"«^ within Bev. Slat.. | 2130, as iiraended. Inhibiting giving of
''"IMors to ■■ Indian, a ward of the government under charge of
Vidian agent."
Syl. 8 (X, 667). Repeal of general by special law.
Approved in Bodgers v. United States, 185 U. S. 88. 46 L. 818. 22
8up. Ct. 583, holding rear-admirals advanced to that rank by 30
Stat. IU04, chap. 413, | T, not entitled to pay of maJor-generalB of
109 U. S. 573-617 Notes on U. S. Reports.
army, by virtue of section 13 of same act, as latter provides gener
rule for salaries of naval officers and does not repeal former pi
vision; Commercial Bank v. Sandford, 103 Fed. 101, holding genei
statute relating to levy of special taxes by school districts does
affect powers of district subsequently created by special act; Zickl
V. Union Bank, etc., Co., 104 Tenn. 294, 57 S. W. 345, applying
to inheritance tax law; University of Utah v. Richards, 20 Ut
464, 77 Am. St. Rep. 931, 59 Pac. 98, holding Sess. Laws It
chap. 5, being special act relating to removal of State universi
not repealed by Sess. Laws 1899, chap. 53.
(X, 665). Miscellaneous.
Cited In Dunbar v. Green, 66 Kan. 566, 72 Pac. 246, holding whi
Indian's laud sold while he is minor, by guardian, and Ind'
after attaining majority delays for twenty-one years to quest
validity of deed, he cannot afterward contest deed on ground
lack of Jurisdiction of proceedings on which it was based.
109 U. S. 573-577, 27 L. 1036, YOUNG v. DUVALL.
Syl. 1 (X, 668). Married woman's acknowledgment.
Approved in Linton v. National Life Ins. Co., 104 Fed. 589, h<
ing acknowledgment of execution of instrument affecting title^ '^^
realty In Nebraska not essential to validity of instrument betw^^ ^^^
parties.
109 U. S. 578-607, 27 L. 1038, PROVIDENCE, ETC., N. Y. SS.
V. HILL MFG. CO.
Syl. 1 (X, 668). Federal limitation of liability proceeding su]
sedes State.
Approved in Aultman, etc., Co. v. Brumfleld, 102 Fed. 11, holdli
Federal court will not enjoin county treasurer from proceeding
State court for recovery of Judgment for back taxes upon complal
ant's personal property.
Syl. 4 (X, 669). Procedure on limitation of liability.
Approved in Oregon R. R. & N. Co. v. Balfour, 179 U. S. 56, 46
84, 21 Sup. Ct. 29, holding proceedings under limited liability act
admiralty cases within Judiciary act of 1891, $ 6, making Judgmei
of Circuit Court of Appeals from admiralty cases, final and n<
appealable; In re Old Dominion SS. Co., 115 Fed. 848, holding
limitation of liability proceedings, question whether fii-e by wl
cargo was destroyed was caused by design or neglect of shlpo^'i
so as to deprive him of exemption from liability, is for court.
109 U. S. 608-617, 27 L. 1049, ROBERTSON v. PICKBRELU
Syl. 1 (X, 671). Law governing transfer of realty.
Approved in Pritchard v. Henderson, 2 Pennew. (Del.) 657, 4"*^ ^ '
377, holding defendant in ejectment not estopped by probates ^
5S7 Ngtea on U. S. Reports, 106 D. S. 618-620
ce^dlngs 1q another State In wblcb court found that testator was of
ansound mind and ttiat vOl was procured by fraud not estopped
to deny such Diidlngs.
Bj-l. 3 IX. 671). Credit due foreign judgments.
A.i*proyed In Overby v. Gordon. 177 U. S. 223. « L. 745. 20 Snp.
Ct. 607. holding adjudication of fact of domicile of decedent made In
KTatit of admlniBtratiou bas do probative force on question of
<loir»il«lle In court outalde of State In proceedins for admlnistrntlon
of assets within ttat Jurisdiction, wliere adjudication was made la
proceeding In rem; TarbtU t. Walton, 71 Vt. 409. 45 AU. 749. holding
proljaie of will in anothur State establlsbes nothing but validity of
w-ill Id sncb State. See D4 Am. 8L Rep. 550. note.
Syi. 10 (S, 672). Eetoppel to deny grantor's title.
-A-pprored In Hunt v. Itnbltoay, 125 Mlcb. 142, 84 N. W. 60. hold-
ins life tenant canoot puri'lmse hostile claims to set up In opposition .
to oi-igrnal title during bis life tenancy; Drake v. HoweU. 133 N. C.
^**'^' 45 S. E. 541, holding where In action for trespass In cutting
«lo-v%-n trees, plaintiff failed to prove actual poasesBlon or legal tlile
to trees, defendants not estopped to deny plalnttlTs title by two
'S^^Os from plaintiff conveying right to defendant to cut timber.
lO© xj. S. 818-620, 27 L. 1053. SWEENEY v. DNITED STATES.
^yl. 1 (S, 672). Recovery where officer must approve work.
-^Oproved In American Bonding, etc., Co. v. Gibson Co., 127 Fed.
®^-*. holding owner cannot recover per diem damages for delay,
*'h<if e damages not showu to be audited nor certificate of architect
•ssvi^^ as provided In contract; Mobile v. Shea, 127 Fed. 629, upbold-
'-'^ «:;ontractor'a right to recover tor construction of aewer system
***i«^r contract giving spec I float iona, estimates to be made and dis-
**''*-*^» settled by engineer, though plans deported from Parlin, etc.,
jT**- -V. Greenville, 127 Fed. 61, holding where contractor agrees to
****^ garbage furnace with certain capacity, city to pay for on ae-
^I*'tance, board cuanot defeat recovery by unreasonable refusal;
^t*^*-*ed States v. Veuable Const Co., 124 Fed. 273, holding where
^'^'^^^mment contract provided that final settlement should be made
^Inal estimates rendered for sncli work by officer In charge, esll-
r^**- "*;c made by such officer from measurements and other reconls
^ •*2!0aclu8ive; Boyce v. Uniied States Fidelity, etc., Co., Ill Feil.
^"^^^^ holding where, under terms of contract, city trustees after due
"•iilce declared contract forfeited and permitted contractor's surety,
*-*. ich had contract of Indemnity with coniractor. to complete work,
^^*.ich surety did at expense greater than price received, surety
. ^^.g creditor of contractor and entitled to maintain petition In
^*-*kruptcy against him.
109 U. S. 621-659 Notes on U. S. Reports.
109 U. S. C21-627. 27 L. 1053, CHEROKEE CO.COMRS. v.WILSO
Syl. 1 (X, 673). Mandamus to compel tax levy to pay Jadgm
on bonds.
Approved In United States v. Saunders, 124 Fed. 127, bold
wbere Judgment has been rendered against city on its bonds,
demand necessary before instituting mandamus to levy tax to
such Judgment.
109 U. S. 627-629. Not cited.
109 U. S. 629-632, 27 L. 1056, EX PARTE BOYER.
Syl. 1 (X, 674). Admiralty Jurisdiction over canals wholly
State.
Approved In The Robert W. Parsons, 191 U. S. 28, 30, 35, h
ing Erie canal being navigable water of the United States
scope of admiralty Jurisdiction, lien for repairs to canal-boat can
be enforced in rem In State courts.
109 U. S. 633-654. Not cited.
109 U. S. 654-659, 27 L. 1068, WYMAN v. HALSTEAD.
Syl. 1 (X, 676). Administration — Contract debts assets at
debtor's domicile.
Approved in Michigan Jrust Co. v. Probasco, 29 Ind. App. 3-:^i
63 N. B. 257, reaffirming rule; Blacltstone v. Miller, 188 U. S. ^5^35,
23 Sup. Ct. 278, 47 L. 445, upholding imposition of tax under- ^•
Y. inheritance tax law on transfer under will of nonresident* of
debts due decedent by residents of that State; Tootle v. Colencft^^'
107 Fed. 44, holding garnishment by citizen of one State of det^'^^or
of same State whose creditor resides, whose debt is contracteii a- ^^^
is payable in another State, is such attachment of chose in actM ^)n
as authorizes court to obtcin Jurisdiction to dispose of It by pcit^^W-
cation of summons against defendant; Murphy v. Crouse, 135 C5^'
20, 87 Am. St. Rep. 94, 06 Fac. 973, holding stock certificates owt^-^
by nonresident and in his possession at death at his domicile Ii^b- ^^
situs for purpose of administration at debtor's domicile.
Syl. 2 (X, 677). Payment to foreign administrator.
Approved in Gardiner v. Thorndilie, 183 Mass. 82, 66 N. B. C^ ^^
upholding payment of legacy to guardian of legatee who was ^P*
pointed by court of another State and who together with leg» ^^
is resident of such other State.
Syl. 3 (X, 677). Place of payment of government's debt to ^^
cedent.
Approved in United States c. Tyndale, 116 Fed. 825, holding w]
unclaimed assets found on dead body floating on high seas whic
brought ashore in certain county are libeled in Federal court si
1 U. S. Ileports. 109 0. S. 659-725
loe u. s. ma-mi. 2t l. iost. bachman v. lawson.
8yL 1 (S, 677). CommisBlons for prosecution of Geneva claims.
See 83 Am. St. Rep. 184, note.
109 U. 8. 665-668. 27 L. 1065, BEXDEY v. TOWNSEND.
S?l. e {X, 678). Courts — State laws as to attoraey's fees.
Approved in Mcllwalne v. Ellington. Ill Fed. 584. holding where
coniract between building aasoplBtlon and borrowing Btockholder
li governed by law of association's iiom[cile and 1b valid tliereonder,
sufh law deternilneB amount due on contract In Federal snlt to
foreclose mortgage after association becomes Insolvent, notwlth-
SbDdlDg lawH of State where suit brougbt and property situated;
'a re Roche. 101 Fed. 950, holding wbere mortgage creditor of bank-
"■M proves claim as secured debt including stipulated attorney's
f«B, bnt latter is disallowed by referee. District Court decree revers-
™S sach diaallowance is appealable to Circuit Court of Appeals
under bankruptcy act. S 25. subd. 3.
^09 II. S. 668-671. Not elted.
^'^ O. S. 672-702. 27 L. 1070, POTOMAC STEAMBOAT CO. v.
tH»PER POTOMAC S. CO.
^l. 1 (X, 680). Trust deed of land along Potomac for city.
■Approved In Snowden v. Loree. 122 Fed. 4S7. applying rule where
•^ty fyf Allegheny platted and laid out under Pa. act of 1787.
^yi. 4 (X, 8801. BighlB of riparian owner.
■Approved in Sullivan Timber Co. v. City of Mobile, 110 Fed. 102.
"lUirig riparian owner along navigable stream may erect wharf;
«'ssei»ting opinion in Scranton v. Wheeler, 179 U. 8. 179. 45 L. 143.
S«ap. Ct. 63, majority holding where pier erected by government
'^^nd submerged under navigable water, title to which is owned
■" *'^t>arlan owner, when this Is done merely to Improve navigation,
ou^h It permanently destroys his access to navigable water, he is
Entitled 10 compensation.
'•* Xj. S. 702-725. 27 L. 1081, CHICAGO. BTC. B. H. v. UNIOS
*I0LLING-M1LL CO.
*"l- 1 (X, 681). Dismissal before hearing carries croas-blll.
■*-t»proved in HeJnze v. Butte, etc., M!n. Co.. 126 Fed. 6, holding
^^■"e cross-bill In partition suit contained all necesaary averments
•' affirmative relief for cancellation of deeds, court may try aU
*^es raised at same time without staying partition suit.
'^Jstlngulshed In Small v. Peters. 104 Fed. 4CH, holding dismissal
M
100 D. S. 725-734 Notea o
U. S
ReportEL
doeB not carry crosB-blll where In suit for spedflc perfonnance latt«i
Bets up new matter as Ki'ound for affirmative relief.
Syl. 2 (S. 081). Equity — Voluntary diBmlssal after decree. '
Approved In Tesas Cotton Products Co. t. Starues, 12S Fed. 1S4,
holding plaintiff procuriug dismissal of suit removed to FedersI '
court may Institute eecond suit In State court, dismissal being witb-'
out prejudice; Ebuer v. Zimmerly. 118 Fed. 820. upholding disraUsaf
witiiont prejudice under Alaska Code Civ. Froc., i 3TS. for failure
of proof; McCabe v. So. liy. Co., 107 Fed. 214. holding where Stale
court reversed decree on ground of error in refusing removal, plain-,
tifr may appear in Federal court h» which case has been docketed
and dlscoutinae cause on payment of costs, excluding State court
costs; BaidwlD t. Roman, 132 Ala. 325, 31 So. 50^. holding wLers
garnishee answered that Ije was not indebted to defendant and
plaintiff sought to contest answer, which right was denied him,,
plaintID! could t-ike nonsuit; Washington, etc., Inv. Assn. r, ^
Saunders, 24 Wash. 328, 329, Si Pac 518, 519, holding plalntiti can^j
not dismiss where counterclaim demanding affirmative relief has.
been set up.
Syl. 7 (X, 683). Agreement to accept note as waiver of lien.
Approved in Hooven, etc., Co. v. John Featherstone'a Sons, 111
Fed, 95. holding retention by contract of title to materials furnished
as security for purchase price by claimant of mechanic's lien will
not estop vendor from enforcing his statutory lien; Hooven, etc.,
Co. V. Featherscone, 99 Fed. 181, holding reservation by one rumlsh-
ing engine to be placed in building of title to engine until payment
made not waiver of stalutory mechanic's lien; Warner Mfg. Co. v.
Building, etc.. Loan Assn., 127 Mich. 326, 8C N. W. 829. 89 Am. St^
Rep. 474, holding retention of title on sale of chattels until pay-
ment of purchase price not inconsistent with mechanic's lien; Baum-
hotr V. St. L. & K. Ry. Co., 171 Mo. 128, 71 S. W. 159. 01 Am. SL
Rep. 775, holding mechanic's lien not waived by agreement to take
securities in payment; Rosenbaum v. Hayes, 10 N. Dak, 327, 86 N.
W. 980, applying principle to factor's lien; Pho-nlx Mfg. Co. v. Mc-
Oormlck Harvesting, etc., Co., Ill Wis. 574, 87 N. W. 458. holding
where machinery is sold for purpose of annexation to realty, Inten-
liou to waive lien on realty not Inferred from fact that prior to
amiexatlon vendor takes chattel mortgage on machinery as security
109 D. S. 725-734, 27 L. 1089, HOWARD v. CAEUSL
Syl. 1 (X, 683). Devise with power ot disposition — Limitation
Approved in McDuffle v. Montgomery, 128 Fed. 110. Ill, holding
win giving residue to wife absolutely, requesting her to assist testa-
L.
Notea on U. S. Reports. 109 U. S. 735-741
lor'j broOiers and aisfers and divide with them at her death, created
notrast: aaj- et h1. v. Ohenault. 108 Ky. 103, 55 S. W. 737. holding
under will devising land to son, with power to sell, and providing
Hut If at son's death without desceudauts proceeds should be In-
vested In other lands, such land should revert to testator's estate, son
toot fee; Ensley v. Enaley, 105 Tenn. 121, 58 S. W. 291, construing
will as not raising precatory trust; Reeves v. School Dist. No. 59 of
Lincoln Co., 24 Wnsh. 287, 64 Pac. 753, holding devise of balance of
property to son. nnd in case of his death to school fund, passes
absolnte fee simple title to devisee; Roth v. Kauachenljusch, 173 Mo.
580. T3 8. W. 666, arguendo.
ItiB U. S. 735-741, 27 L. 1063, SHERMAN COUNTY v. SIMONS,
Syl. 1 {X. 681). Becltala protect bona flde bolder of bonds.
Approved In Miller v. Ferris Irr. Dlst., 99 Fed. 145. holding
™^tals In irrigation bonds laaued under Cai. act of J887. that auch
bonds Were Issued by authority of, and pursuant to. and after full
compliance with all requlrementa of said act, estops district us
against bona fide holder.
Syl- 2 (X. 685). Bonds — Estoppel of county by decision of
■*Ppi-OTed In Wesson v. Town of Mt Vernon, 98 Fed. 810. holding
•^cttsla ]n township refunding bonds that they are issued for pur-
P°^i oC iundlng aud retiring certain outstanding and unpaid obliga-
°* ^^top township from denying validity of funded debts; Board
of Coctj_,g^ T. SntlifT. 97 Fed. 2(7, and Beatrice v. Edmlnson, 117
*^M. *Zi2, both holding recitals in municipal bonds which import
i!8nan«2-^ in accordance with law or Constitution which contains
iiiEltfltj^j, gf Indebtedness estops municipnilty from setting up
acees ^f prescribed limitation, where recitals wei-e by officera whose
mtj l-^. „gg jj, determlna whether debt limit was esceeded before
'' *^aued bonds; dlaaentlng opinion in City of Santa Cruz v.
Waites, gg p^ ggg^ majority holding under Cal. act of 1893. p. 5»,
reUtiti^ to refunding of municipal Indebtedness, recitals by city
wino^j could not estop city from proving by records want of notice
<*«letitloi, which would Ii)\a]idBte bonda.
ex UNITED STATES.
Not cited.
110 D. S. 7-15, 28 L. 49, MARTIN y. WEBB.
1, 2 (X, eS6). Cashier's power to bind baab — Usaee.
Approved In Nicholson v. Randall Bank. Co., 130 Cal. 539, 62 Pac— '*^
932. holding where bank directors permit cashier to transEw ac —
counts from Imnk which it aucceeded, and render statements show- --
lag accounts to have been transferred, and lead depositors to belicTe -^
their accounts have been transferred, bank is estopped from denying "^
liability on such accounts; Mutb v. St. Louis Trust Co.. 94 Mo. App. -
lOT. 67 S. W. 982. holding paying teller has not implied authority ""^
to certify checks; I'rent v. Sherlock. 24 Mont. 261, 61 Pac. 652, hold- -
lug single instance of permission of mining superintendent to con- '
tract tor purchase of machinery and another instance where he -
deposited corporate funds In own name and drew personal checks ■
thereon do not authorize his pledge of corporate property for cor-
porate debt; Gerner v. Mosber, 58 Nebr. 156, 78 N. W. 391, holding "S
to charge bank director Individually with consequences of false re- —
ports It must appear that he attested report required of cashier by "*
U. S. Rev. Stat., g 5211.
SyL 3 (X, 687). Presumption of bank cashier's authority.
Approved In Kent t. ACdlcks, 126 Fed. 118, holding upon issue ^
as to authority of agent to bind hia principal by particular con- —
tract, evidence is admissible to show that he had made other ~
similar contracts which had been accepted and carried out by hla *
principal; Gale v. Chase Nat. Bank, HM Fed. 217, holding evidence *
that bank cashier had drawn nine drafts In payment of own debts, «
only four of which were to his own order and all Issued within -■
preceding sis months. Is Insufficient to Infer authority to Issue anch *
drafts; Hall v. Henderson. 12G Ala. 495. 28 So. 544, holding stock- -
holder, who la also treasurer of corporation, cannot, as against J
creditors ot corporation, avoid probative force of entries In books *
he la required to keep aa treasurer, by proof of dereliction of dutj "^
or negligence In not keeping books; McClure v. People. 27 Colo. 371. —
61 Pac. 617, holding bank president cannot relieve himself from m:
prosecution for receiving deposits In Insolvent bank by plea of "^
Ignorance of conditions of bank: Blake t. Domestic Mfg. Co., 64 N. —
J Kii 497. 38 AU. 258, holding where corporation's treasurer Is ^
made Its general agent for Indorsement of paper by reason of ^K
Notes on U. S. Reports. :iO U. S. 15-26
Hcqniescence o( directors In numerous Indorsements made by him
while holding himeelf out to public as Lnving authority to do ao,
an Indorsement made by bim Is binding on corporation, thoagb
Inflorsee had no knowledge of prior Indorsements; Tourtelot v.
W-hithetl. 9 N. Dak. 474. 84 N. W. 10. holding when bank directors
abandon management of bank to prealdent, It Is Treaumed that he
is authorized to do. In bank's name, anything which bank might
'a%^-f"«lly do, and no special authorization or ratification Is necea-
Kary - Coolldge t. Scherlng, 32 Wash. 564, 73 Pac. 6S5, holding where
corj>cirate officer In sole charge of its bualness falsely represents
tli*i.t he is authorized to sell its realty and fraudulently connives
^v-ith fictitious officer to make conveyance Ibereot, and corpora-
*!<**»■ does not disaffirm for two years after discovery of fraud, it la
estopped to deny officer's authority,
HO TJ. S. 15-26, 28 L. 52, HOLLAND t. CHALLEN.
^yi. 1 (X, 688). When bill of peace lies.
-A^iproved In New Jersey, etc.. Co. v. Gardner-Lacy, etc, Co., 113
F^sta. 397, holding where bill against numerous defendants seeks to
establish title, remove cloud, aud enjoin trespass, and defendant in
I>08s«sgion of part of land traverses title, denies trespass, and sets
»*I» apparently good title, restrainlns order will be vacated unless
tri^l of right of possession had.
^Sh 3 fX. 688). Possession necessary to quia timet
-Approved In Bird v. Winger, 24 Wash, 277, 64 Pac. 180. holding
^^^y one In possession though not owner may maintain action to
^"Jet title.
Syl. 4 (X, 6881. Courts — Quieting title to plaintiff out of pos-
■esslon.
■*-I>proved in Jones V. Mutual Fidelity Co., 123 Fed. 517, holding,
QQd^j. j)g[_ apj gf i89i_ giving chancellor power at suit of creditors
lippolut receivers for Insolvent corporations. Federal equity
'^•*0-«rt rnay appoint receiver at suit of unsecured creditors; Eanley
*"- ^^eatty, 117 Fed. 67, holding, under Idaho Rev. Stat, i 4538,
*'^re suit in equity brought iu Federal court for cancellation of
^^«3.s to Interest In mining claim, for determination of defend-
"-"^ adverse claim, tor appointment of receiver to control and
***^'Si mine and to restrain defendant from extracting ore there-
^^ *^ti pending suit court may determine entire controversy; Green
*"■ ■^X'urner, 98 Fed. 758, holding Federal Jurisdiction over suit to
J^*^^t title, merely by resident of State where land la situate against
r~* * <leots of other States, on whom personal service could not be
^^ In such State, cannot be defeated on ground of adequacy of
*-**edy at law, merely because action for possession could be
J **-*-ntaJned against tenants In posseaslon; Murray v. Qulgley, lit)
*^"^'Va, 14, 92 N. W. 871, holding remaindermen suing to quiet title,
Vol. II— 38
4
110 U. S. 15-26 Notes on U. S. Reporta 6W
whose rights were vested and whose action Involved invalidating
of school land patent, on ground of fraud cannot escape plea of
limitations (Ck)de 1873, $ 2529) on plea that they had at no time
such interest as would warrant their interference with title; M. O.
P. Co. V. B. & M., etc.. Co., 27 Mont. 540, 541. 71 Pac. 1006, up-
holding equity jurisdiction where plaintiflT brings action under Code
Civ. Proc, S 1310, against defendant not in possession; Sweeney
V. Hanley, 126 Fed. 100. arguendo.
Dinstinguished in Bearden v. Benner, 120 Fed. 693, holding only
one having clear legal and equitable title connected with posses-
sion can maintain suit to remove cloud; Peck t. Ayers, etc.. Tie Co.,
116 Fed. 275, holding where Federal equity court obtains Jurisdic-
tion over suit by complainant out of possession to restrain waste,
it may retain it to grant further relief by settling question of title;
Cosmos Exploration Co. y. Gray Eagle, etc., Co., 112 Fed. 9, deny-
ing Federal equity Jurisdiction of suit to determine title of right to
possession of lands brought by one who is out of possession against
claimant in possession.
Syl. 5 (X, 690). Courts — Equity Jurisdiction to remove cloud.
Approved in Southern Pine Co. v. Hall, 105 Fed. 89. reaffirming
rule; United States Shipbuilding Co. v. Conklin, 126 Fed. 135, up-
holding Federal court jurisdiction, under N. J. Rev. Stat. 1896,
p. 298, S§ 65, 66, to appoint receiver of insolvent corporation at suit
of mortgage bondholders and stockholders who have lien on its
property by express contract; Sanders v. Village of Riverside, 118
Fed. 722, holding filing of cross-bill in suit to quiet title, alleging
possession in defendant and praying that its own title be quieted,
gives equity court jurisdiction to determine question of title though
plaintiff not in possession; United States Min. Co. y. Lawson, 115
Fed. 1007, holding Federal equity court cannot try title to mining
claim when suit brought by holder of legal title unless bill affirm-
atively shows either that complainant is in possession or that both
complainant and defendant are out of possession; United States
Life Ins. Co. v. Cable, 98 Fed. 764, upholding Federal equity Juris
diction, where diversity of citizenship exists, over suit to cancer
policy, notwithstanding commencement of action on policy in Stat»
court, where bill alleges fraud in delivery of policy; dissentlnt
opinion in Heinzc v. Butte, etc., Min. Co., 126 Fed. 25, majorit:-
holding to support partition suit under Mont. Code Civ. Proc=
S 1340, authorizing suits by cotenants in possession as Joint tenanr
or tenants in common, actual physical possession need not ta
alleged; dissenting opinion in WaJil v. Franz, 100 Fed. 701, majorir
holding where, under Arkansas statute, State Circuit Court has Jic
isdiction over will contest only on appeal from Probate Court, a*:
on such appeal matter tried de novo, such appeal not suit of d*^
nature at law or m equity within Judiciary act of 1888, if 1,
585 Notes on U. S. Reports. 110 U. S. 27-42
dissenting opinion in Lindsay v. United States Sav., etc., Co., 127
Ala. 374, 28 So. 720, majority holding before mortgagor can maintain
bill to redeem from under mortgage, on ground of usury, he should
make tender of amount ascertained to be due together with legal
interest; Smith v. Reeves, 178 U. S. 444, 44 L. 1144, 20 Sup. Ct.
922, arguendo.
Distinguished in Hudson y. Wood, 119 Fed. 771, holding in cred-
itor's suit in Federal court by Judgment creditor and another,
alleged to be his debtor on mere money demand, question of latter's
indebtedness, if denied, cannot be tried, but complainant may ob-
tain discovery; Adone v. Strahan, 97 Fed. 692, holding Federal
equity court has no Jurisdiction over suit by holder of legal title
out of possession against defendant in possession to cancel tax
deed regular on face and which constitutes cloud on title.
SyL 6 (X, 692). Legal title by party out of possession.
Approved in Rincon Water, etc., Oo. v. Anaheim, etc.. Water CJo.,
115 Fed. 548, holding mere posting of notice by person desiring to
appropriate water from stream, as required by Cal. Civ. Code,
f 1415, does not of itself constitute appropriation, and until ap-
propriation claimant cannot sue lor its diversion by others or to
determine adverse claims; Guarantee Trust, etc., Co. v. Delta, etc.,
Co., 104 Fed. 8, holding plaintiflT in Federal court seeking to quiet
title must show legal title.
Distinguished in Ely v. New Mexico, etc., R. R., 2 Ariz. 426. 19
Pac. 9, holding where complaint in suit to quiet title fails to allege
Jpossession or right to possession in plaintiflT, it is subject to gen-
^xral demurrer unless it alleges grounds for equitable relief.
Syl. 7 (X, 692). Legal questions in suit to quiet title.
Jlpproved in Jones v. Mutual Fidelity Co., 123 Fed. 520, holding,
L-der Del. act of 1891, giving chancellor power, at suit of creditors,
appoint receivers for insolvent corporations. Federal equity court
tj appoint receiver at suit of unsecured creditor; M. O. P. Co. v.
- & M., etc., Co., 27 Mont 310, 70 Pac. 1121, upholding equity
J*^"^:Kl8diction where plaintiflT brings action imder Code Civ. Proc,
i ^3.310, against defendant not in possession.
^^■-O U. S. 27-42, 28 L. 56, CEDAR RAPIDS. ETC., R. R. V.
HERRING.
*yl. 3 (X, 693). Vesting of title on permanent location of road.
Approved in Hewitt v. Schultz, 180 U. S. 151, 45 L. 470, 21 Sup.
^, 313, holding land department not authorized to withdraw from
^tlement lands within indemnity limits of grant of 18G4 to North-
^»i Pacific upon mere receipt of and approval of map of definite
-nation; Wilbur v. C. R. & M. R. Ry. Co., 116 Iowa, 66, 89 N. W.
holding letter from commissioner of general land office to
^^Ister, stating that cancellation of homestead entry was because
its conflict with selections under railroad grant, is hearsay.
110 U. S, 42-4G Notes on U, S. Reports. 5Bti
Syl. 4 (X, C93). Right to Indemnity selection — Filing mop.
Approved In Oregon, etc., E. E. v. United Slates, 189 TI. S. 113,
23 Sup, CL G19, 47 L. 731, lioldlng uo Interest In any epeciflc sei-
tlonB or land wltliln Indemnify limits of grant made by 11 Stat, 230,
to California & Oregon railroad, t-ould he BC<iulred l)y ciimpany
In advance of tlielr actual and approved selection to snpply de-
fleieucleB in place limits, affirming 101 Fed. 31S; Clark v. Herring-
ton, 186 U. 8. 209. 46 L. 1130. 22 Sup. Ct. 874. holding approval by
land department of railroad's selection as Indemnity lands of sec-
tions, which under act of Congress were subject only to entry under
homestead and pre-emption laws, did not operate to vest title in
company; Southern Pac. R. B. Co. v. Bell, 183 U. S. C80. 4G L. 38(5.
22 Sup. Ct. 234, holding secretary of Interior not authorized by
Southern Paclfle land grant act (14 Stat. 299). to withdraw from
settlement lands within Indemnity limits In advance of selections by
railroad based on ascertained losses in place limits; Hewitt t.
Schultz, 180 D. S. 152. 45 L. 470. 21 Sup. Ct. 314, holding land de-
partment not authorized to withdraw from settlement lands within
Indemnity limits of grant of 1864 to Northern PaclQc upon mere
receipt and approval of map of definite location.
Distinguished In Groeck v. Southern Pac. R. R. Co., 102 Fed.
35. holding under Southern FaclQc land grant act (14 Stat. 294),
company could select landa opposite completed portion of road,
though map of definite location of every portion of road not filed.
110 IT. 8. 42^6, 28 L. 64, TAYLOR v. BEMISS.
Syl. 3 (X, 694). Contingent fees — Claims against government.
Approved In Muller v. Kelly, 125 Fed. 215, 216. holding where
emigrant who could not speak English was Injured and while
lying In hospital signed contract wliereby he was to pay attorney
one-half of recovery, question of fniriiess of contract was for Jury.
rcTersliig 116 Fed. 545. holding contract by attorney for contingent
fee. where It Is not cbampertous, and costs are to be paid and are
paid by client, Is valid: Wooater v. Trowbridge, 115 Fed. 727. hold-
ing where trustee of Insolvent corporation who had Instituted suit
for infringement of patent made contract with complainant who
also had instituted similar suit, whereby latter was to manage both
suits, employ counsel. Indemnify trust estate against llnblllty for
costs and net proceeds of two aulta to be equally divided, cor-
porate creditors cannot attack contract after twenty years" ae-
qulesceuce; Lynde v. Lynde. 64 N. J. Eq. 750. 52 Atl. 890. com-
pelllug attorney to acccount for moneys collected In suit for re-
covery of alimony; Schultheis v. Nash. 27 Wash. 257, 67 Pac. TOO.
holding guardian may make contract agreeing to pay attorneys
one-half of all estate they may recover for ward In action brought
to establish right thereto. See notes, 89 Am. St. Rep. 31G; 83 Am.
St, Rep. 175.
597
XoteB on D. S. Reports.
110 U. S. 47-63
JIO "Cr. S. 47-W. 28 L. 62. GILMER t. HIGLEY.
Syl. 2 (X, 695). Appeal — Harmlese and prejudicial error.
-A-Pproved In United States v. Honolulu Plantation Co., 122 Fe6.
jS3, liolding erroneous admission or material evidence before Jury
t-onatitutes reversible error unless It is clearly sliown to be without
'ttjury to opposing party; Standard Life & Accident Ina. Co. v. Sale,
121 Fed. 669. applying rule to instructions aa to warranties In ac-
tion on life insurance policy; Alaska Commercial Co. v. Dlnkelspiel,
^21 Fed, 322, holding permitting exhibit marked for Idtmtlfl cation
but not introduced In evidence to be Included in papers sent to
inry ja prejudicial error; United States v. Gentry, 119 Fed. T6.
applying rule in action for recovery of damages for conversion of
timber; Choctaw, etc., H. R. v. Holloway. lU Fed. 465. applying
'"Ule to action by servant for injuries; dissenting opinion tn Chicago
House W. Co. V. Birney, 117 Fed. 81, majority upholdiag charge
*■** sueaeure of damages in suit for personal Injuries; dissenting
**P*«Ion In Chocfiiw. etc., R. R. v. Tennessee. 116 Fed. 30, majority
*****3ing statement in charge in action by servant to recover for
**^''^HJnal injury, that plaintiff conld not recover If own negligence
*" "**'ant of attention contributed In any considerable degree to his
"JViry^ not reversible error, where In same connection court cor-
*^tly stated what constituted contributory negligence; dissenting
*****»lon In United States v. Price Trading Co.. 100 Fed. 250, ar-
^**^Qdo.
^-'■*^ XT. 8. 51. 52. 28 L. 67, UNITED STATES v. CARET.
^yL 1 (X, 695). Bill of exceptions — Exception taken at trial.
-A-Uproved in Columbus Const. Co. v. Crane Co., 101 Fed. 56,
'-•l^Ung under rule 10 of Circuit Court of Appeals, Seventh Circuit,
^^erent grounds of objection to charge need not be enumerated In
***^<?'eptlon8; Stemenberg v. Mallhoa, 99 Fed, 4lt, holding bill of ex-
^^X>llons must contain sufficient statement of evidence to show
^^ Aether or not Instructions were applicable to case.
■* ">-0 u. S. 52, 53, 28 L. 67, JENNESS v. NATIONAL BANK.
Syl. 1 (X, 696). Appeal — Deduction of item below Jurisdictional
^*nonnt.
Approved tn Hedrlck v. Building Assn., 61 W. Va. 422, 41 S. B.
^ lO, balding no appeal lies where plalntKr In Circuit Court demands
^03, and answer admits 361, and decree leaves amount actually In
*^«mTOversy at $42.
^ lO U. S. 53-61. Not cited.
* lO U. 8. 61-63, 28 L. 70, AMERICAN BIBLE SOCIETY t. PRICE.
Syl. 1 (X. 897). Removal — Diversity of citizenship.
Approved In Weldon v. FrlUlea, 128 Fed. 614, holding suit by
*»»ortgagee against mortgagors and their creditor, claiming lien
I
*!■•
" -r.-*- a . 5. Reports. 608
'..«■«* zr'T.rij?. is not removable where plaln-
t "iiiin* -.f State where client brought and
..:::-: -"ire: Campbell T. Mllllken, 119 Fed.
— ■ ■■■■ -lu^rs. both necessary parties, cannot
: :: - ---rr*? i^Miefendant Is citizen of same
11' •* - S«?uthem Ry. Co., 125 Fed. 302.
2. one cixlefendant who is citizen of
:: ■* :r local prejudice, though other de-
i^'r -i-^re as plaintiff.
■Ill
.. .r . -. --^UEIBERv. SHARPLESS.
>• ..----. .'i actions qui tam.
^.inv-i- ::-r. of Moscow Nat Bank, 178 U. S.
•. - "11'. "- vC holding administrator of defendant
r.a ^ "^;la:nL which by State constitutes com-
..vj. ::a:- :e made party by scire facias, though
» ^^'r^ -«r— ..e of summons; United States t. Riley,
.w!:?; :'_-.:'.»n .?t United States to enforce forfeiture
K-.-.'s^ ^W(i5 .HK'ause of fraudulent undervaluation,
_ .iU:a:fr;riL:Te aec of 1S90, S 9, being penal, abates
- vt. 'u.inuanc^ of litigation by administrator.
,_^ . lU'.'u *. ■:?rady. 1S4 U. S. 612, 615, 46 L. 716, 717,
. •«• .s}. OLdizs cause of action to recover from col-
»uaA r^euutf :^um alleged to have been paid under
,.*-«.xk p'oe-ny 'r»>m unlawful seizure for illegal taxes
^ „_ r.'VNia-.'.r: Y-ta-tah-wah v. Rebock, 105 Fed.
^ v.r .'.*i ;.\ie. §4 3443-3445, where tribal Indian
. _ ^.»,t ."ii Tviij;-ic suit in Federal court for wrongful
-•.^.iriL .v.-:oii :!e died, his successors in interest under
^ a. oj e -ujsc -lured as plaintiffs; Webber v. St. Paul
- f^ w. roiviiix^ under Minn, statute 1894, | 5912, per-
Afc.»<r 1 ■'t:'4*.«;i "iir.ed by street railroad cannot main-
*"'" ^ Ttu*. I 'L ■•»iur:ict of safe carriage, where suit not
'■'"*" ...*.taut.e vitii soction 5013.
^.. -> '-. ■^. CLAFLIN T. COMMONWEALTH INS.
IIP ■ • "
jM!L '{emovn! :Lioii^Ii assignor could not.
' • *'^'"^*-^'^'"*'»-'»^- <?'^'- Co. V. Sundry I. Co., 108
^'' mi-»tf iciiou '^y Virginia corporation against corpora-
te' ^-fc<rf» ^***-*^ * "**iiii'^".»--^»e a: instance of defendant, not-
•^"^ ^ 3«c lettluT ;»Ia:i::ff nor defendant Is resident of
:->j€cal ^"ourc s beld.
QBB Notes on U. 8. Reports. 110 U. S. 07-119
Sjh 8 (X, 700). False represeutations knowingly false.
Approved in Northwestern Ins. Co. y. Montgomery, 116 Ga. 809,
43 S. E. 81, reaffirming rule; Riley y. Bell, 120 Iowa, 625, 95 N. W.
172, holding when agent for sale of land induces purchaser to buy
by falsely representing that material fact is true of own knowledge
and damages result, agent estopped to deny knowledge.
SyL 4 (X, 700). Insurance — False representations.
Approved in Schmidt v. Philadelphia Underwriters, 109 La. 892,
33 So. 910, holding where but small proportion of property which
plaintiff pretends to have lost ever belonged to him, there is such
fraud as defeats right to recover according to terms of policy.
no U. S. 97-107, 28 L. 83, HILTON v. MERRITT.
SyL 1 (X, 701). Duties — Conclusiveness of appraiser's valuation.
Distinguished in United States v. Beebe, 117 Fed. 671, holding hi
reducing foreign standard coins to United States currency for as-
sessment of duties, basis in all cases, is pure metal value and not
exchange value.
Syl. 4 (X, 701). Due process — Recovery of illegal duties.
Approved in The Japanese Immigrant Case, 189 U. S. 98, 23 Sup.
Ot 614, 47 L. 725, holding pauper imigrants who have affected entry
into United States may be deported at any time within one year.
UO U. S. 108-119, 28 L. 86, KELLOGG BRIDGE €0. T. HAMIL-
TON.
SyL 2 (X; 702). Sales — Caveat emptor.
Approved in Dodge v. Dickson Mfg. Co., 113 Fed. 222, holding
where vendee has ordered article of manufacturer for particular
imrpoee and has had opportunity of inspecting it during manu-
facture and relies on own judgment, there is no Implied warranty
tgainst latent defects; Gage v. Carpenter, 107 Fed. 889, holding
irhere defendant sold plaintiff in bulk all ice stored in certain ice-
^luse, with understanding that plaintiff purchased it to resell in
general course of ice business In city, and defendant bad never
Seen It and so told plaintiff, there was no warranty that ice was all
Of merchantable quality.
SyL 4 (X, 702). Sales — Warranty where inspection impracticable.
Approved in Union Selling Co. v. Jones, 128 Fed. 677, holding
^^bere contract for sale of binder twine contained words " quality
Sriaranteed," such words are not ambiguous, and parol evidence in-
^.dmissible to explain warranty; Cleveland Linseed Oil Co. v. A. F.
^^^ncbanan & Sons, 120 Fed. 910, holding where one engaged in manu-
facture of oilcloth at solicitation of defendant's agent, purchased
11 of certain quality which was satisfactory in use and later
rdered more of same kind which proved of inferior quality, there
implied warranty that oil was of same quality as previous oil;
110 U. S. 11$>-156 Notes on U. S. Reports. «X>
Gage y. Carpenter, 107 Fed. 889, holding where defendant sold
plaintiff in bulk all ice stored in certain icehouse, with understand-
ing that plaintiff was to resell it in general course of Ice business
in city, and defendant had never seen ice and so told plaintiff,
there was no warranty that ice was all of merchantable quality;
McClure v. Central Trust Co., ia5 N. Y. 122. 58 N. E. 781, holding:
that on sale of stock to agent of undisclosed principal, defendant
bound to deliver stock free from lien; Fay Fruit Co. v. Talerico, 28
Tex. Civ. 347, 63 S. W. 657, holding when oranges sold subject to
inspection and plaintiff examined and accepted them and later
repudiated sale because they were not merchantable, error to refuse
to submit to jury question whether defendant had so packed
oranges that plaintiff was induced to make only partial examina-
tion.
110 U. S. 119-130, 28 L. 90, ALLEN v. WITHROW.
Syl. 1 (X, 703). Unexecuted donation of realty to nonrelative
void.
Approved in Skeen v. Marriott, 22 Utah, 91, 61 Pac 300, applying
rule in case of trust
Distinguished in Hennigs v. Paschke, 9 N. Dak. 495, 84 N. W.
352, holding deed of realty is sufficient when it designates grantee
from rest of world.
Syl. 3 (X, 703). Parol to establish trust in personalty.
Approved in Pitts v. Weakley, 155 Mo. 137, 55 S. W. 1063, hold-
ing trust cannot be established by evidence of statement^ by donee*s
husband in her presence of his understanding of the purpose of the
gift.
110 U. S. 131-146, 28 L. 95, BUSSBY v. EXCELSIOR MFG. GO.
Syl. 4 (X, 704). Patent for aggregation of parts.
Approved in Brown v. Puget Sound Reduction Co., 110 Fed. 388,
holding Brown patent No. 471,264, for ore wasting furnace, not in-
fringed by Holthoff-Wether furnace constructed under patents
Nos. 559,647 and 640,058.
110 U. S. 146-151. Not cited.
110 U. S. 151-156, 28 L. 101, HART v. SANSOM.
Syl. 3 (X, 705). Equity acts in personam.
See 87 Am. St. Rep. 364, note.
Syl. 6 (X, 707). Judgment on service by publication — Quieting
title.
Approved in Ralya Market Co. v. Armour & Co., 102 Fed. 532,
holding service on agent of partnership in action brought against
partnership as such, under State statute, does not give Jurisdiction
over nonresident partner; Cabanne v. Graf, 87 Minn. 613, 92 N. W.
M Am. SI. Bep. 725. holding provision of Laws lEMl, cbap. 27S,
o serrice of suniniona lu personni iicilou ngainst citizen of
her State who carries on businet^s in this 8tatc, on agenl in
ge at basioess without seizure oC property by court procet
; Paper Co, v. Sbyer, lUS Tcnn. 4G3. U7 S. W. StJO, holding
oaol Judgment for moue; agulnst nouserved. uonappearing non-
lent. In proceeding by attHchment, subjecting attached prop-
and swHrdtng esecutlou for unsatisfied balance and c
iBtlngulithed in RoUer v. Holly, 17(1 U. S. 403, 405, 44 L. 522,
20 Sup. Ct 411. holding Tex. Code. art. 1230, providing for
Itntlon of suits against nonresidents. Is applicable to suit to
irce equliuble lien on land for purchnse money.
. 15«-173. Kot cited.
U. S. 174-177. 28 L. 109. REDPIELD «
CO.
yl. 2 <X, 709). Interest on delayed Judgment on agreed Terdlct.
■pprored In Burrough v. Abet, 105 Fed, 36C, refusing Interest
ere tbere was thirty years' delay In coramencement of action
repayment of lllPgnUy exacted rerenue taxes, except from
e of commencement of suit: Culmer v. Calne. 22 Utah, 231, 01
;. 1011, holding where interest Is recoverable by way of dam-
« lachea of parties may be considered In award.
lyl. 4 (X. 710). Interest as damages and on contracts.
Ipproved hi New Dunderberg Mln. Co. v. Old. 87 Fed. 163,
ding in action for conversion of ore Interest Is recoverable on
altlea received by defeudont from converted ore; Herman v.
y of Oconto. 110 Wis. 673. 86 N. W. 68«, holding Interest on
standing bonds of city payable In annual instalments In future
: present Indebtedness.
^latiuguished In Rice v. Ashland Co., 114 Wis. 137. 89 N. W.
L. holding where by clerk's mistake sale of county's land was
Id, county not liable for interest on purchase money prior to
inand for Its return.
) U. 8. 178-183, 28 I- 111. QUEBEC BANK v. HELLMAN.
3jrl, 2 (X. 710). Deposit for special purpose as delivery.
Approved in Hartford Fire Ins. Co. v. Wilaon, 187 V. 8. 474,
Sup. Ct. 192, 47 L. 264. holding where insurance policy la de-
ered by agent to broker on condition of its acceptance by com-
ny, and company promptly rejects risk, there is no contract.
ough policy not returned by broker to agent as promised, but
nt by mistake to insured.
110 U: S. 183-211 Notes on U. S. Reports. 002
110 U. S. 183-191, 28 L. 113, WHITE v. CROW.
Syl. 1 (X, 710). Injunction against Judgment for fraud.
Approved in Nevada Nickel Syndicate v. National Nickel Qo^
103 Fed. 402, refusing to set aside sale of land In one parcel where
defendant made no objection to manner of sale.
Syl. 3 (X. 711). Presumptions as to irregular judgment on col-
lateral attack.
Approved in Connick v. HiU, 127 Gal. 165, 59 Pac. 833, hold-
ing where commissioner appointed to sell land at foreclosure at
mortgagor's request offers land in parcels and receives no bids,
he may offer and sell as whole, though mortgagor requests him
to again offer it in parcels.
110 U. S. 192-200, 28 L. 116, JONBSBORO CITY ▼. CAIRO, KTC.,
R. R. CO.
Syl. 1 (X, 711). Municipal power to borrow money — Stock sub-
scription.
Approved in Coquard v. Village of Oquawka, 192 IlL 866, 61 N. B.
663, holding power of municipality to issue new negotiable bonds
having incident of commercial paper, to take place of former
issue, not implied merely from authorization of former issue.
Syl. 4 (X, 712). Statutes — Title expressing subject
Approved in Detroit v. Detroit Citizens' St R. R. Co., 184 U.
S. 392, 46 L. 609, 22 Sup. Ct. 419. holding provision of Bfich.
tramway act of 18C7, entitled "An act to provide for formation
of street railways," making such act applicable to street railway
corporations already organized and in operation is within object
of title; Pickens Tp. v. Post, 99 Fed. 661, upholding S. C. act of
December 21, 1883, authorizing county railroad aid bonds; St
Anna's Asylum v. Parker, 109 La. 599, 33 So. 616, holding exemp-
tion from taxation contained in charter granted under Constitution of
1845, was validly granted in act under usual title to incorporate
an asylum.
Distinguished In Stewart v. Tennant 62 W. Va. 572, 44 8. B.
228, holding void act of March 25. 1873, entitled, "An act concern-
ing limitation of actions in certain cases." .
110 U. S. 200-208. Not cited.
110 U. S. 209-211, 28 L. 121, DIMPFELL ▼. OHIO. ETC., BY.
Syl. 2 (X, 713). Setting aside director's transaction — Minoritr"
stockholders.
Approved In North Mfg. Co. v. Bingham, 116 Fed. 789, holdins
bill of minority stockholders against corporation, alleging its in-,
solvency and praying dissolution and appointment of receiver:
is bad, where it does not allege debts due and unpaid or that
iters are pressing demands.
Notes on L". S. Rejiorts. 110 U. S. 212-231
I (X. 713). Hequlsifea ot bill by ludirldual stookbolder for
proved In XJIiner v. Maine Real Estate Co., 63 Me. 326. -15
41. reafflrmlDg rule; Blmber y. Callvada Colonization Co..
Fed. 50; holding stockholder seeking cancellation of stock
lulentlf Issued bf directors must allege demand on corpora-
to sue, and refusal, and also that coniplntut tvas stockholder
me of transaction complained of; Morgan v. King, 27 Colo.
83 Fac. 419. upholding complaint hy bank stockholder to set
i transfer of stock by bank to certain directors, where stock-
er directors refused to authorize bank to bring actioQ and
Interested directors controlled majority of stock; Farwell t.
cock, 27 Tex. CIt. 1T3. 65 S. W. 515, holding apDointment of
Iver at suit of mlnorltj stockholders not warranted; Tompkins
perry, Jones, etc.. Co., 96 Md. 584, 54 All. 259. arguendo.
U. S. 212-215. Not cited.
U. S. 215. 28 L. 124, VINOL v. WEST VIRGINIA OIL, ETC.,
CO.
fL I (X, 714). Recovery of partnership debt by one partner,
pproved In Miller v. Freeman. Ill Ga. 600, 38 S. E. 0C3. bold-
one member, continuing partnership, cannot maintain suit
Inat partner to recover pro raia of damages to partnership by
M>n of defendant's failure to perform duty Imposed by part-
ship agreement.
C. 8. 216-218. Not cited.
U. 8. 219-221, 28 L. 126, DNITED STATES V. GRAHAM.
lyL 2 (X, 715}. Statutes — Executive construction.
ipproved tn United States r. FInnell, 1S5 D. S. 244, 46 L. 883.
Sup. CL 936. holding clerk of Federal District and Circuit Court
illed to per diem, under 24 Stat. 509. S41, for those days on
Ich, in absence of any Judge, he entered orders, etc., transmitted
him for that purpose by Judges; Fairbank v. United States. 181
8. 308. 310, 45 L. 872, 873, 21 Sup. Ct. 658. 059, holding 30
It. 448, t 6, imposing stamp tax on foreign bill of lading. Is
Id as tax on exports; United States v. Dietrich, 126 Fed. 676.
Idlng, under Bev. Stat, | 3739, contract between United States
d one who was not at time member of Congress, but who became
eh while contract was stiil executory. Is void; Deming v, MC'
anghry. 113 Fed. 641. holding officers of regular army are in-
miielent to try offlcers or soldiers of volunteer forces; Deweefle
Smith. 106 Fed. 445, holding, under Rev. Slat, H 5151, 5234.
mptroller of currency has power to make successive assessments
I shareholders of Insolvent national bank; In re J, D, Spreckles,
110 U. S. 222-275 Notes on U. S. Reports 001
etc., Co., 104 Fed. 882, holding 20 Stat 013, S 8, relative to duty
on materials imported in bond for use in construction of vessels,
does not require payment of duty before vessel is permitted to
engage in coastwise trade after material exempted has worn out
110 U. S. 222-226. Not cited.
110 U. S. 227-229, 28 L. 127, PEUGH v. DAVIS.
Syl. 1 (X, 717). Supreme Court's discretion to grant supersedeas.
Approved in Walker v. Houghteling, 104 Fed. 514, holding where
plaintiff in error fails to comply with order of Circuit Court re-
quiring him to file error bond in specified amount but writ has
been issued and served, and cause transferred to Circuit Court
of Appeals, that court has power, though time for suing out writ
of error has expired, to retain cause and permit filing of bond;
New England R. R. v. Hyde, 101 Fed. 309, holding Circuit Court
of Appeals cannot allow supersedeas where plaintiff in error has
not filed writ of error and bond within sixty days from entry of
judgment complained of; Edgell v. Felder, 99 Fed. 328, arguendo.
110 U. S. 229-238, 28 L. 129, LAKE SHORE; ETC., RY. v. CAR
BRAKE, ETC., CO.
Syl. 1 (X, 717). Infringement suit — Expiration of patent.
Approved in Chinnock v. Paterson, etc., Co., 112 Fed. 532, up-
holding equity Jurisdiction of suit for infringement of patent
where bill warrants preliminary injunction, and is filed in time so
that such injunction might have been granted with life of patent
and it retains such jurisdiction to grant other relief, though no
injunction issued and patent expires before final hearing.
Syl. 2 (X, 717). Patents — Necessary elements.
Approved in General Electric Co. ▼. International Specialty Co.,
126 Fed. 759, holding patent 412,155, for Lmixrovements in electric
trolleys, valid and infringed; Still well-Bierce, etc., Co. v. Eufaala,
etc., Co., 117 Fed. 414, holding Vaile & Tompkins patent No. 421,454,
for combined cooker and cake former for oil meat valid and In-
.fringed as to claims 1, 2, 4, and 9.
110 U. S. 238-204, 28 L. 132, CHOUTEAU v. BARLOW.
Syl. 2 (X, 718). Limitations against partnership accounting.
Approved in Campbell v. Clark, 101 Fed. 976, holding suit be-
tween partners for settlement of partnership and for accountings
by defendants in relation to partnership not governed by Texas
Statute of Limitations relating to recovery of realty, but by Tex :
Rev. Stat 1895, art. 3356, relating to settlement of partnershig
accounts.
110 U. S. 264-275. Not cited.
Notea on U. S. RcporlH. 110 U. S. 276-287
D. S. 27ft-287. 28 L. 143. KRIPPENDORC v, HYDE.
'L 1 (X, 719). Property In eustodla legia.
pprtrved In Phelps v. Mutual, etc. Assn., U2 Fed. 4«8. Loldlug
eral court cannot enjoin receiver appointed hy State court having
.iUT«Dt JurlsdLctlon of subject-matter from acting under sin/h ni>-
itment, where no priority oF Jurisdiction bf Federal court ia
med, merel; ou ground ot lack or JurlBdlcllun to appoint: Joi'-
T, Taylor. 98 Fed. 645, holding while estate la being admin-
red In Probate Court and before rendition of eiccutor'a ac-
nt. Federal court will not entertain bill by cestui que trust un-
trtiat fund, coraprtaing general residuary eatate of testator, to
aside executor's aale and to take proceeds out of e:secuior'8
session; In re Schoerb, 97 Fed. 327, 32S. holding when
udication made on voluntary petition In bankiiiptcy. per-
Blt7 then in possession of bankrupt aud Hated as aasets of
estate Is within Jurisdiction of Bankruptcy Court, tboDgli
trustee appointed, and cannot be replevied by State court ;
gh V. Green, 82 Nebr. 354. 89 Am, St. Rep. 759. 86 N. W.
7, holding bolder of tax lien may foreclose In State court not-
hstanding pendency of action between other parties Id Federal
j^ wherein such lands Lave been levied under attachment. See
Am. St. Sep. 732, note.
I7L 2 IX. 720). Injunction against Judgment Is ancillary pro-
approved in Leigh v. Kewanee Mfg. Co,, 127 Fed. 902, iiolding
ere action at law pending in Federal court, such court lias an-
aty jurisdiction before Judgment to restrain further JurisdIC'
a of suit without regard to cltlsensliip; Bottom v. National R. Y.
]g.. etc., Loan Assn., 123 Fed. 745. holding Federal court appoint-
; receiver of Insolvent building aaaociation In suit to wind up
nlTalrs has Jurisdiction of suit by him to foreclose mortgage,
fardleas of defendant's citisenahip: In re Boyd. 120 Fed. lOUl.
Iding n-here bankrupt Invoked benefit of bankrupt act and
frcby precluded seller of exempt property from obtaininE Judg-
rnt and levying execution thereon, he waa estopped to deny
nkmptcy Court's Jurisdiction to order sale and application of
jceeds to purchase price; Lilienthal t. McCormlck. 117 Fed. 96.
iding where Federal court obtatna Jurisdiction to enforce lien,
reason of diversity of dtizenslilp, auch Jurisdiction extends to
termination of rights of defendants who also aasfrt liens by
»as-blll8 against other defendants, though tliere is no diversity
citlsenship between parties to cross-bilis; Bradford Belting Co,
Kissinger- 1 son Co., 113 Fed. 613. applying rule in ault for in-
^gement of patent: Virginia-Carolina, etc., Co. v. Home Ina. Co,.
3 Fed- 3, holding where insured brought separate State suits
[ainst separate Insurers under poUciea providing for proportional
110 u. s
(1(1 D. S. llei)i>ns.
liability oil];, ntid ti'imsfer to Federal court denied, but complete
records filed In Federal fourt wiilch reTused lo remand bfll in
Federal court to enjoin proBeciillon of actions ot loir and to de-
termine insurer's liability in equity Is ancillnry to law actlona;
Bau Claire v. Payson, 109 Fed. 080, holding Tailure of city to levy
and collect specific tax to create special fund for payment of water
rentals as required by contract and as authorised liy statute doea
not give equity Jurisdiction of suit to collect rentals prevlouHly
accrued; Board of Liquidation ». United States, lOS Fed, 691,
holding Federal court, as ancillary to action therein In whicb
Judgment was rendered against New Orleans, may award mau-
danius to board of liquidation of city debt to compel board to pay
or fund debt as required by statute, tbough board not party lo
original suit; Coltrane v, Templeton, 106 Fed. 374, holding where.
in ancillary suit, purpose of which is lo collect through receiver
asaeta of Insolvent corporation In district otiier than that in which
main suit Is pending, court has appointed same person appointed
receiver In original suit, and has determined that appointment of
resident corecelver Is necessary, such appointment not reviewable
oa appeal; Gableman v. Peoria, etc., Ry., 101 Fed. 4, holding State
action against railroad receiver to recover damages for personal
Injury resulting from alleged negligence in operation of road not
removable as case arising under Federal Constitution or laws.
merely on ground that receiver was appointed by Federal court;
Aldrlch V. Campbell, 97 Fed. Cf.5. holding Federal equity suit to
restrain receiver of Insolvent national bank from prosecuting action
at law In same court against complainant, being ancillary to action
at law. conrt has Jurisdiction without regard to amount Involved.
Syl. 4 (X, 722). Inherent power of courts over process.
Approved In Putin-Bay Water- Works, L. &. R. R. Co. v. Ryan, 181
U. S. 433. 4B L. 938, 21 Sup. CL 718, holding Federal Jurisdiction In
suit between diverse citizens in which matter in dispute Is alleged
to be over 32,0CD Is not terminated by ex parte affidavits denying
that property Is of value alleged, unless this fact appears to satisfac-
tion of court; Phelps v. Mutual, etc., Assn., 112 Fed. 467, holding
Federal court cannot enjoin receiver appointed by State court, hav-
iiig concurrent Jurisdiction over subject-matter, from acting under
appointment, where no priority of Jurisdiction Is claimed, an ground
ot lack of jurisdiction to appoint; Connor v. Tennessee Cent, Ry.,
109 Fed. 03S. holding purchaser at Judicial sale may intervene In
suit to enforce unfureclosed lien and assert rights to which be has
succeeded as purchaser; Columbus, etc., R. R. Co.'s Appeals. 109
Fed. 199. determining effect of requiring special security for pur-
chase money at foreclosure sale on Hen of receiver's certificate;
Graveuberg v. Laws, 100 Fed. 6, 7, holding In action at law to re-
cover fixed sum due under contract, and seeking sequestration of
defendant's property, persons claiming labor liens against sucb
Notes on U. S. Reports. 110 U. S. 28^-317
perty cannot Interrene Jointly to enforce such liens, and to
e priority determined, where such determination iuTolves trial
numerous issues of fact; Kirk y. United States, 124 Fed. 341.
uendo.
U. S. 288-295, 28 L. 149, AMERICAN FILE CO, ▼. GARRETT.
iyl. 3 (X, 724). Bankruptcy assignee need not accept owner*8
•perty.
ipproved in In re Chambers, etc., Co., 98 Fed. 867, holding yvhere
dlord brings ejectment against bankruptcy receiver in State, be
11 be enjoined from prosecution of such action; Klein ▼.
Tenesch Co., 64 N. J. Eq. 53, 53 Atl. 197, holding lessor in lease
' term at designated annual rental, which gives him right of re-
:ry in case of failure to pay rent, not entitled on lessee's Insol-
icy to demand from receiver rent accruing under lease after
«iver quits premises.
) U. S. 296-301, 28 L. 152, WHITESIDE v. HASELTON.
SyL 1 (X, 724). Affidavit showing jurisdictional amount
Approved in Robinson v. Suburban Brick Co., 127 Fed. 80C.
iding not essential that bill in Federal court should state amount
value in controversy, if it be within jurisdictional limit from
legation in bill, or otherwise from record or from evidence taken
fore hearing of objections to jurisdiction.
0 U. 8. 301-304, 28 L. 154, ILLINOIS, ETC., R. R. v. TURRILL.
Syl. 2 (X, 725). Interest on infringement decree referred back.
Approved in Campbell v. Mayor, etc., of New York, 105 Fed. 631,
>lding entering order for decree for amount of profits found by
>urt constitutes ascertainment of damages for infringement of
itent, and amount bears interest from date of order, notwith-
anding delay in entering decree; National, etc.. Paper Co. v. Day-
»n, etc., Co., 97 Fed. 332, liolding interest not recoverable on profits
llowed in equity for infringement of patent prior to time master
as liquidated damages.
10 U. S. 305-310, 28 L. 156, JEFFRIES v. MUTUAL LIFE INS. CO.
Syl. 2 (X, 725). Attorneys — Administrator's contract to share
roceeds of suit.
Approved in Schultheis v. Nash, 27 Wash. 258, 67 Pac. 709, liold-
ng guardian may enter into contract agreeing to pay attorneys one-
lalf of all estate they may recover for ward in action brouglit to
stablish his right tliereto. See 83 Am. St. Rep. 170, 171, note.
10 U. S. 311-317, 28 L. 158, VOCJEL v. GKUAZ.
Syl. 1 (X, 720). Slander — Communications to State's attorney
IS privileged.
Approved In dissenting opinion in McGehee v. Insurance Co. of
no U. S. 317-347
1 U. S. Reports.
>'. A., 112 Fed. Soli, majority holding allegations In nnswer, cbarg'
ing plaintiff la action »n policy with having Intentionally bui'neil
insured property or with iiaving fraudulently overstated lU valnn
ill his proof of loss, not basis for libel.
110 U. S. 317-321. Not cited.
110 U. S. 321-325, 28 L. 1C2, BAST ST. LOUIS t. ZEEBT.
Syl. 3 (X, 727). Municipality's authority to determine necessity
for expenditures.
Approved in City of Cleveland v. United States, 111 Fed. 349.
hultling court cannot by maudauius control discretion of city autlior-
ities In making appropriations from taxes collected for current
uiunldpol expenses.
DlstlugulBlied la Village of Kent v. United States, 113 Fed, 23T,
23S, holding it is no defense to mandamus to compel village to apply
MO much of tax levy aa is necessary to pay Judgment recovered
against it on Interest coupons, application would leave village witb-
out sufficient funds for ordinary municipal purposes.
110 U. S. 325-329. Not cited.
110 U. S. 330-338, 28 L. 163, TAYLOR v. DAVIS.
Syl. 1 (X, 727). Pflrsonal liability of trustee on contracts.
AppiMved in Koken Iron Works v. Kinealy, 86 Mo. App. 201, ap-
plying rule to liability for rent; Gates v. Avery, 112 Wis. 277. 87
N. W. 1093, holding in action for purchase price of land, where deed
ran to third person as trustee, without naming beneficiaries, and
the trustee subsequently executed declaration of trust in their
favor, trustee and not beneficiaries liable to vendor on contract
Syl. 2 (X, 728). Trustee not agent.
Approved In Parmenter v. Barstow. 22 R. I. 246, 47 AtL 365. hold-
ing trustees of express trust of realty not liable as trustees for In-
jury resulting from negligent acta of servants in cutting stone on
Bidewalic contiguous to trust estate, yrhereby traveler was injured.
110 U. 8. 338-347. 28 L. 168, UNITED STATES v. BEHAN.
Syl. 2 (X, 729). Damages for breach of contract — Profits.
.\pproved in Olds v. Mapes-Reovea Const. Co., 177 Mass. 43. 5S
N. K. 478, reafllrmiug rule; In re Stem, IIG Fed. 606. holding, under
bankruptcy act, jti 59, 63, where Ice company furnishing lee at bo
much per ton. payable weekly under term contracts, broke sucb
ci>ntracts, claims of customers for dhmages for sucb breach were
provable claims; Wells v. National Life Assn.. 90 Fed. 228. holding
plaintiff may Join in one action for damages if contract a claim for
loss of anticipated profits wltb claim to recover losaes for actual
outlay and expenditures.
Notes on U. S. Reports. 110 D. S. 338-347
I. 3 (X, 729). Direct profits &s damages.
proved In American Surety Co. v. Woods. 105 Fed, H4. bolding
r conlrart for doing certain worlt, wtiicb provlilea tliat in
of delay in doing worli, employer may take charge tliereot
complete worit at contractor'a expense, employer wlio on rail-
if contractor to complete work also abandons it cannot recover
rence between contract price and cost ot completion; Soulliern
Ml Oil Co. V. Hafiln. 99 Fed. 345. holding where plaintiff who
manufacturing out ot cotton seed, oil, caiie, and meal, sold to
ndant at fixed price per ton, all cake and meal to be prwluced
illl during year, and after rectivlng part defendant gavt! notice
be would not accept raore, but plaintiff continued lo mnnu-
nre it and tendered balBncc, measure of damages was difference
reen raarlset and contract price: Hlchhorn, Mack & Co. v.
Hey. 117 Iowa, 138, 90 N. W. 5!)4. holding where cigar jobber
rinted agent for cigars In certnln territory, and before lerminii
of contract agency revoljed, evidence of amount of sales ije-
°u breach and trial admissible to show damages; Spelrs v.
an Drop Forge Co., 180 Mass. 90, »2. 98, 61 N. B. 826, 827. S20.
lying principle where plaintiff and bis sbop employed for one
r In mailing drop forglngs. and defendant failed to give orders
several months, during whicb time sbop remained Idle.
IstiugulBhed m South Gardiner Lumber Co. v. Bradstreet, 97 Me.
53 Atl. 1113. determining amount of damages for breach of
tract to fumlsb boom logs,
yl. 4 (X. 730). Failure to prove loss of proflta — Outlay as
pproTcd In Wells v. National Life Assn.. 99 Fed. 229. holding In
.on for breach of contract, whereby plaintiff became general
□t of Inaurance company wltbln certain territory for term of
rs, plaintiff entitled to commUBlc»i8 which would bave accrued
faim under contract; Nortb t. Mallory, 84 Md. 310. SI AU. 92,
uendo.
;yl. S (X, 731). Damages on repudiation of contract — Profits.
LpproTed In United States v. Molloy, 127 Fed. 856. holding wbere
■chaser of goods wrongfully breaks contract of sale, seller en-
ed to sue on ijuBntum valebat for compensation for bis partial
■formance; Newport News & M. V. Co. v. McDonald Brick Co..
.. 109 Ky. 420, 59 S. W. 334, holding where shipper instead ot
Dg from time to time for difference between contract rate and
Ight charged seeks to recover for entire injury in one action, meas-
i of damage is diminution Id value of maDufacturlng plant by
i«on of carrier's failure to maintain contract rate; Newhal] Engi-
eHng Co. v. Daly, 116 Wis. 2«3, 93 N. W, 14, holding where owner
partially completed building wrongfully prevents contractor from
Vol. 11—39
110 U. S. ^7-^384 Notes on U. S. Reports. 610
completing it, and contractor elects to treat contract as rescinded,
and contract provides for no apportionment of compensation, con-
tractor may recover reasonable value of work done; Anderson v.
McDonald, 31 Wash. 281, holding where defendant, after entering
into contract for services of plaintifTs assignors, and upon per-
formance of which they had entered, told them that he had taken
charge of work himself, there was breach warranting recovery tor
services rendered.
Distinguished in Hoyle v. Stillwagen, 28 Ind. App. 685, 63 N. E.
782, holding where contractor is estopped in performance of work
by other party, he may recover compensation for woric done at
contract price.
110 U. S. 347-384, 28 L. 173, SPRING VALrLEY WATER-^
V. SGHOTTLER.
Syl. 2 (X, 732). Reserved power to alter charter.
Approved in Looker v. Maynard ex rel. Dusenbury, 179 IT. S.
45 L. 82, 21 Sup. Ct 23, upholding Mich. Stat 1885, chap. 112,
mltting cumulative voting of stock as within reserved i>ower
alter or amend incorporation acts; Spring Valley Water- Works
San Francisco, 124 Fed. 586, holding void San Francisco ordinan<
fixing rates so that net earnings would not exceed 4.40 per
Newburyport Water CJo. v. Newburyport, 103 Fed. 587, holdlnc^ sni
quent grant to city to erect competing water- works not taking
corporation's property or franchise, where grant of franchise
supply city Is not exclusive; Deposit Bank of Owensboro t. Davie
County, etc., 102 Ky. 187, 39 S. W. 1033, upholding Ky.
§ 174, and laws thereunder enacted, changing rate of taxation
banks.
Syl. 4 (X, 733). Regulation of gas and water rates.
Approved in City of Mobile v. Bienville, etc., Co., 130 Ala.
30 So. 447, holding city operating water-works and sewers can^^amot
discriminate in its charges for use thereof as against water c» — ^m-
pany's consumers; Appendix, 97 Me. 593, legislature may Umil
surance companies to issuance of one standard policy, thongl
contain clause that there shall be no right of action on policy
amount of loss determined by arbitrators; Janvrin, Petitioner,
Mass. 516, 55 N. E. 382, upholding act of 1895, as amended in
giving to actual water takers, within ten miles of State honiw ^f to
Boston, aggrieved by rate charge, right to apply to court to- dfr
termine reasonableness of charge and reasonable rate; Bt&U^ r.
Kinloch Tel. Co., 93 Mo. App. 359, 67 S. W. 686, compelling -tele-
phone company to install telephone; Wabaska Electric Co. v. ^ftj
of Nymore, 60 Nebr. 202, 82 N. W. 627, holding -no inlunctioA Uee
against city for acts of Its ofilcers in passing ordinance whidi It
S. ReportB. 110 U. S. 384-«U
id powers of city; KnoiviUe v. KnosvIIle W. Co.. 107 Tenn.
G4 8. W. 1081, botding act ot 187T, empowering city to rpgii-
irater rotes. Is cotitltiulng power and not eibauBted b; slncle
:lBe of It
L S (X, 734). MunLdpal regulation of rate*,
proved In Hibben v. Smltb, 191 D. S. 322, holdlDg no Federal
Utm Arises on aseeMnient of benefits resulting from iuiprove-
18 asMesed under xalld Suite statute: Cottlng v. Godard. ISl
. %, Sa. 46 L. 09, 100, 22 Sup. Ct 33. holding void Knn. act
ih 3. 1887. limiting amount of charges by stockyards, com-
ing wllbout limiting business done by otlwr similar corpora-
I, without reference to charactw or value of services rendered.
■tlogntahed In San Diego Laud, etc.. Town Co. v. Jasper, iSi)
.. 440, 23 Sup. Ct. 571, 47 h. SQi. holding so long as supervisors
nd suit to have water rates flxed by them declared void for
'ssonableoeafl, there Is sufflclent respoudent to enable court to
Ider merits, notwltbeiaDdlng default of tbose who set In motion
proceedings before board.
:, 732). MisceUaneoiis.
ted In Spring Valley Water- Works v. San Francisco, 124 Fed. iJOO.
ling void San Francisco ordinance Qxlng ratea so tbat bet earn-
I wonld not exceed 4.40 per cent.
U. 8. 384-^89. Not olted.
V. S. 3S&-39S. 28 L. 186, CABLE v. ELLIS,
yl. 3 (X, 733). Removal after expiration of assignor's right
pproved In Kidder v. Norlhwestern Mut. L. 1. Co., 117 Fed. BfttI,
ling Federal court canuot review State decision denying Inter-
tlon on petition by Interveners to remove cauae; Spectert v.
■man Nat Bank. 98 Fed. 154, holding receiver of national bank
not remove caiiee where on hts application he Is admitted as
t; to defend suit pending In State court at time of bla appolut-
□t
< D. S. 398-420. Not cited.
1 V. 8. 421-470. 28 L. 204, JUILLIARD r. ORKBNMAN (LEGAL
TENDER CASE),
iyl. 2 (X, 738), Treasury notes as legal lender,
approved In Ulbemla, etc., Soc. v. San Francisco, 139 Cal. 209,
Pac. 822. holding Kev, Stat, { 3701, does not exempt treasury
lers payable on demand, for Interest dne on government bonds,
im municipal taxation.
> n. S, 471-189. Nut cited.
I
.0 U. S. 490-516 Notes on V. S. Reports,
110 V. S. 400^98. 28 L. 222. PENNSYLVANIA B. R.
MOTIVE TRUCK CO.
8yl. 1 (X, 730). Patents — Application of old process. ^
Approved In Npptuue Meter Co. v. National Meter Co., 127 ^*^ U
587. holding Nasli patent. No. 433,088, for water meter, clalm^^'^gy,
and 15, void for lack of Invention; Antisdel t. Bent, 122 Fed. ^^
holding Ladd patent No. 4>J1.5G9, aud Segar patent No. 4(M,5'
botb for folding beds, void for lack of Invention; UiJted Sta*
Peg Wood S., etc.. L. B. Co. v. B. F. Sturtevant, 122 Fed. 472. Uof*"^
tng Lewis patent No. 007,602, for machine for cutting shoe ahar*-
atiffeners, void for anticipation; Colts Patent Plrearma Mfg. Co.
Wesson, 122 Fed. 94, holding Felton patent No. 535,097, for safe* *
device for revolvers, void for lack of invention; Farrell v. BoBto*-* ^_
etc., Copper, etc., Mln. Co.. 121 Fed. 846. holding Manhes P^ '**-*_--.«»■ 1
No. 470.844, for process for reducing copper, void for lack of InveiC*- ^^••
tlon; L. E. Waterman Co. T. Forsyth, 121 Fed. 108. boldlog Water* "^^^
man patent No. 804.690, for fountain pens void for lack of invention** g
Johnson Co. v. Toledo Traction Co.. 119 Fed. 892. holding Moshan**- ^'
patents Nos. 636,734. 540,790, for railroad switch Btructure. volC>' * ^ ^
for lack of Invention; Plumb v. New ^ork, etc., E. K., 97 Fed. B47.'^^ ^ ,
holding McKenna patent No. 348,289, tor air brake attaehment, vold*:^^
Cor want of patentable novelty. _^^
DIstlugulahed in R. Thomas, etc., Co. v. Electric, etc, Mfg. Co..-^ — _;
111 Fed. 930, upholding Boch patent No. 600,475, for electrical J
insulator.
110 U. S. 499-B16. 28 L. 220, IRWIN v. WILLIAR.
Syl. 1 (X, 741). Liability of partner for acta of copartner.
Approved In Gavanaugh v. Salisbury, 22 Utah, 472, 83 Pac 41,
holding one seeking to bind aoutradlng partnership baa burden of
proving power of partner to bind firm or other partner.
Syl. 2 (X, 742). Implied authority of partner to act.
Approved In Kelley- Good fellow Shoe Co. v. Long-Bell Lumber Co..
86 Mo. App. 443, holding member Of lumber firm baa no Implied
power to bind bia copartners by guaranty, though he be Its general
manager.
Syl. 5 |X, 743). Contract for future delivery.
Approved In Hinward v. Lincoln, 23 R. I. 403, 51 AU. 113, ni-
sffirniing rule; Board of Trade v. Christie, etc., Co., 116 Fed. 947.
hold fact (bat gambling transactions may be carried on In board of
trade, in violation of rules, does not deprive member thereof of right
to quotations; Geyser-Marlon Gold Mln. Co. v. Stark. 106 Fed. 5C4.
applying principle where local custom existed among brokers to
carry. In tbeir names as trustees, stock of third persons and trans-
fer It without consent of their cestuis que trustent; Walte v. Prank.
14 S. Dak. 631, 86 N. W. 646, boldlng wbere note given to plalDtilT
J
Notes on U. S. Reports. 110 D. S. 499-518
rendaot for credit tn be used by defendant In purctiase of
through pIsiutlfTs eichaoge on margins and ptalntltT knew
lal condition of defendant and that he wos not interested In
■ss requiring such commodities, flndlng that tranaactiOD Is
ig warranted: dissentlDg opinion in Barllett v. GollinB, 109 Win.
3 Am. St. l(«i). DS4, S5 N. W. TDTi. majority holding to uphold
ict for sale and delivery of wheat on board of trade, It must
atlvely appear that it was made wltb actual view to delirery
ecelpt of grain.
, 6 (X, 7431. Speculation In prices as wager.
;>roTed In Ponder r. Jerome Hill Cotton Co., 100 Fed. 376, 377.
Metropolitan Nat. Bank v. Jansen. 108 Fed. 574, both realHrm-
ile; Clews v. Jamieson, 182 U. 8. 489, 491. 495. 45 L. 1196, 1197.
21 Sup. Ct. 83t(, 837, holding suit In equity maintainable by
rho by broker has sold stock on exchange, against governing
iltte« of exchange and person who has bought samu amount
.other party, but who by rules of exchange Is deemed purchaser
rmer stock, but who has refused to take It where relief sought
mages for such refusal and enforcement of alleged trust fund;
d of Trade v. L. A. Kinsey, 125 Fed. 75. holding Chicago board
ade cannot Invoke aid of equity to protect rights In its quota-
• where It Is shown that D5 per cent, of contracts are " for
re deUvery;" Burt v. Union Cent, I-. I. Co., 105 Fed, 422. deny-
recovery on policy where Insured was executed pursuant to
ment of conviction for capital crime, though policy contained
irovlston for forfeiture lo case of execution for crime; Mardcn
bllUps, 103 Ted. 190, holding bill of sale Intended as security
loan of money to be used In dealing in differences. In proDts of
sh vendee is not to purtldpale. Is invalid as against trustee Ifi
icruptcy of vendor; HU! v. Levy. 98 Fed. 97, 9S, applying rule
Te debt of petitioning creditor in hankruptcy was note alleged
ave been given on contract for future delivery; Kahl v. M. Gaily
versal Press Co., 123 Ala. 457. 2(f So. 5^8, holding where notes
mortgage given for purchase price of slot machine are void
}eing founded on gnuiing contract, notes and mortgage given in
slderatlon oC surrender of former notes are also void; Morris v,
stern Union Tel. Co., »4 Me. 42S. 47 Atl. 027. holding sender of
!gram relating to stock ganililing contract cannot Invoke such
.tract or loss or gain resulting from it, to measure damages
lalned by hini In consequence of Its nondelivery; Edwards
>kerage Co. v, Stevenson, 100 Mo. 528, 01 S. W. ffJO, holding
ere Missouri brokerage company being instructed to buy stock
defendant purchased and paid for stock in New York, and do-
idant paid no money, contract between brokerage firm and defend-
t was New York contract governed by common law; dissenting
InloD in Hanover Nat. Bank v. First Nat. Bank. ^09 Fed. 435.
i
110 V. s. 5io-&r)S
U. 8. Reuorls.
majority holding bank liable for money borrowed by ItB prealdent
where it waa borrowed by president to evade law prohlbltiog
national banks from borrowing money.
Syl. 7 <X, 744). Broker as purticepa crlmlnie — Com missions.
Approved lu Munna v. Donovan Comm. Co., 117 Iowa. 519, 91 N.
W. 790, holding one who managed "board of trade" wbere he
received money from plalutlff on representations tliat defendant,
a flrm of brokers, whose correspondent he was. would purchase
option on Chicago board of trade, they sharing commissions, was
not agent of either party; Apptcton v. Maxwell, 10 N. Mei. 759.
05 Pac 101, holding whure money advanced with understanding
between parties that it shall be used Id gambling or when party
advancing money s&arca lu gambling transaction thus promoted by
his act Huch parly cannot recover in Bult for money loaned; Sanger
V. Miller, 26 Tei. Civ. 112. G2 S. W, 426, holding defendant In action
for damages for future sale and delivery of cotton in which actual
delivery was contcmplaiod could show that part of conaideration
was parol agreement by plaintiff to protect him or "hedge" by
carrying for him cotton futures.
Syl. 8 (X, 745). Wagering contracts are void.
Approved in Central Trust, etc., Co. v. Reapass, 112 Ky. 614, 66
S. \V. 422, holding equity will not entertain bill for accounting of
profits in case of partnership making " book " on horse races,
Byl. 9 (X, 745). Customs of brokers as evidence.
Approved In Great Western Elevator Co. v. White. 118 Fed. 410,
holding erideace ot custom In elevator busioeas limiting power of
local Bgfnta in drawing drafts to such as were drawn In payment
(or grain bought or negotiated for cash at time they were drawn
Inadmissible where party had no knowledge of such custom.
110 U. S. 516-558, 28 L. 232. HURTADO v. PEOPLE OP CALI-
FORNIA.
Syl. 3 (X. 746). Meaning of "due process of law."
Approved In Maxwell v. Dow, 176 U. 8. 602, 603. 604. 4* L. 605,
e06, 20 Sup. Ct. 457. 491. upholding Utah statute providing for
Jury of eight in criminal case not capital; Sutton v. Hancock. IIS
Oa. 443, 45 S. E. 507, upholding Civ. Code, g 32S3. providing that
probate In common form becomes conclusive In aeven years as to
all except mlnoc heira; People v. Loehner, 177 N. T. 150, 68 N. E.
375. u:;!ho!dlng Laws 1S!)7. p. 483. restricting hours of labor In
bakerlus; State v. Mallett, 125 N. C. 720. 34 S. E. 652. upholding act
1899. chap. 471, | 6, providing for appeals by State from eastern
district crlin:aal courts to Superior Court, though no such appeals
allowed rrom ■western district criminal courts.
Distinguished In dissenting opinion in Florida v. CanOeld, 40 Fla.
62, 23 So. WS, majority upboldhig Laws 1897, chap. 4529, Hbrogatlnx
Notes on U. S. Reports. 110 U. S. DG8-667
of scire faclDB to appellate proceedings to Supreme Court and
Iding substltDIc therefor.
I. 4 (X, 7461. Dae process of law — Prosecution by information.
jproved in Bollu v. Nebraska. 170 U. S. 86, 44 L. 383. 20 Sup, Ct-
State V. Moore, 2 Fenuew. (Det.) 321, 4(1 Atl. UTS; State v.
«, 1«8 Mo. 402, 68 S. W. 567, and State v. Tucker. 36 Or.
61 Pac. 804. all reafflrmlns rule; Hawaii v. Manklchi. 190 U.
11. 220. 23 Sup. CL 788, "»2, 47 L. 1020, 1024, holding criminal
reedlngs by grand and petit Juries not substituted for exist-
Uawallan procedure by Newlauds reaolutlon of annexation;
z V. Michigan. 188 U. B. 508, 23 Sup. Ct. 392. 47 L. 566, up-
ling Mich. Pub. Acts 1809. No, 237, regulating pracUce of
Heine; Maxwell v. Dow, 176 U. 8. 584, 585. 602. 603, 44 L.
599. 605. 606. 20 Sup. Ct. 450. 494, holding privileges and
aunltles guaranteed bj Kourteentb Amendment not vloiuied by
secutioa by inrormatlon, nor by Utah statute, providing for
1 by jury of eight. In prosecotions for offenses less than capl-
Wllliams y. Hert, 110 Fed. 168. holding constitutional pro-
Ions SB to tndlctrueDt by grand jury do not apply to prosecutions
State courts; People v. Flaonelly, 128 Cal. 86, 00 Pac. 671. up-
dlng prosecution by information as authorized by State Con-
rutlon; Parks v. State, 150 lad. 218, Si N. E. 865, upholding Bums'
T. Stat. 1301. f) 7318-1323e, regulating practice of medicine; Ty-
T. Ck.Urt of Registration. 175 Muss. 74. 75, 55 N. B. 813. np-
ding land registration act (Stat. 1898. chap. 562); Gunn v. Union
R.. 23 R. I. 302, 303, 49 Atl, 1004, upholding Gen. Laws. chap. 251.
5. 11, authorizing Appellate Division to grant new trial fof
iHODB for which new trial is usuaiiy granted at commou law;
re Meggett. 105 Wis. 296, 81 N. W. 421. upholding Stats. 1898.
3479, providing for Imprisonment on dlsobedleuce of order re-
Irtng payment of money. See 78 Am. St Rep. 239, note.
Distinguished In dissenting opinion In Maxwell v. Dow. 176 U.
606. 44 L. 607. 20 Sup. Ct 494. majority holding privileges
id immunities guaranteed by Fourteenth Amendment not de-
lved by prosecution for felony by Information nor by UtaB
atute providing for Jnry ot eight In criminal cases less than
.pttal.
(X. 746). Miscellaneous.
Cited In People v. Noglrl. 142 Cal. 599, 76 Pac. 491, holding
here one is committed for certain offeuse by eiamliilng rangistrate.
[strict attorney cannot file Information against hiw for another
to U. 8. B58-Wr, 28 L. 249. WASHBB v. BULLITT CO.
SyL 1 (X, 749). Amendment of petition.
Approved In United States v. Gentry, 119 Fed. 75. holding amended
vmplkint which la complete In Itself and which does not refer
110 U. S. 56&-500 Notes on U. S. Reports.
816
to or adopt original complaint as part of it, entirely supersedes
predecessor and becomes sole statement of cause of action,
SyL 2 (X, 749). Erection of bridge across county line.
Approved in Sachs v. City of Sioux City, 109 Iowa, 228, 80 N.
W. 337, holding injury received by falling of city bridge is within
Acts 26th Gen. Assem., chap. 63, providing that in cases of per-
sonal injury resulting from defective streets or sidewalks no suit
shall be brought after three months from date of injury unless
written notice thereof served on city within sixty days; Spencer
▼. Freeholders of Hudson, 66 N. J. L. 305, 49 Atl. 484^ holding
Gen. Stat., p. 307, par. 9, giving right of action in case of failure
of county to erect, rebtiild, or repair bridges, expressly limits
liability of county for such failure to bridges with erection of
which it Is made chargeable by law.
110 U. S. 568^74, 28 L. 246, KILLIAN ▼. EBBINGHAUS.
Syl. 1 (X, 750). Necessary covenants tor Interpleader.
See 91 Am. St Rep. 599, note.
Syl. 2 (X, 750). Interpleader maintainable only for rdi
equitable.
See 91 Am. St Rep. 600, note.
SyL 3 (X, 750). Equity not available where ejectment lies.
Approved in Lockhart v. Leeds, 10 N. Mex. 598, 63 Pac 52, hold—
Ing bill for injunction cannot be maintained simply as substitut
for action of ejectment; McNulty v. Mt Morris El. L. CJo., 1
N. Y. 415, 65 N. E. 197, holding where action by lessee for injunc-
tion to restrain nuisance to which has been joined as mere in-
cident and to avoid multiplicity legal claim for damages is b;
expiration of lease shorn of equitable features, defendant entitl
to jury.
101 U. S. 574-^90, 28 L. 262, HOPT v. UTAH.
Syl. 3 (X, 752). Waiver of presence of accused.
Approved in Holland v. People, 30 Colo. 105, 69 Pac. 522, hoi
ing defendant need not be present where jury announce that the;
cannot agree and that difference was on question of fact an
Judge announces that they are sole Judges of facts, and then ask
whether they are being properly cared for or whether any on
had attempted to Intrude upon them or speak to them about cas
Jones V. Commonwealth, 100 Va. 851, 41 S. E. 954, holding venl
facias directing summons of less number of jurors than requ
by statute is void and no valid trial can be had thereunde^i'
dissenting opinion in Gilligan v. Commonwealth, 99 Va. 828,
S. E. 966, majority holding record showing presence of prison
and declaring that jury retired to their room to consult of ih
Uct, as follows, to wit; * * *, whereupon prisoner,
Dsel. moved to act aside T«'dlct Is Bufflclent
yl. 5 (X. 753). Murder — Instruction as to degrees.
pproved In State v. Oakes. D5 Me. 373, 50 Atl. 20. holding e
us inatruction that verdict should be guilt; or not guilty of
rder to first degree.
yL 1 (X, 753). Voluntary confession as evidence.
.pproved m Strong v. Slate, 63 Nebr. 442. 83 N. W. 773. hold-
where deputy warden instructed prisoner as to advantages io
gained by obedience to prison rules and cominands of superiors,
: did not suggest or Intimate that any benefit might result
m an admlsalon of gultt. confession is admissible.
(yl. 8 (X 754). Confession to officer while in custody of another.
Ipproved In State v. Storms, 113 Iowa, 391, 302, 85 N. W. 612.
[Hitting confession of murder made while In custody aa not har-
; been made t>y Inducements.
iyl. 0 iX, 755}. Ei post facto — Enlargement of competency of
tneases.
Approved in Mallett v. North Carolina. 181 U. S. 51M, 45 L. 1018,
Sup. Ct. T32. upholding N. C. act of 1800, relating to appeal liy
ate from grant of new trial, as applied to crimiuul cases in which
al had been had, though new trial had not been granted when
itate passed.
Syl. 10 (X, 754). Ex post facto laws defined.
Approved In Sandberg v. State, 113 Wis. 584. 89 N. W. 505,
ildlng. under SlaL 1898, | 4160, copies of parish registers of
rtbs and deaths kept In foreign country in accordance with Its
wa are admissible niider stipulation that tbey should have
me effect as if originals had been produced by proper custo-
an and duly sworn to by him.
iX. 751). Miscellaneous.
Cited In Murphy v. Massachusetts, 177 V. S. 159, 44 L. 714, 20
dp. Ct 641, to point that defendant procuring setting aside >if
idgment may be tried anew on same or upon another indlctucnt
)r same offense.
10 D. 8. 590-602. 28 L. 252, SWANN v. WRIGHT'S EXECUTOR.
Syl. 1 (X, 755). Foreclosure purchaser suliject to liens — Es-
jppel.
Approved In First Nat. Bank v. Ewlng, 103 Fed. 183. holding
older of railroad bonds who Intervenes in suit against conipnny
3 which receivers have been previously appointed, and have by
luthority of court IhsupiI i'itimvit's vi'i-tiliiMlv.s liiiiiiiii ■iiiMliuii
'alidity u liens of sucb certificates after adjudication aa to their
ralldity.
i
110 U. S. 602-630 Notes on U. S. Reports. 618
110 U. S. 602-608. Not cited.
110 U. S. 608-619, 28 L. 258, NORTHERN BANK ▼. PORTER
TOWNSHIP.
Syl. 2 (X, 756). Estoppel by recitals in municipal bonda.
Approved in Board of Comrs. ▼. Travelers' Ins. Co., 128 Fed. 824.
reaffirming rule; Waite ▼. Santa Cruz, 184 U. S. 318, 46 L. 564, 22
Sup. Gt. 333, holding recitals in refunding bonds, stating that bonds
issued to refund outstanding indebtedness indorsed by bonds and
warrants, in conformity with Constitution and laws, and that all
statutory requisites have been complied with, estop city from
contending that original bonds did not constitute bonded Indebted-
ness; Hughes Co. V. Livingston. 104 Fed. 315, holding recital by
county commissioners in bonds that they were issued pursuant to
Dakota laws authorizing them on condition that fundable debt
exists estops county from denying existence of debt
Syl. 4 (X, 758). Municipal power to issue bonds — Estoppel by
recitals.
Approved in Board of Comrs. ▼. Coler, 113 Fed. 728, holding
N. C. ordinance of March 9, 1868, conferred power on another
county into which railroad chartered bj such act was extended
under subsequent act to issue bonds in conformity with Its pro —
visions, though they purported to have been issued under su
quent act which in so far as it attempted to authorize their Is —
suance was void; Storey ▼. Murphy, 9 N. Dak. 123, 81 N. W. 27,
holding county commissioners had no power to employ speciaT
attorneys to prosecute collections of taxes against railroad on per-
centage.
(X, 756). Miscellaneous.
Cited in King v. Pomeroy, 121 Fed. 295, as to effect of dicta.
110 U. S. 619-630, 28 L. 269, McDONALD ▼. HOVEY.
Syl. 1 (X, 758). Disabilities preventing running of limitations.
Approved in Black v. Ross, 110 Iowa, 113, 81 N. W. 229, hoi
ing where holder of matured note became insane within statutor:
period of limitations, his guardian could not maintain suit thereo:
more than ten years after maturity of note; Mynes ▼. Mynes,
W. Ya. 696, 35 S. E. 941, applying rule to action on mortgage.
Syl. 4 (X, 760). Construction on revision of statutes.
Approved in Gray v. Western Union TeL Co., 85 Mo. App. 13f-^S^-*^»
holding war revenue act of 1898 requires maker and sender m- ^^
telegram to buy, affix, and cancel revenue stamp required
message; Noyes v. Marston, 70 N. 11. 22, 4i' Ati. 5iKi, holding hus
and wife are competent witnesses for or against each other e^^ ^'
eept as to matters which would lead to violation of marital
Qdence.
on
KolM on r. S. RepottB. 110 U. S. «30-a51
U. 8. 630-633. 28 L. 272. WAPLES v. UNITED STATES.
yi. 3 (X, 760). No ■warranty of title on judicial sale,
.pprovwi Id Hoffeld v. United Stntea, ISW U. S. 2T(i. 27fi, 40
1163. 22 Sup. Ct 929. 930. holding one Bcoking to take advantage
21 Slst. 287. cbap. 244. providing for repayment of purchase
aej where ehtr; of land erroneously allowed, and cannot be
iflnued, must show himself entitled not only to land Itself but
everything which Btatute has annexed thereto as an Incident:
■Bt NbL Bank v. Ewing, 103 Fed. 101, holding purchaser of rail-
id at foreclosure cannot Insist that claims for right of way used
mortgagor company, but not paid for. shall be paid from pro-
fds of sale.
) U. S. G33-«51, 28 L. 2TB. MITCHELL t. CLAEK.
5yL 4 (X, 761). Reduction of limitation period — Impairment of
Approved In ETaos-Snlder-Bnet Co. v. U'Fadden. 105 Fed. 297.
iholdlng 29 Stat. 510. chap. 136, validating recorded chattel mort-
ges In Indian Territory, though retrospectively applied; Oshkoah
ater-Worka Co. v. City of Oshkosh, 100 Wis. 218. 83 N. W. 380,
iholding cliarter amendments cbangFiig mode of presentation of
alma against city and of conditions precedent to suit thereon.
87L 6 <X, 761). Sufficiency of defense as Federal question.
Approved In Erie R. R. v. Purdy, 1S5 U. S. 133. 46 L. 850. 22 Sup.
L S07. holding Snal State Judgment not reviewable In Federal
npreme Court aa decision In favor of validity of Stale statute
tiallenged as repugnant to Federal Constitution or us denial of
Igbt or immunity under such Conatitution. where such question
at raised at trial; Smith v. State, 42 Tex. Cr. 222. S8 S. W. 98. and
larter v. Texas. 177 U. S. 447, 44 L. 841. 20 Sup. Ct. 689, both holding
exclusion of aU negroes from grand Jury which Indicts negro in
Itate court, solely because they are negroes, denies hini equal
irotectlon, and objection may be raised by motion to quash lodlct-
Dlrtlngulshed In Tarrance v, Florida. 188 U. 8, 522. 23 Sup. CL
KM, 47 L. 574, holding denial of motion to quash Indictment and
iverrullng of challenges to array of jurors which raise objection
ixat negroes were discriminated against In selection of Juries not
?rror, where do evidence received to support charge except affidavit
attached to motion to quash.
(X, 761). Miscellaneous.
Cited In Manlgault v. S. M. Ward, etc., Co., 123 Fed. 719, hold-
ing legislative act passed in legitimate exercise of police powers of
State not void as Impairing contracts because It contravenes pro-
vIslooB of private contract between Individuals.
110 U. S. 651-a67
110 D. S. 631-667. 28 L. 274, EX PARTE TABBBOUGH
Syl. 2 (X. 732). Senlence beyond jurisdiction reviewable In Su-
preme Court
Approved In Files v, Davis, lis Fed. 467, holding action on at-
tachment bond executed In suit pending Id Federal court is wltliin
Federal Jurisdiction where reijulslte amount involved, reganllees of
clti^tensiilp: Id re Lewis, 114 Fed. 065, holding where cause of Im-
prisonment Tully appears in application for habeas corpus and
exhibits thereto, It is proper to issue order requiring officer to sbow
cause why writ should not Issue, and dispose of cose without first
Issuing writ Itself; Moore v. Wheeler, 109 Go. 62, 35 S. B. IIG,
holding one indicted and tried under void statute can even after con-
viction be discharged on hal>eBS corpus; UcCarty v. Hopkins, 01
Nebr. 551. 85 N. W. 541, holding regularity of proceedings leading
up to sentence In criminal case cannot be inquired into on habeas
corpus.
Syl. 3 (X, 7G2). Habeas corpus cannot correct errors.
Approved In In re Nevitt. 117 Fed. 449, holding on habeas corpus
conditions forming basis of Judgment and foundation of mandamus
and commitments to enforce such judgment cannot be reviewed;
Demlng v. McClaughry, 113 Fed. 650, holding Judgment of court-
martial, composed of regular army oflicera, convened to try member
of volunteer forces la void; Carter v. McClaughry, 105 Fed. 010,
holding on trial of army officer by court-martial, whether facts
proved constitute violation of articles of war as charged Is question.
determination of which Is witliln jurisdiction of court-martial, and
Us decision cannot be reviewed by habeas corpus; Bose y. Boberts.
99 Fed. 949. holding Judgment of court-martial cannot he reviewed
by habeas corpus except to determine question of Jurisdiction; De
Bara v. United States. 99 Fed. &*5, holding error in consolidation of
indictments cannot Iw inquired Into on habeas corpus: Ex parte
COK, 3 Idaho, 538. m Am. St. Rep. 30, 32 Pac. 200, holding habeas
corpus ties to release one held under sentence In excess of statutory
provision: In re Nolan. 21 Wash. 398, 58 Pac. 223, holding habeas
corpus does not lie to release one convicted of rape, though statute
defining rape was, subsequent to his conviction, declared void.
Syl. 5 (X, 764). Constitutional construction.
Approved in United States v, M'Ciellan, 127 Fed. 974, uphold-
ing 14 Stat. 546. denouncing peonage and involuntary servitude and
providing punishment,
Syl. 6 (X, 704). Federal protection of right to vote for congress-
Approved in Swafford v. Templeton, 185 U. S. 492, 40 L. lOOT, 22
Sup. Ct. 7S5, holding action to recover damages from State elec-
tion offltera for wrongful refusal to permit plaintiff to vote for
tel Notes on U. S. Reports. 110 U. S. 667-686
member of Congress Is within Federal court*s jurisdiction; Wiley ▼.
Sinkler, 179 TJ. S. 63, 45 L. 88, 21 Sup. Ct. 19, holding ease Involving
question of right to vote for members of CJongress may be brought
directly from Circuit Court to Supreme Court under Judiciary act
of 1891, chap. 517, S 5, cl. 4; Motes v. United States, 178 U. S. 462,
44 L. 1151, 20 Sup. Ct. 995, holding for conspiracy accompanied by
murder, in violation of Rev. Stat, §§ 5508, 5509, sentence to Im-
prisonment for life not void, though verdict has not Indicated
punishment; United States v. Eberhart, 127 Fed. 256, holding In-
sufficient indictment for conspiracy to intimidate citizen In exer-
cise of his personal privilege of contracting In violation of Rev.
Stat^ § 5506; United States v. Morris, 125 Fed. 322, holding con-
spiracy to prevent negro citizens from exercising right to lease and
cultivate land, because they are negroes, is within Rev. Stat., § 5508;
Karem v. United States, 121 Fed. 253, holding Rev. Stat., § 5508,
punishing conspiracy to injure or oppress citizen in enjoyment of
constitutional right or privilege, is not appropriate legislation to
enforce Fifteenth Amendment; Lackey v. United States, 107 Fed.
116, 117, 120, holding Rev. Stat., § 5507, punishing persons pre-
venting, controlling, or Intimidating another in exercising right of
suffrage, to whom that right is guaranteed by Fifteenth Amend-
ment, by bribery or threats, is void, reversing 99 Fed. 960, 961, 965,
966, 968; dissenting opinion in Giles v. Harris, 189 U. S. 491, 492,
23 Sap. Ct 648, 47 L. 914, majority holding equity will not compel
county board of registrars to enroll negro on voting lists as duly
qualified, voter, under registration provisions of Alabama Constitu-
tion, where main object of bill is to have these provisions upon
which right to register is founded declared void as discrimination
against negroes.
SjL 7 (X, 765). Fifteenth Amendment does not confer suffrage.
Approved in Karem v. United States, 121 Fed. 252, holding Rev.
Stat, § 5508, punishing conspiracy to injure or oppress citizen in
enjoyment of constitutional right or privilege, is not appropriate
legislation to enforce Fifteenth Amendment
110 U. 8. 667-686, 28 L. 291, ATCHISON, ETC., R. R. v. DENVER,
ETC., R. R.
SyL 2 (X, 765). Railroads not obliged to make trafilc agreements.
Approved in Southern Pac. Co. v. Colorado Fuel, etc., Co., 101
Fed. 786, holding equity cannot fix maximum interstate freight
rate and thereupon enjoin carrier from demanding more than rate
BO established; Western U. Tel. Co. v. Myatt, 98 Fed. 343, enjoining
enforcement of telegraph rates, where Kansas legislature fixed rates
and charged court of visitation with duty of enforcing such rates,
and it was adjudged that such court had no power to determine
110 u. a
Nolea OE U. S. Reports.
reosonableneaa of rates; Bras v. McConnell, 114 Iowa, 405, 87 N. W.
201, holding under Code, % 2066, railroad may contract with con-
necting line beyond Its own line, subject only to qualification
that under such agreement discriminatory rates cannot be Qxed;
State T. Johnson, 61 Kan. 828, 60 Pac. 1077. holding void Gen. Stai.
1899. i! 6779-5820, creating court of visitation; State v. Associated
Press, 159 Mo. 422 (see 60 S, W. 93|. holding mandamus will not
Issue to compel party to enter Into contract for daily news eervice
to be rendered by newH-gatherlng asaoclatroD to a publishing
company.
8yl. 4 (S, 766). Carrier contracting beyond own line.
Approved in Central Stockyards y, Louisville, etc.. Ry.. 102 U. S.
571, 24 Sup. Ct 341. holding railroad haying Its own stockyardi,
under lease from stockyards company, not bound to accept stock
from other States for delivery ut stockyards of another railroad,
though there is physical connection between two roads; Wisconsin,
M. & P. R. R. Co. V. Jacobson, 170 U. S. 200, 45 L. 109. 21 Sup. CL
118. upholding Minn. Geu. Laws 1895, chap. 91, I 3. requiring rail-
roads to furnish track conuectlous and facilitlea for Interchange
of cars and traffic at railroad Intersections; Interstate Com. Conini.
V. Southern Pnc. Co., 123 Fed. OO-l, holding order of interstate com-
merce commission, requiring rnilroads to desist frooi maintaiulng
certain rule, as It Is unjust and unreasonable. Is prima facie n law-
ful order; West Coast Naval Stores Co. v. Louisville & N. R. R.
Co., 121 Fed. 651, holding railroad matntuluing wharf in extension
of street, and on which It bas Its tracks, cannot permit use of wharf
by such vessels only as It may select and exchide others, as wharf
Is affected by public use; Central Stock Yards Co. t. Louigyille &
N. R. R. Co., 118 Fed. 118, 110, holding courts cannot In absence of
statute compel Interchauge of traffic between two connecting rail-
roads or fix terms on which it shall be made; dissenting opinion
In Ohio Coal Co. v. Whitcomb, 123 Fed. 3G3, majority holding where
certain railroad along docks was owned partly by one road and
partly by another, and operated and used jointly, extra cbarge made
to shipper from point on docks In addition to published rales from
city, where no extra charge made to other shlpperB. was dis-
criminative.
Syl. 6 (X, 767). Prohibition of unreasonable discrimination.
Approved in Tift v. Southern Ry. Co.. 123 Fed. 7tH. holding
Interstate commerce act (24 Stat. 379), In so far as It inhibits car-
riers from Imposition of unjust and unrensonabie rates. Is an express
adoption of common-law prlcdples; Nashville, etc.. R. R. Co. v. State.
137 Ala. 443, 34 So. 402. holding equity cannot compel railroad t
comply witb order of railroad commission to change locati*
depot and to erect and maintain freight depot
623 Notes on U. S. Reports. 110 U. S. 68&-710
110 U. 8. 68&-e88, 28 L. 285, DALLAS CO. ▼. McKENZIB.
SyL 1 <X» 768). Aid bonds made under prior law.
Approved In Board of Comrs. ▼. Travelers' Ins. Co., 128 Fed. 821,
holding N. C. Const of 1868, art 2, S H, requiring acts creating or
authorizing State, county, or municipal debts to be passed in specific
manner, did not supersede prior legislation nor render tnvalid county
bonds issued under authority of prior acts.
SyL 2 (X, 768). Recitals In municipal bonds.
Approved In Beatrice v. Edminson, 117 Fed. 432, holding recitals
in municipal bonds which import issuance in accordance with Con-
stitution, which contains limitation of indebtedness, estops munici-
pality from asserting that debt limit exceeded, where recitals made
by officers in whom power was vested and upon whom duty was
imposed of determining whether or not debt limit exceeded before
IxHdds Issued; Board of Comrs. v. SutlilT, 97 Fed. 277, holding re-
cital in municipal bonds by officers authorized to determine ques-
tion and to make the recital, that constitutional limitation has
not been exceeded, estops municipality as against bona fide pur-
chaser.
110 U. S. 688-^5, 28 L. 286, UNITED STATES v. BRINDLE.
SyL 2 (X, 768). Extra compensation to receiver of public moneys.
Approved in Baker v. Crook County Comrs., 9 Wyo. 57, 59 Pac.
798^ upholding contract between county commissioners and coroner,
who is county physician, for period of three years to furnish medi-
cine and medical attendance for poor.
110 U. S. 695-701. Not cited.
110 U. S. 701-710, 28 L. 298. CHEELY v. CLAYTON.
SyL 1 (X, 770). Conclusiveness of divorce Judgment.
Approved in Atherton v. Atherton, 181 U. S. 163, 45 L. 800, 21
Sup. Ct 547, holding mailing of letter to nonresident defendant
in divorce suit by attorney appointed to represent her pursuant
to Kentucky Code, fully advising her of nature of suit, addressed
to her at her residence as truly stated on oath in petition, is suffi-
cient effort to give her notice of suit in Kentucky, which has always
been matrimonial domicile. See 94 Am. St. Rep. 554, note.
SyL 2 (X, 770). Divorce — Husband's domicile that of wife.
Approved in Tsoi Sim v. United States, 116 Fed. 923, holding
Chinese Woman who lawfully entered country prior to enaciment of
exclusion laws and remained, but failed to obtain required cer-
tificate, and who was married to citizen prior to her arrest, cannot
be deported; Watertown v. Greaves, 112 Fed. 187, holding wife de-
serted by husband may establish separate domicile and acquire
citizenship in another State, for purposes of Federal Jurisdiction,
110 U. S. 710-720 Notes on U. S. Reportt. ©4
when right to acquire citizenship therein under such eircnmstances
is recognized by law of such State. See 84 Am. St Rep. 20, note.
Syl. 3 (X, 770). Notice necessary to validity of divorce.
Approved in Atherton v. Atherton, 181 U. S. 164, 45 L. 800, 21
Sup. Ct 547, holding mailing of letter to nonresident defendant iu
divorce suit, by attorney appointed to represent her pursuant to
Kentucky Code, fully advising her of notice of suit, addressed to her
at her residence, as truly stated on oath in petition, is sufficient
effort to give her notice of suit in Kentucky, which has always
been matrimonial domicile. See 83 Am. St Rep. 619, 620, note.
Syl. 6 (X, 771). Invalidity of divorce without proper notice.
Approved in Atherton v. Atherton, 181 U. S. 164, 45 L. 800, 2]
Sup. Ct 547, holding mailing of letter to nonresident defendanr
in divorce suit, by attorney appointed to represent her pursuant tc^.
Kentucky Code, fully advising her of nature of suit, addressed t<^:
her at her residence, as truly stated on oath in petition, is sui
cient effort to give her notice of suit in Kentucky, which has alway "■^ ys
been matrimonial domicile.
110 U. S. 710-720, 28 L. 301, FREBDMAN'S, ETC., TRUST CO. lar^ V.
EARLE.
Syl. 1 (X, 771): Execution on equitable estates.
Approved in Hudson v. Wood, 119 Fed. 776, holding in creditor"
suit by Judgment creditor against Judgment defendant and anothe'
alleged to be his debtor on mere money demand, question of latter-
indebtedness, if denied, cannot be tried in Federal court, bi
complainant may by Joinder of such defendant obtain discovei
as to his Indebtedness; Hutchinson v. Maxwell, 100 Va. 182,
Am. St Rep. 954, 40 S. E. 659, holding creditor's bill filed by li(
creditor on behalf of himself and others, who may be entitled
become parties, need not aver that complainant has exhausts
ren^dy at law.
Syl. 4 (X, 771). Execution against lands conveyed in trust
Approved in Knott v. Evening Post Co., 124 Fed. 357, det^ .^.er-
mining priority of Federal Jurisdiction over State in
for distribution of assets of corporation when receiver had b(
appointed at instance of creditors; Hudson v. Wood, 119 Fed. 7"
holding in creditor's suit in Federal court by Judgment credit
against Judgment defendant and another, alleged to be his deb"
on mere money demand, question of latter's indebtedness, if deni
cannot be tried in Federal court, but complainant may by Jolm
of such defendant obtain discovery as to his indebtedness.
<Xv 771). Miscellaneous.
Cited in Metcalf v. Barker, 187 U. S. 172, 173, 23 Sup. Ct 70,. ^^
L. 126, to point that filing of creditor's bill is beginlng of execntX^'
«25 Notes on U. S. ReporU. Ill U. S. 1-22
and seiTlce of process creates lien on debtor's equitable assets;
Kreyling v. O'Reilly, 07 Mo. App. 389, 71 S. W. 373. holding where
person dies seized oi' real estate incumbered by mortgage, and
mortgage is thereafter foreclosed, surplus is regarded as realty and
goes to heirs Instead of to representatives.
no U. S. 720-741. Not cited.
110 U. S. 741, 742, 28 L. 313, LEGGETT v. ALLEN.
Syl. 1, 2 (X, 773). Courts — Review of proceedings to prove debt.
Approved In Holden v. Stratton, 191 U. S. 118, holding Supreme
Ck>iirt has no appellate Jurisdiction over decrees of Circuit Court
of Appeals, reversing proceedings of inferior courts of bankruptcy,
under bankruptcy act, § 24b.
110 U. S. 742, 743. Not cited.
CXI UNITED STATES.
Ill U. S. 1-17, 28 L. 331, OTOE CO. v. BALDWIN.
SyL 3 (X, 774). Municipality unrestrained can issue railroad
bonds.
Approved in Shearer v. Bay County Supervisors, 128 Mich. 558.
87 N. W. 791, holding vote of electors in bond Issue being invalid
at time it was taken cannot, by a subsequent act of the legislature
alone, be validated; Austin v. McCall, 95 Tex. 575, 68 S. W. 793,
holding contract of city to purchase private water plant creates debt,
and in absence of providing 2 per cent, sinking fund conflicts with
constitutional requirement.
Ill U. S. 17-22, 28 L. 337, LAMMON v. FEUSIER
Syl. 1 (X, 775). United States marshal — Sureties liable for at
tacbing another's property.
Approved in Chandler v. Rutherford, 101 Fed. 777, holding to
constitute color of title rendering officers* sureties liable for wrong-
ful acts, something else need be shown besides thnt of doing what
ofllcer claimed in official capacity; Felonicher v. Stingley, 142 Cal.
032, 76 Pac. 505, holding insufficient complaint alleging that con-
stable, acting in official capacity, without authority of law, and
Without right, maliciously and knowingly made assault and tres-
pass on plaintiff, compelling her to submit to examination of person
and taking from her certain property; Johnson v. Williams, 111 Ky,
294, 63 S. W. 760, holding sherilT liable on his bond for his deputy's
Vol. II — 40
Ill U. S. 22-31 Notes on U. S. Reports. 620
killing another whom be erroneously supposed to be defendant In
waiTant of arrest; Hall v. Tiemey, 89 Minn. 411, 95 N. W. 220, ^
holding ottleial bond indemnities against misusing official position, «.
and doing under color of office appearing as regular official act,
made good by signer of bond; State v. Dierker, 101 Mo. App. 645,^
74 S. W. 155, holding acts of sheriff done under color of office,^
involving abuse as distinguished from usurpation of authority,
render his bondsmen liable; Drolesbaugh v. Hill, 64 Ohio
264, 60 N. E. 203, holding officer's sureties on bond are liable il
arrest, with or without warrant, was made with more force
violence than necessary. See notes, 91 Am. St. Rep. 639, 540.
Syl. 3 (X, 776). Attached property in custody of court
Approved in Phelps v. Mutual, etc, Assn., 112 Fed. 467, holdluf
jurisdiction court of record acquired by service of process not e]
hausted by Judgment, but continues till same is satisfied an»
includes process to enforce same; Lowenthal & Meyers v. Baca, 1^
N. Mex. 361, 62 Pac. 9S3. holding judgment in replevin for defendE
ants rendered on merits bars plaintiffs recovering in subsequenK-^r nt
action of trespass between same parties for same goods.
Ill U. S. 22-31. 28 L. 341. SWIFT CO. V. UNITED STATES.
Syl.- 2 (X, 776). Taxation — Parties on inequality payment na^ ^^i^Bot
voluntary.
Approved in Newburyport Water Co. v. Newburyport, 103 w^* =^^
505, 51)6. boliling legislative franchise to corporation to supply ci*^ .^^^ty
water not being exclusive, subsequent city grant to build competii^^ ^ng
water- works is valid; Yates v. Royal Ins. Co., 200 111. 214, 65 N. 7 E.
730, holding only objection being that such premium tax should ni^^=^ot
be assessed, same paid without protest, subsequent invalidity of
statute did not permit recovering taxes; Manning v. Poling, 1__^^^^K14
Iowa, 24, 83 N. W. 80C, holding where one could have protected ti^K^Mtils
possession by restraining order from Supreme Court and did n» ^^M^ot,
payment redemption money was voluntary and unrecoverable; N«b^" -^^w
Orleans, etc., Ky. Co. v. Louisiana Const., etc., Co., 109 La. 22, ^
Am St. Kep. 395, 33 So. 55, holding where debtor has other mea^^^^^^^^
of immedinte relief than by making payment, he is not coerced, a.^^^^^'^^
simple protest is but voluntary payment See 94 Am. St R — ^^^— ®P*
415, note.
Distinguished in United States v. Edmonston, 181 U. S. 505, 45
075, 21 Sup. Ct 720, 724, holding voluntary payment by purchase
mistake overpaying for public laud gives purchaser no lawful cl
against Federal government for repayment; Ritchie v. Carter,
Mo. App. 294. holding appellants paying judgment, no seizure
goods made, nor threat of seizure, payment was voluntary.
e27 Notes on U. S. Reports. Ill U. S. 31-61
SyL 3 (X, 777). Internal revenue — Stamp purchaser can recover
without protest
Approved in Dooley v. United States, 182 U. S. 230, 45 L. 1081,
21 Sup. Gt 765, holding exaction of duties upon New York imports
to Porto Rico ceased upon treaty of cession, and importer can sue
Federal government to refund money paid.
Ill U. S. 31-38, 28 L. 338, WALSH v. MAYER.
Syl. 2 (X, 777). Partnership signing letter-note not barred.
Approved in Rumsey v. Settle's Estate, 120 Mich. 377, 79 N. W.
580, holding letter to creditor by debtor acknowledging debt on notes
not outlawed and promising to pay every cent thereon prevents
Statute of Limitation running; Acers v. Acers, 22 Tex. Civ. 587, 56 S.
W. 198, holding debtor's letter of regretful carelessness paying note
but would pay soon as possible was sufficient acknowledgment of,
and promise to pay to bar limitations.
Ill U. S. 38-42, 28 L. 344. UNITED STATES v. UBRICL
Syl. 2 (X, 778). Tax first lien on distilled Uquors.
Approved in United States v. Aiken, 110 Fed. 371, holding Federal
government in possession, having liquor lien, not retaining suf**
flciency of selling price to pay tax, estops suing sureties on bond but
not suing distiller.
Ill U. S. 42-53. Not cited.
Ill U. S. 53-61, 28 L. 349. BURROW, ETC., LITHOGRAPHIC CO.
V. SARONY.
Syl. 1 (X, 778). Copyright — Date and name on photograph suf-
ficient notice.
Approved in Mifflin v. Dutton, 107 Fed. 710, holding copyright
of book in name of author invalid if magazine serials first pub-
lished were copyrighted bj publishers who so stated therein; Falk
V. Curtis Pub. Co., 98 Fed. 991, holding Rev. Stat., § 49G5, sub-
jecting •• any person " to forfeiture having unauthorized copyright
pablication copies in possession, applies to agents of corporation.
Syl. 2 (X, 779). Contemporary legislators* constitutional con-
struction.
Approved in Downes v. Bidwell, 182 U. S. 286, 45 L. HOG, 21
Sup. Ct 786. holding Porto Rico by treaty cession became terri-
tory appurtenant to United States, but not part within revenue
clause of Constitution, such as article 1, section 8; Fairbank v.
United States, 181 U. S. 308, 309, 320, 45 L. 873. 877, 21 Sup. Ct.
658, 659, 663, majority holding stamp tax on foreign bill of lading
Is effectively equivalent to tax on articles therein included, hence
duty on exports and in conflict with constitutional provision; Falk
Ill u. s
1 U. S, Reports.
IT. Curtis Pub. Co.. 100 Fed. Tfl. holding, under Rev. Stat., f 629,
Circuit Court may recover ?1 (H-nalty for eacL copy poaBcaaed of
Inrrlnged copy, thougli primltles generally belong to District Coart.
Syl. 3 (X. 77B), "Writings" Includea all forms autlior's Ideas.
Approved in Bllstein v. Donuldson LI thogra piling Co., ISS TT.
S. 240, 23 Sup. Ct. 2S9, 47 L. 4G1. holding chromolithograph ic adver-
tleements of a elrcvs whitened to repreaeut statues are proper
Bubjet'ts of copyright, under Rev. Stat., i 4952. aa amended by
act 1874, I 3; Courier, etc., Co. v. Donaldaon, etc., Co., 104 Fed.
aoi, holding chromo or otiier printing ijeing mere advertisement
and having do other function or Inlrlnaie value not within protection
of copyright atatute.
Syl. 4 (X, 779). Photograpli orlgiiiul conceptions copyrighted.
Approved In Edison v. Lubin, 122 Fed. 243, holding series of
4,500 pictures adapted to use in magic lantern were " pliotographa '"
and aubject to copyright aa such in ita entirety; Snow v. Ijiird,
98 Fed. 816. holding photograph becoming public property, placed
upon marlict and anld, proprietor cannot obtain valid copyright
thereon by malclng merely colorable change therein by altering
negative.
Syl. 5 (X, 7S0). Copyright violated author proves originality.
DiBtlQgulahed In Mifflin v. Dultou, 112 Fed. 1005, boldlng author
after copyrighting book, permitting publishing of remaloder In
magasiac, copyright notice of publication being general, under stat-
ute, author has abandoned copyright.
Ill D, S. 02-65, 28 L. 352. HOLLISTER v. MERCANTILE INST.
Syl. 1 (X, 780). Internal revenue — Bearer's order for goods not
Approved In Martin -Alexander Lumber Co, t. Jolinson, TO Ark.
219, 66 S. W. 9213, holding company's checks for goods at Its store
it employees' wages were due when checks were received ac-
■ceptance no bar to action by company or assignee; State v. Frank-
!lln Co, Sav. Bnak, 74 Vt. 258. 52 Atl.'lOTl, holding savings bauk»
ireeeivlng commercial and saving deposits aa per charter, law tax-
iing average deposits including money and security received ai
itrustee excludea no claaa thereof.
Ill U. 8. 66-83, 28 L. 354, CANAL BANK v. HUDSON,
Syl. 4 (X. 780). Judicial sales — Innocent purchaser entitled re-
imbursement for Improvements.
Approved in Clelaiid v. Clark, 123 Mich. 184, 81 N. W. lOST. bold-
lng one buying land In good faith supposing to buy good title,
Icnowing nothing to the contrary until after making Improvements.
he Is entitled to compensation therefor. See 81 Am. St Bep. 171,
173. note.
G2» Notea on U. S. Reports. Ill U. S. 83-W
111 U. S. 83-97, 28 L. 3C0, DIXON CO. v. FIELD.
SyL 2 (X, 780). Recitals of fact, not law, estops.
Approved in Tulare Irrigation District v. Shepard, 185 U. S. 24,
46 L. 784, 22 Sup. Ct. 540, holding de facto corporation receiving
foil consideration for bonds issued, never legally incorporated no
defense in suit by bona fide holder for value without notice;
Waite V. Santa Cruz, 184 U. S. 318, 46 L. 564, 22 Sup. Ct 333,
holding recitals in refunding city bonds that everything was done
legally required in issue estops city to deny validity in hands of
bona fide purchaser; King v. City of Superior, 117 Fed. 116, hold-
ing duty devolving upon city and recital in bonds that said duty
bas been complied with estops city as against bona fide holder
for value; Municipal Trust Co. v. Johnson City, 116 Fed. 466, 469,
bolding statute limiting railroad bonds issued by city determined
upon assessment-roll, recital of statutory compliance conclusive
upon city in favor of bona fide holder; Lyon Co. v. Keene, etc..
Bank, 100 Fed. 339, holding negotiable refunding exchange county
bonds issued legally, in hands of purchaser for value before ma-
turity, are presumed not to have increased county indebtedness;
Brattleboro Sav. Bank v. Board of Trustees, 98 Fed. 533, hold-
ing no record being required, bond recital of authority of issue
and purpose thereof is conclusive on township in favoi* of bona
fide purchaser; Santa Cruz v. Waite, 98 Fed. 391, 393, holding
where statutes making issuing of bonds made public notice, officers
had no implied authority to make recitals relieving from such
notice which estopped city, reversed In 184 U. S. 318; Youngs-
town Bridge Co. v. White's Admr., etc., 105 Ky. 280, 49 S. W. 37,
holding Code requiring service upon chief officer, if in county, sher-
iff's return must state officer on whom served, and if not chief
why so served; National Life Ins. Co. v. Mead, 13 S. Dak. 46, 82
N. W. 79, 79 Am. St. Rep. 880, holding bona fide purchaser of bonds
is protected, the recital being made by officers authorized to
ascertain and determine facts before issue; dissenting opinion In
City of Pierre v. Dunscomb, 106 Fed. 020, majority holding mu-
nicipal bond recital that bonds neither create nor increase mu-
nicipal debt estops municipality denying declaration against bona
fide purchaser, city having received proceeds thereof; dissenting
opinion in Wilson v. Board of Education of Huron City, 12 S. Dak.
554, 558, 81 N. W. 957, 958, majority holding board of education
issuing bonds, recital being compliance with law, cannot allege
as defense that bona fide purchaser did not comply with Consti-
tution.
Distinguished in City of Pierre v. Dunscomb, 106 Fed. 617, hold-
ing municipal bond recital that bonds neither create nor increase
municipal debt estops municipality denying declaration against
bona fide purchaser, city having received proceeds thereof; dis*
Ill U. S. 97-120 Notes on U. S. Reports. 630
sentlng opinion in City of Santa Cruz t. Waite, 98 Fed. 396, 397.
majority holding where statutes making issuing of bonds made
public notice, officers had no implied authority to make recitals
relieving for such notice, which estopped city.
Syl. 3 (X, 782). Public records required, certificate recital worth-
less.
Approved in Geer v. School Dist, 97 Fed. 734, holding statute
limiting issue of bonds, officers not to determine limit, and recitals
silent in that respect, all persons bound to take notice thereof;
NaUonal Life I. Co. v. Mead, 13 S. Dak. 48, 82 N. W. 80, 79 Am.
St Rep. 882, holding purchaser bound to take notice of existing
indebtedness and assessed valuation, bond recital of issue within
limits, but representation ahd city is not estopped thereby.
SyL 4 (X, 783). Beyond constitutional limitation, bonds issued
void.
Approved in Geer v. School Dist, 97 Fed. 735, holding statutory
limitation upon school district issuing bonds being public statute,
all persons were bound to take notice; Debnam v. Chitty, 131 N.
C. 679, 43 S. E. 10, holding township bonds being invalid, issued
without authority, township not estopped from recitals therein
of compliance with Constitution and laws of State; National Life
Ins. Co. V. Mead, 13 S. Dak. 46, 47, 48, 79 Am. St Rep. 880, 881,
882, 82 N. W. 79, 80, holding statements by city officials In cer-
tificates, which was outside the scope of their authority, does not
estop city denying validity of bonds.
Ill U. S. 97-109. Not cited.
Ill U. S. 110-117, 28 L. 368. TAYLOR v. BOWKER.
Syl. 3 (X, 784). Equity aids after exhausting legal remedy.
Approved in Strong v. Richmond, etc., R. R., 101 Fed. 616,
holding contract to build railroad not specifically enforceable in
equity, nor will court impound its bonds appropriated to pay while
contract is still unperformed; Moyer v. Riggs, 8 Kan. App. 237,
55 Pac. 495, holding Judgment creditor's action in nature of cred-
itor's bill, under Kansas Code, must allege Judgment debtor has no
personalty or realty subject to levy on execution.
Syl. 4 (X, 785). Statutory revision — Change of 'equitable remedy.
Approved in White Mountain Paper Co. v. Morse, 127 Fed. 645,
holding corporation may be adjudged bankrupt after dissolution,
where statute of State of its creation continues them as bodies-
cori)orate after dissolution for purposes of suits and of settling ui^
their afTairs.
Ill U. S. 117-120. Not cited
^sai Notes on U. S. Reports. Ill U. S. 120-148
111 U. S. 120-122, 28 L. 371, GARRETSON v. CLARK.
SyL 1 (X, 786). Patentee must show profits from infringement
Approved in Kansas City Hay Press Co. v. Devol, 127 Fed. 366,
holdUig where patent infringed is for improved part only of ma-
chine, other parts being open to defendant's use, burden is on
complainant to apportion his damages and defendant's profits. be-
tween patented and unpatented features; Penfield v. Potts, 126
Fed. 485, holding infringing machine having special valve due to
the single part, patentee entitled to recover entire profits from
sale of machines, their value depending thereupon; Lattimore v.
Hardsocg Mfg. Co., 121 Fed. 988, holding accounting for infringe-
ment of miner's lantern-holder attachable to cap, complainant
entitled to profits from holder only, as cap, too, has value; Elgin
Wind, etc., Co. v. Nichols, 105 Fed. 783, holding where complain-
ant claims infringement relating to wind-mill, same being more
valuable, he must prove what portion of profits he is entitled to;
Wales V. Waterbury Mfg. Co., 101 Fed. 129, holding where holders
were of no value, but for patented buclcle, an infringer is liable
for entire profits of sale.
Distinguished in Piaget Novelty Co. v. Headley, 123 Fed. 898,
holding sale of infringing article, valueless otherwise, complain-
ant is entitled to net profits after deducting ofl^ce and factory
rentals and expenses of manufacture.
Ul U. S. 122-124. Not dted.
Ill U. S. 125-134, 28 L. 374, PHCENIX BANK v. RISLEY.
Syl. 2 (X, 787). Bank and depositor debtor and creditor.
Approved in Kenneth Inv. Co. v. Bank, 96 Mo. App. 144, 70
8. W. 177. 179, holding depositor receiving bank-book duly balanced
is not precluded impeaching it, based upon payment of forged check,
in absence of his negligence; State v. Franklin Co. Bank, 74 Vt.
256, 52 Atl. 1070, holding taxes payable by statute upon bank de-
posits applies both to saving and commercial deposits of savings
bank, both being general deposits; dissenting opinion in Pullen v.
Placer Co. Bank, 138 Cal. 178, 94 Am. St. Rep. 28, 71 Pac. 86, ma-
jority holding a bank paying a check with notice of the drawer's
death is liable to his estate. See 94 Am. St. Rep. 28, note.
311 U. S. 134-138. Not cited.
Ill U. S. 138-148, 28 L. 379, NEW ENGLAND MUT. LIFE INS.
CO. V. WOODWORTH.
Syl. 4 (X, 789). Foreign corporation suable where transacting
business.
Approved in Equitable Life Assur. Soc. v. Brown. 187 U. S.
872, 23 Sup. Ct. 124, 47 L. 192, holding Supreme Court jurisdiction
to review judgments of court of Hawaii, under act of April 30th,
Ill U. S. 14S-ir)5 Notes OD U. S. Reports. 632
t SB, measured same as reviewing judgments of State courts:
London. Paria, etc., Bank v. Aronsteln. 117 Fed. 600, holding
British corporation tnmsactlng business in California, malntainln?
office in charge of maiiflgers. law of said State governs in trans-
ferring shares upon atoclili older' s death; In re Magkl-Hope Silk Co..
110 Fed. 353, holding commissioner of corporation of the State
appointed attorney to receive service of process of bankruptcy pro-
ceedings In the State Is sufficient to give Jurisdiction: Piatt v.
Massachusetts Real Estate Co., 103 Fed. 707. holding in absence of
agreement of corporation other wiac. Acts of 1887-88. the only
lawful service could be made in district of which corporation wa«
inhabitant and resident; Howard v. Gold Reefs, 102 Fed. (CS.
iiolding railroad may do business and own property in a State, but
such tact does not overcome presumption of nouresidence In pre-
venting removal.
Distinguished In Modern Woodmen v. Hester. GG Kan. 138. 71
Pac. 281, holding Judgment of Probate Court in one county api>olnt-
Ing guardian, void for want of jurisdicllon. guardian validly ap-
pointed by another may collnterally attack former.
111 U. S. 148-155. 28 L. 382, COOPER v. SCHLESINGER.
Syl. 1 (X, 790). One proposition valid general eiceptlon bad.
Approved in Tracy v. Eggleaton, 108 Fed, 330. holding general
exception to charge not directory, attention of trial court to par-
ticular portion objected to raises no question for review In ap-
pellate court.
Syl. 2 (X, 790). Recklessness makes false statement knowingly
Approved in Simon v. Goodyear, etc.. Co., 105 Fed. D81, holding
defendant's agent making fraudulent representations, regarding
factories helug out of business, intending pliiintlff to act npon same,
is fact for Jury in disaffirmance of contract.
Syl. 3 (X, 790). Damage recoverable for false representations.
Approved In Hlndman v. First Nat. Bank, 112 Fed. 9M, holdlnK
bank cashier making false statement subserving interest of bank,
latter liable In tort to one Injured thereby, tliough cashier was not
authorized to make statement; Boddy v. Henry, 113 Iowa. 468, 85
N. W. 773, holding property seller making false statement to pur-
chaser thereby making sale, though having means of ascertaining
truth, not liable In deceit, acting In good faith: Parker v, Ausland,
13 S. Dak. 175. 82 N. W. 404, holding complaint states cause of
action for willful deceit causing injury to plaintiff providing Code
allows for damages caused thereby: dissenting opinion in Modern
Woodmen of America v. Union Nat. Bank. 108 Fed. 783. majority
holding bank certificate falsely stating deposits of certain date to
credit of party. Injured party thereby has action ex delicto for
deceit rather than assumpsit.
33 Notes on U. S. Reports. Ill U. S. 156-185
11 U. S. 156-170, 28 L. 385, MOORES v. CITIZENS' NAT. BANK.
Syl. 1 (X, T90). Stock certificate issued generally binds corpora-
on.
Approved in First Ave. Land Co. v. Parker, 111 Wis. 8, 9, 86 N. W.
)7, holding complaint failing to allege purchaser's ignorance of
ilse declarations in certificate or reliance thereon fails to state
ifflclent facts to constitute cause of action.
Syl. 2 (X, 791). Corporation forging certificates liable in damages.
Distinguished in Havens v. Bank, 132 N. C. 226, 43 S. E. 643.
elding stock issued in cashier's name and indorsed by him in
lank, reciting transferability on books of bank, was not notice to
laintlfT of fraudulent issue.
Syl. 3 (X, 791). Certificate irregular on face relieves corporation.
Approved in Cleigh v. American Brake Beam Co., 205 111. 151, 68
'. E. 714, holding assumpsit lies for money had and received against
erson to whom money belonging to corporation had been paid over
ursuant to ultra vires contract; Wheeler v. Home Sav., etc., Bank.
38 111. 39, 58 N. E. 599, holding pledge of warehouse receipts for
ebts of manager thereof as the act of corporation, it was ultra
ires and void and incapable of ratification; Campbell v. Manu-
icturers' Nat Bank, 67 N. J. L. 304, 51 Atl. 499, 91 Am. St. Rep-
10, holding where individual transaction was with cashier and
nown fact of his paying liis own diiht witli bank's draft, plaintifT
as burden of proving ratification; Farmers' Bank v. Diebold, etc.,
o., 66 Ohio St. 370, 04 N. E. 521, 90 Am. St. Rep. 590, holding
ertlficate of stock expressed on face to be transferred only on
ooks of company not a negotiable instrument transferred in
blank' upon its back." See 87 Am. St. Rep. 851, 853, note.
11 U. S. 170-175. Not cited.
11 U. S. 176-185, 28 L. 390. COVELL v. HEYMAN.
SyL 1 (X, 792). Ancillary proceedings recover improper Federal
iizure.
Approved In Phelps v. Mutual, etc., Assn., 112 Fed. 467, holding
cecution returned nulla bona, plaintiff's setting up pleading that
ifendant was removing property from court's jurisdiction was
iclllary to Judgment, not new action.
Syl. 2 (X, 792). Attached property custody of court.
Approved in Hitz v. Jenks, 185 U. S. 1G9, 46 L. 856, 22 Sup. Ct.
4, holding absence of court authority, trustee of private trust deed
nnot sell realty in his possession as receiver after an appeal dis-
iTing injunction restraining sale; White v. Schloerb, 178 U. S.
7, 44 L. 1187, 20 Sup. Ct. 1009, liolding goods in person's posses-
>ii when declared bankrupt are in custody of Federal court, from
111 U. S. 17G-185 Notes on U. S. Reports.
which they cannot be taken by process from State court; CentraK".
Trust Co. V. Western, etc., R. R. Co., 112 Fed. 474, holding Federar
Circuit Court not prevented by Rev. Stat., § 720. to stay proceed-.
Ings in State court where necessary to protect Its own prior Juris*;
diction; Phelps v. Mutual, etc., Assn., 112 Fed. 465, 469, holding^ mzKjig
though court does not have physical possession of res, and courta::^"-:K'xt8
have concurrent Jurisdiction, the first one acquiring retains sanu
without interference; Pitliin v. Burnham, 62 Nebr. 397, 39» 89
St. Rep. 772, 87 N. W. 164, holding constable having levied upov<=><3[pon
personalty under valid process, he has special property thereincxf ^»^in,
and another officer by another process cannot interfere.
Syl. 3 (X, 794). Officer protected doing specific act
Approved in In re Gutman, 114 Fed. 1011, holding Bankrupc^ f^^mpt
Court under banicrupt act, § 2, will enjoin State court in actio: <:>S:Jt/QQ
against trustee where his taking bankrupt's property from plalizf oiaUQ.
tiff was not wrongful.
Syl. 4 (X, 794). One court securing Jurisdiction excludes otherr^r^s;^
Approved in Knott v. Evening Post Co., 124 Fed. 353, holdinzK: Kng
suits pending in two or more courts of concurrent powers at \rJt la-
stance of different plaintififs, priority of Judicial seizure is test » of
prior Jurisdiction; In re Matthews, 122 Fed. 252, 258, holding whe^^sexre
State officer In pursuance of Federal law shoots military desert^^^^T,
Federal court will not issue habeas writ for release except In urge '^^*
case; McDowell v. McCormick, 121 Fed. 66,- holding court in whl» ^<
proceedings are commenced acquires exclusive Jurisdiction of r
through Its receiver, irresi>ective of actual seizure or violation
restraining order; Baltimore, etc., R. R. Co. v. Wabash R. R. C
119 Fed. 680, holding suit being to enjoin continuing trespass --
easement granted by State court, lessor of trespassing lessee
necessary party for purpose of ousting Federal Jurisdiction; Ev
V. Gorman, 115 Fed. 402, holding Federal court cannot enjoin
of estate land, ordered by Arkansas Probate Court to pay Ju
ments against the estate, though suit is ancillary; In re Shoemak*
112 Fed. 050, holding State court acquiring Jurisdiction over p:
erty of debtor prior to filing voluntary petition in bankrupt
Federal court will not interfere by injunction restraining s
Phelps V. Mutual, etc., Assn., 112 Fed. 458, holding court of re
once acquiring Jurisdiction by service of process, same is not
hausted by rendition of Judgment and proper process for its enfor
ment may be issued; Starr v. Chicago, etc., Ry. Co., 110 Fed. 6, hold
Federal Supreme Court having determined State statute uncon
tutional and affirmed decree i)erpetually enjoining its enforcem
such adjudication binds succeeding attorney-general; Anderson.
Elliott, 101 Fed. 613, holding Federal marshal cannot be arreflB-
and imprisoned by State authority for acts done in pursuance
command of Federal writ; Frazier v. Southern Loan, etc., Co.»
Fed 712, holding orders of sale and injunctions of Federal
Notes on U. S. Reports. Ill U. S. 185-19G
t Oonrt were unwarranted, State court haying jurisdiction four
Qths before bankruptcy; Jordan t. Taylor, 08 Fed. 640, holding
Ue estate Is still in Probate Court, executor not having rendered
oant. Federal court will not entertain cestui*s bill regarding
duary estate; In re Schloerb, 97 Fed. 327, 328, holding personal
perty of adjudged bankrupt, listed as assets of his estate, is in
tody of Bankrupt Court, and replevin writ from State court in-
d; Fulghum v. J. P. Williams Co., 114 Ga. 647, 40 S. E. 606,
ling mortgagee offering property for sale and same is seized by
Iff, former cannot sell while in sherifTs custody; Missouri Pac.
Co. V. Love, 61 Kan. 437, 50 Pac. 1073, holding property and
(ts In hands of receiver are in custodia legis and not subject to
nre by attachment or garnishment process by other courts;
sby V. Spear, 08 Me. 543, 545, 57 Atl. 882, 883, holding replevin
lot be maintained in State court against trustee to recover
ierty in possession of and claimed by bankrupt at time of adjudi-
on and In hands of referee when action beg^ii^; Leigh v. Green,
Nebr. 354, 80 Am. Rep. 760, 86 N. W. 1007, holding tax lien-
ler may foreclose in State court, notwithstanding pendency of
on between other parties in Federal court, same land being
ched. See 80 Am. St. Rep. 762, 763, note.
yL 5 (X, 705). Replevin invalid against Federal marshal.
pproved in Mishawaka Mfg. Co. v. Powell, 08 Mo. App. 530, 72
V. 725, holding Rev. Stat. 1899, § 4463, permitting replevin of per-
Uty wrongfully detained, does not authorize sheriff to invade
eral court under bankrupt proceedings; Weeks v. Fowler, 71
H. 222, 51 Atl. 624, holding replevin in State court will not
!h goods taken by defendant trustee In bankruptcy, the goods
ig In custody of Federal court.
^ 792). Miscellaneous.
ited In Central Trust Co. v. Western, etc., B. R. Co., 112 Fed. 470.
ling even though Federal court confirms sale permitting pur-
ser to take full title, court will subsequently entertain supple-
ital bill and enjoin State court selling same.
U. 8. 186-196, 28 L. 395, ROSENTHAL v. WALKER.
fh 1 (X, 795). Bankruptcy — Statute runs from discovery of
tL
>proved In Faust v. Hosford, 119 Iowa, 100, 93 N. W. 59, holding
itiff not negligent in not resorting to record, where defendant's
t making investments for her represented mortgage taken as
nty was first mortgage; McMuilen v. Loan Assn., 64 Kan. 306.
m. St. Rep. 242, 67 Pac. 894, holding officer and agent misappro-
^ng money and fraudulently concealing defalcations, Statute
itations runs only from time of discovering fraud and breach of
Itlon; Texas Brewing Co. v. Mallette, 28 Tex. Civ. 465, 67 S. W.
holding debtor's chattel mortgage held from record for four
Ill U. S. 107-190 Notes on U. S. Reports.
months, misIeadlDg creditors, and recorded prior to bankruptcy, daL
of record reco^ized and void against trustee.
Syl. 4 (X, TOG). Tetter properly mailed presumed reaching
nation.
Approved in Atherton v. Atlierton, 181 U. S. 171, 45 L. 803,
Sup. Ct. 550, holding divorce suit in Kentucky and notice to a
resident meeting Kentucky Code re<iuirements, decree binds
same as though she resided in Kentucky; Pape v. Fergusen, 28 Izid.
App. 303, 62 N. E. 714, holding copy of letter proper in every respec*!
is admissible in evidence where addressee upon notice does Ti€>t
produce original, though notice was insufficient. See 83 Am. S^
Rep. C2G, note.
Ill U. S. 197-109, 28 L. 399, STEPHENS v. MONONGAHESJL.^
BANK.
Syl. 2 (X, 797). Statutory remedy exclusive recovering usurloixs
interest
Approved in Tucker v. Alexandroff, 183 U. S. 436, 46 Lu 270, SS2
Sup. Ct. 200, holding within treaty of 1832, Russian sent to serve
on cruiser may be deserter before crew is organized or ever steiJS
upon uncommissioned vessel; United States v. Norfolk, etc.. Ry-*
114 Fed. 685, holding another mandamus proceeding pleadable ii>
abatement of second mandamus proceedings instituted in samo
Jurisdiction wherein parties and questions Involved are same.
Distinguished in Haseltine v. Central Nat. Bank, 155 Mo. 74.
56 S. W. 807, holding under Rev. Stat. U. S., § 5108, providing that
where national bank charges illegal interest, person paying, may
within two years bring debt and recover twice amount paid,
principal sum must be tendered.
Syl. 3 (X, 797). Usurious interest paid not part principal.
Approved in Haseltine v. Central Nat. Bank, 183 U. S. 137. 4C ^
120, 22 Sup. Ct. 52, affirming Central Nat. Bank v. Haseltine, 1^5
Mo. 64, 55 S. W. 1017. holding national bank suing on note defeud-
ant cannot counterclaim for usurious interest paid, but must briufi
separate action under Rev. Stat. U. S. 1878, § 5198; First Nat. Ban^^
of Morristown v. Hunter, 109 Tenn. 97, 70 S. W. 372, holding under
Rev. Stat. U. S., § 5198, in suit by national bank defendant cannot
file cross-bill, but must sue separately to recover twice usury pa*"'
Charleston Nat. Bank v. Bradford, 51 W. Va. 258, 41 S. E. 154, Hom-
ing usurius interest paid national bank on renewing series of notc«
cannot, action by bank on last of them, be applied in satisfaction
of principal; dissenting opinion in Citizens' Nat. Bank v. Form^n,
111 Ky. 223, 63 S. W. 758, majority holding national bank dis-
counting note at usurious rate is "charging" not "taking" usvty,
and under Rev. Stat. U. S., § 5198, right to sue does not accrue "^^^^
note is discounted. See 85 Am. St. Rep. 538, note.
®T Notes on U. 8. Reports. Ill U. S. 200-242
^1-1 XJ. S. 200-215. Not citea.
^1 tJ. S. 21^223. 28 L. 40G. BURLEY v. GERMAN, ETC., BANK.
^yL 2 (X, 798). Answer denying everything excepted things
^^Uiltted.
-Approved in Alaslsa Ck>m. Co. v. Williams, 128 Fed. 365, holding
^^cretionary to permit filing of amended answer setting up new
**^^en8e materially changing issues, and which was not oflTered until
*^^er plaintiff had rested and defendant had occupied two days in
^tioducing evidence.
Hi U. S. 223-228. Not cited.
1X1 U. S. 228^242, 28 L. 410, HAYES v. MICHIGAN CENT. R. R.
SyL 1 (X, 799). Common law railroad liable, faulty construction.
Approved in Cudahy Packing Co. v. Anthes, 117 Fed. 120, holding
oxie inspecting an elevator is not a fellow servant of one whose
dYmties require him to ride on the elevator.
SyL 2 (X, 799). Municipal ordinance has force within city.
-Approved in Jackson v. Kansas C, Ft. S., etc., Ry. Co., 157 Mo.
S40, 58 S. W. 37, holding husband prone to wander, being killed
1>7 train, 8i>eed violating ordinance, plaintiff not guilty of contribu-
tory negligence, being temporarily absent from home; State ex rel.
Rose v. Superior Court of Milwaukee County, 105 Wis. 674, 81 N.
^- 1053, holding city council having legislative power with reference
^ granting street franchises for railways, a court cannot enjoin
passage of ordinance giving such use.
SyL 3 (X, 799). Ordinance requiring railroad must build fence.
Approved in Monteith v. Kokomo, etc., Co., 159 Ind. 153, 64 N.
®* Bll, holding act 1899. p. 234, $ 9, requiring machinery properly
^^*aj^^ed, plaintiff being injured, his complaint need only state
^e unguarding and defendant's negligence respecting same; Jack-
^^ V. Kansas C, Ft. S., etc., Ry. Co., 157 Mo. 642, 58 S. W. 38,
holding though deceased was a trespasser, nevertheless running
'<H*oiiiotive at too great speed, violating ordinance, was negligence
^^^ me; Mitchell v. Raleigh Electric Co., 129 N. C. 170. 39 S. E.
^'^» holding absence of insulation on wire of electric-light company
^^**ia facie evidence of negligence, city ordinance providing such
^*^^« insulated; International, etc., R. R. v. Richmond, 28 Tex. Civ.
^^ 67 S. W. 1031, holding statute requiring railroad to fence tracks,
**^I)any Is liable for killing plaintiff's animals that went through
^^^llng left for convenience of adjacent owner; Kilpatrick v. Grand
*^Xik Ry. Co., 74 Vt. 297, 93 Am. St. Rep. 892, 52 Atl. 534, holding
^^ ladder on cars In violation of statute, switchman who was
/^^^red thereby does not assume risks of violation and company is
lU U. !
242-252
Notes on U, S. Beporu.
Diatltiguished In Lake Shore, etc., Rj. v. Llidtke, 69 Obio
398, 69 N. E. 657. boldlng railroad not llflble for Injuries to
going oa track through opening in wire fence erected In pursoa
of Rev. Stat, i 3324.
Syl. 5 (X, SOOj. Railroad liable If Us neglect Injurea.
Approved Id Deserant v, Cerilloa Goal B. R. Co., ITS U. S. '
44 L. 1133, 20 Sup. Gt 9T2. holding att o( Congress, March 3, 1^
makes it imperative for owner to ventilate mine, nnil negligence
workman lu disregarding Instructions does not relieve owner; CI -m
horn T. Thompson. 82 Knn. 734, Gl Pac. 007, holiUng aetiona~J
negligence must result Id damage. In absence of wantonness, wb jM
result might have been reasonably seen by one of ordlnarj prudeu. ■
Neal V. Eendull, 08 We. 74, 7G. 77, 50 All. 211, 212, holding quests
for jury whether defendant was negligent in falling to keep id rl^s
of road, thereby causing collision; Mankey v, Chicago, etc.. By.,
S. Dak. 473, 85 N. W. 1014, bolding horse injured between ivhistl^
post and crossing, no statutory signal given, no recovery In abseg —
of evidence that such failure was cause of injury: Richmond l^E
etc.. Co. V. Uudgl'ns. 100 Va. 41ti, 41 8. E. 731). holding unua^
noise and smoke of street car, plaintiff Injured by his frlgbteczis
horse, defendant's negligence Inexcusable by showing plalnti i^
want of ordinary care; dissenting opinion In Maryland Clay ^M
V. Goodnow, 95 Md. 353, 51 Atl. 209, majority holding the dir —
cause of accident being negligence of fellow servant In making
train without brakes, plaintiff asaumed the risk.
Ill V. S. 242-252, 28 L. 415, TEAL v. WALKEB.
Syl. 2 (X. 802). Absolute deed as security Is mortgage.
Approved In Uewit v. Bank, &4 Nebr. 468, 90 N. W. 252, boldlV
not error to refuse Instruction, if note came from Nebraska. It m'^
be governed In provisions and effects by Nebraska law; Secui —
Trust Co. T. Loewenberg, 38 Or, 169, 62 Pac. 619, holding wh^
"JL" executed absolute deed, and at same time plaintiff executed
" L." written defeasance, legal title remained In " L." as mortga^=^
Syl. 3 (X. 802). Mortgagee taking possession entitled to rents.
Approved bi Commercial Bank v. Sandford. 103 Fed. 104. hold^
mortgagee of land cannot require purchaser of such land at C^
sale to account for rents received while tn possession under ^
tai deed: North Am. Trust Co. v. Burrow. 68 Ark. 586, Go S.
951, boldlng mortgaged prcperty sold under foreclosure. mortga^S
remaining in possession, purchaser cannot recover rent prior
notice to deliver possession and demand for rent: Louisville, el^
R. R. V. Schmidt, 112 Ky. T2,5, 00 8. \V. 030. holding luidertakl^
to restore premises to lessor at termination of lease, unless p^
vented by unavoidable casualty or legal proceedings, does i«
absolve lessee from turning property over in good repair In ca- ■
lease terminated by foreclosure sale of premises.
€80 Notes on U. S. Reports. Ill U. S. 25^276
Distinguished in Atlantic Trust Ck>. v. Dana, 128 Fed. 220, hold-
ing where at time of commencement of foreclosure of corporation
mortgage covering Income, property was In possession of receiver,
mortgagee by intervening in receiv^ship suit obtained priority ovef
judgment creditors subsequently intervening.
Ill U. S. 25^263. 28 L. 419, BORS v. PRESTON.
SyL 2 (X, 804). Without record Federal Jurisdiction not presumed.
Approved In In re Plotke, 104 Fed. 967, holding essential facts
^▼Ing court Jurisdiction of bankruptcy must appear afllrmatlvely
juid distinctly, as no presumption whatever will confer such.
Syl. 3 (X, 804). Original Jurisdiction regarding consuls not ex-
clusive.
Approved in Redmond v. Smith, 22 Tex. Civ. 325, 54 S. W. 637.
holding Federal Jurisdiction respecting consuls, under Rev. Stat.
U. S. 1878 (2d ed.), SS 563, 687, not exclusive of Jurisdiction of State
courts, no express provision to that effect; Ex parte Wilbarger, 41
Tex. Cr. 520, 55 S. W. 971, holding legislature establishing corpo-
rate court in such municipality not Invalid, conferring both State
«nd municipal Jurisdiction, same not being exclusive; Scott v. Hobe,
108 Wis. 242, 84 N. W. 182, holding Jurisdiction of cases affecting
consuls, vested by Const U. S., art. 3, $ 2, in Federal courts, is
original not exclusive Jurisdiction barring State courts.
Syl. 4 (X, 804). Citizen and alien within Federal Jurisdiction.
Approved in Redmond v. Smith, 22 Tex. Civ. 324, 325, 54 S. W.
C37, holding dismissal of action on note as to one defendant, ofher
pleading suretyship for him, would not alone warrant dismissing
latter without hearing suretyship evidence.
Ill U. S. 264-276, 28 L. 423, LOVELL v. ST. LOUIS MUT. LIFE
INS. CO.
Syl. 5 (X, 805). Executory contract prevented party may rescind.
Approved in Roehm v. Horst, 178 U. S. 14, 44 L. 959, 20 Sup. Ct.
"785, holding unqualified and positive refusal to perform contract,
performance not due, may. If renunciation as to whole, be sued
^ormance; Supreme Council A. L. H. v. Black, 123 Fed. 654, holding
"Where purchaser of goods wrongfully breaks contract of sale, seller
may sue on quantum valebat for compensation for bis partial per-
formance; Supreme Council A., L. H. v. Black, 123 Fed. 654, holding
incorporated insurance company arbitrarily changing amounts pay-
able on policy, a member not consenting to reduction may rescind
and sue for amount paid therein, and affirming Black v. Supreme
Council Am. Leg. of Hon., 120 Fed. 583, holding incorporated in-
surance company illegally changing Its laws reducing amount pay-
able beneficiaries, nonassentlng member may rescind his contract
and be restored to former status; In re Stern, 116 Fed. 606, holding
Ill U. S. 27IJ-319 Notes on V. S. ReiJorU.
petitioner Id involuntary bankruptcy Justified where Ice coropa
forced new contract upon customer, thus Increasing coat of Ice fr-«
00 ceuts to ?1.50 per ton; In re Swift, 112 Fed. 319. holdlai; wl«.^a=»e
filing petition in bankruptcy operates as breach of executory c^«::»3i-
tnict, other party may prove claim for dumageB, as existing al
filing of petition; Laclede Power Oo. v. Stlllwell, 87 Mo, app. ^E^W,
71 S. W. 382, holding company contracting to talie electric po^c^^'^
for Bve years and mablDg assignment for creditors' benefit, dxm *^*1
ages provable against assigned estate; Pippen v. Mutual, etc.. K J^^i^J
Co., 130 N. O. 25, 40 S. B. 823. holding infant snrrendMing poIi«:^J
and not receiving full amount as per terms, there could b« r^^
reafflrmance by him or his representatives, contract void ab initio. I
111 U. S. 27(i-203, 28 L. 42T, RECTOR v. GIBBON.
Syl. 1 (X, 80(!j. Lessee's possession Is possession of lessor. ^^
Approved in Slttel v. Wright. 122 Fed. 435. holding lease of >
property in Indian Territory in violation of law will not prevent
landlord's recovering after expiration of lease; Sumpter v. Arkansas
Nat. Bank. 00 Ark, 233. 62 S. W. 581, holding where " S." held land
as tenant of " G.," be was estopped from disputing " G.'s" title
while In possession and " S.'s " heirs acquire no greater rights.
Syl. 2 (X, SOti). Publie land —Congress aids innocent in defective
title.
Approved In Manley v. Tow, Ilu Fed. 248. holding knowing
complainant was iu open possession of land, defendant purchasing
of railroad cannot be bona Sde purchaser, and issuance of patent
111 U. S. 2S3-313, 28 L. 433, COCHRANE v. BADISCHE AXILIN.
ETC.
Syl. 7 (X. SOT). Artificial alizarine not infringement different
■ubstance.
Approved In Fnrbenfabrlben Co. v. United States, 102 Fed. 004,
holding coal-tar dyes not derived from anthracene arc not " nrtlfldal
alizarin dyes," within meaning of free list of tariff act of 1804.
affirming 99 Fed. 555.
Ill U. S. 313-319, 28 L. 440. AEMOUR v. HAHN.
Syl. 1 (X. 808). Master and servant — Master cannot Insure
absolute safety always.
Approved In Kansas City. etc.. Ry. v. Bitllngslea, 116 Fed. 340,
holding yards being dangerous, railroad switchman being Informed
by foreman of bis clearing; same, and he remaining, assumed risks
relative to injury received; Stevens v. Chamberlln. 100 Fed. 381.
holding machinist whose duty was to make general repairs when
directed by superintendent was fellow servant of another employee.
the two working together In tills instance; Barby v. Southern lad.
GU Notes on U. S. ReporU. Ill U. S. 319-34G
R. R. Co.. 30 Ind. App. 411, 66 N. E. 73, holding employee on con-
struction train does not assume risk of negligently running train at
night with headlight behind box car, collision with hand car
occurring; City of Ft Wayne v. ChrlsUe, 156 Ind. 181. 59 N. E. 388,
holding superintendent being vice-principal, city is liable for injury
to laborer working in trench under directions of superintendent;
Zelhirs v. Missouri Water, etc., Co., 92 Mo. App. 127, holding
plaintiff assumes ordinary risks, but not extraordinary, such as work-
ing over pit of hot water, the existence of which was unknown to
him; McLaine v. Head & Dowst Co., 71 N. H. 296, 52 Atl. 546,
holding employer hiring competent men, foreman's failure to warn
laborer in deep trench when load was to be dumped, no breach of
master's duty: Heald v. Wallace, 109 Tenn. 366, 71 S. W. 85,
holding experienced miner working under overhanging rock for ten
hours with knowledge, and augmenting danger by undermining
support, causing it to fall, guilty of contributory negligence.
Distinguished in Highland Boy Gold Min. Co. v. Pouch, 124 Fed.
151. holding plaintift did not assume risks of working in completed
mine chamber where he notified foreman of defective timbering, who
promised to remedy defect; Beattie v. Edge Moor Br. Works, 109
Fed. 234, holding defendant bridge builder, having responsibility
of providing safe place for his workman in which to work, cannot
avoid liability on ground of fellow servant; Bums v. Merchants,
etc.. Oil Co., 20 Tex. Civ. 227, 63 S. W. 1063, holding though " C."
and deceased were fellow servants with respect to general employ-
ment, he represented oil company in providing safe place at time
of Injury.
Syl. 2 (X, 808). Experienced carpenter negligent stepping on un-
secured timber.
Approved in Davis v. Trade Dollar, etc., Co., 117 Fed. 125, hold-
ing foreman of one mining shift is fellow servant with members
of other shifts, and master not liable for injuries from his negligence.
Syl. 3 (X, 809). Negligence of fellow servant prevents recovery.
Approved in Hobson v. New Mexico, etc., R. R., 2 Ariz. 182, 11
Pac. 550, holding teamster employed by railroad in construction
work is not fellow servant of engineer of construction train; Direct
Nav. Co. V. Anderson, 29 Tex. Civ. 66, 69 S. W. 175, holding tugboat
deckhand stepping on siphon on deck and Injuring himself assumed
such risk, it being part of his duty to clear deck.
Ill U. S. 319-335. Not cited.
Ill U. S. 335-346, 28 L. 447, MOULOR v. AMERICAN LIFE INS.
CO.
Syl. 3 (X, 810). Insurance — Parties may agree bound by truth.
Approved in Standard Life & Accident Ins. Co. v. Sale, 121 Fed.
668, holding policy providing for absolutely true answers otherwise
Vol. 11 — 41
Ill U. 1
Notes on C, S, Reporte.
to be yoi6, answers thereto are wnrrnntfes and not mere represen-
tations upoD belief or Insurort: Hnbtinrd v. Mutual, etc., Assn.. HW
Fed. 721. 722. holding insurnnce application warranting answers
and slalementfl "full, complete, true," otherwise policy "null and
void." apptlcaiion and policy are one binding insured and bene-
ficiaries; Dliulck T. Metropolitan Life Ins. Co., 67 N. J. L. 373,
51 Atl. S!)4, holding warranty by applicant tor insurnnce policy.
made part of contract. Is condition to liability of the insurer;
dissenting opinion in M'MaBtcr v. New Yort Life Ins. Co., 99 Fed.
878. majority holding agent's agreement that policy have effect
from delivery and poyment of premium Instead of from accept-
ance as per jiollcy, company's acceptance embodies application.
DiBtlngniahed In McGlaln v. Provident, etc., Soc, Il>3 Fed. 835,
bolding policy Issued tn consideration of " statements knd agree-
ments" in application, insured signing, he understood questions
and warranted answers, nullifies policy, any answer UDtru&
Syl. 4 (S, 810). Equivocal statement in Insured's favor.
Approved in Liverpool & L, & G. Ins. Co. v. Kearney. 180 U. S.
13G, 45 L. 402, 21 Sup. Ct. 328, holding insurance covenant and
agreement requiring the keeping of books showing complete busl-
ness is satisfied if they fairly Show to man of ordinary Intelligence;
McCIain V. Provident, etc.. Soc., 110 Fed. 80. 88, holding statements
In Insurance application made In good faitb, no Intention to conceal
or suppress truth, not being materiai to risk, are bnt representa-
tions; Fidelity Mut L. Assn. v. Jeffords, lOT Fed. 400. holding
answers to questions In Insurance application unless clearly in-
tended to be warranties by both parties are construed representa-
tions only; Globe Mut.. etc., Assn. v. Wagner. 188 III. 137. 13S. 5S
N. £1. 970, boldiiig statement of insured that be had no brotber
dead, though false, policy, absence of fraud, not avoided tiy sign-
ing " I wai'iant truth of all ajiswers;" Henn v. Metropolitan Life Ins.
Co.. 67 N. J. L. 312, 51 Atl. 600, holding queslion relating to matter
Insurer should know tnnt Insured could not fully answer is warranty
only to liellef of Insured; Hemlngton v. Fidelity, etc., Co., 27 Wash.
441, 67 I'ac. 893, holding employer abiding by terms of surely
bond and in cei-tillcnte for renewal states employee's accounts are
correct, statement representation, expert necessary to detect defal-
cation.
Syl. 5 (X, 812). Policy and application conflicting, policy controls.
Approved in McDermott v. Modern Woodmen. 07 Mo. App, B50.
71 8. W. 837, holding application falsely stating that applicant had
not consulted any doctor for seven years constitutes breach of
worranty without regard to ailment.
Syl. 6 (X, 812). Good faith answers queslion for jury.
Approved in Home Life Ins. Co. v. Fisher. IS8 U. 8. 728, 23 Sup.
Ct 381, 47 L. 669, holding demurrer sustained to breach of insnranc* <
'nrranty not prejiidldol tbougb erroneous, jury finding tnr plalD-
(T, instruction Ijelng otherwiee If insured's answers were v
. Des Moines Life Assn., 115 Iowa, 673, ST N. W. 399,
oldlng appllcnnl stating Blie bad never spit blood means sueb ss
easonuble persons might suppose HI bealtb affecting ber desirability
s a risk.
11 n. 8. 347-350, 28 L. 451, UNITED STATES t. OARPENTEK.
SyL 1 (X, S12). Public lends — Laods wltbdrawu Indian treaty
latent Invalid.
Approved In King v. McAndrews, 111 Fed. 873. 874. boUllng tlu-
emedy for mistakes of law or fact In Issue of land patent within
nrisdIctloD of department Is a direct proceeding by bill in pquliy;
ling V. M'AJidrewa, lOJ Fed. 432, holding patent Issued under
lomeatead taw, showing on face that land therein had been ai>-
iroprlHted, Is void and not admissible In evidence to establish title.
11 D. 8. 350-356. 28 L. 452. CHAMBERS v. HARRINGTON.
Syl. 3 (X, 813>. Work ore claim good aggregating several.
Approved In Penn v. Oldhnnlier. 24 MonL 200, 61 Pac. 050. bold-
ng miners' custom of twenty days' labor equal to JlOO worth of
vork Is void, conflicting with Rev. Stat. U. S., | 2324, the value
>elng Ibe test See 87 Am. St. Bep. 412. i
111 U. S. 336, 357. 28 L. 454, EILERS v. BOATMAN.
Byl. 1 (X, 814). Hlnefl and minerals — Location notice finding
>f fact
Approved Id U'Intosb t. Price, 121 Fed. 718. holding locator
;)la(.-er claim suOlciently compiles with law regarding marldngs If
Qe refers to some corner of prior claim, and places at each comer
substantial stake: Burke v. McDonald. 3 Idaho. 3%, 29 Pac. 101.
Holding "valid mining location being where prospector la willing
to spend time and money." misleading In charge to Jury If " will-
ing" la changed to "Justified."
HI O. 8. 358-361, 28 L. 455. HOUSTON. ETC., HT. ». 8H1BLET.
Syl. 1 (X, 814). Citiiensbip must exist from beginning suit.
Approved in Green v. Heaaton, Recr., 154 Ind. 130, 56 N. G. 88.
holding petition for removal not showing diverse " citizenship " at
nommencement of action and of removal application Is insufficient
by showing "residence." unless pleadlnga show.
SyL 3 (X. 815). Removal of cauaes — Substituted party subject
liabilities of predecessor.
Approved in Kidder v. Northwestern Mut. L. I, Co., 117 Fed,
990. holding original ilefendanl having lost right of removal to
tederal court, petitioner cannot intervene for that purpose by
connecting themselves after the loss; Speckert v. German Nat Bank,
i
Ill U. S, 3G1-3S0 Notes on U. S. Reports. M4
08 Fed. 154, holding national bank receiver is proper but not nec-
essnr}* party In action against banic, hence his connection therein
permits no removal, statufe requiring necessary party.
Ill U. S. 3G1, 3G2. Not cited.
Ill U. S. 3G3-373, 28L L. 457, BLAIR v. CU»nNG COUNTT.
Syl. 1 (X, 815). Nebraska county liable for precinct bonds.
Approved in Clapp v. Otoe Co., 104 Fed. 479, holding Nebraska
county commissioners issuing bonds upon favorable vote of pre-
cinct electors under Comp. Stat. Nebr. 1899, are bonds of county
whose board issued them.
Syl. 2 (X, 815). County bonds — Seal and chairman's signature
makes valid.
Approved in Board of Comrs. v. Vandriss, 115 Fed. 870, holding
act authorizing township board to issue bonds, validity does not
depend, upon every member signing if sealed by cl^k and signed,
by trustee.
Syl. 3 (X, 815). Counties — Improving river for gristmill validw
Approved in Dodge v. Mission Tp., 107 Fed. 831, holding statutes ^:^mjU
permitting issue of bond for public improvements, mills and fac-
tories to manufacture sorghum cane into sugar being private are
outside the statute; Great Western Nat. Gas & Oil Co. v. Hawkins
30 Ind. App. 571, G6 N. E. 769, holding natural gas company canno
exercise right of eminent domain by alleging that realty is necessa
for its pipe line, public use must exist
111 U. S. 373-378. Not cited.
Ill U. S. 379-389, 28 L. 4C2, MANSFIELD, ETC., RY. v. SWAN.
Syl. 1 (X, 816). Removal of causes — Citizenship of Territory.
Approved in Watson v. Bonflls, 116 Fed. 160, holding nation;
<jourt has no jurisdiction of suit involving controversy betwe
<iitizen of State and citizen of Territory, and same cannot
remedied.
Syl. 2 (X. 816). Diverse citizenship must exist at beginning.
Approved in German Sav., etc., Soc. v. Dormitzer, 116 Fed. 4'^^^^^J72,
holding since complaint in State court and petition for remov-^^^^^val
did not show citizenship, jurisdiction of Federal court fails, p^^r^-^K^re-
sumption being against necessary citizenship; Whitworth v. Illin
Cent. R. R., 107 Fed. 560, holding filing petition and bond therefor
State court, removal was complete, and State court should ha^^^^^*^^
proceeded no further in the cause; Green v. Heaston, Recr., 154 I^^cr -nd.
129, 56 N. E. 88, holding when right to remove is claimed u
diverse citizenship, the citizenship of each party must be all
not their residence; Thompson v. Southern Ry., 130 N. C. 142, ^^
ois
In
It
I'ed,
045 Notes on U. S. Reports. Ill U. S. 379-389
S. E. 10, holding foreign corporation become domestic under act
Congress February 10, 1899, cannot remove without specificallj
alleging nonresidence.
Syl. 3 (X, 816). Citizenship must appear pleadings or record.
Approved in In re Plntlie, 104 Fed. 967, holding Bankruptcy Court
has Jurisdiction if essential facts appear affirmatively and dis-
tinctly, but allegations laclving these qualities. Jurisdiction not
presumed; Wahl v. Franz, 100 Fed. 682, holding within Judiciary
act 1888, probate of will not " suit of civil nature at common law
3r equity," and therefore not removable from Arkansas court;
Freer v. Davis, 52 W. Va. 12, 43 S. E. 168, 94 Am. St Rep. 905.
molding final decree against plaintiff*s bill does not estop his assert-
ng, upon appeal, that court below had no Jurisdiction in the matter.
Syl. 4 (X, 817). Citizenship not appearing Supreme Court reverses.
Approved in Great Southern Fire Proof Hotel Co. v. Jones, 177
U. S. 453, 44 L. 844, 20 Sup. Ct 691, holding citizenship of individual
members limited partnership under Pennsylvania laws must be
alleged in suit by association in Federal court, diverse citizenship
determining Jurisdiction; Central Grain & S. Exchange v. Board of
Trade, 125 Fed. 466, holding party appearing specially to object
to Jurisdiction or to move setting aside service of process does not
waive illegality thereof by answering after denial.
Syl. 7 (X, 818). Supreme Court dismissing appeal no costs.
Approved in Anglo-American Prov. Co. v. Davis, etc., Co. (No. 2),
191 U. S. 377, 378, holding Federal Circuit Court deciding its juris-
diction and unconstitutionality State law favor of, and merits
against plaintiff. Supreme Court cannot review latter on appeal.
Syl. 8 (X, 819). Supreme Court determines Circuit Court Juris-
diction.
Approved in Deiiance Water Co. v. Defiance, 191 U. S. 194, hold-
ing bill by water company against municipality, that ordinance
impaired rental contract between them, was improperly entertained
by Federal Circuit Court, Irrespective of diverse citizenship; Con-
tinental Nat. Bank v. Buford, 191 U. S. 120, holding question of
Jurisdiction arising on face of record, Federal Supreme Court must
first consider that before reviewing judgment of Circuit Court;
dissenting opinion in Giles v. Harris, 189 U. S. 502, 23 Sup. Ct. 04«,
47 L. 918, majority holding absence of averment in bill in Circuit
Court, Jurisdictional amount disputed not available on appeal. Su-
preme Court raising another ground; dissenting opinion in Freer v.
Davis, 52 W. Va. 16, 43 S. B. 170, 94 Am. St. Rep. 908, majority
holding where plaintiff's case has been adjudicated in court having
no Jurisdiction, appellate court will reverse same and award costs
against him.
lU U. S. 380-412 Notes on U. S. ReporU,
Syl. 9 (X, 81fl). Circuit Court no Jurisdiction Judgment reversed.
_ Approved lu Riser v. Southern Ry., 116 Fed. 1014, holding ordjr
rem'anding cause to Stnte oourt, nature of llnal Judgment and tai-
able within meiiulng of Rev. Stat, | S24,
(X, 81G). Miscellaneous.
Cited in De Llnin v. BIdwell. 182 D. S. 174. 45 L. 1047. 21 Sup.
Ct. T44, holding defendant's rlgbt to contest Jurisdiction State coun
where action brought and sufficiency of facta uot lost by removal
Federal court upon defeodaut's own petition.
Ill U. S. 389-305, 28 L. 468, HORNBUCKLE v. STAFFORD.
Sjl. 2 (X, 819). Decree in evidence pleadings are admissible.
Approved In Hoard of IJquidation v. Louisiana ei rel. Wilder.
179 U. S. «40. 45 L. 354. 21 Sop. Ct. 270. holding though Supreme
Court exercises Independent Jurisdiction regurdlng contracts, when
Its Jurisdiction Is luvoked lu doubtful cases it will lean toward views
of State courts; United States Trust Co. v. Territory. 10 N, Mei.
428, 62 Pac. 991, holding assessing railroad, . part being tainble,
number of miles determined does not invalidate assessment because
differing from number of mites In original assessment.
Syl. 3 (X, 819). Esclusion of evidence as harmless error.
Approved In Snowden v. Loree. 12S Fed. 420, holding admission of
deposition In evidence for all purposes harmless eri
ought not to have changed reauU.
Ill U. S. 395-^00, 28 L. 466, GAINES v. MILLER.
Syl. 2 (X, 820), Money equitably owing action therefor lies. ''
Approved in Richardson v. Drug Co., 92 Mo. App. 532, holding
action on common counts for money had and received by defendant
to plalutiCt's use lies whenever received money should In equity
be paid to owner.
Ill U. S. 400-412, 28 L. 470, CLAIBORNE COCNTT v. BROOKS.
Syl. 1 <X, 820). Express power validates county commercial
paper.
Approved In Watson v. Huron, 97 Fed. 450, holding warrants,
negotiable In form. Issued to secure location of capital, being clearly
illegal, are void in hands of any holder, notwitb standing recitals.
Syl. 3 (X, 822). Local decisions municipal power followed.
Approved In Blnylock v. Incorporated Town of Muskogee, 117
Fed. 126, holding Congress adopting Arkansas statute as law for
Indian Territory, presumption eilsts of adopting constmctlon as
rendered by Arkansas Supreme Court; New York Life Ins, Co. t.
Board of Comrs., DO Fed. 855, holding legislative declaration as to
the nature and character of claim is not conclusive upon the courts
S47
Notes on U. S. KeportB. Ill U. S. 412^72
vlien It becomes matter of judicial Inquiry; Pickeua Tp. v. Post.
O Fed. 602, boldlng Slate Supreme Court declaring bond statute
inccnstltutlonal not conclusive on Federal court, wliere boua Qde
lurcbaser'B riglitB accrued prior to decision: Hubtiell v. Town or
luster City. 15 S. Dak. 61, 87 N. W. 521, lioldlng municipal
rarranis not being negotiable instrument does not exclude Inquiry
f legatee In bona fide holder nor preclude available defenses against
rlglnal payee; dlt^senClng opinion In In re Falconer, 110 Fed. 117,
aajority holding Arkansas statute exempting J500 to heads of fam-
lies, bankrupt's schedule being lees may be amended to include
olance from money In tnistee.
(X, 820). Miscellaneous.
Cited in Witter v. Board of Suprs. Of Polk County. 112 Iowa,
89. 83 N. W. 1044. holding under Code, {| 447, 448. Iowa, authorlz-
ag counties to borrow money to erect public buildings, does uot
xpressly or impliedly permit Issuing negotiable bonds.
11 U. S. 412-440, 28 L. 316, SLIDELL t. GRANDJEAN.
Syl. G (X. 823). Public property grants doubtful against grantee.
Approved in Sena t. United States, 180 U. S, 239, 23 Sup. CL 598.
7 L. 791. bolding Spanish land grant not confirmed In Court of
'rlvate Land Claims, same passed to United Stales under treaty
848. same abandoned nine years before; Muncle Nat. Gas. Co. v.
luncle, leo Ind. 112, GC N. S. 442, holding city ordinance permitting
:!i8 company to use streets, providing certain price of gas was
lot exceeded, the maximum scale was Intended; Nashville M., etc.,
:o. V. Davidson County, 10ft Tenn. 2il3, 61 S. W. W. holding ex-
liLsive privilege granted by charter to turnpike company, thougb
□violable contract wltb the State, must yield to public use. Just
ompensation being made.
11 U. S. 440-448, Not cited.
11 U. 8. 441H72, 28 L. 482. AMES T. KANSAS.
Syl. 1 (X, 824). Removal — Quo warranto suit civil nature.
Approved In State v. Standard Oil Co.. 61 Nebr. 33, S4 N. W, 414,
lolding foreign corporation committing criminal acts violating antt-
mat law I91a. Comp. Stat. 1899. Nebraskal. may by quo warranto
le excluded from State; Fordyce v. State, 115 Wis, all, 92 N. W.
31, holding quo warranto proceedings by State under Itev. StaL
898, chap. 149, Wisconsin, to determine right of person to bold
fflce of county school superintendent, is In nature of civil action;
tate V. Froat, 113 Wis. 645, 89 N. W. 018. 919. 823. holding proceed-
iga by State to enforce purpose not penal la " of a civil nature,"
jider Acts of Congress 1888. chap, 866, |g 1, 2, and permiu remoTal
0 Federal court
I
Ill U. S. 472-48C Notes on U. S. ReporU.
Syl. 3 (X, 825). Equivocal Federal statute raises Federal question.
Approved in American Water- Works, etc., Co. v. Home Water Co.
115 Fed. 177, holding nllegation that subsequent enactment annul
prior contract of exclusive franchise of streets raises Federal qu
tion, requisite amount being involved, regardless of citizenship
Southern Ry. v. North Carolina Corp. Comm., 97 Fed. 514, holdin
railroad claiming assessments levied without legal authority an
same was discriminative involves Federal question of prohibitin
taking property without due process of law.
Syl. 4 (X, 826). Jurisdiction not exclusive, other courts esta
lished.
Approved In Ex parte Wilbarger, 41 Tex. Cr. 520, 55 S. W. 97
holding under Const., art. 5, § 1, legislature may establish oth
courts unless former courts had exclusive jurisdiction.
Syl. 5 (X, 826). State quo warranto Federal nature removable.
Approved in Hickman v. Missouri, etc., Ry., 97 Fed. 116, boldi
railroad commissioners of Missouri suing railroad, under S
statute, to enforce obedience to fixed rate. State not real party
interest, preventing removal.
Ill U. S. 472-477, 28 L. 491, ALLEY v. NOTT.
Syl. 1 (X, 816). Removal petition after general demurrer iq.
operative.
Approved in Winkler v. Chicago, etc., R. R. Co., 108 Fed.
holding time to plead being by courrt order in Indiana, nn.<
Judiciary act 1887-88, record on removal must show that
court extended time; Goldtree v. Spreckles, 135 CaL 669, 67
1092, holding demurrer sustained two of three allegations, defends
answering third, plaintiff dismissing as to it, not amending
plaint, trial, judgment for defendant.
Ill U. S. 477-479, 28 L. 477, UNITED STATES v. BELL.
Syl. 1 (X, 828). United States — Action paymaster's bond ^a-^-
thentlcated transcript admissible.
Approved in United States v. Lew Poy Dew, 119 Fed. 789, hol<* ^ ^^
United States commissioner's certificate Chinese right to retx^^ ^^In
inadmissible, proving prior adjudication of defendant's rlgh^ -^aot
being certified copy but mere recital.
Ill U. S. 479-48G, 28 L. 478, ANDERSON v. PHILADELP:
ETC., CO.
Syl. 1 (X, 828). Banks and banking — Party on books lial>l-
shareholder.
Approved in Matteson v. Dent 176 U. S. 530, 44 L. 575,
Ct. 423, holding Probate Court allotting bank shares to wido'
heirs who let same remain in name of deceased on books are
if bank ^)ecomes Insolvent; Hurlburt v. Arthur, 140 Cal. 109, T-
as
■■ Notes on U. P. Iteports, 111 U. S. 18C-522
, holding bolder of bank slock na collateral accuritf exempt
31 liability to credttora, provided bla name ao appears on corpo-
I3-I. 3 (X. S28). Banks and Banltlng — No atockholder'a riglit,
tr not liable.
Approved In Hankln v. Fidelity Trust Co., 189 U. 8. 248. 252, 23
p. Ct. 555, 55T. 47 L. 705. 707. boldliig pledgee of national bank
'Cfe not liable for bank debts as " eharetiolder," unless he bas
^ome In Tact owner or bas so represented himself; Iligglue v.
3«llty Ins.. etc, Co.. 108 Fed. 477, holding pledgee of national
nk stock wltb power of transfer not liable as stockbolder for
s^ssment by transferring on books to employee as trustee; Hayes
S^ldelity Insnrance. Tniet & Safe Dep. Co., 1(B Fed. 1(50, holding
&^gee of national bank stock, with power of trnnafer. not liable
*" assessment by transferring on books to trustee who holds for
»t:h; Wilson v. Uerchants' h. & T. Co., 03 Fed. 601. boldlng pledgee
national bank stock, power of nttoniey to transfer on books, not
i-l)Ie as shareholder nnder ttev. Slat., f 5151, bank becoming in-
•I vent-
>- a D. S. 488. «7. Not cited.
^1 U. 8. 488-480. 28 I.. 4'J2. TEXAS. ETC.. BY. t. MURPHT.
Syl. 1 <X. 829). Original Judgment prerented rehearing, petition
entertained.
Approved in Tullla v, I.nke Erie, etc., It. R.. 103 Fed. 557, ho!d-
C^g where pown of court over judgment Is retained, bill of cxcep-
*oB8 may be settled at same or later term; Lincoln v. Flral Nat.
i*ank. 64 Nebr. 732. 90 N. W. 877, holding law nctiou reviewable only
:^j proceeding In error, motion Tor new trial being seasonably pre-
sented, time of beginning proceedings runs from ruling only,
m U. S. 400-499. 28 I-. 403. EAGLETON MFG. CO. c. WEST; ETC.,
MFG. CO.
Sjl. 2 (X, 830). Patent — Administrator's amended application
Kieeds new oath.
Approved In John R. Williams Co. v. Miller, etc., Co.. 107 Fed.
=HI2. Holding new claim being Inserted In patent application by
sijpllcant's attorney, without new oath, patent not invnlidated us
10 such claim, same being In prior s pec i ilea t ion.
Ill V. B. 499-505. Not cited.
m U. 8. B05-B22, 28 L. 408. PACIFIC B. B. v. MISSOURI PAC.
R. B.
1
Syl. 3 (X. 831).
Corporatiop
prevented
defending
for
^io
sure.
equity relieves.
Approved in Kirk
v. United
States, 124
Fed.
341,
hold
ng
void
4
Ill U. S. 02;M)48 Notes on U. 8. Report*.
proceedings in Federal District Court of Georgia, execution fooni
thereupon, same may be restrained by Federal Circuit Court
New Yorli.
Syl. 5 (X, 831). Federal court decreeing sale may reverse.
Approved in Virginia-Carolina, etc., Co. v. Home Ins. Co.,
Fed. 3, holding bill in Federal court to restrain further actions at
law, liability of insurers to be determined under bill, was ancilL — ^g^
and maintainable in Federal court, affirming Home Ins. Co. y,
Virginia-Carolina, etc., Co., 100 Fed. 687, holding where suit i ^ qjj
ancillary to legal action, within rule determining Federai Juris ^:^^n^
tion, same can be maintained without regard to citizenships or
residence of parties; Gableman v. Peoria, etc., Ry., 101 Fe<l.« 5,
holding State action for damages for personal injury against -xr^^lh
road receiver, appointed by Federal court, not removable^ be>j
purely under State law.
Ill U. S. 523-529. 28 L. 505, BARRETT V. FAILING.
Syl. 3 (X, 832). Divorce cuts off dower or curtesy.
Approved in Hatch v. Small, 61 Kan. 245, 59 Pac. 263, hold
under statute and decree of divorce the wife's dower was forfei
and lost, hence had no Inchoate right in land conveyed.
Ill U. S. 529-541, 28 L. 507, THOMPSON v. FIRST NAT. BANK-^
Syl. 2 (X, 832). Exception excluding letter must state contents.
Approved in Atchison, etc., Ry. Co. v. Phipps, 125 Fed. 480, hold-
ing admission in rebuttal of testimony, properly rebuttal evidence,
not error for reversing judgment, because other evidence of sam6
nature was introduced in chief.
Syl. 3 (X, 833). One representing himself liable as partner.
Approved in Sheldon v. Bigelow, 118 Iowa, 590, 92 N. W. 703,
holding action on partnership note in holding son, mother's state-
ment that she continued business to aid her son in establishing
liimself was admissible; Deavitt v. Hooker, 73 Vt. 146, 50 Atl. 801.
holding transaction being completed without disclosing agency of
seller, latter*s assignee in insolvency not entitled to have him de-
clared a partner.
Ill U. S. 542-548, 28 L. 512, SPINDLE v. SHRBVE.
Syl. 2 (X, 834). Person may establish trusts restraining alienation.
Approved in Guernsey v. Lazear, 51 W. Va. 336, 41 S. E. 408.
holding will setting apart realty In trust, profits applied to use of
testatrix's husband, same free from past and future debts, valid
to that extent.
Syl. 5 (X, 834). Place of property determines beneficiary's debts.
Approved in Thompson v. McConnell, 107 Fed. 36, holding de-
cisions of State court showing State's policy to liberally constro
s^
/
651
Notes on U. S. Reports. Ill U. S. 549-5G5
"* Exemption statutes is binding on Federal courts regarding their
executions.
'^i TJ. S. 545^-556. Not cited.
H tJ. S. 556-565, 28 L. 517, CARROLL CO. v. SMITH.
Syl 1 (X; 835). Unconstitutional bond issue Invalidated notwitn-
tanding recital.
-Approved in dissenting opinion in City of Pierre v. Dunscomb. 106
e^. G20, majority holding Constitution prohibiting municipalities
lourrlng indebtedness beyond limit, bonds beyond limit void, there
^tng no recitals.
SyL 3 (X. 835). Court determines bond validity, for itself.
-A.i>proved in Security Trust Co. v. Bluck River Nat. Banic, 187
. S. 226, 23 Sup. Ct. 57. 47 L. 154, holding where nonresident
^n.er is barred by State statute in claims against decedent's estate,
• crxinnot sue administrator in Federal court; Mather v. San Fran-
500, 115 Fed. 45, holding Cal. Code Civ. Proc, $ 337, requiring
^lon on written instrument within four years, same applies to
-^x-est coupons attached to municipal .bonds after maturity; Brims-
^:?lc:, etc., Co. v. National Banic, 112 Fed. 815, holding Federal court
"^ l)Ound to follow State Supreme Court decision construing stat-
^» liability accruing prior to construction, or court subsequently
'xXiting correctness of construction; Southern Ry. v. North Caro-
^^ Corp. Comm., 99 Fed. 165. holding highest State court's con-
"^x cation of State statute, whether repealed by subsequent statute,
'^nized as authoritative by Federal court, except where prior
^8 are affected; Kelly v. Cole, 63 Kan. 393, 65 Pac. 675, holding
interest coupons, attached to municipal bonds, are not
^Xided indebtedness actually existing" within legislative
xiing.
^^^?"L 4 (X, 836). Voters voting determine majority.
^X)proved in Pickett v. Russell, 42 Fla. 139, 28 So. 771, holding
and qualified voters " being those on county reglstra-
books, special election not avoided, registration books not
led before, if opened prior to general election; In re Denny,
llnd. 122, 59 N. E. 366, holding votes at general election exceed-
664,000, proposed constitutional amendment receiving 240,031,
not receive majority of State electors; Montgomery County
•al Ct V. Trimble, 104 Ky. 638, 47 S. W. 776, holding two-thirds
being necessary to incur county Indebtedness, same acconi-
if that number votes are on that question, irrespective of
Ms; Foy v. Water District, 98 Me. 85, 56 Atl. 202, construing
^^«r constitutional requirement of majority vote, majority vote of
of February 26, 1903; Shearer v. Bay County Supervisors, 128
^^"•i. 656, 87 N. W. 790, holding county road system made operative
Ill U. S. 5GG-5D7 Notes on U. S. Reports. e52
electors voting is sufficient; Tinkel v. Griffin, 20 Mont 432, 68 H^ac
8G1, holding majority of all votes cast at general election beim.^^ on
question favoring indebtedness is sufficient, though not maj<^'^ity
of all electors voting; Davis v. Brown, 46 W. Va. 719, 34 S. E- ^340,
holding relocation of county seat carried If three-fourths o^^ an
votes are cast on that question, though a less number is ca^-^- qq
others.
(X, 835). Miscellaneous.
Cited in In re Denny, 15(> Ind. 142, 59 N. E. 373, majority hc^l-^^jng
constitutional provision directing submission of two or mor& ^^q.
posed amendments, electors voting •*for" or "against" separs, -t <ij,
does not mean ^laJority vote to adopt.
Ill U. S. 5C0-584, 28 L. 520, COLT v. COLT.
Syl. 5 (X, 837). Executors are accountable for legacies.
Approved in Jordan v. Taylor, 98 Fed. 046, holding executor not
having settled his final account, residuary legatee cannot sue tii^
in equity for violating trust, Probate Court affording full protection.
Ill U. S. 584-597, 28 L. 527, -MOBILE, ETC., R. R. CO. v. JTJR:^^-
Syl. 1 (X, 837). Bill of lading expresses real contract
LCt
Approved in Dennis v. Slyfleld, 117 Fed. 479, holding cod
second party ** desirous of shipping certain lumber by certain V^
sel," and first agreeing to carry "any and all lumber desired ^^
second party " lacks mutuality.
Syl. 3 (X, 8S8). Writing open to construction circumstani^^^
considered.
Approved in The Livingjstone, 122 Fed. 283, holding marf ^^'
policy conclusively fixes ship's value, and in case of total loss, ^
surer cannot impeach valuation stated In policy; Western ^^^'^^ .^
Tel. Co. V. American Bell Tel. Co., 105 Fed. 087, holding writt-^^
contract capable of two interpretations, evidence of previous ne^^
tiations and circumstances relating to subject-matter of contr^i^
are admissible to explain; New Orleans, etc., Ry. Co. v. Meridi^^^^
Water- Works Co., 72 Fed. 232, holding guaranteed" OO-pound pr^^ ^
sure " for all purposes needed," water company liable to railro-
for property burned, pressure at time being but twenty-five poun(
dissenting opinion in Teller v. United States, 117 Fed. 584, majorl
holding government agent releasing ties seized to trespasser,
agreeing to pay according to subsequent appraisement, vests ti'
in trespasser.
Syl. 5 (X. 838). Insurer paying loss subrogated insured's righ.
Approved in Mason v. Marine Ins. Co., 110 Fed. 456, holdi
marine insurer paying loss is subrogated to right to portion
fund received by owner in fault, and may intervene after deci
i
XotM on C. S. Beports. Ill D. 8. 607-612
r. The St. Johns. 101 Fed. 470, hotding loaurance compatij
s dill policy vnlue. due to collision, does ool import
lonment. If undervalued iu policy, aud owners refuse to Hbnii-
Eean v. Brjtisb, etc., Ins. Co.. 193 IU. 302, fil N. E. 10S4.
ag ninrinp iiisiirnnce eotiipiiDy paying loss due to wrongful
if aaotlier le subrogated to rlgbta ot tbe Insured, and may
D insured's ntime.
:. e (X. 8381. Lost foods have value at destiuatlou.
proved in Missouri, etc., Triiat Co. v, Clark, 60 Nebr. 410, 83
V. 204. holding interest recoveralil? In all cases for use or
Tjctlon of property, when amount due plolntilT may be known
usimntely.
1. 7 tX, 830). Exception must be to precise point,
'proved la Hlndmaii t. First Nat. Bank, 112 Fed". 934, hold-
an exception " to tbe court's measure of damages " In charge
iSciently speclflc, rale of damages being Inapplicable to the
: Bagga v. Martin, lOH Fed. 34, holding simply general excep-
to refusal to give instniclions. Inciudlug several distinct points,
ot sufficient to Ruppurt aaalgnnieot of error; Cass Co. v. Gibson,
Ped. 307. holding general exception to instruction moat aog-
' or point out the defect distinctly, otherwise there la no ques-
for review.
U. S. iffl-eOi, 28 L. 53-1, GIBBS. ETC.. MFG. CO. v, BRUCKER.
yi. 2 (X. 830). Contract signed Sunday vaUd delivered later.
■Pproved in The Ale.'cander M. Lawrence. 101 Fed. 136, holding
leral statute prohibiting advancing seamen's wages, such pny-
Qt cannot t>e shown in defense to libel by seaman to recover
ges earned.
C. S. 604-(t(W. 28 L. 5S2, PHILLIPS v. DETROIT.
fyl. 1 fX, 8391. Patents — Court recognises knowledge of com-
in things.
approved in Farmers' Mfg. Co. v. Sproks Mfg. Co., 119 Fed. SfKi,
Idlng In determining novelty of patented device, court tabes
didal notice of matters of common knowledge relating to state
prior art.
1 U. 8. 609-612, 28 L. 540, CARVER v. UNITED STATES.
Syl. 1 (X, 810). United States — Military fine paid unrecoveroble.
Approved In Manlgault v. 8. M. Ward, etc., Co., 123 Fed. 710,
ilding contract, by which persons, to save their crop built dam.
;reed to removal, conslileralion of Its remaining until end of
ianaa, not nude under duress.
Ill U. S. 612-640 Notes on U. S. Reports. 664
HI U. S. 612-624, 28 L. 536, CONNECTICUT MUT. LIFE INS.
CO. V. LATHROP.
Syl. 2 (X, 841). Nonexpert witnesses confined to personal knowl-
edge.
Approved in Queenan v. Olilahoma, 190 U. S. 549, 23 Sup. Ct.
763, 47 L. 1177, holding nonexpert witness cannot give his opinion,
formed since commission of crime, relative to accused's mental con-
dition at time of offense; Pritchard v. Henderson, 3 Pennew. (Del.)
138, 50 _Atl. 220, holding witness cannot answer question regarding
mental capacity of testatrix, where witness had stated no facts
from which to express ^n opinion; People v. Casey, 124 Mich. 282,
82 N. W. 884, holding witness though not expert is competent to
give his opinion as to sanity of defendant, where he was acquainted-
with him in many minor details; Clarice v. Irwin, 63 Nebr. 542, 88
N. W. 784, holding nonexpert witness having more or less extended
acquaintance may give opinion on sanity or insanity, weight being
for jury.
Syl. 3 (X, 841). Insanity, nonprofessional witness must have
foundation.
Approved in Safe-Deposit, etc., Co. of Baltimore v. Berry, 93 Md.
580, 49 Atl. 408, holding nonexpert witness may give his opinion
to testator's mental capacity if he has means of knowing what
that mental capacity is, after disclosing those means. See 84 Am.
St Rep. 547, note.
Ill U. S. 624-640, 28 L. 542, ROBB v. CONNOLLY.
Syl. 1 (X, 842). Extradition — Agent another State must obey
writ.
Approved in People v. Hyatt, 172 N. Y. 188, 64 N. E. 828, 92 Am.
St. Rep. 713, holding action of State governor issuing warrant for
extradition of alleged fugitive from justice cannot be reviewed on
habeas corpus.
Syl. 2 (X, 842). Federal question involved State court enforces.
Approved in Minnesota v. Brundage, 180 U. S. 503, 45 L. 641, 21
Sup. Ct. 457, holding prisoner convicted in State court. Federal
court will not issue habeas corpus, on ground that statute is un-
constitutional, accused not availing of State law.
Syl. 3 (X, 843). Extradition — State court determines on writ.
Approved in Hyatt v. Corkran, 188 U. S. 711, 23 Sup. Ct, 459,
47 L. 661, holding on extradition warrant issued by governor of
State is but prima facie sufficient to hold the accused; Bruce v.
Rayner, 124 Fed. 482, holding the decision of the governor in issu-
ing his warrant is prima facie evidence, but not conclusive; In re
Matthews, 122 Fed. 251, holding Federal court should not discharge,
655 Notes on U. S. Repcrts. Ill V. S. GKMJ75
on writ or bnbens corpus, person In custody or Slate, on ground
violating ConBtltiitloQ, unless case be urgent. See S2 Am. St Rep.
720. nole.
Syl. i (X, 843). State restrains persons within Its llmlta.
Approved in Defluuce ^\■ate^ Co. v. Defiance. ISl U. S. 191, hold-
ing Stale court making temporary Injunction perpetual, restraining
municipality paying rentals to water company. Federal court can-
not assuiae jurladlctlon on averment undue taklug property; Ar-
kansas V. Kansas & T. Coal Co., 183 U. S. 11)1, 48 L. 147, 22 Sup.
Ct. 49. holding State court enjoining tbreatened importation of
colored men, strike existiug, as endangerlug pubLc peace, not re-
luovttble under Federal law on CHaumptlon of regulating commeree;
Slate V. Wood, 153 Mo. 451. 66 S. W. 478. holding Supreme Court
will grant writ ot prohibition where Inferior court lacks Jurisdic-
tion, or, having jurisdiction, exceeds same.
111 V. S. G40-67S, 28 L. 547. JOHNSON v. WATERS.
SyL 4 (X, 844). Probate sale set aside fur fraud.
Approved In Tnber v. Royal Ins. Co., V2i Ala. 68S, 26 So. 259,
holding notice one or two days after loss satlsfles provision of
insurance policy for an " immediate notice." omission to give which
not ground tor forfeiture.
Syl. 3 (X, 8431. Barring fraud. Judgment binds parties.
Approved In National Surety Co. v. Slate Bank. 120 Fed. 598. 600.
holding defendants having meritorious defenses prevented availing
Themselves by fraud, accident, or mistake In State. Federal court
has plenary Jurisillction to enjoin or enforce; Hale v. Tyler, 115
Fed. S38, holding Federal court's Inherent equity Jurisdiction can-
not be narrowed by State law In conferring Jurisdiction of certain
matter npon particular State court; Phelps v. Mutual, etc., Assn.,
112 Fed. 465, holding State court having concurrent Jurisdiction.
Federal court cannot enjoin receiver where Federal court claims
no priority of Jurisdiction of appointment: Security, etc.. Co. v.
Dent. 104 Fed. 366. holdliig statute requiring presentation of claims
within time after granting letters, ineffectuol, depriving Federal
court of Jurisdiction, action by nonresident creditor less than full
time; Curtis v. Schell, 120 Cal. 217, 79 Am. St. Rep. 114. 61 Pae.
954. holding Prob.nte Court's judgment without full knowledge not
conclusive, but equity will relieve against fraud without Bpecifically
finding fraud, or setting aside order; dissenting opinion in Wahl v.
t'ranz. 100 Fed. 098, majority holding since under Arkansas Consti-
tution aud statutes. State Circuit Court has no JiirlBdlctlon to de-
termine win contest, except on appeal from Probate Court, such
iippeal not removable under judiciary act 188S. gS 1. 2.
Distlngnlsbed In Evans t. Gorman, 113 Fed. 402, holding under
Itev. Stat., f T20, Federal court has no power to eojoin sale of
Ill U. S. G70-684 Notes on U. S. Reports. 666
estate lands ordered by Arkansas Probate Court to pay Judgments
against estate.
Syl. 8 (X, 845). Creditors* bill should be for all.
Approved in Jones y. Mutual Fidelity Co., 123 Fed. 513, holding
in absence of statutory authority, complainants as general unsecured
cre<litors without judgment secured, on sole ground of insolvency,
cannot maintain bill obtaining distribution; Moore v. Parker Drug
Co., 135 Ala. 291, 33 So. 440. holding complainant in suit, nature
of creditors' suit for administration of assets, is not entitled to
preference because of his bringing the suit.
Syl. 9 (X, 845). Sham probate sale void against creditors.
Approved in Lombard t. La Dow, 126 Fed. 126, holding guard-
ian's sale being tictitious in circumventing the law prohibiting
mortgaging minor's property, purchaser thereof not bona fide
against minor.
Ill U. S. 670-684, 28 L. 5C5, HENNEQUIN v. CLEWS.
Syl. 1 (X, 845). Fraudulent debts exempted from bankruptcy
discharge.
Approved In Forsyth v. Vehmeyer, 177 U. S. 181, 44 L. 725, 20
Sup. Ct. 625, holding obtaining advance of money by fraudulently
representing that borrower has sold certain wood creates debt
exempt from bankruptcy discharge under act of 1867; In re Woods
& Malone, , 121 Fed. 600, holding cotton mistakenly delivered to
factor who sells, placing proceeds to his bank account, on factor's
bankruptcy, cotton-owner entitled to full value from bankrupt's
estate; Bracken v. Milner, 104 Fed. 526, holding agent loaning money
on trust deeds or mortgages, securing loans for himself as trustee,
creates debt by defalcation in his " fiduciary capacity," within
bankruptcy act 1898, § 17, subd. 4; Bear v. Chase, 99 Fed. 927; hold-
ing Bankruptcy Court has jurisdiction, upon showing cause in pro-
ceedings, to enjoin attaching creditors from further prosecution of
their attachment suits; Gee v. Gee, 84 Minn. 387, 87 N. W. 1117,
holding exception of discharge bankruptcy act ** from judgment for
frauds " or ** debt for fiduciary fraud," not applicable to partner
misapplying partnership funds in the business; Stickney v. Par-
menter, 74 Vt 61. 52 Atl. 74, holding administrator of estate inten-
tionally minglin£ his funds with trust funds is guilty of misappro-
priation witniu bankruptcy act 1898, § 17, excepting from debtor's
discharge.
Syl. 2 (X, 846). Creditor holding collateral not a trustee.
Approved in In re Gaylord, 113 Fed. 134, holding relation between
stockbrokers and customers, running account existing, not fiduciary,
but debtors and creditors with right to prefer claims under bank-
ruptcy act, § 57g.
Distinguished in Hutchinson ▼. Le Roy, 113 Fed. 208, holding
657 Notes on U. S. Reports. Ill U. S. GS1-^7(K>
original pledgor not knowing that bankrupt had repledged until
filing preferred creditor claims against bankrupt's estate, does not
waive prior rights.
Syl. 3 (X, 846). Debt from appropriation discharged In bank-
ruptcy.
Approved Jn Knott ▼. Putnam, 107 Fed. 909, holding broker pur-
chasing cotton for customer and selling same is debt for proceeds
released by discbarge under bankruptcy act 1898, § 17, and his
arrest will be enjoined; In re Basch, 97 Fe4* 761, holding bank-
rupt commission merchant failing to account for value of goods
consigned, not debt by bankrupt's ** fraud, embezzlement, misappro-
priation, or defalcation,'* hence discharge releases him; Bryant v.
Kinyon, 127 Mich. 157, 86 N. W. 532, holding plaintiff selling wood,
title in him until defendant paid, latter selling and appropriating
proceeds did not prevent discharge under bankruptcy act 1898, § 17;
Goodman v. Herman, 172 Mo. 357, 358, 72 S. W. 550, holding Judg-
ment creditor could not go behind Judgment in proving sale induced
by fraud of Judgment debtor to avoid discharge In bankruptcy.
Ill U. S. 684-700, 28 L. 559, WILLIAMS v. MORGAN.
SyL 1 (X, 846). Federal decree fixing trustee's compensation
final.
Approved in In re Michigan Gent. R. R. Go., 124 Fed. 733, hold-
ing decree against party for costs payable to clerk for services ren-
dered, and awarding execution therefor, is final and appealable;
Eau Glaire v. Payson, 107 Fed. 557, holding court ordering city to
pay sum to receiver, claim against city disputed, making no pro-
vision for return of money, is final decree and appealable; State v.
District Court, 28 Mont. 234, 72 Pac. 616, holding an order being
In form and effect a final Judgment is entirely analogous to order
awarding alimony and counsel fees in divorce cases and appeal-
able; Battery Park Bank v. Western Carolina Bank, 126 N. G. 534,
86 S. E. 40. holding appeal may be taken from order allowing
receiver of Insolvent bank, before final settlement, commissions and
charges objected to by the creditors.
Syl. 2 (X, 847). Railroad bondholders may contest court allow-
ances.
Approved in United Ststes v. Northern Securities Go., 128 Fed.
812, holding stockholder cannot intervene In suit by United States
after Judgment declaring corporation illegal combination In viola-
tion of anti-trust act; In re Michigan Gent. R. R. Go., 124 Fed. 730,
733, holding Circuit Court decree allowing costs under statutory
provision is not one made in court's discretion and is not therefore
appealable; Central Trust Co. v. California, etc., Ry. Co., 110 Fed.
72, holding individual bondholders have right, in trustee's suit to
Vol. 11 — 42
Ill U. S. 701-715 Notes o
. Reports.
foreclose mortgage securing bonds, to Intervene to contest validity
of certain bouiJs; I'hlnlzy v. Augusta, etc., B, R., BS Fed. 77T. hold-
ing Federal court iu foreclosing railroad mortgage will allow coun-
sel reasonable (ee, not^itbataoding contract made with trustees or
lawK or State.
Ill U. S. 701-713. 28 L, 560, HAGAH ». RECLAMATION DIST.
SyL 2 (X, 818). Burden on land benefited Is valid. _
Approved In City of Unlianapolls v. Holt. 153 Ind. 2il, 57 N. E-
1)72, holding assessment by front-foot rule under general law for
Incorporated cities Is prima facie correct, but not exclusive of
aSRessmcnts according to benefits.
Syl. 3 (X, 84S). Parties specially benefited charged reclaiming
swamp.
Approved in City of Indianapolla v. Holt 155 Ind. 234, 57 N. E.
970, holding act respecting street assessment, providing for full
bearing and determining of property-owner's rights. Is not taking
without due process of law; Itoudebush v. Mitchell. 154 Ind. 620,
57 N. E. 511. holding statute providing for notice of proceeding and
for hearing questions of law and fact, assessment according to
benefits received, cot unconstitutional.
Syl. 4 (X, mSj. LaglBlature can prescribe taxation district
benefited.
Approved In Carson v. Sewer Comrs. of Brockton, 182 D, S.
402, 45 L. 1154. 21 Sup. Ct. 861, holding special assessment to
maintain sewer upon those assessed to construct not a taking prop-
erty without due process, privilege to use same cKisting: French t.
Barber Asphalt Paving Co., 181 O. S. 340. 45 L. 888. 21 Sup. Ct.
631, holding legislative apportioning entire costs of street paving
upon abutting lots, no preliminary bearing as to benefits, such Dot
a taking without due process, nflirming Barber Asphalt Paving Co.
V. French. 158 Mo. 554, 58 S. W. 940; People's Nat. Bank v. Marye.
107 Fed. 580. holding statutory taxation of bank shares at market
value not Invalid because esclnding realty owned by bank, since
Bhares belong to shareholders and laud to corporation; Adams v.
Olty of Shelbj-Tllle, 154 Ind. 471. 77 Am. St. Rep. 488. 57 N. B. lie,
holding legislature may authorize municipality to create local tax-
ing district for Improvement purposes. Including only part of prox>-
erty within municipality; Grilllth v. Pence, 0 Kan. App. 257, 59
Pac. 678, holding township inistee has general Jurisdiction apon
petition to establish drainage ditch In hla township, being of public
utility, and bis findings are conclusive; Barfletd v. Gleaeon. Ill Ky.
517, 63 S. W. 969, holding street assessment not unconstitutional
taking property because benefits are not commensurate with costs,
ftnd fact must be conclusive If court interferes; Mound City Land,
6B9 Notes oa V. S. Reijorls. Ill U. S. 701-715
etc., Co. V. MlUer, 170 Mo. 252, 253. 70 S. W. 725, M Am. St. Rep.
734, 735, holding statute providing for establlshlDg drainage dis-
trict, and election by residents of district sapervisors to manage,
not unconstltutionul; Heman v. Allen, 156 Mo. 550. 57 S. W. 563,
boldlng clt; autborities ol St. Louis bare exclusive power, absence
of fraud, to establish district sewer, under section 22. article 0 of
city cUarter: Kinkade v. Witlieroj), 29 Wash. 16, 69 Pac. 401, hold-
ing where, In issuing irrigiition bonds, contract was substantial!]'
complied witb, no provision of statute being violated, neither dis-
trict or members can complain.
Syl. 7 (X, 840). Observance ge'jeral established rules "due
process."
Approved in Maxwell v. Dow, 176 U. S. G04, 44 L. 606. 20 Sup.
Ct. 457. 494, holding proceeding by information Instead of by an in-
dictment by grand Jury Is not sutHclent to constitute due process of
law; Bollu v. Nebrasba. 376 U. S. 86, 44 L. 383. 20 Sup. CL 288.
holding admission of Nebraslia Into the Union, made subject to
adopting Federal Constitution, did not make Fifth Amendment
applicable to procedure In court; Bradley v. New Haven, 73 Conn.
Om, 48 Atl, 963. holding preparation of assessment list and act of
court on appeal being administrative not Judicial, provision author'
Izing appeal to Superior Court ia unconstitutional; Gallup v.
Schmidt, Treas., 3E4 Ind. 202, 56 N. E. 445, holding notice to qiiali-
fied executor of adding omitted property to his testate was notice
to county resident, though executor resided In another State; Ferry
V. Campbell, 110 Iowa, 297. 81 N. W. 607. holding property pass-
ing by will or mheritaiice vests immediately on death of owner,
and tax thereon without giving devisee opportunity to be heard Is
unconstitutional: Barber Asphalt Paving Co. v. French, 158 Mo.
549, 550, 58 S. W. 039. holding special paving assessments, costs
apportioned to front-foot rule, authorized by charter, not uncon-
stitutional, and not reversible because benefits are greater than
assessments; alilrmed in 181 U. S. 340; King v. Portland. 38 Or.
417, 63 Pac. 5, holding notice giving property-owner opportunity to
raise objections as to excesslveness of costs over benefits not taking
property in violation Const U. S., amendm. 14; State v. Earte, 66 S,
C. S02, 44 S. E. 784, holding party affected by ordinance may show
It amounts to confiscation of pro;ierty under guise of regulation;
Stone V. Drainage District. 118 Wis. 394, 03 N. W. 407, upholding
Bev.'Stat. 1898, S 1379. relative to creation of drainage districts;
PInney v. Providence Loan, etc., Co., 106 Wis. 402, 82 N. W. 310,
holding Wis. Rer. Stat., i 1775b, authorizing service of process
on private corporation by leaving copy with register of deeds,
violates Const. U. S., amendm. art. 14, E L See notes, 94 Am, St.
Bep. 621; 85 Am. St. Kep. 'J27.
Ill U. S. 701-715 Notes on U. S. Reports. 6G0
Syl. 8 (X, 850). Barring prohibitions, State taxes witliin Juris-
diction.
Approved in People's Nat. Banlc v. Marye, 107 Fed. 580, holding
Federal court will not enjoin collection of tax levied under State
authority upon national bank shares, unless tax is illegal, or
special circumstances exist.
Distinguished in Monticello Go. v. Baltimore City, 90 Md. 431,
45 AtL 214, holding Code Pub. Laws, art. 81, § 144, Maryland, re-
garding notice, has application to valuation of distilled spirits by
State tax commissioner under Acts 1892, chap. 704.
Syl. 9 (X, 850). No notice special tax disregarding value.
Approved in Weyerhaueser v. Minnesota, 17G U. S. 556, 44 L.
586, 20 Sup. Ct 488, holding governor only starting inquiry regard-
ing reassessment, proceedings not void for want of due process,
failure to provide hearing before governor.
Syl. 10 (X, 850). Assessors determining value act Judicially.
Approved in Glidden v. Harrington, 189 U. S. 258, 23 Sup. Ct. 576,
47 L. 801, holding trustee failing upon notice to make returns, no
excuse existing, trust estate may be assessed within reason and
same will be conclusive; Lander v. Mercantile Nat Bank, 186 U. S.
469, 46 L. 1253, 22 Sup. Ct. 913, holding State board of equalization
giving notice of 'date and place of first meeting is sufficient notice,
though such action be taken after adjournment; Roller v. Holly,
176 U. S. 409, 44 L. 525, 20 Sup. Ct. 414, holding four out of five
days' notice requiring nonresident to reach court, the other being
Sunday, insufficient to constitute reasonable notice; State v. Baker,
170 Mo. 200, 70 S. W. 471, holding statute requiring board of equali-
zation raise values too low, and then give notice, taxpayer need
not be notified in first instance; Erickson v. Cass Co., 11 N. Dak.
498, 92 N. W. 843, holding Jurisdiction of drainage board established
by filing sufficient petition and proper notice of hearing given, courts
will not inquire into assessment for benefits; Manchester v. Furnald,
71 N. H. 156, 51 Atl. 658, holding by statute assessors constitute
a tribunal with original and exclusive Jurisdiction to determine
assessment values, and courts cannot control their Judgments; Carroll
V. Alsup, 107 Tenn. 277, 64 S. W. 198, holding statute providing
precise time of board of equalization meeting, with requirement
that taxpayers take notice, no other notice of any kind required.
Syl. 11 (X, 851). State allowing contest is due process.
Approved in Turpin v. Lemon, 187 U. S. 58, 23 Sup. Ct. 23. 47 L.
74, holding bill to set aside tax sale, not on statutory procedure,
but sheriff's return failing to set forth compliance, not taking prop-
erty with due process; King v. Portland, 184 U. S. 70, 40 L. 43G.
22 Sup. Ot. 293, holding assessments being in proportion to benefits,
and charter giving opportunity to contest assessments, property so
681 Notes on U. S. Reports. Ill U. S. 716-733
subjected not taken without due process of law; Johnson ▼. Hunter,
127 Fed. 224, upholding Acts Arlj. 1895, p. 88, No. 71, relative to
sale of lands of nonresidents for nonpayment of taxes; Oskamp
V. Lewis, 103 Fed. 900, holding owner given right to test validity
of assessment by suit enjoining collection, assessment of property
without notice not taking without due process; Appleton v. City
of Newton, 178 Mass. 282, 59 N. E. 649, holding statute per-
mitting city acquiring land for water-works; instrument reciting
allowing three years' owner to enforce claim is reasonable notice
because of publicity; Godfrey v. Bennington Water Co., 75 Vt
356, 55 Atl. 656, holding failure of listers to file list of real estate
of taxpayers as required by Vt. Stat. 427, list invalidates whole
grand list; dissenting opinion in Hendryx v. Perkins, 114 Fed. 824^
majority holding neither bill vacating decree for fraud, nor of re-
view maintained after nine years' lapse, complainant having
knowledge all time, no sufficient facts excusing.
Ill U. S. 716-722, 28 L. 574, LOUISIANA v. POLICE JUR^T.
Syl. 2 (X, 852). Contract thereon, taxing power legislatively un-
changeable.
Approved In Padgett v. Post, 106 Fed. 603, holding legislature
authorizing municipality to issue bonds and providing in same
act for levy and collection of taxes, latter cannot be impaired by
subsequent legislation.
Syl. 3 (X, 852). Mandamus compels levying tax:paying judgment.
Approved in Board of LiquidaUon v. United States, 108 Fed. 692,
holding board of liquidation charged with administering fund can-
not defend against application for mandamus requiring it to fund
a fundable judgment. . .
Syl. 4 (X, 852). Tax levy mandamusable according assessment-
rolL
Approved in Gay v. New Whatcom, 26 Wash. 506, 67 Pac. 90,
holding city authorized to issue and le\7 annual tax to nieet in-
terest thereon, holder cannot mandamus levying additional tax
to pay arrearage interest; dissenting opinion in Grand County v.
People, 16 Colo. App. 246, 64 Pac. 086, majority holding coiinty war-
rant reduced to judgment by holder not entitling him t6 mandamus
raising tax to pay, without showing statutory amount not reached.
111 U. S. 722-733, 28 L. 577, HITZ v. NATIONAL METROPOLITAN'
BANK.
Syl. 2 (X, 853). Wife can buy her husband's curtesy.
Approved in Guernsey v. Lazear, 51 W. Va. 331, 41 S. B. 406,
holding judgment against husband no lien, during wedlock, on
curtesy initiate, and subsequent conveyance ,bj husband and wife
not fraudulent as to demands.
Ill U. S. 734-706 Notes on U. S. Reports. 688
8;I. 4 (X, 853). Trust deed — Cauelderatloa to cestui lf> sliow-
abte.
Approved In Johnaon v. Elmen, 24 Tei. CIt. 45. 59 8. W, 60G, ■
boldlDg suit cancellDB deed for failure of consideration, though coD'
tradlcting covenant agalust Incumbrance, parol evidence admissible
Bbowlng assumption of vendor's lien as part consideration.
Syl. 7 (X, 853), Wlfe'a property, curtesy, exempted hutboud's
Approved Id In re Marquette, 103 Fed. 77S, holding bankrupt
occupying homestead right, conveyed to deceased wife prior to 1S96.
dated from sucb conveyance and not from taking effect of devise
by wife's will. See 84 Am. SL Rep. 440, note.
Ul XJ. 8. 734-738. Not cited.
. Ill U. 8. 738-745, 28 L. 582, FACT0H8'. ETC.. IN8. CO. t. MDHPHY
8yl. 1 (X, 854). Federal bankrupt sale reviewable Supreme Court.
Approved In Avery v. Popper. 170 U. S. 313. 45 L. 206, 21 Sup.
Ct 97, holding purchaser at marshal's sale ordered by Federal
court cannot brlug writ of error in Federal court queatloniuE prior
chattel mortgage under State law.
Syl. 2 {X, 854). Mortgages — Legal title merges with intention.
Approved in Tullock v. Mulvane. 184 U. S. 506, 46 L. G03, 22 Sup.
Ct. 37G, holding Federal court rendering decree, portion of case
stipulated dismissed, llalilltty on Injunction bond reviewable by
Supreme Court on writ Of error to State court
111 U. 8. 74C-700. 28 L. 585. BUTCHERS' UNION CO. T. CRES-
CENT CITY CO.
Syl. 1 (X, 855). Resulatlng slaughter houses within police power.
Approved In Odd Fellows' Cemetery Assn. v. San Francisco, 140
Cat. 235, 73 Pac. &90, holding San Francisco ordinance problbitiug
interring dead bodies of persons In any cemetery within city, ex-
■clusive of Federal portions, is constitutional police regulation;
Dobbins V. City of Los Angeles. 130 Col. 18S, 72 Pac. 972. holding
city enforcing police regulations not estopped passing ordinance
prohibiting gasworks, though same was being erected prior to
passage of ordinance: Knoxvllle v. Kooxvllle W. Co., 107 Tenn. 675.
64 S. W. 1082. holding police power of city extends to regulating
water rates, though city Is consumer, if reuaonableneas of rales Is
subject to Judicial review; dissenting opinion In The Ten-Hour
Law for St Uy. Corporations, 24 R. I. 619. 54 Atl. 008. lunjorlty
holding street railway company making contract with Its employees
to labor more than tea hours day Illegal, though they make do ob-
Jectltm.
Notes on D. S. Reports. Ill D. S. 7tl6-7G9
Byl. 2 (K. 8S6). Legislature cannot limit regulntiag public bealtb.
Approved in GIbba v. Tally. 133 Cnl. 377. C5 Pac. 072, holding
Cal. Code Civ. Proc, i 1203, nioklng owner liable for duraagea,
mechanic's Ilea bond not filed. Is unconstitutional, depriving own^
or hiB property; Street v. Varney, etc., Co., ISO Ind. 345. C6 N. E,
808, holding statute flslng arbitrary price for unskilled labor on
public works is unconstitutional, permitting confiscation, as exer-
cised over municipal corporations.
SyL 3 (X, 857). Following common occupation an Inalienable
right
Approved m Whitwell v. Continental Tobacco Co.. 125 Fi-d. 458,
holding combinations which promote, only Incidentally restricting,
competition among States, main object being to Increase business,
are not In restriction of Interstate commerce; United States v.
Morris, 125 Fed. 32G, holding cousplrncy of two or more persons,
preveating negroes leasing aud cultivating land because they are
negroes, violates Federal Constitution; Watson v. Thomson, IIB Ga,
548, 04 Am. St. Rep. 137, 42 S. E. 748, holding niuQlcipallty under
general welfare clause In charter cannot prohibit lowful avocation
on ChrlBtmas Day. peace and safety of community not Jeopardized;
Ruhstrat v. The People, 185 111. 138. 76 Am. St. Rep. 33. 57 N. B. 43,
boldlng act prohibiting use of national flag for advertising purposes
unconstitutional unless public be:)lth, safety, welfare, or comfort la
conserved; Walsh v. Association Master Plumbers, 97 Mo. App. 295.
71 S. W. 4G0, holding injunction lies dissidving illegal agreement
' between pIumt>erH' association and dealers and manufacturers,
latter agreeing not to sell to others, than members of asHocIation:
Marshall, etc., Bruce Co. v. City of Nashville. 109 Teiin. 508. 71 S.W.
818. holding where city charter required all goods furnished to be
supplied by lowest responsible bidder, ordinance invalid providing
all city printing bear union label; State v. Kreutzberg. 114 Wis.
634, 90 N, W. 1100, 91 Am. St Rep. 937, holding Rev. Stat. 1898.
i 4406b, Wisconsin, unconstitutional, prohibiting discharge of em-
ployee labor organization. Imposing restralutH on Individual rreedom.
Ill U. S. 766-768. Not cited.
Ill U. S. 708. 7fi9. 28 L. 593, SAN FRANCISCO v. SCOTT.
Syl. 1 (X, 858). Supreme Court cannot review alcalde grant.
Approved In Hooker v. Los Angeles, 183 U. S. 317. 23 Sup. CL 396,
47 L. 490. holding condemnation proceedings In State court not
reviewable In Federal Supreme Court, on denial of due process,
records not showing claims under Federal Constitution; dissenting
opinion In Tullock v. Mulvane, 184 U. S. 522, 40 L. 670, 22 Sup. Ot.
382, majority holding Immimlty from damages under Injunction
bond given In Federal court question for review on writ ot error
tt> State court from Federal Supreme Court.
Ill n. i
7T0-TS3
Notes on U. S. Rcporta.
6Si
111 tr. S. T7&-775, 28 L, 584, EDRINGTON t. JEFFERSON.
Syl. 1 (X, 858). CauBe Improperly removed corrected Federal
court.
Approved Id Guaraotee Co., etc. v. Haowa;, 104 Fed. 374, holdlog
tliue and manner of removal of suit being imeflseotial to right,
objections thereto are wtdved by silently proceeding to trial upon
merits.
Ill U. S. 778, 28 L. 690, NICKLB v. STEWART.
Syl. 1 (X, 850). BIL bUows record errors, new evidence.
Approved In Cocke v. Copealinver. 120 Fed. 147. boldlne bill of
review containing no claim of newly discovered evidence maln-
tolnable only for errors of law appearing on record; Camp Mfg.
Co. V. Parker, 121 Fed, 197, holding bill of review may be based
on newly discovered evidence since former Learing, or for errors
on record: Halsted v. Foreet Hill Co., lO'J Fed. 823. holdiuK where
time for an appeal had passed btfore Ollug petition for review Iii
Federal court, same Is refused, laches being [nexcusable.
(X, S50|. MiHcellaneouB.
Cited in dissenting ophiion In Hendrys v. Perkins. 114 Fed. 823.
majority holding bill in nature of bill of review to vacate decree
may he filed without leave of court, addressed to Its Judicial dis-
111 U. S. 7TB-T83, 28 L. 59fJ. BUR.NHAM v. BOWEN.
Syl. 1 (X. SCO). Operating expenses payable current earningH.
Approved In Southern Ry. v. Carnegie Steel Co., 17G U. S. 277. 383,
285. 2f)0, 44 L. 468. 470. 471, 473, 20 Sup. CL 355, 357, 358. holding
diversion of railroad income for rails or coal to keep road oiierndug
has priority over mortgage creditors In -distribution of net earnings;
Gregg v. Metropolitan Trust Co., 124 Fed. 721, holding railroad
selllug mileage for another railroad, using Instead of accounting
for proceeds. Bamc no part of current Incnme respectlog creditore
and mortgagees; Farmers' L. & T. Co. v. American W. Co., 107 Fed.
26, 28. 30. holding water-worlts company owing $44,000 for necessary
engines unpaid by Bucceediug receivers during twenty months,
chancellor will direct latter receiver to make good the amount;
Lee V. Pennsylvania, etc., Co., 105 Fed. 400. holding rails ftirnlslied
street railroad sis months before insolvency being for repairs, the
cost thereof baa preference over mortgage debt from ciirnlngs:
ReynotdB. etc., Co. v. Eawek, 27 Ind. App. 404, GI N. E. 734, holding
cqmpany giving chattel mortgage on Btook to trustee for creditors.
aubBeijiient creditors relying thereon may enforce mortgage for
their benefit, with priority over mortgagee; Van Frank r. Missouri,
etc., Ry. Co., SO Mo. App 409, holding fund unsecured creditors amst
«06 Notes on U. S. Reports. Ill U. S. 776-783
have recourse for payment, in case of common carrier, consists of
earnings of the common carrier.
Syl. 2 (X, 860). Equity restores current expenses improperly
diverted.
Approved in SouthwTi Ry. v. Ensign Mfg. Co., 117 Fed. 420. liold-
Ing one knowingly furnishing car wheels to leased railroad has no
equity giving preference over its mortgagees, leased road not being
included in mortgages; dissenting opinion in Illinois Trust, etc.,
Bank v. Doud, 105 Fed. 153, majority holding mortgagor diverting
current income from current expenses, leaving same unpaid, court
will apply income during receivership to paying; same.
Distinguished in Illinois Trust, etc.. Bank v. Doud, 105 Fed. 132,
145, holding mortgagor diverting current income from current ex-
penses, leaving same unpaid, court will apply income during receiver-
ship to paying same.
SyL 3 (X, 862). Railroads — Original holder's claims follow
assignment.
Approved in Gregg v. Mercantile Trust Co., 109 Fed. 228, holding
receiver of railroad paying certificates given for cars not necessary
to keep road going concern creates debt of income inuring to
benefit of mortgagees; Columbus, etc., R. R. Co. Appeals, 109 Fed.
198, holding reorganization of insolvent corporation giving new for
old mortgage bonds. Junior mortgagee refusing to come under agree-
ment cannot advance his mortgage to first lien; Rhode Island, etc..
Works V. Continental, etc., Co., 108 Fed. 9, holding locomotives
sold defendant railroad not being necessary to maintain road aa
going concern, intervener not entitled to preference over mort-
gagees; International Trust Co. v. United Coal Co., 27 Colo. 254, 60
Pac. 624, holding mortgage being known, receiver of private cor-
poration cannot issue certificates tor running expenses and thereby
create liens having precedence over mortgagees; In re Assignment
Sectional Dock Co., 80 Mo. App. 62, holding Judgments of actions
of assignee from which appeals are contemplative concern allow-
ance of demands rather than their classification.
Syl. 4 (X, 862). Mortgage creditors benefited, equity restores fund.
Approved In Cambria Iron Co. v. Union Trust Co., 154 Ind. 304,
806, 56 N. E. 750, 751, holding petition for preference over mortgage
not averring the purchase of electrical equipment from current earn-
ings of company is defective.
(X, 859). Miscellaneous.
Cited in Van Frank v. Missouri Pac. Ry. Co., 89 Mo. App. 473,
holding favored debts Incurred before receivership and unpaid be-
fore appointment continue priority out of surplus income whether
previous diversions were favorable to mortgagees.
Ill U. S. 781r-790 Notes on U. S. Reports. 666
111 U. S. 784-788, 28 L. 603, WHITE v. KNOX.
Syl. 4 (X, 864). Claimant against bank litigation expenses un-
recoverable.
Approved in American Nat. Banlc y. Williams, 101 Fed. 947,
holding receiver of national banlc not held for interest on money
loaned while a going concern after banlc's suspension and recelyer's
appointment.
Ill U. S. 788, 789, 28 L. QOi, ST. PAUL, ETC., RY. CO. v. BURTON.
Syl. 1 (X, 864). Naturalization records prove Judge was quali-
fied.
Approved in United States v. Lew Poy Dew, 119 Fed. 789, holding
deportation proceedings, certificate signed by United States com-
missioner as to findings inadmissible, proving prior adjudication Of
defendant's rights, not being certified copy.
Ill U. S. 789-796. Not cited.
Ill U. S. 796, 797, 28 L. 602, HARRINGTON v. HOLLER.
Syl. 1 (X, 865). Dismissing writ not final permitting appeaL
Apprived In Raleigh v. First Jud. Dist. Ct., 24 Mont. 313, 61 Pac
994, holding District Court erroneously strilcing from files will con-
test, writ of mandamus will be granted to compel court to take
Jurisdiction; State ex rel. Mclntyre v. Superior Ct. of Spokane
County, 21 WQsh. Ill, 57 Pac. 352, holding' mandamus not issuable
to compel Superior Court to take Jurisdiction of appeal from Justice's
court, where there is an adequate remedy by appeal.
Ill U. S. 797, 798, 28 L. 602, FRIEND v. WISE.
Syl. 1 (X, 865). Jurisdictional amount obtainable by combining.
Approved in Chamberlain v. Browning, 177 U. S. 608, 44 L. 908,
20 Sup. Ct. 822, holding appellant cannot unite separate interests
of appellee's for Jurisdictional amount in appeal, if appellees cookl
not have done so.
Ill U. S. 798, 799. Not cited.
CXII UNITED STATES.
112 U. S. 1-12. Not cited.
112 U. S. 12-24, 28 L. 619. NEW ORLEANS, ETC., RY. CO. T.
MISSISSIPPI.
SyL 2 (X, 868). Railroad statutorially bound may be man-
damused.
Approved in Jack y. Williams, 113 Fed. 829, holding court will
not compel operation of railroad at loss, as same would be de-
prlying of property without compensation, but receiver may dis-
mantle and sell.
112 U. S. 24-32, 28 L. 623, MOFFAT v. UNITED STATES.
Syl. 1 (X, 868). Patent issue presumed to be valid.
Approved in Kerwan v. Murphy, 189 U. S. 54, 23 Sup. Ct 603, 47
L. 705, holding courts will not enjoin survey under direction of
land department which claims same as unsurveyed public land.
SyL 5 (X, 869). Fabricated documents fraud upon land depart-
ment.
Approved in United States v. Beebe, 180 U. S. 349, 45 L. 568, 21
Sup. Ot 373, holding compromise Judgment not set aside for fraud,
defendant's representation being that he had no property, and not
respecting merits of action; Pepin v. Lautman, 28 Ind. App. 78, 62
N. E. 61, holding fraud vitiating a Judgment must be extrinsic to
the matter tried in the case.
112 U. S. 33-36. Not cited.
112 U. S. 36-41, 28 L. 627, DA VIES T. CORBIN.
Syl. 1 (X, 870). Peremptory mandamus is final and appealable.
Approved in State v. Giljohann, 111 Wis. 384, 87 N. W. 248, hold-
ing order awarding permanent writ of mandamus, issue Joined by
the return, is Judgment in civil action and appealable.
SyL 2 (X, 870). Mandamus for tax for full amount.
Approved in Jones v. Mutual Fidelity Co., 123 Fed. 512, holding
relief by State statute being essentially equitable, relief being im-
possible at law, a purely equitable case is presented under the
statute.
(X, 870). Miscellaneous.
Cited in State v. Giljohann, 111 Wis. 383, 87 N. W. 248, holding a
motion to quash cannot be properly interposed to return to a writ
of mandamus.
[667]
112 U. S, 41-75 Notes on U. S. Reports. 068
112 U. S. 41-50. Not cited.
112 U. S. 50-69, 28 L. 656, BUTTERWORTH v. UNITED STATES.
Syl. 1 (X, 870). Officer Jiot obligated mandamus inapplicable.
Approved in United States y. Loeb, 99 Fed. 733, holding single
general appraiser satisfied with certain appraisement, appealing by
direction of secretary of treasury gives no jurisdiction to other ap-
praisers to review appraisement.
Syl. 2 (X, 871). Patents — Ck)mmissioners determining application
unreviewable.
Approved In Bruhl Bros., etc., Co. v. Brown, 123 Fed. 961, holding
collector at port statutory custodian of Imported goods until duties
paid, Importer can enjoin removal " for submission to trade ex-
perts " on treasurer's order.
Syl. 3 (X, 871). Rejected patent bearing upon merits.
Approved In IngersoU v. Holt, 104 Fed. 684, holding bill for patent
reissue refused by patent office must disclose facts which establish
invention claims, as Ihqulry is to Invention as an entirety.
Syl. 4 (X, 871). Commissioner's refusing patent final and ap-
pealable.
Approved In United States v. Beebe, 117 Fed. 679, holding value
pure metal basis for reducing foreign stapdard coins to Federal
values and not exchange values, collector's mistake therein being
reviewable; Crown Cork, etc., Co. v. Aluminum, etc., Co., 108 Fed.
856, holding adverse rulings of examiners delaying obtaining patent
after application works no forfeiture of Inventor's rights, he be-
ginning suit within statutory limits and succeeding.
Syl. 6 (X, 871). Mandamus lies compelling commissioner's minis-
terial duties. •
Approved In Klmberlin v. Commission, etc., 104 Fed. 658, holding
mandamus may Issue to compel executive officer to perform mere
ministerial act, he having no discretion in matter, law imposing the
duty.
112 U. S. 69-75, 28 L. 653, MORAN v. NEW ORLEANS.
Syl. 1 (X, 872). Tax regulating interstate commerce void.
Approved in Austin v. Tennessee, 179 U. S. 373, 45 L. 238, 21 Sup.
Ct 143, holding tobacco being subject to sale is article of com-
merce regulated by Federal government, though subject some extent
within police power of State; Yost v. Lake Erie, etc., Co., 112 Fed.
748, 749, holding only State where vessels registered therein and
engaged in interstate or foreign commerce can tax same at home
port; St. Clair Co. v. Interstate, etc., Co., 109 Fed. 744, holding
State cannot exact license fee for operating ferry transferring rail-
road cars across navigable river between points of different States;
609 Notes on U. S. Reports. 112 U. S. 76-123
Williams V. Fears, 110 -Ga. 592, 35 S. E. 702, holding imposition of
tax upon " emigrant agent " not regulation of interstate commerce,
nor does it violate Const. U. S., amendm. 14.
Distinguished in Northwestern Lumber Co. v. Chehalis County.
25 Wash. 100, 64 Pac. 910, holding ocean-going tugs -owned and
exclusively used by State lumber company within State are taxable
therein though registered in foreign State.
412 U. S. 76-83, 28 L. 673, UNITED STATES v. WADDELL.
Syl. 1 (X, 873). Conspiracy Justifies loss of Fedwal privileges.
Approved in Motes v. United States, 178 U. S. 462, 44 L. 1151, 20
Sup. Ct 995, holding life imprisonment for conspiracy accompanied
with murder in violation of U. S. Rev. Stat, §§ 5508, 5509, providing
imposition State law, not excessive of Federal authority; United
States v. Morris, 125 Fed. 322, liolding conspiracy between two or
more to prevent negro citizen leasing and cultivating land, because
negroes, unconstitutional within Rev. Stat U. S., § 5508.
Syl. 2 (X, 873). Conspiracy punishable depriving of homestead
entry.
Approved in Karem v. United States, 121 Fed. 253, holding pre-
vention of negroes voting at State or municipal elections within
Rev. Stat, § 5508, must relate to acts of State, not of individuals.
Syl. 3 (X, 873). Allegations must be full proving conspiracy.
Approved in Haynes v. United States, 101 Fed. 819, holding in-
dictment under Rev. Stat, § 5508, charging conspiracy to prevent
person settling public land, failing describing acts of conspiracy, is
insufficient
112 U. S. 83-94. Not cited.
112 U. S. 94-123, 28 L. 643, ELK v. WILKINS.
SyL 1 (X, 875). Indian member tribe not Federal citizen.
Approved in Peters v. Malin, 111 Fed. 249, holding Federal control
arises from its relation to all tribal Indians, and is not dependent
upon title to land upon which they reside; Ya-ta-tah-wah v. Reboclc,
105 Fed. 259, holding tribal Indian may sue in Federal court for his
arrest under State statute inapplicable to him, construction Federal
law and treaties being involved; State v. Columbia George, 39 Or.
134, 65 Pac. 606, holding act Congress February 8, 1887, not re-
Ungulshlng Federal criminal Jurisdiction, murder on Umatilla reser-
vation is triable only In Federal courts.
Syl. 4 (X, 876). Fourteenth Amendment means citizenship fullest
sense.
Approved in Dunbar v. Green, 66 Kan. 566, 72 Pac. 246, holding
litigant though member of Indian tribe does not release him from
all obligations to be diligent in asserting his rights; Board, etc., v.
Godfroy, 27 Ind. App. 616, 60 N. E. 179, holding Indian voluntarily
112 U. S. 123^177 Notes on U. S. Reports. 670
taking up residence apart from any tribe and adopting habits of
civilized life is an Indian citizen, and liable to taxation.
112 U. S. 123-139. Not cited.
112 U. S. 139-143, 28 L. 641, MERSMAN v. WERGES.
Syl. 1 (X, 877). Maimer unreleased surety signing without con-
sent
Approved in First Nat. Banlc v. Weidenbeclc, 97 Fed. 898, holding
third party's name on note as guarantor, by agreement with payee,
without maimer's privity, and subsequent erasure, agreement be-
tween same parties not material alteration; Produce Exchange, etc.,
Co. v. Bieberbach, 176 Mass. 590, 58 N. E. 168, holding the fact that
name of subsequent indorser was a forgery did not affect liability
of prior indorsers. See 86 Am. St. Rep. 91, note.
112 U. S. 144-149, 28 L. 670, HORBACH v. HILL.
Syl. 3 (X, 878). Fraudulent conveyance — Present creditor can
complain.
Approved in Merchants' Banlc v. Thomas, 121 Fed. 310, holding
partnership prior to banltruptcy may agree to pay individual part-
ner's debt for extension of time, and trustee cannot attack for
fraud; Kemper, etc., Co. v. Rensbaw, 58 Nebr. 515, 78 N. W. 1071,
holding in petition nature of creditors' bill to annul conveyance or
mortgage as fraudulent, facts of asserted fraud must be specifically
stated.
112 U. S. 150-165, 28 L. 636, FORT SCOTT v. HICKMAN.
Syl. 1 (X, 878). Debt revived by writing only.
Approved in Davis v. Davis, 98 Me. 136, 56 Atl. 588, holding
Statute of Limitations is avoided by written acknowledgment of, or
promise to pay the debt if made intentionally for that purpose.
Syl. 2 (X, 878). Circumstances may repel inferences of debt
Approved in Mauplh v. Insurance Co., 53 W. Va. 568, 45 S. B. 1007,
holding party filing pleas in abatement, going to trial on merits
under pleas in bar, not asking trial under former, same is waived.
Syl. 4 (X, 879). Supreme Court reversing Judgment may direct
Approved in Churchill v. Buck, 102 Fed. 44, holding facts found
covering all issues and inadequate to support judgment, case not
reversed on new trial, but general judgment for defendant.
112 U. S. 165-177, 28 L. 680, BUENA VISTA COUNTY v. IOWA
FALLS, ETC., CO.
Syl. 2 (X, 879). Decision commissioner land office not final.
Approved in McCord v. Hill, 111 Wis. 525, 87 N. W. 483, holding
application with necessary facts for confirming previous commuled
pre-emption entry, not condition precedent to commissioner, may be
made direct to secretary of interior.
071 Notes on U. S. Reports. 112 U. S. 177-193
■
112 U. S. 177-178, 28 L. 691, EX PARTE VIRGINIA COMMIS-
SIONERS.
Syl. 2 (X, 880). Supreme Court reviews without formal allow-
ance.
Approved in Fitzpatricli v. Graham, 119 Fed. 354, holding joinder
in writ, disregarding petition, is sufficient mailing defendants parties
to suit, and they remained conferring Federal jurisdiction, writ not
amendable by trial court; Alaslca, etc., Min. Co. y. Keating, 116
Fed. 565, holding judge need not allow writ of error if issued and
served by copy lodged with clerls of court to which directed; Love-
less y. Ransom, 109 Fed. 392, holding though trial court approved,
bond on writ of error does not operate as writ of error, neither
judge nor court below able to issue such.
112 U. S. 178-180, 28 L. 690, EX PARTE CROUCH.
Syl. 1 (X, 880). State prisoner not subject — Habeas corpus.
Approved in Colston v. Southern Home, etc., Assn., 99 Fed. 310,
holding stoclcholder's suit for appointment* of receiver pending in,
and refusal by State court. Federal court will not entertain suit for
same purpose.
112 U. S. 180-183. Not cited.
112 U. S. 183-187, 28 L. 692, SCOTLAND COUNTY v. HILL.
Syl. 1 (X, 881). Suit invalid bonds binds subsequent parties.
Approved in Union & Planters' Banlc v. City of Memphis, 111
Fed. 568, holding State court judgment pleaded in Federal or an-
other State court as res judicata is determinable by "law or
usage" of State where rendered; Ransom v. City of Pierre, 101 Fed.
668, holding bondholder's mandamus against city treasurer to pay
interest coupons virtually an action, and adverse judgment is
pleadable in bar to subsequent suit same character.
112 U. S. 187-193, 28 L. 693, AYRES v. WISWALL.
Syl. 1 (X, 882). Proper controversy. Federal court demands re-
movaL
Approved in Holmes v. Southern Ry. Co., 125 Fed. 301, holding
act August 13, 1888, chap. 66, S 2, 25 Stat 434, authorizes removal
ground prejudice or local Influence though statutory disabilities
exist; Mayo v. Doclsery, 108 Fed. 898, holding cause not removable
on diverse citizenship and not otlierwise provided for not removed
under judiciary act 1887-88 in absence of facts shown.
Syl. 4 (X, 883). Removal requires separate controversy.
Approved in Geer v.Mathleson Allsali Worlds, 190 U. S. 432, 23
Sup. Ct. 809, 47 L. 1125, holding separable controversy justifying
removal exists between plaintiffs and two corporations as defend-
ants in complaint seel^ing to set aside fraudulent conveyance be-
tween such corporations; Farmers* Loan, etc.. Trust Co. v. Lake
112 U. S. 103-206 Notes oa U. S. Reports. 072
•
St Elevated R. R. Co., 122 Fed. 922, holding trustees under trust
deed having discretionary power to foreclose, their concurrence Is
requisite, nonconcurrence not being breach, but giving beneficiaries
right to sue; Smedley v. Smedley, 110 Fed. 258, holding removal on
separable controversy between citizens of different States must be
a controversy which can be fully determined between them; Col-
burn V. Hill, 101 F«d. 505, holding creditors' suit to obtain adminis-
tration of insolvent corporation, and incidentally excluding certain
defendants is indivisible and not removable as separable contro-
versy; United States Mort Co. v. McClure, 42 Or. 198, 70 Pac. 544,
holding necessary joining persons in foreclosure, plaintiff desiring
personal judgment, controversy not separable between plaintiff and
landowner for removal purposes.
Syl. 5 (X, 883). Removal requires actual separate controversy.
Approved in Broadway Ins. Co. v. Chicago, etc., Ry., 101 Fed.
509, 510, holding suit improperly removed, duty to remove not
affected by defendant's claim that no cause of action is stated, that
question being for State court.
(X, 882). Miscellaneous.
Cited in Empire Min. Co. v. Propeller, etc., Co., 108 Fed. 904,
holding Federal court remanding then refusing, plaintiff meantime
filing first order State court, same not strilcable from Federal doci^et
until defendant has appealed Supreme Court.
112 U. S. 193-201. Not cited.
112 U. S. 201-206, 28 L. 629. FOSTER v. KANSAS.
Syl. 1 (X, 885). Writ of error operates as supersedeas.
Approved in Austin v. Tennessee, 179 U. S. 347, 45 L. 228, 21 Sup
Ct 133. holding legislative act prohibiting sale of cigarettes, the use
being deleterious, particularly to young people, is within police
power of legislature, not applying to original packages; Jabine v.
Gates, 115 Fed. 864, holding appeal will not lie from judgment of
Federal court awarding writ of mandamus, which is at law.
Syl. 4 (X, 885). State may prevent manufacture of intoxicants.
Approved in State v. Bixman, 162 Mo. 27, 62 S. W. 833, holding
State exercises proper police power by requiring intoxicants made
of certain standard and imposing tax for inspection.
Syl. 6 (X, 886). Removing officer granting hearing constitutional.
Approved in New Orleans Water-Works Co. v. Louisiana, 185
U. S. 350. 46 L. W3, 22 Sup. Ct. 696, holding parties having full
hearing, no Federal question arises from forfeiture of charter by
corporation by decree of State court on quo warranto proceedings;
Taylor & Marshall v. Beckham (No. 1), 178 U. S. 572, 581, 594, 44 L.
1198, 1202, 1206, 20 Sup. Ct 899, 902, 1009, 1012, holding State
tribunals deciding against claimant to office of governor deprives
him of no property, thus giving Federal Supreme Court jurisdiction
673 Notes on U. S. Reports. 112 U. S. 20G-232
on writ of error; dissenting opinion in Hartigan v. Board of Regents.
etc., University, 49 W. Va. 37, 38 S. E. 708, majority holding court
has no jurisdiction to review action of board of regents of West
Virginia University removing a professor, notice and hearing not
required. See 94 Am. St. Rep. 379, note.
Di43tinguished in Hartigan v. Board of Regents, etc., 49 W. Va.
26, 38 S. E. 703, holding court has no jurisdiction to review action
of board of regents of West Virginia University removing a pro-
fessor, notice and hearing not required.
112 U. S. 206-215. Not cited.
112 U. S. 216-217, 28 L. 697, SNYDER v. UNITED STATES.
Syl. 1 (X, 886). One good count general verdict valid.
Approved in Dimmick v. United States, 116 Fed. 832, holding
any one count being good warranting judgment, same will not be
reversed on ground of insufficiency of the indictment
Syl. 2 (X, 886). Judgment unaffected bad spelling verdict
Approved in Long v. State, 42 Fla. 613, 28 So. 855, holding verdict
will not be invalid though spelling thereof is bad, if meaning is be-
yond reasonable doubt
112 U. S. 217-227, 28 L. 698, LABETTE CO. COMRS. v. UNITED
STATES.
SyL 1 (X, 887). Federal court can mandamus county commis-
Bioners.
Approved in Thompson v. Perrls Irr. Dist, 116 Fed. 770, holding
mandamus Is proper remedy in Federal Circuit Court for collecting
judgment obtained therein against irrigation district of California;
Board of Liquidation v. United States, 108 Fed. 691, holding Federal
court has jurisdiction ancillary to action therein, in which judg-
ment was rendered, to award writ of mandamus to pay same as
required by State statutes.
Syl. 3 (X, 887). Single mandamus writ may join many.
Approved in Hicks v. Cleveland, 106 Fed. 462, holding statute
requiring county auditor to assess, treasurer to collect tax for pay-
ing municipal debt, single writ of mandamus may issue against
both; State v. Harbison, 64 Kan. 298, 67 Pac. 844, holding man-
damus is proper to compel proper officers to reassess personal prop-
erty, though they perform separate and distinct acts.
112 U. S. 227-229. Not cited.
112 U. S. 229-232, 28 L. 714, HANCOCK v. HOLBROOK.
SyL 1 (X, 888). Citizenship must appear in removal.
Approved in Great Southern Fire Proof Hotel Co. v. Jones, 177
U. S. 454, 44 L. 844, 20 Sup. Ct. 692, holding citizenship of indi-
vidual members of limited partnership created by Pennsylvania law9
Vol. 11—43
112 U. S. 232-261 Notes on U. S. Reports. 1174
must be alleged In association suit in Federal court, diyerse citizen-
ship being requisite; Central Grain & S. Exchange y. Board of
Trade, 125 Fed. 466, holding Federal court's jurisdiction oyer sub-
ject-matter and parties must affirmatiyely appear upon the record.
112 U. S. 232-244. Not cited.
112 U. S. 244r-249, 28 L. 702, MORRIS y. McMILLAN.
Syl. 1 (X, 889). Patent not inyolying invention is yoid.
Approved in Neptune Meter Co. v. National Meter Co., 127 Fed.
567, holding Nash water-meter being but the application of an old
process producing old result is not patentable over prior Tracy
patent; Wisconsin, etc., Co. v. American, etc., Co., 125 Fed. 769,
holding stationary carpet cleaner existing. Nation's movable one on
same principle is not infringed by Thurman's patent
112 U. S. 250-261, 28 L. 708, CONNECTICUT MUT. L, INS. CO. v.
UNION, ETC., CO.
Syl. 1 (X, 889). Physician cannot disclose facts about patient
Approved in L. Buclti & Son Lumber Co. v. Atlantic L. CO., 121
Fed. 249, holding under Rev. Stat., S 724, in actions at law Federal
courts may require parties to produce books and writings containing
pertinent evidence under ordinary chancery rules; Merchants' Life
Assn. y. Yoaltum, 98 Fed. 268, holding administrator's action on
insurance policy, decedent's widow not party in interest, that state-
ments made by her constitute admissions affecting plaintiff's rights.
Syl. 2 (X, 889). Section 721, Rev. Stat., relates to evidence.
Approved in Nashua Sav. Bank v. Anglo-American Co., 189 U. S.
228, 23 Sup. Ct 518, 47 L. 785, holding subscriber to foreign cor-
poration stock subjects himself to laws of foreign country respect-
ing powers and obligations of such corporation; Files v. Davis, 118
Fed. 467, holding Rev. Stat, § 915 (1901), makes attachment remedies
in Federal courts the same as laws of the States where such court
is held; Parker v. Moore, 111 Fed. 473, holding under Rev. Stat.
U. S., S 721, rules of evidence of State courts, established by statute
or decisions, become those of Federal courts sitting therein in
actions at law.
Syl. 3 (X, 890). Slight ailment not disease.
Approved in Preferred Ace. Ins. Co. v. Mulr, 126 Fed. 929, holding
" disease " did not apply to temporary derangement of stomach
precluding recovery for insured's death by being thrown from
train; McClain v. Provident, etc., Soc, 110 Fed. 04, holding insured's
statement that he had never had any sickness "except temporary
ailments " and that jury found he had " indigestion at times " did
not avoid policy; Hubbard v. Mutual, etc., Assn., 100 Fed. 723, hold-
ing life insurance application reciting answers and statements
being warranted or policy void, the two constitute one written
675 Notes on U. S. Reports. 112 U. S. 261-276
agreement, both insured and beneficiary being bound; McDermott
V. Modem Woodmen, 97 Mo. App. 650, 71 S. W. 837, holding insured
warranting that he had not consulted a physician for seven years,
same being false, relieves insurer from liability.
Distinguished in Mutual Life Ins. Go. v. Simpson, 88 Tex. 338, 31
S. W. 502, holding insurer's false answer regarding disease and ail-
ments constitute breach of contract, though immaterial to risk,
unless same are temporary and exceptional.
Syl. 4 (X, 890). Exception must be specific.
Approved in Peterson v. Des Moines Life Assn., 115 Iowa, 673,
87 N. W. 399, holding company alleging insured made untrue an-
swers to questions, it was for jury to say, if untrue, they were
fraudulent, not that they were untrue; Henn v. Metropolitan Life
Ins. Co., 67 N. J. L. 315, 51 Atl. 691, holding confiict in evidence
or lack of conclusive and unquestioned proof of falsity of war-
ranty of insured, question is one for the jury.
112 U. S. 261-273, 28 L. 704, GRENADA COUNTY v. BROGDEN.
Syl. 1 (X, 891). Statutory construction should harmonize with
Constitution.
Approved in Knights Templars' Indemnity Co. v. Jarman, 187 U.
S. 205, 23 Sup. Ct. Ill, 47 L. 145, holding Federal Supreme Court will
not declare amendatory State statute invalid because of title of stat-
ute referred to where it has been upheld by State decisions; Williams
V. Gaylord, 102 Fed. 375, holding State Supreme Court having con-
strued Cal. Stat. 1880, p. 131, § 1, as applying to foreign and domestic
corporations, such binds Federal courts; State v. Lewis, 26 Utah,
124, 72 Pac. 389, holding legislative enactment is presumed to be
valid until the contrary is shown beyond all reasonable doubt;
Young V. Salt Lake City, 24 Utah, 333, 67 Pac. 1068, holding reason-
able doubt as to the constitutionality of a statute will be resolved in
favor of its validity; State v. Tingey, 24 Utah, 229, 67 Pac. 34, hold-
ing legislative construction of constitutional provision should be fol-
lowed by courts if fair meaning of words is not thereby violated.
SyL 2 (X, 891). Subsequent legislation may confirm prior acts.
Approved in Steele Co. v. Ersklne, 98 Fed. 217, holding Constitu-
tion not prohibiting the character, subsequent legislative enactment
may legalize prior municipal act unauthorized at the time; Carpen-
ter V. Greene County, 130 Ala. 632, 29 So. 198, holding election
irregularities in the issuance of bonds may be cured by legislative
act; People v. Lochner. 177 N. Y. 158, 165, 69 N. E. 378, 381, holding
laws restricting hours of labor in bakeries are police regulations
and not antagonistic to Fourteenth Amendment of Federal Const!'
tution.
112 U. S. 273-276. Not cited.
112 U. S. 276-306 Notes on U. S. Reports. 676
112 U. S. 276-293. 28 L. 722, EXCHANGE NAT. BANK ▼. NA-
TIONAL BANK.
Syl. 1 (X, 892). Collecting bank liable negligence third bank.
Approved in Ft. Dearborn Nat. Bank v. Security Bank, 87 Minn.
84, 91 N. W. 258, holding subbank was agent for collection of check,
and not using reasonable care to protect principal bank, latter re-
leased from liability; Sherman v. Port Huron, etc., Co., 13 S. Dak.
100, 82 N. W. 414, holding note payable at bank to which sent, no
authority to employ subagent, there can be no delegation of powers
to another. See 77 Am. St. Rep. 613, 610, 617, 625, notes.
(X, 892). Miscellaneous.
See 77 Am. St. Rep. 628, note.
112 U. S. 294-306, 28 L. 729, HEIDRITTER v. OIL-CLOTH CO.
Syl. 1 (X, 892). Mechanic's land lien proceeding in rem.
Approved In Colston v. Southern Home, etc., Assn., 99 Fed. 312,
holding Federal court will not appoint receiver at instance of cor-
poration stockholders, where prior suit in State court Is still
pending.
Syl. 2 (X, 893). Court having res has exclusive Jurisdiction.
Approved in Hitz v. Jenks, 185 U. S. 168, 46 L. 856, 22 Sup. Ct 603,
holding trustee in private deed of trust of realty, holding same as
receiver, cannot dispose of it without leave of court; Knott v. Even-
ing Post Co., 124 Fed. 354, holding res not Involved in stockholder's
suit in State court, but is, subsequently. In Federal suit by creditors,
latter court has supreme jurisdiction; The Jonas H. French, 119
Fed. 464, holding vessel actually possessed by receiver appointed
by Circuit Court, beyond authority of District Court without
former's consent though cause was prior to receivership; Memphis
Sav. Bank v. Houchens, 115 Fed. Ill, holding State court having
Jurisdiction to grant relief regarding lands in two divisions of Fed-
eral district, upon proper removal Federal court is equally efficient;
Starr v. Chicago, etc., Ry. Co., 110 Fed. 6, holding Federal and State
courts having concurrent Jurisdiction the first attaching holds to
exclusion of other till duty is fully performed; Marx v. Hart 166
Mo. 521, 66 S. W. 266, holding Judgment against garnishee giving
statutory lien on realty not Invalidated by subsequent discharge in
bankruptcy of garnishee; State v. Tallman, 29 Wash. 415. 69 Pac.
1117, holding suit in Federal court for money and bonds plea In
abatement properly sustained in action for same, subsequently com-
menced in State court; State v. Fredlock, 52 W. Va. 241, 43 S. B.
157, 94 Am. St. Rep. 940, holding Jurisdiction of court embraces
everything in the case, and Jurisdiction is exclusive until exhausted
or relinquished.
Syl. 3 (X, 893). Federal proceeding In rem binds State.
Approved in Leigh v. Green, 62 Nebr. 354, 89 Am. St. Rep. 759.
86 N. W. 1097, holding holder of tax lien may foreclose in State
677 Notes on U. S. Reports. 112 U. S. 306-343
court and sell land though action is pending between other parties
in Federal court regarding same land.
112 U. S. 300-311, 28 L. 746, EAST TENNESSEE, ETC., B. R. CO.
V. SOUTHERN TEL. CO.
Syl. 2 (X, 895). Statutory remedy binds every court
Approved in Postal Tel. Cable Co. v. Southern Ry. Co., 122 Fed.
159, holding constitutional guarantee jury trial in actions at law
not applicable in condemnation land proceedings in Federal court
which follows State statutory provision; Central Stoclj Yards v.
Louisville, etc., R. R., 112 Fed. 826, holding where quesiions in-
volve many doubts, they should be determined, not upon ox parte
affidavits, but after a full examination.
112 U. S. 311-325. Not cited.
112 U. S. 325-330, 28 L. 744, BATES CO. v. WINTERS.
Syl. 2 (K, 896). Bends remain valid municipal corporation con-
solidated. •
See notes, 89 Am. St. Rep. 629, 631.
112 U. S. 331-343, 28 L. 717, HART v. PENNSYLVANIA R. R. CO.
Syl 1 (X, 896). Stipulated valuation limits liability of carrier.
Approved in The Kensington, 183 U. S. 272, 46 L. 194, 22 Sup. Ct.
105, holding arbitrary limitation of value of baggage on steamship
with no rights to increase same by adequate payment, void against
public policy; Jennings v. Smith, 106 Fed. 141, 142, 143, holding
written contract between shipper and caiTier fixing stated value
consideration of reduced freight charges, not void relieving carrier
of liability, affirming 99 Fed. 191; Moore v. Sun Printing, etc.. Assn..
101 Fed. 595, holding parties to charter may fix value of pleasure
yacht, and absence of fraud or mutual mistake binds parties; Adams
Express Co. v. Carnahan, 29 Ind. App. 612, 613, 63 N. E. 247, 64
N. E. 647, holding contract without fraud between express company
and consignor regarding fixed value on valuable consideration, is
'valid, binding to stipulated value; Graves v. Adams Express Co.,
170 Mass. 282, 57 N. E. 463, holding evidence showing plaintiff's
knowledge and assent to limitation, carrier liable only for the
agreed value of goods if lost; Nelson v. Great Northern Ry., 28 Mont.
319, 72 Pac. 649, holding contract for transportation of sheep fix-
ing value per head liability of cjirrior will be actual damage, but
not exceeding stipulated value in case of injury; Bermel v. New
York, etc., R. R., 172 N. Y. 641, 65 N. E. 1114, holding contract of
carrier limiting to stipulated value on consideration of reduced
rates is binding on both parties who should know contents of con-
tract: Normile v. Oregon Nav. Co., 41 Or. 186, 189, 69 Pac. 931, 932,
holding shipper agreeing to valuation of $1.00 per head in considera-
tion of lower freight is valid valuation, but does not relieve from
negligence; Uliman v. Chicago, etc., Ry., 112 Wis. 155, 157, 159,
112 U. S. 331-343 Nuiee on V. S. Uepurb. S7B
88 Am. SI. Rep. 1)50, Kil, 953, 8& N. W. 43, 44. lioldiog contract
between carrier and slilppiT flsltig vnlufttion of Hiibject ot carriage
In case of loss, Is valid as to amount ir Talrly made. See 88 Am.
St. Rep. 106. 107. 108. note.
DIstlDgulsbed in Central of Georgia Ry. Co. v. Murphey. 113 G*.
C19. 38 8. B. 072, holding carrier may make bona fide agreement
OB to value of property to be transported, and If loss occurs " agreed
value •■ binds; Gardner v. Soulbern R. R. Co., 127 N. C. 2S7, 37 S. E.
320. holding carrier can make valid agreeuieut fixing value of ah!p-
meot Id case of Iobs by its negligence, If agreement be reasonable.
Syl. 2 (X, 899). Currier's contract limits common-law liability.
Approved in Pennsylvania R. R, Co. v. Hugbea. 191 U. S. 485. hold-
ing refusal of Stale court to limit liability of common carrier for
negligence not unlawful regulation of Interstate commerce in
absence congressional action thereto; The Queen of The Pacific,
180 U. S. 67, 45 L. 422, 21 Sup. Ct. 281. holding stipulation In
bill of lading reciulrlug notice of dama;;e to steamship company
within thirty days validly applies In libel and claims In personam;
Saunders v. Southern Ry., 128 Fed. 10. holding common carrier may
contract for reasonable limitation of common-law liability regard-
lug loss of freight or baggage not resulting from negligence of its
; Doyle v. Baltimore, etc.. R. R., 128 Fed. 842. holding
1 carrier cannot hmit Its liability for goods lost in shipment
through Its negligence unless definitely agreement Is made with
shipper; The New England. 110 Fed. 418, holding steamship com-
pany's restriction of $50 for baggage is unreasonable, passenger'^
attention not called thereto, and carrier's servants causing loss;
Metropolitan Trust Co. v. Toledo, etc., R. R., 107 Fed, 631, holding
bill of lading providing that carrier he uotlfied of damage witbln
thirty days after delivery Is reasonatile and valid condition pre-
cedent; Central Ry. Co. v. LIppman, 110 Ga. 678, 3ft 8. E. 208,
holding carrier of passengers Is bound to extraordinary diligence
and he cannot waive or release this duty even by express contract;
Nelson v. Great Northern Ry., 28 Mont. 323, 72 Pac' 648, 650, hold-
ing common carrier cannot be exonerated by agreement In antlclfta-
tlon of liability from gross negligence, traud.'or wilful wrong of self
or servants; Parker v. Railroad, 133 N. C. 3i>9, 45 8. B. 659, holding
carrier accepting shipment, " subject to delay," has burden of show-
ing eierclse of due diligence to avokl delay carrying and deUvcrlngj
Hughes V. Railroad. 202 Pa. St. 227, 51 At! 691, holding though
horse Is carried outside of to point within State contract limiting
valuation to SlOO for negligence Is void; affirmed in 191 U. S. 4^.
Syl. 3 (X, 899). Shipper's fraud destroys Indemnity claim.
Distinguished in The St. Cuthbert, 97 Fed. 342, holding shipper
putting books containing valuable memoranda with clothing and
has bill of lading for "clothing" Is guilty of fraud, thus losing
Indemnity,
G79 Notes on U. S. Reports. 112 U. S. 344-^377
(X, 89^. Miscellaneous.
ated in Rosenthal y. Weir, 170 N. Y. 154, 63 N. E. 67, holding
carrier's liability limited, shipper' may sue for carrier's negligence
in delivering after notice to stop in tramsitu, having agreed thereto.
112 U. S. 344r-353, 28 L. 760, BRANDEIS v. COCHRANE.
SyL 3 (X, 900). Property appomted part of donee's assets.
Approved in Humphrey v. Campbell, 5U S. C. 46, 37 S. B. 29,
holding trust deed permitting disposal of estate by will, trust
estate not liable for testatrix's debts if willed, though trustee paid
her yearly income.
112 U. S. 354^69, 28 L. 665, MAHN v. HARWOOD.
Syl. 2 (X, 900). Decision patent commissioner statutorily at-
tackable.
Approved In Jones v. Cyphers, 126 Fed. 755, holding prior patents
though not pleaded are admissible shoveing prior art and assist
in determining invention of patent in question; Westinghouse Elec-
tric, etc., Co. V. Stanley, etc., Mfg. Co., 115 Fed. 813, holding mani-
fest error on record, courts can review action of commissioner
of patents granting reissue for inadvertence, accident, or mistake.
Syl. 3 (X, 901). Patent Reissue cannot enlarge original claim.
Approved in Pfenninger v. Heubner, 99 Fed. 443, holding nineteen
months delay in securing amendment of patent reissue renders
same void, when coupled with other questionable circumstances;
dissenting opinion in Tecktonius v. Scott, 10 Wis. 455, 86 N. W.
677, majority holding patent primary character and patentee pioneer,
larger latitude is given if field is unexplored and change of form
only is involved.
Qjh 4 (X, 902). Court decides reasonable time of reissue.
Approved in United Blue Flame Oil Stove Co. v. Glazier, 1J9 Fed.
160, holding delay of more than five years before applying for re-
issue on ground of inadvertence, etc., invalidates reissue unless
specially excused; Crown Cork, etc., Co. v. Aluminum, etc., Co.,
106 Fed. 855, holding decision of patent office sustaining reissue
seven months from original, matter having been contested for
two years, not conclusive, but entitled to great weight; Pelzer v.
Meyberg, 97 Fed. 071, holding original patent absolutely invalid,
unexcused delay of twelve years applying for reissue constitutes
laches invalidating said reissue.
Syl. 6 (X, 903). Reissue refused, delay of four years.
Distinguished in Crown Cork, etc., Co. v. Aluminum, etc., Co.,
108 Fed. 858, holding abandonment temporarily does not nullify
patent subsequently applied for and obtained before adverse rights
accrued.
112 U. S. 869-377. Not cited.
112 U. S. 377-306 Notes on U. S. Reports. 680
112 U. S. 377-^96, 28 L. 787, CHICAGO, ETC.. RY. CO. v. ROSS.
Syl. 1 (X, 903). Servant assumes ordinary risks specified service.
Approved in Louisville, etc., R*. R. Co. v. Stuber, 108 Fed. 938.
939, holding water foreman riding back and forth to pump supply,
not passenger, but fellow servant of engineer, injury from whose
negligence company not liable; Cincinnati, etc., Ry. v. Gray, 101
Fed. G29, holding railroad receiver substituting new and different
switch, thus causing switch foreman's death, liable not giving
proper instructions, it being his duty so to do.
Syl. 2 (X, 904). Those of same department fellow servants.
Approved in Pennsylvania Co. v. Flshark, 123 Fed. 472, holding
yard master being fellow servant, fireman injured because of form-
er's negligence cannot recover against company; Olson v. Oregon,
etc., Co., 104 Fed. 576, holding owners of ship making her sea-
worthy are not liable for negligence of ofiScer injuring seaman,
they being fellow servants; Briegal v. Southern Pac. Co., 08 Fed.
9G2, 963. holding fireman though oiling turntable by engineer's
direction, and thereby injured, being fellow servant, master not
liable; Hawk v. McLeod Lumber Co., 166 Mo. 129, 65 S. W. 1024.
holding though sawyer could have men discharged by speaking to
foreman, still deckhand and he were fellow servants, thus prevent-
ing recovery for injurious negligence; Grattis v. Kansas C. etc.,
Ry. Co., 153 Mo. 401, 77 Am. St. Rep. 734, 55 S. W. 114. holding
freight conductor signaling engineer to go forward, thus injuring
fireman, is fellow servant, of them, and company is not liable;
Mast V. Kern, 34 Or. 249, 75 Am. St. Rep. 581, 54 Pac. 951, holding
defendant's superintendent consulting with plaintiff relative to
safety of blasting, latter assenting and performing and being
injured, the two were fellow servants precluding recovery; Wlskie
V. Montello Granite Co., Ill Wis. 450, 87 N. W. 464, holding quarry
foreman, conducting blasting with assistance of other employees,
Is fellow servant with them, precluding recovery against company
for injury to employee; dissenting opinion In Hobson v. New Mexico,
etc., R. R., 2 Ariz. 200, 11 Pac. 560, majority holding where teamster
who hauls railroad ties is part of working force on construction
train, he and engineer are fellow servants; dissenting opinion in
McTaine v. Head & Dowst Co., 71 N. H. 301, 52 Atl. 549, majority
holding foreman's failure to warn laborer In deep trench when load
was to be dumped, not master's breach falling to provide safe place.
Distinguished In Stevens v. Chamberlln, 100 Fed. 383, holding
master of woollen mill not liable for Injury caused by head machin-
ist's negligence where he assisted in repairs himself, all being fellow
servants; Hobson v. New Mexico, etc., R. R., 2 Ariz. 186, 11 Pac.
551, 552. holding where teamster who hauls railroad ties is part
of working force on construction train, he and engineer are fellow
servants: Knutter v. New York, etc., Co., 67 N. J. L. 652, 52 AtL
567, holding ** district manager " actively assisting foreman, and
681 Notes on U. S. Reports. 112 U. S. 377-396
lineman was thereby injured by manat;er*s negligence, company
not liable, they all being fellow servants.
Syl. 3 (X, 904). Conductor not fellow servant brakeman» engineer.
Approved in Elliott v. Felton, 119 Fed. 278, 279, holding decision
holding conductor vice-principal, having proceeded on general
grounds, is general law not involving construction of a statute;
Chicago House W. Co. v. Birney, 117 Fed. 77, holding superintend-
ent of house wrecking company being vice-principal, injury to work-
man, because of his negligence, holds company liable; St Louis, etc.,
R. R. Co. V. Furry, 114 Fed. 900, holding as per statute, negligence
of telegraph operator causing fireman's injury, company liable,
the men not being of same grade and department; Southern Pac.
Co. V. Schoer, 114 Fed. 474, holding sections 1342, 1343, Rev. Stat.
of Utah, make all intrusted with authority to command other
servants, vice-principals of their master, making master liable for
Injurious negligence; Stuber v. Louisville, etc., R. R. Co., 102 Fed.
422, holding plaintiff, a skilled machinist, injured while riding back
and forth keeping pumps in repair, not fellow servant with engineer
preventing recovery; Thomas v. Cincinnati, etc., Ry., 97 Fed. 250,
holding yard master's failure to explain proper use of switch to
employees using it, breach of duty, making railroad company liable;
Dobson V. New Orleans, etc., R. R. Co.. 52 La. Ann. 1134, 1135,
1136, 27 So. 673, 674, holding foreman of dirt gang on flat train being
Injured by collision at night, owing to conductor's abandoning train,
makes company liable though fellow servants: New Omaha, etc.,
Co. V. Baldwin, 62 Nebr. 189, 87 N. W. 30, holding foreman having
management, superintendence, and control of branch of defend-
ant's work, not fellow servant with workman under him; Elmore
V. Seaboard Air Line Ry., 132 N. C. 878, 44 S. E. 624, holdiog rail-
road failing to have proper car couplers is continuing negligence,
per se, and in action contributory negligence not pleadable in de-
fense; Hicks V. Southern Ry., 63 S. C. 576, 41 S. E. 758, holding
conductor on train is fellow servant of flagman on another train,
but not of flagman on his own train; Howe v. Northern Pac. Ry.,
30 Wash. 579, 70 Pac. 1103, holding fireman injured by collision of
two trains cannot be held fellow servant of both or either con-
ductors; dissenting opinion in Missouri, etc., Ry. v. Elliott, 102 Fed.
Ill, majority holding railroad train dispatcher directing movements
of trains not fellow servant of employees operating such trains, but
performs duty of master; dissenting opinion in Hobson v. New
Mexico, etc., R. R., 2 Ariz. 200, 11 Pac. 560, majority holding teamster
hauling railroad ties and riding on train to dinner, and thereby
injured, not fellow servant with engineer in defeating recovery,
engineer being negligent. See 75 Am. St. Rep. 608, 009, 625, notes.
Distinguished in Hobson v. New Mexico, etc., R. R., 2 Ariz. 185,
11 Pac. 551, holding teamster hauling railroad ties and riding on
112 U. S. 396-413 Notes on U. S. Reports. 082
train to dinner, and thereby Injured, not fellow servant with engineer
In defeating recovery, engineer being negligent.
Syl. 4 (X, 910). No error Judgment verdict unaffected.
Approved In dissenting opinion in Fleming y. Southern By., 132
N. C. 719, 44 S. E. 553, majority holding In action conductor's negli-
gence causing Injury of employee, instruction clearly referring to
" Exhibit B " and not to release " Exhibit A," no error.
Distinguished in Scott v. Chicago, etc., Ry. Co., 113 Iowa, 385,
85 N. W. 632, holding instruction in personal injury case that
principal is answerable for vice-principars negligence, not dis-
tinguishing acts performed is faulty.
112 U. S. 306-404, 28 L. 748, BATCHBLOR v. BRERETON.
Syl. 1 (X, 910). Husband's land conveyed without wif e*8 sig-
nature.
Approved In Dietrich v. Hutchinson, 73 Vt 138, 87 Am. St Rep.
700, 50 Atl. 811, holding husband's freehold Interest In wife's prop-
erty by virtue marital relation, her conveyance must designate him
as grantor, their Jointly signing not enough.
112 U. S. 405-413, 28 L. 733, REYNOLDS v. CRAWFORDSVILLB
BANK.
Syl. 2 (X, 910). State law generally enforceable Federal courts.
Approved In Hanley v. Beatty, 117 Fed. 67, holding under section
4538, Rev. Stat, of Idaho, Federal court may determine entire con-
troversy, parties claiming realty adversely, and all defenses omitted
afterward debarred; dissenting opinion in Wahl v. Franz, 100 Fed.
701, majority holding probate of will in Arliansas not ** suit civil
nature at law or equity " within Judiciary act 1888, cognizable by
or removable to Federal courts.
Syl. 3 (X, 911). Federal court in State quiets title.
Approved in Sweeney v. Hanley, 126 Fed. 100, holding majority
owner in mining property (Idaho) may mine same, accounting to
minority owners in absence of wrongdoing or fraud; Rincon Water,
etc., Co. V. Anaheim, etc., Water Co., 115 Fed. 549, holding until
all necessary work Is done, simply posting notice of appropriating
water of stream gives no right maintaining legal or equitable suit
for diversion; Green v. Turner, 98 Fed. 758, holding to quiet title.
Federal Jurisdiction not defeated because residents of another
State cannot be served though adequate legal remedy maintainable
against tenants in possession; Bird v. Winyer, 24 Wash. 277, 64
Pac. 180, holding Indian obtaining allotment of one-fourth section,
his wife's children inherited no interest, mother dying before step-
father.
Distinguished in Ely v. New Mexico, etc., R. R., 2 Ariz. 427, 19
Pac. 9, holding plaintiff out of possession to maintain bill quiet
title, must allege inadequate legal remedy and grounds for equitable
relief.
683 Notes on U. S. Reports. 112 U. S. 414-461
Syl. 6 (X, 913). Sovereignty objects conveyance realty to cor-
poration.
Approved In Blodgett v. Lanyon Zinc Co., 120 Fed. 897, holding
absence express statutory provisions to contrary, innocent acts and
contracts of foreign corporations are valid and enforceable In another
State; Brown v. Schleier, 118 Fed. 988, holding ultra vires contract
of national banls executed ten years prior to appointment, receiver
cannot maintain suit, United States or stockholder not complaining;
Savings & Trust Co. v. Bear Valley Irr. Co., 112 Fed. 701, holding
corporation borrowing and retaining money from another corpora-
tion, executing mortgage as security, estopped denying acts per-
formed by each; Sanders v. Thornton, 97 Fed. 864, holding under
Arkansas statutes, in force In Indian Territory, action unlawful de-
tainer will not He except relation landlord and tenant exist; Hag-
erstown Mfg. Co. v. Kudy, 91 Md. 439, 46 Atl. 967, holding trustee
In deed of trust cannot avoid sale of property, ground of ultra vires
contract, his bill acknowledging that title passed.
112 U. S. 414-423, 28 L. 794, KANSAS PAC. R. R. v. ATCHISON
R. R.
SyL 2 (X, 913). Corporations same as citizens regarding rights.
Approved in Southern Pac. R. R. Co. v. Bell, 183 U. S. 680, 46
L. 386, 22 Sup. Ct. 234, holding secretary of interior unauthorized by
act July 27, 1866, to withdraw lands within indemnity limit In ad-
vance of selections by railroad.
8yl. 3 (X, 913). Public lands — Railroad selecting gets title.
Approved In Oregon, etc., R. R. v. United States, 189 U. S. 113,
23 Sup. Ct. 619, 47 L. 731, holding prior settlement in good faith
within Indemnity limits not affected by railroad's subsequent selec-
tion to supply deficiencies in place limits; Clark v. Herrington, 186
U. S. 209, 46 L. 1130, 22 Sup. Ct 874, holding railroad having no
patent or certificate, Innocent purchaser of indemnity land un-
lawfully selected is not protected; Hewitt v. Schultz, 180 U. S.
162, 45 L. 470, 21 Sup. Ct. 314, holding until valid selection by
grantee is made within indemnity limits, United States may dispose
of them as public lands; United States v. Oregon, etc., R. R., 101 Fed.
318, holding homesteaders and pre-emptioners having prior right
to subsequent patent to railroad, rightful claimants may maintain
suit for cancellation of such patents.
112 U. S. 423-439. Not cited.
112 U. S. 439-451, 28 L. 764, FORTIER v. NEW ORLEANS BANK.
Syl. 3 (X, 915). Only government objection national bank lien.
Approved in Blodgett v. Sanyon Zinc Co., 120 Fed. 897, holding
al>sence express statutory provisions to contrary, innocent acts and
contracts of foreign corporations are valid and enforceable in another
State; Tidwell v. Chiricahua Cattle Co. (Ariz), 53 Pac. 195, holding
though intruder surreptitiously entered and took possession of
112 U. S. 452-484 Notes on U. S. Reports. 684
premises during tenant's temporary absence, such was equivalent
to forcible entry; First Nat. Banlt of St. Thomas v. Flath, 10 N.
Dak. 286, 86 N. W. 869, holding plaintiff as an indorsee in due
course, holds negotiable note freed from defenses existing between
the original parties.
112 U. S. 452^77, 28 L. 751, LAMAR v. MICOU.
Syl. 5 (X, 916). Infant's domicile follows that of parents.
Approved in Russell's Case, 64 N. J. Eq. 320, 53 Atl. 172, holding
infant's residence follows that of the father while he lives, but
after his death in general, it follows that of the mother.
Syl. 8 (X, 917). Ward has property title, guardian custody.
Approved in Wilcoxen v. Chicago, etc., R. R. Co., 116 Fed, 447,
holding statutory appointment (Iowa) of guardian does not vest
title to property in him, but only right to manage and control
property.
Syl. 9 (X, 917). Law ward's domicile fixes guardian's securities.
Approved in Judd v. New Yorli, etc., SS. CJo., 128 Fed. 11, holding
action to recover loss of goods against carrier, admissions to be
admissible, insurer must have been party to suit either of record
or otherwise. See 89 Am. St. Rep. 292, 293, 296, 297, note.
Syl. 6 (X, 916). Guardian beyond State matter of comity.
See 89 Am. St Rep. 278, 279, note.
(X, 916). Miscellaneous.
Cited in Wilcoxen v. Chicago, etc., R. R. Co., 116 Fed. 448, hold-
ing guardian of insane person suing, latter's citizenship determines
jurisdiction of Federal court or right of removal.
112 U. S. 478-484, 28 L. 820, CARTER v. CARUSI.
Syl. 2 (X, 918). Usurious Interes! recovered in seasonable suit.
Approved in Central Stoclt- Yards v. Louisville, etc., R. R., 112
Fed. 826, holding injunction not free from doubt not granted com-
pelling railroad with stock-yard in city to deliver stock to con-
necting carrier having yards in same city; Central Nat Bank v.
Haseltine, 155 Mo. 64, 55 S. W. 1017, holding national bank suing
on note, counterclaim alleging unsurious interest paid thereon.
Federal not State statutes govern the rights of parties.
Distinguished in Haseltine v. Central Nat Bank, 155 Mo. 74, 56
S. W. 897, holding construction given Federal statute, regarding
interest charged by national banks, in Federal Supreme Court must
be followed in State courts.
Syl. 3 (X, 918). Particular charge not requested not error.
Approved in Frizzell v. Omaha St Ry. Co., 124 Fed. 180, holding
no error In charge given, omission to give other rules or facts not
effectively challenged by mere objection or exception to instruc-
tions.
685 Notes on U. S. Reports. 112 U. S. 485-495
U2 U. S. 485-489, 28 L. 768, BIRDSELL v. SHALIOF.
Syl. 1 (X, 918). Patent — Licensee sues patentee's name.
Approved in Gentry v. Singleton. 128 Fed. 683, holding possession
of personal property by seller, no other evidence existing, will not
preclude true owner from reclaiming property or its value from
purchaser; Merrimac Mattress Mfg. Co. v. Brown, 122 Fed. 88, hold-
ing oral testimony of witnesses testifying from recollection of
different unpatentable article seen years before, insufficient to estab-
lish anticipation; Excelsior Wooden Pipe Co. v. Seattle, 117 Fed.
144, holding licensee under patent may Join patentee as cocomplaiu-
ant for Infringement and may appeal from adverse decree and
« patentee must Join; Chisholm v. Johnson, 106 Fed. 212, holding
exclusive licensee may Join with legal owner of patent and sue
in equity for infringement of same.
Syl. 6 (X, 919). Patentee's Judgment, licensee's rights not barred.
Approved in Van Epps v. International Paper Co., 124 Fed. 544,
holding Judgment for infringement against manufacturer not con-
clusive upon subsequent purchaser, regarding validity of patent or
infringement.
112 U. S. 490-495, 28 L. 822, MARYLAND v. BALDWIN.
SyL 1 (X, 920). Administrator's suit interested party real party.
Approved in French Republic v. Saratoga Vichy Co., 191 U. S.
438, holding rule of nullum tempus cannot be invoked by Frencli
Republic in defense of laches in suit to enforce exclusive right to use
word "Vichy;" Howard v. United States, 184 U. S. 681, 46 L. 757,
22 Sup. Ct. 546, holding private suitor for his benefit may in name
of United States sue on bond of Federal court clerk given for
faithful discharge of duty; Wilcoxen v. Chicago, etc., R. R. Co., 116
Fed. 447, holding guardian having only custody and management
of property, in suit citizenship of ward, not guardian's determines
Federal court's Jurisdiction in removal; Cincinnati, etc., R. R. v.
1?hiebaud, 114 Fed. 922, holding administrator not mere formal party
but vested with legal title by statute, his citizenship, not bene-
ficiary's, determines Federal Jurisdiction; Jack v. Williams, 113 Fed.
824, holding suit name of State is treated, in determining Jurisdic-
tion of Federal court, as though relators were alone the complain-
ants; Smith V. Packard, 98 Fed. 797, holding all obligors being
Joined as defendants, but dismissal before trial was to all except
one, the attachment proceedings stand against defendant alone.
Syl. 2 (X, 920). General verdict fails error one issue.
Approved in Fireman's Fund Ins. Co. v. McGreevy, 118 Fed. 419,
holding court submitting issue it should have decided, there must be
reversal t*hough another issue was submitted, upon which Jury
might have rendered general verdict.
112 U. S. 496-526 Notes on U. S. Reports. 686
SyL 4 (X» 021). Public recognition validates common-law mar-
riage.
Approved in Adger v. Ackerman, 115 Fed. 120, holding common-
law marriage presumed from matrimonial cohabitation, repute,
declarations, and acts of the parties, and subsequent ceremonial
marriage does not overcome the presumptions.
112 U. S. 495-501, 28 L. 825, ARTHUR v. MORGAN.
SyL 1 (X, 921). Carriage for use is '* household effects.**
Approved in Knowlton v. Moore, 178 U. S. 93, 44 L. 990, 20 Snp.
Ct 768, holding s^tion heading of statute properly considered in
interpreting same, when ambiguity exists and literal int^preta-
tion will work wrong or injury.
Syl. 2 (X, 921). Carriage having been used *' personal effects."
Approved in Battle & Co. Chemists* Corp. v. United States, 108
Fed. 220, holding importer must stand on objections made in his
protest, cannot vary from nor enlarge them on trial, nor in his
petition for review.
112 U. S. 502-506, 28 L. 811. ENGLAND v. GEBHARDT.
Syl. 1 (X, 922). Only fact recorded can be re-examined.
Approved in Teller v. United States, 111 Fed. 121, holding party
moving for review action trial court responsible to appellate court
for insertion in transcript of copies of all papers necessary to
hearing.
SyL 2 (X, 922). Filed paper found in by bill.
Approved in McDonnell v. Jordan, 178 U. S. 234, 44 L. 1050, 20
Sup. Ct 888, holding application removal will contest to Federal
Circuit Court for " prejudice or local influence," too late after mis-
trial, under Cong, act August 13, 1886.
SyL 3 (X, 922). Lower court's opinion not of record.
Approved in Loeb v. Trustees of Columbia Township, 179 U. S.
481, 45 L. 287. 21 Sup. Ct. 178, holding Circuit Court's opinion,
regularly filed, and annexed to and transmitted with record to
Federal Supreme Court, may be examined.
112 U. S. 506-513. Not cited.
112 U. S. 514-526, 28 L. 812, THE ELIZABETH JONES.
SyL 2 (X, 923). Vessel placed In extremis not liable.
Approved in Tlie Queen Elizabeth, 122 Fed. 408, holding action
of another vessel causing sudden peril, experienced navigator of
another vessel trying to avoid collision, his vessel not at fault
though his Judgment erred; The Atlantis, 119 Fed. 572, holding
fault of overtaking vessel for collision, every reasonable doubt
should be resolved in her favor regarding her contributory fault;
687 Notes on U. S. Reports. 112 U. S. 520-580
The Protectoi; 113 Fed. 870, holding error In extremis does not
exculpate vessel whose prior negligence brought about the situation;
The City of Augusta, 102 Fed. 097, holding privileged one of two
crossing steam vessels must stop and reverse where it is obvious
that she cannot avoid collisiou by her own manceuvers.
112 U. S. 526-536. Not cited.
112 U. S. 536-580, 28 L. 770, CHEW HEONG v. UNITED STATES.
Syl. 1 (X, 925). Courts respect treaty regulations.
Approved in United States v. Mrs. Gin LIm, 176 U. S. 465, 44
L. 547, 20 Sup. Ct 418, holding treaty of 1880, and act of Congress
1881, permit wife and minor children of Chinese merchant to enter
country, he being domiciled here.
Syl. 2 (X, 925). Statutes — Implied repeals not favored.
Approved In United Stales v. Lee Yen Tai, 185 U. S. 222, 46 L.
883, 22 Sup. Ct. 633, holding treaty with China December 8, 1894,
failing to prescribe procedure of deportation, does not abrogate
prior procedure of May, 1882, and July, 1884; United States v.
Hampton, 101 Fed. 715, holdliicr ** Dependent Pension Act,'* June
27, 1890 (26 Stat., chap. 634), did not impliedly repeal Rev. Stat.,
f 4716, regarding paying no pensions those aiding late rebellion.
Syl. 4 (X, 926). Statutes not retroactive without legislative
intent
Approved In Board of Comrs. v. Travelers' Ins. Co., 128 Fed. 821,
holding county bonds validly issued under State law so declared by
Supreme Court, Federal court will uphold validity though State
court reverses former ruling; Joseph v. Southern Ry., 127 Fed. 608,
holding consolidation of companies cannot impair existing rights
against any of constituent companies, nor is consolidation liable for
constituents' prior torts; Seaboard Steel Casting Co. v. William R.
Trigg Co., 124 Fed. 78, holding amendatory act making appointment
of receiver act of banltruptcy, not retroactive as to appointment
prior to act; Dodge v. Nevada Nat. Bank, 109 Fed. 731, holding
amendment Pol. Code Cal., § 3608, providing taxation bank shares
(Stat. 1899, p. 96). not retroactive not authorizing assessments for
fiscal year beginning 1899, Croasdale v. Davis, 9 Kan. App. 192, 59
Pac. 668, holding adoption section amendatory to former section,
omitting some provisions therein, does not repeal former unless In-
consistency exists; Collins v. Sherwood, 50 W. Va. 146, 40 S. E.
608, holding curative provisions of section 25, chap. 31, Code 1899.
not retroactive, applying only to tax sales made after they were
passed; State ex rel. Gates v. Commission of Public Lands, 106 Wis.
586, 82 N. W. 549, holding general repealing clause of revision
refers only to general statutes, not to statutes regarding particular
matters within their general scope; dissenting opinion in Evans-
112 U. S. 580-COO Notes on U. S. Report*. 688
Snlder-Btiel Co. v. M*Fadden, 105 Fed. 312, majority holding retro-
spective act not unconstitutional, depriving of property without due
process, where adjudication had not given vested right
112 U. S. 580-600, 28 L. 798, HKAD-MONEY CASES.
Syl. 1 (X, 927). Duty on immigrant aliens is valid.
Approved in Austin v. Tennessee, 179 U. S. 372, 45 L. 237, 21
Sup. Ct. 134, holding legislature may restrict or prohibit sale of
clgaretteS; being within police power, provided it does not apply
to original packages, or makes no commercial discriminations.
Syl. 3 (X, 927). Tax same everywhere is uniform.
Approved In Patton v. Brady, 184 U. S. 622, 623, 46 X- 720, 22
Sup. Ct. 498, holding tobacco tax for war revenue act June 13, 1898,
** In lieu tax now imposed," excise tax, not direct tax upon prop-
erty, apportlonabie according to population; Downes v. Bidwell, 182
U. S. 352. 45 L. 1131, 21 Sup. Ct. 811, holding Porto Rico by treaty be-
came territory appurtenant to United States, not part within revenue
clauses, requiring duties, etc.. to be uniform ** throughout the
United States;" Knowltoji v. Moore, 178 U. S. 86, 44 L. 987, 995,
20 Sup. Ct. 765, holding taxes upon legacies and distributive shares
as war revenue imposed upon transmission or receipt of such, not
upon right of State to regulate devolution.
Syl. 4 (X, 927). Contribution levied shipowner regulation of
commerce.
Approved in The Kestor. 110 Fed. 448, holding no treaty between
United States and Great Britain inconsistent thereto. Congress may
prohibit prepayment of wages of seamen, including British seamen
shipping in American ports.
Syl. 5 (X, 927). Treaty rests on honors of governments.
Approved in The Diamond Rings, 183 U. S. 182, 46 L. 143, 22
Sup. Ct. 61, holding two-thirds vote of Senate necessary, after ratifi-
cation of treaty, to establish that Phllippine*s inhabitants were not
intended to be Incorporated as citizens; Barker v. Harvey, 181 U. S.
488, 45 L. 967, 21 Sup. Ct. 693, holding Supreme Court has no
power to enforce provisions of treaty with foreign nation which
Federal government, as sovereign, chooses to disregard.
Syl. 6 (X, 928). Treaty may confer private enforceable rights.
Approved in Ex parte Ortiz, 100 Fed. 959, holding Porto Rico
becoming part of United States, Constitution extended over it giving
right of trial by Jury In criminal prosecutions.
Syl. 7 (X, 928). Treaties subject to judicial cognizance.
Approved in United States v. Lee Yen Tai, 185 U. S. 221, 46 L.
883, 22 Sup. Ct. 632, holding treaty with China, December 8, 1894,
failing to prescribe procedure of deportation, does not abrogate
689 Notes on U. S. Reports. 112 U. S. 600-C23
prior procedure of May, 1S82, and July, 1884; De Lima v. Bldwell,
182 U. S. 195. 45 L. 1055, 21 Sup. Ct. 752, holding Porto Rico after
treaty cession no longer ** foreign country " within Dingley tariff
act 1897, providing for duties imported from foreign countries.
112 U. S. 600-603. Not cited.
112 U. S. 604-609, 28 L. 885, BOND v. DUSTIN.
Syl. 1 (X, 929). Record must show matter for review.
Approved in City of Defiance v. Schmidt, 123 Fed. 3, holding
nothing in record showing written stipulation waiving Jury, no
rulings of court in progress of trial can be reviewed on bill of
exceptions; Ham v. Edgeli, 106 Fed. 822, holding writ of error legal
action in Circuit Court without Jury, questions at trial not re-
examined, record not showing Jury waived by written stipulation.
Syl. 3 (X, 930). Defect of record motion in arrest Judgment
Approved in Clary v. Hardeeville Brick Co., 100 Fed. 915, hold-
ing motion in arrest of Judgment lies not for error in admission of
evidence, same not being part of record, for purposes of motion.
Syl 4 (X, 930). One count sufficient general verdict valid.
Approved in Dlmmick v. United States, 116 Fed. 832, holding
general verdict and Judgment convicting on indictment containing
several counts, not reversible, one count being good and warrant-
ing Judgment.
(X, 929). Miscellaneous.
Cited in Mutual Life lus. Co. v. Kelly, 114 Fed. 271, holding law
action tried by court alone on agreed statement made part of
record, same subject to review, being equivalent to special verdict.
112 U. S. 609-623, 28 L. 837, MEMPHIS R. R. CO. v. COMMIS-
SIONERS.
Syl; 1 (X, 931). Exemption from taxation generally personal.
Approved in Bancroft v. Wicomico County Comrs., 121 Fed. 878.
holding railroad built under charter and then exempted from taxa-
tion by special act, exemption applies only to those under charter;
Sublette v. St Louis, etc., Ry. Co., 96 Mo. App. 124, 6« S. W. 748,
holding exemption from taxation not transferable without express
legislative authority, and does not pass by conveyance of " property
and franchises;*' Jackson v. Corporation Commission, 130 N. C.
426, 42 S. E. 137. holding assessments of physical property and
franchise of railroad companies, not being discretionary, their per-
formance may be compelled by mandamus.
Syl. 2 (X, 931). Corporate franchise generally not transferable.
Approved in New Orleans Debenture Redemption Co. v. Louisiana,
180 U. S. 329, 45 L. 556, ^1 Sup. Ct 382, holding members of de
Vol. 11—44
112 U. S 623-059 Notes on U. S. Reports. 690
facto corporation appearing in court to contest annulment of
charter, appealing from decision, waives any objection to being
parties to proceeding; Julian v. Central Trust Co., 115 Fed. 959,
holding railroad of North Carolina mortgaging all property and
franchise vested legal title in mortgage — hence sheriff could attach
nothing on Judgment against mortgagor; State v. Topeka Water
Co., 61 Kan. 500, 60 Pac. 341, holding corporations cannot mortgage
or sell franchises making them artificial bodies, but "secondary
franchises " may be alienated or incumbered; dissenting opinion in
Denlson, etc., Ry. v. St. Louis, etc., Ry., 06 Tex. 247, 30 Tex. Civ.
481. 72 S. W. 204, majority holding municipality unconditionally
consenting to construction street railroad, purchaser at foreclosure
sale acquired its lights to use of street.
Syl. 3 (X, 932). Corporate franchise distinct from corporation
franchise.
Approved in London, etc., Bank v. Block, 117 Fed. 904, holding
franchise of foreign banking corporation doing business in Cali-
fornia " to be " fl corporation not taxable, but only that " to do
business;" City Water Co. v. Texas, 88 Tex. 603, 32 S. W. 1034,
holding, in the absence of statutory authority, a corporation can
neither sell nor mortgage its corporate franchise.
Syl. 6 (X, 933). Successor corporation gets not former's immunity.
Approved In Central Trust Co. v. Western, etc, Co., 112 Fed. 472,
holding decree of sale or foreclosure of all property and franchises
of railroad, franchise to exist as corporation only remains, latter's
negligence, former not liable.
112 U. S. 623-645. Not cited.
112 U. S. 645-659, 28 L. 846, UNITED STATES v. GREAT FALLS
MFG. CO.
Syl. 1 (X, 934). Government must compensate for taking
property.
Approved in United States v. Lynah, 188 U. S. 459, 461, 463, 467,
477, 23 Sup. Ct. 352, 353, 354, 359, 47 L. 544, 545, 546, 551. holding
turning of valuable rice plantation into valueless bog, result of
navigation improvements by United States, is taking land within
meaning Fifth Amendment; Dooley v. United States, 182 U. S. 229,
45 L. 1080, 21 Sup. Ct. 765, holding duties Illegally exacted and
paid under protest upon imports from Porto Rico to New York
within Circuit Court Jurisdiction as Court of Claims; Christie St.
Comn. Co. v. United States, 126 Fed. 993, holding an action cannot
be maintained to recover taxes voluntarily paid to United States,
except statute authorizes it
691 Notes on U. S. Reports. 112 U. S. 65^-676
Syl. 2 (X,. 935). Taking eminent domain, owner compensated.
Approved in Florida, S., etc., Co. v. Hill, 40 Fla. 12, 74 Am. St
Rep. 128, 23 So. 570, holding railroad possessing power of eminent
domain taking another's land without condemnation, owner may
waive tort and demand compensation.
Syl. 8 (X, 935). Compensation implied government taking private
property.
Approved in Bigby v. United States, 188 U. S. 407, 23 Sup. Ct
471, 47 L. 524, holding United States does not " contract, expressly
or Implied " that elevator employees will exercise due care to pas-
sengers, under Tucker act case ** sounds in tort;" Richardson v.
United States, 100 Fed. 716, holding States owning beds of navi-
gable streams, navigation being under congressional control, dam-
age from improvement not recoverable from United States.
(X, 934). Miscellaneous.
Cited in Lowndes v. United States, 105 Fed. 839, holding riparinn
owners, who with ancestors have had easement for 100 years to
flow land for rice, destroying such. Federal government must com-
pensate for property taken.
112 U. S. 659-669. Not cited.
112 U. S. 670-676, 28 L. 862, MARTINGTON v. FAIRBANKS.
Syl. 1 (X, 936). Supreme Court reviews only law question.
Approved in Wilson v. Merchants* Loan & T. Co., 183 U. S. 127,
46 L. 116, 22 Sup. Ct. 58, holding agreed statement of facts cannot
be taken equivalent of special finding of facts within U. S. Rev.
Stat., §§ 649, 700, providing for waiver of jury trial; Green v.
Western Union Tel. Co., 118 Fed. 1016, holding where all the evi-
dence of the case is in bill of exceptions and finding of trial Judge
Is thereby supported, Judgment will be affirmed; Barnard v. Randle,
110 Fed. 910, holding no objection made of exception taken to evi-
dence introduced by opposite party, no ruling thereon invoked or
made, there can be no error for review; Davis v. Daugherty, 105
Fed. 772, holding requests not based on all the evidence, motion
for Judgment of law on entire case, court's ruling thereon not
reviewable on writ of error; Keene Mach. Co. v. Barratt, 100 Fed.
593, holding reviewing Judgment in legal action tried without Jury
by stipulation, the one question on special finding is sufficiency of
facts supporting Judgment; M'Master v. New York Life Ins. Co.,
99 Fed. 870, holding Circuit Court trying case without Jury, only
rulings at trial, and sufficiency of facts to support Judgment, re-
viewable on writ of error; Grattan Township v. Chilton, 97 Fed.
150, holding circuit Judge trying law case without Jury, Judgment
reviewed on appeals only as regards errors committed by lower
court
1J2 U. S. 070-710 Notes on U. S.- Reports. 092
Syl. 2 (X, 937). Supreme Court will not review facts.-
Approved in McDowell v McCorniick, 121 Fed. 04, holding gen-
eral finding conclusive on all issues of fact raised by pleadings, and
evidence not reviewable to ascertain wliether it supports the finding.
Syl. 3 (X, 937). Circuit Court finding same as verdict
Approved in Olcott v. Ennis-Calvert Compress Co., 114 Fed. 910,
holding waiver of Jury In civil case, Circuit Court finding of facts
by court is strictly analogous to special verdict and should show
ultimate facts.
112 U. S. 070-0*^2. Not cited.
112 U. S. 093-090, 28 L. 871, WHIfNEY v. MORROW.
Syl. 2 (X, 939). Legislature confirming title subsequent patent
unnecessary.
Approved in Olive Hand, etc., Co. v. Olmstead, 103 Fed. 570.
holding one acquiring equitable title to land prior to Issuance to him
of patent therefor, may maintain equitable suit enjoining trespasser;
Jopling V. Chachere et aL, 107 La. 530, 32 So. 240, holding legisla-
tive confirmation of land claim recognition of validity and patent
Issued thereunder merely documentary evidence recording con-
firmation.
112 U. S. 090-710, 28 L. 800, LIFE INS. CO. v. PENDLETON.
SyL 1 (X, 939). Time essence insurance policy.
Approved in Iowa Life Ins. Co. v. Lewis, 187 U. S. 351, 355, 23
Sup. Ct 132, 133, 47 L. 212, 214, holding Insurance policy forfeited
of itself, policy to " cease and determine " note given for premium
not paid at maturity; dissenting opinion in Hicks v. British Am.
Assur. Co., 102 N. Y. 300, 50 N. E. 748, majority holding defendant
contracting to insure plaintiff's assignor, on loss plaintiff had cause
of action, though policy had never been Issued.
Syl. 3 (X, 939). Policy not forfeited till note's nonacceptance.
Approved in Manhattan Life Ins. Co. v. Wright, 120 Fed. 85,
holding the time of payment of premium for insurance is, in nature
of the agreement, of the essence of the contract; dissenting opinion
in Hicks V. British Am. Assur. Co., 162 N. Y. 304, 50 N. E. 750,
majority holding failure of insurance agent to issue policy as per
contract and his denial of contract, defendant did not waive notice
and proof of loss.
SyL 4 (X, 940). Insurance — Liability denied, death notice un-
necessary.
Approved In Royal Ins. Co. v. Martin, 192 U. S. 103, 24 Sup. Ot.
251, holding Insurance company denying all liability under its policy
dispenses with necessity furnishing proofs of loss from independent
causes; Supreme Lodge v. Meister, 204 111. 530, 08 N. E. 455, holding
C93 Notes on U. S. Reports. 112 U. S. 711-733
where local lodge solicits aid for widow of deceased member
subsequent to his death, proof of death required by by-laws is
waived; Gerringer v. Insurance Co., 133 N. C. 415, 45 S. B. 770,
holding Insurance agent issuing policy, having full knowledge of
assured's Interests in property, provisions worthing forfeiture re-
garding assured*s title are waived; Doggett v. Golden Cross, 126
N. C. 483, 36 S. E. 28, holding lodge, on death, making no proofs
thereof, beneficiary not prejudiced thereby, her demand and proof
thereof being prima facie against society.
112 U. S. 711, 712, 28 L. 825, SCHARFF v. LEVY.
Syi. 1 (X, 940). Removal requires sufficient cause of action.
Approved in Winkler v. Chicago, etc., R. R. Co., 108 Fed. 307,
holding under judiciary act 1887-88, defendant cannot remove cause
after trial State court on issue of law on demurrer to complaint
want of facts.
112 U. S. 712-716. Not cited.
112 U. S. 717-720. 28 L. 864, THAYER v. LIFE ASSN.
Syl. 1 (X, 941). Removal — Trustee indispensable his citizenship
necessary.
Approved in Kinney v. Columbia Savings, etc., Assn., 191 U. S;
83, holding U. S. Rev. Stat, §§ 948, 054, permits amendment of
removal petition after filing thereof, but before action on merits,
regarding diverse citizenship; Great Southern Fire Proof Hotel Co.
v. Jones, 177 U. S. 454, 44 L. 844, 20 Sup. Ct. 692, holding Federal
jurisdiction depending upon diverse citizenship, same must be shown
for individual members limited corporation under Pennsylvania
laws; Williard v. Spartanburg, U. & C. R. R, Co., 124 Fed. 802,
holding action by employee lessee railroad against lessor railroad
for injurious negligence of lessee employee, separable controversy
and removable, corporation of another State; Lake St. El. R. R. v.
Ziegler, 99 Fed. 122, holding trustees being formal, not interested,
parties, their joinder did not deprive Federal court of jurisdiction,
being removable by individual defendants.
112 U. S. 720-733, 28 L. 872, ST. PAUL R. R. v. WINONA R. R.
Syl. 1 (X, 941). Congressional act has priority over location.
Approved in Southern Pac. R. R. Co. v. Bell, 183 U. S. 681, 46 L.
387, 389, 22 Sup. Ct 234, 236, holding secretary of interior under
act July 27, 1866, not authorized withdrawing from settlement, lands
within iDdemnity limit, section 6 directing survey and note with-
drawal.
Syl. 2 (X, 942). Congressional aid conflicting railroads take
moieties.
Approved in Southern Pac. R. R. Co. v. United States, 183 U. S.
525, 526, 46 L. 311, 22 Sup. Ct 157, holding same act of same date
112 U. S. 733-742 Xoies o
C. f
grants of land mndc to two separate rnilronds. each takes uo
divided moiety, priority of location being of no consequence.
Syl. 3 (S, 942). Public lands — Selection delermlnea priority.
Approved In Oregon, etc., K. B. v. United States, 180 C. 8. 112,
113, 23 Sttp. Ct. 619. 47 L. 731. boldlng no specific sections of land
witbln indemnity limits acquired by railroad In advance of actual
and approved selections supplying deflcieocles in place limits; affirm-
ing Oregon, etc., R. K. Co. v. United States, 109 B'ed. S15; United
States T. Oregon, etc., Ily. Co.. 101 Fed. 318, 310, holding In-
demnity land subject to hoiuesteading and pre-empting imlll
deScieney of primary grant la ascertained, and land In lieu thereof
selected approved by secretary: Hewitt v. Schulti. ISO U. S. 1.^1,
152. 46 L. 470. 21 Sup. CL 313. 314. boldiug commissioner's certificate
of deficiency Id grant of lauds to railroad of none effect In eject-
ment, defendants claiming title from rtillrund; Altscbul v. Clark. 30
Or. 324, G5 Fac. 994, holding State granting right of selection to
road company filing and payment of fee did not pass title from gDV>
emment until secretary of Interior approved selection.
(X. 941). Miscellaneous.
Cited In Clark v. Herrlngton, ISO U. S. 209. 46 L. 1130. 22 Sup.
Ct, ST4, holding no protection given Innocent purchasers for value,
lands unlawfully selected by railroad aa Indemnity lands, company
having never received patent therefor.
112 U. S. 733-737. 28 L. 861, ST. PAUL R. H. v. UNITED STATES.
Sy]. 2 (X, 943). Federal claim transferred presence two witnesses.
Approved in Thayer v. Preasey, 175 Mass. 224, 58 N. E. 7, holding
though aaalgnmeut against government for iDfrlngement did not
comply with statutory formalities, government may recognize as-
algnee'siTlgbts by passing special act.
112 U. 8. 737-742, 28 L. 859. PEUGH v. PORTER.
Syl. 1 (X. 944). Assignment unestablished claim gives equitable
Uen.
Approved In Ludowlcl, etc.. Tile Co, v. Pennsylvania Inst, for
Blind, 116 Fed. 062. holding debtor admitting debt and depositing
sum with court, partial assignments by contractor prior to general
assignment will be given prefereuce over the latter.
Syl. 2 (X. Mi). Assignment creating lien matter of contract.
Approved In Rivers v. Wright, etc.. Co., 117 Ga. S4, 43 S. B.
500. holding partial assignment of debt, assignee will not have such
title to portion as to euforce In common-law action, unless debtor
s to assignment
CXIII UNITED STATES.
113 U. S, 1-9, 28 L. 896, COLE v. LA GRANGE.
Syl. 1 (X, 946). Eminent domain exercised only public purposes.
Approved in Dodge v. Mission Tp., 107 Fed. 832, holding legis-
lature authorizing the creation of public debt to be paid by taxa-
tion, is limited to its exercise for a public purpose; Great Western
Nat Gas & Oil Co. v. Hawlcins, 30 Ind. App. 570, 66 N. E. 769,
holding eminent domain can be exercised only for public use,
and it is not enough to allege that land is necessary for gas-pipe
line; Opinion of the Justices of the Senate, 175 Mass. 600, 57 N. E.
676, holding by legislative authority, county, city, town, may raise
money by taxation to pay widow, heirs, or personal representa-
tives, salary of deceased official.
Syl. 2 (X, 946). City cannot donate bonds private purpose.
Approved in Dodge v. Mission Tp., 107 Fed. 828, 833, holding
township bonds issued under legislative authority to promote
private manufactory, are beyond power of legislature and town-
ship, and are void.
113 U. S. 9-26, 28 L. 889, HEAD v. AMOSKEAG MFG. CO.
Syl. 1 (X, 947). Judicial compensation not depriving of property.
Approved in Oury v. Goodwin, 3 Ariz. 267, 26 Pac. 379, holding
irrigation being of indispensable value, territory legislature can
authorize condemnation right of way for ditches for thirteen or
less farmers in farming neighlK)rhood; Gaylord v. Sanitary District
204 111. 582, 68 N. E. 524, holding ** act regarding mills and millers."
authorizing condemnation private property for purpose of public
mills other than public gristmills, talking without compensation,
unconstitutional; Great Western Nat Gas & Oil Co. v. Hawkins,
30 Ind. App. 570, 66 N. E. 769, holding eminent domain can be
exercised only for public use, and it is not enough to allege that
land is necessary for gas-pipe line; State v. Board of Comrs. of
Polk Co.. 87 Minn. 336, 92 N. W. 218, holding act providing for
drainage of wet and overflowed lands, being of public benefit, is
valid, constitutional legislative enactment; Mound City Land, etc.,
Co. V. Miller, 170 Mo. 252, 70 S. W. 725, 94 Am. St Rep. 734, hold-
ing Bev. Stat, § 8251, autliorizing establishment drainage district,
not invalid because each owner entitled to one vote for each acre;
Matter of Tuthill, 163 N. Y. 139, 140, 79. Am. St Rep. 578, 579, 57
N. E. 305, holding general laws permitting agriculturist to con-
[695]
113 U. S. 27-32 Notes on U. S. Reporte. 690
struct ditches on other's lands in payment of compensation, nncon-
stitutional, not beinp: for public puriwses; Avei-y v. Vermont Elec-
tric Co., 75 Vt. 242, 54 Atl. 180, holding right to flow other's lands
cannot be secured, under statute absence showing public use,
right not being eminent domain, but statutory.
(X, 947). Miscellaneous.
Cited In dissenting opinion in Pine v. Mayor, etc., 112 Fed. 105,
majority holding right flowing water Inseparably annexed to soil,
hence diversion in State above outside Jurisdiction of State below.
113 U. S. 27-32, 28 L. 923, BARRIER v. CONNOLLY.
Syl. 1 (X, 947). Municipality regulating laundries proper police
regulation.
Approved In W. W. Carglll Co. v. Minnesota ex rel. R. R. & W.
Com., 180 U. S. 468, 45 L. 027, 21 Sup. Ct. 429. holding State stat-
ute requiring license for conducting elevator, grain to be shipped
out of State, not regulation of interstate commerce; Austin v.
Tenneesee, 179 U. S. 349, 45 L. 228, 21 Sup. Ct 134, holding while
tobacco Is article of commerce and so recognized, It may, to cer-
tain extent, be within the police power of the States; Leovry v.
United States, 177 U. S. 631, 44 L. 919. 20 Sup. Ct 801. holding
court may take judicial notice that public health is deeply Inter-
ested In the reclamation of swamp and overflowed lands; L'Hote
v. New Orleans, 177 U. S. 596, 44 L. 903, 20 Sup. Ct 791, holding
ordinance setting limits regarding womei^ of lewd character, though
pecuniary value of property be depreciated, is proper police regula-
tions and constitutional; United States v. Dietrich, 126 Fed. 678,
holding where, in criminal prosecution, a fact is admitted neces-
sarily preventing conviction, court may of own motion direct ver-
dict for accused; Dastervignes v. United States. 122 Fed. 36, hold-
ing 30 Stat 35, U. S., conferring legislative power upon secretary
of Interior to regulate and protect forest reserves. Is constitutional
administrative power; Duluth Brewing, etc., Co. v. City of Superior,
123 Fed. 357, holding municipal ordinance taxing liquor manu-
facturers who maintain other places of sale In city, not discrimina-
tive, though manufacturers selling at manufactory are exempt; Peo-
ple of State of New Yorlt v. Bennett, 113 Fed. 518, holding N. Y.
Laws 1895, chap., 570, regarding recordation of wager without
transferring same, in respect to racecourse or elsewhere, no class
is discriminated against; Jew Ho v. Williamson, 103 Fed. 20, hold-
ing quarantine regulations discriminating between Chinese and
those of other races, violates equal protection of the laws; Odd
Fellows' Cemetery Assn. v. San Francisco, 140 Cal. 235, 73 Pac.
990, holding ordinance of San Francisco respecting cemeteries and
interments therein is within police regulations of city and Is con-
stitutional; Dobbins v. City of Los Angeles, 139 Cal. 186, 72 Pac.
972, holding city ordinance prohibiting maldng or storing gai
697 Notes on U. S. Reports. 113 U. S. 27-32
therein Is legitimate exercise of police power; Meul v. People, 198
111. 264, 64 N. E. 1108, holding statute protecting " game birds and
other wild fowl," not unconstitutional, embracing paore than one
subject, birds fer» naturse being meant; State v. Schlenlter, 112
Iowa, 650, 84 N. W. 700, holding it is within police power of State
to prohibit sale of adulterated milk, though same be harmless and
sale free from deceit; Meffert v. Medical Board, 66 Kan. 719, 72
Pac. 250, holding State exercises proper police power in creating
medical board whose duties call for prescription and determination
of medical practitioners; Scholle v. State of Maryland, 90 Md. 740,
46 Atl. 327, holding statute creating two medical boards, no one
to practice medicine without first securing license therefrom, not
class legislation and unconstitutional; Love v. Judge of Recorder's
Court, 128 Mich. 551, 87 N. W. 788. holding Det. city charter 1898,
chap. 7, § 34, forbidding public address in any public place half mile
of city hall without first obtaining mayor's permission, valid; State
V. Zeno, 79 Minn. 84, 79 Am. St. Rep. 424, 81 N. W. 749. holding
Minn. Gen. Laws 1897, chap. 186, restricting occupation of barber
in interest of public health, not in violation of Constitution; State
V. Bixman, 162 Mo. 39, 62 S. W. 838, holding inspection law relative
to all beer and malt liquors may require revenue beyond cost of
inspection, since manufacture and sale may be prohibited; Ex parte
Lucas, 160 Mo. 333, 61 S. W. 222, holding barber arrested by State
Barbers' Protective Association, he having no license, cannot raise
unconstitutionality of board, that l>eing for governor only; Ivins
v. Trenton, 68 N. J. L. 504, 53 Atl. 203, holding city ordinance pro-
hibiting erection of swinging signs, having operation in every por-
tion of city, is not necessarily invalid; People v. Lochner, 177 N. Y.
148, 69 N. E. 374, holding law regulating liours of work in bakeries
and confectionery establishments being exercise of police power, not
constitutional violation; State v. Dalton, 22 R. I. 80, 46 Atl. 235,
holding R. I. Pub. Laws, chap. 052, prohibiting seller of property
to give stamp or coupon for merchandise of another not In further-
ance of public morals. Is invalid; State v. Sopher, 25 Utah, 327,
71 Pac. 484, 95 Am. St Rep. 845, holding statute prohibiting gen-
erally keeping open on Sunday places of business, closing barber
shop Is constitutional, not being work of necessity; dissenting
opinion in State v. Ray, 131 N. C. 822, 42 S. E. 062, 92 Am. St. Rep.
799, majority holding Incorporated town, in absence of Code, § 3799,
cannot pass ordinance requiring stores to close at 7:30 p. m. except
on Saturdays. See notes, 92 Am. St. Rep. 799; 78 Am. St. Rep. 272.
Syl. 2 (X, 950). Police powers independent Fourteenth Amend-
ment.
Approved in Connolly v. Union Sewer Pipe Co., 184 U. S. 559, 46
L. 689, 22 Sup. Ct 439, holding 111. trust act June 20, 1893, dis-
criminating in favor of agricultural products in hands of producer,
113 U. S, 2T-32
V. 1
violates U. S. Conat.. 14tli Amend.; Florida, C. & P. E, R. Co.
V. Reynolds, 183 U. 8. 470, 478. 45 L. 288, 22 Sup. Ct 178, 178.
Lolding Fla. Laws 18S5, chap. 3558, requiring comptroller assess
railroad tor omltteil taxes, not unconstitutional, railroad property,
not being assessed by (.■omptroller, realty by treasurer: Cotting t.
Godurd. 183 U. 8. 105. 4i! L. 107. 22 Sup. Ct, 41. holding Kan. act
March 3, 1897, discriminating amount or charges among different
etockyarde, same In violation of Federal Constitutiou; Maxwell v,
Dow, 170 D. 8. OW. 44 L. 000, 20 Sup. Ct. 457. 494. holding atatntorr
jury of eight Instead of twelve members. In criminal case not
capita], applicable to alt, not unconatitutlonal: Union Co. Nat. Bank
V. Ozanduuber Co., 127 Fed. 211, holding Ark. act April 23. 1S91,
.discriminating between persons regarding negotiable InstrumentB.
violates Fourteenth Amendment Federal Constitution; Merchants'
Life Assn. v. Yoakum, 98 Fed. 2C5, holding Tes. ReT. StaL 1895,
art. 3071, prescribing conditions upon which foreign Insurance
companies can do business in the State, part of every contract and
constitutional; Hawkins v. Roberts, etc.. 122 Ala. 148. 27 So. 332.
holding abollshmeot by legislature of oQlce created by It not a
taking of property of incumbent without due proceaa, removal being
without trial; Oui-y v. Goodwin, 3 Ariz. 271, 26 Pac. 381, holding
irrigation being indispensable, territorial legislature may provide
condemnation for ditch right of way for beoeUt of thirteen or fewer
ranchers: Parks v. State. 159 Ind. 219. 223, 225, 228, 04 N. E. 865,
8(57, 860, holding statutory classification is reasonable Id permitting
Ucense to practice osteopathy, and excludes practice of magnetic
healing: City of Indianapolis v. Holt. 155 Ind. 231. 57 N. E. 970,
holding front-foot rule regarding street Improvement, with right
of full bearing, not uncoustltutlouai taking property without due
process: (iano v. Minneapolis & St. L. R, R. Co., 114 Iowa, 726, 87
N. W. 719, 89 Am. St. Rep. 403, holding Code, § 2007, Imposing
attorney's Ceea on railroads csercising eminent domain, not class
legislation, since burden applies equally to all of certain class;
State V. Montgomery, 94 Me. 204, 47 Atl. 168, holding statutory
provision absolutely denying to aliens the privilege of occupations
open to citizens. Is obnoxious to Fourteenth Amendment of Con-
stitution; Farmers & Merchants' Ins. Co, v. Dobuey, 02 Nebr. 221.
80 N. W. 1073. holding statute permitting taxation as costs of
reasonable attorney's fee In Judgment egnlust insurance company
insuring realty, being public policy, la constitutional; Lancashire
Ins. Co. v. Bush, 00 Nebr. 123, 82 N. W, 314, holding the power of
a State to classify Its subjects — here iusurance — Is limited only in
the sense that same must not be arbitrary; Simmons v. Telegraph
Co., 63 S, C. 430, 41 S. E, 522. holding act February 20. 1001, authoriz-
ing action against telegraph companies for mental anguish tor negli-
gence delivering message, not In violation of Fourteenth Amendment,
as class leglslaUon; Life Ins. Co, v, Orlopp, 25 Tei. Ctv, 292, fll S. W.
099 Notes on U. S. Reports. 113 D. S. 32-73
341, holding Rey. Stat 1895, art 3071, making life insurance com-
panies liable for 12 per cent, penalty and reasonable attorney's fees
on failing to pay loss specified time, constitutional; State v. Shedroi,
75 Vt 280, 54 Atl. 1082, holding an unjust discrimination in favor
of honorably discharged soldiers, is in violation of Fourteentli
Amendment in denying equal protection; Julien v. Model B. L., etc.,
Assn., 116 Wis. 85, 92 N. W. 563, holding Rev. Stat 1898, §§ 2014.
2015, giving mortgages of mutual loan associations priority over
other liens subsequently filed, not repugnant to U. S. Const, art.
14, S 1.
(X, 947). Miscellaneous.
Cited In Western Union, etc., Co. v. Ferguson, 26 Ind. App. 221,
59 N. E. 419, holding action against telegraph company for mental*
anguish due to failure to deliver telegram, appellate court will
certify to Supreme Court recommending correct rule within its
statutory authority.
113 U. S. 32-39. Not cited.
113 U. S. 40-50, 28 L. 885, DAVIDSON v. VON LINGIN.
SyL 2 (X, 953). Breach charter — Party warranty repudiates
contract
Approved in United States v. Molloy, 127 Fed. 956, holding pur-
chaser of goods wrongfully breaking contract of sale, seller is en-
titled to sue on quantum valebat compensation for partial per-
formance.
Syl. 8 (X, 953). ^Ime stipulation charter-party is warranty.
Approved In Guiseppe v. Manufacturers' Export Co., 124 Fed.
665, holding provisions in charter-party that ** vessel proceed with
all possible dispatch " a warranty, seventy days' stoppage being
unnecessary, hence breach relieving charterers; Rosasco v. Pitch
Pine Lumber Co., 121 Fed. 438, holding provision charter-party
requiring vessel to sail for port of loading within forty-eight hours,
not condition precedent canceling contract, but gives right to
damages; Patterson v. Baltimore, etc., Co., 106 Fed. 959, holding^
steamship agreeing to furnish cargo space foreign shipment, other
furnishing that of cotton, is maritime action, being in personam
for breach; Armistead v. Red River Valley, etc., R. R. Co., 108
La. 173, 32 So. 457, holding defendant's bridge preventing plaintiff
delivering cotton seed on chartered boat, plaintiff can recover
profits he would have made.
113 U. S. 50-59. Not cited.
113 U. S. 59-73, 28 L. 901, HOLLISTER ▼. BENEDICT, ETC.,
MFG. CO.
Syl. 1 (X, 953). Letters-patent excludes government's use.
Approved in International Postal Supply Co. y. Bruce, 114 Fed.
113 U. S. 73-^1 Notes on U. S. Reports. 700
511, 512, holding patentee*8 bill alleging postmaster's using of his
patent in mailing letters entitles e6mplainant to remedy — Jurisdic-
tion being unsettled, defendant's plea of nonuser valid; Dickcrson ▼.
Sheldon, 98 Fed. 622, holding United States selling infringing article
for violating customs laws does not vest title in purchaser to vend
same, he Isnowing of the infringement.
Syl. 2 (X, 954). Government official using patent, compensation
implied.
Approved In United States v. Lynah, 188 U. S. 459, 463, 23 Sup.
Ct 352, 354, 47 L. 546, holding turning of valuable rice plantation
into valueless bog, the Federal government improving navigation, is
taking land within Fifth Amendment; Dooley v. United States, 182
U. S. 229, 45 L. 1080, 21 Sup. Ct. 765, holding Circuit Court, as Court
of Claims, has jurisdiction to recover back duties illegally exacted
and paid under protest, imports Porto Rico from New York; Fay
V. Mason, 127 Fed. 328, holding difficult questions involving func-
tions of patent and infringements thereof, complaint should give
court benefit of expert testimony.
SyL 6 (X, 954). Improvement from ordinary faculty not patent-
able.
Approved in Neptune Meter Co. v. National Meter Co., 127 Fed.
568, holding Nash device — water-meter — being merely applica-
tion of same principle In Tracy patent, accomplishing same result,
the same Is not invention; Farmers', etc., Co. v. Sprunks Mfg. Co.,
119 Fed. 596, holding East patent for ventilating barrel, not being
mechanically novel, involves no invention; National Hollow, etc.,
Co. V. Interchangeable, etc., Co., 106 Fed. 723, holding inwardly
projecting lugs, preventing flanges binding on chain passing be-
tween yoke and bolt gripping beam, combination void for want of
novelty, affirming 99 Fed. 775.
113 U. S. 73-81, 28 L. 927, HESS v. REYNOLDS.
Syl. 1 (X, 956). Diverse citizenship creditor, administrator, cause
removable.
Approved in Schneider v. Eldredge, 125 Fed. 640, holding heir
of decedent suing citizenship of administrator, and not that of
administrator pro tern., is determinable; United States v. Eisenlicis,
112 Fed. 197, holding land passing to United States before issue
made in State court, did not affect jurisdiction of State court in
determining right of parties before it; Gallivan v. Jones, 102 Fed.
427, holding Cal. Code Civ. Proc, § 1510, regarding claims, not
applicable where one of two or more executors was creditor of
estate, claim demandable of other executor; dissenting opinion in
Wahl V. Franz, 100 Fed. 680, 008, 703, 704, majority holding pro-
bate will Arkansas court appealed to Circuit Court not ** suit of
civil nature at law or equity," within Federal judiciary act 18SS,
regarding removal.
701 Notes on U. S. Reports. 113 U. S. 81-90
Distinguished In Stevens v. Smitb, 126 Fed. 709, 710, holding
equity rule requiring those interested in judgment made parties,
legatees and distributees of testator are indispensible parties,
Federal court regarding construction of will; Wahl v. Franz, 100
Fed. 687, holding probate of will in Arl^nsas court appealed to
State Circuit Court not "suit of civil nature at law or equity,"
within Federal judiciary act 1888, regarding removal.
Syl. 2 (X, 956). Removal act supersedes only conflicting ones.
Approved in Klrby v. Chicago, etc., R. R. Co., 106 Fed. 656,
holding statutory proceedings in State court to determine land-
owner's damage eminent domain Is suit of civil nature remov-
able, under judiciary act 1887-88, other requisite facts existing;
dissenting opinion in Security Trust Co. v. Dent, 104 Fed. 386,
majority holding State statute limiting time presenting probate
claims ineffectual depriving Federal court of jurisdiction regarding
nonresident creditor for less than full time.
(X, 956). Miscellaneous.
Cited In Montgomery Co. v. Cochran, 116 Fed. 995, holding It
appearing to Federal court nonresident defendant's rights preju-
diced In State, defendant is made ex parte and plaintiff may
traverse petition for removal.
113 U. S. 81-«4, 28 Lu 938, POLLEYS v. BLACK RIVER IMPROVE-
MENT CO.
Syl. 2 (X, 958). . Writs same State and Federal courts.
Approved in Bracken v. Milner, 99 Mo. App. 194, 73 S. W. 227,
holding judgments of Federal courts are entitled to equal rank
and presumption of regularity as judgments of State Circuit Courts.
Syl. 3 (X, 958). Limitations run from filing judgment.
Approved In Mutual Life Ins. Co. v. Phinney, 178 U. S. 335, 44
L. 1092, 20 Sup. Ct. 909, holding judge and party doing all that
Is necessary, transfer of case not defeated by Circuit Court clerk
failing to indorse writ of error.
113 U. S. 84-88, 28 L. 925. PULLMAN PALACE CAR CO. v. SPECK.
Syl. 1 (X, 958). Case " first tried " in designated term.
Approved in Pennsylvania Co. v. Leeman, 160 Ind. 21, 66 N. E.
50, holding State court denying motion for removal to Federal
court, error in such ruling not waived by moving party defending
himsi-lf in State court after denial.
113 U. S. 89-96, 28 L. 934, GRIFFITH v. GODEY.
Syl. 1 (X, 959). Fraudulently accounting, Probate Courts Juris-
diction continues.
See 94 Am. St Rep. 46, note.
113 U. S. &7-127 Notes o
D. S
Reports.
70S
Sfl. 2 (X, 960). Property omitted, equity malotalna JnrlBdlctfoo.
Approved 111 Sibra v. Santos, 138 Cal. 541, 71 Pae. 705, holding
equity had Jurisdiction to furnish appropriate relief where gnardian
made fruudulent rep reeeo tat Ions and coucealmenta of acecmuB ot
insane person.
Syl. 3 (X, 9G0). One clearly incompetent, equity aulliQei coo-
Approved In dissenting opinion in Stringfellow v. Hanson. 25
Utah, GOO, 71 Pac. 1068, majoriiy holding !t does not follon be-
cause mind Is weakened by trouble and old age, and Judgmeot
thereby Impaired, be is mentally Incapacitated from ezecatlag
113 U. S. 97-104. 28 L. WW. ROWELL v. LINDSAY.
Syl. 6 (X, 961). Omitting one combination element no iafriiige-
ment
Approved In Farmers' Mfg. Co. v. Sprueka Mfg. Co.. IW Fed-
500, holding East patent ventilating barrel lacking patentable nOi-
elty because of prior art is not infringed by another, same flat-
acter; United Blue Flame Oil Stove Co. v. Glazier. 119 Fed. 183,
holding Blackford reissue tor vapor burner is limited by the prl"'
art to speciflc structure claimed, hence not infringed; DowaE'"^
Mfg. Co. V. Brennan, IIS Fed. 148, 151, holding Hoyt paWii'
grain drill Improvement being old element not infringed aoottst
producing same result, elements differently combined.
113 U. S. 104-116, 28 L. 930, FINDLAY v. MCALLISTER.
Syl. 1 (X, 9C1). Judgment against eoonty enforceable aff*"^
taxpayers.
Approved In Coleman v. Howell, 131 N. C. 128, 42 S. E.
holding statntory judgment Georgia Probate Court dlscha*'^''*
administrator was impeachable In North Carolina for fraud v-^
mlnistrator practiced on court and helrs-at-law.
113 V. S. 110-12T, 28 L. 915, CENTRAL RAILROAD. ETC., C ^
PETTUS.
Syl. 1 (X, 9C2). Attorney has lien for reasonable amount
Approved in Buck!, etc.. Lumber Co. y. Atlantic Lumt>er ^
128 Fed. 342. holding plaintiff assigning demand In suit tc^
attorney, latter having lien thereon, prevents defendant's ~^
to set oft agnlnet judgment subsequently rendered tbereou; ■
Rude, 101 Fed. 60G, holding bankruptcy proceedings being equiK— — 7
trial by jury not matter of right, but in court's discretion, i:^^ "*^
termining attorney's fee from creditor's distributive share; •
Curtis. 100 Fed. 793, holding counsel fees allowed to petili—
creditors in bankruptcy must be reasonable, depending upor::^
ytcea rendered, determinable upon evidence or court's knowlec^H^ ]
703 Notes on U. S. Reports. 113 U. S. 128-152
Syl. 2 (X, 962). Creditor securing general benefit entitled to
compensation.
Approved in Randolph v. Scruggs, 190 U. S. 538, 23 Sup. Ct
712, 47 L. 1170, holding charge for preparation of general deed of
assignment which is avoided by bankruptcy adjudication may be
proved unsecured claim against bankrupt*8 estate; Weed v. Cen-
tral of Georgia Ry., 100 Fed. 165, 166, holding It appearing fund
in court resulted from intervention of creditor, he is entitled to
an allowance where success is clearly due to his efforts; Stone v.
Omaha Fire Ins. Co., 61 Nebr. 837, 86 N. W. 469, holding neces-
sary expenses in procuring receivership of an insolvent corpora-
tion are properly chargeable against fund brought into court's
control.
Distinguished in Phlnizy v. Augusta, etc., R. R., 98 Fed. 777,
779, holding allowance may properly be made from fund realized
on foreclosure railroad mortgage compensating all counsel con-
tributing to its recovery, excepting those contesting; Alexander
V. Atlanta, etc., R. R. Co., 113 Ga. 208, 38 S. B. 778, holding ex-
penses of minority stockholders in preventing alleged ultra vires
acts not payable out of funds, court repudiating efforts of plain-
tiffs; Succession of Keman, 105 La. 601, 30 So. 243, holding ex-
ecutor of succession is entitled to retain services of expert, at
expense of succession, to assist in preparing final account in ex-
c^eptional cases.
ai3 U. S. 128-135, 28 L. 952, STEELE v. UNITED STATES.
Syl. 2 (X, 963). No laches against United States.
Approved in Pond v. United States, 111 Fed: 996, holding lia-
1>ility of obligors in bond Federal officer is Joint and several and
^:ourt's erroneous dismissal against deceased surety's executor does
miot relieve the others. See 93 Am. St Rep. 715, note.
1113 U. S. 135-142, 28 L. 954, ACKLEY SCHOOL DIST. v. HALL.
SyL 1 (X, 964). Unconditional municipal bond is negotiable
^lecurity.
Approved in Stewart v. Tennant, 62 W. Va. 572, 44 S. E. 228,
Jbolding tenants in common committing waste may be separately
^>r Jointly sued, and if latter, not error dismissing as to one, though
^>ther objects.
Distinguished in Thomson v. Elton, 100 Fed. 145, holding holder
municipal bond payable person named or order, and payee indorsed
%n blank, can maintain Federal action if payee might have done so.
ai3 U. S. 142-149. Not cited.
113 U. S. 149-152, 28 L. 962, BICKNELL v. COMSTOCK.
Syl. 1 (X, 965). Patent*s validity unaffected commissioner's sub-
sequent act.
Approved In Cosmos, etc., Co. v. Gray Eagle» etc., Co., 104 Fed.
113 U. S. 153-179 Notes on U. 8. Reports. 704
44, holding court is without jurisdiction to determine title to land
which is still in the United States, the same still pending Id
land department; Long y. Olson, 115 Iowa, 393, 88 N. W. 934,
holding patent regularly issued to assignee of military bounty
land warrant could not be subsequently canceled by land office
without notice and opportunity Oi full hearing; dissenting opinion
in Earnest v. Little River Land, etc., Co., 109 Tenn. 445, 75 S. W.
1127, majority holding first grant by State of public domain car-
ries the fee, being conclusive against State and all claiming under
junior grants, unless void on face.
Syl. 3 (X, 905). Lapse of time makes title perfect.
See 95 Am. St. Rep. 673, note.
(X, 905). Miscellaneous.
Cited in Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112
Fed. 12, holding land not ** vacant and open to settlement " if at
time of application others were actually exploring it for oil and
location was not of record.
113 U. S. 153-157. 28 L. 946, UNITED STATES v. MUELLER.
(X, 966). Miscellaneous.
Cited in Mo^es v. United States, 116 Fed. 529, holding quarter-
master contracting with carpenter for stated term, transportation
both ways, government not liable for wages after term discharge
during time in returning.
113 U. S. 157-179, 28 L. 939, CONSOLIDATED SAFETY VALVE
CO. V. CROSBY STEAM-GAUGE, ETC., CO.
Syl. 1 (X, 966). Letters-patent may have broad scope.
Approved In Crown Cork, etc., Co. v. Aluminum, etc., Co., 108
Fed. 866, 867, holding while Painter's reissue for bottle stopper in-
volved broader claim than in original, Incorporated claim not lost
during pendency, another similar patent issued during said time.
Syl. 4 (X, 967). Subsequent patent giving success is valid.
Approved In Lamson Cousol. Store Service Co. v. Hillman, 123
Fed. 423, holding McCarty apparatus for carrying packages stand-
ing at head of class, although in well-developed art, is entitled to
liberal range of equivalency; Krajewskl v. Pharr, 105 Fed. 520,
lioldlng Krajewskl patent for breaking sugar cane showing patent-
ability and not anticipated is valid, and is infringed by machine
accomplishing same result; Bowers v. Pacific Coast Dredging, etc.,
Co., 99 Fed. 748, holding Bowers patent dredges including; broad
generic claims, without limitafion regarding form of construction,
particular elements, all subsequent machines infringe accomplishing
same result.
705 Notes on U. S. Reports. 113 U. S. 171>-2i:i
SyL 6 (X, 967). Letters-patent may cover combination.
Approved in Otis Elev. Co. v. Portland Co., 127 Fed. 5G3, liolding
Bassett elevator-controlling mechanism in claiming broad construc-
tion is void for double patenting by same patentee; Adam v.
Folger, 120 Fed. 263, holding while patent for combination is not
infringed one element thereof being omitted but change of form
or location will not avoid infringement; Dowagiac Mfg. Co. v. Min-
nesota Moline Plow Co., 118 Fed. 141, holding Hoyt's grain drill
is infringed by changing parts of combination without essentially
varying principle or mode of operation pervading original patent.
Syl. 7 (X, 968). Patents structurally different may infringe.
Approved in Farmers* Mfg. Co. v. Spruks Mfg. Co., 127 Fed. 697,
holding East patent ventilating barrel not anticipating anything In
prior art and meeting instant recognition Is patentable invention.
Syl. 9 (X, 968). Later patent speedily used shows novelty.
Approved in Peters v. Union Biscuit Co., 120 Fed. 685, holding
Peters patent, for packing crackers, not being anticipated and
disclosing patentable invention Is infringable; National Hollow,
etc., Co. V. Interchangeable, etc., Co., 106 Fed. 708, holding patentee
entitled to all uses his patented device can be put, whether he was
aware of or described them when securing patent.
113 U. S. 179-199, 28 L. 908. BRYAN v. KENNETT.
Syl. 3 (X, 969). Nonresident minors proceeded against by pub-
lication.
Approved in United States v. Eisenbels, 112 Fed. 196, holding
final Judgment of State court offered in evidence Federal court,
validity not questioned for errors not affecting Jurisdiction of court
rendering it.
113 U. S. 199-202. Not cited.
113 U. S. 203, 204, 28 L. 979, TUCKER v. MASSER.
(X, 970). Miscellaneous.
Cited in Peabody G. M. Co. v. Gold Hill Min. Co., Ill Fed. 820,
holding patent for mineral lands sixteen years old, protecting rights
continuously exercised by patentee and predecessors for fifty years,
valid, several claims unitable into one.
113 U. S. 205-212, 28 L. 959, CARDWELL v. AMERICAN BRIDGE
CO.
Syl. 1 (X, 970). State being admitted controls navigable waters.
Approved In Dehon v. Lafourche Basin Levee Board, 110 La. 779,
84 So. 775, holding governor of State may ex officio be invested
with certain functions of administration of levee boards without
one governmental branch interfering with the other; Frost v. Rail-
road Co., 96 Me. 83, 85, 87, 51 AtL 808, 809, holding right of naviga-
Vol. 11 — 45
113 U. S. 212-227 Notes on U. S. Reports. 706
tioD in tide-water channel not private property right but public-
right abridged or extinguished at pleasure of sovereign.
Syl. 2 (X, 971). State generally controls bridges — Navigable
streams.
Approved in Gummings v. Chicago, 188 U. S. 428, 23 Sup. Ct 476»
47 L. 530, holding authority of State prohibiting erecting, without
permission, structure in navigable river wholly within Its limits,
not superseded by act March 3, 1800, chap. 425, { 10; Levy v. United
States, 177 U. S. 629, 44 L. 918, 20 Sup. Ot 800, holding Interstate
commerce not Interfered with by constructing dam across side
channel of Mississippi same result of crevasse and recent
Syl. 3 (X, 971). Ck>ngressional commercial power exclusive State
authority.
Approved in Bollu v. Nebraska, 176 U. S. 88, 44 L. 384, 20 Sup.
Gt. 289, holding admission into Union of Nebraska "upon equal
footing " did not make adoption of Fifth Amendment applicable to
procedure In State court
113 U. S. 212-215. Not cited.
113 U. S. 215, 216, 28 L. 983, GAILLOT v. DBETKBN.
Syl. 1 (X, 972). Gircuit Court's jurisdiction timely filing transcript
Approved in Pender v. Brown, 120 Fed. 497, holding Gircuit Court
of Appeals acquires Jurisdiction by returning writ of error with
record next ensuing term or showing why not returned.
113 U. S. 216-218. Not cited.
113 U. S. 218-222, 28 L. 980, PRICE v. PENNSYLVANIA R. R. CO.
Syl. 1 (X, 972). Mail clerk negligently Injured railroad liable.
Approved In Bankers, etc., Co. v. Minnesota, .etc., Ry., 192 U. S.
384, 24 Sup. Ct. 329, holding suit against railway carrying United
States mall for negligently losing package, Circuit Court of Appeals
has jurisdiction, diverse citizenship existing; Boston Ins. Co. v.
Chicago, etc., Ry. Co., 118 Iowa, 434, 92 N. W. 92, holding railroad
controlling only car and mall therein is not bailee rendering it liable
to addressee for its loss due to negligence of Its servants.
113 U. S. 222-227, 28 L. 981, DAKOTA CO. v. GLIDDEN.
Syl. 1 (X, 973). Judgment compromised no appeal.
Approved In Thorp v. Bonnifleld, 177 U. S. 19, 44 L. 654, 20 Sup.
Ct 535, holding voluntary settlement by judgment debtor with one
plaintiff and payment to him, leaving amount unpaid less than
jurisdictional amount right of review fatal.
Syl. 2 (X, 973). Evidence dehors proper case on appeal.
Approved In In re Button's E:8tate, 92 Mo. App. 137, holding
appellate courts are sometimes compelled to receive evidence dehors
the record affecting their proceedings in cases before them on appeal
707 Notes on U. 8. Reports. 113 U. S. 227-242
or writ of error; Scruby v. Norman, 91 Mo. App. 520, holding ap-
pellate court may of necessity be compelled to receive evidence
dehors the record, as showing parties becoming bankrupt since
taking appeal; Merriam v. Victory Min. Ck)., 37 Or. 329, 60 Pac. 098,
holding order fixing erroneously the amount receiver must turn
over, same being beyond amount In his custody, he may appeal
therefrom.
113 U. S. 227-242, 28 L. 966, ANDERSON COUNTY COMRS. v.
SEAL.
SyL 1 (X, 973). Bond recitals covers irregularities of issue.
Approved in Stanley County v. Coler, 190 U. S. 450, 23 Sup. Ct.
816, 47 L. 1134, holding recitals in county bonds, that they were
Issued as subscription to railway, authority being stated, bona fide
holder may presume performance of everything giving validity
(affirming 113 Fed. 706); Wilkes County Comrs. v. Coler, 180 U. S.
525, 45 L. 652, 21 Sup. Ct 465, holding rights of holders of county
bonds are determinable in Federal court according to State law as
interpreted by highest State court at time of matter; Kearney v.
Woodruff, 115 Fed. 95, holding bonds for Irrigation ditch no defense
to action by bona fide purchaser based thereon, that proposition was
not same as recited in the bonds; Independent School Dist. v. Rew, 111
Fed. 10, holding innocent purchaser of negotiable bonds from others
than municipality or its agents, question of excessive indebtedness
does not arise; Clai'ke v. Northampton, 105 Fed. 314, holding court
authoritatively determining that certain averments required by
statute In issuing bonds to be jurisdictional, omission thereof in
petition renders bonds unqualifiedly void; D'Esterre v. New York,
104 Fed. 610, holding municipal bonds erroneously reciting statute
issued thereunder does not affect their validity where condition
precedent was not claimed omitted; Hughes County v. Livingston,
104 Fed. 315, holdlug legal issue of bonds to fund debt of munici-
pality neither creates nor increases the debt, but simply changes its
form; Peck v. Hempstead, 27 Tex. Civ. 87, 65 S. W. 657, holding
municipal negotiable bonds issued by city officials, recitals therein
of authorization do not estop city showing unauthorization.
Distinguished in Board of Comrs. v. Coler, 113 Fed. 706, holding
recital in municipal bonds of issue under invalid act does not pre-
clude inquiry relative to upholding them by other valid authority.
Syl. 2 (X, 974). Municipal bonds unimpaired board's improper act.
Approved in Board of Comrs. v. Coler, 113 Fed. 723, holding re-
citals in county negotiable bonds, issue authorized by statute, estops
denial that subscription was necessary to aid completion of rail-
road; Clapp V. Otoe County, 104 Fed. 481, holding recital in
municipal bonds authorized by statute, all legal requirements com-
plied with, estops corporation defending action against innocent
purchaser, on ground of irregularity.
113 U. S. 242-257 Notes on U. S. Reporte. 708
Syl. 3 (X, 974). Municipality's laches estops contesting bond
validity.
Approved In Tulare Irr. Dlst v. Shepard, 185 U. S. 22, 46 L. 783,
22 Sup. Ct 539, holding de facto corporation receiving full consider-
ation for bonds issued by it cannot set up never legally Incorpo-
rated against holder for value without notice; Bond, etc., Stock Co.
V. Mitchell County, 21 Tex. Civ. 646, 54 S. W. 289, holding while
commissioners* court issued unauthorized interest-bearing bonds tdie
levying tax and paying Interest several years constitute ratification
of same.
Syl. 4 (X, 974). Evidence undisputed court directs verdict
Approved In Marande v. Texas & Pac. R. R. Co., 184 U. S. 191, 46
L. 496, 22 Sup. Ct. 346, holding that locomotives will cause ignition of
cotton, and that negligence is clearly established, justifies court's di-
recting the verdict; District of Columbia v. Moulton, 182 U. S. 582, 45
L. 1241, 21 Sup. Ct. 842, holding question of negligence or no negll-
g^ence one of law for court, where but one inference can reasonably
be drawn from the evidence; Patton v. Texas & P. R. R. Co., 179
U. S..660, 45 L. 363, 21 Sup. Ct. 276, holding accident to fireman,
caused by loose step on locomotive, not necessarily showing em-
ployer's negligence, and evidence justifying court may direct verdict;
Ketterman v. Dry Fork R. R. Co., 48 W. Va. 613, 37 S. B. 686, hold-
ing in actions for negligence, facts undisputed and all reasonable
minds drawing same conclusion, judge decides actionable negli-
gence; if disputed, then question for jury; dissenting opinion In
Chauncey v. Dyke Bros., 119 Fed. 15, majority holding Bankrupt
Court acquiring lawful custody of property to which confiicting
liens attach, has jurisdiction to determine priority of liens, though
trustee has no interest.
113 U. S. 242-249. Not cited.
113 U. S. 249-257, 28 L. 949, CENTRAL R. R. CO. v. MILLS.
Syl. 1 (X, 976). Diverse citizenship lacking case not removable.
Approved in Redfleld v. Baltimore & O. R. R. Co., 124 Fed. 931.
holding foreign corporation as majority stockholder causing
domestic corporation to do fraudulent acts, latter not having same
interest as complainant not party though of same State; MacGinniss
V. Boston, etc., Silver Min. Co., 119 Fed. 101, holding stockholder
of domestic corporation, being of same State, and suing foreign
corporation to enjoin exercising control over domestic corporation,
latter a necessary party; Eldred v. American, etc., Co., 105 Fed.
459, holding corporation is an indispensable party to suit by its
minority stockholders to set aside transfer of property by the cor-
poration.
Distinguished in Marrs v. Felton, 102 Fed. 778, holding tort action
against two defeadants for negligence of servants employed by them
70B Notes on U. S. Reports. 1X3 D. S. 257-302
Jointly not separable controTersy, so as to be removable by one de-
fendant alone.
*
Syl. 3 (X, 976). DiflPerent citizenship not existing case unre-
movable.
Approved in Marrs v. Felton, 102 Fed. 779, holding though Federal
receiver be properly joined in State court with codefendant who
has no right of removal, and there being no separable controversy,
receiver cannot remove.
113 U. S. 257-261. Not cited.
113 U. S. 261-267, 28 L. 971, NASHVILLE, ETC., RY. CO. v.
UNITED STATES.
Syl. 2 (X, 977). Decree upon compromise bars subsequent suit
Approved in Johnston v. Osment, 108 Tenn. 36, 65 S. W. 24, hold-
ing in suit to construe will, though pleadings might not justify
decree, parties beneficially interested may consent to decree regard-
ing transfer of property; Wilson v. Schaefer, 107 Tenn. 334, 64 S.
W. 216, holding mother petitioning for compromise decree con-
firming exchange of lands, infants having remainder therein, same
valid and binding on them though guardian ad litem does not con-
sent; Sale V. Eichberg, 105 Tenn. 347, 59 S. W. 1024, holding though
physician obtained judgment in justice court against patient for
fees, latter not estopped from maintaining action for malpractice.
113 U. S. 268-278, 28 L. 063, COON v. WILSON.
SyL 2 (X, 977). Simply enlarging claim patent reissue invalid.
Approved in Pfenninger v. Heubner, 99 Fed. 443, holding Pfen-
ninger'8 reissue for improvement in baiters' ovens is void for laches
and fraud in applying for reissue; Jopling v. Chachere et al., 107
La. 528, 32 So. 245, holding defective tax sale due to defective
assessment, sale may be basis of prescription of ten years, defect
being latent purchaser not supposed to know of.
Distinguished in Crown Corl£, etc., Co. v. Aluminum, etc., Co.,
108 Fed. 856, 857, holding delay In obtaining patent after filing
application, adversely rullrgs of examiners necessitating appeals,
not abandonment of inventor's rights, he succeeding within statu-
tory limit
113 U. S. 278-293. Not cited.
113 U. S. 293-302, 28 L. 976, AVENGO v. SCHMIDT.
Syl. 3 (X, 979). Confiscated estate reverts to confiscatee's heirs.
Approved in Heirs of Ledoux v. Lavedan, 52 La. Ann. 323, 328, 27
So. 201, 203, holding purchaser of confiscated estate at confisca-
tion sale gets estate during confiscatee's life only, when title vested
in latter's heirs.
113 U. S. 407^23 Notes on U. S. Reporta. 712
balance divided among certain persons afterward. legal title held
in trust therefor; Beclser v. Chester, 115 Wis. 133, 91 N. W. 102.
holding twenty-one year term common-law rule respecting per-
petuities is absolute or gross term not referable or subject to be
limited by existing infancy. See 84 Am. St. Rep. 116, note.
Syl. 7 (X, 985). All interested must be made parties.
Approved In Reed v. Alabama, etc., Co., 107 Fed. 595, holding
remainder comparatively unproductive equity may decree sale
thereof provided interests of children unborn are properly protected;
Kidder v. Fidelity, etc., Co., 105 Fed. 825, holding where giving
notice of appeal to all parties of record would be intolerable burden,
same may be avoided by appeal taken in open court; Sadler v.
Taylor, 49 W. Va; 115, 38 S. E. 588, holding at law all persons having
Joint interest must Join as plaintiffs, and this is preferable in equity,
but not obligatory; Moore v. Jennings, 47 W. Va. 189, 34 S. E. 79G,
holding where proper parties are not properly before court, decree
will be reversed, and cause remanded for further proceedings.
Syl. 8 (X, 986). Trustee necessary party to defeat trust.
Approved in Stevens v. Smith, 126 Fed. 711, holding under
general equity rule all persons whose interests will be directly
affected by Judgment must be parties to suit; In re Luscomb*8 Will,
109 Wis. 201, 85 N. W. 346. holding one of two executors, also being
testamentary trustee, refusing to Join in appeal from order dis-
tribution, must be made defendant.
Syl. 11 (X, 986). Unborn unrepresented not bound probate Judg-
ment.
Approved in Ridley v. Halliday, 106 Tenn. 617, 61 S. W. 1028,
holding trust deed giving life estate, remainder to children of
grantor, sale may be made, life tenant virtually representing con-
tingent remaindermen not in esse; Ammons v. Ammons, 50 W. Va.
406. 40 S. E. 497, holding unborn children standing in same class
as persons living are deemed to be before the court by repre-
sentation in sale of their interests.
113 U. S. 407-418. Not cited.
113 U. S. 418-423, 28 L. 1013, UNITED STATES v. JORDAN.
Syl. 1 (X. 987^ Act refunding taxes, treasurer no discretion.
Approved in Buchanan v. Patterson, 190 U. S. 366, 23 Sup. Ct
769, 47 L. 1098, holding congressional appropriation to " B," ad-
ministratrix representing " A and B " meant to " B " as represen-
tative of next of kin of original sufferer, " B " included, affirming
Buchanan v. Patterson, 94 Md. 544, 51 Atl. 171, holding plaintiff
appearing in three different capacities upon record is for purposes
of appeal a different person according to capacity.
713 Notes on U. S. Reports. 113 U. S. 424-404
113 U. S. 424-435, 28 L. 1064, CHICAGO, ETC., RY. CO. v. CRANE.
Syl. 1 (X, 087). Lessor railroad party compelling lessee railroad.
Approved in Western Union Tel. Co. v. Pennsylvania R. R. Co.,
120 Fed. 383, holding valid notice terminating lease given by
landlord or tenant pannot be withdrawn except by consent of both
parties.
Syl. 2 (X, 987). Railroad leased corporation liable as corporation.
Approved in Willard v. Spartanburg, U. & C. R. R. Co., 124
Fed. 800, holding railroad company whose charter has not been
repealed exists as legal entity, though all its property has been
legally sold under valid mortgage.
113 U. S. 435-448, 28 L. 1059, PRENTICE v. STEARNS.
Syl. 3 (X, 988). Public lands — Equitable title is transferable.
Approved in M'Manus v. Chollar, 128 Fed. 906, holding in tres-
pass to try title there being no ambiguity in any of the convey-
ances, letters written under later deed inadmissible to vary or
explain the same.
113 U. S. 449-452, 28 L. 1043, MORGAN v. HAMLET.
Syl. 1 (X, 988). Nonresident infant's claim barred after limit.
Approved in Security Trust Co. v. BIacl£ River Nat. Banl£, 187
U. S. 229, 23 Sup. Ct. 58, 47 L. 155, holding nonresident's suit
against decedent's estate barred by State statute will be so held
by Federal court; Hale v. Coffin, 120 Fed. 474, holding right of
State to fix limit upon time in which relief may be sought has
been recognized in Federal courts following highest State court;
International Postal Supply Co. v. Bruce, 114 Fed. 573, 577, 581,
holding suit in equity based on legal demand, court is bound by
Statute of Limitations which would govern special statutory action
at law thereon.
113 U. S. 452-464, 28 L. 1038, CHASE v. CURTIS.
Syl. 1 (X, 989). Corporations — Penal statute strictly construed.
Approved In Seaton v. Grimm, 110 Iowa, 151, 81 N. W. 227,
holding corporation's stockholders who executed articles of incor-
poration, and becoming officers and directors, estopped to deny
legality of corporation.
Syl. 3 (X, 989). Federal court follows State statutory judgment
Approved in Union & Planters' Banli v. City of Memphis, 111
Fed. 572, holding effect of judgment of State court pleaded in
Federal or other court supporting plea res judicata, determined
by law of State rendering same; Brunswicli Terminal Co. v. National
Bank, 99 Fed. 639, holding Federal court will follow the construc-
tion given by the Supreme Court of State to Statute of Limitations
of that State. See 94 Am. St Rep. 533, note.
113 U. S. 465-516 Notes on U. S. Reports. 714
Syl. 4 (X, 990). Corporations — Trustee liable for contracts only.
Approved in Brown v. Clow, 158 Ind. 422, 62 N. B. 1013, hold-'
ing mere failure of corporation to publish report, directors not
liable unless creditor is deceived and misled by failure to make
report; Kilton v. Providence, etc., Tool Co., 22^ R. I. 615, 48 AtL
1042, holding creditor's statutory right against individual stock-
holders does not accrue until remedy is exhausted against corpo-
ration; Farr v. Briggs' Estate, 72 Vt 228, 47 Atl. 794, holding
plaintiff purchasing notes never paid from corporation of his State
may sue outside State, liability being contractual not penal; dis-
senting opinion in Livingston v. Livingston, 173 N. Y. 388, 66
N. E. 127, 93 Am. St Rep. 606, majority holding defendant in
divorce adjudged to pay alimony annually, constitutes property
of plaintiff, of which she cannot be deprived without due process.
See 93 Am. St. Rep. 606, note.
113 U. S. 465-476, 28 L. 1055, ST. LOUIS IRON MOUNTAIN,
ETC., R. CO. v. BERRY.
Syl. 1 (X, 990). Consolidation created new corporation.
Approved in St Louis I. M., etc., Co. v. Miller County, 67 Ark.
503, 55 S. W. 928, holding ordinary right of way of St L. I. M.
& S. Ry. Co., for taxation purposes extends only fifty feet center
of track, though company consolidated had 200 feet
Syl. 2 (X, 990). New corporation subject present existing taxation.
Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. 8. 21,
45 L. 407, 21 Sup. Ct 247, holding new grant of corporate fran-
chise contemplated surrendering entire administration of functions
of constituent companies to new corporation with new corps
of officers; Winn v. Wabash R. R. Co., 118 Fed. 5Q, 60, holding
consolidated corporation thereby became citizen of each State
wherein articles were filed, and action arising Missouri not re-
movable residence another State claimed; Adams v. Tombigbee
Mills, 78 Miss. 687, 29 So. 472, holding Laws 1882, p. 84 (Miss.), ex-
empting from taxation all manufacturing plants for ten years
from completion, does not exempt tenement-houses outside factory
grounds. See notes, 89 Am. St Rep. 614, 626, 634, 635.
113 U. S. 476-506, 28 L. 1044, MORGAN v. UNITED STATES.
Syl. 9 (X, 992). Holder negotiable paper has no equities.
Approved In Pickens Tp. v. Post 99 Fed. 663, holding purchaser
negotiable municipal bonds from prior holder acquires latter*s rights
unaffected by his own knowledge, time of purchase, of defenses to
such bonds.
113 U. S. 506-516, 28 L. 1102, PROVIDENT INSTITUTION, ETC.
y. MAYOR, ETC., JERSEY CITY.
Syl. 1 (X, 992). Mortgages may be subsequent other liens.
Approved in King v. Thompson, 110 Fed. 325, holding legislature
can attach conditions to right given foreign corporations to men-
715 Notes on U. S. Reports. 113 U. S. 516^27
gage railroad property in State, as postponing mortgage liens to
Judgments in State for injuries.
Syl. 3 (X, 992). Lien arrangement not depriving of property.
Approved in HiU v. City of St. Louis, 159 Mo. 172, 60 S. W. 119,
holding ordinance not invalid because city requires all water-closets
to be connected with sewers; Missouri v. Hermann, 84 Mo. App.
9, holding, under power to regulate, the city has authority to
Impose any reasonable terms and conditions upon which citizens
may connect their property with its sewers.
n3 U. S. 616-527, 28 L. 1098, UNION PAO. RY. CO. v. CHEYENNE.
SyL 1 (X, 993). Statutory board assessing other means Illegal.
Approved in State v. Wood, 155 Mo. 453, 56 S. W. 479, holding
LaWs 1899, p. 228 (Mo.), requiring inspection of beer and fixing
penalty being criminal, court of equity has no power to enjoin
its enforcement; Ziehler v. Union Bank, etc., Co., 104 Tenn. 296,
57 S. W. 345, holding property passing to brother subsequent to
passage of law of 18^, p. 579 (Tenn.), was subject to payment
of collateral inheritance tax.
Syl. 2 (X, 994). Bill may restrain collection illegal tax.
Approved in Cruickshanlt v. Bidwell, 176 U. S. 81, 44 L. 381,
20 Sup. Ot 283, holding no dispute regarding importing teas of
certain standard, equity will not enjoin collector of customs to
prevent importations below standard; City of Hutchinson v. Beck-
man, 118 Fed. 402, holding equity will enjoin enforcement of
illegal taxation where complainant will be called upon to defend
multitude criminal prosecutions; Union & Planters' Banlt v. City
of Memphis, 111 Fed. 563, holding in suit by bank equity will
enjoin city levying taxes upon its capital stock, thus violating
charter In prevention of multi{)licity of suits; Douglas County v.
Stone, 110 Fed. 814, holding allegation of erroneous levy of tax and
not illegality, not suit to remove cloud, and jurisdictional amount
Is of tax not land value; Dumars v. City of Denver, 16 Colo. App.
379, 65 Pac. 582, holding equity has jurisdiction to prevent mul-
tiplicity of suits by enjoining taxation where several are simi-
larly interested, though not jointly; Smith v. Smith, 159 Ind. 389,
65 N. B. 183, holding absence of peculiar circumstance, collection
of tax should not be enjoined in advance of time treasurer seeks
to levy,
Syl. 3 (X, 994). Railroads wholly assessed ratably distributed,
legaL
Approved in Pabst Brewing Co. v. Crenshaw, 120 Fed. 155, hold-
ing not within police power of State to subject article of interstate
commerce, passing through State, being temporarily stored therein,
to taxation or inspection fees; People v. District Court, 29 Colo.
281, 68 Pac. 252, holding equity will not restrain State board of
113 U.' S. 527-537 Notes on U. S. Reports. 716
assessors from valuing property of railway, telegraph, and trans-
portation companies where injunction would injure State.
113 U. S. 527-637. 28 L. 1113, ERHARDT v. BOARO.
Sjl. 1 (X, 995). Definite distances from point sufficient notice.
Approved, in Unita Tunnel, etc., Co. v. Creede, etc., M. Co., 119
Fed. 170, holding certificates of location mining claims not con-
clusive evidence of recited facts against parties claiming land they
describe adversely to their makers; Nevada Sierra Oil Co. v. Home
Oil Co., 98 Fed. 678, holding absence intervening rights, discovery
of minerals may be made subsequent to location; McCarthy v.
Phelan, 132 Cai. 406, 64 Pac. 571, holding whether boundaries of
mining claim are distinctly marl^ed question of fact and notice, de-
fective in this respect, not reviewable on repeal; Mining Co. v.
AUman, 23 Utah, 420, 64 Pac. 1022, holding claim being 600 feet
wide notice of location is definite, being posted on the initial point
of the lode; El wood v. Diclsinson, 26 Wash. 640, 67 Pac. 373, hold-
ing statute requiring driving of three piles, notice thereupon of lo-
cating fishery, anchored pile and two buoys sufiiclent notice to
defendant, diligence pursued.
Syl. 2 (X, 995). Discovery, appropriation, development, source of
title.
Approved In Tuolumne Cons., etc., Co. v. Maier, 134 Cal. 585, 60
Pac. 864, holding an actual mineral discovery is essential to the
valid location of a mining claim.
Syl. 3 (X, 995). Prior discoveries good against trespassers.
See note, 87 Am. St. Rep. 412.
Syl. 4 (X, 995). Discoverer in possession protected to develop.
Approved in Tonopah & Salt Lake Min. Co. v. Tonopah Min. Co.,
125 Fed. 395, holding locator of mining claim by amending location
extending its boundaries, not required to make any discovery of
ore on added ground; United States Min. Co. v. Lawson. 115 Fed.
1008, holding Federal court of equity not given jurisdiction to try
title to mining claim, bill not showing inadequacy of legal remedy;
Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112 Fed. 15, hold-
ing contest pending in land department. Federal court is without
jurisdiction to determine title to land in dispute remaining in the
United States; Miller v. Chrisman, 140 Cal. 448, 73 Pac. 1085, hold-
ing no discovery of oil under claim, locator not in actual bona fide
possession, the same being open to peaceable entry by others;
Bramlett v. Flick, 23 Mont. 112, 57 Pac. 875, holding statute per-
mitting discoverer of mine twenty days to complete location, and
notice to that effect was posted, no one can intervene within that
time; Lockhart v. Leeds, 10 N. Mex. 597, 63 Pac. 52, holding bill
cannot be maintained to quiet title to mining location, there being
no allegation of inadequate remedy at law; Union Mill, etc., Co. v.
Leitch, 24 Wash. 590, 64 Pac. 831, holding party miners locating
717 Notes on U. S. Reports. 113 U. S. 537-531)
claim, erecting monument, and posting notice, and because of fail-
ure of food did not complete boundaries for eight days, held reason-
able time.
Syl. 5 (X, 99G). Mining districts may have regulations.
Approved in Mining Co. v. Allman, 23 Utah, 417, 04 Pac. 1021,
holding State may pass acts supplementing mining act of Congress
respecting location mining claims, as recognized by Rev. Stat. U. S.,
S 2324; dissenting opinion in Northmore v. Simmons, 97 Fed. 393,
majority holding mining district may make regulations requiring
prescribed amount of worit within ninety days after location, or sub-
ject to relocation.
Distinguished in Northmore v. Simmons, 97 Fed. 388, holding min-
ing district may make regulations requiring prescribed amount of
work within ninety days after location, or subject to relocation.
(X, 995). Miscellaneous.
Cited in Lindsley v. Union, etc., Min. Co., 115 Fed. 48, holding
Judgment dismissing action plaintiffs declining to amend complaint,
demurrer thereto sustained, is one on merits pleadable in bar in
second action between same parties.
113 U. S. 537-539, 28 L. IIIC, ERHARDT v. BOARO.
Syl. 1 (X, 996). Equity relieves against irremedial mischief.
Approved in Lownsdale v. Gray's Harbor, etc., Co., 117 Fed. 987,
holding equity will not abate unlawful obstruction of navigable
stream for private individual, injury being incidental to his land title
thereto in dispute; Utah, etc., R. R. Co. v. Utah, etc., Ry. Co., 110 Fed.
894, holding new railroad acquiring prima facie rights to work done
by its predecessor, equity will enjoin interference by rival company
subsequently locating; Northern Pac. Ry. v. Cunningham, 103 Fed.
710, holding unlawful pasturing of sheep, being continuing trespass,
will be enjoined, land being permanently injured by destruction of
grass; Olive Land, etc., Co. v. Olmstead, 103 Fed. 579, holding one
acquiring equitable title to land may maintain suit in equity to
enjoin the sinking of oil wells thereon and taking oil therefrom;
Camp V. Dixon, Mitchell, etc., Co., 112 Ga. 880, 38 S. E. 74, holding
cutting timber being destructive and continuing trespass, damages at
law being inadequate, equity will restrain; Powell v. Canaday, 95 Mo.
App. 719, 09 S. W. 087, holding timber constituting chief value of
land, equity will enjoin the cutting thereof, plaintiff showing pos-
session of land in question; Palmer v. Crisle, 92 Mo. App. 514, hold-
ing where continuous trespasses by cutting trees occur and are threat-
ened, greatly impairing value of land, injunction will lie to protect
owner; Freer v. Davis, 52 W. Va. 8, 9, 43 S. E. 167, 94 Am. St. Rep.
901, 902, holding irreparable mischief being done or threatened to
realty, equity will enjoin trespass to preserve property tiiough
title be in dispute.
113 U. S. 53^-674 Notes on U. 8. Reports. 718
113 U. S. 53d-542. Not cited.
113 U. S. 542-545, 28 L. 1127, PBUGH y. DAVia
Syl. 3 (X, 997). Tender must be sum due.
Approved In Lilienthal v. McCormlck, 117 Fed. 97, holding tender
Is valid, being fairly made, absolute and unconditional, and covering
full amount then due.
113 U. S. 545-550, 28 L. 1128, GUMBEL v. PITKIN.
Syl. 2 (X, 998). Order dismissing intervention final and ap-
pealable.
Approved in Baker v. Williams Bank CJo., 42 Or. 219, 70 Pac. 713,
holding order made ex parte, regarding nonappearing creditors, was
not a Judgment fixing rate of interest on judgments and decrees
for payment of money.
113 U. S. 550-565, 28 L. 993, FTJSSELL v. GREGG.
Syl. 1 (X, 998). Relief not equitable equity without jurisdiction.
Approved in Kellar v. Craig, 126 Fed. 631, holding equity has ju-
risdiction of bill to remove cloud upon title to realty, both legal title
and possession In complainant being shown by bill; Ck)cke v. Copen-
haver, 126 Fed. 148, holding bill to remove cloud from title to real
estate cannot be maintained by one who has neither the legal title
nor possession; Dewing v. Woods, 111 Fed. 677, holding court of
equity cannot entertain bill to remove cloud upon title to real estate
without clear proof of possession and legal title in complainant; Ter-
ritory V. Wingfield, 2 Ariz. 308, 15 Pac. 140, holding enactments
being positive and two funds existing, same person holding office of
probate judge and school superintendent is entitled to two salaries;
Lockhart v. Leeds, 10 N. Mex. 598, 63 Pac. 52, holding bill for Injunc-
tion to restrain interference with realty not maintainable merely as
substitute for action of ejectment.
113 U. S. 560-568, 28 L. 1131, ST. LOUIS v. MYERS.
Syl. 2 (X, 1000). State law determines riparian rights.
Approved in Kean v. Calumet Canal Co., 190 U. S. 481, 482, 483,
23 Sup. Ct 660, 661, 47 L. 1146, holding Federal patent to Indiana
conveying ** the whole of fractional sections," includes land under
nonnavigable water, survey not extending beyond meandering line.
113 U. S. 568-574, 28 L. 1079, BROWN v. UNITED STATES.
Syl. 1 (X, 1000). Contemporaneous statutory Interpretation en-
titled great weight.
Approved in Fairbank v. United States, 181 U. S. 308, 45 L. 873,
21 Sup. Ct. 658, holding stamp tax on foreign bill of lading, act
Congress, June 13, 1898, equivalent to tax on articles included in bill
of lading, hence tax on exports; Northern Pac. Ry. v. Soderberg,
104 Fed. 427, holding term ** mineral land " did not Include lands
719 Notes on U. S. Reports. 113 U. 8. 574r-594
chiefly valuable for building stone by act July 2, 1864, but did by
subsequent acts prior to 1879; Corning y. Board of Comrs., 102 Fed.
61, holding absence of other definition in State legislation, presump-
tion is legislature used, and so intended, commbn word in its
accustomed sense; State of Maryland v. United States Fidelity Co.,
93 Md. 318, 48 Atl. 920, holding statutory State franchise tax of
2 per cent, levied on general gross receipts, means on gross receipts
of business within State, excluding interstate business; Daniel v.
Simms, 49 W. Va. 567, 39 S. E. 695, holding construction given
statute by those charged with Its execution ought not be overruled
without cogent reasons.
113 U. S. 574-585, 28 L. 1084, CHICAGO LIFE INS. CO. V.
NEEDLES.
Syl. 1 (X, 1001). Federal Constitution involved raises reviewable
question.
Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S. 14,
45 L. 404, 21 Sup. Ct 245, holding Federal question regarding
impairment contractual obligation sufficiently raised in State court,
though contract clause Federal Constitution was not discussed;
State V. Smith, 177 Mo. 95, 75 S. W. 632, holding constitutionality
of city ordinance being expressly raised and determined by trial
court, right to appeal to Supreme Court on constitutional question
immediately attaches.
Syl. 3 (X, 1002). Corporation cannot abuse its privileges.
Approved in New Orleans Water- Worlds Co. v. Louisiana. 185
U. S. 347, 353, 46 L. 942, 945, 22 Sup. Ct 695, 697, holding Federal
Supreme Court cannot review judgment of State court solely be-
cause that Judgment impairs or fails to give eflTect to a contract;
Bowlby V. Kline, 28 Ind. 664, 63 N. E. 724, holding statute
providing notes and mortgages of associations shall not be ne-
gotiable except on order of court, not unconstitutional impairing
contracts; D'Arcy v. Mutual L. Ins. Co., 108 Tenn. 572, 69 S. W.
769, holding act requiring service upon secretary of state, repealed
substituting treasurer, process served upon secretary valid, foreign
corporation withdrawing from State prior to latter act.
Syl. 4 (X, 1002). Corporations impliedly subject reasonable legis-
lative regulations.
Approved in L., etc.. R. R. Co. v. Williams, 103 Ky. 377, 45 S. W.
230, holding repeal of provision in railway charter requiring owner
of stoclc k\\\ed to sue within six months, no impairment of obliga-
tion of charter contract.
113 U. S. 585-594, 28 L. 1067, PEARCE v. HAM.
Syl. 1 (X, 1003). Partner cannot defraud partner.
Approved in Williamson v. Monroe, 101 Fed. 331, 333, holding
equitable suit necessary to settle partnership affairs, court re-
113 U. S. 51H-629 Notes on U. S. Reports. 720
tains jurisdiction to administer complete relief, though some mat-
ters be legal.
113 U. S. 594-609. 28 L. 1093. AYERS v. WATSON.
Syl. 1 (X, 1003). Removal petition repealed act 1875.
Approved In Hodge v. Chicago, etc., Ry. CJo., 121 Fed. 50, hold-
ing defective bond uot being jurisdictional, same could be amended
on leave of court after time of removal expires.
Syl. 2 (X, 1003). Removal cause State court is jurisdictional.
Approved in Great Southern Fire Proof Hotel Co. v. Jones. 177
U. S. 454. 44 L. 844, 20 Sup. Ct. 092, holding ciUzenship of Individual
members of limited partnership by laws of Pennsylvania must Ik?
alleged where jurisdiction depends upon diverse citizenship of
parties; Central Grain & S. Exchange v. Board of Trade, 125 Fed.
4G6. holding Federal court first confronted with question of Juris-
diction ot subject-matter and party, and this must appear upon the
record; Mastin v. Chicago. R. I., etc., P. Ry. Co., 123 Fed. 831,
holding defendant on removal petition is estopped denying Federal
court's jurisdiction to render adverse judgment against him. un-
less State court was without jurisdiction; Dalton y. Milwaukee
Mechanics' Ins. Co., 118 Fed. 882, holding record in State court,
after filing removal petition, failing to show facts divesting juris-
diction. Federal court cannot permit amendment of petition; Springs
V. Southern Ry., 130 N. C. 200, 41 S. E. 105, holding removal pe-
tition not containing necessary jurisdictional averments to State
court, amendment allowed by Federal court did not cure defect,
rendering retention of jurisdiction erroneous; dissenting opinion in
Giles V. Harris, 189 U. S. 500, 23 Sup. Ot. 645, 47 L. 917, majority
holding absence of averments in bill in Federal court, showing
jurisdictional amount was in dispute, not available on appeal to
Federal Supreme Court, other grounds raised.
Syl. 8 (X. 1005). Jury instructed find boundaries.
Approved in Piatt v. Vermillion, 99 Fed. 365. holding surveys
run and marked on ground, govern call in field notes for line of
previous survey, and call does not necessarily bind two surveys
together.
113 U. S. 609-618. Not cited.
113 U. S. 618-629, 28 L. 1109, WINONA, ETC., R. R. CO. T. BAR-
NEY.
Syl. 1 (X, 1006). Railroad land grants read together.
Approved in United States v. St Anthony R. R., 192 U. S. 531,
24 Sup. Ct 335, holding lands twenty miles distant from railroad
are not "adjacent," act March 3, 1875, permitting taking of ma-
terials for construction from public lands adjacent, reversing 114
Fed. 724; Johanson y. Washington, 190 U. S. 184, 23 Sup. Ct 826,
TO.
Notes o
U.
Reiiorta. 113 U. S. 029-644
P
27 L. 1011. holding act Febrnmy 26, 1839. permitting selection ot
public lands In Hen of scbool sections, as applicable to Territory of
Wnslilnglon na to any other; Unilet] States v. Michigan, 190 U. S.
396, 23 Sup. Ct 747. 4T L. 1109, holding act of Congress 1852 makes
Michigan tnistee of St. Mary's canal tolls to be collected only to
extent of State expenditures in repayment for all damages; Manley
T. Tow, no Fed. 247, holding thougli findings of facta hy land
Uepartment are conclusive, eijuity will grant appropriate relief one
deprived of land because of erroneous construction of law; Altschul
T. Clark, 39 Or. 324, 65 Pac. 9&4. holding until approved by secre-
tary of Interior, selection, filing of selection, and tendering usual
fees, right granted hy State, did not pass title from government;
Herrlranu. etc., Co. v. Keel, 25 Utah. 100. 60 Pac. 72t. holding
case reversed for Insufficient evidence supporting material fludlugs.
piaterlal evidence produced second trial not offered first first de-
daton not conclusive on second; State v. .lohanson, 26 Wash. 675.
«r Pac. 403, holding lands selectml under act March 2. 18.^3, | 20.
lieu of sectloua 10 and 30, passed to State by act February 22,
1SS9. { 10, though lands not spcciBL-ally described.
U3 U. S. 629-044, 28 L. 1122, KANSAS. ETC.. B. II. CO. T. DUN-
MEYER.
Syl. 2 {X. 1007). Railroad location definitely fixed filing map.
Approved In Oregon & Cal. R. R. v. United States, 100 U. S. 190,
23 Sup. Ct. 6T5, 47 L. 1014, holding act July 26, 1S94, did not pro-
vide for perfecting claims under Or. donation act September 27,
1850. land being abandoned before completing residence thereon;
Jameston-n &. Northern It. 11. Co. v. Jones. 177 D. S. 132. 44 L. 701,
20 Sup. Ct. 571, holding definite location of right of way of rail-
road Is mode by actually constructing road, though profile map has
not been filed; United States v. Oregon, etc., R. R. Co., 176 U. S.
42. 44 I.. 364, 20 Sup. Ct 205. boidiug grant of public lands to
railroad act of Congress July 2. 1864, nature of float, excluding all
lands In anywise appropriated before filing map; .Tames v. Ger
mania Iron Co., 107 Fed. 603, holding enti? of public land seg'
regatea same from public domain, preventing subsequent entry
or acquisition until prior entry is officially canceled; WagstaOT v.
Collins. 97 Fed. 5. 7. holding homee-teader on public lauds acquires
no vested rights therein against United States, prior to becoming
entitled to patent; Hamilton v. Spokane, etc.. R. R. Co.. 3 Idaho.
171, 28 Pac. 410, holding pre-emption filing did not exempt land
from grant of right of way, as same was relinquished before per-
fecting title; Murray v. I'olglase, 23 Mont 410, 420. 59 Pac. 443,
holding one not filing adverse claim under Htatute cannot Inter-
vene determining claims to location, no matter what Interest Is
claimed; Springer v. Clopatli, 20 Nev. 105, 65 Pac. 806. holding
occupancy of land at time listed to State, act Congress June
VoL 11 — 46
113 U. S. 615-679 Notes on U. S. Reports. 722
16, 1880, not an appropriation rendering listing Invalid, preventing
Staters giving title; Toltic Ranch Co. v. Babcocic, 24 Utah, 194, 66
Pac. 879, holding open, notorious, uninterupted, and peaceable pos-
session of land under claim of right presumed adverse from be-
ginning regarding holder of legal title.
Syl. 8 (X, 1008). Abandoned homestead not reverted to railroad
Approved in Tarpey v. Madsen, 178 U. S. 223, 224, 225, 44 L. 1016.
1047, 20 Sup. Ct. 851, 853, holding one actually occupying public
lands intending to homestead, lack of place to record intent will
not defeat, if recorded first opportunity; Teller y. United States,
113 Fed. 281, holding mining laws permitting occupancy mineral
claim does not segregate same from public domain, nullifying Rev.
Stat, S 2461, making it misdemeanor to cut timber public lands;
Oregon Short Line R. R. v. Fisher, 26 Utah, 185, 72 Pac. 933, hold-
ing grant of lands to railroad by act of Congress does not indude
lands, homesteaded at time of grant and uncanceled.
Syl. 4 (X, 1009). Homestead excluded from railroad grant.
Approved In United States v. Oregon, etc., R, R. Co., 176 tJ. S.
47, 44 L. 306, 20 Sup. Ct 267, holding filing of general railroad
route did not preclude a subsequent grant to another company
if prior to filing map of definite location.
113 U. a 645-648, 28 L. 1130, SCHMIBDBR v. BARNEY.
Syl. 1 (X, 1011). Customs — Similarity means "goods similar de-
scription."
Approved In Wleland y. Collector, etc., 104 Fed. 643, holding
small fish packed in oil In quarter tins known generally as " sar-
dine in oil " and dutiable under par. 208, tariff act 1894 (28 Stat
523).
Syl. 2 (X, 1011). Witness may explain commercial term.
ApprovtMl in Wells v. Davis. 22 Utah, 328, 62 Pac. 5, holding It
is snrtirient If locator of mining claim substantially complies with
statutory requirement regarding notice, location being in good
faith.
113 U. S. 648-6.'56. Not cited.
113 U. S. G5(M».5a 28 L. 1037, MAXWELL y. WILKINSON.
Syl. 1 (X, 1012). Memorandum inadmissible facts not recollected.
Approved in Well man v. Jones, 124 Ala. 587, 27 So. 419, holding
written contract sued on being lost, court erred In not construing
its terms from evidence, by iustructinjr Jury to determine same.
Distingulsiied in Alabama, etc., Ry. Co. v. Coleman, 78 Miss. 186,
28 So. 8*Ji), iioldiiig witness never having had any personal knowl-
edge of transaction, he cannot testify from memorandum made by
another.
113 U. S. 659-079. Not cited.
723 Notes on U. S. Reports. U3 U. S. 679-711
113 U. S. 679-683, 28 L. 1070, BLAKE v. SAN FRANCISCO.
Syl. 3 (X, 1013). Old process made new patent invalid.
Approved in Neptune Meter Co. v. National Meter Co., 127 Fed.
567, holding Nash patent for water-meter in view of prior patents
is not patentable, lacking novelty in principle and result; Wisconsin,
etc., Co. V. American, etc., Co., 125 Fed. 769, holding Nation carpet-
cleaning machine not being for invention of primary character, was
not infringed by the Thurman machine; National Meter Co. v.
Thomson Meter Co., 106 Fed. 540, holding Nash patent for disk
water-meter broadly construed, was anticipated, and, if narrowly
construed, is void for lack of invention.
Syl. 5 (X, 1013). Similar application of valve not invention.
Approved in Plumb v. New York, etc., R. R. 97 Fed. 648, hold-
ing McKenna patent for air-brake attachment, In view of prior
art, is void for lack of patentable novelty.
113 U. S. 683-689. Not cited.
113 U. S. 689-703, 28 L. 1089, BOYBR v. BOYER.
SyL 2 (X, 1014). Equality of taxation is aimed at
Approved in People's Nat Bank v. Maiye, 107 Fed. 680, holding
shareholders themselves unable to maintain suit, national bank can-
not maintain suit on their behalf to enjoin collection of tax on
their shares, in absence special circumstances; Cleveland Trust Co.
y. Lander, 62 Ohio St 271, 56 N. E. 1038, holding State cannot
discriminate in the taxation of moneyed capital in hands of
individuals and that represented by national bank shares.
113 U: S. 703-711, 28 L. 1145, SOON HING v. CRpWLEY.
Syl. 1 (X, 1016). Regulating laundries only not class legislation.
Approved in State v. Garbroski, 111 Iowa 502, 82 N. W. 961, hold-
ing Code, S 1347 (la.), requiring license of peddlers other than those
who served in Union army or navy, befng unreasonable classifica-
tion, is unconstitutional; Simmons v. Telegraph Co., 63 S. C. 430, 71
S. E. 522, holding act February 20, 1901 (S. C). authorizing action
against telegraph companies negligently causing mental anguish,
not class legislation; Ex parte Vance, 42 Tex. Cr. 625, 62 S. W. 571,
holding city ordinance establishing hack stands at greater distance
from depot than those of street cars, is not a discrimination; Julien
V. Model B. L., etc., Assn., 116 Wis. 85, 92 N. W. 503, holding Rev.
Stat. 1898. SS 2014, 2015, giving mortgages of mutual loan associa-
tions priority over other liens on mortgaged premises filed subse-
quently, not repugnant to Fourteenth Amendment.
Syl. 2 (X, 1016). Municipality may regulate lavrnd^r certain hours.
Approved in Florida C. & P. R. Co. v. Reynplcls, 183 U. S. 478. 46
L. 286, 22 Sup. Ct. 179, holding general legls^tio>B providing assess-*
ment railroad property by comptroller and realty by treasurer, not
113 D. S, 703-711 Notes on U. S. Beporta.
724
u neons t[tul tonal, couiptroller assessing for omitted tax rears 18T&-
1881; Austin V. Tennessee. 179 D. S. 349. 45 L. 220, 21 Sup. Ct. 134,
bolJicg tobacco, tliou);li legitimate article of commerce, may, to
certain eitenl. be wltUfn police power of tte Slates; Ei parte
KeuDedj. 42 Tex. Cr. 140. 58 S. W. 130, holillnB Pen. Code. art. 19G
(Tex.), prohibiting Sund.17 labor, la wltbin the police power of the
Slate and conBtltutionol: State v. Sopber. 25 Utah 327, 71 Pac. 4S4.
»5 Am. St Rep. S4o, holding Rev. Stat., i 4234, protilbitlng gen-
cially Sunday bUBlcess. ie not, as applied to barber shop, unconstl-
Iniloual, BH bolnic undue restraint of personal liberty. See notes,
92 Am. St. Rep. 709; 78 Am. St. Hep. 272.
Syl. 3 (X. 1018]. LaundryuiaD deprEvable working all time.
Approved in Odd Fellows' Cemetery Assn. v. San Francisco. 140
Cal. 23(], 73 Pac. Q90, holding unlesa court sees that police regulation
has no Juat relation to object in question, decision of legislature
regarding necessity or reasonableness Is conclusive.
Syl. i (X, 1018). Courts cannot Inquire Into legislative moUve.
Approved In Hawkins v. Roberts, etc.. 122 Ala. 142, 27 So. 330.
holding legislative abolishment of ofBce created by It not taking
property without due process though Incumbent could not be re-
ninved without trial; Dobbins v. City of Los Angelea, 130 Col. 1S4.
72 I'ac. B71, holding the motives which Induce legislature to naake
a law cannot be considered In Judicial proceeding involving validity
of the law; Knapp. Stout, etc.. Co. v. St. I.ouis. 156 Mo. 3J6, 56 So.
1105. holding courts will not review action of municipality In
vacating portion of street by ordinance, In absence of allegation oE
fraud.
Syl. 6 (X, 1018). Police regulation against one class uncon-
Btltutlonal.
Approved In Jew Ho v. Williamson. 103 Fed. 24, holding quar-
antine regulations preventlug the entering of district, but permitting
tree Intercourse therein, only nine persons afflicted, not reasonable
regulation; State v. Montgomery, 94 Ma 205. 47 Atl. 1C8. holding
3bw dlscrlmlnntlug between alien and citizen peddlers regarding
Uceuse Imposed Is obnoxious to Fourteenth Amendment; Ballard
y. Oil Co.. SI Miss. GOO, 05 Am. St. Rep. 4S1, 34 So. 550. holding
act imposing restrictions on all corporations without reference to
any differences arising out of the nature of their bnslneaa, not
imposed on natural persons, unconstitutional; State v. Ray. 131 N.
C. 822. 825, 42 S. E. SG3. 02 Am. SL Rep. 799, holding Incorporated
town absence of other authority than Code. S 3799 (N. C), may not
pass ordinance requiring grocery stores to close at 7:30 p. m., except
Saturdays: dlasenllng opinion In Taylor & Marshall v. Beckbani
(No. 1), 178 D. S. 600. 44 L. 1209, 20 Sup. Ct. 890. 1015. majority
holding adverse decision of State tribunal against claimant for
726 Notes on U. S. Reports. 113 U. S. 711-727
governor, not a depriving of property giving Supreme Court Juris-
diction on writ of error.
113 U. S. 711-713. Not cited.
113 U. S. 713-727. 28 L. 1117, EX PARTE FISK.
Syl. 1 (X, 1019). State practice followed Federal court therein.
Approved in Nashua Sav. Banli v. Anglo-American Co., 189 U. S.
228, 23 Sup. Ct. 518, 47 L. 785, holding subscriber to stock in foreign
corporation, subjects himself to laws of foreign country respecting
powers and obligations of such corporation; Camden & Suburban
Ry. Co. V. Stetson, 177 U. S. 175, 44 L. 722, 20 Sup. Ct 619, holding
Federal court in ^tSLte may subject plaintiff to surgical examination,
the laws of said State being rules of decision for Federal courts
therein; Friedly v. Giddings, 119 Fed. 441, holding law of Vermont
make main belt of steam marble mill connecting drive wheel with
main shoft, part of realty; International, etc., Co. v. Hanks' Dental
Assn., 101 Fed. 307, holding act March 9, 1892, authorizes Federal
courts to avail of all modes of taking testimony prescribed by
laws of State wherein they sit.
Distinguished in Camden & Suburban Ry. Co. v. Stetson, 177
U. S. 176, 44 L. 722, 20 Sup. Ct. 619, holding Federal court in State
may subject plaintiff to surgical examination, the laws of said
State being rules of decision for Federal courts therein.
Syl. 2 (X, 1020). Examination previous to trial legal action.
Approved in Li Sing v. United States, 180 U. S. 493, 45 L. 637,
21 Sup. Ct. 452, holding exclusion of Chinese witnesses act Congress
Nov. 3, 1803, S 2, regarding another Chinese right to re-enter United
States not unconstitutional; L. Bucki & Son Lumber Co. v. Atlan-
tic L. Co., 121 Fed. 249, holding action for maliciously suing out
attachment, testimony of defendants not actuated by malice
properly admitted under Florida rule, statute authorizing same;
Smith v. Northern Pac. Ry. Co.. 110 Fed. 341, holding under act
March 9, 1892 (N. Dak.), providing interrogatories In addition to
depositions made prescribed by law, are proper, and should not
be stricken from the files; Salt Lake City v. Smith, 104 Fed. 469,
holding testimony given at former trial by a witness who was pre-
sumptively within jurisdiction of court Is hearsay and inadmissible
under section 861, Rev. Stat.
Distinguished in Victor G. Bloede Co. v. Joseph Bancroft & Sons'
Co., 98 Fed. 185, holding discovery by production of documents will
be awarded in aid of legal action, unless same could not avail
case of party applying.
Syl. 3 (X, 1020). Party not compelled testify before trial.
Approved in Crosby v. Lehigh Valley R. R., 128 Fed. 195, holding
statute requiring notice of time, place, and cause of injury to be
113 D. S. 727-737 Notes on V. S. Reporta. 726
Zlven wttbin 120 days. Slate's cod struct ion tbereof binding on
Federal court In Slate.
Syl. * (X, 1020), No ciumiQBtlon party before removal case.
Approved Id Zych v. AuierlcaD Car, etc.. Co.. 127 Fed. T2C. 727.
boldlng It Is not according to "couimon usage" to call party iu
advance of trial at law. and subject hlro to eiamlnatlon suiting
opposite party's lulercsL
Syl. 6 (X, 1021). Habeas corpus touches Jurisdiction ot court.
Approved in In re Nerltt. 117 Fed. 449. boldlDg writ of habeas
corpus cbaltenges only Jurisdiction of court to commit prisoner.
cannot be Invoked to review or avoid erroDeous rulings, court com-
petent Jurisdiction; DemlDg v. McClaughry, 113 Fed. G49, boldlng
writ of habeas corpus is not available to review an erroneous Judg-
ment of court having Jurisdiction; Foot v. Buchanan. 113 Fed. 158,
holding witness committed for contympt refusing to answer because
of iDcrlmlnatlon, eotltled to habeas corpus though some answers
would not criminate; In re Iteese. 107 Fed. 948. holding incompetent
for court In habeas corpus proceedings to review facts ou which
commitment was ordered, or regularity merely of proceedings; Ex
parte Duncan. 42 Tei. Or. 872, 02 S. W. 781. holding habeas corpus
lies where court had not Jurisdiction to render particular Judgment,
though It had of subject-matter and person accused. See notes,
87 Am. St. Hep. 180. 182. 183.
113 D. 8. 727-737. 28 L. 1137, COOPER MFG. CO. T. FERGUSON.
Syl. 1 (X, 1021). Foreign corporation therein subject State regu-
Approved In Anglo-Am. Prov. Go. v. Davis, etc., Go. No. 1, 191
U. S, 376, holding State may constitutionally deny Jurisdiction to
courts of the State over suits by corporation, another State against
corporation, another State on foreign Judgment; Oakland Sugar
Mill Co. V. Fred W. Wolf Co., 118 Fed. 244. 245, holding it Is en-
tirely competent for a State to prescribe the terms upon which a
foreign corporation may enter and transact business In State;
Diamond Glue Co. v. United States Glue Co., 103 Fed. 839, holding
contract to operate factory and market product on Joint account not
interstate commerce exempting operations State law regarding
foreign corporation filing articles; Empire Milling, etc., Co. v.
Tombstone Mill., etc., Co., 100 Fed. 012. holding foreign corporation
making single mining contract Is not carrying on business requir-
ing filing of articles of Incorporation; National, etc., Bldg. Assn. v.
Braham, 80 Miss. 418, 31 So. 841. holding special agents of foreign
corporation, doing business In Mississippi towns, contracts made by
them, notwithstanding reciting payments elsewhere, are governed
by Mississippi lawj'Hogan v. SL Louis, 176 Mo, 157. 75 S. W. 606.
holding mere entering into contract with city for street lighting by
727 Notes on U. S. Reports. 113 U. S. 727-737
foreign corporation, before complying with statutory requirements,
did not render contract invalid; Wastiington Investment Assn. y.
Stanley, 38 Or. 341, 63 Pac. 495, 84 Am. St. Rep. 807, holding contract
made in Oregon, foreign corporation authorized to do business
therein, same is construed by laws of Oregon regardless of stipula-
tions to contrary; Keene, etc., Sav. Bank v. Lawrence, 32 Wash. 578,
73 Pac 682, holding only business transacted in State by foreign
corporation being purchase of mortgage, not subject to license for
transacting business within State.
Distinguished In Abbeville, etc., Co. v. Western Electrical, etc.,
Co^ 61 S. C. 376, 39 S. E. 564, holding salesman visiting State in
relation to transaction out of which suit arose, service on him is
service on foreign corporation.
SyL 2 (X, 1022). Constitution and statute construed together.
Approved in Fairbonk v. United States, 181 U. S. 308, 45 L. 873,
21 Sup. Ot 658, holding stamp tax imposed on foreign bills of
lading, act Congress, June 13, 1898, equivalent tax on articles,
prohibited U. S. Const, art 1, S 9; M'Fadden v. Mountain View
Min., etc., Co., 97 Fed. 677, holding construction by land depart-
ment placed upon act of Congress, relating to public lands, should
not be overthrown except for cogent reasons; Railroad Comrs. y.
Market St. Ry. Co., 132 Cal. 681, 64 Pac. 1067, holding legislative
interpretation of constitutional provision contemporaneous with its
adoption may be considered by courts in interpretation of doubtful
provision thereof.
Syl. 4 (X, 1022). Single act foreign corporation not domestic.
Approved in Central Grain & S. Exchange v. Board of Trade, 125
Fed. 466y holding service upon agent of foreign corporation not
proper service unless it be engaged in business in State where
agent Is served; Frawley v. Pennsylvania Casualty Co., 124 Fed.
264, holding service on agent to bind foreign corporation, business
in State must be actually and substantially engaged 'therein; Doe
y. Springfield, etc., Mfg. Co., 104 Fed. 688, holding San Francisco
broker occasionally selling machinery for Illinois corporation did
not constitute doing by corporation in California, nor broker its
agent
Syl. 5 (X, 1023). State cannot interfere interstate commerce.
Approved in Louden Mach. Co. v. American, etc., Iron Co., 127
Fed. 1009, holding foreign corporation never having done business
in Iowa, its president while traveling through State cannot be
served with effective notice, giving jurisdiction Iowa courts; Denbon
V. Chattanooga Nat, etc., Assn., 107 Fed. 781, holding loan by
Tennessee association through traveling agent, violates Const. Ala.,
art 14, § 4, prohibiting ** any business " therein without permanently
fixing one place of business in State; Miller v. Williams, 27 Colo.
38» 59 Pac. 741, holding foreign corporation's purchase of negotiable
113 U. S. 737-768 Notes on U. S. Reports. 728
securities outside State, not doing business therein, requiring cor-
pora1;ion to file articles; Goldberry v. Carter, 100 Va. 441, 41 S. B.
859, holding Code, SS 1104, 1105 (Va.), does not apply to corporations
doing business in State, contract being made out of State, giving
title to land therein.
Distinguished in Denson v. Chattanooga Nat, etc., Assn., 107
Fed. 780, holding loan by Tennessee association through traveling
agent, violates Const. Ala., art. 14, S 4, prohibiting " any business "
therein without permanently fixing one place of business in State.
113 U. S. 737-742, 28 L. 1147. CARTER v. BURR.
Syl. 1 (X, 1024). Note not fully paid lien being unreleased.
Approved in McDaniel v. Strond, 106 Fed. 490, holding partner
substituting his own note for firm's, secured by mortgage of firm'p
realty, payee assigning him firm's note, mortgage still a lien.
113 U. S. 742-746, 28 L. 1150, GREGORY v. HARTLEY.
Syl. 3 (X, 1025). Hearing on demurrer no removal.
Approved in Winkler v. Chicago, etc., R. R. Co., 108 Fed. 307,
holding under removal provisions judiciary act 1887-88, defendant
cannot remove after trial in State court of issue of law.
113 U. S. 747-756, 28 L. 1133, UNITED STATES v. STEBVBB.
Syl. 3 (X, 1025). Pay service determines distribution prize money.
Approved in The Manila Prize Cases, 188 U. S. 266, 23 Sup. Ct
420, 47 L. 470, holding vessels as colliers, manned principally by
enlisted men armed for defense, not entitled to participate in prize
money under U. S. Rev. Stat, § 4632.
113 U. S. 756-768, 28 L. 1141. HARDIN v. BOYD.
Syl. 1 (X, 1025). Equitable amendments depend upon special cir-
cumstances.
Approved In In re Glass, 119 Fed. 511, holding specifications op-
posing a bankrupt's discharge, though entirely defective, may be
amended at discretion of the court; Virginia Carolina, etc., Co. v.
Home Ins. Co., 113 Fed. 6, holding equity has jurisdiction ground
inadequacy legal, remedy to enjoin separate actions by insured
against several insurers, their defenses being same; McDonald v.
Nebraska, 101 Fed. 177, holding petition overruled, plaintiff lacking
capacity, same is amendable under Rev. Stat., § 954, and Code
Civ. Proc. Nebr., §§ 144, 145; Kirby v. Muench, 12 S. Dak. 617, 82
N. W. 94, holding it is not error to allow plaintiff to file supple-
mental complaint setting up additional judgments obtained subse-
quent to filing original complaint; Glenn v. Brown, 99 Va. 328, 38
S. E. 191, holding owners of land sold for taxes may be allowed
to file supplemental bill on after-discovered evidence, same not
repugnant to original bill.
729 Notes on U. S. Reports. 114 U. S. 1-47
Syl. 2 (X, 1026). Amendments valid not making new case.
Approved In Savage v. Worsham, 104 Fed. 19, holding wh^e
second pleading states different cause of action and depends upon
different and inconsistent facts, same cannot be regarded as amend-
ment; Stewart v. Van Home, 91 Mo. App. 657, holding the amend-
ment merely making same matter larger in scope to meet the
testimony is not a change of cause of action.
Syl. 3 (X, 1026). Mortgage not barred though debt be.
Approved In Menzel v. Hinton, 132 N. C. 666, 44 S. B. 387, 95
Am. St Rep. — , holding mortgagee may enforce mortgage con-
taining power of sale by sale under power, though right to sue on
the debt Is barred by limitations. See notes, 95 Am. St. Rep. 663.
CXIV UNITED STATES.
114 U. S. 1-14, 29 L. 76, THOMPSON y. BOISSELIER,
SyL 2 (X, 1028). Patent must amount to invention.
Approved in Farmers* Mfg. Co. v. Spruks Mfg. Co., 119 Fed.
596. holding East patent for ventilating barrel is void for lack
of patentable novelty in view of prior art; Arlington Mfg. Co. v.
Celluloid Co., 97 Fed. 92, holding Stevens v. Harrison patent for
method of producing pyroxyline compound imitating onyx lacks
Invention, being anticipated by French method.
114 U. fi. 15-47, 29 L. 47, MURPHY v. RAMSEY.
Syl. 2 (X, 1029). Elections — Utah commissioners attend minis-
terial duties.
Approved in Wiley v. Sinkler, 179 U. S. 66, 45 L. 89, 21 Sup.
Ct 21, holding allegation plaintiff duly qualified elector, no allega-
tion of ever registering insufficient to State cause of action for
unlawfully rejecting his vote.
Syl. 3 (X, 1030). Elections — Bigamy, relation without cohabi-
tation.
Approved in In re De Laveaga*s Estate, 142 Cal. 171, 75 Pac.
795, holding father having no family except illegitimate child,
support of same being paid for another family, child never hav-
ing lived with father, no adoption under statute.
Syl. 5 (X, 1030). Government sovereign over territories.
Approved in Downes v. Bidwell, 182 U. S. 269, 290, 45 L. 1099,
1108, 21 Sup. Ct. 780, 788, holding Porto Rico by treaty became
territory appurtenant to United States, but not a part within
114 U. S. 47--57 Notes on U. S. Reports.
revenue clauses of Const., art 1, % 8; Shepherd r. Grtm-
mett, 3 Idaho, 410, 31 Pac. 795, holding elector^s oath, enacted at
first session of legislature State Idaho clearly within the consti-
tutional power of legislature; Torrey v. County Comrs., 10 N. Hex.
689, 65 Pac. 182, holding courts of New Mexico have power to pass
upon the constitutionality of an act of the territorial legislature.
Distinguished in Downes v. Bidwell, 182 U. S. 364, 365, 45 L.
1136, 21 Sup. Ct 817, holding Porto Rico by treaty became ter-
ritory appurtenant to United States, but not a part within revenue
clauses of Const, art 1, § 8.
114 U. S. 47-51, 29 L. 61, BOHALL y. DILLA.
Syl. 2 (X, 1031). Patent claimant must show title.
Approved In Johnson v. Fleutsch, 176 Mo. 463, 75 S. W. 1008,
holding assignee of land warrant having performed legally, de-
livering warrant to register of land office not responsible for hit-
ter's negligence reporting location to general land office; Small y.
Rakestraw, 28 Mont. 419, 420, 72 Pac. 747, 748, holding holder
of legal title under patent, because of land department's error, Is
trustee, plaintiff showing his own right and defendant's lack of
tiUe.
Syl. 3 (X, 1032). Pre-emptloner must show continuous personal
residence.
Approved in Moss v. Dowman, 176 U. S. 418, 44 L. 528, 20 Sap.
Ct. 431, holding rights of settler in good faith taking possession
of homestead entry of another, same recorded, but no settlement,
attach instantly, first being out of possession; O'Connor y. Gert-
gens, 85 Minn. 490, 89 N. W. 869, holding secretary of Interior
possesses full power to withdraw public lands from settlem^
and market at will.
114 U. S. 52-57, 29 L. 63, LOUISVILLE. ETC., R. R. v. IDE.
Syl. 1 (X, 1032). Removal on separate controversy.
Approved in Weldon v. Fritzlen, 128 Fed. 613, holding mortgagee
suing mortgagors and their creditor claiming lien to obtain decree
foreclosing mortgage, adjusting liens and priority presents single
controversy; Ward v. Franklin, 110 Fed. 796, holding action
against number of defendants for imprisonment, complaint charg-
ing certain defendants instigated by another, not removable by
latter as involving separable controversy; Smedley v. Smedley,
110 Fed. 258, holding cause of action is subject-matter of contro-
versy for all purposes of suit, and plaintiff's declarations in plead-
ings determine its nature; Colburn v. Hill, 101 Fed. 505, hold-
ing consolidation of suit after its removal with another suit sub-
sequently commenced in Federal court, cannot affect Jurisdiction
of court over cause removed.
781 Notes on U. S. Reports. 114 U. S. 67-8G
Syl. 2 (X, 1034). Plaintiff determines remoyabllity of suit
Approved in Bryce v. Southern Ry. Co., 122 Fed. 711, holding
suit against several defendants complaint alone determines re-
movability except where petition proves erroneous joining of de-
fendants; Bates V. Carpentier, 98 Fed. 454, holding suit quiet title
State court against number defendants is several, and defendant
citizen of different State from complainant may remove cause, juris-
dictional amount existing.
114 U. S. 67-60, 29 L. 65, PUTNAM y. INGRAHAM.
Syl. 2 (X, 1034). No removal one of several defaulting.
Approved in Lederer v. Sire, 105 Fed. 630, holding one of two
defendants in State court as necessary party, citizen with plaintiff
and suffering default, codefendant cannot remove on diversity of
citizenship.
114 U. 8. 60-62, 29 L. 66, ST. LOUIS, ETC., RT. V. WILSON.
SyL 1 (X, 1035). Single cause of action not removable.
Approved in Talbot J. Taylor, etc., CJo. v. Southern Pac. C5o., 122
Fed. 154, holding a stoclcholder is an indispensable party to suit
to enjoin the voting of his stock at meeting of shareholders for
election of directors; Patterson v. Farmington St Ry. Co., Ill Fed.
263, holding suit for specific performance in requiring transfer
on corporation books, corporation necessary party, but of com-
plainant's State, cause not removable by principal defendant
114 U. S. 63-86, 29 L. 67, SARGENT v. HULL SAFE, ETC., CO.
Syl. 2 (X, 1036). Patentee limiting patent afterward strictly
construed.
Approved in Hubbell y. United States, 179 U. S. 82, 45 L. 99,
21 Sup. Ct 26, holding claim for patent cannot be construed as to
cover either what was rejected by the patent office or disclosed
by prior devices; New York, etc., Mfg. Co. v. Ambler, etc., Co.,
103 Fed. 320, 321, 322, holding definitions and admissions made
by applicant for patent In differentiating his inventieu from others,
subsequently bind in construction of patent; National, etc.. Brake
B. Co. V. Interchangeable Brake B. Co., 99 Fed. 764, holding pat-
entee limiting claim by amendment after rejection by patent
oflice, has abandoned to public broad original claim, except as
modified.
(X, 1036). Miscellaneous.
Cited in Simplex Ry., etc., Co. v. Wands, 115 Fed. 621, holding
parol evidence is admissible in aiding court in construing con-
struction of patent and proper limits which should be imposed
on the claims.
114 U. S. 87-128 Notes on U. S. Reports. 732
114 U. S. 87-103, 29 L. 96, ELECTRIC SIGNAL CO. y. HALL SIG-
NAL CO.
Syl. 1 (X, 1037). Same combination of elements constitutes
infringement
Approved in Milwaul^ee Carv. Co. v. Brunswicls, etc., Co., 126
Fed. 185, holding Smith & Post carving machine, though not of
pioneer character, is true combination and patentable, but not
infringed by another using some of same elements; Brown v. Puget
Sound Reduction Co., 110 Fed. 389, holding Brown patent No. 471,264,
for ore-roasting furnace, is intringed by furnace constructed in
accordance with the Rapp patent No. 532,013.
114 U. S. 104-120, 29 L. 105, THOMSON v. WOOSTER.
Syl. 1 (X, 1037). Decree pro confesso is conclusive.
Approved in Wong Him v. Callahan, 119 Fed. 383, holding,
though defendant be in default, complainant not entitled to decree
pro confesso where allegations of his complaint are insufficient
to support decree; St. Lawrence Co. v. Holt, 51 W. Va. 375, 381,
41 S. E. 360, 363, holding adjudication that a particular case is
of equitable jurisdiction is not void, even if erroneous, and can-
not be disturbed by collateral attack.
Syl. 2 (X, 1038). Bills pro confesso discussed.
Approved in Southern B. & L. Assn. v. Carey, 117 Fed. 331,
holding practice, bringing into record, by bill of exceptions, plead-
ings or papers court refused party leave to file, not known to Federal
courts in equity cases; Hale v. Coffin, 114 Fed. 576, holding pro-
ceeding to enforce statutory liability of stockholder, whether at
law or in equity, is based on a common-law, and not an equitable
right; In re Burka, 107 Fed. 676, holding whether lunatic could
be adjudicated bankrupt for acts before or after lunacy began,
not determinable before appointment of guardian ad litem.
114 U. S. 120-127. Not cited.
114 U. S. 127, 128, 29 L. 117, MOWER v. FLETCHER.
Syl. 1 (X, 1040). Merits determined judgment final and appeal-
able.
Approved in Chesapeake & Potomac Tel. Co. v. Manning, 186
U. S. 242, 46 L. 1146, 22 Sup. Ct 883, holding District of Columbia
Court of Appeals reversing decree of District Supreme Court dis-
solving injunction with proviso, is final decree for purposes of
appeal; Wabash R. R. Co. v. Tourville, 179 U. S. 326, 45 L. 213, 21
Sup. Ct. 114, holding judgment of State court is foreign to another
State, and therefore not subject to garnishment there; West v.
East Coast Cedar Co., 113 Fed. 743, holding decree dismissing bill,
injunction pendente lite thereto against, conditioned on giving bond
by complainant, is final and appealable.
Distinguished in Haseltine v. Central Nat Bank, 183 U. S. 131,
Notes oa U. S. Reports. lU D. S. 128-158
46 I^ 117. 22 Sup. Ct 50, holding Juclginent reversing that of court
below, and remanding case for further proceedtngs, not one to
which writ of error will lie.
114 V. S, 128-133, 29 L. US, BUTTERWORTH v. HILL.
Syl. 1 (X, 1040). Patent suit in defendant's district
Approved in Klrli v. United States, 124 Fed. 335, holding pro-
ceedings In Federal District Court of Georgia on which execution
was founded, being void, Federal Circuit Court of New York may
restrain marshal southern district.
114 U. S. 133-137. Not dted.
114 U. S. 138-146. 29 L. 114, FARMINGTON v. PILLSBURY.
Syl. 1 (X, 1042). Want of citizenship Federal court dismisses.
Approved In South Dakota v. North Carolina, 102 tl. S. 311, 24
Sup. Ot. 273. holding original Federal Jurisdiction extends to suits
b7 South Dakota as dotiee of lioid«>r8 of North Carolina bonds,
secnred by ^aill^Jad mortgage in latter State: Adams v. Shirk. 117
Fed. 803. holding plalDtlff's allegation of his diverse citizenship
from that of defendant la prima fade true, defendant having
burden to prove otiierwise; Jerry v. Davy, 107 Fed. 52, holding
defendant properly raising Jurisdictional question on pica In abate-
ment, relative to same citizenship ot Ijoth parties, aeparate issue
for jury, irrespective ot merits; Paciflc. etc., Ins. Co. v. Tompkins,
101 Fed. 542, holding allowance of amendment to declaration,
changing allegation as to plalntiCT'a citizenship to conform to writ,
within court's discretion: Strang v. Richmond, etc, Ry. Co., 101
Fed. 515, holding defendant HUng answer at same time with gen-
eral demurrer to bill, answer denying ail allegations of fact, de-
murrer 1b overruled by the answer; Board of Conirs. v. Schradsky,
97 Fed. 2. holding evidence showing that coupons of municipal
corporaOoD colorably transteri-ed hy citizen of same State to
foreigner, latter cannot sue In Federal court.
SyL 2 (X, 1042). Collusive transfers confer no Federal Jurla-
dlctlou.
Approved in Dlckerman v. Northeni Trust Co.. 176 D. S. 182, 44
L. 430. 20 Sup. Ct 315. holding trustees under mortgage securing
bonds need not produce same in evidence prior to foreclosure de-
cree, euffident evidence eiisting of their validity.
114 U. S. 147-149. Not cited.
114 U. 8, 148-158. 29 L. 58, STEPHENSON v. BROOKLYN R. R.
Syl. 2 (X, 1013). Combination patentable producing useful re-
Bnlt
Approved to National Casket Co. v. Stoltz. 127 Fed. 100. holding
Hamilton patent face plate for burial caskets In view of prior art,
dtd not Involve invention.
I dtd not In vol
L
114 U. S. 158-189 Notes on U. S. Reports. 734
114 U. S. 158-173. 29 L. 83, CHAPMAN v. BREWER.
Syl. 1 (X, 1044). Federal Bankruptcy supreme oyer State court
Approved in Bear y. Chase, 99 Fed. 925, 926, holding Involuntary
petition showing that debtor suffered certain creditors to obtain
preference by levy of attachments. Bankruptcy Court will enjoin
sale, if not made.
Syl. 2 (X, 1044). Jurisdictional adjudication of bankruptcy Is
conclusive.
Approved in In re Gutman, 114 Fed. 1011, holding bankrupt
act, f 2, enables Bankruptcy Court to stay proceedings in State
court If continuance of action will embarrass administration of
estate; Wilson 'v. Parr, 115 Ga. 632, 42 S. B. 0, holding whether
Federal court has or has not authority, under bankruptcy law, to
adjudge surviving partner of dissolved firm, a bankrupt, not col-
laterally raised State court; Curdy v. Stafford, 88 Tex. 125, 30 S. W.
653, holding adjudications of Federal District Court, sitting in
bankruptcy, will be presumed correct on collateral attack.
Syl. 3 (X, 1044). Federal and State courts same relief.
Approved In dissenting opinion in Wahl v. Franz, 100 Fed. 701,
majority holding probate of will in Arkansas court not '*suit of
civil nature at law or in equity" within Judiciary act 1888, re-
garding removal .
Syl. 4 (X, 1045). Bankruptcy — Equitable relief Irrespective dtl-
eenship.
Approved in Potter v. Martin, 122 Mich. 543, 81 N. W. 424, hold-
ing assignee authorized to sell property acquired under bankruptcy
proceedings, his not selling for six years did not Invalidate the con-
veyance. •
114 U. S. 174-176, 29 L. 135, EX PARTE MORGAN.
Syl. 1 (X, 1045). Only ministerial duty mandamusable.
Approved in Kimberlin v. Commission, etc., 104 Fed. 655, hold-
ing officer may be mandamused to perform ministerial act, but if
duty involves exercise of discretion, he cannot be thus compelled.
114 U. S. 176-189. 29 L. 121, CHESAPEAKE, ETC., RY. v. MILLER.
Syl. 1 (X, 1046). Immunities personal only to old corporation.
Approved in Matthews v. Board of Corp., 97 Fed. 403, holding
railroad's special charter authorizing directors to fix passenger
and freight rates, sale of company's property on foreclosure did
not pass said immunity.
Syl. 2 (X, 1047). Railroad franchises capable of transfer.
Approved in Bancroft v. Wicomico County Comrs., 121 Fed. 877,
878, holding Md. Code. Pub. Gen. Laws. art. 23, §§ 187. 188, per-
mits purchaser of railroad under mortgage to enjoy all previous
immunities including exemption from taxation; Winn v. Wabash
7S5 Notes on U. S. Reports. 114 U. S. 100-195
R. B. Co., 118 Fed. 58, holding the consolldtited corporation became
citizen of each State in which articles were filed, hence action aris-
ing in Missouri prevented claiming citizenship elsewhere; Chicago
Union Traction Co. v. Chicago, 109 111. 533, 65 N. B. 465, holding
doubt existing whether municipal charter gives municipality right
to regulate charges of common carriers, doubt must be resolved in
favor of municipality; National Foundry, etc., Works v. Osconto
City, etc, Co., 105 Wis. 58, 81 N. W. 129, holding mortgage ojT
property and franchises of corporation, under section 1788, Rev.
Stat Wis., mortgagee acquires all rights, privileges, and franchises
of old corporation; dissenting opinion in Denlson, etc., Ry. v. St.
Louis, etc.. Ry., 30 Tex. Civ. 482, 72 S. W. 205, 96 Tex. 248, 249,
majority holding railroad obtaining unconditional consent of mu-
nicipality to construct street railroad, purchaser at foreclosure ac-
quired its rights to use of street
114 U. S. 190-195. 29 L. 132, LITCHFIELD v. BALLOU.
Syl. 1 (X, 1048). Legal remedy existing equity lacks jurisdiction.
Distinguished in Geer v. School DIst No. 11, 111 Fed. 686, hold-
ing school district Issuing bonds, void for want of power and levied
tax some years to pay interest thereon, limitation runs only from
act repudiating.
Syl. 2 (X, 1048). State Constitution prohibition legally and equi-
tably binding.
Approved in City Water Supply Co. v. City of Ottumwa. 120 Fed.
315, holding though city has part of money in treasury and may be
able to collect remainder, indebtedness beyond coustitutiouai limi-
tation is void; Brown v. Schleier, 112 Fed. 582. holding receiver
of national bank succeeds to no rights beyond those which could
have been enforced by bank, its stockholders or creditors; Game-
well, etc Tel. Co. y. Laporte, 102 Fed. 419, 420, holding court of
equity cannot change contract into one giving complainant an Im-
plied franchise relative to fire-alarm telegraph sytvtem, contract
being void; County Ada v. Bullen Bridge Co., 5 Idaho, 92, 47 Pac.
824, holding board of commissioners Issuing warrants upon county
treasury without legal authority, violating provision of Constitution,
action to cancel such warrants will lie; Windsor v. City of Des
Moines, 110 Iowa, 187, 81 N. W. 480, holding constitutional prohibi-
tiona of city not to incur indebtedness exceeding 5 per cent on
taxable property within city, includes all taxable property whether
for city's use or not; Wall v. City of Cedar Rapids, 115 Iowa, 204,
88 N. W. 450, holding where city is Indebted to constitutional limit.
It may not evade provision by acquiring water-works plant in
consideration of hydrant rentals; State v. City of Helena, 24 Mont.
531, 63 Pac. 103. holding clty*s power to incur Indebtedness limited,
one making contract therewith does so at his peril if limit has been
reached.
U4 D. S. 19G-218 Notes on U. S. Report-.
Diet! nan la hMl In Bonrrt oi .,u.u.b. v. Irviue, 128 Fed. 692. t^.^
Ing hona fid*' pnrcliasera In open market for fnll value, of twxz^m.
warrajits adjudged void, are entitled to be Eubrog:ated to equlL-SEX
rights at original holders.
Sj-I. 3 (X, IMS}. BondB void mouej followed Into property.
Approved In O'Brien v. Wbeelock, 184 D. S. 493, 46 L. isr»
Sup. Ct 372, holding etjuitable relief withlield after an nnrea..^*-
able tnpse of time, not because of mere lapse, but because of rb^ k:
of sltuntlon during neglectful repose; McGllllvray v. Joint Scl:"
Dist., 112 Wis. 358. 88 Am. St. Rep. 971, SS N. W. 312, holcaJ
contract by Bchr<ol distriot Increasing Indebtedness beyond consCri
tlonal limits is euforceable wben fully performed to coustltutloi^
Syl. 5 (X, I05P). Bonds Illegal money followed If Ideotlfled. ^^
Approved In New York Life Ins. Co, v. Board of Comrs., 99 Fw^^^^a
852, holding though statute was unconstitutional under whict- """^ -
bonds were issued. It Is withiu Ohio Const., art. 2. k 28, tc
Told municipal tmnds.
(X, 104S). Miscellaneous.
Cited in In re Mulligan. 116 Fed. 717, holding where bankrnpt
deported another's funds with bis own and checked same out
leaving less than the other's, latter has no lien thereon.
il4 D. S. 19G-218. 29 L. 15S, GLOUCESTER FERRY CO. r. PENS-
SyLVANlA.
Syl. 2 (X, 1050). Interstate commerce intercourse persons and
property.
Approved in Louisville, etc., Ferry Co. v. Kentucky, 188 TJ. S,
307, 23 Slip. Ct 467. 47 L, 51S, holding Kentucky corporation operat-
ing ferry across Ohio river, deprived of property without due
process, home State taxing Indiana franchise to operate ferry:
Francis v. United States, 188 U. S. 381, 23 Sup. Ct 338, 47 L. 513.
holding policy slips written by customer to Indicate his choice
of numbers forwarded to another State, not an offense against
United States regarding lottery; Hanley v. Kansas City South. Ry,
Co.. 187 U. S, 619. 23 Sup. Ct 215. 47 L. 335, holding Arkansas
railroad commission violates commerce clause Federal Constitution
by filing continuous rates of transportation to point witbin,
most of line outside State; Lindsay & Phelps Co. v. Mullen, ITS
u; S. 147, 44 L. 408. 20 Sup. Ct 333, holding statutory lien oti logo
cut in anotiier State for scaling them In log boom, not burden on
interstate commerce, but assists navigation; Montague v. Lowry,
115 Fed. 29, holding Mantel St. Grate Association of California ta
combination in restraint of trade auioug the States, la reCiulng to
sell to nonmember.
737 Notes on U. S. Reports. 114 U. S. 196-218
Syl. 8 (X, 1051). Congress has power to control commerce.
Approved in Ex parte Young, 36 Or. 250, 78 Am. St. Rep. 774,
69 Pac. 708, holding Hiirs Anno. Laws, § 1952, forbidding any per-
son to persuade seamen to desert vessel within water's jurisdiction
of State, valid police power under Federal Constitution; Washing-
ton, etc., R. R. Co. V. Alexandria, 98 Va. 351, 38 S. B. 388, holding
city may properly mandamus railroad to substitute different rails
as directed by ordinance, the same being reasonable.
Distinguished in Cauble v. Craig,' 94 Mo. App. 680, 69 S. W. 50,
tiolding ferry franchise is property, protected by injunction, where
direct pecuniary loss ensues to plaintiff by unauthorized and con-
tinuous operation of rival ferry.
Syl. 4 (X, 1051). State controls commercial subjects local nature.
Approved in State v. Caldwell, 127 N. C. 525, 37 S. E. 139. hold-
ing agent of one State breaking bulls shipped from another State
and putting pictures and framee together before delivering, may
be taxed certain license; People v. Knight, 171 N. Y. 360, 64 N. B.
154, holding railroad engaged in interstate commerce, maintaining
cab service at its terminus^ carrying passengers within State under
separate contract, latter not interstate commerce, preventing taxa-
tion.
Syl. 5 (X, 1052). Commerce — National subjects require uni-
formity.
Approved in Lottery Case, 188 U. S. 351, 352, 23 Sup. Ct 325, 47
L. 499, holding carriage of lottery tickets from one State to another
by express company engaged in interstate commerce, Congress may
prohibit as offense against United States; Austin v. Tennessee, 179
U. S. 373, 45 L. 238, 21 Sup. Ct. 143, holding being within police
power, legislature may prohibit sale of cigarettes, no discrimination
of kind and not applying to original packages; Reilley v. United
States, 106 Fed. 903, holding act March 2, 1895, represents con-
stitutional power of Congress to regulate commerce among the
States relative to lottery tickets; In re Appeal of Union Tank Line
Co., 204 111. 351, 68 N. E. 505, holding cars of foreign corporation
(not railroad corporation), principal office in another State, being in
transit merely are instruments, interstate commerce not taxable in
State; Southern Express Co. v. Goldberg. 101 Va, 622, 623, 44 S. E.
894, holding Code 1887, % 1215, undertaking to fix rate of charges
of common carriers of interstate commerce within State, violates
Federal Const, art. 1, § 8, cl. 3.
Syl. 7 (X, 1053). State regulates commerce preventing collisions.
Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S.
162, 163, 23 Sup. Ct. 818. 47 L. 999, holding telegraph company.
though engaged in interstate commerce, municipality may demand
reasonable fee for local government's supervision of its polls and
Vol. 11 — 47
114 U. S. 218-233 Notes on D. B. Reports. "-2**
wires; Young v. Truateea, 64 8. C. 137. 41 S. B. 823, holding trt*^*"
tees Braded echool under 22 Stnt. at Large, p. 150 (S, C), have W3<^
aiitborit; to charge the pupils Incidental fees.
Syl. 8 (X, 1054). Interstate terry taied only home port
Approved In Yost v. Lake Erie. etc.. Co.. 112 Fed. 748. 749, hold-
ing vessels engaged In Interstate commerce, owned by State cor-
poration, having painted name of home port, have situs for tax-
ation only at home port: Wllliania v. Fears. 110 Ga. 589. 592, 35
8. B. 701, 702, holding "emigrant agent" being person employlae
laborers In State to labor In another State, may be taxed without
violating Interstate regulations; Louisville, etc.. Ferry Co. v. Com-
monwealth of Kentucky, 108 Ky. 723, 57 8. W. 625, 626. holding Ken-
tncky ferry company engaged in Interstate commerce, may liave Its
franchise taxed by said State. Income fixing value of same.
Syl. S (X. 1054). State cannot tax foreign capital stock.
Approved In St Clair County v. Interstate Transfer Co.. 192 U. S,
457. 41J2. 406, 470. 24 Sup. Ct 300. 302, 304. 305. holding unconsti-
tutional burden is Imposed on Interstate commerce by 111. Rey.
I.HWS 1874, chap. 55, demanding license from Terry plying from
Illinois to Missouri shore, alflrmlng St Clair County v. Interstate,
etc., Co., 109 Fed. 744. holding Slate cannot impose license fee
on Interstate ferry, only property of company within State imposing
license being landing place and facilities: Foster, etc., Co. V. Castey.
)i(t Ksn. 603. e04, 72 Pac. 209. 270. holding capital stock of corpora-
tion la subject to taiatlon only In Stale ot its domicile, tbougb
principal business Is conducted In such other State.
Syl. 10 (X, 1055). Commerce — Property within State subject
ordinary tax.
Approved In State ex rel. Bump t. Omaha, etc, Bridge Co., 113
Iowa. ;i5. 84 N. W. 085. holding city ordinance permitting etreet
railroad engaged In Interstate cammerce to discriminate Id rates
between cltlKfUS of two States is unconstitutional.
114 U. S. 218-223. 29 L. &4, LAMAR v. MICOD.
Syl. 3 (X. 1055). Parents dying Infant's domicile changes.
See notes, 80 Am. St Bep. 205. 278, 270.
Syl. 4 (X. 1056). Federal courts Judicially notice State laws.
Approved ta Gale v. Southern, etc.. Assn.. 117 Fed. 736. holding
contract by which Stockholder borrows money of loan association
In Alnboma, Is subject to laws of that State, association created
imder Its laws. See 88 Am. St Bep. 205, note.
114 U. S. 224-233. 29 L. 101, XENIA BANK v. STEWART.
Syl. 3 (X, 1057). Cashier's letter admissions admissible against
Approved In Fidelity & Deposit Co. v. Courtney, 186 U. 8. S51,
799 Notes on U. S. Reports. 114 U. S. 23^-300
46 L. lldS, 22 Sup. €t 837, holding notice to surety company
within from ten to seventeen days from discovery that bank offi-
cial defaulted, as matter of law is griven reasonably soon.
Syl. 4 (X, 1057). Debtor*s insolvency Inadmissible showing non-
payment debts.
Approved in Cunard SS. Co. v. Kelley, 120 Fed. 616, holding it Is
not permissible for jury to base an Inference of fact upon another
fact which is only established by presumption.
114 U. S. 233-244, 29 L. 110. UNITED STATES v. MINOR.
Syl. 3 (X, 1057). Federal government may vacate fraudulent
patent
Approved in Jones v. Meyers, 8 Idaho, 56, 35 Am. St. Rep. 2G2,
26 Pac. 217, holding though entryman had sold and conveyed land
to innocent purchaser, commissioner has authority to cancel an
entry illegally or fraudulently made; Pepin v. Lautman, 28 Ind.
App. 78, 62 N. E. Gl, holding fraud to vitiate a judgment must be
extrinsic to the matter tried in the case.
114 U. S. 244-252. Not cited.
114 U. S. 252-262, 29 L. 126, BISSELL ▼. FOSS.
Syl. 1 (X, 1059). Tenant in common acts for alL
See notes, 91 Am. St Rep. 861, 862.
114 U. S. 262-269. Not cited.
114 U. S. 269-340, 29 L. 185, VIRGINIA COUPON CASES (4).
114 U. S. 270-306, 29 L. 185, POINDEXTER v. GREENHOW.
Syl. 2 (X, 1062). Coupons receivable in payment of taxes.
Approved in Houston & Texas Cent. R. R. Co. v. Texas, 117
U. S. 87, 44 L. 684, 20 Sup. Ct 553, holding while State warrants
are not bills of credit the State may direct its officers to receive
same in payment of dues to State.
Syl. 4 (X, 1002). Virginia coupons " not bills of credit"
Approved in Millhiser, etc., Co. v. Gallego Mills Co., 101 Va. 590,
44 S. K. 700, holding at common law, transfer of warehouse receipt
as collateral security for loan, vests in transferee absolute property
tn goods represented by receipt.
Syl. 5 (X, 1002). State and government thereof not identical.
Approved in South Dalsota v. North Carolina, 192 U. S. 331, 24
Sup. Ct 281, holding original Federal jurisdiction extends to suit
by South Daliota, as donee, of North Carolina railroad bonds secured
by mortgage in that State; Coulter v. Weir, 127 Fed. 905, holding
suit against official to restrain collection of tax is not suit against
State without its consent under Const U. S., amend. 11; Starr v.
114 U. S. 270-306 Notes on U. 8. Reports. 740
Chicago, etc., Ry. Co., 110 Fed. 7, holding suft against officers of
State, enjoining enforcement of unconstitutional enactment, is not
one against State within Eleventh constitutional amendment, but
is within Federal Jurisdiction; Carolina Nat. Bank v. State, 60 S. C.
474, 88 S. E. G32, holding superintendent of penitentiary, having no
authority to indorse notes received for convict hire. State cannot
be made liable on Implied contract.
Syl. 6 (X, 1064). Suit against State determinable by record.
Approved In Union Trust Co. v. Steams. 119 Fed. 793, holding
suit to enjoin attorney-general from instituting criminal prosecu-
tions in name of State, they charged with no special duty there-
under, is suit against State; Arbuckle v. Blackburn, 113 Fed. 624,
holding suit against State officer, enjoining prosecutions under
erroneous interpretation of valid statute, is suit against State,
Federal court being denied jurisdiction under Eleventh Amendment;
Minneapolis, etc., Co. v. M'Gilllvray, 104 Fed. 270, holding suit en-
joining State officers from enforcing unconstitutional statute, sub-
jecting complainant to seizure of property, not an action against
the State; McConnell v. Arkansas Brick Mfg. Co., 70 Ark. 584, 585,
69 S. W. 564, 565, holding State not proper party defendant in suit
enjoining penitentiary commissioners from violating valid contract
hiring convict labor; People v. District Court, 29 Colo. 238, 68 Pac.
255, holding petition for writ of prohibition to District Court, ground
that Judge thereof failed unreasonable time to pass motion for
change of venue, not entertainable; Salem Mills Co. v. Lord, 42 Or.
89, 90, 69 Pac. 1035, 1036, holding jurisdiction of court being ques-
tioned, that action is really against State, court will look behind
nominal parties to record, dismissing or retaining accordingly.
Distinguished in Western U. T. Co. v. Myatt, 98 Fed. 357, hold-
ing Federal suit against telegraph officials of Kansas, to enjoin
proceedings to enforce schedule rates, not suit against State, de-
fendants not being general State officers.
Syl. 13 (X, 1064). Separable statute part may be valid.
Approved in State v. Santer, 111 Iowa, 8, 82 N. W. 447, holding
though special exceptions of statute are unconstitutional, the whole
act Is not thereby invalidated, exceptions not being necessary to
completeness; McArdle v. Jersey City, 66 N. J. L. 599, 49 Atl. 1016,
88 Am. St. Rep. 500, holding resolution of city council valid but for
legislative act, court on certiorari may determine validity of legis-
lative act; Angell v. Cass County, 11 N. Dak. 272, 91 N. W. 74,
holding where unconstitutional portions of an enactment cannot be
divorced, no part of law can be upheld; dissenting opinion in
E'luitable Guarantee, etc., Co. v. Donahoe, 3 Pennew. (Del.) 216,
49 Atl. 381, majority holding two clauses of section being separate
aud independent, the unconstitutionality of one will not nullify the
other; dissenting opinion in State v. Smiley, 65 Kan. 273, 69 Pac
741 Notes on U. S. Reports. 114 U. S. 307-^24
210, majority holding only those to whom statute applies can raise
objections to its constitutional validity.
114 U. S. 307, 308, 29 L. 198, WHITE v. GREENHOW.
Syl. 1 (X, 1065). Circuit Court's Jurisdiction controversy ex-
ceeding $500.
Approved in Patton v. Brady, 184 U. S. 611, 46 L. 716, 22 Sup.
Ct. 494, holding plaintiff's right depending upon unconstitutionality
of congressional act, Federal Circuit Court has original Jurisdic-
tion irrespective of diversity of citizenship.
114 U. S. 309-311. Not cited.
114 U. S. 311-517, 29 L. 200, ALLEN v. BALTIMORE, ETC., B. B.
Syl. 1 (X, 1066). Suit against officer as suit against State.
Approved in Coulter v. Weir, 127 Fed. 905, holding suit against
officials to restrain collection of tax is not suit against State without
its consent under U. S. Const, Amend. 11; Union Trust Co. v.
Steams. 119 Fed. 793, holding suit against attorney-general to
enjoin instituting criminal prosecutions name of State, no special
duty charged under statute, is suit against State; Starr v. Chicago,
etc., Ry. Co., 110 Fed. 7, holding suit enjoining Individual acts of
State officers from enforcing unconstitutional enactment, injuring
complainant, not suit against State, but Federal court has jurisdic-
tion; Minneapolis, etc., Co. v. McGHlIvray, 104 Fed. 270, holding suit
to enjoin State officers from enforcing unconstitutional statute
subjecting complainant to seizure of his property not action against
State.
Distinguished in Western U. T. Co. v. Myatt, 98 Fed. 357, hold-
ing Federal suit against telegraph officials of Kansas to enjoin pro-
ceedings to enforce schedule rates not suit against State, defendants
not being general State officers.
114 U. S. 317-323, 29 L. 202, CARTER v. GREENHOW.
Syl. 2 (X, 10G7). Legislature Impairing obligation individual has
rights.
Approved In Holt v. Indiana Mfg. Co., 176 U. S. 72, 44 L. 377, 20
Sup. Ct 273, holding suit enjoining State tax as Illegal levied In
effect on patents or rights, not one " arising under patent laws "
giving Federal court jurisdiction.
114 U. S. 323, 324, 29 L. 204, PLEASANTS v. GREENHOW.
Syl. 1 (X, 1067). Constitutional law— Carter v. Greenhow,
decides.
Approved in Holt v. Indiana Mfg. Co., 176 U. S. 72, 44 L. 377, 20
Sup. Ct 273, holding suit enjoining State tax as Illegal, levied In
114 D. S. 325-373 Notes on D. S. Reports. H2
effect on palenta or rights, not one " arising under patent laws "
giving Federal court jurisdiction.
114 U. S. 325-338. 29 L. 20o, MARYE t. PARSONS.
Syl. 5 (X, loas). stale sued onl.v by its consent
Approved In South D.ikota v. North Carolina, 192 U. S. 331. 349,
24 Sup, Cr. 2S1, 2Sa, holding original Federal Jorisdictlon exten^a
to Gult by South Dakota, as donee of North Carolina railroad booda
secured br mortgage In that State.
114 U. S. 338-340. Not cited.
114 U. S. 340-355, 20 L. 13a. BAST ALABAMA HT. t. DOB.
Syl. 1 (X, 1009). Grant to railroad mere easement.
Approved In National Foundry, etc., Works v. Oconto City, etc.,
Co., 113 Fed. 801, holding lis pendens doctrine not applicable where
mortgage on same property antedates Hen suit and Is foreclosed In
anotber court; United States t. Certain Lands. 112 Fed. 025, boldlng
though erection and use of Federal formication Interferes wlUi
neighboring landowner's purpose, or even Impairs value of his land,
not a taking of property; Connor v. Tennessee Cent. By., 109 Fed.
940, 941, boldlng property of public railroad corporation cannot be
■old under process separately from Its franchise, same being indls-
solubly linked to franchise; Chicago, etc., Ry. Co, v. City of Ot-
tumwa, 112 Iowa, 312, 83 N. W. 1079, holding lessee railroad agree-
ing to pay taxes and special assessments, personal Judgment against
lessee error, provision being for lessor's sole benelit; Wall v. Norfolk,
etc., R. R., 52 W. Tb. 48S, 44 S. E. 295, 94 Am. SL Rep. 951, holding
vben right of defendant Is subject to right of garnishee under con-
tract between them, right Of garolsher la likewise subjected.
Distinguished In Northern Pac. By. Co. v. Townsend, 84 Minn.
154, 8G N. W. 1008. holding one under homestead laws may acquire
adverse title ajTalnst railroad company nnder Gen. Stat. 1894, | S134,
a Statute of Limitations.
114 U. a. 355-373. 29 L. 152, THE BELGENLAND.
SyL 3 (X, 1070). Admiralty takes Jurisdiction, consul giving
consent.
Approved In The Troop, 128 Fed. 862, holding American Admiralty
Court may, In Us discretion, entertain Jurisdiction of suit by alien
against foreign vessel where master failed to render
proper treatment, affirming 118 Fed. 772; Elder Dempster Sbipping
Co. V. Poupplrt, 125 Fed. 73a, holding case governed by general
maritime law as administered, and Federal Admiralty Court bas
Jurisdiction, American passenger sustaining injuries on bJgb eeas
on foreign ebip; The Kestor, 110 Fed. 449, upholding statute
T4S Notes on V. S. Reports. 114 D. S, 373-12J)
prohibiting prepayment of senmen's wages as applied to Britisb
Ballore ablppiog In Amerlcnn ports on Brltisb sblps.
Dlstingulabed in Pouppirt t. Elder Dempster Sblpping Co., 122
Fed. S87. iJSS, bolding Federal Court of Admiralty bas jurisdiction
of action In personam against foreign sblpowner Irrespective of
ship's flag, wbere American passenger Injured on high seas.
Syl. 6 (X, 1070). Controversy high seas admiralty laws apply.
Approved In Bundell v. La Campognle, etc., 100 Fed. 601, hold-
ing cases In tort npon higb seas. Federal Admiralty Court cannot
enforce law of foj-eign nation, but must apply general admiralty
and maritime law.
114 U. 8. 373-401. Not cited.
114 V. S. 401-410, 29 L. 149. STATE BANK v. nNITED STATES.
SyL 1 (X. 1073). Government need not refund money paid.
Approved In Holiy v. Domestic & T. Missionary Soc. ». Protestant
Episcopal Church, 180 U. S. 291, 45 L. 535, 21 Sup. Ct. 398. bolding
equity court will not transfer loss already fallen upon one Innocent
party, to BDOtber equally Innocent, wbere equities are equal; Allen
V. West Point Mining, etc.. Co., 132 Ala. 297, 31 So. 463, holding
wbere one loaned money lu good (aitb on note properly executed by
company, and not party's fault It did not receive aame, company
not relieved.
114 V. S. 411-417, 29 L. 147. THE LAURA.
Syl. 1 (X, 10T3). President's pardoning power not bar treasurer.
Approved In Peacocli v. United Slates, 125 Fed. 58S, bolding
secretary of treasury having power to remit penalty after as before
Jodgment, does not require court to postpone trial regarding col-
lection of taxes.
Syl. 2 IX. 1073). Constitutional law — Contemporaneous conatmc-
tlon great weight.
Approved In Fairbanit v. United States, 181 U. S. 308, 309, 820,
45 L. 873. 877, 21 Sup. Ct 658, 859. 663, holding stamp tax imposed
on foreign bill of lading by congressional act June 30. 1S98. In sub-
stance tax on articles Included, prohibited U. S. Const., art. 1, | 9;
Golton. etc.. More v. City of Montpelier. 71 Vt. 416, 45 Atl. 1040,
holding V. 8., I 360, authorizing towns to exempt manufac-
tories, affirmative legislation not unconstltutlotial In securing exemp-
tlou by other means, same being by virtue of statute.
114 U. 8. 417-129. 29 L. 81). EX PARTE WILSON.
Syl. 1 (X. 1074). Criminal Jurledlctlon existing no habeas corpus.
Approved In Territory v. Blomberg. 2 Ariz. 20G, 11 Pac. 672, hold-
ing act of legislative assembly of Arizona providing for prosecu-
*
114 U. S. 430-439 Notes on U. S. Reports. 744
tion of crimes by Information, invalid by Fifth Amendment requiring
indictment
Syl. 2 (X, 1075). Offenses prosecuted by indictment and Informa-
tlOD.
Approved in State v. Kyle, 166 Mo. 294, 65 S. W. 764, holding
Const. Amend., art. 2, S 12. authorizing prosecutions for felonies by
information, same is sufficient even before statute is enacted regulat-
ing such procedure, if meeting common-law requirements.
Syl. 6 (X, 1075). Prior law determines scope constitutional pro-
visions.
Approved in Hume v. United States, 118 Fed. 698, holding in-
dictment, under Rev. Stat. U. S., S 5480, charging scheme to de-
fraud, and mailing of letters in furtherance thereof is sufficient,
though letters were not sent.
Syl. 7 (X, 1075). Information without grand jury invalid England.
Approved in Considlne v. United States, 112 Fed. 344, 345, hold-
ing Rev. Stat, S 819, allowing ten peremptory challenges in fel-
ony, under Rev. Stat., S 5478, for breal^ing into post-office, only
three challenges allowed. See 87 Am. St. Rep. 184, note.
Syl. 10 (X, 1076). Statutory authorization test of infamous crime.
Approved in Fitzpatrick v. United States, 178 U. S. 307, 44 L.
1080, 20 Sup. Ct 945, holding conviction for murder punishable
with death is for capital crime, and qualifying verdict "without
capital punishment" Imposes imprisonment for life; In re Steed,
107 Fed. 685, holding probable cause existing for opposing peti-
tioner's discharge in banl^ruptcy, ground petition laciis complete-
ness, discharge refused until investigation of correctness of state-
ment See notes, 87 Am. St Rep. 186, 190, 193.
Distinguished in Palmer v. Cedar Rapids, etc., Ry. Co., 113
Iowa, 447, 85 N. W. 757, holding, though selling liquor without
license is punishable by imprisonment in penitentiary, it is not
a felony within rule disqualifying witnesses.
Syl. 12 (X, 1078). Infamous punishment inflicted only by in-
dictment
Approved in Ex parte Cox, 3 Idaho, 534, 95 Am. St. Rep. 32,
32 Pac. 198, holding Jurisdiction to render the particular sentence
imposed is as essential to its validity as jurisdiction of the person
or subject-matter. See 87 St Rep. 173, note.
114 U. S. 430-439, 29 L. 144, DODGE v. KNOWLES.
Syl. 5 (X, 1079). Notice complete appeal allowed open court
Approved in M'Nulta v. West Chicago Parli Comrs., 99 Fed. 329,
holding an appeal being allowed in open court at term when decree
was rendered, no citation is necessary.
745 Notes on U. S. Reports. 114 U. 8. 439-511
114 U. S. 439-447. 29 L. 177. DOBSON v. HARTFORD CARPET
CO.
SyL 2 (X. 1079). Infringement profits In proportion to proof.
Approved in Kansas City Hay Press Co. y. Devol, 127 Fed. 366,
holding burden rests upon complainant to show established license
fee for use of patented device, or damage to his business, other-
wise damage will be nominal; Lattimore v. Hardsocg Mfg. Co..
121 Fed. 988. holding defendant selling miners' caps and attached
holders, in infringehient suit for using holders, only profits of
detachable holders recoverable; Elgin Wind. etc.. Co. v. Nichols,
105 Fed. 782. holding suit for infringing windmill improvements,
burden rests upon complainant to prove the portion of profits
due him.
114 U. S. 447-474. Not cited.
114 U. S. 474-477, 29 L. 215, BURTON y. WEST JERSEY FERRY
CO.
SyL 1 (X, 1083). Exception to charge must be specific.
Approved In Tracy v. Eggleston. 108 Fed. 330. holding general
exception, not directing attention of trial court to particular por-
tion, raises no question of review in appellate court; McCutcheon
▼. Hall Capsule Co.. 101 Fed. 548. holding single exception to
charge as whole, no attention directed to any particular portion,
raises no question for review.
Syl. 2 (X, 1083). Ferry casually lacking seat not negligence.
Approved in Houston, etc.. Ry. v. Bryant, 31 Tex. Civ. 486,
72 S. W. 887, holding failure of railroad company to furnish every
passenger with a seat, and allowing passenger to board car. no
vacant seat, not negligence per se.
114 U. S. 477-488. Not cited.
114 U. S. 488-492, 29 L. 183, HOPT v. UTAH.
Syl. X (X. 1084). Utah requires criminal charge in vrrltlng.
Approved in Murphy v. Massachusetts, 177 U. S. 159, 44 L. 714,
20 Sup. Ct. 641, holding sentence of conviction, under Mass. Acts
1851, chap. 87*, after reversal of former Judgment on application
of convict. Is putting In double jeopardy.
114 U. S. 492-501. Not cited.
114 U. S. 501-511, 29 L. 244, NEW ORLEANS. ETC., R. R. v.
DELAMORB.
Syl. 3 (X. 1085). Corporation franchise sold by positive law.
Approved in In re Keystone Coal Co., 109 Fed. 873, holding min-
ing corporation, organized under Pennsylvania assembly act, is
outside District Court's Jurisdiction to adjudge same bankrupt
114 U. S. 611-523 Notes on U. S. Reports. 746
on Involuntary petition; New Orleans, etc., R. R. Co. T. City of
New Orleans. 52 La. Ann. 1838, 28 So. 314, holding railroad's peti-
tion for preliminary Injunction enjoining sale of franchise advor-
tised for sale by city New Orleans is properly refused.
Syl. 4 (X, 1085). Railroad property sold, franchise thereof passes.
Approved in Julian v. Central Trust Co., 115 Fed. 960, holding
mortgage of railroad of North Carolina, conveying legal title to
mortgagee, there was no existing property left in mortgagor upon
which Judgment could operate; Central Trust Co. v. Western, etc,
Co., 112 Fed. 472, 473, holding property and franchise of railroad
company being transferred on foreclosure, divested company *s neg-
ligence thereafter does not render transferee liable.
Syl. 5 (X, 1086). One right way bars giving another.
Approved in Mercantile, etc., Deposit y. Collins Park R. R., 99
Fed. 817, holding Ga. Const., art 3, f 7, prohibiting legislature
granting railroad franchises in cities, without latter's consent, ordi-
nance granting franchise Is law of State respecting contracts.
114 U. S. 511-623, 29 L. 240, STURGES v. CARTER.
Syl. 2 (X, 1086). Collecting omitted taxes law not retroactiya
Approved in Lambe y. McCormIck, 116 Iowa, 175, 89 N. W.
243, holding Acts 28th Gen. Assem., chap. 60, not inconsistent
with section 1374, and not completely providing for assessment
of omitted property, section 1374 not superseded; Bacon y. Board
of State Tax Comrs., 126 Mich. 27, 39, 42, 85 N. W. 309, 313, 314,
holding Comp. Laws 1897, taking stock foreign corporation owned
by Michigan citizens not In contravention of Const. U. S., art. 4;
State V. Pors, 107 Wis. 425, 429, 83 N. W. 708, 709, holding Rev.
Stat., f 1059 (Wis.), amending laws authorizing reassessment of
personal property omitted from prior assessment, creates no new
obligation, being purely remedial.
Syl. 3 (X, 1086). Law impairing vested rights deemed retro-
spective.
Approved In New York Life Ins. Co. y. Boar^, of Comrs., 99
Fed. 851, holding Act Ohio, April 21, 1898, requiring commissioners
to meet moral obligations, under statute subsequently declared
invalid, giving creditors right to enforce same by action, gives
prohibited right; Galusha v. Wendt, 114 Iowa, 606, 87 N. W. 516,
holding Code, § 1374 (Iowa), providing treasurer to collect omitted
tax within five years, and on refusal to bring suit, is retroactive,
only tax collectible prior to act; Gompf v. Wolflnger, 67 Ohio St
150, 65 N. B. 880, holding Judgment final by laws existing wheal
rendered cannot constitutionally be made subject to review by
statute subsequently enacted.
747 Notes on U. S. Reports. 114 U. S. 623-542
Syl. 5 (X, 1086). Exemption from taxation must be expressed
Approved In KIdd v. Alabama. 188 U. S. 731, 23 Sup. Ct 401.
17 L. 672, holding Ala. Code 1886, S 453, cl. 13, and Code 1896.
I 3911, cl. 14, do not deny equal protection In taxing railroad
stock exempting tbat of domestic substantially listed; Lander v.
Burke, 65 Ohio St. 542. 63 N. E. 72, holding section 2746, Rev.
Stat (Ohio) does not exempt investments in corporation stock
of residents, except it be taxed in its name in this State.
Syl. 6 (X, 1087). Foreign corporation shares taxable another
State.
Approved in Hubbard v. Brush, 61 Ohio St 262, 55 N. E. 830,
holding all business foreign corporation being transacted, all prop-
erty situated and taxed in Ohio, shares held in Ohio exempt from
taxation under Rev. Stat. S 2746.
(X, 1086). Miscellaneous.
Cited in Lander v. Burke, 65 Ohio St 541, 63 N. B. 72, holding
Ohio corporation does not cease to be such, nor become foreign
corporation by accepting grant from another State to use land
therein benefiting corporation.
114 U. S. 523, 524. Not cited.
114 U. S. 525-542, 29 L. 264, FORT LEAVENWORTH R. R. v.
LOWE.
SyL 2 (X, 1088). Federal eminent domain without State's consent.
Approved in United States v. Certain Lands, 112 Fed. 627, hold-
ing erection and use of fortification by United States, impairing
value of neighboring property, does not constitute a taking of
property entitling to compensation.
SyL 3 (X, 1088). State may reserve rights Federal grant
Approved in United States v. Lewis, 111 Fed. 631. holding
whether homicide within State boundaries was of Federal Juris-
diction depends upon whether place was under exclusive Jurisdic-
tion of United States within Rev. Stat, S 5339.
Syl. 4 (X, 1088). Usefulness Federal grant within State unim-
pairable.
Approved In United States v. Tucker, 122 Fed. 521. holding
United States has exclusive Jurisdiction of ** place " under article 1,
section 8. Constitution, place purchased by consent of State legis-
lature; Territory v. Delinquent Tax List. 3 Ariz. 308, 309. 26 Pac.
312. holding railroad built across Indian reservation in Territory
subject to territorial taxation, no treaty stipulation or express
exclusion against territory Jurisdiction; Newcomb v. Rockport.
183 Mass. 77, 78. 66 N. E. 588, 589. holding school committee hav-
ing discretion not compelled to furnish ti'ansportation to schol-
114 U. S. ^2r-648 Notes on U. S. Reports. 748
ars living on island, access to same being inconvenient, sometimes
impossible.
Syl. 5 (X, 1089). State*s Federal cession may be conditional.
Approved in Middleton v. La Compagnle, etc., 100 Fed. 86S,
holding New Jersey ceding Federal Jurisdiction over Sandy Hook
** bounded by sea " did not vest exclusive Jurisdiction beyond land
owned above low- water marli.
Syl. 6 (X, 1089). Federal Jurisdiction over Federal State property.
Approved in Steams v. Minnesota ex rel. Marr, 179 U. S. 248,
45 L. 176, 21 Sup. Ct 82, holding Federal Supreme Court generally
accepts decision of State Supreme Court in construing its State
Constitution, but competency of State making contract matter in-
dependent Judgment.
Syl. 7 (X, 1089). State may qualify cession to government.
Approved in United States v. Certain Lands, 112 Fed. 628,
holding proprietor subdividing tract and dedicating portion to all
owners for common use, is easement and Federal government must
compensate therefor for use inconsistent therewith.
(X, 1087). Miscellaneous.
Cited in 78 Mich. 139, 28 So. 799, holding cession of island by
Mlssisfiippi to Federal government, with certain defined conditions.
United States will be presumed to adhere to conditions specified.
114 U. S. 542-547, 29 L. 270, CHICAGO, ETC., RY. v. McGLINN.
Syl. 1 (X, 1090). Government's exclusive legislation over pur-
chased land.
Approved in United States v. Tucker, 122 Fed. 521, holding
United States has exclusive Jurisdiction of " places " under Const.,
art. 1, § 8, place purchased by consent of State legislature.
Syl. 4 (X, 1090). Old government laws stand until repealed.
Approved in Downes v. Bidwell, 182 U. S. 298, 45 L. 1110, 21 Sup.
Ct. 791, holding Foraker act, 31 Stat, at Large, 77, chap. 191, im-
posing duties upon imports from Porto Rico temporarily provided
civil government and revenues for island, constitutionally exercised
by Congress; Bigley v. New York, etc., R. R., 105 Fed. 77, holding
New York statutes requiring pilot, vessel from " foreign port," ap-
plied to vessels from Porto Rico until ceded to us by Spain; New-
comb V. Rockport, 183 Mass. 78, 66 N. E. 589, holding school com-
mittee having discretion, not compelled to furnish transportation
to scholars living on island, access to same being inconvenient,
sometimes impossible.
114 U. S. 548, 29 L. 281, EX PARTE HUGHES.
Syl. 1 (X, 1091). Printing briefs on appeal not costs.
Approved in Lee Injector Mfg. Co. v. Penberthy, etc., Co., 109
Fed. 964, holding disbursements of counsel for printing briefs in
the Circuit Court of Appeals are not taxable as costs.
749 Notes on U. 3. Reports. 114 U. 8. 54^562
114 U. S. 54^555, 29 L. 255, MARTINSBURG, ETC., B. B. T.
MARCH.
Syl. 1 (X, 1091). Arbiter agreed upon, his findings conclusive.
Approved in American Bonding, etc., Co. v. 6il>6on Co., 127 Fed.
073, holding provision in contract for ascertaining damages for
violating provisions, surety has right to insist on its observance
before being held responsible; Parlin, etc., Co. v. Greenville, 127
Fed. 61, holding contractor erecting and warranting garbage fur-
nace capacity, and test upheld warranty, town council cannot de-
feat contractor's recovery by being unreasonable in the matter;
United States v. Venable Const Co., 124 Fed. 273, holding engineer
officer in charge of construction government coast batteries, hav-
ing charge of " final settlements," his estimates were conclusive on
the parties; North American Ry., etc., Co. v. McMath Surveying
Co., 116 Fed. 174, holding action to recover for extra work done
in railroad construction, contract malting engineer arbiter of all
differences, his decision is conclusive thereto appertaining; Boyce
V. United States Fidelity, etc., Co., Ill Fed. 143, holding positive
statement of forfeiture need not be made, provision of contract per-
mitting city to terminate" contract, delay continuing after ten days*
notice; Abercrombie v. Vandiver. 126 Ala. 532, 28 So. 497, hold-
ing railroad construction to be done to satisfaction of company's
engineer, did not make engineer's estimates of amount due conclu-
sive; National Contracting Co. v. Commonwealth, 183 Mass. 95,
66 N. E. 642, holding engineer supervising sewer construction with
full power to order necessary changes, contractor must make same,
though engineer unreasonably orders them; Williams v. Santa Fe
Ry. Co., 153 Mo. 499, 54 S. W. 693. holding referee's finding, ap-
proved by trial court, will not be disturbed on appeal, there being
substantial evidence to support it; Vanderhoof v. Shell, 42 Or. 585,
72 Pac. 129, holding architect also superintendent of work verbally
promising contractor additional time, delay caused by others, writ-
ten statement was immaterial; Jones, etc., Carey v. Gilchrist, 88
Tex. 92, 30 S. W. 443, holding railroad engineer having power to
remove stone, gives him authority to determine the quality of
stone to be used.
114 U. S. 555-502, 29 L. 248, STRANG v. BRADNER.
Syl. 1 (X, 1093). Positive fraud prevents discharge In bank-
ruptcy.
Approved in Forsyth v. Vehmeyer, 177 U. S. 182. 44 L. 725, 20
Sup. Ct 625, holding obtaining money falsely representing that
borrower had certain wood cut and piled, sale of same having
already been made to other, exempts from bankruptcy discharge;
Crawford v. Burke, 201 111. 589, j66 N. B. 835. holding act 1867 and
act 1898, cl. 2, prevents discharge of bankrupt from debt in case
of fraud, though not acting In fiduciary capacity or as officer; Ruff
114 U. S. 562-508 Notes on U. S. Reports* 750
V, Milner, 92 Mo. App. 630, holding debts created by embezzlement,
defalcation, etc., while acting as officer or in fiduciary capacity,
not affected by discharge in banlcruptcy.
Syl. 3 (X, 1093). Innocent partner unaffected other partner's
fraud.
Approved in In re Schultz, 109 Fed. 265, holding fraud of part-
ner in keeping firm's books, he having sole charge, not imputable
to innocent partner, but defeats his discharge in bankruptcy.
114 U. S. 562-564. Not cited.
114 U. S. 564-575, 29 L. 277, WALES v. WHITNEY.
Syl. 3 (X, 1094). Civil courts cannot interfere naval court-martial.
Approved in Boyle v. Sinclair, 178 U. S. 611, 44 L. 1215, 20 Sup.
Ct 1029, reaffirming rule.
114 U. S. 576-587, 29 L. 273, RICHMOND MINING CO. v. ROSE.
Syl. 1 (X, 1095). Excess does not invalidate whole claim.
Approved in Walton v. Wild Goose Mining, etc.. Trading Co., 123
Fed. 218, holding notices of mining locations are to be liberally
construed, and are not invalid because of mistakes therein as to
courses and distances; M'Intosh v. Price, 121 Fed. 719, holding
though first locator has excessive location, second locator cannot
interfere with the portion justly belonging to the first on which
he is then woridng; Mackay v. Fox, 121 Fed. 491, holding adverse
claimant filing amended application, thereby obtaining patent to
adjoining land, did not waive adverse claim to other land involved
in pending suit; Bunker Hill, etc., Co. v. Empire State-Idaho,
etc., Co., 109 Fed. 545, holding application for patent mining claim
impliedly, if not expressly, infers that location was upon land open
thereto and prior to any one else; Gohres v. Illinois Min. Co., 40 Or.
519, 67 Pac. 667, holding excessive location being made by mistake,
locator acting in good faith, same is void only to extent of excess;
Stephens v. Wood, 39 Or. 447, 65 Pac. 603, holding plaintiffs selling
land to defendants, receiving nearly all purchase price, sale cannot
be rescinded unless money is returned or offered, balance remain-
ing unpaid.
Syl. 5 (X, 1096). Patent issue invalid contest pending court
Approved in Shoshone Mining Co. v. Rutter, 177 U. S. 512, 44
L. 867, 20 Sup. Ct. 728, holding suit to support adverse claim to
mine under Rev. Stat, §§ 2325, 2326, not suit under Federal
laws irrespective of citizenship unless involving construction min-
ing laws.
114 U. S. 587-598. 29 L. 235, WABASH. ETC., RY. v. HAM.
Syl. 1 (X, 1097). Corporate property trust fund for debts.
Approved in Great Western, etc.. Co. v. Harris. Ill Fed. 42,
holding State statutes imposing liabilities upon corporation officers
751 Notes on U. S. Reports. 114 U. S. 598-616
do not Include common-law liability for misfeasance and negligence
in performance of duties; Moffat v. Smith, 101 Fed. 774, holding
owner of all corporation stock not entitled to enjoin execution of
judgment against it, he canceling all his stock in exchange for all
the assets; Lawrence v. Greenup, 97 Fed. 909, holding under
Supreme Ck)urt decisions, solvent corporation does not hold its
capital in trust for creditors, though in process of liquidation;
Singer Piano Co. v. Barnard, Walker, etc., Co., 113 Iowa, 667, 83
N. W. 726, holding chattel mortgagee on corporation property,
mortgage made expressly subject to a prior mortgage, is estopped
to deny validity of such prior mortgage; Morrison v. Snuff Co., 79
Miss. 338, 30 So. 724, 89 Am. St Rep. 601, holding corporation, re-
sult of consolidating several, holds assets received from each con-
stituent corporation in trust subject to equitable claims of orig-
inal creditors. See 89 Am. St. Rep. 616, note.
Syl. 2 (X, 1098). Old corporation debts continue und^r con-
solidation.
Approved in New Hampshire Sav. Bank v. Richey, 121 Fed. 960,
holding corporation, solvent and going concern holds its property
like an individual free from lien or trust on behalf of general
creditors; Columbus, etc., R. R. Co. Appeals, 109 Fed. 196, hold-
ing reoganization assuming old debt did not operate to give the
holders of such floating indebtedness an equitable lien on property
nature of vendor's lien. See notes 89 Am. St Rep. 608, 637, 644, 645,
646.
114 U. S. 598-606. Not cited.
114 U. S. 606-615, 29 L. 229, WURTS v. HOAGLAND.
Syl. 1 (X, 1099). Assessments to drain lands are constitutional.
Approved in Adams v. City of Shelbyvllle, 154 Ind. 471, 77 Am.
St Rep. 488. 57 N. E. 116, holding each parcel contributing property
for local improvements in local taxing district assessable only to
extent of receiving special benefits; In re Hegne-Hendrum Ditch
No. 1, 80 Minn. 63, 82 N. W. 1095, holding public improvements in
interest of public health, legislature may cause assessments against
lands benefited to be made to meet the expense; Matter of Tuthill,
163 N. Y. 139, 79 Am. St Rep. 578, 57 N. E. 305, holding act author-
izing assessment for construction of ditches same being for private
purposes, said act is unconstitutional.
Syl. 2 (X, 1100). Equal protection law operating on all.
Approved in City of Indianapolis v. Holt 155 Ind. 234, 57 N. B.
970, holding act providing for municipal improvement same is con-
stitutlonial in providing for full hearing and determination of prop-
erty-owner; State V. Board of Comrs. of Polk County, 87 Minn. 336, 92
N. W. 218, holding chap. 258, Gen. Laws 1901 (Minn.), act providing
for drainage of wet and overfiowed lands in certain cases, held
114 U. S. 615-619 Notes on U. S. Reports 752
valid constitutional legislative enactment; Andrus ▼. Insurance
Assn., 1G8 Mo. 1G3, 67 S. W. 585, holding State courts permitting
insured to prove waiver of policy terms without alleging same in
petition, not repugnant to Fourteenth Amendment, all companies
being treated aliiie; Barl>er Asphalt Pav. Co. v. French, 158 Mo.
554, 58 S. W. 941, holding act providing for improvements in city
based on front-foot rule, not a talking of property within Four-
teenth Amendment of Federal Constitution.
114 U. S. 615-619, 29 L. 224, SCHOFIELD ▼. CHICAGO, ETC., RY.
Syl. 1 (X, 1100). Carelessness at railroad crossing contributory
negligence.
Approved in Gilbert v. Burlington, etc., Ry., 128 Fed. 633, holding
one voluntarily and unnecessarily exposing himself to imminent
known danger, tliereby directly contributes to his injury and must
suffer the consequences; Chicago, etc., R. R. ▼. Rossow, 117 Fed.
493, holding farmer at elevator contributing to his death, precludes
recovery, though railroad company may have also been negligent;
Mobile, etc., Co. v. Coerver, 112 Fed. 494, holding It was error to
charge that it was the duty of the bralieman to signal engineer
immediately on appearance of danger to person approaching; Chesa-
pealie, etc., Ry. v. King, 99 Fed. 256, holding railroad passenger
alighting at station, using means of egress provided by company,
remains passenger until he crosses tracks; Stowell ▼. Erie R. R.,
98 Fed. 523, holding plaintiff failing to wait and to look before
crossing railroad was guilty of negligence precluding her recovery;
Gilbert v. Erie R. R., 97 Fed. 750, holding rule that plaintiff may
place himself in danger and defendant must exercise care in avoid-
ing injuring, inapplicable in concurrent negligence; Oliver v.
Denver Tramway Co., 13 Colo. App. 552, 59 Pac. 83, holding ordi-
nance requiring cars to stop at certain place, and plaintiff relying
on this fact collided with oar, company liable if gripman could have
avoided injury; Rumpel v. Oregon Short Line Ry. Co., 4 Idaho, 26,
35 Pac. 703, holding one crossing railroad not relieved of necessity
of prudence, because company violated ordinance in not ringing the
bell or sounding the whistle; Barnhill v. Texas, etc., R. R. Co., 109 La.
49, 33 So. 65, holding the greater the difficulty of seeing and hearing
train as he approaches crossing, the greater caution law imposes
upon the traveler; Day v. Boston, etc., R. R. Co., 97 Me. 535, 55 Atl.
422, holding intestate miscalculating the distance and endeavoring
to cross track ahead of train, negligence of injured party was proxi-
mate cause contributing and bars recovery; Holwerson v. St Louis,
L., etc., Ry. Co., 157 Mo. 229, 57 S. W. 773, holding decedent's con-
tributory negligence bars recovery, in absence of allegations and
proof of wantonness in causing injury, though defendant were
negligent; Gahagan v. Railroad, 70 N. H. 449, 50 Atl. 150, holding
fact that injured person relied on ringing of bell or sounding of
7S3 Notes on D. S. Reporta. 114 U. S. C19-C;k
•ivblstle at croaalng, did not eicuse failure to atop, loot, and Uaten;
Sllcock T. Rio Grande, etc., R. K. Co., 22 Utah. ISS, JOl. 61 Pac. 567,
5(18. holding person permlttliiE team to etnnrt upon public lilgliway.
close proximity to railroad, or about to cross. Is bound to look and
listen.
Syl. 2 (X, 1102). Verdict directed on evidence and Inferences,
Approved In Marande r. Tesas & Pac. It. R. Co., 181 U. S. lill.
40 L, 498. 22 Sup. Ct. 347. holding being reasonably certain thnt
company's negligence caused the Are and that jury could Bud but
one verdict from the evidence, verdict was properly directed;
District of Columbia v. Moulton, 1S2 U. S. 582. 45 L. 1241. 21 Sup,
Ct. S12. holding negligence or no negligence one of law for court,
where hut one Inference can reasonably be drawn from the evidence;
Patton T. Texas & Pac. R. R. Co., 179 U. S. 660. 45 L. 363. 21 Sup.
Ct. 276, bolding court may direct verdict for defendant and refut^e
leaving gueetton of negligence to Jury where locomotive Sreman
undlsputably contributed to his injury; Dunwortb v. Grand Trunk,
etc., Ry.. 127 Fed, 309, holding facts and evidence conclusively show-
ing contributory negligence In deceased meeting bis death, trial
court may direct verdict for defendant; M'Cann v. Chicago, etc., Ry.,
105 Fed, 483, holding evidence showing contributory negligence on
plalntiFTs part. It was not error to direct verdict for defendant;
Knight V. Baltimore, 97 Md. 1(52. 55 Atl. 390, bolding in action for
personal Injuries, facts being undisputed and only one reasonable
inference to be drawn, question of negligence for court; Ketterman
V. Dry Fork It. R. Co., 48 W. Va. 812, 37 S. E. 68G, holding In
actions of negligence, case should never be taken troio Jury unless It
Is so plain that verdict would be set aside; dissenting opinion In
Southern Electric Ry. Co. v. Hagcman, 121 Fed. 273. majority hold-
ing instruction not fairly challenging court's jurisdiction, and record
as whole not showing want of jurisdiction, refusal of Instruction
114 U. S. 619-622. Not cited.
114 D. 8. 622-635, 29 L. 257. BROWN v. HOUSTON.
8yL 1 (X. 11031. State cannot tax Imports, foreign conntrlea.
Approved In Cornell v. Coyne, 192 U. S. 428. 24 Sup. CL 385. hold-
ing Imposition of mnnufaciurlng tar on filled cheese manufactured
for export and In tact exported, as upon other filled cheese, not
obnoxious to U. S. Const., art. 1, 9 0. par. 5; American Steel, etc.,
Co. T. Speed, 192 U. S. 520, 521, 24 Sup. CL 370, 371, holding goods
brought Into one State from another are not Imported within U. S.
Const, art. 1, i 10, par. 3. forbidding State taxation of Imports;.
Dooley v. United States, 183 U. S. 154. IGO, 182. 105, 171, 40 L.
130. 132, 133. 134. 130, 22 Sup. Ct. 64, 66, 70, holding U. S. Const,
Vol 11 — 48
n
114 U. S. G22-G35 Notes on U. S. Reports. 754
art 1, S 8, with reference to *'nniform dntles throughout United
States " fioes not apply goods shipped from Porto Rico to New York;
Downes v. Bldwell, 182 U. S. 202, 293, 45 L. 1108, 21 Sup. Ct 785,
holding art. 1, i 8, Const, requiring duties to be uniform *' through-
out the United States,*' must be understood to mean the several
States admitted upon equal footing.
Syl. 4 (X, 1104). State cannot interfere with interstate commerce.
Approved in Montgomery v. Portland, 190 U. S. 105, 23 Sup. Ct
737, 47 L. 970, holding under harbor act September 19, 1890, S 12,
State cannot extend wharves beyond harbor lines established by
local law, except under directions of secretary of war; Lottery Case,
188 U. S. 351, 23 Sup. Ct 325, 47 L. 499, holding carriage of lottery
tickets from one State to another by express company is interstate
commerce under congressional regulation; Diamond Match Co. ▼.
Ontonagon, 188 U. S. 93, 96, 23 Sup. Ct 270, 271, 47 L. 398, 400,
holding logs floated down stream to sorting gap, thence to be
shipped by rail, as needed, outside State, while waiting are sub-
jects of interstate commerce; Kelley v. Rhoads, 188 U. S. 5, 23 Sup.
Ct 261, 47 L. 361, holding 10,000 sheep being driven from Utah
across Wyoming to Nebraska at rate of nine miles per day is sub-
ject of interstate commerce exempt from taxation; Austin ▼. Ten-
nessee, 179 U. S. 373, 45 L. 238, 21 Sup. Ct 144, holding tobacco
being legitimate article of commerce, it is subject to Federal
regulation, though it is, to certain extent, within State police power;
State V. Duckworth, 5 Idaho, 647, 95 Am. St Rep. 202, 51 Pac. 457,
holding Idaho statute making it unlawful to bring sheep into State
without first dipping them according to act, unnecessary restriction
upon interstate commerce; State v. Hanaphy, 117 Iowa, 19, 90
N. W. 602, holding traveling salesman accepting order in Iowa
for liquors to be shipped C. O. D. from Illinois, transaction con-
stituted interstate commerce, and salesman cannot be locally
prosecuted; Grlggsry Construction Co. v. Tax Collector et al., 108
La. 441, 32 So. 401, holding taxpayer twice legally requested by
assessor to furnish list of his property and refuses, is estopped
from thereafter contesting correctness of assessor's list; State ▼•
Montgomery, 94 Me. 200, 47 Atl. 166, holding statute discriminating
between peddlers, regarded as citizens or aliens, with reference to
license, is unconstitutional, violating Fourteenth Amendment of
Federal Constitution; Adkins v. Richmond, 98 Va. 97, 34 S. B. 969,
holding sales made in State by exhibition of samples, goods being
in other States, city ordinance requiring license tax repugnant ta
Const. U. S., art. 1, S 8, cl. 3.
Syl. 5 (X, 1104). Congress absolutely supreme in regulating
commerce.
Approved in Austin y. Tennessee, 179 U. S. 374, 45 L. 238, 21 Sup.
756 Notes on U. S. Reports. 114 U. S. 635-642
Ct 144, holding court cannot take judicial notice of the fact that
tobacco in form of cigarettes Is more noxious than In any other
form; Wall ▼. N. & W. R. R., 52 W. Va. 498, 44 S. B. 300, 9i Am.
St Rep. 900, holding car sent loaded from another State Into West
Virginia, to be returned loaded to former State, cannot be levied
upon under attachment in West Virginia.
SyL 7 (X, 1105). State may tax goods arriving destination.
Approved in Gummings v. Chicago, 188 U. S. 430, 23 Sup. Ct 477,
47 L. 531, holding State may prohibit erection, without its permis-
sion, of structure in navigable river wholly within Its limits, said
authority not superseded by labor act March 3, 1899; Blackstone v.
MiUer, 188 U. S. 207. 23 Sup. Ct 279, 47 L. 445, holding imposition
of tax under New York inheritance tax law on transfer under non-
resident's will, of debts due decedent from residents therein. Is
valid; Austin v. Tennessee, 179 U. S. 352, 45 L. 229, 21 Sup. Ct
135, holding prohibition of sale of cigarettes by State, within police
power, provided it does not apply to original packages or discrimi-
nates in cigarettes imported; Kehrer v. Stewart, 117 6a. 974, 44 S.
E. 856, holding goods shipped from one State to owner's place of
business in another for purposes of sale, although stored. State
may tax same; Racine Iron Co. v. McCommons, 111 6a. 544, 36 S.
E. 869, holding " Interstate commerce clause " does not prevent
State from imposing license tax upon traveling agents, principals
in other States, who break original packages and distribute con-
tents; Ex parte Young, 36 Or. 250, 78 Am. St Rep. 774, 59 Pac.
708, holding HllPs Anno. Laws, § 1952 (Or.), forbidding any person
persuading seaman to desert vessel within waters of State is valid
police power, within Const, art 1, S 8.
Distinguished in Commonwealth v. Pennsylvania Coal Co., 197
Pa. St 554, 47 Atl. 741, holding domestic corporation not entitled
to deduction from capital stock of realty mortgages In other
States, being but securities for the debt
114 U. S. 635-642, 29 L. 261, PROVIDENT SAVIN6S SOC. v. FORD.
Syl. 3 (X, 1107). Colorable assignment does not prevent removal.
Approved in Bankers', etc., Co. v. Minn., etc., Ry., 192 U. S. 384,
24 Sup. Ot. 329, holding plaintiff relying on principles of general
law, judgment Circuit Court of Appeals is final, railway company
being sued for negligently losing registered package; Chesapeake &
O. R. R. Co. V. Dixon, 179 U. S. 138, 45 L. 125, 21 Sup. Ct 70, hold-
ing railroad company, and two employees of plaintiff's State, can-
not remove, being sued for negligently killing person at a'ossing,
diverse citizenship wanting; Bryce v. Southern Ry. Co., 122 Fed.
711, holding plaintiff's Joining engineer and conductor, both being
of plaintiff's State, did not prevent railroad, citizen of another
State, from removing cause.
114 U. S. 642-653 Notes on U. S. Reports. 756
SyL 4 (X, 1107). Simply judgment Federal court no removal.
Approved In Gableman v. Peoria, D. & R. R. Co., 179 U. S. 340,
45 L. 223, 21 Sup. Gt 173, holding bare fact that receiver was
appointed by Federal court does not make all cases against him
come under Federal Constitution or laws; Marrs v. Felton, 102
Fed. 777, holding where receiver is appointed by Federal court and
joined with codefendant, having no right of removal, controversy
not being separable, receiver cannot remove; Gableman v. Peoria,
etc., Ry., 101 Fed. 5, holding action against receiver of railroad for
personal Injury cannot be removed from State simply because he
was appointed by Federal court.
(X, 1107). Miscellaneous.
Cited in dissenting opinion in TuUock v. Mulvane, 184 U. S. 518,
46 li. 668, 22 Sup. Ct 380, majority holding question of liability on
injunction bond given In Federal proceedings, certain stipulations
dismissing portion of case constitutes Federal question reviewable
by Supreme Court, writ of error.
Distinguished in Tullock v. Mulvane, 184 U. S. 508, 46 L. 665, 22
Sup. Ct 376, holding question of liability in Federal proceedings,
certain stipulations dismissing portion of case, constitutes Federal
question reviewable by Supreme Court, writ of error.
114 U. S. 642-653, 29 L. 250, EX PARTE REGGEL.
SyL 1 (X, 1108). Extradition for felony Includes misdemeanorb
Approved In In re Walker, 61 Nebr. 813, 86 N. W. 513. holding
prisoner held under process In due form upon judgment canntit
ootain discharge by habeas corpus unless judgment Is void.
Syl. b (X, 1108). Fugitive entitled to proof before extradition.
Approved in Hyatt v. Cockran, 188 U. S. 713, 718, 23 Sup. Ct 459,
461, 47 L. 662, 664, holding extradition warrant Issued by governor
of State Is but prima facie sufficient to hold the accused, who may
prove otherwise under habeas corpus; Bruce v. Rayner, 124 Fed.
483, holding governor's decision of demanding State is merely prinia
facie evidence though same may not be reversed by court; United
States V. Yarborough, 122 Fed. 299, holding one arrested for removal
to another district has a right to resist application, being entitled
to seasonable notice of time and place of hearing; Katjiiga r.
Cosgrove, 67 N. J. L. 214, 50 Atl. 680, holding whether defendant
is fugitive and subject to extradition. Is question for executlvi*
authority where demand Is made.
Syl. 4 (X, 1108). Extradition — Indictment need not be technically
correct.
Approved In In re Strauss, 126 Fed. 330, holding under Rev. Stat,
S 5278, extradition proceedings need not be based upon Indictment
but governor may charge person by affidavit; State v. Clough, 71
N. H. 598, 599, 601, 602, 604, 53 Atl. 1089, 1090, holding evidence
757 Notes on U. S. Reports. 114 U. S. 654-663
before the governor being sufficient supporting finding that prisoner
is fugitive, warrant need not contain such finding; People v. Hyatt,
172 N. Y. 183, 64 N. E. 826. 92 Am. fet Rep. 709. holding one accused
of crime In another State will not be surrendered In extradition
proceedings if not in demanding State at time of crime; Armstrong
V. Van De Vanter, 21 Wash. 686, 59 Pac. 512, holding on habeas
corpus on requisition of fugitive from another State, It Is duty of
court to determine whether Indictment sufficiently charged a crime;
dissenting opinion In The Robert W. Parsons, 191 U. S. 45, majority
holding enforcement lien in rem for repairing canal-boat plying
on Erie canal wholly within jurisdiction of admiralty, not enforce-
able in State courts of New York. See notes, 92 Am. St Rep. 731,
734.
Syl. 6 (X, 1109). Extradition — Prima facie case no release.
Approved in In re Tod, 12 S. Dak. 393, 76 Am. St. Rep. 620. 81
N. W. 639. holding on hearing writ habeas corpus prisoner held
by extradition warrant, court Is bound to Inquire into validity of
all proceedings.
114 U. S. 654r-663, 29 L. 226, STREET R. R. v. HART.
SyL 6 (X, 1110). State law attachment followed Circuit Ck)urt
Approved. in Randolph v. Tandy, 98 Fed. 942, holding after ser-
vice of garnishment writ. It is unlawful for garnishee to pay any
debt to defendant or deliver to him any effects.
Syl. 6 (X, 1110). Courts — Revised Statutes, S 916, permits attach-
ments.
Approved in Hudson v. Wood, 119 Fed. 770. holding Rev. Stat,
i 916 (TQ. S. Comp. Stat 1901, p. 681), providing for enforcement
of common-law judgments hi Federal court same as In Stales, does
not embrace equitable remedies by State statute; United States v.
Capdevielle, 118 Fed. 813, holding act La.. No. 5, Ex. Sess. 1870,
prohibiting mandamusing collection of judgments against New
Orleans, not binding on Federal courts under Rev. Stat, S 716,
U. S. Comp., Stat 1901, p. 580*
Syl. 7 (X, 1110). Appealable error made by bill exceptions.
Approved in Mutual Reserve, etc., Assn. v. Phelps, 190 U. S. 159,
23 Sup. Ct. 710, 47 L. 995, holding proceedings are not removable
merely because of supplementary proceedings, State regarding same
but continuation of action, to aid judgment execution; Columbus
Const Co. V. Crane Co., 101 Fed. 57, holding rule 10, Circuit Court
of Appeals, Seventh Circuit, does not require the different grounds
of objection to be enumerated in the exceptions.
CXV UNITED STATES.
115 U. S. 1-25, 29 L. 319, PACIFIC RAILWAY REMOVAL OASE&
Syl. 1 (X, 1111). Federal corporatlonB entitled to removaL
Approved in Continental Nat Bank v. Bnford, 191 U. 8. 122»
holding national banks being creatures of Congress, a salt by
or against them is necessarily suit under laws of the United
States, irrespective of citizenship; Shoshone Mining Co. v. Rut-
ter, 177 U. S. 509, 44 L. 866, 20 Sup. Ct 727, holding suit of ad-
verse claim to mine, under U. S. Rev. Stat, SS 2325, 2826, not
under Federal laws, irrespective citizenship or question of construc-
tion of mining laws; Postal Tel. Cable Co. t. Southern Ry. Co., 122
Fed. 157, 161, holding there are no constitutional provisions se-
curing jury trials in condemnation proceedings, but Federal court
follows law of State where land is situate; Gableman v. Peoria,
etc., Ry., IQl Fed. 3, holding action in State court against railroad
receiver for personal injury, not removable solely on ground that
receiver was appointed by Federal court; State v. Frost, 113 Wis.
648, 89 N. W. 920, holding Federal receiver may be restrained in
Federal and State courts, and removal to Federal court not ob-
jectionable on ground of inadequate relief therein.
Distinguished in Mars v. Felton, 102 Fed. 776, holding Federal
receiver of State corporation joined in State court with codefend-
ant having no right of. removal, suit not involving separable
controversy, not removable by receiver.
Syi. 2 (X, 1112). Consolidated corporation a de facto corporation.
Approved in Southern Pac. R. R. Co. v. United States, 183 U. S.
IS27, 46 L. 312, 22 Sup. Ct 157, holding same act of same date
granting land to two separate railroads, limits of grants conflicting,
they take undivided moiety of lands, neither having priority;
Postal Tel. Cable Co. v. O. S. Ry. Co., 23 Utah, 483, 90 Am. St
Rep. 712, 65 Pac. 738, holding corporate existence of telegraph
company, a de facto corporation, in condemnation proceedings
against railroad for right of way, will not be inquired into.
Distinguished in Bankers', etc., Co. v. Minnesota, etc., Ry., 192
U. S. 384, 24 Sup. Ct 329, holding suit against railway for negli-
gently losing registered package, company carrying the mails, is
final in Circuit Court plaintiff relying on principle of general law,
Syl. 4 (X, 1113). Removal petition pending appeal too late.
Distinguished in In re Delafield, 109 Fed. 579, holding city ordi-
nance statutorily authorized to condemn land for public purposes,
17581
750 Notes on U. S. Reports. 115 U. S. 25-45
a stated election to appropriate certain property amounts to a
present taking.
Syl. 5 (X, 1114). Controversies between property separable and
removable.
Approved in Kirby v. Chicago, etc., B. B. Co., 106 Fed. 657, hold-
ing statutory proceeding in State court to determine landowner's
damage under eminent domain, is suit civil nature and removable
Federal court, other requisite facts existing; Myers ▼. Chicago &
N. W. Ry. Co., 118 Iowa, 316, 91 N. W. 1078, holding though pro-
ceeding prior to appeal was nature of inquest, it became subse-
quently **suit of civil nature" removable to Federal court within
Federal statutes.
115 U. S. 25-28, 29 L. 833, HADDBN ▼. MBRRITT.
SyL 1 (X, 1114). Estimates mint director are conclusive.
Approved in United States v. Beebe, 117 Fed. 672, 674, 676, hold-
ing reliquidation by secretary of treasury under proviso to section
25 of tariff act 1894, based upon pure-metal value, is conclusive;
Downs V. United States, 113 Fed. 146, holding under section 5,
tariff act 1897, amount of bounty bestowed by foreign country ou
exportation of merchandise is determinable by secretary of treasury
and conclusive; United States v. Beebe, 103 Fed. 787, holding under
tariff act 1894, S 25, director of mint estimates standard of foreign
coins, and secretary of treasury cannot follow declaration of con-
sular certificate.
115 U. S. 29-40, 29 L. 341, WHEELEB v. NEW BBUNSWICK, ETC.,
BY. CO.
Syl. 3 (X, 1115). From two to six any between.
Approved in Fairmont Glass Worlds v. Crunden-Martin W. W.
Co., 106 Ky. 666, 51 S. W. 198, holding offer to ship not later than
May 15, buyer had right to accept the goods to be delivered on
different days prior thereto.
115 U. S. 41-15. 29 L. 331. PIBIB v. TVEDT.
Syl. 1 (X, 1115). Joint tort action not separable.
Approved in Chesapeake & O. R. B. Co. v. Dixon, 179 U. S. 138,
45 L. 125, 21 Sup. Ct. 70. holding railroad and two of Its employees,
their concurrent negligence killing person at crossing, liability is
joint, and cause cannot be removed; Carothers v. M'KInley MIn., etc.,
Smelting Co.. 122 Fed. 308, holding plaintiff suing in ejectment, resi-
dent agent cannot be made party defendant with foreign corpora-
tion to prevent removal though plaintiff denies fraud in making him
party; Ward v. Franklin, 110 Fed. 796. holding action against
several defendants for false imprisonment, certain of them com-
mitting act at instigation of other of them. Is Joint and not re-
movable; Mars V. Felton, 102 Fed. 778, holding tort action against
115 U. S. 45-^1 Notes on U. S. Reports. 700
two defendants for negligence of servants employed by them
Jointly, not separable controversy removable by one defendant alone;
Winston V. Illinois Cent. R. R., Ill Ky. 958. 65 S. W. 15, holding
railroad and its servants being Jointly liable for negligently In-
juring plaintiff, being sued Jointly, railroad cannot remove suit to
Federal court; Myers v. Chicago & N. W. Ry. Co., 118 Iowa, 317, 91
N. W. 1078, holding proceeding prior to appeal being nature of an
Inquest, by appeal in District Court became " suit of civil nature **
and removable to Federal court.
Syl. 2 (X, 1117). Suit optional liability Joint or several.
Approved in Shaffer v. Union Brick Co., 128 Fed. 98, holding to
constitute Joint liability of master and servant for latter's negli-
gence, negligence must be actual, the master's concurring with
that of servant; Fogarty v. Southern Pac. Co., 123 Fed. 974, hold-
ing allegations of complaint alone determine whether or not an
action presents a separable controversy, entitling defendant to
removal; Smedley v. Smedley, 110 Fed. 258, holding plaintiff's
petition asserting complete title, or specific performance giving one
not a separable controversy, so as to allow removal' of cause- to
Federal court; Bates v. Carpentier, 98 Fed. 454, holding suit to
quiet title In State court, against several defendants to obtain
adjudication of all claims, is removable by defendant not of plain-
tiff's State; Colburn v. Hill, 101 Fed. 505, holding consolidation of
suit, after its removal to Federal court, with another suit between
some of same parties, Jurisdiction of court unaffected thereby.
Syl. 3 (X, 1117). Action against several defendants Joint, several.
Approved in M'Cormicli v. Illinois Cent. R. R., 100 Fed. 252,
holding defendant railroad is entitled to removal, ground of fraud
on court's Jurisdiction, though a citizen of plaintiff's State, is
Joined as defendant.
115 U. S. 45-51. 29 L. 348, GIVILLIN v. DONNELLAN.
Syl. 1 (X, 1117). Continuous valid location like Federal grant.
Approved in McKinley Creek Mining Co. v. Alaska United Min-
ing Co., 183 U. S. 572, 46 L. 335, 22 Sup. Ct. 87, holding location
of mining claim by an alien and rights thereto belonging, are
voidable, being free from attack except by the government; Tono-
pah & Salt Lake Min. Co. v. Tonopah Min. Co., 125 Fed. 414, hold-
ing monument established when claim was located never moved
by owner, he or his grantor entitled to mining patent, having same
boundaries; Bunker Hill, etc., Co. v. Empire State-Idaho, etc., Co.,
109 Fed. 545, holding application for mining claim patent. Impliedly,
if not expressly, asserts that location was upon land open to loca-
tion and prior to any other else; Tuolumne Cons. Min. Co. v. Maur.
134 Cal. 585. 66 Pac. 864, holding location of mining claim based
on discovery of mineral within the limits of another existing and
761 Notes on U. S. Reports. 115 U. S. 51-67
TaJid location is void; Calhoun Gold Min. Co. v. AJax Gold Min.,
etc., Co., 27 Colo. 24, 59 Pac. 616, holding overruling defendant's
motion to develop blind veins discovered in defendant's tunnel
within plaintiff's lines, was proper, such act being a trespass.
Syl. 2 (X, 1117). Adverse mining claims gives plaintiff title.
Approved in Lowry v. Silver City Gold & Silver Mining Co., 179
U. S. 198, 45 L. 152, 21 Sup. Ct 105, holding lessees are estopped to
contest rights of lessors and decision against lessee for making
new mining location, for that reason cannot be reviewed; Mc-
Culloch v. Murphy, 125 Fed. 154, holding burden of proving aban-
donment of mining claim, or assessment worl^ not done, subjecting
to relocation, rests on party asserting it.
Syl. 3 (X, 1118). Mine abandoned relocator gets locator's dis-
covery.
Approved in Crown Point Min. Co. v. Buck, 97 Fed. 465, holding
mineral discovery and location on public land vests within limits
every vein and apex extending downward vertically, whether sur-
face is all or part of tract; Silver City Min. Co. v. Lowry, 19 Utah,
349, 57 Pac. 13, holding lessees of mining ground in possession who
oust their lessors by relocating, setting up adverse title in them-
selves, forfeit all rights under the lease. See 87 Am. St Rep. 405,
note.
115 U. S. 51-56. Not cited.
115 U. S. 56-61, 29 L. 328, CRUMP v. THURBER.
Syl. 1 (X, 1119). No diversity of citizenship no removal.
Approved in Patterson v. Farmlngton St Ry. Co., Ill Fed. 203,
holding suit for specific performance of contract. It being nec-
essary to transfer stock in corporation books, corporation is neces-
sary party, but its citizenship may prevent removal; Colorado F. &
I. Co. V. Four Mile Ry. Co., 29 Colo. 94, 66 Pac. 903, holding mere
filing of removal petition does not ipso facto entitle party to removal,
but court addressed must determine whether grounds are sufficient
Distinguished in Lake St El. R. R. v. Zlegler, 99 Fed. 122, 123,
holding trustees, being merely formal, having no Interest in the
controversy, their Joinder did not deprive Federal court of juris-
diction, suit removable by individual defendants.
115 U. S. 61-^7, 29 L. 329, STEWART v. DUNHAM.
Syl. 1 (X, 1120). Federal jurisdiction over creditors' bills.
Approved in Marye v. Diggs, 98 Va. 756, 37 S. E. 317, holding
courts will not entertain suits by the commonwealth to enforce the
collection of taxes where there are statutes prescribing adequate
remedy for their collection.
115 U. 8. 67-102 Notes on U. 8. Reports. 762
115 U. 8. 67-69, 29 L. 346, BRHARDT ▼. HOGABOOBi.
Syl. 2 (X, 1122). Federal patent refirnlar on face valid.
Approved in King v. McAndrews, 111 Fed. 865, holding patent
of land within Jurisdiction of land department is imperyioas to
collateral attacks.
Syl. 3 (X, 1122). Secretary interior's land description conclnslve.
Approved in James v; Gerlnania Iron Co., 107 Fed. 601, holding
Federal land department Is quasi-Judicial tribunal invested with
authority to determine claims to public lands, and its patents are
impervious to collateral attacis; Small v. Lutz, 41 Or. 579, 69 Pac.
827, holding determination by secretary of interior on applicaticm
for patent that lands applied for were subject to homestead, was
conclusive against State conveyance under swamp land.
115 U. S. 69-78, 29 L. 316, THE CHARLES MORGAN.
Syl. 2 (X, 1123). Admiralty permits limendment of libeL
Approved in Gilchrist v. Chicago Ins. Co., 104 Fed. 571, hold-
ing an appeal in admiralty from District Court to Circuit Court* the
cause is to be tried de novo, as if no decree had been rendered.
Syl. 4 (X, 1124). Witness impeachable on controverted declara-
tion.
«
Approved in Kelly v. Stewart, 93 Mo. App. 57, holding witness
not impeachable on his controverted declaration until he has had
full opportunity for explanation and exculpation, If he desires to
make It.
115 U. S. 79-96. Not cited.
115 U. S. 96-102, 29 L. 350, WOLLBNSAK v. REIHER.
Syl. 2 (X, 1125). Laches prevent enforcing prior rights.
Approved in Eidison v. American Mutoscope, etc., Co., 127 Fed. 362.
holding defense that reissue is void on its face when compared with
original, may be raised and determined on demurrer, both imtents
being before the court; New Yorlt Security, etc., Co. v. Louisville,
etc., R. R., 97 Fed. 233, holding regarding the exchange of old for
new bonds, delay of nine years without reasonable excuse bars
right to enforce exchange, circumstances having materially changed.
Syl. 3 (X, 1125). Reissue must be made reasonable time.
Approved in Pelzer v. Meyberg, 97 Fed. 970, holding original
patent being absolutely void for any reason, an unexcused delay
of twelve years in applying for reissue constitutes such laches,
invalidating reissue.
Syl. 4 (X, 1125). Reissue delay question for court
Approved in United Blue-Flame Oil Stove Co. v. Glazier, 119 Fed.
159, holding delay of more than five years before applying for
Not
1 U, S. Reports. 115 0. S. 102-212
' mletakG, Invalidates i
relBsae on ground of Inadvertence c
uiUees epeclal drcumstancea excuse.
115 U. S. 102-116. 29 L. 311. FItASHER v. O'CONNOR.
Sjl. 5 (X. 112T). State's title to land like patent.
DlstingulHbed in Cosmos Eiploration Co. v. Gray Eagle, etc., Co.,
112 Fed. 12. boldlng Federal courts cannot entertain suit to de-
termine rlgbts or parties to land, contest between same parties
pending in land department
115 D. 8. 116-121. Not cited,
115 XJ. S. 122-136, 29 L. 3W, BUNCOMBE COUNTY v. TOMMET,
Syl. 1 (X, 1128). RnilroadB not subject to ordinary liena.
Approved Id National Foundry, etc.. Works v. Oconto City. etc..
Co., 113 Fed. 801, holdine pending Federal suit to establlab me-
chanic's lien, property remaining In derendant, does not affect
Jurisdiction of State court to foreclose morlgago on tbe property;
People, etc., v. Tax Comrs,, 174 N. Y. 442. 67 N. B. 75, lioldlng rigbt
granted a corporation to operate street railway, or to dc sonietbing
In such public bigbway, wblch would otherwise be a. trespass. Is
special franchise; Pittsburg T. Lab. v. Milwaukee Electric, etc..
L. Co.. Ill Wis. C41, 8C N. W. 594. holding lien may be enforced
against power-house of electric-light and street railway company.
supplying city when contract can be Tulfllled without power-house.
115 D. 8. 137-142. Not cited.
115 V. B. 143-150, 2B L. 357. SMITH t. WOOLFOLK.
Syl. 3 (X, 1120). Supplemental or amended bill requires notice.
Approved in In re Glass. 119 Fed. 511. holding speciflcations
opposing a bankrupt's discbarge, though entirely defective, may
be amended at the discretion of the court
115 U. S. 151-100, 29 L. 330, FHILLlPI v. PHILLIPE.
Syl. 3. (X. 1130). Trust repudiated limitations begin to run.
Approved In Benson v. Dempster, 183 lU. 309. 55 N. E. G55, hold-
ing heirs of alleged trustee claiming ownership of the trust prop-
erty, such was fenuDctation of trust, and limitations began to run
from such time: Newton v. Rebenock, 90 Mo. App. tHtj, holding
cestui iiue trust sul Juris precluded maintaining action against
trustee for breaches which he or she Induced trustee to commit, on
ground of waiving performance.
115 U. S, 163-188. Not cited.
115 V. 8. lSS-212, 29 L. 3GG, NORRINGTON v. WRIGHT.
Syl. 1 (X, 1131). Mercantile contracts time essence thereof.
Approved In Henderson v. McFadden, 112 Fed. 394, holding !f
time appears, on fair construction of contract, to be essence of
i
115 U. 8. 18S-212 Notes on U. 8. Reports. 764
•
same, the stipulations in regard to it will be held conditions
precedent; Recllands Orange Growers' Assn. ▼. Gorman, 161 Mo.
212, 61 S. W. 823, holding oranges shipped subsequently to con-
tracted time and accepted without protest, prices having fallen,
acceptance did not waive claim for damages, time of shipment
being warranty; Denton ▼. Mclnnis, 85 Mo. App. 556, holding time
being essence of contract, delay in shipment for fourteen days
was unreasonable delay, violative of contract and authorized defend-
ant to repudiate it
Syl. 2 (X, 1131). Descriptive subject-matter m^cantile contracts
usually warranty.
Approved in National Surety Go. v. Long, 125 Fed. 892, holding
one committing first substantial breach of contract cannot main-
tain an action against other contracting party for subsequent
failure of performance; Loudenback Fertilizer Go. v. Tennessee
Phosphate Go., 121 Fed. 305, holding substitution of acid phosphate
for rock previously used and contracted for, was a substantial
breach of the contract; Hull Goal, etc.. Go. v. Empire Goal, etc.. Go.,
113 Fed. 259, 260, holding the two words not being synonymous,
** suspended *' not meaning "postponed," the presumption is the
parties understood the meaning of the words used; Monarch Gycle
Mfg. Go. ▼. Royer Wheel Go., 105 Fed. 329, 330, holding contract
for sale and purchase of 2,000 bicycles at specified prices, monthly
shipments specified by purchaser, is an entire contract; St Louis,
etc.. Box Go. V. Hubinger, etc.. Go., 100 Fed. 599, holding contract
for 5,000,000 starch cartons, providing if vendee should "receive
some not up to sample" he should return them, "some" meant
small or inconsiderable number; McFadden v. Henderson, 128 Ala.
230, 29 So. 642, holding time is not essence of contract unless ex-
pressly made so, or naturally follows from the circumstances of
the particular case.
Distinguished in American Bonding & Trust Go. v. Baltimore &
O. S. W. R. R. Go., 124 Fed. 888, holding where clause in construc-
tion contract permits withholding of estimates to pay bonds, such
would not be breach of contract if not wrongful.
Syl. 3 (X, 1132). Separate shipments not necessarily severable
contract
Approved in In re Stem, 116 Fed. 606, holding petition for In-
voluntary bankruptcy maintainable where contract for furnishing
1,000 tons ice a year at $60 was broken, excess of $90 per ton being
charged; Bucki & Son L. Co. y. Atlantic L. Go., 109 Fed. 415, hold-
ing contract is entire, calling for monthly shipment of logs for
period of eight years, though breaches of minor stipulations might
warrant suit for damages; Grane v. Grane & Go., 105 Fed. 873,
holding failure of plaintiffs to pay, within customary period, the
price of each delivery did not avoid contract until defendants dis-
tinctly attempted rescission; Eastern Forge Co. v. Gorbin, 182 Mass.
765 Notes on U. S. Reports. 115 U. S. 188-212
692, 66 N. B. 420, holding seller's rescission of contract for sale of
iron, buyer not paying previous shipment, acceptance of check
after rescission not a waiver of breach.
Syl. 4 (X, 1132). Separable shipments must each be substantial.
Approved in Browne v. Paterson, 165 N. Y. 466, 470, 59 N. E.
298, 299, holding from facts and technical construction the words
"bought to be a March and or April shipment" did not bind plain-
tiff to ship goods during those months.
SyL 5 (X, 1132). '* More or less " equals slight variations.
Approved in Pine River Logging & Improvement Co. v. United
States, 186 U. S. 289. 46 L. 1169, 22 Sup. Ct. 924, holding contracts
to deliver certain quantity of dead timber do not authorize cutting
large excess, because of the words ** about " or " more or less;"
Pittsburgh Plate Glass Co. v. Kerlin Bros. Co., 122 Fed. 416, hold-
ing designated quantity contracted for, part delivered, seller may
recover value of goods delivered less damages for failure to per-
form entire contract; Phenix Ins. Co. v. Guarantee Co., 115 Fed.
970, holding answers in application to surety company for bond
for cashier's faithful performance of duty, being substantially
true, same not a warranty; Kaukauna, etc., Co. v. Kaugauna, 114
Wis. 341, 89 N. W. 546, holding franchise to electric company, wires
to be buried and lights furnished at certain price, in suit city
cannot counterclaim, wires unburied.
Distinguished in Kauffman v. Raeder, 108 Fed. 180, 181, holding
party to contract receiving and retaining benefits of substantial
partial performance cannot rescind, but must perform his part,
obtaining damage for the breach; West v. Bechtel, 125 Mich. 164,
84 N. W. 76, holding plaintiff's refusal to pay for third car-load
until more was delivered was not breach Justifying repudiation of
entire contract.
Syl. 6 (X, 1133). Whole contract rescinded first shipment in-
adequate.
Approved in Williams Cooperage Co. v. Scofield, 115 Fed. 123,
holding defendants contracting to supply plaintiffs with all new
barrels needed during certain year, implication was to supply bar-
rels necessary to their business; Hull Coal, etc., Co. v. Empire
Coal, etc., Co., 113 Fed. 262, holding party suing for breach of
contract containing mutual dependent agreements must show a
performance on his part; Rice v. Fidelity, etc., Co., 103 Fed. 433,
holding insurance warranty is part of contract, agreement that
facts stated by applicant are true, and a condition precedent to
recovery upon it; Johnson Forge Co. v. Leonard & Co., 3 Pennew.
(Del.) 347, 94 Am. St. Rep. 90, 51 Atl. 307, holding where payment
is to be made for each 100 tons of iron when shipped. It is clearly
the intention that seller may rescind if buyer defaults; National
Machine, etc., Co. v. Standard, etc, Co., 181 Mass. 279, 63 N. E.
U5 U. S. 21&-227 Notes on U. S. Reports. 7eo
901, holding contract being that prompt payment be made npon
shipment, the nonjmyment of twelve days was a breach justifying
rescission.
Distinguished in Leonard & Co. v. Johnson Forge & Co., 8
Pennew. (Del.) 107, 50 Atl. 542, holding defendants contracting for
300 tons of iron agreeing to pay '* on receipt of each 100 tons " and
refusing to remit, plaintiffs relieved from further delivery.
(X, 1131). Miscellaneous.
Cited in KaufTman v. Raeder, 108 Fed. 188, holding commercial
contracts must be interpreted in light of commercial usages, per-
formance being as business men would naturally contemplate.
115 U. S. 213-221, 29 L. 372, FILLBY v. POPE.
Syl. 1 (X, 1134). Desciiptive statements are warranties mer-
cantile contracts.
Approved in National Surety Co. v. Long, 125 Fed. 892, holding
covenant to notify surety of default of his principal immediately is
not performed by mailing notice eleven days after known default;
Phenix Ins. Co. v. Guarantee Co., 115 Fed. 970, holding answers
in application to surety company for bond for cashier's faithful
performance of duty, being substantially true, same not a warranty;
Rice V. Fidelity, etc., Co., 103 Fed. 433, holding surety is discharged
if a condition known to the obligee, upon which the surety agreed
to be bound, is not complied with.
Syl. 2 (X, 1134). " Shipped from Glasgow " bars other ports.
Approved in Hull Coal, etc., Co. v. Empire Coal, etc., Co., 113
Fed. 259, holding the two words not being synonymous " sus-
pended " not meaning " postponed," the presumption is the par-
ties understood the meaning of the words used; Denton v. Mclnnis,
85 Mo. App. 556, holding time being essence of contract, delay of
shipment for fourteen dfiys as unreasonable delay, violative of
contract, authorizes defendant to repudiate it
115 U. S. 222-227, 29 L. 373, LANCASTER v. COLLINS.
Syl. 1 (X, 1134). Judgment not reversed error unprejudicial.
Approved in Oil Well Supply Co. v. Hall, 128 Fed. 879, holding
bankruptcy proceedings being tried, upon merits within court's
discretion, verdict being merely advisory, order of dismissal not
reversible on appeal because of informal procedure; American Nat.
Bank ▼. Watkins, 119 Fed. 556, holding judgment will not be re-
versed for technical errors in rulings on the admission of evidence
which were not prejudicial; Louisville, etc., R. R. v. White, 100
Fed. 243, holding admission of immaterial or irrelevant evidence
not sufficient ground for reversing judgment, where plaintiff In
error was not injuriously affected thereby; dissenting opinion in
Missouri, etc., Ry. v. Byrne, 100- Fed. 366, majority holding proxi-
767 Notes on U. S. Reports. 115 U. 8. 22&-250
mate cause of an injury ordinarily question for Jury, their finding
being conclusive, except reasonable men would draw different
conclusion.
Syl. 2 (X, 1135). Closing argument one of practice.
Approved In Florence Oil, etc., Co. v. Farrar, 109 Fed. 257, hold-
ing it Is well seitJed in Federal courts that determination of the
right to open and close a case rests largely in sound discretion of
trial court.
Syl. 3 (X, 1135). Weight of evidence unreviewable on. error.
Approved in West v. East Coast Cedar Co., 113 Fed. 739, holding
cause tried In Circuit Court without Jury, by stipulation, no special
finding made, appellate court accepts general finding as conclu-
sive upon all facts; Glasler v. Nichols, 112 Fed. 878, holding wit-
ness* valuation of mine properly rejected, he having seen but the
surface dirt, and would not purchase same without going into and
examining It; Amos v. Stockert, 47 W. Va. 126, 34 S. E. 828, hold-
ing court making order respecting plea may, in its discretion at
subsequent term, allow same, it appearing to have been improperly
rejected.
115 U. S. 228-247, 29 L. 384, VAN WBEL v. WINSTON.
Syl. 1 (X, 1135). Mere words not breach of trust
Approved in Stratton's Independence ▼. Dines, 126 Fed. 978,
holding facts pleaded In answer which tend to negative the falsity
of representations alleged in the complaint are proper matters of
defense; Lockhart v. Leeds, 10 N. Mex. 598, 63 Pac. 53, holding a
demurrer only admits facts well pleaded and not allegations of
legal conclusions; Knowles v.* New York, 176 N. Y. 437, 68 N. E.
862, holding In stating cause of action based on fraud, facts and
Intents must be so alleged that court can determine whether
fraudulent or not.
Syl. 5 (X, 113G). No privity between railroad president and bond
purchasers.
Approved in Edwards v. Mercantile Trust Co., 124 Fed. 390, hold-
ing In action by stockholder against corporation and another to set
aside alleged fraudulent agreement, not condition precedent to re-
turn property, corporation refusing suing upon demand.
115 U. S. 248-259. 29 L. 388, STARIN v. NEW YORK.
Syl. 1 (X, 1136). Two constructions, one upholding Constitution
favored.
Approved in Bankers*, etc., Co. v. Minn, etc., Ry., 192 U. S. 381,
386, 24 Sup. Ct. 328, 330, holding suit against railway for negligently
losing registered package is not one Involving Federal question,
where plaintlflP relied on principles of general law; South Carolina
T. Virginia-Carolina, etc., Co., 117 Fed. 728, holding plalntirs
115 U. S. 200-307 Notes on U. S. Reports. 768
pleading, by clear and cocessary intendment, determines whetfier
there is a Federal question involved, justifying a removal of the
cause; People v. Sanitary Dist. of Chicago, 98 Fed. 150, holding it
appearing from allegations of bill that Federal question forms an
ingredient, cause is removable though other questions are Involved;
State V. Frost, 113 Wis. 048, 89 N. W. 920, holding Federal receiver
is restrainable both in Federal and State courts, and removal not
objected to on ground of inadequate relief in Federal court,
Syl. 2 (X, 1138). Ferry between " M." and " S." not Federal
question.
Approved in McMullen v. Bowers, 102 Fed. 500, holding question
of infringement being dependent entirely on the construction of
the contract, parties being of same State, Federal courts have no
jurisdiction; Carleton v. Bird, 94 Me. 188, 47 Atl. 155, holding suit
to enforce a contract of which a patent is the subject-matter, case
arises on the contract, not under patent laws of United States.
Syl. 4 (X, 1138). Defendant's separate defense not separate
controversy.
Approved in Golbum v. Hill, 101 Fed. 505, holding consolidation
of suit after its removal with another between some of same par-
ties, subsequently commenced in same court, cannot affect court's
jurisdiction over suit removed,
115 U. S. 260^263. Not cited.
115 U. S. 2G4-284, 29 L. 377, HENDERSON v. WADSWORTH.
Syl. 1 (X, 1139). Amount in appeal amount of judgment.
Approved in Chamberlain v. Browning, 177 U. S. 608, 44 L. 908,
20 Sup. Ct. 822, holding separate and distinct claims of attachment
creditors cannot be united for jurisdictional amount on appeal unless
they jointly assert their claims.
115 U. S. 285-288, 29 L. 391, MOSES v. WOOSTBR.
Syl. 1 (X, 1140). Deceased's representative may appear on
appeal.
Approved in Jameson v. Bartlett, 63 Nebr. 640, 88 N. W. 861,
holding one of several parties to suit dies, in pending action in
court on error, right of action surviving is enforceable without bring-
ing representative into case.
115 U. S. 288-299. Not cited.
115 U. S. 300-307, 29 L. 403, MERRICK'S EXECUTOR ▼. GiD-
DINGS.
Syl. 1 (X, 1141). Instruction verdict like demurrer to evidence.
Approved in New YorJc, etc., Co. v. Pabst Brewing Co., 112 Fed.
383, holding on plaintiff's motion to instruct the jury, court con-
709 Notes on U. S. Reports. 115 U. S. 308^339
slders all facts established by evidence and all fair and reasonable
inferences drawn therefrom.
115 U. S. 308-321, 29 L. 398, SMITH v. BLACK.
SyL 1 (X, 1141). Sale valid though trustee is absent
See 92 Am. St Rep. 595, note.
Syl. 2 (X, 1141). Creditor may purchase at sale.
Approved in McMullan v. Harris, 110 Ga. 83, 78 Am. St Rep.
103, 35 S. E. 338, holding one entitled to proceeds of land may
engage a third party to run property up to specified price, owner
taking same ofT bis hands. See 92 Am. St Rep. 581, note.
115 U. S. 321-339, 29 L. 414, KENTUCKY RY. TAX CASES.
SyL 1 (X, 1141). Taxation not judicial requiring notice.
Approved in Glldden v. Harrington, 189 U. S. 259, 260, 23 Sup.
Ct 576, 47 L. 801, 802, holding due process not violated, State
statute requiring personalty held In trust assessable to trustee,
regarding the furnishing of lists to the assessor; Central Pac. Ry.
Co. V. Evans, 111 Fed. 76, holding act requiring valuation of prop-
erty by classification, board of assessors cannot designate railroad
by name and by vote fix the valuation per mile; State v. Smith,
158 Ind. 556, 63 N. E. 30, 64 N. E. 18, holding Horner's Rev. Stat
1901, § 627a, providing ccitain deductions from assessed valuation
relative to mortgages does not contravene Const, art. 10, i 1; Jacls-
sonv. Corporation Commission, 130 N. C. 421, 42 S. E. 135. holding
laws fixing method of assessing physical property and the fran-
chises of railroads is not discretionary, but may be compelled by
mandamus; Blue Jaclcet, etc.. Coffee Co. v. Scherr, 50 W. Va. 551,
40 S. E. 522, holding tender or offer to pay is condition precedent
to granting an injunction to stay collection of taxes as are conceded
to be due. See 04 Am. St. Rep. 622, note.
Syl. 2 (X, 1142). Taxation notice is "due process."
Approved in Lander v. Mercantile Nat Banli, 186 U. S. 468, 46
L. 1253, 22 Sup. Ct 912, holding board of equalization stating time
and place of first meeting, regarding incorporated banlcs, sufficient
notice to all affected by its action; Nevada Nat Banis v. Dodge,
119 Fed. 63, holding stockholders of national bank are required to
take notice of the law of State providing for assessment and taxa-
tion of their shares; Underground R. R. v. New York, 116 Fed. 960,
holding railroad having met the legal requirements, an acquired
franchise to construct line has a property right divested only by
due process of law; Hubbard v. Goss, 157 Ind. 489, 62 N. E. 38,
holding board of review equalizing tax by raising valuation of
division of township, no notice was necessary other than that in
gection 6307, Burns' Rev. Stat. 1901; Territory v. Bank of Albu-
Vod 11 — 49
115 U. S. 339-352 Notes on U. 8. Reports. 770
querque, 10 N. Mex. 305, 65 Pac. 177, holding date fixed for meeting
territorial board of equalization gives taxpayers notice to defend
their interest, and no other notice is necessary; Carroll v. Alsup,
107 Tenn. 278, 64 S. W. 198, holding Acts 1899, chap. 435, Tenn.,
stating exact time when board of equalization will meet, no other
notice is required to be made. See 94 Am. St Rep. 622, note.
Syl. 3 (X, 1143). Taxation methods different for classes.
Approv(»d in Weyerhaueser v. Minnesota, 176 U. S. 557, 44 L.
586. 20 Sup. Gt 488, holding former assessments grossly under-
valued, reassessment making property bear same burden It should
have borne at first, is constitutional under Fourteenth Amendment;
Peacock & Co. v. Pratt, 121 Fed. 776, holding the manner of taxa-
tion with respect to each class is left to the legislative discretion,
and Fourteenth Amendment of Constitution is violated thereby;
Cincinnati, etc., Ry. Co. v. Cincinnati, 62 Ohio St. 474, 57 N. B.
232, holding compensation paid to landowner for lands taken fora
street cannot be assessed back upon owner's land remaining after
such taking; Condon v. Maloney, 108 Tenn. 90, 65 S. W. 873, hold-
ing statute operating upon all counties in like condition, the classi-
fication not being arbitrary, the same is not class legislation.
115 U. S. 339-348, 29 L. 432, KNICKERBOCKER, ETC., INS. CO.
V. PENDLETON.
Syl. 1 (X, 1144). Citation below imperfect, new citation allowed.
Approved in Fltzpatrick v. Graham, 119 Fed. 354, holding Circuit
Court of Appeals has jurisdiction to review Joint Judgment against
defendants in ejectment, all being Joined in writ, or Interests
appearing In record.
Syl. 4 (X, 1144). After long lapse duties presumed performed.
Approved in Iowa Life Ins. Co. v. Lewis, 187 U. S. 353, 23 Sup.
Ct. 132, 47 L. 213, holding life insurance policy is forfeited, without
any affirmative act of company, by failure to pay at maturity of
note given for the premium.
115 U. S. 34^-552, 29 L. 412, SARGENT v. HELTON.
Syl. 1 (X, 1144). Bankruptcy Court's confirmation of sale con-
clusive.
Approved in Texas Cotton Products Co. v. Starnes, 128 Fed. 1B5,
holding though plaintiff instituted new suit on same cause of
action in State court after asking for and obtaining dismissal. Fed-
eral court cannot enjoin proceedings; Mills v. Provident, etc., Trust
Co., 100 Fed. 347, holding levy and sale under an execution Is a
"proceeding" within Rev. Stat, § 720, prohibiting Federal courts
to stay "proceedings In any State court;" James v. Central Trust
Co., 98 Fed. 494, holding Federal Circuit Court Is not prevented by
Rev. Stat., § 720, from enjoining proceeding in State court, where
771 Notes on U. S. Reports. 115 U. S. 35^-373
necessary to render effective its own decree; Leathe v. Thomas, 97
Fed. 139, holding under Rev. Stat., § 720, Federal court cannot
enjoin sheriff collecting execution lawfully issued to him in pur-
suance of a decree.
Distinguished in Stewart v. Wisconsin Cent. Ry. Co., 117 Fed.
784, holding Rev. Stat., § 720, does not prevent Federal court from
enjoining proceedings in State court for the protection of its own
previously acquired Jurisdiction.
115 U. S. 353-3a3. 29 L. 406, WATTS v. CAMORS.
Sjl. 1 (X, 1145). Certain tonnage " thereabouts " not condition
precedent
Approved in Pine River Logging & Improvement Co. v. United
States, 186 U. S. 289, 46 L. 1169, 22 Sup. Ct. 924, holding contracts
to cut and deliver certain quantity of dead timber, large excess need
not be cut because quantity was designated "about" or **more
or less.**
Syl. 2 (X, 1145). Federal courts enforce general admiralty law.
Approved in Pacific Coast Co. v. Anderson, 107 Fed. 977, holding
subcharterer for valuable consideration, having right to collect all
freights and apply to disbursements under charter, it was equitable
assignment of freights recoverable in admiralty.
Syl. 3 (X, 1145). Charterer's penal sum means damage.
Approved in Sun Printing & Publishing Assn. ▼. Moore, 183 U.
S. 660, 664, 46 L. 377, 378, 22 Sup. Ct. 248, 249, holding whether
particular stipulation to pay sura of money is to be treated as
penalty or agreed ascertainment of damages, determinable by the
contract.
(X, 1145). Miscellaneous.
Cited in The Eliza Lines, 114 Fed. 313, holding vessel excusably
abandoned at sea, saved by salvors, and cargo-owners prevent re-
sumption of voyage, shipowner equitably entitled to compensation
for loss of freight
115 U. S. 363-373, 29 L. 393, POPE v. ALLIS.
Syl. 3 (X, 1146). Verified pleading evidence in subsequent suit
Approved in Tague v. John Caplice Co., 28 Mont 58, 72 Pac. 299,
holding admission of evidence in chief for disproving affirmative
defense contained in defendant's answer, which would have been
proper in rebuttal, was not error.
Syl. 5 (X, 1146). Sale nonexisting matter — Condition needing
performance.
Approved in Star Brewery Co. v. Horst, 120 Fed. 247, holding
contract to sell c*;rtain quality hops to be grown five years after
contract, is agreement to sell and purchase in future, damages lying
115 U. 8. 87oHU)7 Notes on U. S. Reports. 772
for breach; Rhelnstrom v. Stelner, 69 Ohio St 459, 69 N. E. 747,
holding certain specific goods contracted for and nonconforming
goods delivered which are Immediately refused on examination,
notice to that effect, buyer need not manually return them.
Syl. 7 (X, 1147). Inferior goods may be rejected.
' Approved In Little Rock Grain Go. v. Brubaker, etc., Go., 89 Mo.
App. 10, holding where purchaser rejects goods because of their
inferior quality, he may recover back the contract price paid in
advance.
(X, 1146). Miscellaneous.
GIted in Town of Weston ▼. Ralston, 48 W. Va. 187, 36 S. E
453, holding public easement once being lawfully established ovei
land for public highway, such easement is good against any and
aU tlUes.
115 U. S. 873-392. Not cited.
115 U. S. 392-407, 29 L. 423, DBPFEBAGK ▼. HAWKB.
Syl. 2 (X, 1149). No pre-emption on mineral land.
Approved in United States v. Peuschel, 116 Fed. 648, holding
persons guilty of conspiracy against Federal government, who home-
stead public mineral lands, such patent not being void; Teller v.
United States, 113 Fed. 279, holding locator having exclusive rlghl
to occupy and work a mineral claim, under Rev. Stat, i 2461, he
cannot cut timber thereon; Olive Land, etc.. Go. v. Olmstead, 103
Fed. 577, holding location of oil placer claim of public lands, no
discovery of oil having been made, vests locators with no rights
in such land; Alta M. & S. Go. v. Benson, etc.. Go., 2 Ariz. 360,
870, 371, 16 Par. 568, 569, holding measure of damages for the
wrongful extraction of ores from a mine is the value of the ore
•
on the dump, less cost of hoisting; Kansas GIty M., etc., Go. v. Glay.
8 Ariz. 331, 332, 29 Pac. 11, 12, holding by virtue of Rev. Stat.
U. S., i 2258, in ejectment defendant may show that at time of
final proof in pre-emption, gold mines thereon were worked prior
thereto; Standard Quicksilver Go. v. Habishaw, 132 Gal. 121, 64 Pac.
116, holding not suflScient, in homesteader's action to quiet title
against subsequent mining claim, to show known mine at time of
execution of homestead patent; Gleary v. Skiffich, 28 Golo. 368, 65
Pac. 61, 89 Am. St Rep. 211, holding Rev. Stat U. S., § 2337, does
not entitle an independent millowner to patent a mill site located
on mineral lands.
Syl. 3 (X, 1149). '* Mineral lands ** means those having quantity-.
Approved in Gosmos, etc.. Go. v. Gray, etc.. Go., 104 Fed. 47,
holding land department determines whether the lands are to be
considered " mineral " or '* nonmineral " according to use for which
they are the more valuable.
773 Notes on U. S. Reports. 115 U. S. 392-407
Syl. 4 (X, 1150). Agricultural title not invalidated, mineral
discovery.
Approved In Reilly v. Berry, 2 Ariz. 274, 275, 15 Pac. 27, 28,
holding where patent to town site and patent to mining claim con-
flict, that one will be sustained which first vests the right
Distinguished in Moran v. Horsliy, 178 U. S. 208, 44 L. 1039, 20
Sup. Ct. 858, holding State court's decision sustaining defense of
laches of fourteen years against claiming mine, probate Judge
meanwhile getting apparent title as town site, no Federal question.
Syl. 5 (X, 1150). Entry precludes government selling mining land.
Approved in Neilson v. Campagne Mining, etc., Co., 119 Fed. 125,
holding stranger cannot acquire rights to mining claim after an-
other makes application for patent and he has paid for and re-
ceived certificate of entry; Cosmos Exploration Co. v. Gray Eagle,
etc., Co., 112 Fed. 11, holding Federal courts cannot entertain suit
determining rights of parties in land, title remaining in govei'nment,
same matter pending in land department; Olive Land, etc., Co. v.
Olmstead, 103 Fed. 576, holding one paying purchase price or per-
forming all requisite conditions, entitling him to patent has equi-
table title, right to patent being defeated only by land department;
Bash V. Cascade Min. Co., 20 Wash. 53, 54, 69 Pac. 403, holding
vendee cannot refuse deed of mining claim where vendor has paid
for claim and government has issued certificate, though patent is
not yet issued.
Syl. 0 (X,, 1151). Mineral patent relates back to inception.
Approved In Teller v. United States, 117 Fed. 581, holding pay-
ment of price vested in ** M." the equitable title to the land by
relation to date of application, including ties cut therefrom there-
after. See 76 Am. St. Rep. 480, note.
Syl. 7 (X, 1151). Only terms of conveyance in patent.
Approved In Frazee v. Spokane Co., 29 Wash. 283, 69 Pac. 781,
holding no government ofiicer has power to dispose of public lands
without congressional authority and he cannot waive conditions
imposed by Coni^ress.
Syl. 9 (X, 1152). No color of title without instrument.
Approved In Power v. Sla, 24 Mont. 250, 61 Pac. 471, holding
under Rev. Stat. U. S., § 2324, relocater must not only show that
$100 of work and labor were not done, but must negative that
amount In Improvements.
Syl. 10 (X, 1152). Adverse holding must be good faith.
Approved In Lindt v. Uihlein, 116 Iowa, 55, 89 N. W. 216, holding
payment of taxes and making improvements does not constitute
color of title entitling claimant to compensation, possession and acts
not being in good faith; Pendo v. Beakey, 15 S. Dak. 357, 89 N. W.
115 U. S. 408-453 Notes on U. S. Reports. 774
G60« holding actual possession under bona fide claim of title bj
defendant was such color of title that he need not show paper
title to recover.
115 U. S. 408^13, 29 L. 428, SPARKS v. PIERCE.
Syl. 1 (X, 1152). Patent evidence legal requirements performed.
Approved in Johnson v. Fleutsch, 176 Mo. 464, 75 S. W. 1008,
holding assignee of land warrant legally delivering same to register
of land office, not responsible for latter*s neglect to report location
to general land office.
Syl. 2 (X, 1153). Mere occupancy gives no vested rights.
Approved in Cosmos Exploration Co. v. Gray Eagle, etc., Co.,
112 Fed. 21, holding land is not ** vacant and open to settlement '*
where its mineral character is established, while legal and equi-
table titles remain in government See 76 Am. St. Rep. 479, note.
Syl. 3 (X, 1153). Party proving title relieves against patent.
Approved in Olive Land, etc., Co. v. Olmstead, 103 Fed. 573,
holding location of oil claim, no discovery of oil being made, does
not preclude another subsequently acquiring title thereto by any
legal means prior to discovery; Standard Quicksilver Co. v. Habi-
shaw, 132 Cal. 119, 64 Pac. 115, .holding patent of land department
is conclusive as to the character of the land, in the absence of
fraud, mistake, or imposition; Jopl'ing v. Chachere et al., 107 La.
528, 32 So. 245, holding confirmation by Congress being like grant
from government, ownership of confirmee to the land was not held
in abeyance until a patent issued.
115 U. S. 413-429. Not cited.
115 U. S. 429-439, 29 L. 419, BACHUS v. BROOMALL.
Syl. 1 (X, 1154). Original patent interpreted in a comparison.
Approved in Parsons v. New Home Sewing Machine Co., 125 Fed.
387, holding prior patent, though not pleaded as an anticipation,
may be shown on question of infringement as part of the prior
act to limit claims.
115 U. S. 439-453, 29 L. 440, GIBSON v. LYON.
Syl. 5 (X, 1155). No claiming under and denying deed.
Approved in McNaughtou v. Burke, 63 Nebr. 707, 89 N. W. 276,
holding conveyance of realty subject to mortgage is conveyance of
80 much property only as is not required to satisfy the debt
Syl. 6 (X, 1155). Erroneous judgment will not invalidate sale.
Approved in National Nickel Co. v. Nevada Nickel Syndicate, 106
Fed. 126, holding Federal court following State statute with refer-
ence to the sale, and did not conform to act March 3, 1803, as to
notice did not render sale void. See 96 Am. St. Rep. 136^ note.
775 Notes on U. S. Reports. 116 U. S. 454-505
115 U. S. 454-464. Not cited.
115 U. S. 465-4G9, 29 L. 445, LEONARD v. OZARK LAND CO.
Syl. 1 (X, 1156). Final decree injunction good on appeal.
Approved in New River MIn. Co. v. Seeley, 117 Fed. 982, holding
appeal granted from order dissolving an injunction, supersedeas
bond given with approved security continues injunction in force
during appeal; Graham v. Conway, 82 Mo. App. .652, holding appeal
from Circuit Courtis Judgment dissolving temporary prohibition
order against execution of Justice's Judgment, not operative as
supersedeas, preventing execution and authorizing punishment for
contempt
Syl. 3 (X, 1156). Final decree injunction continuing appeal allow-
able.
Approved in Green Bay, etc., Co. ▼. Norrie, 128 Fed. 897, holding
injunction of Judgment of State court being prohibitive, not man-
datory, it was not suspended by supersedeas bond on appeal to
Federal Supreme Court; Green Bay & M. Canal Co. ▼. Norrie, 118
Fed. 924, holding damages sustained by appellee by violation of
injunction pending appeal not being result of supersedeas bond
cannot be recovered in an action thereon.
115 U. S. 469-476, 29 L. 446, ST. LOUIS, ETC.. RY. v. McGBB.
Syl. 1 (X, 1156). Condition broken public lands forfeited govern-
ment.
Approved In United States v. Northern Pac. Ry. Co., 177 U. S.
441, 44 L. 838, 20 Sup. Ct. 708, holding land granted to railroad does
not, ipso facto, revert to United States by mere failure to complete
road within period prescribed by Congress In grant; Utah, etc., R. R.
Co. ▼. Utah, etc., Ry. Co., 110 Fed. 890, holding continued life of
corporation depending on condition subsequent, nonperformance of
such not ipso facto forfeiture, being merely grounds therefor avail-
able by State.
Syl. 2 (X, 1157). Congressional forfeiture must clearly manifest
intention.
Approved in California Reduction Co. v. Sanitary Reduction
Works, 126 Fed. 43, holding consolidation act April 25, 1863, au-
thorizes supervisors of city and county of San Francisco to contract
for disposition of garbage by order without mayor's signature.
115 U. S. 477-487. Not cited.
115 U. S. 487-505, 29 L. 458, KURTZ v. MOFFITT.
Syl. 1 (X, 1158). Habeas corpus is a civil proceeding.
Approved in Hoadly v. Chase, 126 Fed. 823, holding proceeding in
competent State court to determine sanity of alleged person, be-
tween citizens of diCFerent States, Federal court will not determine
115 U. S. 505-523 Notes on U. S. Reports. 776
custody on habeas corpus; State v. Superior Court, 32 Wash. 146,
72 Pac. 1041, holding habeas corpus proceedings being in their
nature civil proceedings, appeal is ineffectual unices appeal bond Is
given as required by 2 Ballinger's Anno. Codes, § 6505.
Syl. 2 (X, 1158). Habeas corpus unremovable act March 8, 1875,
p. 498.
Approved in Campbell v. Waite, 180 U. S. 635, 45 L. 709, 21 Sup.
Ct. 020, reaffirming rule; Oregon R. & Nav. Co. v. Shell, 125 Fed.
981, holding Circuit Court cannot correct ambiguity In railroad
deed, nor restrain removal of gates at crossing in Inclosure thereof
rcrJty and damage not amounting to $2,000.
Distinguished in M'Kee v. Chautauqua Assembly, 124 Fed. 811,
holding Federal court has jurisdiction to restrain ultra vires acts
of nonstock corporation, where loss may be that of corporation's
property exceeding jurisdictional amount.
Syl. 3 (X, 1159). Criminal arrest in officer's presence.
See 84 Am. St Rep. 092, note.
Syl. 6 (X, 1159). Power army regulations from president.
Approved in In re Brodie, 128 Fed. 668, holding rules by secretary
of war for government of army presumed to be Issued under Presi-
dent's direction, though they do not expressly so state.
Syl. 7 (X, 1159). Military offender subject to military law.
Approved in In re Fair, 100 Fed. 152, holding criminal laws of
State cannot measure the care, judgment, and discretion exercised
by an army officer of United States in performance of his duty;
State V. Frost, 113 Wis. 643, 89 N. W. 918, holding ultimate authority
to decide conclusively on jurisdiction of Federal court or validity
of decrees or of Federal statute is in Federal courts.
115 U. S. 505-512, 29 L. 456, SHEPERD v. MAY.
Syl. 2 (X, 1160). Principal and surety matter mutual agreement.
Approved in Johns v. Wilson, 180 U. S. 448, 45 L. 617, 21 Sup. Ct.
448, holding failure to malie tenant party to foreclosure will not
relieve persons individually liable for the mortgage, if they are not
thereby prejudiced; Mulvane v. Sedgley, 63 Kan. 121, 64 Pac. 1043,
majority holding purchaser of mortgaged property, with consent of
mortgagee agreeing to pay the mortgage, suit is barred against
mortgagor if barred against purchaser.
115 U. S. 512-523, 29 L. 463, MISSOURI PAC. RY. v. HUMES.
Syl. 2 (X, 1161). State law constitutional within legitimate
sphere.
Approved In Parlas ▼. State, 159 Ind. 218, 64 N. E. 865, holding
statute is valid exercise of police power of State, in permitting the
granting of licenses to practice osteopathy, and excludes practice
magnetic healing; Gano v. Minneapolis & St L. R. R. Co., 114 Iowa,
777 Notes on U. S. Reports. 115 IT. S. 512-523
719, 87 N. W. 716, 89 Am. St. Rep. 397, holding Code, § 2007 (Iowa),
requiring railroad in exercising eminent domain to pay landowner
reasonable attorney's fees in condemnation proceedings is not class
legislation; Louisville & N. R. R. Co. v. Kire, 109 Ky. 791, 60 S. W.
706, holding £act th-at a statute maizes railroad companies liable in
certain cases, regardless of negligence, does not render it uncon-
stitutional; State V. Gregory, 170 Mo. 604, 71 S. W. 171, holding
Rev. Stat 1899, § 4226 (Mo.), not class legislation in malslng con-
tractor guilty of misdemeanor, he purchasing timber on credit for
one Job and fraudulently using same on another; Andrus v. In-
surance Assn., 168 Mo. 1G3, 67 S. W. 585, holding State court's
permitting plaintiff to prove waiver of insurance policy terms with-
out alleging waiver in petition, not a discrimination, all companies
treated alike; Simmons v. Telegraph Co., 63 S. C. 430, 41 S. B. 522,
holding act February 20, 1901 (S. C), authorizing actions against
telegraph companies causing mental anguish for negligence deliv-
ering telegram, not in violation of Fourteenth Amendment; New
Yorlt Life Inis. Co. v. Orlopp, 25 Tex. Civ. 292, 61 S. W. 341, holding
life insurance policy providing its construction to be by laws of
foreign State, provisions of statute applying thereto cannot be
waived by the parties; Julien v. Model B. L., etc., Assn., 116 Wis.
85, 92 N. W. 563, holding Rev. Stat 1898, §§ 2014-5 (Wis.), giving
mortgages of mutual associations priority over other Hens filed sub-
sequently thereto, not repugnant to Const. U. S., art 14, § 1.
Syl. 3 (X, 1162). Legislative damage may be beyond compensa-
tion.
Approved in Boston, etc., R. R. v. Hurd, 108 Fed. 121, holding
Pub. Stat Mass. 1882, chap. 112, § 212, being but penal in form, the
civil remedy in the alternative must be regarded as remedial au-
thorizing Federal action.
Syl. 4 (X, 1162). Imposition of penalties coeval with government.
Approved in City of Atlanta v. Chattanooga, etc., Co., 101 Fed.
905, holding action under anti-trust act July 2, 1890, is not action for
penalty or forfeiture under Rev. Stat, § 1047, but one for enforce-
ment of civil remedy for damages; Merchants' Life Assn. v.
Yoakum, 98 Fed. 265, holding amendments during trial may be
permitted in court's discretion, in furtherance of Justice, but refusal
is not error unless an abuse of discretion is shown; Craven v.
Bloomingdale, 171 N. Y. 447, 64 N. B. 171, holding instruction that
master was additionally liable for punitive damages if servant's
acts were malicious or master implicated with servant in causing
the arrest was erroneous.
Syl. 5 (X, 1163). Double damage denies no equal protection.
Approved in Florida, C. & P. R. R. Co. v. Reynolds, 183 U. S.
478, 46 L. 286, 22 Sup. Ct. 179, holding railroad not denied equal
115 U. S. 523-542 Notes on U. S. Reports. T!S
protection, Fla. Laws 1885, chap. 3558, requiring comptroller to
assess property omitted, general legislation requiring railroad per-
sonalty assessed by comptroller, realty by treasurer; Powell ▼.
Sherwood, 1G2 Mo. 619, 63 S. W. 488, holding statute does not
violate Federal Constitution, it neither depriving railroads of prop-
erty without due process, nor denies them equal protection; Kings-
bury V. Missouri, K., etc., Ry. Co., 156 Mo. 387, 57 S. W. 549, holding
Rev. Stat. 1889, § 2G11, imposing double damage on railroads for
injury to stock, due to insufficient right-of-way fences, is not re-
pugnant to Fourteenth Amendment.
115 U. S. 523-524, 29 L. 4G7, MISSOURI PAC. RY. v. TERRY.
(X, 1165). Miscellaneous.
Cited in Kingsbury v. Missouri, K., etc., Ry. Co., 156 Mo. 387, 57
S. W. 549, holding Rev. Stat. 1889, § 2611, imposing double damage
on railroads for injury to stock, due to insufficient right-of-way
fence, not repugnant to Fourteenth Amendment.
115 U. S. 524-^27, 29 L. 480, DAVIS SEWING MAOH. CO. V.
RICHARDS.
Syl. 2 (X, 1165). Guaranty offer requires other party's accept-
ance.
Approved in German Sav. Bank ▼. Drake Roofing Co., 112 Iowa,
187, 188, 83 N. W. 961, 962, holding In action on guaranty for pay-
ment of all indebtedness accruing to bank from certain principal
demand and notice of nonpayment not essential to recovery; Clinton
Bank v. Goldstein, 86 Mo. App. 519, holding guaranty signed by
guarantor at guarantee's request, or latter accepts time of signing,
giving consideration therefor, mutual consent makes same complete;
Standard Sewing Mach. Co. v. Church, 11 N. Dak. 422, 92 N. W.
806, holding instrument being an offer of guaranty, notice of accept-
ance not being given to defendants, they are not liable, and verdict
was properly directed for them.
115 U. S. 528-542, 29 L. 467, TRAER v. CLEWS.
Syl. 2 (X, 1165). Limitation bankruptcy fraud runs from dis-
covery.
Approved in McMullen v. Loan Assn., 64 Kan. 306, 91 Am. St
Rep. 242, 67 Pac. 894, holding officer misappropriating money In-
trusted to him, and fraudulently concealing defalcations, statute
begins to run from discovery; Smith v. Blachley; McCullough v.
Same, 198 Pa. St 175, 47 Atl. 985, holding statute commences to run
against action for money obtained by fraud when transaction is
completed by receipt of money, recipient doing no other act
Syl. 3 (X, 1166). Assignment for fraud against public policy.
Approved in Smith v. Pacific Bank, 137 Cal. 369, 70 Pac. 186.
holding right of action to have transfer of certain bonds by bank
779 Notes on U. S. Reports. 115 U. S. 642-598
directors to its president set aside is personal tor the banb:, and un-
assignable.
Syl. 5 (X, 1166). After adjudication, banlcrupt maj purchase from
assignee.
Approved in In re Le Claire, 124 Fed. 657, holding wife's claims
for alimony, not a property right, and property awarded as alimony
after her banljruptcy does not become part of bankrupt estate.
115 U. S. 542-550. Not cited.
115 U. S. 55(V-565, 29 L. 472, THOMPSON ▼. ALLEN COUNTY.
Syl. 1 (X, 1167). Legal inadequacy Justifies equitable interference.
Approved in Pond v. New York National Exch. Bank, 124 Fed.
993, holding action by bankrupt's trustee to recover payment of
bankrupt's prohibited preference, maintainable in equity though
there exists adequate legal remedy; Crawford County ▼. Laub, 110
Iowa, 359, 81 N. W. 591, holding equitable suit not maintainable
against landowner for delinquent mulct tax to enforce lien, remedy
by sale being adequate and exclusive.
Syl. 2 (X, 1167). Receiver cannot collect taxes satisfying Judg-
ment
Approved in Oampbellsville L. Co. v. Hubbert, 112 Fed. 721, 722,
holding act Ky. February 27, 1882, autliorizing court to assess and
collect tax to pay Judgment on county bonds, objections to inequali-
ties in assessment come too late after Judgment See 72 Am. St.
Rep. 95, note.
115 U. S. 566-576, 29 L. 495, EFFINGBR v. KBNNBY.
Syl. 2 (X, 1167). Time and place determine contract value.
Distinguished in Commissioners of Bartow Co. v. Conyers, 108
Ga. 561, 34 So. 352, holding under scaling ordinance of Georgia,
court erred in restricting evidence of value of Confederate money,
payment thereby made, to time of execution of contract
115 U. S. 577-579. Not cited.
115 U. S. 579-586, 29 L. 491, ARNSON v. MURPHY.
Syl. 2 (X, 1168). Recovery excess duties matter statutory con-
ditions.
Approved in Stern v. La Compagnie Generale, etc., 110 Fed. 1001,
holding action based on conditional statute, it is incumbent on plain-'
tiff to plead performance of such condition.
115 U. S. 587-598, 29 L. 499, PULLMAN CAR CO. v. MISSOURI
PAC. RY.
Syl. 1 (X, 1169). Consolidation bears obligations of the consoli-
dated.
Approved in New York Security, etc., Co. y. Louisville, etc, R. R.
115 U. S. 506^11 Notes on U. S. Reports. 780
Co., 102 Fed. 3M, 398, holding after acquired property clause in rail-
road mortgage cannot be construed to cover equipment acquired
by consolidated company as against mortgagee of such company;
Ulmer v. Railroad, 98 Me. 594, 57 Atl. 1007, holding corporation is
an entity irrespective of owners of its stock, and one pers<Hi owning
all stock does not make such owner and corporation same person;
Missouri, etc., Ry. v. Carter, 95 Tex. 483. 68 S. W. 168, holding new
corporation was bound by contract of the T. & S. Co. to maintain
and operate the side track. See 89 Am. St. Rep. 614, 617, 639, 641,
note.
Syl. 4 (X, 1169). Control of another railroad — EfTect on traffic
agreement
Approved in United States ▼. Northern Securities Co., 120 Fed.
726, holding State cannot invest corporation organized under its
laws with power to do acts in corporate name, operating to restrain
interstate commerce; Central Stock Yards Co. ▼. Louisville & N.
R. R. Co., 118 Fed. 119, holding State cannot compel railroad to
transfer cars of live stock to connecting road within State, ship-
ment received from another State being subject interstate com-
merce; Soutliem Pac. Co. v. Colorado Fuel, etc.. Co., 101 Fed. 780.
holding Supreme Court decisions conclusively determine interstate
commerce commission cannot fix rates of interstate freight, decree
of any court to contrary is without authority.
Distinguished in Chicago Union Traction Co. ▼. Chicago, 199 111.
638, 641, 65 N. E. 490, holding city ordinance fixing five-cent rate
for any distance, franchise covering two street divisions, company
can charge but one fare on the two divisions.
(X, 11G9). Miscellaneous.
Cited in Russell v. Pittsburgh, C, etc., Ry. Co., 157 Ind. 317, 61
N. E. 682, holding traveler being carried gratuitously or has not
paid his fare will not of itself deprive him of right of action, car-
rier's negligence injuring.
115 U. S. 598-600. Not cited.
115 U. S. 600-611, 29 L. 477, NORTHERN PAG. RY. v. TRAILL
COUNTY.
Syl. 2 (X, 1171). Equitable title must precede State taxation.
Approved in Stearns v. Minnesota ex pel. Marr, 179 U. S. 251, 45
L. 177, 21 Sup. Ct. 84, holding State accepting property as trustee, it
was not compelled to weaken that trust by subjecting the lands to
taxation; United States v. Losekamp, 127 Fed. 962, holding under
act Congress, July 2, 1864, chap. 217, United States could not recover
for timber cut, the land upon surveying, being odd-numbered sec-
tions within railroad grant; United States v. Milwaukee, 100 Fed.
829, holding so long as the United States retains legal title to prop-
V81 Notes on U. S. Reports. 115 U. S. 611-619
erty to secure payment purchase money State cannot tax same,
though government pays purchaser rent; Dry Dock Co. ▼. Baltimore,
97 Md. 99. 54 Atl. 624, holding property belonging Federal govern-
ment and conveyed to petitioner for dry-docli purposes, issuable
by government free, grantee liable for State taxation thereon;
Amett V. Smith, 11 N. Dale. 59, 88 N. W. 1039, holding to extinguish
obligations of written contract by accord and satisfaction, the accord
must be executed by delivery and reception if they agreed in satis-
faction; Abney v. State, 20 Tex. Civ. 105, 47 S. W. 1045, holding
under act April 9, 1881 (Texas), locator having located two surveys
could not secure patent till land commissioner selected one, land not
taxable until then; State v. Superior Court, 31 Wash. 453, 72 Pac.
91, holding though railroad has leased its property to another com-
pany, and owns no rolling stock, does not preclude its condemning
private property for corporate purposes; Page v. Pierce County, 25
Wash. 9, 64 Pac. 802, holding under 27 Stat 612 (Wash.), govern-
ment selling Puyallup Indian reservation, vendee not subject to
State taxation thereon prior to full payment of price.
115 U. S. 611-616, 29 L. 502. BOWMAN v. CHICAGO, ETC., RY.
Syl. 1 (X, 1172). Whole record determines Supreme Court Juris-
diction.
Approved in Magruder v. Amies, 180 U. S. 498, 45 L. 639, 21 Sup.
Ct 455, holding Jurisdiction cannot be vested in the Federal Su-
preme Court by a mere claim of damages, unsupported by facts;
Battle V. Atkinson, 115 Fed. 385, holding where there could not
legally be a Judgment for amount necessary to Federal Jurisdic-
tion, same cannot attach, though larger damages are laid; Greene
Co. Bank v. J. H. Teasdale C. Co., 112 Fed. 802, holding action for
recovery of money only, damages claimed determines the Jurisdic-
tion, unless declaration on its face is bad; Western Union Tel. Co.
V. White, 102 Fed. 707, holding no declaration having been filed in
first action, the Jurisdictional amount must be determined from de-
fendant's answer, and being but $1,500 Federal court is without
Jurisdiction; Chicago, etc., Ry. Co. v. Weaver, 112 Iowa, 103, 83
N. W. 700, holding District Court not bound to take Jurisdiction of
case appealed from Justice's court, it appearing counterclaim pleaded
below was fictitious.
115 U. S. 616-619, 29 L. 482, CLAY COUNTY v. McALEER.
Syl. 1 (X, 1173). Municipality tax levy cannot exceed maximum.
Approved in Village of Kent v. United States, 113 Fed. 237, 238,
holding Rev. Stat Ohio, § 2687, permits levying of an unlimited tax
authorized by vote of people, and hence municipal lack of funds
no defense to mandamus to pay Judgment, affirming United States
V. Kent, 107 Fed. 192, 193; City of Cleveland v. United States, 111
Fed. 348, holding city charter limiting total tax levy for any one
115 U. S. 620-634 Notes on U. S. Reports. 782
year, past deficiencies cannot be made up bj subsequent excess
over limitation.
115 U. S. 620-634, 29 L. 483, CAMPBELL y. HOLT.
Syl. 1 (X, 1173). Real owner barred by adverse possession.
Approved in Toltec Ranch Ck>. v. Cook, 191 U. S. 538, holding
adverse possession gives title to land together with the remedies
which attach as effectually as conveyance from owner; Lewis v.
New Yorlt, etc., R. R. Co., 162 N. Y. 224, 66 N. fi. 546, holding use
of property continuing over twenty years within plaintilTs and
grantor's l^nowledge constituted a right by prescription; Sutton v.
Claris, 59 S. C. 448, 38 S. E. 153, holding defendant's grantor having
held adverse possession of the land for ten continuous years only,
devisee under will would thereby acquire no title. See 95 Am. St
Rep. 671, note.
Syl. 2 (X, 1174). Prescriptive right perfected cannot be defeated.
Approved in Ireland v. Mackintosh, 22 Utah, 301, 61 Pac. 902,
holding § 3143, 2 Comp. Laws Utah 1888, bars note in four years,
and subsequent act of legislature increasing limitation has no effect
on action barred.
Syl. 3 (X, 1174). Running of statute vests absolute right
Approved in Kesterson v. Hill, 101 Va. 744, 45 S. E. 290. holding
under Code 1887, § 2920 (Va.), no attempt to collect obligor's bond
until seven years after his death the claim was barred.
Syl. 6 (X, 1174). Defense under limitations is not property.
Approved in Dunbar v. Boston, etc., R. R., 181 Mass. 386, 63 N. E.
917, holding act 1899 (Mass.), chap. 386, removing bar of limitations
so soon after it had run, where original time was so short, is not
unconstitutional; Dunn v. Beaman, 126 N. C. 770, 36 S. E. 173, hold-
ing children having notice sale of their land by father and guardian,
cannot claim sale proceeds of father's estate after limitation, though
he fraudulently concealed his indebtedness. See 95 Am. St Rep.
659, note.
Syl. 7 (X, 1175). Rights by limitation remain valid.
Approved in Evans-Snider-Buel Co. v. M'Fadden, 105 Fed. 299,
300, 306, holding provided adequate remedy remains, remedies which
are purely statutory, may be altered or abolished even after action
is instituted; Wheelock v. Myers, 64 Kan. 51, 54, 55, 67 Pac 633,
holding under § 7342, Gen. Stat. 1901 (Kan.), repeal of statute does
not affect right accrued, but party can have no vested right In rule
of evidence.
Distinguished in Danforth v. Groton Water Co.; Vale Mills v.
Same. 178 Mass. 476, 478, 59 N. E. 1033, 1034, holding a statute is
not unconstitutional in creating a liability where there was a good
defense existing.
783
Notes on U. S. Reports. 115 TJ. S. 634-073
115 U. S. 634^^9, 29 L. 505. BALT7.ER v. RALEIGH, ETC.. BY.
Syl. 1 IS. 11T5). Equity will reform frfludulent contract
Approved In Barker v. FuUnian's Palace Car Co,. 124 Fed. 570,
holding evidence that agents understood terms of written contract
differently from embodied terms, not mutual mistake of principals
ivarranHng reformation; Holton v. Davla. 108 Fed. 151. holding com-
plainant may obtain relief In equity against judgment ground of
fraud, proof being clear, distinct, and certain, circumstantial evi-
dence being valid If persuasive.
115 U. S. 6JO-G73. 29 L. 51G, NEW ORLEANS GAS CO. T. LOUIS-
IANA LIGHT CO.
SyL 2 (X. 11701. Gas conduits In street public ebaracter.
Approved In In re New York, etc., W. Co.. 98 Fed. 716, holding
corporation otherwise amenable to bankruptcy law not exempted
being quasi-public subserving public use If Its franchise Is assign-
DlBtingnished in Clarksburg Electric Light Co. v. City of Clarks-
burg, 47 W. Vn. 745. 35 S. B. 998, holding franchise by city to In-
tended corporation to use streets for public use is valid though cor-
poration is subsequently chartered and accepts granL
Syl. 4 (X, 1176). Granting exclusive rights precludes a re-
gran ting.
Approved in Lob Angeles t. Los Angeles City Water Co., 177
U. S. 57a, 44 L. 804, 20 Sup. Ct. 742, holding contract authorized
by existing State Constitution as then construed by highest court,
unaffected by subsequent changes in decisions, or adoption of new
Constitution: Boise City Artesian Hot, etc.. Cold Water Co. t. Boise
City, 123 Fed. 235, holding though city contracted from year to
year for water supply, and paid for same, gives company no right
to continued payment after contracts have expired; Anoka Water-
Works, etc., Co. V. Anoka, 109 Fed. 5S4, holding repealing ordi-
nances casting cloud upon water-works of complainant, equity haa
Jurtsdlctloc to aniul such, In the protection Insured by former ordi-
nance; Little Falls, etc., Water Co. v. Little Falls, 102 Fed. 667,
holding thirty years not unreasonable time for running of contract
for supplying city with water, erection and maintenance of ex-
pensive plant by other party involved; Mercantile, etc., Deposit Co.
V. Collins Park R. R., 101 Fed. 350, holding charter, having reserva-
tion, granted by city to street railway company, relative to use of
streets, constitutes contract between company and dty in that
respect; Hot Springs Electric Light Co. v. Hot Springs. 70 Ark.
303, 67 S. W. 762. holding franchise granted to electric light com-
pany which expended large sums In making Improvements, cannot
afterward be subjected to make compensation for the pole ground;
State V. Topeka Water Co., 61 Kan. 561. 60 Pac. 342, holding Kan.
i
115 U. S. G50-C73 Notes on U. 8. Reports. 784
statutes permit franchises denominated as "secondary/* Including
privileges granted to water company, to take toll, to be lawfully
alienated or incumbered; Slsaneateles W. W. Co. y. Village of
Slcaneateles, 161 N. Y. 166, 55 N. E. 565, holding it being optional
under Laws 1875, chap. 181 (N. Y.), whether water commissioners
acquire properties, existing water company cannot compel purchase
or condemnation of its property; Hamilton, etc.. Traction Co. ▼.
Hamilton, etc.. Transit Co., 69 Ohio St. 409, 69 N. E. 993, holding
city council, by ordinance, legally granting franchise for street rail-
way, company taking possession thereof, a subsequent grant of
no avail if interfering with first; Clarlssburg Electric Light Co. v.
City of Clariisburg, 47 W. Va. 742, 748, 35 S. E. 995, 997, holding
exclusive grant, being void, not valid contract protected by Federal
or State Constitution forbidding passage of laws impairing obliga-
tion of contracts; Allen v. Clausen, 114 Wis. 249. 90 N. W. 183, hold-
ing in suit by private individual equity cannot question municipal
proceedings granting franchise enjoyed in de facto, but may enjoin
franchise issued without authority.
Syl. 5 (X, 1179). General government unencroached upon by police
power.
Approved in Compagnie Frangaise v. State Board of Health, La.,
186 U. S. 388, 46 L. 1214, 22 Sup. Ct 815, holding no unconstitutional
regulation of commerce is made by La. Acts 1898, No. 192, § 8,
empowering State board of health excluding persons from locality
infected with contagious diseases; Austin v. Tennessee, 179 U. S.
376, 377, 45 L. 239, 21 Sup. Ct. 145, holding tobacco being subject to
Federal regulations and taxation, regarded article of commerce,
though to certain extent within police power of State; Odd Fellows'
Cemetery Assn. v. San Francisco, 140 Cal. 235, 73 Pac. 990, holding
San Francisco ordinance prohibiting interring dead bodies in any
cemetery within city is proper regulation not in conflict with general
laws.
Syl. 6 (X, 1180). Police powers preserve health and safety.
Approved in Dobbins v. City of Los Angeles, 139 Cal. 185, 72 Pac.
971, holding ordinance mailing it unlawful to erect and maintain
manufactory of gas, within certain limits, is legitimate exercise of
municipal police power; Fair Haven, etc., R. R. Co. ▼. Fair Haven,
75 Conn. 451, 53 Atl. 964, holding highway regulation is part of
State's police power, and street railway may be assessed to pay for
paving nine feet width for every tracl^ line; The Ten-Hour Law tor
St. Ry. Corporations, 24 R. I. 617, 54 Atl. 607, holdmg Pub. Laws,
chap. 1004 (R. I.), of April 4, 1902, limiting hours of certain street
railway employees, is within police power of legislature; KnoxviUe
V. KnoxviUe W. Co., 107 Tenn. 675, 679, 64 S. W. 1082, 1083. holding
absence of express legislative authorization, city could not bind
itself to a flxed water rate in derogation of its police power.
785 Notes on U. S. Reports. 115 U. 8. 674-683
Syl. 9 (X, 1181). State Ck>nstitution cannot impair contractual
obligations.
Approved in Freeport Water Co. ▼. Freeport, 180 U. S. 607, 608,
45 I^. 692, 21 Sup.. Ct 501, holding municipal corporations may 'be
invested by statute with power to bind themselves by irrevocable
contract not to regulate water rates; Mercantile, etc.. Deposit Co. v.
Collins Park R. R., 99 Fed. 817, 819, holding Georgia Constitution,
art 3, § 7, par. 20, prohibiting legislature authorizing construction
street railway without consent of corporate authorities, latter's
action creates State contract
(X, 1176). Miscellaneous.
Cited in Detroit v. Detroit Citizens' St R. R. Co., 184 U. S. 882,
22 Sup. Ct. 416, holding legislature, not prohibited by constitutional
provisions, may authorize municipality to contract with street rail-
way as to fares, binding during specified period; McConnell y.
Arkansas Brick Mfg. Co., 70 Ark. 580, 591, 593, 69 S. W. 563, 568»
569, holding contract by superintendent of penitentiary, approved
by penitentiary commissioners, to furnish convict labor, not invalid
though extending beyond officer's term.
115 U. S. 674-683, 29 L. 525, NEW ORLEANS WATER-WORKS
V. RIVERS.
SyL 1 (X, 1182). Use of streets franchise of State.
Approved in Skaneateles W. W. Co. v. Village of Skaneateles,
161 N. Y. 166, 55 N. E. 565, holding it being optional under Laws
1875, chap. 181, New York, whether water commissioners acquire
properties, existing water company cannot compel purchase or
condemnation of its property.
SyL 2 CK, 1182). City may grant exclusive water franchise.
Approved in Mercantile, etc., Deposit Co. v. Collins Park R. R.,
90 Fed. 816, 817, 819, 820, holding Ga. Const., art 3, § 7, par. 20,
prohibiting legislature authorizing construction street railway with-
out consent of corporate authorities, latter's action creates State
contract
Syl. 8 (X, 1183). Subsequent State legislation cannot impair
contract
Approved in Detroit v. Detroit Citizens* St R. R. Co., 184 U. 8.
382, 46 L. 606, 22 Sup. Ct 416, holding legislature, not prohibited by
constitutional provisions, may authorize municipality to contract
with street railway as to fares, binding during specified period;
Freeport Water Co. v. Freeport 180 U. S. 593, 607, 45 L. 686,
692, 21 Sup. Ct 496, holding municipal corporations may be in-
vested by statute with power to bind themselves by irrevocable
contract not to regulate water rates; Boise City Artesian Hot, etc..
Cold Water Co. v. Boise City, 123 Fed. 235, holding though citj
Vol. II — 50
115 U. S. 683-700 Notes on U. S. Reports. 786
contracted from year to year for water supply and paid for same,
fifives company no right to continued payment after contracts have
expire^; American, etc., Guarantee Co. v. Home Water CJo., 115
Fed. 179, holding city legally empowered to contract for water
supply and grant exclusive franchise to use Its streets for such
purposes, same is irrevocable during term; Moore v. New Orleans
W. Co., 114 Fed. 381, holding water mains and pipes, as laid in
public streets of New Orleans and forming part of water-works
system, are the property of water-worlts* company; Little Falls,
etc.. Water Co. v. Little Falls, 102 Fed. G67, holding thirty years
not unreasonable time for running of contract for supplying city
with water, erection and maintenance of expensive plant by other
party involved; Hot Springs Elect Light Co. v. Hot Springs, 70
Arlc. 303, 67 S. W. 762, holding franchise granted to electric-light
company which expended large sums in making improvements,
cannot afterward be subjected to malse compensation for pole
ground; Ben wood ▼. Railway. 53 W. Va. 478, 44 S. E. 277, holding
statutory requirement of notice to be given by publication for thirty
days in some newspaper of general circulation, sufficiently complied
with by weelily issues; Clarlisburg Electric Light Co. v. City of
Clarksburg, 47 W. Va. 745, 35 S. B. 996, holding franchise by city
to intended corporation to use streets for public use is valid though
corporation is subsequently chartered and accepts grant.
Syl. 4 (X, 1184). Exclusive privileges exclude police regulations.
Approved in Northwestern Tel. Exch. Co. v. City of Minneapolis,
81 Minn. 146, 83 N. W. 529, holding municipal council has undoubted
right of poiice power to order telegraph wires placed under ground,
if public interests require it; Knoxville v. Knoxville W. Co., 107
Tenn. 679, 64 S. W. 1083, holding absence of express legislative au-
tliorization, city could not bind Itself to a fixed water rate In deroga-
tion of its police power.
115 U. S. 683-700, 29 L. 510, LOUISVILLE GAS CO. v. CITIZENS'
GAS CO.
Syl. 1 (X, 1185). Exclusive privileges may be granted gas com-
pany.
Approved in Odd Fellows' Cemetery Assn. v. San Francisco, 140
Cal. 235, 73 Pac. 990, holding San Francisco ordinance prohibiting
Interring dead bodies in any cemetery within city is proper regula-
tion, not in conflict with general laws; Overshiner v. State, 156 Ind.
193, 59 N. E. 470, holding legislature having no constitutional author-
ity to confer police power on private corporation, Acts 1899, p. 479,
Indiana, regarding dental examiners is unconstitutional; Skaueateles
W. W. Co. V. Village of Skaneateles, 101 N Y. 167, 55 N. B. 565,
holding it being optional under Laws 1875, chap. 181, New York,
whether water commissioners acquire properties, existing water
787 Notes on U. S. Reports. 115 U. S. 683-700
company cannot compel purchase or condemnation of its property;
Clarksburg Electric Light Co. v. City of Clarksburg, 47 W. Va. 742,
35 S. B. 995, holding franchise by city to intended corporation to
use streets for public use is valid, though corporation is subsequently
chartered and accepts grant.
Syl. 2 (X, 1185). Constitutionality State contract determinable
Supreme Court
Approved in Stearns v. Minnesota ex rel. Marr, 179 U. S, 233, 45
L. 170, 21 Sup. Ct. 77, holding validity of State contract matter
upon which Federal Supreme Court exercises independent Judgment,
though it may lean toward State court's interpretation of its Con-
stitution; California Reduction Co. v. Sanitary Reduction Works,
12G Fed. 38, holding under State Const, art 11, § 11, municipality
of San Francisco has power to regulate disposition of all garbage,
likewise to contract with others to perform that duty.
Syl. 4 (X, 1186). Exclusive charter rights bar subsequent charter.
Approved in American, etc.. Guarantee Co. v. Home Water Co.,
115 Fed. 179, holding city legally empowered to contract for water
supply and grant exclusive franchise to use its streets for such
purposes, same is irrevocable during term; Anoka Water- Works
V. Anoka, 109 Fed. 584, holding repealing ordinances casting cloud
upon water- works of complainant, equity has Jurisdiction to annul
such in the protection insured by former ordinance; Little Falls,
etc.. Water Co. v. Little Falls, 102 Fed. 667, holding thirty years
not unreasonable time for running of contract for supplying city
with water, erection and maintenance of expensive plant by other
party involved; Deposit Bank of Owensboro v. Daveiss Co., etc., 102
Ky. 187, 39 S. W. 1033, holding acceptance of act 1886, by State
banks chartered prior to 1856, was surrendering of any immunity
from increased taxation which their charters gave them.
Distinguished in Clarksburg Electric Light Co. v. City of Clarks-
burg, 47 W. Va. 745, 35 S. E. 996, holding franchise by city to in-
tended corporation to use streets for public use is valid, though
corporation is subsequently chartered and accepts grant
CXVI UNITED STATES.
116 U. S. 1-7, 29 L. 535. HAXLEY ▼. DONOGHUB.
Syl. 1 (XI, 7). Conclusiveness of judgment of foreign State.
Approved in Eastern Bldg. & Loan Assn. v. Ebaugh, 185 U. 8.
121, 46 L. 833, 22 Sup. Ct 569, holding finding of fact bj State
trial court as to law of another State binding upon Supreme Court
on error to such State court; Keyser v. Lowell, 117 Fed. 402, 406,
holding unconstitutional Sess. Laws Colo. 1899, chap. 113, barring
action on foreign Judgment on cause of action good in State where
rendered but outlawed in Colorado; Union & Planters' Bank v. City
of Memphis, 111 Fed. 572, holding under Federal and Tennessee
decisions provisions in bank charter requiring annual one-half per
cent, tax per share in lieu of taxes not exempting capital.
Distinguished in Gill v. Everman, 94 Tex. 214, 69 S. W. 632,
holding insufficient Kentucky guardian's appointment failing to show
whether he represented person or estate, required by Tex. Rev. Stat.
2550, 2800, Kentucky law presumed same.
Syl. 3 (XI, 8). Evidence — Foreign laws are facts.
Approved in Fish v. Smith, 73 Conn. 388, 47 AtL 715, holding
erroneous expunging reply of receiver of Minnesota corporation
suing oh unpaid subscriptions in Connecticut, stating that Min-
nesota laws allowed operation on subscription of $500,000; New
York Life Ins. Co. v. Orlopp, 25 Tex. Civ. 288, 61 S. W. 339, hold-
ing under N. Y. Laws 1892, chap. 690, preventing forfeiture with-
out notice by company, policy not forfeited on nonpayment of
premium notes where no forfeiture declared; dissenting opinion in
Bank of China, etc. v. Morse, 168 N. Y. 470, 61 N. E. 777, majority
iholding surrogate may reject finding of referee that charges against
oxecutor not sustained and remove executor where confirmation
waived by delay.
Distinguished in Eastern Building, etc., Assn. v. Williamson, 189
U. S. 128, 23 Sup. Ct. 530, 47 L. 740, holding defense that absolute
promise in building association's stock certificate to mature, stock
at certain time was ultra vires, not available against member fully
performing.
Syl. 4 (XI, 8). Sister State and foreign judgments distinguished.
Approved in Andrews v. Andrews, 188 U. S. 37, 23 Sup. Ct. 242,
47 L. 371» upholding refusal of Massachusetts courts under Pub.
[788]
788 Notes on U. S. Reporta. 116 U. 8. 8-33
Stat, cbap. 146, § 41, to recognize Dakota divorce to Massachnsetta
temporarily leaving for that purpose; Union & Planters' Bank v.
City of Memphis, 111 Fed. 571, holding under Federal and Tennes-
see decisions provision in bank charter requiring annual one-half
per cent tax per share In lieu all taxes, not exempting capital;
American Mut Life Ins. Co. ▼. Mason, 150 Ind. 17, 64 N. E. 525,
holding defendant foreign corporation making special appearance
and then defending on merits makes general appearance waiving
Jurisdictional objections; Anglo-American Pro v. Co. v. Davis Prov.
Co., 169 N. Y. 513, 62 N. B. 589, upholding N. Y. Code Civ. Proc,
I 1780, prohibiting suit by one foreign corporation against another
except where cause thereof arose within State.
Syl. 6 (XI, 8). Federal court's notice of State laws.
Approved in Kidder v. Fidelity, etc., Co., 105 Fed. 820, holding
decree that taxation under Rev. Stat Ohio, || 2808, 2809, illegally
discriminating against national bank shares res adjudicata; Mutual
Life Ins. Co. v. DIngley, 100 Fed. 412, holding insurance contract
made subject to company's charter and New York laws where
company domiciled policy issued and premiums payable governed
by New York laws.
116 U. S. 8-10. Not cited.
116 U. S. 11, 12, 29 L. 550, MARVEL v. MBRRITT.
Syl. 1 (XI, 9). Interpreting nontechnical words matter of law.
Approved In O. G. Hempstead, etc.. Son v. Thomas, 122 Fed. 539,
holding Tungsten ore used in dyeing cloth and In hardening steel
exempt from duty under section 614, tariff act 1897 as "mineral,
crude;" Upshur v. Baltimore City, 94 Md. 749, 51 Atl. 955, holding
Md. Acts 1808, chap. 123, § 95, directing police commissioners to
detail police for park service does not authorize mandamus by
park commission compelling regular allotment
116 U. S. 13-28. Not cited.
116 U. S. 28-33, 29 L. 542, UTAH, ETC., RY. v. FISHER.
Syl. 1 (XI, 10). State jurisdiction over Indian reservation.
Distinguished In King v. McAndrews, 111 Fed. 870, holding Da-
kota Territory act March 7, 1885, including portion of Indian reserva-
tion in Chamberlain city no withdrawal from land laws, not being
subject thereto.
Syl. 2 (XI, 10). State taxation of railroad through reservation.
Approved in King v. M'Andrews, 104 Fed. 434, holding Dak. act
1885, Incorporating iand of Indian reservation In Chamberlain city
appropriated to town site purpose, hence not unappropriated public
land.
116 U. S. 3a-48 Notes on U. S. Reports. 790
116 U. S. 33-42, 29 L. 538, HOLGALI v. EATON.
Syl. 4 (XI, 11). Refusal of specific performance for laches.
Approved In Henderson v. McFadden, 112 Fed. 395, holding ques-
tion of parties' intention as to time in contract for cotton made
by telegraph, offer open half an hour and acceptance stating " come
at once," question for Jury; Mahon v. Leech, 11 N. Dak. 190, 90 N.
W. 810, refusing Fpecific performance of contract for sale of farm
where plaintiff surrendered contract, allowed defendant to re-enter
and occupy for three years and finally sell.
Syl. 6 (XI, 11). Equity — Effect of dismissal on cross-bllL
Approved in Bowlter y. United States. 186 U. S. 141, 46 L. 1093,
22 Sup. Ot. 805, holding decree dismissing cross-libel in suit for
collision not final Judgment within Judiciary act March 3, 1891;
Hetnze v. Butte, etc., Min. Co., 126 Fed. 6, holding where inter-
vener in partition suit files cross-bill setting up equitable title,
seeking cancellation of deeds for insanity tried and settled before
issue in partition; Small v. Peters, 104 Fed. 403, holding voluntary
dismissal of bill for specific performance does not carry cross-bill
alleging facts warranting rescission of contract and enforcement of
lien; Washington Nat. Bldg., etc., Assn. v. Saunders, 24 Wash. 328,
64 Pac. 548, holding pledgee cannot dismiss action to foreclose
where defendant's answer demands possession under paramount
adverse title.
Distinguished in United States v. California, etc.. Land Co., 192
U. S. 360, 24 Sup. Ot. 268, holding dismissal of bill to avoid land
patents issued on reservation lands, requires dismissal of cross-bill
seeking to enjoin allotments.
116 U. S. 43-45, 29 L. 541, UNITED STATES v. PRICE.
Syl. 1 (XI, 11). Payment directed by Congress not restrainable.
Approved in Buchanan v. Patterson, 190 U. S. 366, 23 Sup. Ot.
769, 47 L. 1098, holding Congress appropriating for French spoliation
claims to administratrix of firms and of surviving partnei* means
next of kin of partnership.
116 U. S. 45-48, 29 L. 558, MACKALL v. RICHARDS.
Syl. 3 (XI, 12). Appeal — Defense arising after mandate.
Approved in Butler v. Thompson, 52 W. Va. 315, 43 S. E. 176.
holding where court reverses decree on merits and remands for
further proceedings conformable to opinion, no new pleadings
allowed below.
Distinguished in Southern B. & L. Assn. v. Carey, 117 Fed. 328,
holding Circuit Court has no power to refuse appeal because decree
entered on mandate from Court of Appeals.
791 Notes on U. S. Reports. 116 U. S. 48-97
116 U. S. 4».^, 29 L. 570, LEE ▼. JOHNSON.
SyL 1 (XI, 12). Collateral attack on patent
Approved In King v. McAndrews, 111 Fed. 864, holding patents
granted by land department to land described in Dak. act March
7, 1885, not attackable collaterally; McCord v. Hill. Ill Wis. 513,
517, 84 N. W. 33, 34, holding entryman whose original proofs
erroneously held insufficient afterward trying to commute such to
cash entry, entitled to have original certificate confirmed.
SyL 3 (XI, 12). Conclusiveness of land department decision.
Approved in Boynton v. Haggart, 120 Fed. 828, holding patent
to swamp land granted by auditor and governor Arkansas under
9 Stat 519, impervious to collateral attack; Peabody Gold Min. Co.
y. Gold Hill M. Co., 106 Fed. 242, holding Insufficient bill by in-
dividual to vacate patent granted to another showing patentee
not entitled but not showing complainant entitled; Jeffords v. Hine,
2 Ariz. 167, 168, 11 Pac. 355, holding decision of receiver of> land
department acting as register by order of department as to right
to possession of land, conclusive in courts; Small v. Rakestraw,
28 Mont 419, 72 Pac. 748, upholding secretary of Interior's deter-
mination that one claiming under homestead laws had residence for
voting purposes elsewhere, hence precluded from homesteading;
Lawrence v. Potter, 22 Wash. 46, 60 Pac. 152, holding under Rev.
Stat U. S., § 2297, prescribing certain causes for contesting before
land department does not limit it to such causes; Bradley, etc. v.
Dills Lumber Co., 105 Wis. 252, 81 N. W. 396, holding certificate of
surveyor-general under act June 2, 1858, stating that D. was per-
sonal representative of G., patentee, plaintiff claiming through D.
had prima facie title.
116 U. S. 54, 55. Not cited.
U6 U. 8. 55-80, 29 L. 561, CANNON v. UNITED STATES.
(XI, 13). Miscellaneous.
Approved in State v. Thayer, 158 Mo. 48, 49, 58 S. W. 13, holding
under Mo. Rev. Stat 1899, art. 10, § 2696, providing appeal from
final judgment on indictment, defendant convicted misdemeanant
on information entitled to appeal. See 79 Am. St Rep. 379, note.
116 U. S. 80-97, 29 L. 544, ROBERTS v. REILLY.
Syl. 3 (XI, 15). What constitutes " fugitive from Justice."
Approved in Hyatt v. Corkran, 188 U. S. 709, 714, 23 Sup. Ct
458, 460, 47 L. 660, holding one not within demanding State when
larceny charged was committed not fugitive from justice within
Rev. Stat, § 5278; In re Strauss, 126 Fed. 329, holding verified
complaint charging person with obtaining money under false pre-
tenses confers jurisdiction on governor of extraditing State; People
V. Hyatt, 172 N. Y. 183, 188, 189, 64 N. E. 828, 829, 92 Am. St Rep.
lie. U. S. 98-103 Notes on U. S. Reports. 792
714, holding extradition not granted where accused was constmc-
tiyely not actually present in demanding State when crime com-
mitted. See notes, 92 Am. St. Rep. 726, 728, 732.
Syl. 4 (XI, 15). Requisites for extradition.
Approved in Jackson v. Western, etc., Co., 112 Fed. 360, holding
Chinese deportation proceedings under 25 Stat 476, in discretion of
district judge to determine whether commissioner's delay is abandon-
ment of appeal; In re Tod, 12 S. Dak. 392, 393, 76 Am. St Rep. 620,
621, 81 N. W. 639, holding one sought to be extradited for offense
involving fraud, who left State at special request of defrauded
partj', not fugitive from Justice; Armstrong v. Van De Venter, 21
Wash. 687, 59 Pac. 512, holding complaint on extradition charging
attempt to influence Juror in pending case, attempt to procure
absence of witness bad for indefiniteness.
Syl. 5 (XI, 15). Habeas corpus — Whether fugitive settled.
Approved in Bruce v. Rayner, 124 Fed. 482, 483, holding question
whether person arrested on governor's requisition warrant is fugi-
tive, is o<ne of fact inquired Into on habeas corpus, warrant being
prima facie only.
Distinguished in People v. Hyatt 172 N. Y. 198, 64 N. B. 832, 833,
92 Am. St Rep. 722, holding extradition not granted where accused
was constructively, not actually, present in demanding State when
larceny charged committed.
Syl. 6 (XI, 15). Warrant prima facie proves fugitive.
Approved in Bruce v. Rayner, 124 Fed. 483, holding question
whether person arrested on governor's requisition warrant is fugi-
tive, is one of fact inquired into on habeas corpus, warrant being
prima facie only; State v. Clough, 71 N. H. 598, 599, 602, 53 Atl.
1088, 1089, 1090, upholding governor's action in extraditing prisoner
where indictment charged defendant with uttering forged wills,
such being sufficient In remanding State; Katyuga v. Gosgrove, 67
N. J. L. 214, 50 Atl. 680, holding issuance of warrant for appre-
hension of demanded accused is sufficient prima facie evidence of
finding by governor that accused Is fugitive from Justice; dissent-
ing opinion in People v. Hyatt, 172 N. Y. 207, 64 N. B. 836, 92 Am.
St. Rep. 726, majority refusing extradition where accujidd was only
constructively, not actually, present in demanding State when
crime committed.
116 U. S. 98-103, 29 L. 559, CALL v. PALMER.
Syl. 2 (XI, 16). Usurious loan by agent.
Approved in In re Kellogg, 113 Fed. 129, holding mortgage void
for usury where bankrupt receiving $15,000 on $25,000 mortgage,
agreed to pay mortgagee's agent commission on sales for execution
of new mortgage.
793 Notes on U. S. Reports. 116 U. S. 104-135
Syl. 3 (XI, 17). Contract In consideration of asurious contract.
Approved in In re Kellogg, 113 Fed. 127, holding mortgage void
where bankrupt, receiving part only of mortgage money, agreed to
pay mortgagee's agent per cent on sales In principal's business
to obtain rest.
116 U. S. 104-108, 29 L. 550, UNITED STATES v. MOONBY.
SyL 2 (XI, 17). Effect of act of 1875, on Federal Jurisdiction.
Approved in Helwig v. United States, 188 U. S. 610, 23 Sup. Ct
429, 47 L. 616, upholding exclusive jurisdiction of District Court of
suit to collect penalty of act June 10, 1890, on imi)orters for under-
valuing merchandise; Downs v. Bidwell, 182 U. S. 248, 45 L. 1091,
21 Sup. Ct. 772, holding under Rev. Stat, § 629, Circuit Court has
jurisdiction of action to recover duties on Porto Rican goods ex-
acted under Foraker act 1900; Falk v. Curtis Pub. Co., 100 Fed. 80,
holding under Rev. Stat, § 629, Circuit Courts have jurisdiction
of suit under section 4965, to recover penalty for infringing copy-
righted photograph.
116 U. S. 108-113, 29 L. 583, COYLE v. DAVIS.
Syl. 1 (XI, 18). Parol to prove deed a mortgage.
Approved in American Bell Tel. Co. v. National Tel., etc., Co., 109
Fed. 1010, refusing amendment of application for instrument for
reproducing musical sounds, disclaiming applicability to trans-
mit speech, by striking out disclaimer.
116 U. S. 113-131, 29 L. 575, LIVERPOOL, ETC., INS. CO. v.
GUNTHER.
Syl. 2 (XI, 18). Insurance — Violation of policy by tenant
Approved in Allen v. Home Ins. Co., 133 Cal. 32, 65 Pac. 139,
holding erroneous refusal to instruct that if building insured were
occupied as roadside bawdy house and saloon when burned, de-
fendant company not liable; Norwayze v. Thuringia Ins. Co., 204
111. 344, 68 N. E. 555, holding policy to be void if gasoline kept on
premises, forfeited by tenant keeping one-gallon can at time of
fire though without insured's knowledge; Boyer y. Grand Rapids
Fire Ins. Co., 124 Mich. 460, 83 N. W. 126, holding provision in
policy against keeping gasoline on premises applies to gasoline
brought for use in upstairs room not directly connected with stove.
116 U. S. 131-135. 29 L. 587, FISKE v. JEFFERSON POLICE
JURY.
Syl. 3 (XI, 19). Express and implied contract protected.
Approved in Los Angeles v. Los Angeles City Water Co., 177 U. S.
675, 44 L. 894, 20 Sup. Ct 742, holding contract giving water com-
pany power to fix rates impaired by subsequent ordinance reduc-
ing such rates; Houston & Texas Cent R. R. Co. v. Texas, 177 U. S.
77, 44 L. 680, 20 Sup. Ct 549, holding construction of State statute
116 U. S. 135-167 Notes on U. S. Reports. 7W
whereby cause of action for default of payment enforced on ground
payment in treasury warrants void, impairs contract
116 U. S. 135-137. Not cited.
116 U. S. 138-142, 29 L. 589, SAN MATEO CO. T. SOUTHERN
PAC. R. R.
Syl. 1 (XI, 20). Dismissal of appeal where debt paid.
Approved in Montgomery v. City Council, 99 Fed. 832, holding
where city filed intervening petition in foreclosure suit seeking to
establish taxes as lien for proceeds of sale, question of validity
ended by payment by purchaser; United States Savings & Loan Co.
V. Leftwlch, 132 Ala. 133, 31 So. 475, holding appeal from decree re-
ferring amount of claim tal^en after decree of sale Ineffectual;
Wedekind v. Bell, 26 Nev. 413, 69 Pac. 614, holding where plaintiff
conveys his interest in mining location to third party who com-
promises case pending appeal, appeal dismissed though argued
and submitted.
Distinguished in Ward v. Ward's Heirs, 50 W. Va. 619, 40 S. B.
473, holding conveyance by coparcener to another coparcener of
undivided interest, does not pass pre-existing demand for im-
provements.
116 U. S. 142-145, 29 L. 581, HEWITT v. FILBERT.
Syl. 1 (XI, 20). Necessity for citation to jurisdiction on error.
Approved in Pender v. Brown, 120 Fed. 497, holding Circuit
Court Appeals acquired no Jurisdiction where citation not issued
and served before end of next ensuing term; Loveless v. Ransom,
109 Fed. 392, holding writ of error applicable only to suits at law
and citation necessary appeal to equity suits, but citation not neces-
sary unless after term; Berliner, etc., Co. v. Seaman, 108 Fed, 717,
holding issuance and service of citation not Jurisdictional, hence may
be issued after expiration of time for taking appeal; M'Nulta ▼.
West Chicago Park Comrs., 99 Fed. 329, holding citation unneces-
sary where appeal allowed in open court in term where decree
rendered.
Syl. 2 (XI, 21). Appeal in open court
Approved in Chow Loy v. United States, 112 Fed. 356, holding
right of appeal under section 13 of Chinese exclusion act, 25 Stat
476, to district judge declaring appearance by attorney giving
notice of appeal sufficient.
116 U. S. 145-161. Not cited.
116 U. S. 161-167, 29 L. 591, WINCHESTER, ETC.. MFG. CO. v.
CREARY.
Syl. 1 (XI, 22). Vendor's statements after sale inadmissible.
Distinguished in Schmitt v. Jacques, 26 Tex. Civ. 130, 132, 62
S. W. 958, 959, holding admissible testimony of partner transfer-
•i95 Notes on U. S. Reports. 116 U. S. 167-218
ring interest to defraud creditors, to show fraudulent character of
transaction.
116 U. S. 167-186, 29 L. 601. SMITH v. WHITNEY.
SyL 2 (XI, 23). Prohibition where court has no jurisdiction.
Approved in Mason v. Grubel, 64 Kan. 840, 68 Pac. 661, holding
erroneous grauting of writ of prohibition eDjoining justice from
taking jurisdiction on complaint charging defendant with unlaw-
fully selling intoxicating liquors; Nichols v. Judge of Superior Court.
130 Mich. 190, 89 N. W. 692, awarding prohibition to restrain con-
tempt proceedings where relator attacked jurisdiction only; State
ex rel. Cann v. Moore, 23 Wash. 120, 62 Pac. 443, denying writ or
prohibition to restrain mandamus proceedings on ground of in-
sufficiency of petition and affidavit where certiorari or appeal gives
adequate remedy.
SyL 5 (XI, 23). Prohibition where suit is by government
Approved in Judy v. Lashley, 50 W. Va. 635, 41 S. E. 200, hold-
ing prohibition lies to restrain mayor of town from fining person
for carrying deadly weapon in violation of invalid town ordinance.
Syl. 6 (XI, 23). Prohibition does not lie to court-martial.
Approved in In re Miller, 114 Fed. 842, refusing on habeas corpus
proceedings to entertain petition of parents to discharge minor son
from custody of recruiting officer on charge of desertion.
Syl. 7 (XI, 24). Army regulations as law.
Approved in Carter v. McClaughry, 183 U. S. 401, 46 L. 253, 22
Sup. Ct 195, holding determination whether crime of embezzling
money appropriated for river and harbor improvement is prejudicial
to discipline, peculiarly within jurisdiction of court-martial.
Distinguished in Glavey v. United States, 182 U. S. 606, 45 L.
1252, 21 Sup. Ct. 895, holding secretary of treasury's appointment
of local inspector of hulls as special inspector of foreign vessels,
under act Congress 1882, entitled to double pay despite secretary's
negation.
116 U. S. 187-192. Not cited.
116 U. S. 193-197, 29 L. 595, WEBB v. BARNWALL.
(XI, 24). Miscellaneous.
Approved in In re Waukesha Water Co., 116 Fed. 1011, hold-
ing bankruptcy act 1898 does not empower Bankruptcy Court to
summon before it by rule to show cause persons not parties and
nonresident.
116 U. S. 198-212. Not cited.
116 U. S. 213-218, 29 L. 608, FORD v. UNITED STATES.
Syl. 1 (XI, 25). Prescribed statutes govern Court of Claims.
Distinguished in Watts v. United States, 123 Fed. 114, holding
congressional act authorizing submission of claim of British vessel
116 U. S. 219-268 Notes on U. S. Reports. T96
for collision with war vessel to District Court, conferred Jurisdic-
tion to render decree against government.
116 U. S. 219-226, 29 L. 608, MILWAUKEE v. KOEFPLEB.
8yL 1 (XI, 25). Illegal tax on personalty restrained.
Approved in Pacific Whaling Co. v. United States, 187 U. S. 452.
23 Sup. Ct 156, 47 L. 255, holding proceeding to obtain from Dis-
trict Court license prescribed by act Congress March 3, 1899, on
coasting vessels not appealable suit; Purnell v. Page, 128 Fed. 496.
holding under act August 13, 1888, chap. 886, § 1, making $2,000
Jurisdictional amount, Federal court has no jurisdiction to restrain
personal tax of $80 though cloud on valuable realty; People v. Dis-
trict Court, 29 Colo. 194, 68 Pac. 247, refusing prohibition to enjoin
State board of assessors from valuing property of railroad, tele-
graph, and other companies under Colo. Sess. Laws 1901, p. 299.
116 U. S. 227-231, 29 L. 610, CONEY v. WINCHELL.
Syl. 1 (XI, 25). Mortgagor and grantee's citizenship necessary.
Approved In United States Mort Co. v. McClure, 42 Or. 198,
70 Pac. 544, holding no separable controversy between mortgage
company suing to foreclose mortgage and owner of land for removal
to Federal courts.
116 U. S. 231-252. Not cited.
116 U. S. 252-269, 29 L. 615, PRESSBR v. ILLINOIS
Syl. 1 (XI, 27). Upholding statutes valid in part
Approved in State v. Santee, 111 Iowa 8, 82 N. W. 447, holding
Iowa Code, § 2508, regulating use of petroleum not invalidated iu
toto by discrimination made in favor of petroleum products used in
Welsbach lamps; State v. Montgomery, 94 Me. 200, 47 Atl. 166,
holding unconstitutional in toto Me. Laws 1889, chap. 298, for grant-
ing peddling licenses to citizens of the United States as discrim-
inating against aliens.
Syl. 2 (XI, 27). Right to bear arms.
Approved in Maxwell v. Dow, 176 U. S. 597, 44 L. 603, 20 Sup.
Ct. 455, upholding Utah practice of prosecuting by information and
trial by Jury of eight.
SyL 3 (XI, 27). Second Amendment does not limit States.
Approved in State v. Height. 117 Iowa, 654, 91 N. W. 936, 94
Am. St. Rep. 326, holding inadmissible evidence deduced from com-
pulsory physical examination of defendant in rape case showing
venereal disease alleged to have been conveyed to prosecutrix;
Wade V. Foss, 96 Me. 231, 52 AU. 641, holding U. S. Stat 1898, chap.
448, requiring promissory notes to be stamped for admission as
evidence, inapplicable to State courts; People v. O'Brien, 176 N. Y.
261, 68 N. E. 354, holding notwithstanding Pa. Code, § 342, requir
797 Notes on U. S. Reports. U6 U. S. 270-806
ing those charged with keeping gambling house to testify, such
testimony violates Const, art. 1, § 6. See 78 Am. St. Rep. 263, note.
Syl. 6 (XI, 28). Statutes interpreted constitutional if possible.
Approved In Knights • Templars Indemnity Co. v. Jarman, 187
U. S. 205, 23 Sup. Ct. Ill, 47 L. 145, holding self-destruction while
insane within Mo. Rev. Stdt. 1879, § 5982, malting suicide no defense
to insurance company unless contemplated when Insured.
116 U. S. 270-277. Not cited.
116 U. S. 277-289, 29 L. 629, RENAUD v. ABBOTT.
Syl. 4 (XI, 28). Want of service— Suit on foreign Judgment.
Approved in Union &, Planters' Banls v. City of Memphis, 111
Fed. 572, holding under Tennessee law, annual tax of one-half per
cent on national bank stock in lieu of all other taxes, does not
exempt capital; Babcock v. Marshall, 21 Tex. Civ. 147, 50 S. W.
728, enjoining use of foreign Judgment at law, fraudulently ob-
tained, depriving plaintlfiF of meritorious defense, such being allowed
in foreign Jurisdictions.
116 U. S. 289-306, 29 L. 620. MOBILE v. WATSON.
SyL 2 (XI, 29). Liability of municipality for predecessor's debts.
Approved in Mobile Transp. Co. v. Mobile, 128 Ala. 350, 30 So.
647, holding where city of Mobile was dissolved and ijiew corpo-
ration of same name succeeded it, no averment thereof necessary
in ejectment suit; Ranken v. McCalium, 25 Tex. Civ. 86, 60 S. W.
976, holding county liable for drainage bonds of predecessor which
was abolished for irregularities in organization.
Syl. 3 (XI, 29). Preservation of existing remedies for city's debts.
Approved in Padgett v. Post, 106 Fed- 603, holding unconstitu-
tional as to existing bona fide holders of bonds, 22 S. O. Stat at
Large, prohibiting tax levy to pay township railway bonds; Hicks
▼. Cleveland, 106 Fed. 463, 464, holding unconstitutional as to bona
fide holders at time, 22 S. C. Stat at Large, 534' prohibiting tax
levy to pay township bonds aiding railroads.
Syl. 4 (XI, 29). Municipalities protected as individuals for debts.
Approved in D'Esterre v. New York, 104 Fed. 611, holding New
York city liable on authorized Gravesend bonds held by bona fide
purchaser althougli they were sold unauthorlzedly on credit.
(XI, 29). Miscellaneous.
Approved in Mayor, etc., of South Morgantown v. City of South
Morgantown, 49 W. Va. 730, 40 S. E. 15, upholding W. Va. Acts 1901,
chap. 144, incorporating new city of Morgantown from towns of
Morgantown, South Morgantown, Seneca, and Greenmont
116 U. S. 307-347 Notes on U. S. Reports. 796
116 U. S. 307-347, 29 L. 636, RAII^ROAD COMMISSION CASES,
STONE V. FARMERS' LOAN & TRUST CO.
Syl. 1 (XI, 30). Regulation of railroad rates by States^
Approved in Stanislaus Co. v. San Joaquin, etc., Co., 192 U. S.
208, 24 Sup. Ct 244, holding no contract created by section 3, Cal.
Stat. 1862, authorizing supervisors to regulate water rates not re-
ducing stockholder's profits below 1% per cent, per month; Owens-
boro V. Owensboro Water-Works Co., 191 U. S. 370, upholding
Kentucky ordinance fixing water rates limiting ordinance passed
before city entered third-class giving company power to fix rates;
Erie R. R. y. Purdy, 185 U. S. 150, 46 L. 849, 22 Sup. Ct. 606,
holding no Federal question presented by State judgment under
N. Y. Laws 1896, chap. 835, holding such statute means to regulate
commerce wholly within State; Cotting v. Godard, 183 U. S. 85, 46
L. 99, 22 Sup. Ct 33, holding unconstitutional Kan. act, March 3.
1897, limiting amount of charges to be made by Certain stockyard
company regardless of character of service though nominally gen-
eral; Matthews v. Board of Corp. Comrs., 97 Fed. 404, holding
•
purchaser of corporation property under foreclosure sale after pas-
sage of N. C. act 1899, regulating rate subject thereto though pre-
decessor exempt; Purdy v. Erie R. R. Co., 162 N. Y. 51, 56 N. E. 510,
upholding N. Y. Laws 1895, chap. 1027, amended by Laws 189t', chap.
835, requiring railroads within State to issue 1000-mileage books;
Corporation Comm. v. Seaboard, etc., R. R., 127 N. C. 288, 37 S. B.
268, upholding North Carolina corporation commission's action in
fixing freight rates for fertilizers providing for rating purposes
minimum car-load ten ton.
Syl. 2 (XI, 31). State rate regulation.
Approved in Freeport Water Co. v. Freeport, 180 U. S. 599, 45 L.
688» 21 Sup. Ct. 498, holding contract giving water company right
to charge certain fixed rates for thirty years not authorized by
111. act April 10, 1872, providing for ordinance supervision.
Distinguished In Pingell v. Michigan, etc., Ry. Co., 118 Mich. 329,
76 N. W. 640, holding laws Mich. 1846, giving railway power to regu-
late rates below three cents created contract not alterable by sub-
sequent acts.
Syl. 4 (XI, 31). Railroad charter power to fix rates.
Approved in Louisville & N. R. R. Co. v. Kentucky, 1^3 U. S.
511, 46 L. 303, 22 Sup. Ct. 99, upholding Ky. Const, § 218, and Ky.
Gen. Stat. 1894, § 820, prohibiting charging more for shorter than
for longer haul without commission's permission; Chicago & A. R.
R. Co. V. City of Carlinville, 200 111. 326, 93 Am. St. Rep. 199, 65
N. E. 734, upholding under Hurd's Rev. Stat. Ind. 1899, pp. 275,
1332, city ordinance limiting rate of trains within limits to ten miles
per hour, minimum statutory speed.
790 Notes on U. S. Reports. 116 U. S. 307-347
Syl. 6 (XI, 32). State rate regulation must not deprive property.
Approved In Cotting v. Godard, 183 U. S. 86, 87, 46 L. 100, 22 Sup.
Ct. 34, holding unconstitutional Kan. act, March 3, 1897, limiting
charges of stockyards corporation regardless of character of ser-
vice, operating as discrimination against particular yard; Chicago,
Milwaukee, etc., Ry. v. Tompkins, 176 U. S. 172, 44 L. 420. 2u Sup.
Ct. 338, holding reasonableness of rates for local railroad business
depends upon relation of gross receipts to cost of doing the business;
Trammell v. Dinsmore, 102 Fed. 799, upholding action of Georgia
railway commission prohibiting express company from adding cost
of revenue stamp to maximum rates prescribed by commission;
Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 259, 91 N. W.
1090, holding city ordinance limiting water rates to allow net
annual earnings between four and two-fifths and five and one-half
on estimated capital not warranting interference of courts. See
notes, 90 Am. St Rep. 248, 252.
Syl. 6 (XI, 33). Regulation of railroad running in two States.
Approved in Kansas City, etc., Ry. v. Board of Railroad Oomrs.,
106 Fed. 358, holding Arkansas railway commission has no power
to regulate rates between Arkansas points where line of travel
lies largely in Indian Territory; Ohio Valley, etc.. Receiver v.
Lander, etc., 104 Ky. 447, 47 S. W. 348, upholding Ky. act 1892,
separate coach" law requiring separate coaches for negroes and
whites within the State.
Syl. 7 (XI, 33). Validity of Mississippi railroad commission act.
Approved in McChord v. Louisville & N. R. R. Co., 183 U. S. 495,
46 L. 295, 22 Sup. Ot 169, dismissing injunction granted against
proposed action of Kentucky railroad commission before it had fixed
rates; Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 523, 44 L. 872,
20 Sup. Ct 725, holding unconstitutional as applied to interstate
trains 111. act, March 21, 1874, § 26, requiring all regular ptrssenger
trains to stop at county seats; Haverhill, etc., Co. v. Barker, 109
Fed. 695, holding suit by gas company against State gas commission
and attorney-general to enjoin proceedings for enforcing commis-
sion's order, not suit against State within Eleventh Amendment;
Howard v. Gold Reefs, 102 Fed. 658, holding fact that name Gold
Reefs of Georgia, and ownership of property therein do not over-
come presumption raised by plaintiff's pleadings that corporation
Is nonresident; Morgan's Louisiana, etc., SS. Co. v. Railroad Comm.
of La., 109 La. 262, 33 So. 219, holding railway commission in
selecting depot site considers welfare of public and ability of rail-
road in view of entire business to maintain depot; Carson v. Brock-
ton, 175 Mass. 245, 56 N. E. 2, upholding Mass. Stat 1892, chap.
245, providing that city councils may establish annual rents for
common sewers by persons using same, ordinance passed there-
under; Detroit Citizens* St. Ry. Co. v. Ck>mmon Council, etc., 125
Mich. 679, 85 N. W. 98, holding unconstitutional special provision
116 U. S. a47-n356 Notes on U. S. Reports. 800
of Mich. Oomp. Laws, § 3842, for assessing value of stock less realty
and cash value of personalty less bona fide Indebtedness; Debnam
V. Southern Bell Tel. Co.. 126 N. C. 845, 36 S. E. 274, holding foreign
telephone company filing charter with secretary of State under
N. C. Pub. Laws 1899, chap. 62, becomes thereby a domestic cor-
poration; Knoxville v. Knoxville W. Co., 107 Tenn. 671, « S. W.
1081, upholding Knoxville ordinance March 30, 1901, reducing water
rates established by prior ordinances; dissenting opinion in State v.
Johnson, 61 Kan. 843, 60 Pac. 1081, majority holding unconstitu-
tional Kan. Laws Spec. Sess. 1898, chap. 28, creating court of
visitation, declaring jurisdiction, power, and procedure.
Distinguished in State v. Johnson, 61 Kan. 816, 60 Pac. 1073,
holding unconstitutional Kan. Laws Spec. Sesi*. 1898, chap. 28,
creating court of visitation declaring its jurisdiction, powers and
procedure.
(XI, 30). Miscellaneous.
Cited in Goodwin v. New York, N. H. & H. R. R. Co., 124 Fed.
858, holding corporation incorporated in Massachusetts and Con-
necticut cannot be sued in Massachusetts Circuit Court by citizen of
Massachusetts; Seattle Gas, etc.. Electric Co. v. Citizens* Light, etc..
Power Co., 123 Fed. 593, holding New Jersey corporation without
charter power to manufacture and sell gas cannot engage In such
business in State of Washington; dissenting opinion In Calvert v.
Railway Co., 64 S. C. 154, 41 S. E. 968, majority holding foreign
railroad nonresident of South Carolina for jurisdictional purposes
though complying with act March 19, 1896, to become domestic
corporation. See 85 Am. St. Rep. 908, note.
116 U. S. 347-352, STATE v. ILLINOIS CENTRAL R. R. CO.
Syl. 1 (XI, 34). State retaining regulation of rates.
Distinguished In Pingree v. Michigan, etc., R. R. Co., 118 Mich.
329, 70 N. W. 640. holding Mich. Laws 1846, empowering Michigan
Central to regulate rates below three cents, created contract not to
be impaired by subsequent acts.
116 U. S. 352-356, 29 L. 651, STONE v. NEW ORLEANS, ETC.,
R. R.
Syl. 1 (XI, 34). State regulation — Railroad charter fixing rates.
Distinguished in Pingree v. Michigan, etc., R. R. Co., 118 Mich.
329, 76 N. W. 640, holding Laws Mich. 1846, chap. 42, giving Michi-
gan Central power to regulate rates not over three cents was con-
tract which subsequent legislative act could not adter.
(XI, 34). Miscellaneous.
Cited in San Diego Land, etc., Co. v. Jasper, 110 Fed. 713, hold-
ing Cal. act, March 12, 1885, authorizing supervisors to regulate
water rates giving profit of 6 to 18 per cent on value of property,
means actual value.
SOI Notes on U. S. Reports. 116 U. S. 35G-.380
116 U. S. 356-366, 29 L. 633, ANDERSON y. SANTA ANNA.
SyL 2 (XI, 35). Courts — Following State statutory construction.
Approved In Loeb ▼. Trustees of Columbia Township, 179 U. S.
492, 45 L. 291, 21 Sup. Ct 182, holding In action on township bonds
Federal court follows State Constitution as interpreted by State
courts when bonds issued. '
Distinguished in Grose y. Board, etc., 158 Ind. 535, 64 N. E. 27,
holding county treasurer fees prohibited by Indiana act 1891, while
decision declaring act unconstitutional was unreyersed, recoyerable
by county.
116 U. S. 366-380, 29 L. 652, LITTLE v. HACKETT.
Syl. 1 (XI, 36). Contributory negligence bars recovery.
Approved in Zumault v. Kansas City, etc., R. R. Co., 175 Mo.
312, 74 S. W. 1022, holding plaintiff contributorily negligent in sit-
ting on edge of station platform over track, with knowledge that
train due, and going to sleep there.
Syl. 3 (XI, 36). Driver's negligence not imputable to passenger.
Approved In Crampton v. Ivie Bros.. 126 N. O. 895, 36 S. E. 351,
reaffirming rule; Delaware, etc., R. R. Co. v. Devore, 114 Fed. 160,
holding negligence of father, who was driving, in not discovering
train at grade crossing, imputable to child held in mother's arms
and injured; Smith v. Day, 100 Fed. 246, holding passenger on boat
injured by defendant's blast not precluded by navigation company's
agreement to use wharf at peril; Birmingham, etc., Co. v. Baker,
132 Ala. 516, 31 So. 621, affirming recovery by fireman for injury
received in collision, caused by Joint negligence of motorman and
driver of hosecart; Farley v. Wilmington, etc., Ry. Co., 3 Pennew.
(Del.) 586, 52 Atl. 545, holding one injured In railway accident by
concurrent negligence of railroad and driver of vehicle in which
injured was gratuitous passenger may recover for pain; Frank
Bird Transfer Co. v. Krug, 30 Ind. App. 611, 65 N. E. 313, holding
plaintiff employing transfer company to carry her to depot may
recover for injuries caused by collision due to concurrent negligence
of driver and railway; Driscoll v. Towle, 181 Mass. 420. 63 N. E.
923, holding company with whom defendant teamster contracted to
let latter's driver K. use defendant's horse in hauling for company,
liable for injury from collision; Murray v. Boston Ice .Co., 180 Mass.
108, 61 N. E. 1002, holding instruction that if plaintiff intrusted
driver with management of team, he must show driver used due
care, sufficiently favorable to defendant; Bradley v. Ohio River, etc.,
Ry. COm 126 N. C. 742, 36 S. E. 184, holding negligence of driver
not directed by deceased not imputable to latter in suit by ad-
ministrator against railroad company; Turnpike Co. v. Yates, 108
Tenn. 441, 67 S. W. 72, holding plaintiff injured by falling of toll-
gate may recover therefor where injury was caused by nonlnspec-
Vol. II — 51
116 U. S. 380-410 Notes on U. 8. Reports, 802
tlon of gate and negligence of driver; Shearer v. Town of Buckley,
31 Wash. 379, 72 Pac. 78, affirming Judgment in favor of plaintiff
Injured by defective street whereby wheels of driver's rig dropped
into hole, throwing plaintiff out.
lie U. S. 380-38C, 29 L. 503, MOWER v. FLETCHER.
Syl. 1 (XI, 37). Pre-emption of school lands.
Approved in Empire State-Idaho, etc., Co. v. Bunker Hill, etc., Co.,
114 Fed. 419, holding no extralateral rights can be claimed in pat-
ented mining claims by overlapping location made without kuowl-
edge of patentees; Cosmos Exploration Co. v. Gray Eagle, etc., Co.,
112 Fed. 17, holding land in actual occupancy of explorers for oil
not open to settlement as lieu lands for relinquished forest reserve
lands; Cumberland Tel. & Tel. Co. v. Louisville Home Tel. Co., 110
Fed. 598, holding by prior occupancy of street under nonexclusive
grant, telephone company acquired right to noninterference from
subsequent nonexclusive grantee of similar street privileges.
116 U. S. 386-392, 29 L. 6G7, STEBBENS v. ST. ANNE.
Syl. 1 (XI, 38). Alternative claims not Joinable.
Approved In Day v. Building, etc., Assn., 53 W. Va. 553, 44 S. B.
770, holding multifarious bill of borrower of building association,
treating stock as illegal and seeking account against officers for
mismanagement.
116 U. S. 392-401. Not cited.
116 U. S. 401, 402, 29 L. 676, EX PARTE BROWN.
Syl. 2 (XI, 39). Mandamus to compel exercise of Jurisdiction.
Approved In State ex rel. Mclntyre v. Superior Court of Spokane
Co., 21 Wash. 110, 111, 57 Pac. 352, 353, holding mandamus not
issue to compel Superior Court to take jurisdiction of appeal errone-
ously dismissed for want of Jurisdiction.
116 U. S. 402-iO4. Not cited.
116 U. S. 404-408, 29 L. 680, GIBBINS ▼. DISTRICT OF CO-
LUMBIA.
Syl. 2 (XI, 40). Congressional control over District of Columbia.
Approved In Wight v. Davidson, 181 U. S. 380, 45 L. 905, 21 Sup.
Ct. 620, upholding act of Congress, March 3, 1809, for assessment
on abutting and benefited laud of one-half damages in opening
streets within District of Columbia.
116 U. S. 408-410, 29 L. 679, FLETCHER v. HAMLET.
Syl. 2 (XI, 40). Removal petition by partnership Joinder.
Approved in Abel v. Book, 120 Fed. 48, holding in action to annul
conveyances against several defendants, there being no separable
controversy, waiver of one's right to removal barred subsequent
80a Notes on U. S. Reports. 116 U. 8. 41(M23
Joinder of all; Mexican Nat. Goal, etc., Co. y. Macdonell, 105 Fed.
268, holding words ** either party " in act March 2, 1899, f oi* remov-
ing suits to Circuit Court in Texas, western district, meant all
parties on either side; Garnell v. Felton, 104 Fed. 162, holding action
against corporation and receiver for personal injuries not remov-
able on petition in which one defendant did not Join, affirming 102
Fed. 370; Calderhead v. Downing, 103 Fed. 29, denying motion to
remand cause when one partner sued for assessment of insolvent
banl£ subsequently joined with partner in partnership petition for
removal; Green v. Heaston, Recr., 154 Ind. 129, 56 N. E. 88, hold-
ing insufficient petition for removal of cause alleging ** diverse
residence " when complaint filed instead of diverse citizenship when
action commenced.
116 U. S. 410^18, 29 L. 671, EUREKA, ETC., CANAL CO. v. SU-
PERIOR COURT OP YUBA COUNTY.
Syl. 1 (XI, 40). Federal question involved but not in record.
Approved in State v. Smith, 177 Mo. 95, 75 S. W. 632, holding
where unconstitutionality of city ordinance raised and determined
below, right to appeal to Supreme Court attached at once.
Distinguished in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S.
15, 45 L. 404, 21 Sup. Ct. 245, holding subsequent consolidation of
exempted railway corporations is new grant of franchise within
Miss. Const. 1890, § 180, subjecting same to taxation.
116 U. S. 418-423, 29 L. 669, O'REILLY v. CAMPBELL.
Syl. 1 (XI, 41). Questions reviewable in absence of findings.
Approved in Pine River Logging & Improvement Co. v. United
States, 186 U. S. 287, 46 L. 11G9, 22 Sup. Ct 923, holding objection
of no evidence to support joint action against all defendants in
trover suit not available for first time in Supreme Court in error.
Syl. 2 (XI, 41). Citizenship of locator first raised on appeal.
Approved in Lohmann v. Hclmer, 104 Fed. 181, holding under
Or. Laws 1899, an alien may inherit mindng claim; Mayor, etc.
V. United States, 104 Fed. 115, holding where allegation in petition
for mandamus against city on judgment of ownership of judgment
not challenged below, cannot be raised on error; Sherlock v. Leigh-
ton, 9 Wyo. 315, 63 Pac. 935, holding adverse claimant to mining
claim failing to question applicants failure to prove citizenship
caunot object on appeal.
Syl. 4 (XI, 41). Mines — Discovery and appropriation as source
of title.
Approved in Tuolumne Cons. Min. Co. v. Maier, 134 Cal. 585, 66
Pac. 864, holding rights acquired by discovery of mineral on mining
claim postponed to easement of appropriator's rights of easement
for previously constructed ditch.
116 U. S. 423-461 Notes on U. S. Reports. 80f
116 U. S. 423-427. 29 L. 677, CARRICK v. LAMAR.
SyL 1 (XI, 41). Mandamus controls only ministerial acts.
Approved in KIrwan v. Murphy, 189 U. S. 56, 23 Sup. Ot 60i. 47
L. 705, refusing icjunction against survey by land department, of
lands claimed as unsurveyed by department, but claimed as owned
by individuals.
116 U. S. 427-135. Not cited.
116 U. S. 436-445. 29 L. 684, COFFEY v. UNITED STATES.
SyL 4 (XI, 42). Internal revenue — Acquittal bars forfeiture.
Approved in The Good Templar, 97 Fed. 653, holding proceeding
under Rev. Stat.. § 4377, for forfeiture of vessel, is civil suit re-
quiring proof to extent of preponderance of evidence; State v. Meek,
112 Iowa, 347, 348, 84 N. W. 6» holding acquittal before Justice of
peace in suit for maintenance of nuisance under Iowa Acts 17th
Gen. Assem., chap. 188, bars suit In equity to abate same; Cooper
V. Commonwealth, 106 Ky. 911. 51 S. W. 790. 90 Am. St Rep. 276,
holding acquittal on indictment for adultery conclusive for defend-
ant in subsequent action for false swearing in former action; State
V. Savage, 64 Nebr. 700. 90 N. W. 901, holding Judgment In favor
of right of board of fire commissioners appointed by previous mayor
res adjddicata preventing ouster; dissenting opinion in Burt v.
Union Cent. L. I. Co., 105 Fed. 424, majority holding no action lies
on insurance policy on life of one convicted of murder.
Distinguished in Burt v. Union Cent. L. I. Co., 105 Fed. 422.
holding no action lies on insurance policy on life of one convicted
of murder.
Syl. 5 (XI, 43). Conclusiveness of Judgment
Approved in People v. Butler Street Foundry, 201 111. 255, 66
N. E. 355, upholding 111. anti-trust law 1891. amended 1893 (Hurd's
Rev. Stat 1899. pp. 616, 617). requiring corporation to answer
concerning violation, not subjecting self to criminal prosecution;
State V. Intoxicating Liquor. Adams, etc., 72 Vt 255. 47 Atl. 779,
holding Judgment that liquors were not Icept with intent to dis-
pose unlawfully is res adjudicata in subsequent civil suit by State
to condemn liquors.
116 U. S. 446-461. 29 L. 691. WALLING v. MICHIGAN.
Syl. 4 (XI, 44). Noncongressional commerce regulation.
Approved in Norfoll:. etc., Ry. Co. v. Sims, 191 U. S. 450, holding
unconstitutional license tax of N. C. Laws 1901, p. 110, § 52,
upon all engaged In selling sewing machines, as applied to ship-
ment of machine into State; Minneapolis, etc., Co. v. M'GlUi-
vray, 104 Fed. 268, holding unconstitutional S. Dal£. Sess. Laws
1897« chap: 72, imposing wholesale liquor license upon dealers,
exempting therefrom local dealers paying lesser manufacturer's
r05 Notes on U. S. Reports. 116 U. a 461-1520
license; State v. Hanaphy, 117 Iowa, 19, 90 N. W. 602, holding Iowa
Code, § 2382, punishing persons aiding in distributing liquor, in-
applicable to traveling salesman for Illinois liquor merchant; Com-
monwealth y. Petranicb, 183 Mass. 219, 66 N. E. 808, holding un-
constitutional Mass. Rev. Laws, chap. 100, § 1, prohibiting sale
of liquor without license excepting sale by manufacturers of
" native wines;" State v. Zophy, 14 S. Dak. 125, 84 N. W. 393, 86
Am. St Rep. 745, holding unconstitutional S. Dak. Sess. Laws 1897,
chap. 72, imposing liquor tax on nonresident dealers, while sub-
jecting residents to lesser manufacturer's license; dissenting opinion
in Austin v. Tennessee, 179 U. S. 374, 45 L. 238, 21 Sup. Ot. 144,
majority affirming conviction for selling cigarettes against Tenn.
Acts 1897, chap. 30, which act was valid as police regulation.
116 U. S. 461^72, 29 L. 688, LONDON ASSUR. CO. T. DRENNEN.
Syl. 2 (XI, 46). Intention to become partners.
Approved in Cannon v. Brush Elec. Co., 96 Md. 469, 54 Atl. 130,
94 Am. St Rep. 5SS, holding where consolidated corporation formed
from two nonresident corporations, legally speaking, rights of con-
solidation stockholders governed by supposed charter, not by rules
of partnership; Baker v. Safe Deposit, etc.. Trust Co., 90 Md. 759,
78 Am. St Rep. 470, 45 Atl. 1031, holding no partnership created
by arrangement of father and sons, he putting in all the capital,
they to share only in net profits after debt paid.
116 U. S. 472-491. Not cited.
116 U. S. 491^99, 29 L. 703, DUNPHY y. RYAN.
Syl. 1 (XI, 47>. Statute of Frauds — Denial of contract
Approved in Hnrailton v. Thirston, 93 Md. 220, 48 Atl. 711, hold-
ing categorical denial of uncle's oral contract to devise one-third
of estate of realty and personalty to plaintiff sufficient to raise
Statute of Frauds.
Syl. 3 (XI, 48). Assumpsit — Money paid on void contract
Approved in Gazzam v. Simpson, 114 Fed. 73, holding plaintiff
suing on void oral contract to vote stock to plaintiffs cannot re-
cover money advanced on implied contract to return.
116 U. S. 499-517, 29 L. 706. OBERTEUFFER v. ROBERTSON.
Syl. 1 (XI, 48). Duties on coverings.
Approved in United States v. Hensel, 98 Fed. 41p, holding ** paint-
ings" under paragraph 454, tariff act 1897, do not include frames
which are dutiable under paragraph 208, not as ** coverings " undei
section 19, act 1890.
' .III.
116 U. S. 517-529, 29 L. 715, COE v. ERROU . v, i
Syl. 2 (XI, 49). Taxation of nonresident's personaltyi
Approved in Kidd v. Alabama, 188 U. S. 732, 23 S-a^l Ct 402, 47
L. 672, upholding Ala. Code 1886, § 453, and 1896, § 2911, taxing rail-
116 U. S. 517-^29 Notes on U. S. Reports. 806
road stock, exempting stock in domestic roads and others that list
substantially all property for taxation; Blackstone v. Miller, 188
U. 8. 204. 205, 207. 23 Sup. Ct 278. 279. 47 L. 445, sustaining New
York tax under Laws 1897. chap. 284, on transfer under will of
Illinois testator of debts due decedent from New York firm; Bristol
V. Washington County. 177 U. S. 145, 44 L. 707, 20 Sup. Ct. 590,
holding investments made for nonresident by resident agent em-
ployed to invest money making loans payable at office, returning
mortgages subject to State taxation; Ruckgaber v. Moore, 104 Fed.
950, holding bequest by nonresident ali'en to nonresident alien daugh-
ter of stock and bonds not taxable under section 29. war revenue act
1898; Hudson v. Miller, 10 Kan. App. 536. 63 Pac. 23. sustaining
Oklahoma tax on nonresident's cattle in county where kept; Griggsry
Construction Co. v. Tax Collector. 108 La. 439. 32 So. 400. holding
I>ersonal property taxed in Texas also taxable in Louisiana; Corry
V. Baltimore City, 96 Md. 322, 53 Atl. 943. sustaining tax on shares
of transportation company nonresident of Maryland, Afits 1898.
chap. 123. preventing taxation not applying to nonresidents of State:
Kelley v. Rhoads, 7 Wyo. 265. 51 Pac. 600. refusing recovery of
taxes paid under Wyo. act February 16. 1895. subsequently re-
pealed, on sheep being driven through State, grazing as they went.
Distinguished in dissenting opinion in Bacon v. Board of State
Tax Comrs., 126 Mich. 42, 85 N. W. 314, majority upholding Mich.
Comp. Laws 1897, § 3831, including in taxable personalty goods and
chattels belonging to inhabitants of Michigan, though situate out-
side State.
Syl. 4 (XI, 49). State tax on goods collected for export.
Approved in Cornell v. Coyne, 192 U. S. 423, 24 Sup. Ct 385.
upholding imposition under act June 6. 1896. of same manufactur-
ing tax on filled cheese designed for export as other filled cheese;
New York v. Knight. 192 U. S. 27, 24 Sup. Ct. 203. upholding New
York t»x on cab service maintained by Pennsylvania Railroad
Company separate from contract of railway carriage; Diamond
Match Co. V Ontonagon, 188 U. S. 93, 96, 23 Sup. Ct 270, 271. 47
L. 400, holding logs cut and floated to boom for shipment beyond
State while ai boom subject to State taxation; Kelley v. Rhoads.
188 U. S. 6, 7. 23 Sup. Ct 261. 47 L. 362, holding fiock of sheep
driven from Utah to Nebraska subject of Interstate commerce, and
not taxable under Wyoming law; Diamond Glue Co. v. United
States Glue Co.. 187 U. S. 617. 23 Sup. Ct 208, 47 L. 333. holding
Wis. Stat 1898, §§ 1770b. 4978, requiring foreign corporations to
file charter, applies to corporation contracting to operate factory
possibly operating beyond State; Johnson v. Southern Pac. Co., 117
Fed. 471, 472. holding dining car sidetracked from use on interstate
train awaiting another interstate train from other direction not
engaged in interstate trafllc; Racine Iron Co. v. McCommons, 111
807
1 U.
. neportB. lie D. S. Q29-538
Oa. 544, 36 S. B. 809. holding interstate commerce clause luappllca-
ble to traveling agent for nonresident principal receiving goods In
original pacliages to exempt lilm from license tax; People v. Enight.
171 N. Y. 359. 64 N. B. 153. holding N. Y. Laws 1890, chap. 90S.
exempting property used in Interstate commerce, inapplicable to
exempt Independent cab service maintained by intet^tate carrier
at terminus; State v. Inlemational, ete., Ry., 31 Tex. Civ. 222. 71
S. W. 993, holding cotton sblpped from Texas point to another,
but deelgned for European market, doI eubject to State railway
commlsBlon's regulation: dlsnenEIng opinion In State v. Gixmnn.
162 Mo. 70. 02 8. W. 848, majority upholding Mo, act May 4.
1899. renulring Inspection of beer and malt liquors and payment of
fee to State.
DiBtlngul&bed In Glbbs v. McNeeley, 118 Fed. 123. Iiolding nn-
iBwfnl under antl-tnist law 18!X>, Wnshliieton asHoclatinn of cedar-
shlngle manufacturers end dealers for purpose of controlling pro-
duction and prices; Kelley v. Rhoada, 7 Wyo. 256, 257, 263, 51 Pac.
596, 597. 599, and Kelley v. Rhoads, » Wyo. 364, 87 Am. St. Rep.
967, 63 Pac. 939, (lotli upboldiiic tax on sheep driven across State
of Wyoming, grazing as tbey went, though owner claimed to be
driving beyond State; reversed In 188 D. S. 6; dissenting opinion In
Cornell v. Coyne. 192 D. a 438. 24 Sup. Ct. 389. majority upholding
Imposition under act June 6. 1896. of same manufacturing tax on
filled cheese designed for export as other filled cheese: dissenting
opinion In People v. Knight, 171 N. Y, 372, 64 N. E. 168, majority
upholding tax on cab service maintained by interstate carrier In-
dependent from carriage contract, under N. Y. Laws 1896, chap.
908. exempting Interstate commerce francblses.
. CHEES-
Sjl. 1 (XI, 61), Mines — Following vein outside lines.
Approved In Montana Mln. Co. v. St Loula Mln.. etc.. Co., J02
Fed. 435. holding trespass will lie for taking ore from adjoining
claim from vein having apex within eurCace lines of plaintiff's
claim; Hayes v. Lavagnlno, 17 Utah, 197. 53 Pac. 1033. holding
under Acts Congress, July 26, 1866, and May 10, 1872. where vein
appears at surface valid location of deep ledge on same vein may be
8yl. 3 (Xr, 51). Mines — What Is vein or lode.
Approved In Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 530,
69 S. W. 575, 91 Am. St Kep. 94, defining vein as continuous body
of "mineralized rock lying within boundaries clearly separating It
frbm neighboring rocks;" Deals v. Cone, 27 Colo. 480, 62 Pac. 953,
sustaining charge defining vein as continuous body of mineral-bear-
ing rock with defined boundaries, though boundaries need not be
disclosed; Butte, etc, Mln. Go. v. Lexington, 23 Mont. 200, 75 Am.
k
1
116 U. S. 53&-666 Notes on U. S. Reports. 808
St Rep. 518, 58 Pac. 113, 115, 116, holding identity of vein through-
out is necessary to follow such vein'extralaterally.
116 U. S. 538-550. Not cited.
116 U. S. 550-566, 29 L. 729, BARRY v. EDMUNDS.
Syl. 3 (XI, 53). Dismissal for want of Federal question.
Approved in Put-in-Bay Water- Works, L. & R. R. Co. v. Ryan, 181
U. S. 431, 45 L. 937, 21 Sup. Ct 717, holding ex parte affidavits
denying that property in dispute equals jurisdictional amount does
not defeat Federal Jurisdiction, where pleadings allege sufficient
value; North American, etc., Co. v. Morrison, 178 U. S. 267, 44 L.
1063, 20 Sup. Gt. 871, holding where plaintiff bases case on claims
assigned by persons unprovable because citizenship not alleged,
mere ad damnum clause gives no Federal jurisdiction; Thompson
V. Southern Ry., 116 Fed. 891, 892, holding under Code Ala., § 3293,
making recovery on separate counts possible. Federal court will
not dismiss complaint in five counts each claiming $1,990 damages;
Greene Co. Bank v. J. H. Teasdale C. Co., 112 Fed. 803, holding " in
action for recovery of money only amount of damages claimed
determines jurisdiction " unless declaration discloses bad faith;
Kunkel v. Brown, 99 Fed. 594, holding amount in dispute for Juris-
dictional purposes is amount bona fide stated in plaintiff's plead-
ings though evidence dieclose mistake of fact
Syl. 4 (XI, 53). Appeal — Demand as amount in controversy.
Approved in Lilientbal v. McCJormick, 117 Fed. 95, holding in suit
to enforce contract lien to secure advances and damages for breach,
sum of such claims made in good faith determined jurisdictional
amount; Battle v. Atkinson, 115 Fed. 385, holding Federal court has
no jurisdiction of unlawful detainer suit for land rental value being
$125, though damages claimed to value of fee $5,000; Ung Lung
Chung V. Holmes, 98 Fed. 325, holding in action on hopyard lease
jurisdictional amount, that claimed by plaintiff's declaration in good
faith though evidence fail to sustain claim.
Syl. 5 (XI, 54). Exemplary damages recoverable for wanton in-
Jury.
Approved in Craven v. Bloomlngdale, 171 N. Y. 447, 64 N. E. 171,
holding erroneous charge that jury might award punitive damages
against master for illegal arrest caused by servant without re-
quiring finding of servant's wantonness; Denison, etc., Ry. v.
Randell, 29 Tex. Civ. 463, 69 S. W. 1015, holding evidence that con-«
ductor struck plaintiff, although assured of payment of fare, war-
ranted submission of question of punitive damages to jury.
Syl. 6 (XI, 54). Damages in tort question for jury.
Approved in Wiley v. Snikler, 179 U. S. 65, 45 L. 88, 21 Sup. Ct.
20, holding since damages constitute question for jury, Federal
800 Notes on U. S. Reports. 116 U. S. 567-^592
court cannot disclaim Jurisdiction of suit for damage for rejection
of vote, damage claimed $2^00; dissenting opinion In Giles v. .
Harris, 189 U. S. 492, 23 Sup. Ct 648, 47 L. 914, majority dismissing
bill to compel county board of registrars to enroll negro upon voting
lists.
116 U. S. 567-n572, 29 L. 727, CHAFFIN v. TAYLOR.
SyL 2 (XI, 55). Questions reviewable on second appeaL
Approved in Texas, etc., Ry. Co. v. Wilder, 101 Fed. 199, holding,
where question of measure of damage considered by appellate court
in railway accident case, not re-examined on error.
116 U. S. 57^-584, 29 L. 735, ROYALL v. VIRGINIA.
Syl. 3 (XI, 56). Attorney's license Is occupation tax.
Approved in Gundling v. Chicago, 177 U. S. 189, 44 L. 729, 20 Sup.
Ct 636, affirming conviction under Chicago ordinance for selling
cigarettes without license; Danville v. Hatcher, 101 Va. 528, 44
S. E. 725, sustaining Danville ordinances regulating open hours for
saloons and license tax thereon, such ordinances being passed in
good faith; FarmviUe v. Walker, 101 Va. 329, 43 S. E. 560, 561,
upholding Va. Acts 1901, chap. 113, to establish dispensary for sale
of liquors In FarmviUe, giving council power to regulate sale there-
from.
(XI, 55). Miscellaneous.
Approved In Snyder v. Bettman, 190 U. S. 253, 23 Sup. Ct 804,
47 L. 1037, upholding succession tax imposed on bequest to munici-
pality for public purposes under act Congress June 13, 1898; South-
ern Exp. Co. v. Mayor, etc., 116 Fed. 759, 760, holding rule for-
bidding equity to stay criminal proceedings inapplicable to action
to enjoin enforcement of invalid license tax.
116 U. S. 585-587. Not cited.
116 U. S. 588-592, 29 L. 725, HARTOG v. MEMORY.
SyL 1 (XI, 56). Courts — Plea in abatement to combat record.
Approved in Adams v. Shirk, 117 Fed. 803, 804, holding under act
Congress March 3, 1875, providing for dismissal of suits, plain-
tUTs allegation of citizenship not overcome by deuinl no plea In
abatement; Desert-King Min. Co. v. Wedeklnd, 110 Fed. 877, hold-
ing motion to dismiss improper mode of raising objection to juris-
diction of court, defect not apparent on face of bill.
SyL 3 (XI, 57). Appeal — Evidence to dismiss.
Approved in Reavls v. Reavis, 101 Fed. 21, 22, holding under rule
that objection to jurisdiction may be taken in answer upon denying
jtirisdictional averments, motion to dismiss based thereon does not
waive other defenseat
116 U. S. 593-615 Notes on U. S. Reports. 810
Syl. 4 (XI, 57). Inquiry into jurisdiction sua sponte.
Approved in Terry v. Davy, 107 Fed. 52, sustaining court's sub-
mission of question of jurisdiction raised by plea in abatement
alleging common citizenship to jury as independent question.
Syl. 5 (XI, 57). Hearing on objection to Jurisdiction sua sponte.
Approved In Huntington v. Laidley, 176 U. S. 678, 44 L. 635, 20
Sup. Gt 529, holding erroneous Circuit Court's dismissal of suit
to cancel deed as cloud on title for want of jurisdiction on ground
that merits were res ad Judicata.
110 U. S. 593-598, 29 L. 723, SHEPARD v. CARRIGAN.
Syl. 1 (XI, 57). Patents — Dropping new elements to catch In-
fringer.
Approved in Hubbell v. United States, 179 U. S. 80, 83, 45 li.
98, 99, 21 Sup. Ct. 25, 26, holding Hubbell patent metallic cartridge,
where openings of anvil plate coincide with edges of fulminate
chamber, not infringed by patent with vents differently situated;
Safety Oiler Co. v. Scoville Mfg. Co., 110 Fed. 205, holding limita-
tion inserted in application after its rejection to meet patent
officer's objection must be used in construing patent issued.
116 U. S. 599-605, 29 L. 740, MING v. WOODFOLK.
(XI, 59). Miscellaneous.
Approved in Brown v. Clow, 158 Ind. 419, 62 N. B. 1012, hold-
ing transfer by corporation of all but $3,000 of $200,000 capital to
another company to build works violates statute requiring col-
lection of stock in eighteen months.
116 U. S. 605-609, 29 L. 745, LIEBKE v. THOMAS.
Syl. 2 (XI, 59). Composition discharges debts same as bankruptcy.
Approved in United States v. Hammond, 104 Fed. 863, holding
appeal lies from order of District Court refusing confirmation of
bankrupt's composition.
116 U. S. 609-615, 29 L. 742, JONES v. SIMPSON.
Syl. 1 (XI, 59). Vendor's admissions after sale as res gestae.
Approved in Bush, etc., Co. v. Helbing, 134 Cal. 680, 66 Pac
969, holding admissible in action by creditor of grantor in secret
deed declarations made after execution thereof as part of res
gestse.
Syl. 2 (XI, 60). Fraudulent conveyances — Intent irrespectlye of
consideration.
Approved in Fischer v. Lee, 98 Va. 162. 35 S. E. 441, holding
where plaintiff sold pianos without reserving lien and vendee
pledged for usurious loans, pledgees were bona fide holders.
811
Notes on 0. S. Reports. IIG V. S. 616-641
Syl. 3 (XI, 60). Fraudulent conveynuceB — Intent of vendor and
vendee.
Approved In United States v. Detroit Tlmher & Lumber Co.. 134
Fed. 401, 402, holding in suit by United States to oaaeel patent
regularly Isflued, fraud muBt be aliown by satisfactory evidence,
furnishing money to make entry Insufficrlent: Jacobs v. Van Slckel,
123 Fed. Ml, holding conveyance by bankrupt to father-in-law to
eecnre bona fide indebtedness of bankrupt for advances not fraudu-
lent; Freese v. Kemplay. 118 Fed. 429, bolding admlaalble to show
fraudulent Intent evidence of vendor's HtatementB made prior to
sale; Corwine v. Thompson Nat. Bank, 105 Fed. 199, upholding
deeds of father indebted to corporation as Indorser of notes, con-
veying property to cliildren for adeiiuate consideration; Cox v.
WaU, 132 N. C. 741. 44 8. B. 638. bolding under N. C. Code 1883.
I 1548. burden of proof rests upon grantee of bankrupt to ahow
laluable consideration and ignorance of fraud; Compton. Ault, etc.,
Co. V, Marshall, SS Tei. 57, 29 S. W. 1050, holding allegation In
petition to set aside trust deed securing grantor's debts, that Buch
debts tvere Gctitlous does not shift burden to trustees.
116 U. S. 6HJ-641, 29 L. 740. BOYD v. DNITBD STATES.
Syl. 1 (XI, 00). Compelling production of private papers.
Approved la Mallett r. North Carolina, 181 U. S. 600, 46 L. 1021,
21 Sup. Ct. 734, holding Federal question as to admission of de-
fendant's account-books not passed on by Supreme Court where
question not raised in lower court
Syl, 2 (XI. 601, Seizure ot private papers.
Approved In Adama v. New York, 192 U, 8. 597. 698. 24 Sup. Ct.
375, upholding N. Y. Penal Code, i 344b, making possession of
record of chances In policy game prima facie evidence of knowingly
possessing, against violation of section 344a; State v. Weight, 117
Iowa. 661. 662, 663, 664, 91 N. W. 038, 939, holding compulsory
physical examination of person accused of rape to ascertain
presence of venereal disease alleged to have been communicated to
prosecutrix violates Const., art. 1, i 0; State v. Faulkner, 176 Mo.
606, 609, 75 S. W. 135, 130. bolding In prosecution for perjury
before grand jury during Investigation of bribery charge, admis-
sion of agreement between offerer of bribe and couuctlraan im-
proper; Ex parte Wilson, 39 Tex. Cr. 638, 47 S. W. 1000, holding
witness before grand jury need not produce bill of sale under
which he claims property where such bill would Incriminate him
as to forgery; State v. Slamon, 73 Vt. 214, 215, 87 Am. St Rep.
T13, 50 Atl. 1093, 1099, holding introduction by State In prose-
cution for larceny of letter Illegally taken from defendant by ofllcer
violates Constitution; dlsaenting opinion in In re Davles, 168 N. T.
112, 61 N. H. 125. majority upholding N. Y. Laws 1899. chap. 690,
aatborlzlng examination of peraons by order of court on petition
J
116 U. S. 616-641 Notes on U. S. R^orts. 812
of attorney-general for evidence In subsequent suits. See 75 Am.
St Rep. 328, note.
Distinguished In State v. Stoffels, 89 Minn. 210, 94 N. W. 677,
holding liquors and appliances used In sale thereof found on prem-
ises competent evidence in action under Minn. Laws 1901, for
unlawful sale; People v. Adams, 176 N. Y. 358, 68 N. E. 638, up-
holding N. Y. Penal Code, § 344a, for admission of evidence as to
private papers of defendant charged with policy playing; State v.
Edwards, 51 W. Va. 230, 41 S. E. 433, holding In prosecution for
grand larceny In card game instruments or cards used In com-
mission of crime competent evidence against accused.
Syl. 8 (XI, 62). Nonproduction of papers as confession.
Approved in M'Knight v. United States, 115 Fed. 979, holding
to permit demand on defendant charged with embezzlement, in
presence of Jury, to produce paper with Incriminatory evidence
violates Fifth Amendment; Owyhee Land & Irr. Co. v. Tautphaus,
100 Fed. 649, holding before defendant can be held In default for
failure to produce books, under Rev. Stat., § 724, court must de-
termine evidence pertinent and order production; Newgold v. Ameri-
can EL, etc., Co., 108 Fed. 343, holding In action, under Rev. Stat.,
§ 4901, to recover penalties for falsely marking article as patented
defendant cannot be compelled, under section 724, to produce books
against himself; State v. Donovan, 10 N. Dak. 208, 86 N. W. 711,
upholding admission of record of sales required of druggists by
N. Dak. Rev. Codes, § 7596, in action, under section 7605, for
selling liquor.
Syl. 5 (XI, 62). Forfeiture proceedings are criminaL
Approved in Robson v. Doyle, 191 IlL 570, 61 N. E. 437, holding
Improper bill of discovery to compel defendant to answer con-
cerning gambling transactions to assist recovery in suit for penal-
ties under IlL Crim. Code, § 137; dissenting opinion In Dodge v.
Cornelius, 168 N. Y. 249, 61 N. B. 247, majority holding in action
for statutory penalty against witness to will, another action pend-
ing for same penalty no defense where not shown pending when
suit begun. See 75 Am. St Rep. 323, note.
Distinguished in Southern Ry. Co. v. Bush, 122 Ala. 488, 26 So.
173, holding damages recoverable, under Ala. Code 1896, § 27, for
wrongful death not penalty, hence engineer's answers to Inter-
rogatories properly admissible.
SyL 6 (XI, 63). Constitutional guaranties liberally construed.
Approved in Fairbank v. United States, 181 U. S. 301, 45 L.
870, 21 Sup. Ct. 655, 656, holding stamp tax imposed on foreign
bill of lading by act Congress June 13, 1898, tax on exports and
void; McKnight v. United States, 115 Fed. 981, holding demand
made in presence of Jury on defendant in embezzlement case to
produce Incriminatory papers violates Fifth Amendment; Rlpon
Knitting Works v. Schreiber, 101 Fed. 812, holding Bankruptcy
813
Notes on U. B. Reports. 116 V. S, B12^C0
Court has power to commit baiiKnipi to Jail to compel him to
turn over property to trustee; State v. Gardner. 88 Minn. 138, 92
N, W. 533, quflsbing iDdlctinent where defendaut charged with
receiving bribe was compelled to testify before grand Jury against
blmeelf; In the Matter of Charles Green. 80 Mo. App. 221, dia-
cbarglog on haheas corpus witness arrested for refusal to answer
question as to whetbec witness embezzled and concealed money
aBd effects of deceased; Thornton t. State. 117 Wis, 341, 93 N. W.
1107, 1108. holding admissible In rape case evidence of comparison
"of tracks" left In snow with defendant's shoe given to sheriff
by defendant on request after arrest; dissenting opinion In Mai-
well V. Dow. 176 U. S. 017. 44 L. 611. 20 Sup. Ct 408. majority
Upholding Utah practice of prosecuting by Information and con-
stituting Jury of eight.
Syl. 7 (XI, 64). Customs forfeiture proceedings are criminaL
Approved In United States t. Riley. 104 Fed. 275. holding action
by United States to enforce forfeiture of imported goods for un-
dervaluation, under eection 9 of act June 10, 1890, Is penal, abating
with death; People v. BuUer St. Foundry, 201 IlL 255, 66 N. B.
355, upholding III. anti-ti-ust law of 1891, requiring corpora-
tion to answer iaijuiries of secretary of State touching violation
of act, not however subjecting to criminal prosecution; Blum
r. State. 94 Md. 382, 384, 51 Atl. 29. holding person charged with
obtaining money under false pretenses cannot be compelled to
produce boolcs of account as evidence against him.
DlsUngulshed in The Good Templar. 97 Fed. 603, holding pro-
ceeding, under Rev. Stat Mass., } 4377, for forfeiture of vessel
for carrying smuggled goods Is civil suit, requiring mere prepon-
derating evidence.
(XI, 00). Miscellaneous.
Approved in State v. Kline, 109 La. 621, 33 So. 625. holding
admissible In action of larceny written testimony of witnessea
permanently absent from jurisdiction, talien committing magistrate
In presence of defendant
116 U. S. 642-660. 29 L. 735. NORTHERN PAC. R. R. t. HBRBBRT.
SyL 1 (XI, 64). Selecting proper juror cures erroneous exclusion.
Approved In Marande v. Texas & P. Ry. Co., 124 Fed. 45, hold-
ing error, If any, In excusing Juror for bias not prejudicial to
plaintiff in cotton Insurance case where talrnesa of jury not ques-
Uoned; Knights of Pythias v. Steele, 108 Tenn. 028, 69 S. W. 337,
holding disallowing peremptory challenge to nonobjectlonable juror
after peremptory challenges exhausted harmless error.
Syl. 2 (IX, 65). New trial denied In remitting excess damages.
Approved In Chicago T., etc., Co. v. O'Marr, 26 Mont 247, 249, 64
Pac. 506, 509, holding la action of conversion where court deema
L
4
116 U. S. 642-660 Notes on U. S. Reports. 814
damages excessive It may giye plaintiff option of remitting excess
or talcing new trial.
Syl. 3 (XI, 65). Liability of master for fellow servant's acts.
Approved in Weekes v. Scharer, 111 Fed. 335, holding shift boss,
charged with direction of men, but not hiring or discharging them
Is their fellow servant, hence no recovery for his negligence;
Stuber v. Louisville, etc., R. R. Co., 102 Fed. 423, holding skilled
machinist employed to oversee company's pumps and tanks not fel-
low servant of engineer with whom riding to work; Maryland
Clay Co. V. Goodnow, 95 Md. 343, 51 Atl. 295, holding superint^d-
ent of clay-refining works fellow servant of workman to avoid
recovery for injuries; Baltimore Boot, etc., Co. v.Jamar, 93 Md.
413, 49 Atl. 850, holding convict assigned by warden to defendant
contractor to operate elevator may recover for injuries sustained
therefrom; dissenting opinion in Missouri, etc., Ry. v. Elliott, 102
Fed. 112, majority holding train dispatcher "giving orders for
movement of trains not fellow servant of trainmen, to exempt com-
pany from liability for negligence.
Distinguished in Shannon v. Consolidated Tiger, etc., Min. Co.,
24 Wash. 132, 64 Pac. 173, holding men of oncoming shift may
recover for injury from explosion of missed hole of which foreman
of outgoing shift failed to warn.
Syl. 4 (XI, 66). Delegation of master's duty.
Approved in Choctaw, Oklahoma, etc, R. R. Co. v. McDade, 191
U. S. 68, 24 Sup. Ct. 25, holding negligence in law for railroad to
maintain water spout attached to water tank so as to hang over
track, rendering company liable for death of brakeman; Sweusen v.
Bender, 114 Fed. 7, holding servant may recover for injury received
from caving of tunnel defectively timbered, though timbers put
up by fellow servant to hide danger; Cincinnati, etc., Ry. Co. v.
Gray, 101 Fed. 629, holding receiver liable for death of yard foreman
caused by derailment of car in passing over new switch, the work-
ings of which receiver did not explain; Toledo Brewing, etc., Co. v.
Bosch, 101 Fed. 533, holding engineer of Ice machine may recover for
injuries from appliances though defective condition caused by con-
tractor employed to repair premises; Port Blakely Mill Co. v. Gar-
rett, 97 Fed. 539, holding company liable for injuries of employee
due to breaking of side standard of flat car though placed there by
coservant; Supple v. Agnew, 191 111. 447, 61 N. E. 395, holding em-
ployee may recover for injuries from log being removed by •* dolly "
where plaintiff was inexperienced and not aware that insufficient
men were used; Mclntyre v. Detroit Safe Co., 129 Mich. 389, 89 N.
W. 40, holding teamster hauling steel to defendant injured by
breaking of timber of platform scales may recover therefor; Carroll
V. Tidewater Oil Co., 67 N. J. L. 684, 52 Atl. 277, holding laborer
Injured by falling of loose flywheel of punching machine while
815 Notes on U. S. Reports. 116 U. S. 661-671
moving same may recover for company's failure to inspect machine;
Hill V. Southern Pac. Co., 23 Utah. 102, 63 Pac. 816, holding question
for jury where plaintiff was injured while working underneath car
placed on candlesticl^s and blocks, not negligence in law. See 75
Am. St Rep. 628, note.
Distinguished in St. Louis Cordage Co. v. Miller, 126 Fed. 498,
holding girl injured by slipping fingers into cogs of forming machine,
where such cogs were uncovered and danger apparent, assumed risk
and without redress; Cerrillos Coal R. R. Co. v. Deserant, 9 N. Mex.
58, 49 Pac. 808, 809, holding company not liable for injury from
gas explosion in coal mine, caused by fellow workman taking naked
light into mine against known command of company; Konold v.
Rio Grande Western, etc., Ry. Co., 21 Utah, 397, 398, 399, 60 Pac.
1024, 1025, holding erroneous in boiler explosion case Instruction
that plaintiff did not assume risk from defective machinery, con-
tract implying defendant would guard against such dangers.
Syl. 6 (XI, 69). Railroad liable for defective cars.
Approved in New Orleans, etc., R. R. Co. v. Clements, 100 Fed.
422, holding brakeman may recover for. injuries received while
releasing set brake on freight car where defect not ascertained by
proper inspection; Budge v. Morgan's Louisiana, etc., R. S. Co., 106
La. 365, 32 So. 542, holding railroad hauling cars of other company
over its road owes employees same duty of inspecting as if own cars.
Syl. 9 (XI, 70). Brakeman must use ordinary care.
Approved In Kansas City, etc., Ry. y. Billingslea, 116 Fed. 342,
holding switchman knowing of loose stones in yard, consenting to
work on foreman's promise to clear, assumes risk and must use
eyes to avoid danger; Mason, etc., R. R. Co. v. Yockey, 103 Fed.
269, holding question of fireman's negligence in working in cab on
Ice formed from steam escaping from defective valve properly left
to jury.
116 U. S. 661-664. Not cited.
116 U. S. 665-671, 29 L. 770, VICKSBURG, ETC., R. R. v. DENNIS.
Syl. 1 (XI, 70). Supreme Court determines effect of State law.
Approved in Steams v. Minnesota ex rel. Marr, 179 U. S. 233, 45
L. 170, 21 Sup. Ct. 77, upholding power of Federal court to review
contracts between State of Minnesota and railroads by S. P. Laws
1865, 1870, exempting roads from taxation.
Syl. 2 (XI, 71). Tax exemption not presumed.
Approved in Wisconsin & M. Ry. Co. v. Powers, 191 U. S. 387,
holding Mich, act May 27, 1893, providing that established rate of
taxation should not apply to certain railroads until earnings were
so much, created no contract exemption; American, etc., Guarantee
Co. V. Home Water Co., 115 Fed. 178, holding franchise granted by
116 U. S. G71-704 Notes on U. S. Reports. 816
city under legislative authority to water company is law of State,
and suit to restrain same involves Federal question; Atlantic, etCn
It. R. V. Lesueur, 2 Ariz. 431, 19 Pac. 159, liolding exemption of right
of way does not exempt railway property thereon; Waller v.
Hughes, 2 Ariz. 123, 11 Pac. 125, holding mines to which patents
have been issued are real estate taxable within section 5, Ariz.
Comp. Laws, chap. 33; Murray v. Montrose Co., 28 Colo. 429, 65
Pac. 27, holding where company made deeds vesting in consumers
right to use certain amount of water, title being retained, ditch
not exempt from taxation under Colorado Constitution; Yazoo, etc.,
R. R. Co. V. Adams, 81 Miss. 114, 32 So. 946, holding where railroad
had escaped taxation under invalid exemption clause of charter
legislative provision for collection of bacli taxes valid; Nashville
M., etc., Co. V. Davidson County, 106 Tenn. 263, 61 S. W. 60, hold-
ing Tenn. act 1831, chap. 46, giving tumpllie corporation rights of
predecessor which included right to have no road built to prejudice
was inviolable contract.
116 U. S. 671-687, 29 L. 764, HIGGINS v. McCRBA.
Syl. 4 (XI, 72). Set-off for money paid on illegal contract
Approved in Parker v. Moore, 115 Fed. 804, holding S. O. Rev.
Stat, S 1859, prohibiting cotton contracts for future delivery unless
bona fide intention to deliver exist not preclude recovery of,
broker's advances; Central Stock, etc.. Exchange v. Bendlnger, 109
Fed. 928, holding defendant receiving money intrusted to agent to
purchase bonds, and using same as margins in gambling trans-
actions, liable for whole amount.
116 U. S. 687-699, 29 L. 774, REYNOLDS v. IRON SILVER MIN.
CO.
Syl. 5 (XI, 73). Placer claim does not carry lode.
Approved in Kansas City M., etc., Co. v. Clay, 3 Ariz. 333, 29
Pac. 12, holding under Rev. Stat, % 2258, reserving from pre-emption
lands on which known mines existed, defendant in ejectment may
show such mine.
Distinguished in Standard Quicksilver Co. v. Habishaw, 132 Gal.
120, 64 Pac. 115, holding in action by homesteader to quiet title
shaft sunk and previously abandoned disclosing streak of cinnabar
ore Insutliclent evidence of known mine.
116 U. S. 699-704. Not cited.
OXVII UNITED STATES.
117 U. S. 1-34, 29 L. 791, EXPRESS OASES.
Syl. 2 (XI, 75). Railroads doing express business.
Approved In Baltimore & Ohio, etc., Ry. v. Volgt 176 U. S. 508,
616, 517, 44 L. 566, 509, 20 Sup. Ct 388, 391, holding express mes-
senger in express car not passenger, hence company may limit
negligence liability by contract; Donovan v. Pennsylvania Co., 120
Fed. 217, 218, holding railroad may exclude haclcmen from ob-
structing station entrance by congregating thereabouts, interfering
with company's right of property; Whitney v. N. Y., etc., R. B.
Co., 102 Fed. 854, holding plaintiff changing to different employment,
still with railway company, stipulating for free passage to new
work, passenger entitled to recover regardless of exemptions; Blanlc
T. Illinois, etc., R. B. Co., 182 111. 337, 55 N. E. 333, upholding con-
tract with railroad exempting It from liability to express mes-
senger for negligence.
Syl. 3 (XI, 76). Courts arranging business Intercourse.
Approved in Lundquist v. Grand Trunk Western By. Co., 121 Fed.
918, upholding railroad company's right to charge different rates
di carload shipments of single shipper and of several shippers
combining; Central Stock Yards Co. v. Louisville & N. B. B. Co.,
118 Fed. 119, holding railroad company affording ample stockyard
facilities not required to deliver stock to connecting roads for de-
livery at other yards; Southern Pac. Co. v. Colorado, etc., Iron
Co., 101 Fed. 786, holding interstate commerce commission power-
less to fix rate on steel rails and iron from Pueblo to San Fran-
cisco, based on Chicago rates; Western U. T. Co. v. Myatt, 98 Fed.
843, holding telegraph company entitled to injunction restraining
enforcing rate fixed by Kansas court of visitation where such rate
deprives of property; Pittsburg, etc., B. B. Co. v. Mahoney, 29 Ind.
App. 656, 63 N. E. 231, reaffirming rule that railway company may
contract exemption for negligence toward express companies; State
V. Johnson, 61 Kan. 819, 60 Pac. 1074, holding unconstitutional
Kan. Laws Spec. Sess. 1898, chap. 28, establishing court of visi-
tation conferring powers mingling legislative and judicial function,
as fixing of rates; State v. Associated Press, 159 Mo. 422, 457, 462
(see 60 S. W. 93, 105, 106), holding court will not issue mandamus
to compel associated press to make contract to furnish news;
Bilssouri, etc., By. v. Carter, 95 Tex. 477, 479, 68 S. W. 165, 166,
VoL 11 — 52 [817]
117 U. S. 34-71 Notes on U. S. Reports. 818
upholding contract of railway company with saw-mlll owner to
build switch for latter on consideration of release from liability
for killing stock.
117 U. S. lA-Ql, 29 L. 785, PICKARD v. PULLMAN, ETC., CAR CO.
Syl. 1 (XI, 77). Commerce — Taxing lease sleeping cars.
Approved in Allen v. Pullman Co., 191 U. S. 178, 183, 24 Sup. Ct.
40, 41, 43, holding void Tennessee tax of $500 on sleeping cars of
companies without distinction, but upholding annual $3,000 tax on
sleeping-car companies carrying local passengers; Lottery Case, 188
U. S. 351, 23 Sup. Ct 325, 47 L. 499, holding carriage by interstate
express company of lottery tickets between States constitutes in-
terstate commerce within congressional power to regulate or pro-
hibit; Fairbank v. United States, 181 U. S. 306, 45 L. 872, 21 Sup.
Ct. 657, holding unconstitutional act Congress June 13, 1898, impos-
ing stamp tax on foreign bill of lading; Southern Exp. Co. v. Ensley,
116 Fed. 758, holding unconstitutional city ordinance requiring local
and interstate express company to pay license fee and allowing
recovery of amount paid thereunder; In re Appeal of Union Tank
Line Co., 204 111. 351, 68 N. E. 505, holding cars of foreign tank
iine company merely in transit not taxable In Missouri; State v.
1 anda Cattle Car Co., 85 Minn. 460, 89 N. W. 67, holding un-
constitutional for unequal taxation Minn. Laws 1897, chap. 160,
taxing property within State belonging to interstate corporations
at rate different than other property; State v. Northern Pac. Exp.
("o.. 27 Mont 426, 71 Pac. 407, holding unconstitutional Mont
Pol. Code, § 4074, imposing occupation tax on " any carrier " trans-
mitting p:oods from one place to another; dissenting opinion in
Austin V. Tennessee. 179 U. S. 374, 45 L. 238, 21 Sup. Ct 144, ma-
jority upholding Tenn. Acts 1897, chap. 30, prohibiting sale of
clparettes and penalizing violation thereof.
nistlnj?ulshed in Atlantic & Pacific Tel. Co. v. Philadelphia. 190
U. S. 102. 23 Sup. Ct 818, 47 L. 999, holding interstate telephone
oonipnny liable to reasonable municipal license for enforcing local
supervision over poles and wires; Pullman Palace Car Co. v.
Adams. 78 Miss. 831. 30 So. 758, upholding Miss. Code 1892. § 3387,
lm[>osinK privilege tax of $100 on sleeping oars and twenty-flve cents
per mile for road, applying only within State.
117 U. S. 52-71, 29. L. 805, HAGOOD v. SOUTHERN.
Syl. 2 (XI, 78). Suit against officer as against State.
Approved In Smith v. Reeves, 178 U. S. 447, 44 L. 1146, 20 Sup. Ct
023, holding action against California State treasurer In official
capacity amounts to suit against State, not maintainable in Federal
court; Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, holding suit to
enjoin attorney-general from enforcing rate schedule alleged to be
unconstitutional not suit against State within Eleventh Amend*
S19 Notes on U. S. Reports. 117 U. S. 72-122
ment; State v. Chicago, etc., R. R. Co., 61 Nebr. 649, 85 N. W. 667,
holding Circuit Court cannot lawfully forbid attorney-general from
suing for penalties claimed under freight law (Comp. Stat. Nebr.
1899, chap. 72, § 12); Salem Mills Co. v. Lord, 42 Or. 89, 94, 69 Pac
1035, 1037, upholding Jurisdiction over action against State offi-
cers to enjoin use of more water than contract entitled State to
use; dissenting opinion in White v. Auditor, 126 N. g. 604, 36 S. B.
142, majority holding mandamus should Issue to State auditor
compelling issue of warrant for salary of inspector of oyster in-
dustry, name of office having been changed.
Syl. 3 (XI, 80). Suits against State officers.
Approved in Morenci Copper Co. v. Freer, 127 Fed, 204, holding
suit by copper company to restrain West Virginia attorney-general
from instituting suit in name of State for forfeiture of charter
suit agaiost State; Farmers' Nat Bank v. Jones, 105 Fed. 464, dis-
missing bill to compel State officers to issue bonds to refund bonded
Indebtedness; dissenting opinion In South Dakota v. North Carolina,
192 U. S. 331, 349, 24 Sup. Ct. 281, 289, majority upholding Federal
jurisdiction over suit by South Dakota, as donee of bonds issued by
North Carolina, to subject railway stock mortgaged to secure same.
117 U. S. 72-^. Not cited.
117 U. S. 96-122, 29 L. 811, LEATHER MANUFACTURER'S BANK
v. MORGAN.
SyL 1 (XI, 80). Relation of bank and depositor.
Approved in Kenneth In v. Co. v. Bank, 96 Mo. App. 138, 142, 70
S. W. 177, 179, holding bank's payment to depositor's bookkeeper —
unsigned check — constituted negligence regardless of estoppel
against depositor for failure to examine accounts; Quattrochi Bros,
v. Farmers', etc., Bank, 89 Mo. App. 508, holding bank pass-book,
In nature of receipt, not contract for payment of money within ten-
year statute of Rev. Stat, § 4272.
Syl. 2 (XI, 80). Bank depositor must examine book promptly.
Approved in Young v. Baker, 29 Ind. App. 139, 64 N. E. 57, hold-
ing negotiable note payable at bank, contalnlog waiver of present-
ment, not sufficient to warrant payee to fill blank; Kenoeth Inv. Co.
V. Bank, 96 Mo. App. 142, 145, 70 S. W. 178, 179, holding payment
by bank of unsigned check presented by bookkeeper of depositor,
who appropriated same, constituted negligence in bank regardless
of estoppel against depositor; Neal v. First Nat. Bank of Lebanon,
26 Ind. App. 511, GO N. E. 167, holding bank not liable to husband
for payment of forged checks where husband learns of wife's for-
gery, examines pass-book, but makes no complaint to bank; Nodlne
T. First Nait. Bank, 41 Or. 390, 68 Pac. 1111, holding account from
month to month given depositor by bank, and final delivery of pass-
book accepted by depositor, become account stated by six years*'
117 U. S. 123-139 Notes an U. 8. Reports. 82C
delay; Bank ▼. Morgan, 108 Fed. 730, majority holding insnfUclent as
complaint on account stated, one setting out contract onder which
plaintiff claims amount due, alleging defendant's acceptance of
statement and payment thereon.
Distinguished in Critten v. Chemical Nat Bank, 171 N. Y. 226,
230, 63 N. B. 971, 973, holding depositor neglecting to verify vouch-
ers returned by bank and failing to discover forgeries, not estopped
to claim forgery.
Syl. 5 (XI, 81). Estoppel against depositor by negligence.
Approved in Fitzgerald v. First Nat. Bank, 114 Fed. 481, holding
one accepting or delivering without objection account stating debits
and credits is estopped to deny correctness in absence of ftaud;
Kenneth Inv. Co. v. Bank, 96 Mo. App. 145, 70 B. W. 180, holding
payment by bank of unsigned check presented by bookkeeper of
depositor, who appropriated same, constituted negligence in bank
regardless of estoppel against depositor; National Bank v. National
Bank, 31 Tex. Civ. 310, 311, 71 S. W. 614, holding plaintiff bank
precluded from recovering money where its cashier Instructed de-
fendant bank to use deposit to pay individual note, cashier ab-
sconding after six months; Blyth, etc., Co. v. Houtz, 24 Utah, 72, 66
Pac. 614, holding sixteen months' delay in informing respondents of
deficiency in number of machine securing appellant's notes bar
them from asserting warranties of mortgagor; Locklin v. Davis, 71
Vt. 322, 45 Atl. 224, holding wife estopped to claim goods sold hus-
band by creditor, relying on appearances, uncontradicted by wife,
that husband owned business; McCord v. Hill, 117 Wis. 315, 94 N. W.
68, holding contesting claimant beaten before land department,
signing valid agreement to make no claim, estopped to claim under
previous settlement
117 U. S. 123-129, 29 L. 837, CHICAGO, ETC., RY. v. OHI.B.
Syl. 2 (XI, 83). Verdict based on evidence not overturned.
Approved in Harding v. Harding, 140 Cal. 691, 74 Pac. 284, hold-
ing jury's finding on conflicting evidence of bona fides of plaintiff's
residence in divorce proceedings not reviewable on appeal; Town of
Weston V. Ralston, 48 W. Va. 187, 36 S. E. 453, canceling deeds
obtained to cloud title to land which Court of Appeals determined
part of highway, where lower court failed to put public in pos-
session.
117 U. S. 129-139, 29 L. 830, TENNESSEE v. WHITWORTH.
Syl. 1 (XI, 83). Taxable elements of corporations.
Approved in Louisville, etc., R. R. v. Wright 116 Fed. 672, 675.
holding under Georgia law shares of stock, owned by citizens of
State in domestic or foreign railtx>ads which pay taxes thereon arc
not taxable; State v. Travelers' Ins. Co., 73 Conn. 275, 47 Ati. 30a
821 Notes on U. 8. Reports. 117 U. S. 189-180
upholding Conn. Gen. Stat, §§ 3836, 3916, taxing shares of Insur-
ance companies owned by residents deducting value of realty, of
nonresidents on marliet value.
Syl. 5 (XI, 84). Exemption of '* capital stock ** exempts shares.
Approved in dissenting opinion In Citizens' Bank v. Parker, 192
U. S. 90, 24 Sup. Ct 188. majority holding La. act January 30,
1836, exempting capital of bank from any tax, prevented imposi-
tion of license on bank's business; dissenting opinion in Bacon v.
Board of State Tax Comrs., 12G Mich. 41, 85 N. W. 314, majority
upholding Mich. Comp. Laws, 1897, S 3831, including in taxable
personalty shares in corporations organized in Michigan except when
exempt and shares in foreign corporations.
117 U. S. 139-150, 29 L. 833, TENNESSEE v. WHITWORTH.
Syl. 3 (XI, 85). Powers of consolidated corporation.
Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S. 20, 45
L. 406, 21 Sup. Ct. 247, holding consolidation of railroads enjoying
tax exemption was new grant of corporate franchises within Miss.
Const. 1890, § 180, and subject to taxation thereunder; Bancroft v.
Wicomico County Comrs., 121 Fed. 880, holding Md. Code Pub.
Gen. Laws, art. 23, providing mortgage purchaser may form new
corporation to possess powers and immunities of old, passes tax
exemption. See notes, 80 Am. St Rep. 624, 626, 638.
117 U. S. 151-180, 29 L. 845. VAN BROCKLIN v. STATE OF
TENNESSEE.
Syl. 2 (XI, 86). Ordinance of 1787 ineffective on State's admis-
sion.
Approved in dissentiog opinion in Scranton v. Wheeler. 179 U. S.
182, 45 L. 144, 21 Sup. Ct 64, majority holding erection of pier by
United States on land submerged by oavigable water to improve
navigation gives owner of such land no action against govern-
ment
Syl. 5 (XI, 86). Federal property exempt from State taxes.
Approved in United States v. Rlckert, 188 U. S. 438, 23 Sup. Ct
480, 47 L. 536, holding permanent Improvements, personal property
used in cultivation of lands allotted by United States to Indians,
government holding in tinist, not taxable; Stearns v. Minnesota ex
rel. Marr, 179 U. S. 242, 250, 45 L. 173. 176, 21 Sup. Ct 80. 83, up-
holding under Minn. Const, art. 9, §§ 1, 3, requiring taxation of all
property, contracts of State exempting railroads from taxes until
certain earnings made; Pumell v. Page, 128 Fed. 496. holding
under act 1888, making $2,000 Federal Jurisdictional amount. Circuit
Court has no Jurisdiction to enforce $80 tax on district Judge's
salary, though clouding title.
Distinguished in Edwards, etc., Construction CJo. v. Jasper Co.,
117 U. S. 180-199 Notes on U. S. Reports. 822
117 Iowa, 375, 90 N. W. 1009, 94 Am. St. Rep. 301, holding under
McGlaln'g Code Iowa, | 1271, exempting county property used
entirely for public purposes, city property used by county for pub-
lic purposes not exempt
117 U. S. 180-197, 29 L. 839, GRAPPAM v. BURGESS.
Syl. 2 (XI, 87). Setting aside Judicial sale — Inadequate con-
sideration.
Approved in Files v. Brown, 124 Ped. 139, 140, refusing to set
aside for inadequacy sale of Judgment for $25, where receiver was
ignorant of collaterals pledged to secure Judgment which might
have brought $3,200; Blanks v. Farmers' Loan, etc., Trust Co., 122
Fed. 851, holding opinions by affiants that higher price possible
insufficient to set aside mortgage sale for inadequacy; Barstow v.
Beckett, 122 Fed. 145, allowing redemption by decedent's heirs of
tracts of land worth $29,000 aggregate, sold on Judicial sales for
$1,835 to creditors and by them resold; In re Ethier, 118 Fed. 108.
refusing to set aside sale on grround of subsequent better offer;
Fahrney v. Kelly, 102 Fed. 413, setting aside sale of stock under
attachment where creditor purchased for $1,000 stock worth
$200,000, applying it on debt of $12,000; Fidelity, etc., Deposit Ck).
V. Roanoke St. Ry., 98 Fed. 476, upholding agreement between
bondholders of corporation contemplating purchase on foreclosure
to protect common interests where competition not prevented;
Bethea v. Bethea, 136 Ala. 586, 34 So. 28, refusing to set aside
sale of realty at public auction fairly conducted for $9,500, real
estate agents valuing land at $11,000 to $16,650.
Syl. '5 (XI, 88). Amending prayer at hearing.
Approved in In re Glass, 119 Fed. 511, allowing amendment of
specifications opposing bankrupt's discharge which might if prop-
erly pleaded create bar.
117 U. S. 197, 198, 29 L. 888, AKERS v. AKERS.
Syl. 1 (XI, 88). Removal — Diversity of citizenship at commence-
ment.
Approved in Green v. Heaston, Recr., 154 Ind. 130, 56 N. B. 88.
holding Insufficient petition for removal alleging diverse residence
when complaint filed Instead of diverse citizenship when suit com-
menced.
Distinguished in Kinney v. Columbia Savings Assn., 191, U. S.
81, allowing amendment of process after filing of removal papers
where diverse citizenship averred generally, defendant's citizenship
stated, and trust deed showed plaintiff's diverse citizenship.
117 U. S. 199, 29 L. 888, JOHNSON v. KEITH.
Syl. 1 (XI, 89). Reversal and new trial not final.
Approved in Schuyler Nat. Bank v. Gadsen, 179 U. S. 681, 45 L.
384, 21 Sup. Ct 918, reaffirming rule; Haseltine y. Central Nat
823 Notes on U. S. Reports. 117 U. S. 20O-i227
Bank, 183 U. S. 132, 46 L. 118, 22 Sup. Ct. 50, holding Judprment
reversing trial court in granting recovery of usurious interest
under U. S. Rev. Stat., S 5198, and remanding cause, not final Judg-
ment
117 U. S. 200, 201. Not cited.
117 U. S. 201-210, 29 L. 855, TUA v. CARRIJERB.
Syl. 1 (XX, 89). Insolvency dissolves attachment.
Approved in In re Scholtz, 106 Fed. 836, holding assignee selling
insolvent's estate pending banl^ruptcy proceedings entitled to rea-
sonable sum from proceeds for services and attorney's fees.
Syl. 3 (XI, 89). Property in custodia legis.
Approved in In re Lengert Wagon Co., 110 Fed. 928, holding
bankruptcy proceedings vest Bankruptcy Ck>urt with Jurisdiction
and oust State court Jurisdiction under insolvency laws; In re
Schloerb, 97 Fed. 328, holding on adjudication of bankruptcy per-
sonal property of bankrupt comes within court's control and
officer cannot seize under replevin writ from State court
Syl. 4 (XI, 89). Repeal of bankruptcy law revives Insolvency law.
Approved in In re Macon Sash, etc., Co., 112 Fed. 329, holding
Invalid proceeding under Ga. Code, S§ 2716-2722, State bankruptcy
proceeding, to enforce lien, after passage of bankruptcy law of
1898; Harbaugh v. Costello, 184 111. 113, 114, 75 Am. St Rep. 148,
56 N. E. 364, holding Illinois County Court could not after July
1, 1898, entertain insolvency petition, hence could not order constable
to surrender property to assignee; Old Town Bank v. McCormick,
96 Md. 352, 53 Atl. 935, 94 Am. St Rep. 579, holding Md. Code Gen.
Pub. Laws, art 47, SS 22, 23, enumerating acts of insolvency and
providing proceedings against such debtors, not superseded by bank-
ruptcy act 1898; Binder v. McDonald, 106 Wis. 336, 82 N. W. 157,
upholding under Wis. Rev. Stat, S 1694a, providing for dissolu-
tion of attachments made within ten days of assignment, dissolu-
tion of attachment five days before.
Distinguished in Carling v. Seymour L. Co., 113 Fed. 488, 489,
upholding petition alleging mortgage asking foreclosure and re-
ceivership, though framed on Ga. bankruptcy law, as mortgage
foreclosure suit.
117 U. S. 210-227, 29 L. 860, PATCH v. WHITE.
Syl. 1 (XI, 90). Extrinsic evidence to explain latent ambiguities.
Approved in Flynn v. Holman, 119 Iowa, 737, 94 N. W. 449, ad-
mittmg extrinsic evidence to direct will devising land without nam-
ing county or State in which situated, omitting township and
range; Scarlett v. Montell, 95 Md. 159, 51 Atl. 1054, holding de-
vise of " three-acre tract on Bloomsbury lane '* erroneously located
thereon, passes three and a fraction acre tract, only one owned
on such lane.
117 U. S. 22S-241 Notes on U. S. Reports. 824
Distinguished In In re Lynch's Estate, 142 CaL 375, 75 Pac 1087,
holding void for uncertainty, under Civ. Code CaL, | 1276, re-
quiring wills to be in writing, will devising land as erroneously
described, not being owned by testator.
Syl. 2 (XI, 90). Wills— Where latent ambiguity arises.
Approved In Taylor v. Horst, 23 Wash. 450, 452, 63 Pac 232,
233, holding inadmissible scrivener*8 testimony of mlstal^e in de-
scribing ranch where will gave S. land in township 16, other half
being in township 15, no latent ambiguity; Flood v. Kerwin, 113
Wis. G81, 89 N. W. 847, holding will giving children forty acres
of land or $1,000 not void for uncertainty.
117 U. S. 228-232, 29 L. 858, BARNEY v. WINONA. ETC., R. R.
Syl. 1 (XI, 91). Matters considered on second appeal.
Approved in Wastl v. Montana Union Ry. Co., 24 Mont. 165, 61
Pac. 11, holding appellate court on second appeal not bound by
former decision on points unnecessary to decision; Potter v. AJax
Min. Co., 22 Utah, 283, 61 Pac. 1000, holding where attorneys made
contract by which plaintiff was to pay them one-half, obtained
by Judgment or settlement, attorneys may proceed to Judgment
to ascertain their compensation.
Syl. 2 (XI, 91). " Granted lands " and " indemnity lands.^'
Approved in United States v. Oregon, etc., Ry. Co., 101 Fed. 318^
holding title to lands in indemnity grant to railroad remains in
United States until ascertainment of deficiency and selection of
indemnity lands; Altschul v. Clark, 39 Or. 324, 65 Pac 994, holding
selection by road company of land for military road under 14 Stat.
89, filing of list and approval of local land ofilce passes no title.
(XI, 91). Miscellaneous.
Cited in Clarlt v. Herington, 186 U. S. 209, 46 L. 1130, 22 Sup.
Ct. 874, holding grantees of lands wrongfully selected as indemnity
lands by railroad company not protected where railroad received
no patent or certificate; Bridges, etc. v. McAlister, 106 Ky. 802, 90
Am. St. Rep. 274, 51 S. W. 606, holding opinion on former appeal
* that plaintiff was not bound by former judgment because not
privy, not law of case on second appeal on amended complaint;
Herriman, etc., Co. v. Keel, 25 Utah, 100, 09 Pac. 721, holding
opinion on reversal for insufficient evidence not conclusive on
second appeal where material evidence furnished.
117 U. S. 233-235. Not cited.
117 U. S. 236-241, 29 L. 888, PHELPS v. OAKS.
Syl. 2 (XI, 92). Courts — Admission of dispensable parties.
Approved in Mexican Cent Ry. Co. v. Duthie, 189 U. S. 78, 23
Sup. Ct. 610, 47 L. 717, sustaining Circuit Court's allowance of
amendment of petition, stating plaintiff as resident of El Paso, Tex.,
825 Notes on U. S. Reports. U7 U. S. 241-254
to Include allegation of citizenship, State and Federal; LUienthal
V. McCormIck, 117 Fed. 96, upholding Federal courfs power to
settle rights on cross-bills, though there be no diverse citizenship
between parties thereto.
117 U. S. 241-254. 29 L. 868, EX PARTE ROYALL.
Syl. 1 (XI, 93). Release of State pirisoner by Federal court.
Approved in Bosl^e v. Comlngore, 177 U. S. 466, 44 L. 849, 20
Sup. Ct. 704, Interfering by habeas corpus to determine right lo
Imprlsoa Federal revenue officer by State authorities; In re Mat-
thews, 122 Fed. 255, 257, 259, refusing habeas corpus to discharge
city police officer Indicted for wounding escaping deserter from
United States army, leaving defense to State court; Ex parte Glenn.
Ill Fed. 260, 261, issuing writ of habeas corpus to discharge of
defendant Indicted for forgery where jury was dismissed with-
out her consent; United States v. Fuellhart, 106 Fed. 914, dis-
charging secret service agents from custody on charge of assault
and battery in assisting in arrest of counterfeiter? without a
warrant; Anderson v. Elliott, 101 Fed. 613, 615, granting writ
of habeas corpus to discharge United States marshal arrested by
State authorities for forcibly ejecting defendant in serving writ
of Federal court; Cohn v. Jones, 100 Fed. 641, refusing writ of
habeas corpus in extradition case where Canadian authorities ex-
tradited prisoner for arson consisting in burning barn, such being
within Canadian law; State v. Adler, 67 Ark. 477, 55 S. W. 853,
holding discharge of United States marshal on habeas corpus dis-
charges bail bond.
Distinguished in Minnesota v. Brundage, 180 U. S. 501, 502, 45
L. 641, 21 Sup. Ct. 456, holding application for habeas corpus
denied without prejudice where person imprisoned charged un-
constitutionality of law, but did not exhaust State remedy.
Syl. 2 (XI, 93). Federal release of State prisoner discretionary.
Approved in Reid v. Jones, 187 U. S. 154, 23 Sup. Ct. 90, 47
L. 117, refusing to interfere on habeas corpus In favor of defend-
ant convicted for violating Colo. Sess. Laws 1885, p. 335, for pre-
venting spread of contagious diseases; Davis v. Burke, 179 U. S.
402, 45 L. 251, 21 Sup. Ct 211, refusing to Interfere with sentence
of State court, on ground of invalid State law, where information
was not questioned on trial nor by habeas corpus; In re Strauss,
126 Fed. 329, refusing to question action of governor In extradition
proceedings where he acted upon verified affidavit of commission
of crime; In re Matthews, 122 Fed. 251, 252, 253, 255, refusing
to release city police officer indicted for wounding escaping de-
serter from army, necessity of shooting being doubtful; In re Turner,
119 Fed. 233, awarding habeas corpus to release officer of United
States army from arrest for contempt in disobeying Injunction
117 D. S 255-275 Notes on U. S. Reports. 826
against laying sewer pipe; Ex parte McMinn, 110 Fed. 955, re-
fusing writ of habeas corpus to release petitioner confined in
Alabama insane hospital under order of Probate Court, having
remedy in State court See 87 Am. St. Rep. 201, note.
Syl. 3 (XI, 95). Federal discharge of State prisoner after con-
viction.
Approved in Moore v. Wheeler, 109 Ga. 62, 35 S. E. 116, discharg-
ing on habeas corpus defendant convicted of selling spirituous
liquor under unconstitutional statute Ga. Acts 1882-83, p. 570.
117 U. S. 255-271, 29 L. 892, APPLEGATB v. LEXINGTON, ETC..
MIN. CO.
SyL 5 (XI, 95). Presumption as to Jurisdiction.
Approved in Johnson v. Hunter, 127 Fed. 226, holding decree
of sale of land for unpaid levee taxes reciting summons by pub-
lication not collaterally attacliable for want of proof of publica-
tion; Eltonhead v. Allen, 119 Fed. 128, holding making of affi-
davit of applicant in due form presumed from record of attach-
ment stating writ issued when, and amount specified in affidavit;
Woods V. Woodson, 100 Fed. 518, upholding order for service by
publication, under Rev. Stat., S 738, In lien suit which order con-
tained finding that none of defendants were inhabitants of district;
National Bank v. Security Co., 65 Kan. 644, 70 Pac. 647, holding
voluntary appearance of party alleged by answer to have interest
in controversy presumed from recital In Journal entry, though no
pleadings filed; Bank of Ck)lfax v. Richardson, 34 Or. 524, 75 Am.
St Rep. 669, 54 Pac. 360, holding objection that Issuance of sum-
mons by publication on nonresident did not appear to have been
made before attachment unavailing In collateral suit; Chesapeake,
etc., R. R. V. Washington, etc., Ry., 99 Va. 722, 40 S. E. 22, hold-
ing order of court in condemnation proceedings declaring defend-
ant duly served with notice conclusive unless disproved by record.
117 U. S. 271, 272, 29 L. 898, BOARDMAN y. TOFFBY.
Syl. 1 (XI, 96). Review where findings general.
Approved in McCrea v. Parsons, 112 Fed. 918, holding where
in trial by court general finding for plaintiffs In error, court
cannot consider whether agent receiving money from illegal transac-
tions may retain such money; Barnard v. Randle, 110 Fed. 909,
holding where in trial by court general finding for defendant is
made special findings of court of law or fact not matter for error.
117 U. S. 272-275, 29 L. 897, JEFFERSON v. DRIVER.
Syl. 1 (XI, 96). Removal for local prejudice — Citizenship.
Approved in Kidder v. Northwestern Mut L. Co., 117 Fed. 999,
holding interveners claiming proceeds of check in suit, where re-
moval had been denied, cannot give Federal Jurisdiction.
827 Notes on U. S. Reports. 117 U. S. 275-282
Syl. 3 (XI, 97). Separable controversy not removable for pre-
judice.
Approved In Speckert v. German Nat Bank, 98 Fed. 154, holding
receiver of national bank admitted into suit pending in State court
to defend for bank, not being necessary party, has no right to
removal.
117 U. S. 275-279, 29 L. 899, SLOANB v. ANDERSON.
Syl. 1 (XI, 97). Separate answers do not make separable contro-
versy.
Approved tn Chesapeake & O. R. R. Ck>. v. Dixon, 179 U. S. 138,
45 L. 125, 21 Sup. Ct 70, holding railway company cannot remove
suit for wrongful death caused by company and two of its servants,
where employees and plaintiff fellow citizens, tort being Joint;
Shaffer v. Union Brick Co., 128 Fed. 98, refusing to remand case
where company and servant sued for death of another servant, ser-
vant being actually and master only constructively negligent;
Fogarty v. Southern Pac. Co., 123 Fed. 974, holding complaint by
employee against company and others for injury alleging, as cause,
unsafe tracks and negligent operation of car, states Joint tort claim;
Smedley v. Smedley, 110 Fed. 258, holding inseparable suit against
S.. parol grantor, to plaintiff, E. subsequent grantee of S. of same
land and H., E.'s grantee, to cancel deeds and remove doud; M'Cor-
mick V. Illinois Cent. R. R. Co., 100 Fed. 252, holding defendant com-
pany entitled to removal where individual fellow citizen of plaintiff
is Joined as defendant to prevent Federal Jurisdiction; Winston v.
Illinois Cent. R. R., Ill Ky. 958, 65 S. W. 15, holding company
sued Jointly with engineer and fireman under Ky. Stat, S 6, for
wrongful death cannot remove cause where servants have nor
requisite citizenship.
117 U. S. 280-282, 29 L. 898. FIDELITY INS. CO. v. HUNTINGTON.
Syl. 1 (XI, 98). Removal of creditor's bill for separable contro-
versy.
Approved in MacGinnis v. Boston, etc.. Silver Min. Co., 119 Fed.
100, holding indivisible suit in State court by domestic corpora-
tion stockholder against domestic and a foreign corporation to
latter, from obtaining control of former; Smedley v. Smedley, 110
Fed. 258, holding indivisible, suit against S., plaintiff's parol grantor,
E., S.'s subsequent grantee, and H., E.'s grantee, to cancel deeds and
enforce S.'s gift; Colbum v. Hill, 101 Fed. 505, 506, holding indi-
visible creditor's pult to obtain administration of insolvent corpora-
tion's property and to exclude defendants therefrom on ground of
Invalidity of contract; Lake St El. R. R. v. Zlegler, 99 Fed. 122, 123,
holding trustees merely formal parties to suit by corporation against
bondholders for accounting, hence cannot defeat removaL
117 U. S. 282-^27 Notes on U. S. Reports. 828
117 U. S. 282-288. Not cited.
117 U. S. 288-312, 29 L. 880. THE CHBROKEB TRUST FUNDS.
(XX, 100). Miscellaneous.
Cited in Cherokee Nation v. Hitchcock, 187 U. S. 307. 23 Sup. Ot
120, 47 L. 190, restraining action of secretary of interior upon
applications for leases for mining purposes of lands in Indian
Territory.
117 U. S. 312-327, 29 L. 873, PHCENXX TRUST CO. v. ERIK, ETC.,
TRANSPORTATION CO.
Syl. 1 (XX, 100). Carrier's right to subrogation to insurance.
Approved in The St Johns, 101 Fed. 472, 473, 474, holding
insurer's right of subrogation after paying marine collision policy
is subordinate to damage claimants against such vessel where
owner surrendered vessel.
Syl. 2 (XX, 104). Removal, separable controversy, means actual
parties.
Approved in Parker v. Railroad, 133 N. 0. 339, 45 S. B. 659, holding
words " subject to delay " in contract of shipment of melons do
not affect carrier's liability for loss; Seaboard, etc., Ry. v. Main, 132
N. C. 457, 48 S. E. 935, sustaining contract by which railroad
company agreed to haul circus train and agents free transportation,
circus to reimburse plaintiff for damages for negligence.
Syl. 3 (XI, 100). Carrier's exemption from liability for negli-
gence.
Approved In Gardner v. Southern R. R. Co., 127 N. C. 296, 37 S. E.
829, holding unreasonable and void reduced valuation clause in bill
of lading where goods were worth five times such valuation.
Syl. 4 (XI, 101). Insurance — Loss by peril of sea — Negligence.
Approved in Munich Assur. Co. v. Dodwell, 128 Fed. 412, holding
charterer of steamship has Insurable interest In goods In posses-
sion and may recover under policy in name of ** all to whom subject-
matter may appertain;" Ursula Bright SS. Co. v. Amsinck, 115 Fed.
245, holding insurers of part of liability of shipowners for goods
carried under valued policy less than value of goods liable to
amount of policy.
Syl. 5 (XI, 101). Carrier's stipulation for benefit of insurance.
Approved in The Quean of The Pacific, 180 U. S. 57, 45 L. 422,
21 Sup. Ct. 281, sustaining stipulation for notice of claim of loss
within thirty days from shipment in bill of lading for goods from
San Francisco to San Pedro.
Syl. 6 (XI, 102). Insurer paying loss subrogated.
Approved in The Livingstone, 122 Fed. 283, holding insurer en-
titled to sum recovered by libelant, owner of abandoned vessel, on
vrhich insurers had paid amount of valued policy, where sum re-
829 Notes on U. S. Reports. 117 U. S. 327-^70
covered exceeded policy; Mason v. Marine Ins. Co., HO Fed. 457,
holding insurers paying loss on vessel afterward abancloned are
entitled to damages recovered for loss by collision and prospective
earnings of vessel; The Mariska, 107 Fed. 993, holding vessels jointly
liable for collision must share loss and one paying loss is entitled to
enforce against other lien of injured vessel for injury; The Living-
stone, 104 Fed. 924, holding insurer of portion of vessel's cargo
paying loss and intervening to recover damage for collision limited
by contributory negligence of insured owner of vessel; Egan v.
British, etc., Ins. Co., 193 111. 302, 61 N. E. 1084, holding where policy
provided for assignment of right of action, insurer paying marine
loss caused by collision may sue colliding vessel and reimburse
himself; Missouri, etc., Ry. v. Carter, 95 Tex. 477, 68 S. W. 164,
upholding as to successor, railway's contract with saw-miUowner
upon sufQcient consideration to build switch and to be exempted
from liability for injuries to cattle.
117 U. S. 327-340. Not cited.
117 U. S. 340^^5, 29 L. 907, RAND v. WALKER.
Syl. 1 (XI, 104). Sham parties joined to prevent removal.
Approved In Ross v. Erie R. R. Co., 120 Fed. 704, holding defend-
ant sued as employers of plaintiff's Intestate may remove cause
though other defendant by whom deceased was. never employed
joined to defeat removal.
117 U. S. 346, 347. Not cited.
117 U. S. 348-355, 29 L. 909, MACKIN v. UNITED STATES.
Syl. 1 (XI, 104). Indictment — Infamous crime.
Approved in In re Stead, 107 Fed. 685, holding fraudulent reports
to commercial agencies not included in banlcruptcy law, S 14, as
ground for refusing discharge; Good Shot v. United States, 104 Fed.
258, holding conviction of one Indian of murdering another is
capital crime though death penalty be not affixed and Circuit Court
Appeals without jurisdiction; Jaclsson v. United States, 102 Fed.
489, holding under statute prescribing *' imprisonment in peniten-
tiary" for violation, addition of *'at hard labor," Is error but
amendable without reversal.
Distinguished in Palmer v. Cedar Rapids, etc., Ry. Co., 113 Iowa,
447, 85 N. W. 757, holding conviction for selling liquor without
paying tax not offense of infamous nature within Iowa Code,
I 4602, disqualifying witnesses.
117 U. S. 355-367. Not cited.
117 U. S. 367-370, 29 L. 923, EX PARTE PHCENIX INS. CO.
Syl. 1 (XI, 106). Distinct causes not jolnable for jurisdictional
amount.
Approved in Wisconsin Cent. Ry. Co. y. Phoenix Ins. Co., 123
117 U. S. 37(M01 Notes on U. S. Reports. 830
Fed. 900, holding under Rev. Stat Wis. 1898, i 2609, anthorte-
Ing joinder of action against several Insurance companies, lia-
bility was separate and each must reach $2,000 for Federal Juris-
diction.
117 U. S. 370^73, 29 L. 913, VAN RISWICK v. SPALDING.
Syl. 1 (XX, 106). Mortgagee conveying to debtor's children.
Approved in Hesse v. Barrett, 41 Or. 208, 68 Pac. 753, upholding
transfer of property by insolvent to brother-in-law who agreed to
pay former's debt to mother though Insolvent anticipated retransfer
to heirs.
117 U. S. 373-578, 29 L. 950, YALE LOCK CO. v. SARGENT.
SyL 1 (XI, 106). Infringement of patent — Nonuser of essential
feature.
Approved In Kinloch Tel. Co. v. Western El. Co., 113 Fed. 655,
holding shot and wax holding them on faces of conducting plates
until released by heat thereof, mechanical equivalent of plug of
fusible material of patent 438,788.
117 U. S. 379-380. Not cited.
117 U.. S. 389-401, 29 L. 915, FULKERSON r. HOLMES.
Syl. 3 (XI, 107). Declarations of grantor in ancient deed ma to
pedigree.
Approved in Norris v. Hall, 124 Mich. 175, 82 N. W. 834, holding
recitals in documents executed in 1846, power of attorney, deed,
and order of court, udmissible to prove death of party; Young v.
Shulenberg, 165 N. Y. 388, 59 N. E. 136, holding In absence of
contradicting evidence in ancient foreign deed that grantors are
helrs-at-law of intestate sufficient evidence of fact.
Distinguished in Stoclvley v. Cissna, 119 Fed. 824, holding
recitals in deed five years old that makers are heirs of former owner
without supporting circumstances not evidence against stranger.
(XI, 107). Miscellaneous.
Cited in Alston v. Alston, 114 Iowa, 38, 86 N. W. 58, holding
evidence of acts and conversation of alleged father of illegitimate
child to show recognition of child admissible In partition suit
against lawful children; Mann v. Cavanaugh, 110 Ky. 780, 62 S. W.
855, holding deed executed eighty years before, reciting that
grantors were heirs of C, admissible to prove heirship in eject-
ment, plaintiff claiming under patent to C; Washington v. Bank for
Savings. 171 N. Y. 175, 63 N. E. 834, 89 Am. St Kep. 806. holding
admissible in administrator's suit for deposit in trust for Intestate's
sons, declarations made by Intestate that she had no children.
831 Notes on U. S. Reports. 117 U. S. 401-130
117 U. S. 401-405. Not cited.
117 U. S. 406-410, 29 L. 928. SIOUX CITY R. R. v. CHICAGO RY.
Syl. 1 (XI, 108). Relation of railroad grant — Lieu lands.
Approved In Oregon, etc., R. R. v. United States, 189 U. S. 113,
23 Sup. Ct 619, 47 L. 731, holding settler iB good faith on indemnity
lands prior to selection l)y railroad and approval by department
may hold since indemnity constitutes but float until selection; Clark
V. Herington, 186 U. S. 209, 40 L. 1130, 22 Sup. Ct. 874, holding
grantee of lands unlawfully selected by railroad as indemnity
lands liable to subsequent grantees on warranty of title; Southern
Pac. R. R. Co. V. United States, 183 U. S. 525, 526, 46 L. 311, 22
Sup. Ct 157, holding filing location map by Atlantic & Pacific
company on lands within primary grant to Southern Pacific en-
titled each company to undivided moiety of land; Manley v. Tow,
110 Fed. 244, holding prior homesteader on forfeited railway
lands not affected by 24 Stat. 556, confirming title of innocent pur-
chasers from railway companies; Oregon, etc., R. R. Co. v. United
States, 109 Fed. 515, holding under 16 Stat. 94, title to indemnity
lands remains in government until deficiency ascertained and selec-
tion approved by secretary of interior; United States v. Oregon, etc.,
Ry. Co., 101 Fed. 318, holding railway's title to indemnity lands
does not vest until deficiency of primary grant shown and selection
of indemnity lands approved by secretary; Altschul v. Clark, 39
Or. 324, 65 Pac. 994, holding selection of land by road company
under 14 Stat. 89, and filing of selection list approved by local land
office did not pass title.
117 U. S. 411-415, 29 L. 980, KNAPP v. HOMEOPATHIC, ETC.,
LIFE INS. CO.
Syl. 1 (XI, 109). Life policy canceled on default premium.
Approved in Wells v. Vermont Life Ins. Co., 28 Ind. App. 623, 62
N. E. 502, holding option to return policy within six months after
default and received paid-up policy lost if not exercised within
time specified; Equitable Life Assur. Soc. v. Evans, 25 Tex. Civ.
566* 64 S. W. 76, holding right to paid-up policy on surrender of old
on default of premium, three having been paid, lost by failure to
surrender within time.
117 U. S. 415-419, 29 L. 919, MARSHALL v. HUBBARD.
Syl. 1 (XI, 109). Representations must cause damage.
Approved In Stratton's Independence v. Dines, 126 Fed. 978,
holding no recovery for false representations touching mining
property, where property was taken after full opportunity to exam-
ine and where more ore than represented was mined.
117 U. S. 419-430. Not cited.
117 U. S. 430-433 Notes on U. S. Reports. 832
117 U. S. 430-433. 29 L. 962. STONE v. SOUTH CAROLINA.
Syl. 1 (XX, 110). Removal — Surrender of Jurisdiction by State
court
Approved in Dalton v. Milwaukee Mechanics* Ins. Co., 118 Fed.
881, refusing removal oi^ petition alleging tliat defendant is cor-
poration, ** citizen and resident" of Wisconsin, such not suffi-
ciently stating organization under Wisconsin law; Ck)ker v. Mona-
gher Mills, 110 Fed. 806, refusing to enjoin action in State court
Involving separable suit against two corporations for wrongful
death, where petition for removal not presented nor acted upon;
Home Ins. Co. v. Virginia-Carolina, etc., Co., 109 Fed. 689, en-
Joining suits at law in State court by same plaintiff against sev-
eral insurers of same property, not to oust State Jurisdiction but to
prevent abuse; Hickman v. Missouri, etc., Ry., 97 Fed. 116, holding
State not real party in interest in suit by Missouri railroad com-
missioners to enforce its order fixing rates, to prevent removal
to Federal court; Debnam v. Southern Bell Tel. Co., 126 N. C. 837,
36 S. E. 271, holding foreign corporation becoming domestic by com-
plying with N. C. Pub. Laws 1899, cannot remove suit by citizen
thereof on sole ground of citizenship; Beach v. Southern Ry. Co.,
131 N. C. 399, 42 S. E. 856, sustaining State court's refusal of
removal petition of foreign corporation becoming domestic by com-
pliance with North Carolina law, in suit by citizen thereof; dis-
senting opinion in Calvert v. Railway Co., 64 S. C. 149, 41 S. E.
9G6, majority holding foreign railroad becoming domestic by com-
pliance with S. C. act March 19, 1896, may remove suit of South
Carolina citizen.
Syl. 2 (XI, 112). Reviewability of sufficiency of record to remove
cause.
Approved in Southern Ry. Co. v. Allison, 190 U. S. 331, 23 Sup.
Ct 715, 47 L. 1081, holding compliance with N. C. Pub. Acts 1899,
chap. 62, making corporation domestic, does not deprive Virginia
corporation of right to remove suit on ground of local prejudice;
Missouri, K. & T. R. R. Co. v. Hickman, 183 U. S. 58, 46 L. 83, 22
Sup. Ct. 20, holding State not real party In interest to prevent
removal of suit by Missouri railroad commissioners against rail-
road to enforce a commission's rate order; Raphael v. Trask, 118
Fed. 779, dismissing bill to restrain partnership from selling rail-
road stock for partnership and as agents of other stockholders
where all partners not joined; Ashe v. Union Cent, etc., Ins. Co.,
115 Fed. 235, refusing motion to remand cause to State court where
removal bond was approved by State court, sole removal ground
being diverse citizenship; Coeur D'Alene Ry. Co. v. Spalding, 6
Idaho, 102, 53 Pac. 108, holding petitioner cannot question State
court's Jurisdiction after six years after Circuit Court's order to
remand, Judgment being affirmed on second trial; Pennsylvania Ca
833 Notes on U. S. Reports. 117 U. S. 434^81
y. Leeman, 160 Ind. IS, 66 N. E. 49, holding removal lost by failure
to petition until after filing of amended complaint after answer;
United Trust Mort Co. v. M'Clure, 42 Or. 196, 70 Pac. 544, holding
not removable suit to foreclose mortgage where corporation and
receiver liable thereon have not requisite diversity of citizenship.
Syl. 3 (XX, 112). Removal — Suit between State and citizens.
Approved in State of West Virginia v. King, 112 Fed. 370,
holding suit by State against claimant to enforce forfeiture of
land for benefit of school fund not cognizable by nor removable
to Federal courts; Mexican Nat. Coal, etc., Co. v. Macdonell, 105
Fed. 268, holding application of " either party " for removal of suit
to Circuit Court established by 30 Stat 1002 for Texas district
meant all Individuals on- either side.
117 U. S. 434-481, 29 L. 963, UNION TRUST CO. V. ILLINOIS
MIDLAND CO.
Syl. 1 (XI, 112). Receiver's certificates create prior lien.
Approved in Royal Trust Co. v. Washburn, B. & I. R. B. Co..
120 Fed. 13, holding receiver's certificates issued by court for wages,
operating expenses, necessary repairs, talses precedence over lien
reserved by vendor of rails; Belknap Sav. Banls y. Lamar L. & C.
Co., 28 Colo. 338, 64 Pac. 215, holding mortgage bondholder of land
company intervening in foreclosure suit may question validity of
appointment of receiver and issuance of receiver's certificates; In-
ternational, etc., Ry. V. Coolidge, 26 Tex. Civ. 599, 62 S. W. 1100.
holding receiver's certificates issued to enable receiver to repair
road and pay receivership expenses create lien superior to mort-
gages; Kampmann v. Sullivan, 26 Tex. Civ. 312, 314, 63 S. W. 175,
176, holding receiver's certificates to pay labor liens, and to pur-
chase ties and car wheels necessary for repair, constituted first lien
on road. See 83 Am. St. Rep. 73, note.
Distinguished in First Nat. Bank v. Wyman, 16 (3olo. App. 472,
66 Pac. 457, holding money advanced to keep private road of min-
ing company In operation not entitling lender to preferred lien
thereon.
Syl. 5 (XI, 114). Priority of receiver's certificate to pay taxes.
Approved in Metropolitan Trust Co. v. Lake Cities, etc., Ry., 100
Fed. 900, holding court appointing receiver and authorizing certifi-
cates to be superior liens upon property has not exclusive jurisdic-
tion to determine priority, parties not being before it See notes,
83 Am. St Rep. 75, 76, 78.
Syl. 10 (XI, 114). Operating expenses when chargeable against
corpus.
Approved hi International Trust Co. v. United Coal Co., 27 Colo.
Vol. 11 — 53
117 U. S. 482-490 Notes on U. S. Reports. 834
254, 60 Pac. 624, holding trustee and bondholders by not objecting
to appointment of receiver do not waive right to object to order
mailing receiver's certificates lien superior to theirs.
Syl. 11 (XI, 115). Priority of wages prior to receivership.
Approved in Farmers* Loan, etc., Co. v. American W. W. Co., 107
Fed. 28, 30, holding vendor of engines to water company may re-
cover balance of purchase from corpus where receiver diverted
funds sufficient to cover price; First Nat Bank v. Ewing, 103 ITed.
183, holding claim for rolling stock sold to receiver entitled to be
ranked with claims for operating expenses ahead of mortgages:
Van Frank v. Missouri, etc., Ry. Co., 89 Mo. App. 469, 470, 471, 476,
holding claim for traffic balances accruing within year prior to
receivership preferred to mortgage claims.
Distinguished In Gregg v. Mercantile Trust Co., 109 Fed. 228,
holding claims for cross-ties and hardware used in repair, and
current traffic balances within current expenses, preferred to mort-
gages, not terminal rentals, locomotives, nor legal services; Illinois-
Trust, etc.. Bank v. Doud, 105 Fed. 132, 145, holding money loaned
to electric railway company to make Improvements entitled lender
to no preference.
Syl. 15 (XI, 116). Bonds surrendered in exchange — Priority.
Approved in New York Security, etc., Co. v. Louisville, etc., R. R.
Co., 102 Fed. 389, 396, 399, 402, holding surrender of old bonds by
constituent companies for new bonds of consolidation was novation
extlDguishing surrendered bonds.
Syl. 20 (XI, 117). Priority — Receiver's certificates for neces-
saries.
Approved in Bibber- White Co. v. White River, etc, R. R. Co.,
115 Fed. 790, holding court not warranted in ordering receivers to
complete road one-third done and incumbered to full value, making
certificates prior to existing liens; First Nat. Bank v. EwIng, 103
Fed. 188, 195, holding claim for rolling stock sold to receiver under
court's decree of sale to satisfy lien entitles vendor to rank with
claims for operating expenses.
117 U. S. 482-490, 29 L. 979, FERGUSON v. ARTHUR.
Syl. 1 (XI, 117). Henry's calcined magnesia dutiable as medicine.
Approved in Wolfe v. United States, 105 Fed. 941, holding Wolfe's
Aromatic Schiedam Schnapps dutiable under tariff act March 3,
1883, par. 99, as proprietary preparation.
Distinguished in Johnson, etc., Johnson v. Rutan, 122 Fed. 997,
holding medicinal piasters made from well-known formulas, only
claim to special merit being In choice of Ingredients, not medicinal
Iiroprletary articles within war revenue act 1898.
835 Notes on U. S. ReporU. 117 U. S. 49(HS14
117 U. S. 490-«04, 29 L. 9^, DINGLEY v. OLER.
Syl. 4 (XI, 117). Refusal of performance must be unequivocal.
Approved In Roehm v. Horst, 178 U. S. 15, 44 L. 959, 20 Sup.
Ot 785, holding unqualified refusal to perform contract for pur-
chase of hops, though performance not yet due, grounds vendor's ad-
tlon Immediately; Lincoln v. Levi Cotton Mills Co., 128 Fed. 867,
holding notice by brokers requesting suspension of yam deliveries
because customer had refused to receive goods because of quality of
goods delivered constituted breach; In re Stern, 116 Fed. 606, 607,
holding customers of ice company unable to furnish ice contracted
for may iM-ove damages as claims in involuntary bankruptcy pro-
ceedings; Southern Cotton Oil Co. v. Heflin, 99 Fed. 343, holding
on breach of contract for sale of cottonseed products, where plain-
tiff continued manufacturing after notice of nonperformance, dam-
ages contract price less market price; Stone v. Bancroft, 139 Cal.
83, 70 Pac. 1018, holding plaintiff employed at fixed monthly salary,
prevented from working but not discharged, may recover salary as
accrues; South Gardiner Lumber Co. v. Bradstreet, 97 Me. 172, 53
Atl. 1112, holding where defendants contracting to furnish logs,
parted with* logs, incapacitating themselves to performance of con-
tract, plaintiff entitled to contract price less market price; Mutual
R. Fund Assn. v. Taylor, 99 Va. 214, 37 S. B. 856, holding willing-
ness to perform without any demand on other party who has re-
fused performance does not show acceptance of renunciation;
Rogers, etc., Co. v. M*Cord, 115 Wis. 263, 91 N. W. 686, holding
under contract of defendant to give plaintiff one-half profits above
purchase price on resale of property, plaintiff cannot recover until
proceeds appropriated.
117 U. 8. 504-508, 29 L. 988, TURPIN v. BURGESS.
Syl. 1 (XI, 118). Taxing tobacco intended for export.
Approved in Cornell v. Coyne, 192 U. S. 426, 427, 24 Sup. Ct. 384,
385, upholding same manufacturers* tax on filled cheese designed
for export as other cheese, under act June 6, 1896.
Distinguished in dissenting opinion in Cornell v. Coyne, 192 U. S.
438, 439, 440, 24 Sup. Ct 389, majority upholding under act June
6, 1896, same manufacturers' tax on filled cheese designed for export
as other cheese.
117 U. S. 508-514. 29 L. 982. MAHOMET v. QUACKENBUSH.
Syl. 1 (XI, 118). Tobacco export tax act valid.
Approved in Pickens Tp. v. Post, 99 Fed. 661, upholding act au-
thorizing bond issue (18 Stat, at Large S. C. 409), which bad but
one object, the issue of bonds expressed in title; Beresheim v. Arnd,
117 Iowa, 91, 90 N. W. 508, upholding Iowa Acts 28 Gen. Assem.,
chap. 50, entitled an act for discovery and listing of property with-
held from taxation, and authorizing assessment of taxes thereon; St
k
117 U. S. 514-536 Notes on U. S. Keporta.
Anna's Asylum v. Parker. 109 I<a. 599, 33 So. 616. holding i
tlon from taxation property granted In net of leglslainre
usual title Incorporating aayluai; Dlona Shooting Club v. Lnmoreirzr^ii,
114 Wis. 49, 51, 89 N. W. 8S2. 8S3, 91 Am. St. Rep. 001, 902, ho"
iag legislative statement o( object of act as creation of corpotatL
for maniifactnring purposes, proper caption to Include power
maintain dam and acquire overflowed lands.
117 D. 8. 514-516, 29 L. 990, BHUCE v. MANCQESTER. ETC.. H.
CO.
Syl. 1 (XI, 118). Matter in dispute means directly Involved.
Approved In Cowell v. City Water Supply Co., 131 Fed. 5C,
holding amount In dispute In suit by claimant of 1/32S Interests
water-works realty to cancel $475,000 mortgagca thereon, is valu^
1/325 of property claimed.
117 D. 8. 516-518. 29 L. 9iM. EX PARTE FONDA.
Syl. 1 (XI, 119), Habeas corpus In advance of State court.
Approved In In re Matthews, 122 Fed. 255, refusing to discba
on habeua corpus police officer arrested for shooting an escap—
deserter where necessity of shooting doubtful; Minnesota v, Bi —
dage, 180 U, S. 502, 45 L. 641, 21 Sup. Ot. 456. denying appllcal;i=:«l«
for habeas corpus to release prisoner under Municipal Couv
ment on ground of ,un constitutionality, where State remedies
utilized: Davis v. Burke. 179 U. S. 402, 45 L. 251, 21 Sup. CL
refusing to Interfere with sentence of State court on ground
unconstitutionality of law where question not raised In Stale
In any form; Ex parte McMinn, 110 Fed. 955, refusing to quest
order of probate Judge conflning plaintiff In Tuscaloosa Ins.
hospital and leaving plaintiff to pursue remedy in State court
See 87 Am. St. Rep. 201, note.
117 D. S. 519-530, 29 L. 934, NEW YORK, ETC., INS. C0_ -
FLETCHER.
Syl. 2 (XI, 119). Insurance — Both parties deceived by agin ^
Approved In Northern Aasor. Co. v. Grand View BIdg. Assn.,
U. 8. 357, 46 L. 233, 22 Sup. Ct. 151, holding company not walt-»-
conditlon In policy against other Insurance where agent koew^ii*
other Insurance, latter being prevented by wording of policy tx: '
waiving conditions; Carutbers v. Kansas MuL L. Ins. Co., 108 b^
494, holding knowledge of medical examiner, baving no autho -^
over acceptance of risks, of falsity In answers of applicant
Imputable to Insurer to estop latter: Delouche v. Metropolitan ^C-
luB. Co., U9 N. H. 580, 45 Atl. 415, holding plaintiff, nn lllitei — —
Induced to insure husband's life without hia knowledge, void -^
by-laws, by misrepresentations of agent, may t
of fraud; Kansas Mat Life, etc., Co. v. Coalson, 22 Tei. Civ.
837 Notes on U. S. Reports. 117 U. S. 536-554
54 S. W. 391, reversing Judgment against insurance company wliere
findings that policy liad been materially altered and warranties
broken unsupported by facts; dissenting opinion in Sternaman v.
Metropolitan, etc., Ins. Co.. 170 N. Y. 36. 37, 62 N. E. 771. holding
applicant answering truthfully medical examiner's questious may
show such answer where examiner entered them falsely, though
application made examiner insured's agent See 88 Am. St. Rep.
635, note.
SyL 3 (XI, 120). Limitation on insurance agent's authority.
Approved in Carrollton Furniture Mfg. Co. v. American Credit
I. Co., 124 Fed. 30, holding no forfeiture where application called
for gross sales and losses of insured for five years and agent as-
certained figures, and insured signed as representative only; Mod-
em Woodmen of America v. Tevis, 117 Fed. 373, holding Wood-
men lodge not liable on policy forfeited by default in payment
of assessments, where by. by-laws clerks of local camp had no power
to waive; John Hancock Mut. L. I. Co. v. Houpt, 113 Fed. 57G,
holding company may cancel policy issued on basis of untruthful
representations in application, examiner having no power to waive
and insured knew of such misrepresentations; Murphy v. Royal
Ins. Co. of Liverpool, 52 La. Ann. 791, 27 So. 149, holding insured
bound by provision of policy containing " iron safe clause " pro-
hibiting waiver by officers or agents except in writing; Fidelity,
etc., Assn. v. Harris, 94 Tex. 34, 57 S. W. 637, 86 Am. St. Rep.
818, holding statements of insured concerning health and medical
treatment Immaterial in suit on policy expressly providing against
contract on parol; McGowan v. Supreme Ct. I. O. F., 107 Wis. 467.
83 N. W. 777. holding erroneous answers to questions on deceased's
family history, though not intentional, where answers given and
accepted as part consideration, vitiate policy.
Distinguished in Leonard v. New England Mut, etc., Ins. Co..
22 R. I. 522. 48 Atl. 800, holding insured not defeated In suit on
policy by failure of medical examiner to reduce answers designed as
part consideration for policy to writing.
(XI, 119). Miscellaneous.
Cited in Fidelity, etc., Assn. v. Harris, 94 Tex. 37. 57 S. W. 630.
86 Am. St. Rep. 822, holding law of State of Incorporation of
company and payment of policy governs validity and construction
of policy.
117 U. S. 536-554. 29 L. 954, YALE, ETC., MFG. CO. v. SARGENT.
Syl. 3 (XI, 122). Recovery of losses through infringement of
patent
Approved in KInner v. Shepard, 107 Fed. 953, holding reduction
of prices and loss of profits necessitated by competition incident
to competition caused by infringement of hoop patent considered
in estimating damage; Chisholm v. Johnson, 106 Fed. 212, holding
117 D. S. 55+-0S2 Notes on D. B. ReporU.
misjoinder of parties bj joioins owners of Conr pat«its Id suit -^f ^
for lafringement of single patent tor hnlling green peas not fataL _.^
117 U. S. 554-559. 29 L. 952, YALB, ETC.. MFG. CO. t. GREEN
LEAF.
Syi. 1 (XI, 122). SpecIQcatlons cannot enlarge patent.
Approved In Santa Clara, etc.; Lumber Co. v. Preseott, 102 Fed
507, holding Prescott patent, for bandsaw-raill. limited to speclQ^^-jj
cations, not Infringed by WilklD patent differing materially tiieres
from: Bowers v. Pacific Const Dredging, etc.. Co., 99 Fed. 74Er~;^^
holding Bower's patent, for dredging machine. Infringed bj Park^^^. g
pu!t"nt employing equivalent device for swinging dredgebont.
117 U. S. 559-5C6. 29 L. 994, DIMOCK v. REVERE COPPER CO.
Byl. 2 (XI, 123). Neglected defense not available after JiiilLinn ^ il
Approved in Giencove Granite Co. v. City Trust, etc., Co., t u
Fed. 980. holding foreign corporation defeated In suit on lien bocr^wid
for failure to stiow right to operate in State cannot sue In Fedec ^nU
court showing right; McEntlre v. Williamson, 63 Kan. 281. C5 Pi _ic
240, faolJlng city taxpayer concluded by judgment against cl -.Aty
on bond coupons and mandamus issued to compel tax levy to
question of authority to levy tas; Lane v. Holcomb, 182 Ma^c _xa.
361, 65 N. B. 794, holding, under Mass. Pub. StaL, chap. 167, i ^=r 20,
failure to set up defense of tiantruptcy In answer bars right to
use defense seven months after verdtct.
117 D. S. 5C7-582, 29 L. 940, HOBBS v. McLEAN.
SyL 1 (XI. 124). Priority of partners furnishing money.
Approved In Henderson v, Rles, 108 Fed, 714, lioldlng parte
advancing money to firm under provlBlon of articles until paj
nerahlp earnings should Justify repayment has equitable lien
partnership property after debts paid.
Syl. 2 (XI, 124). Agreement to pay.
Approved In Thayer v. Pressey, 175 Mass. 233, 66 N. B. 6, ho'
lug where Congress has appropriated sum to pay claim for -
friugement of patent, assignee of auch claim may collect
ment. being binding inter partes.
Byl. 5 (XI, 124). Contract construed so as to be upbeld.
Approved In In re Goldvillc Mfg. Co.. 123 Fed. 583, holding w
torney for petitioning creditors contesting validity of niortga^
not bankrupt's attorney, entitled to oompensatlon where proper"*
sold l}y court's order; dissenting opinion In Bartlett v. Collins. 1^
Wis. 485, 85 N. W. 706, majority holding In action on broliera.^
cotitrnct for sale of gmln for future delivery, plaintltC aust
burden of proving no gambling contract Intended.
^■■rf
tn-
8il9 Notes on U. S. Reports. 117 U. S. 582-IS9]
Syl. 11 (XI, 125). Expenses of unsuccessful litigant for trust
fund.
Approved in Gentry v. Singleton, 128 Fed. 683, holding plaintiff's
right to recover for cattle converted by defendant not contestable
on ground that plaintiff and another owned in partnership where
latter estopped to claim; In re Josephson, 121 Fed. 144, holding,
under section 21, bankruptcy act 18d8, State law governs compe-
tency of witnesses in Bankruptcy Court, hence by Ga. Code,
I 5269, trustee incompetent; Union Mort., etc., Co. v. Hagood,
98 Fed. 779, holding counsel appearing for parties intervening and
unsuccessfully attacking validity of mortgage not entitled to pay-
ment from foreclosure proceeds; Somerset Ry. v. Pierce, 98 Me.
531, 57 Atl. 889, holding minority bondholders seeking to wrest
trust estate from new corporation organized on foreclosure against
old not entitled to reimbursement out of trust funds; Fowell v.
Surety Co., 80 Miss. 791, 28 So. 756, 92 Am. St Rep. 628, holding
Rev. Stat, | 3737, prohibiting assignment of government claims
Inapplicable to agreement between contractor and creditors, latter
to advance money and share in contract price; State v. Kent, 98 Mo.
App. 289, 71 S. W. 1068, upholding city ordinance prohibiting as-
signment by city employees of claims against city for wages.
Distinguished In Phinizy v. Augusta, etc., R. R., 98 Fed. 777,
holding trustees in foreclosure of railway mortgage, confining ser-
vices to hiring counsel, entitled to small allowance, $5,000 propor-
tioned to service.
117 U. S. 582-591, 29 L. 991. BURNES v. SCOTT.
Syl. 1 (XI, 126). Parol to alter promissory note.
. Approved in Keith v. Parker, 115 Fed. 398, holding inadmissible
parol evidence to show that payee and another might pay them-
selves amount of note payable at certain date, from proceeds of
mine as realized.
Syl. 2 (XI, 126). Equitable defense inadmissible at law.
Appfoved in Chicago Title & Trust Co. v. State Bank, 121 Fed.
61, holding, under 4 Burns' Supp. 1897, S 13, Indiana, empowering
auditor to assess State bank stockholders, plaintiff's legal owner-
ship sufficient to recover proceeds of sale.
Syl. 3 (XI, 126). Champertous contract as defense.
Approved in Galusha v. Wendt, 114 Iowa, 615, 87 N. W. 518, hold-
ing defendant in action by county to collect back taxes cannot
defend on ground that contract between county and attorneys
to search escaped land was champertous; Potter v. AJax Min. Co.,
22 Utah, 294, 61 Pac. 1004, holding maker of promissory note
cannot avoid liability therein because of champertous agreement
between plaintiff and attorney to share proceeds. See 83 Am. St
Rep. 174, note.
117 U. S. 591-600 Notes an U. S. Reports. 840
117 U. S. 501-GOO. 29 L. 997, NEW YORK, ETC., INS. CO. ▼. ARM-
STRONG.
Syl. 1 (XI, 127). Assignability of insurance payable to legal
representatives.
Approved in In re Slingluff, 106 Fed. 156, holding bankmpfs
insurance policy payable to bim if he lived certain time and on
death before such time of wife was property passing to trustees;
Manhattan Life Ins. Co. v. Hennessy, 99 Fed. 70, holding assignee
of life policy on debtor as collateral on bankruptcy, proving for less
than debt and paying premiums subsequently, may recover thereon;
Davis V. Brown, 159 Ind. 647, 65 N. E. 909, upholding right of
assignee in good faith of life insurance policy to recover on death of
insured; PrudenUal Ins. Co. v. Sursch, 122 Mich. 438, 81 N. W. 259,
upholding assignee's right to proceeds of policy assigned with
consent of insurer where assignee paid premiums thereon; Wells
V. Rente, 86 Mo. App. 268, holding term " personal representatives "
in section 4355, Rev. Stat 1899, Includes mortgagee's remote
grantees. See notes, 87 Am. St Rep. 487, 502.
Syl. 2 (XI, 127). Insurance — Evidence to show murder.
Approved in Packer v. United States, 106 Fed. 909, holding in
prosecution under Rev. Stat., S 5480, for using mails to defraud,
. evidence of similar transaction a year prior to acts charged ad-
missible; Boyd V. Boyd, 164 N. Y. 242, 58 N. E. 121, holding erroneous
exclusion of paper purporting to be assignment in blank by deceased
of certificate of redemption attested and signed same as alleged
forgery.
Syl. 3 (XI, 128). Evidence of fraudulent insurance by assignee
of policy.
Approved in Comstock v. Kirwin, 57 Nebr. 5, holding clerk of one
court has no authority to authenticate records of another court to
render same admissible in evidence; Elliott v. Des Moines Life
Assn., 163 Mo. 150, 63 S. W. 404, holding erroneous exclusion of
letters of Insured immediately prior to suicide urging other insur-
ance companies to insure, such showing fraudulent intent to
suicide.
(XI, 127). Miscellaneous.
Cited in Burt v. Union Cent Life Ins. Co., 187 U. S. 366, 23 Sup.
Gt 140, 47 L. 219. holding policy of life Insurance does not insure
against legal execution of insured for murder; Schmidt v. Northern
Life Assn., 112 Iowa, 44, S3 N. W. 801, holding beneficiary in benefit
certificate murdering assured forfeited all rights thereunder.
Distinguished in Campbell v. Supreme Conclave Heptasophs, 06
N. J. L. 280, 49 Atl. 552, holding where not so provided expressly
suicide will not defeat policy where policy not procured with view
to suicide.
841 Notes on U. S. Reports. 117 U. S. 601-665
117 U. S. 601-621. Not cited.
117 U. S. 621-633, 29 L. 946, DISTRICT OF COLUMBIA v. Mc-
ELLIGOTT.
Syl. 4 (XI, 130). Care required of servant
Approved in St. Louis Cordage Co. v. Miller, 126 Fed. 498, holding
girl injured by crushing hands in uncovered cogs of forming machine
barred from recovery by negligence in using machine In such condi-
tion; Roccia V. Black Diamond Coal Mln. Co., 121 Fed. 452, sustain-
ing in action for injuries received by experienced miner, instruction
that If danger was obvious to prudent man plaintiff by work-
ing contrlbutoriiy negligent; Mason, etc., R. R. Co. v. Yockey, 103
Fed. 269, holding where steam escaped from defective valve and
formed ice on cab apron, on which fireman slipped, question of
contributory negligence for jury; Snook v. City of Anaconda, 26
Mont. 135, 66 Pac. 758, holding city organized under Mont. Comp.
Stat 1887, authorized by sections 325, 435, to improve and control
streets, is liable for injury from defective streets; dissenting opinion
in Roccia v. Black Diamond Coal Min. Co., 121 Fed. 459, majority
sustaining Instruction in suit by miner for injuries, that if danger
apparent to prudent man, plaintiff*s working was contributory
negligence.
117 U. S. 634-648. Not cited.
117 U. S. 648-657, 29 L. 1C21, GIVEN v. WRIGHT.
Syl. 1 (XI, 131). Long acquiescence in taxation as waiver of
exemption.
Approved in Hurd v. Hotchkiss, 72 Conn. 481, 45 Atl. 14, refusing
specific performance of contract of sale where deed executed at
same time failed to include land claimed, but plaintiff waited
ten years to assert claim.
(XI, 131). Miscellaneous.
Cited in Downs v. United States, 113 Fed. 148, holding under
section 5, tariff act 1897, Russian free sugar subject to additional
duty equal to amount of Russian bounty.
117 U. S. 657-665, 29 L. 1026, DAVIESS COUNTY v. DICKINSON.
SyL 3 (XI, 132). Municipal bonds over authorized amount.
Approved In Columbus v. Woonsocket Inst, of Sav., 114 Fed. 168,
169, holding bonds issued for water-works under ordinance calling
for sinking fund of 4 per cent, valid only to amount provided for
by tax levy; Whaley v. Commonwealth (Ratliff, Sheriff v. Tame),
110 Ky. 167, 61 S. W. 38, holding where county had levied taxes to
thirty-four cents on allowed rate of fifty — 16 of 25 cent ad-
ditional levy held separable and valid; Youngstown Bridge
Co. V. White's Admr., etc., 105 Ky. 280, 49 S. W. 37, holding
117 U. S. G65-679 Notes on U. 8. Reports. 8^
insufficient under Ky. Civ. Code, S 51, authorizing service in private
corporations* chief officer, sheriff's return stating delivery to " chief
officer;" M'Gillivray v. Joint School Dist, 112 Wis. 360, 362,
88 Am. St. Rep. 973, 975, 88 N. W. 313, upholding contract for school-
house calling for indebtedness beyond constitutional limit, as to
amount below such limit; Herman v. City of Oconto, 110 Wis. 680,
86 N. W. G88, holding plaintiff contracting sewer work per foot to
amount of $18,099, exceeding constitutional indebtedness by $228,
may recover to extent of constitutional indebtedness.
117 U. S. 665-679, 29 L. 1013, PHILLIPS v. NEGLEY.
Syl. 1 (XI, 133). Correction of judgment after term.
Approved in Tubman v. Baltimore, etc., R. R. Co., 190 U. 8. 89,
23 Sup. Ct. 778, 47 L. 947, holding judgment dismissing case for
want of prosecution not set aside on application made after close
of term; Brown v. Arnold, 127 Fed. 393, holding after termination
of term, court has no jurisdiction to set aside judgment against
national banls in suit to recover stoclc assessment; In re Henschel,
114 Fed. 970, holding Federal court sitting as Bankruptcy Court is
always open, hence never loses jurisdiction to alter or modify
interlocutory orders because term ends; Hendryx v. Perkins, 114 Fed.
809, holding bill to Vacate decree for fraud filed in same court
addressed to judicial discretion of court and decree thereon ap-
pealable; In re Ives, 111 Fed. 496, refusing to set aside adjudication
of bankruptcy where petition filed several terms after term in which
adjudication made; City of Manning v. German Ins. Co., 107 Fed.
54, 55, refusing new trial where no steps were taken during term
and trial judge by illness incapacitated from signing bill of ex-
ceptions; A. B. Dick Co. v. WIchelman, 106 Fed. 637, holding decree
cannot be vacated for errors except clerical mistakes only; United
States V. One Thousand Six Hundred and Twenty-one Pounds of
Fur Clippings, 106 Fed. 163. holding after term in which court dis-
missed information forfeiting goods for undervaluation, judgment
cannot be assailed, no steps having been taken before.
Distinguished in In re Ives, 113 Fed. 913, holding under bank-
ruptcy act 1898, District Court always open, hence proceedings in
pending suit always open for review except to disturb vested
rights.
Syl. 3 (XI, 133). Power of court at Special Term over judgment.
Approved in Macfarland v. Brown, 187 U. S. 243, 23 Sup. Ct. 106,
107, 47 L. 161, holding decree of Court of Appeals of District of
Columbia reversing order of District Supreme Court and remanding
condemnation proceedings not appealable.
Syl. 4 (XI, 134). Equitable relief against judgment.
Approved in Hendryx v. Perkins, 114 Fed. 809, 810, 814, holding
bill to vacate decree for fraud, filed in same court, addressed to
Judicial discretion of court, and decree thereon appealable.
843 Notes on U. S. Reports. 117 U. S. 679-696
(XI, 133). Miscellaneous.
Cited In Hendryx v. Perkins, 114 Fed. 809, 822, holding blU to
vacate decree for fraud addressed to Judicial, not absolute, discre-
tion of court, and decree thereon appealable.
117 U. S. 679-689. Not cited.
117 U. S. 689-696, 29 L. 1017, CANTRELL v. WALLICK.
SyL 1 (XI, 135). Patent for invention and Improvement.
Approved In American Dellnter Go. v. American Mach. Go., 128
Fed. 723, 724, holding Thomas patent Inachlne for delinting cotton-
seed, combining old elements in novel manner, patentable and in-
fringed by Baxter dellnter; American Saddle Go. v. Sager Gear Go.,
122 Fed. 646, holding Wheeler patent for bicycle saddle not patent-
able for want of novelty and Wheeler design patent 28,435 valid;
Wlnslow V. Bronson, 106 Fed. 181, holding Gulnter patent fountain
inkstand with dip-tube with funnel-shaped top passing through
inverted rubber diaphragm, removable to allow filling and escape of
air, patentable; Bowers v. Pacific Goast Dredging, etc., Go., 99 Fed.
747, holding Bowers patent for dredging machine being pioneer in-
vention Infringed by Parker patent employing equivalent device
for swinging dredgeboat
Distinguished in Eldred ▼. Kirkland, 124 Fed. 554, holding
Chambers patent 492,913, for electric cigar lighter, void for lack of
novelty, not increasing effectiveness of old combinations.
Syl. 2 (XI, 135). Patents — Devices performing substantially same
function.
Approved In Glmiotti, etc.. Go. v. American, etc., Co., 115 Fed.
505, upholding Sutton patent for unhairing machine, novelty conislst-
ing in rotary motion of brushes used; Westlnghouse, etc., Co. v.
Union Carbide Co., 112 Fed. 420, holding patentable Westlnghouse
and the Thompson patents for improvements In electrical trans-
formers, combining old elements to produce transformer of much
greater capacity; Ada^s Co. v. Schrelber, etc., Mfg. Co., Ill Fed.
188, holding Farwell patent adjustable stove damper infringed by
damper differing somewhat in appearance but accomplishing no new
use; dissenting opinion in Tecktonius v. Scott, 110 Wis. 454, 86 N. W.
076, majority holding manufacture by S. of band-fastener deter-
mined by Supreme CJourt to infringe S.*s patent before assign-
ment by S. to T., not thereafter an infringement.
Syl. 3 (XI, 135). Patents — Burden to show prior use.
Approved in American Dellnter CJo. v. American Mach. Co., 128
Fed. 722, holding Thomas patent machine for delinting cottonseed,
combining old elements in novel manner, patentable and infringed
by Baxter patent; Fairbanks-Morse, etc.. Go. v. Stickney, 123 Fed.
82, holding patentable Hobart patent 655,440, for friction clutch;
117 U. S. 697-706 Notes on U. S. Reports. Si4
Armat Moving Picture Co. v. American Mutoscope CJo., 118 Fed.
860, upholding Jenkins and Armat patent 586,d53, for picture ex-
hibiting apparatus, representing moving objects by use of moving
carrying field without use of shutter; Ck>nsolidated, etc.. Tire Ck>.
V. Finley, etc., Tire Co., 116 Fed. 632, sustaining Grant patent for
rubber-tire wheel, consisting of rubber tire, metallic rim with
sloping sides and two wires running through to hold tire in place;
Hallock V. Davison, 107 Fed. 483, holding burden of showing prior
use of Hallock weeder, the only successful one on market and ad-
mittedly copied by defendant, not sustained by latter; Covert v.
Covert, 106 Fed. 185, holding proof that article patented was left
by Inventor at store for sale two years before application for patent
establishes prior use; Stephenson v. Allison, 123 Ala. 448, 26 So. 292,
holding patentability of Allison chum shown by specifications to be
different from other patents alleged to anticipate it sustained by
presumption from issuance of patent.
Distinguished in Emerson, etc., Mfg. v. Van Nort, etc., Co., 116
Fed. 980, upholding Meston patent for improvement In lubricated
bearings for electric ceiling fan motors where evidence of anticipa-
tion was oral and from memory only.
117 U. S. 697-706, GORDON v. UNITED STATES.
Syl. 1 (XI, 136). Court of Claims* decision advisory only.
Approved In District of Columbia v. Barnes, 187 U. S. 638, 23
Sup. Ct 846, 47 L. 344, reafllrming rule; Ex parte Jonis, 191 U. S.
102, 24 Sup. Ct. 28, refusing prohibition against Choctaw and
Chickasaw citizenship court to prevent further effect to judgment
annulling Federal decree admitting persons to citizenship; Pam-to-
Pu V. United States, 187 U. S. 382, 23 Sup. Ct 147, 47 L. 226, hold-
ing Court of Claims has jurisdiction to make award to Pottawatomie
Indians under 26 Stat at Large, 24, and render judgment thereon;
District of Columbia v. Eslin, 183 U. S. 65, 46 L. 86. 22 Sup. Ct
18, holding repeal of 28 Stat at Large, 664, by 29 Stat at Large,
665, providing that no judgment on appeal from Court of Claims
shall be paid, precludes Supreme Court from entertaining appeal.
Distinguished in South Dakota v. North Carolina, 192 U. S.
320, 24 Sup. Ct. 276, upholding Supreme Court jurisdiction of fore-
closure suit by South Dakota as donee of bonds issued to donor
by South Carolina and secured by railway mortgage.
118 U. S. S-10. 30 L. 49. EMERSON t. SENTER.
Syl. 4 (XI. 138). Right of surviving partner to prefer.
DlstiuRulabed In Rogers v. Flournoy. 21 Tei. Civ. 558. 54 S, W.
387. holding void assignment by surviving partner of IndlvliJual
estate only.
SyL 5 (XI, 139). Fraudulent omission of assents from assign-
Approved In Wilson v. Me.ver, 23 Dtah, 53G. 65 Pac. 4fl0, holding
delay of five years in settling Arm's affairs necessitated by will of
deceased partner did not Justify court's order directing sale of
deceased's interest; Mlllhiser v. SIcKInley, 98 Va. 209, 35 8. E. 446,
sastainlDg assignment of partner's Interest In Insolvent firm to co-
partner to enable general assignment for benefit of creditors, no
fraud being sbowD.
118 U. S. 10-18. 30 L. G3, DOBSON v. DORAN.
Syl. 3 (XI, 139). Nominal damages where no profit made.
Approved in Kansas City Hay Press Co. v. DctoI, 127 Fed. 306.
holding nominal damages only recoverable wbere patent Infrlugeil
Is for Improved part only of mop bead and damages not proved
eeparately.
118 U. 8. 19-22, 30 L. 75, JOHNSTON t. DISTRICT OF COLDM.
BIA.
SyL 1 (XI. 140). Liability of manlclpallty for defective sewer
eystem.
Approved In City of Dallas v. Webb, 22 Tex. Civ. 51, 54 3. W.
400, holding city autborlied by charter to maintain sewer system
liable for Injury to pedestrian by stepping Into unsafe sewer grate.
See 83 Am. St. Rep. 640. note.
Distinguished In Marcus Sayre Co. v. Newark, 60 N. J. Eq. 382,
45 Atl. 994, dismissing bill to restrain city from building lawful
public sewer emptying Into Passaic river, no Injury having been
done plaintiff.
118 U. 8. 22-37. Not cited.
lis U. 8. 37-42, 30 L. 69, SOUTH BOSTON, ETC., CO. v. DNITBD
STATES.
Syl. 1 (XI, 141). Navy department oral contract not binding
government
Approved lo SL Louis Hay, etc., Co. t. Dnited States, 191 V. S.
[S45J
L
n
118 U. S. 43-80 Notes on U. S. Reports. &46
163, 24 Sup. Gt 48, holding invalid under Bev. Stat, | 3744, to sus-
tain quantum valebat, oral contract for sale of bay to United States.
118 U. S. 43-46, 30 L. 61, OAKLEY v. GOODNOW.
Syl. 1 (XI, 141). Denial of removal to Federal question.
Approved in Hickman v. Missouri, etc., Ry., 97 Fed. 120, holding
where railroad sued by Missouri railroad commissioners to fix
rates petitions for removal. State court loses Jurisdiction, and ap-
pearance no waiver of right to remove.
118 U. S. 46-4a Not cited.
118 U. S. 49^54, 30 L. 77, MEXICAN CONSTRUCTION CO. T.
RECJSENS.
Syl. 1 (XI, 142). Additional attachment security.
Approved in Russia Cement Co. v. LePage Co., 174 Mass. 859,
55 N. E. 75, holding supersedeas bond given by plaintiff in error does
not dissolve attachment or discharge "previous bond," but Is ad-
ditional security.
118 U. S. 54-58, 30 L. 60. CAMBRIA IRON CO. v. ASHBURN.
Syl. 4 (XI, 143). Diverse citizenship in whole suit necessary.
Approved in Weldon v. Fritzlen, 128 Fed. 614, holding nonresi-
dent mortgagee creditor of mortgagors joined as codefendant by
mortgagee cannot remove for prejudice.
Distinguished in Holmes v. Southern Ry. Co., 125 Fed. 302, hold-
ing Judiciary act 1887-88 authorizes removal of suit for local
prejudice by any one defendant citizen of different State, though
Joined with resident.
118 U. S. 58-67. Not cited.
118 U. S. 58-61, 30 L. 72, CASHMAN v. AMADOR, ETC., CANAL
CO.
Syl. 1 (XI, 143). Dismissing alien's suit in county's behalf.
Distinguished in New Albany Water- Works v. Louisville Banking
Co., 122 Fed. 779, holding not collusive foreign stockholder's bill
to enjoin alleged breach of trust by directors where majority op-
posed action, though resident stockholders shared expense.
118 U. S. 62-67. Not cited.
118 U. S. 68-72, 30 L. 73, CAPE GIRARDEAU COUNTY COURT
V. HILL.
Syl. 2 (XI, 143). Omitting in revised statutes no repeaL
See 88 Am. St Rep. 289, note.
118 U. S. 73-80, 30 L. 78, CAt)MAN v. PETER.
Syl. 1 (XI, 143). Parol to show deed a mortgage.
Approved in American Bell Tel. Co. v. National Tel., etc., Co.,
109 Fed. 1010, holding written application for patent for machine
847 Notes on U. S. Reports. 118 U. 8. 81-96
for reproducing musical sounds expressly disclaiming use as speech
transmitter not cured by amendment
118 U. S. 81-86. Not cited.
118 U. S. 86-90, 30 L. 110, UNITED STATES ▼. WILSON.
Syl. 1 (XI, 144). Ejectment by holder of legal title without pos-
session.
Approved in Cocke v. Gopenhaver, 126 Fed. 148, affirming dis-
missal of bill to remove cloud on title showing on face that others
than plaintiff have title and possession to land in question; Bent
V. Hall, 119 Fed. 346, dismissing bill alleging that plaintiff applied
to purchase Texas school land that commissioner canceled contract
and assigned to defendant, praying cancellation and writ of pos-
session; United States Min. Co. v. Lawson, 115 Fed. 1007, holding
Federal court will not entertain bill to remove cloud where plaintiff
not in possession unless defendant out also, although State courts
malce no distinction; Dewing ▼. Woods, 111 Fed. 577, dismissing
bill to remove cloud on title to land where plaintiff was out of
possession and where legal title was in State as tax purchaser;
Ely V. New Mexico, etc., R. R., 2 Ariz. 42G, 19 Pac. 8, dismissing
bill to quiet title where plaintiff out of possession does not allege
that ejectment would give adequate remedy; M. O. P. Co. v. B. &
M., etc., Co., 27 Mont. 539, 71 Pac. 1006, holding under Rev. Stat,
I 2322, plaintiff in possession and ownership of surface containing
apices of veins is owner and possessor of all parts of such veins;
Moore v. Shofner, 40 Or. 491, 67 Pac. 512, holding under Or. Code,
S 504, as amended, allowing suit in equity where defendant not in
possession, equity has no Jurisdiction where defendant in posses-
sion; Kane v. Virginia Coal, etc.. Iron Co., 97 Va. 331. 33 S. E. 628,
dismissing bill to remove cloud on title where plain tiff*s title not
satisfactorily shown and plaintiff out of possession.
118 U. S. 90-96, 30 L. 115, SPRAIGUE v. THOMPSON.
Syl. 1 (XI, 145). Commerce — State pilotage law.
Approved In State v. Santer, 111 Iowa, 8, 82 N. W. 447, holding
unconstitutional Iowa Code, § 2508, proliibiting use of Illuminating
petroleum emitting combustible vapor at certain heat, so far as
exempting product used in Welsbach lamps.
Distinguished in Darden v. Thompson, 101 Va. 642, 44 S. E.
757, upholding Va. Code, §§ 1965, 1969, regulating pilotage rates
for different ports.
Syl. 2 (XI, 145). Statute void in part.
Approved in Estate of Johnson, 139 Cal. 539, 541, 73 Pac. 427,
upholding Stat. 1897, p. 77, chap. 83, exempting nephews and nieces
from collateral inheritance tax, being extended by (Constitution to
nonresident nephews and nieces; Mahoney Estate, 133 Cal. 181, 66
118 U. S. 97-119 Notes on U. S. Reports. S48
Pae. 390, holding unconstitutional as applied to nieces and nephews,
Cal. Stat. 1897, p. 77, taxing estates over $500, passing by will to
other than father, mother, neices, and nephews when residents;
dissenting opinion in Stone, Auditor v. Pryor, etc., 103 Ky. 674, 45
S. W. 1139, majority upholding Ky. act March 6, 1894, fixing salary
of Judges at $5,000 per annum under Const., | 235, providing that
salaries should not be changed during term.
Distinguished in dissenting opinion In Estate of Johnson, 139
Cal. 541, 73 Pac 428, majority upholding Stat 1897, p. 77, ex-
empting nephews and nieces from collateral inheritance tax, being
extended by Constitution to include nonresidents.
(XI, 145). Miscellaneous.
Approved in Hines v. New York & Porto Rico Steamship Co., 182
U. S. 393, 45 L. 1149, 21 Sup. Ct 828, holding steamship trading
between New York and Porto Rico is coastwise vessel within Rev.
Stat., S 4401, exempted by section 4444 from State pilot laws whoi
under Federal pilot; The Energia, 124 Fed. 847, upholding Ballin-
ger's Codes Wash., §§ 5953, 5954, giving liens on all vessels for non-
performance of charter to cargo to or from ports of State; The
Carrie L. Tyler, 106 Fed. 425, holding, under Code N. C, %% 3496,
3502, 3505, barge in tow having requisite tonnage liable for pilot
services where tendered and refused.
118 U. S. 97-109, 30 L. 104, CLAY v. FREEMAN.
Syl. 2 (XI, 146). Surviving partner's duty to settle debts.
Approved in Churchill v. Buck, 102 Fed. 43, holding administrator
of partner first deceased cannot maintain action before partnership
business settled and debts paid to recover possession of realty.
Syl. 3 (XI, 146). Debts due surviving partner — Lien.
Approved in Henderson v. Rles, 108 Fed. 714, holding partner
advancing money to pay partnership expenses until its earnings
Justified Joint payment by firm entitled on dissolution to repay-
ment of advances.
118 U. S. 109-113, 30 L. 103, SOUTHERN PAC. R. R. CO. v. CALI-
FORNIA.
Syl. 4 (VI, 14G). Presentation of claim determines removal right.
Approved in State v. Frost, 113 Wis. 648, 656, 89 N. W. 920, 923,
holding information in equity restraining Federal receiver from
destroying road valued over $2,000 removable to Federal courts.
118 U. S. 113-119, 30 L. 108, EX PARTE LOTHROP.
Syl. 1 (XI, 147). Arizona courts discussed.
Approved in History CJo. v. Dougherty, 8 Ariz. 393, 29 Pac. 650,
holding Rev. Stat. Ariz. 1887, | 846, providing for appeals to Su-
preme Court from final Judgment of District Court in all civil
cases, enlarged section 592, limiting appeals over $100; Ex parte
649 Notes on U. S. Reports. 118 U. S. 120-151
Wilbarger, 41 Tex. Or. 520, 55 S. W. 971, upholding, under Const,
art 5, S 1, Tex. Acts 20th legislature, p. 40, establishing corporate
court with certain criminal Jurisdiction.
118 U. S. 120-126, 30 L. 81, UNITED STATES ▼. NASHVILLE,
ETC., RY.
Syl. 1 (XI, 147). Limitations do not run against government.
Approved in Pond v. United States, 111 Fed. 996, holding Cwle
Civ. Proc. Cal., S 1502, requiring presentment to executor of claim
where deceased died while action pending, inapplicable in govern-
ment suit against collector's surety; dissenting opinion in South
Dakota v. North Carolina, 192 U. S. 545, 24 Sup. Ct 287, majority
upholding Supreme Court's Jurisdiction over foreclosure suit by
South Dakota, as donee of bonds issued by North Carolina, and
secured by railway mortgage.
118 U. S. 127-136, 30 L. 112, CONLBY v. NAILOR.
Syl. 2 (XI, 148). Answer evidence for defendant
Approved tn Jacobs v. Van Sickle, 127 Fed. 69, holding verified
answer denying fraud, alleged in bill by trustee to set aside bank-
rupt's conveyance, evidence for defendant where bill silent as to
oath; Jacobs v. Van Sickel, 123 Fed. 341, holding cerified answer
denying fraud, where bill silent as to answer under oath, evidence
for defendant in ti*us tee's suit to cancel deed for fraud; Calivada
Colonization Co. v. Hays, 119 Fed. 206, holding In suit for can-
cellation of stock, where bill expressly waived answer under oath,
answer, so far as responsive, evidence for defendant
Syl. 4 (XI, 148). Cancellation of deed for undue influence.
Approved in Erwin v. Hedrick, 52 W. Va. 644, 44 S. E. 167, re-
fusing to set aside deed for undue influence, by which plaintiff
conveyed bond and personalty to cousin, who agreed to support
her for life, no fraud being shown; Vance v. Davis, 118 Wis. 551,
95 N. W. 940, sustaining conveyance by widow of all her estate to
daughter who had cared for her for seventeen years at request of
brother and sister; Marking et al. v. Marking, 106 Wis. 295, 82
N. W. 134, holding erroneous setting aside of conveyance by mother
to son of land worth $1,400 incumbered for $900 in consideration
of $50 per year during life.
118 U. S. 130-147. Not cited.
118 U. S. 148-151, 30 L. 190, HOPPER v. CORRINGTON.
SyL 3 (XI, 149). General averment not admitted on demurrer.
Approved tn Crockett v. McLanahan, 109 Tenn. 525, 526, 72 S. W.
952, holding demurrer to declaration in libel suit does not admit
allegations that defendant had no reasonable cause for making
statement charged.
VoL 11 — 64
118 U. S. 152-193 Notes on U. 8. Report!. . 850
118 U. 8. 152-161, 30 L. 103, PAINE ▼. GENTBAL VERMONT
R R. CO.
Syl. 1 (XI, 149). Matters reviewable on error to referee's decision.
Approved in Southern Ry. v. Ensig^n Mfg. Co., 117 Fed. 421,
holding vendor of car wheels to company, kn6wlng they were for
equipment of leased road, relying on being paid within sixty or
ninety days, not preferred to mortgagees; American Sales Book Go.
V. BuUivant, 117 Fed. 260, refusing to review, on appeal, finding
of fact of lower court in trial without jury, that patent manifolding
book and holder lacked patentable novelty.
Syl. 5 (XI, 150). Statutes fixing reasonable time for presentment
Approved in Merritt v. Jackson, 181 Mass. 70, 62 N. E. 988,
holding under Mass. Stat 1898, chap. 533# S 71, In absence of custom
or usage, demand on maker of demand note must be made within
sixty days.
118 U. S. 161-180, 30 L. 196, GRAHAM v. BOSTON, ETC., B. R.
GO.
SyL 2 (XI, 150). Adoption of foreign corporation.
Approved in Goodwin v. New York, N. H. & H. R. R. 0>., 124
Fed. 358, 361, holding corporation incorporated in Massachusetts and
Gonnecticut not suable in Massachusetts Gircuit Gourt by Massa-
chusetts citizen; Seattle Gas, etc.. Electric Go. v. Gitizens' Light,
etc.. Power Go., 123 Fed. 594, holding New Jersey corporation with-
out charter power to carry on gas business cannot lay gas mains in
Washington; Howard v. Gold Reefs, 102 Fed. 658, holding name
Gold Reefs of Georgia, and ownership of property in Georgia, do
not overcome presumption of nonresidence raised by allegation of
foreign incorporation; Debnam v. Southern Bell Tel. Go., 126 N. G.
846, 36 S. E. 274, holding foreign telephone company, complying
with N. G. Pub. Laws 1899, becomes domestic corporation, citizen
of State; dissenting opinion in Calvert v. Railway Go., 64 S. G. 154,
41 S. E. 968, majority holding foreign corporation, complying with
S. G. act March 19, 1896, becoming domestic, nonresident for Fed-
eral Jurisdiction.
Syl. 3 (XI, 151). Corporate meetings in different States valid.
Approved in Winn v. Wabash R. R. Co., 118 Fed. 63, holding
consolidated road from constituent Ohio, Illinois, Indiana, and
Missouri roads, citizen of each State, hence suit by Missouri citizen
not removable. See 89 Am. St. Rep. 651, note.
118 U. S. 180-193, 30 L. 158, GARDNER v. HERZ.
Syl. 2 (XI, 152). Patent for old article.
Approved in Farmers' Mfg. Co. v. Spruks Mfg. Co., 119 Fed. 696,
holding East patent for ventilating barrel made of sheet of veneer
with parallel slits arranged lengthwise void for lack of noveliy;
851 Notes on U. S. Reports. US U. S. 194-209
Stetson v. Herreshoff Mfg. Co., 113 Fed. 956, holding Mclntyre
patent for keel formed of single piece of cast metal anticipates
patent for keel describing same structure divided into sections for
convenience.
118 U. S. 194-196, 30 L. 243, ARROWSWORTH v. HARMONING.
SyL 1 (XI, 153). Review of Federal questions not noticed.
Approved in Rothchild v. Knight, 184 U. S. 339, 46 L. 579, 22
Sup. Gt 393, holding Federal question sufficiently raised in State
court for review by Supreme Court If raised on writ of error to
Supreme Court
SyL 2 (XI, 153). Erroneous State decision ordering property sold.
Approved in New York, etc., R. R. Co. v. McKeon, 189 U. S. 509,
23 Sup. Ct 853. 47 L. 922, reaffirming rule; In re Storti, 109 Fed.
809, refusing to dismiss convicted murderer on habeas corpus, on
ground of due process, where legislature did its duty and only
fault with attorney-general.
118 U. S. 19^-209, 30 L. 98, IRON, ETC., MIN. CO. V. ELGIN
MIN. CO.
Syl. 1 (XI, 153). Mines ~ Following vein outside side.
Approved in Cosmopolitan Min. Co. v. Foote, 101 Fed. 522, hold-
ing locator locating claim across instead of along vein has no
extralateral rights thereunder, his side lines becoming end lines;
Parrot S., etc., C. Co. v. Helnze, 25 Mont. 144, 148, 64 Pac. 328, 330,
holding where apex was in defendant's claim, but vein crossed
side lines thereof, defendant had no extralateral rights in vein, and
plalntlfTs common-law right attached.
SyL 4 (XI, 154). Mines — Established end lines control.
Approved in St. Louis Min., etc., Co. v. Montana, etc., Co., 104
Fed. 667, holding secondary vein crossing common side line where
apex in both claims considered as apexing in senior location until
wholly passed beyond side line regardless of dip.
Syl. 5 (XI, 155). Reversal of land department's construction of
patents.
Approved in Strickley v. Hill, 22 Utah, 268, 62 Pac. .896, holding
proof that person served in and was honorably discharged from
army tends strongly to prove declaration to become citizen and
naturalization.
Syl. 7 (XI, 155). Mines — Parallel end lines following veins.
Approved in Empire Milling, etc., Co. v. Tombstone Mill, etc.,
Co., 100 Fed. 913, 914, holding defendant, locating claim across
Instead of along vein, entitled to extralateral rights in ore from
vein dipping under adjoining claim from end lines as located;
Argonaut Min. Co. v. Kennedy, etc., Co., 131 Cal. 23, 24, 26, 03
118 U. S. 210-263 Notes on U. S. Reports. 852
Pac. 151, 152, upholding extralateral rights in location made, un-
der act Congress 1860, granting extralateral rights without requir-
ing parallel end lines, though patent granted after 1872, requiring
parallelism.
118 U. S. 210. Not cited.
118 U. S. 211-223, 30 L. 128, HUNT T. OLIVER.
(XI, 156). Miscellaneous.
Approved in Donald v. Guy, 127 Fed. 232, holding members of
unincorporated Virginia pilot association, controlling business, as-
signing members to service, liable for negligent service of member.
118 U. S. 223-235. Not cited.
118 U. S. 235-241, 30 L. 173, UNITED STATES v. CENTRAL PAC.
R. R.
(XI, 156). Miscellaneous.
Approved in State of Maryland v. United States Fidelity Co.,
93 Md. 318, holding, under Md. Code, art 81, f 146, imposing fran-
chise tax on gross receipts, guaranty company liable only on receipts
of business in State.
Distinguished in Boston Ins. Co. v. Chicago, etc., Ry. Co., 118
Iowa, 430, 92 N. W. 91, holding railway company not liable for
negligence of servants resulting in loss of mail package.
118 U. S. 241-255. Not cited.
118 U. S. 256-263, 30 L. 176, SALT LAKE CITY v. HOLLISTER.
SyL 1 (XI, 157). Railroad invading property as trespasser.
Approved in Hindman v. First Nat. Bank, 112 Fed. 940, hold-
ing bank liable to insurance commissioner for false statement
made by its cashier as to amount of insurance company's deposit in
bank.
Syl. 2 (XI, 158). Corporation's liability for acts of agent
Approved in Chesapeake & Ohio Ry. Co. v. Howard, 178 U. S.
160, 44 L. 1018, 20 Sup. Ct. 883, holding railroad Uable for in-
juries resulting from servant's negligence where road was rented
under Illegal lease; Hindman v. First Nat Bank, 98 Fed. 5(>6,
holding bank liable to purchaser of insurance stock held as col-
lateral induced by cashier's false representation that insurance
company had so much capital on deposit
Syl. 4 (XI, 158). Taxes on municipal property unlawfully ac-
quired.
Approved in Thompson v. Town of Elton, 109 Wis. 595, 85 N. W.
427, holding town liable for money had and received, amount of
loan obtained from plaintiff by town officers and used for legiti-
mate town purposes.
853 Notes on U. S. Reports. 118 U. S. 2M-279
SyL 6 (XI, 159). Ck)rporation8 — Repudiation of ultra vires
contracts.
Approved in Wendel v. Spokane Co., 27 Wash. 125, 91 Am. St
Rep. 827, 67 Pac. 578, holding county having authority to drain
lalke liable for wrongful turning of water upon plaintlfTs land;
State of Washington v. Pullman, 23 Wash. 587, 63 Pac. 266, hold-
ing city contracting to use water system, to purchase same at ex-
piration of term, without election required by 1 HilFs Code, S 696,
not estopped by receiving benefits.
Syl. 7 (XI, 159). Restitution required, though contract unen-
forceable.
Approved in Tennessee Ice Go. v. Raine, 107 Tenn. 156, 64 8. W.
30, upholding recovery against insolvent corporation for beer sold
it, though purchase ultra vires, where contract repudiated and
suit was for proceeds held by defendant.
118 U. S. 264-271, 30 L. 232, PLYMOUTH, ETC., MIN. CO. v.
AMADOR CANAL CO.
SyL 1 (XI, 159). Doclceting cause brought up by appeal and
error.
Approved in M*Fadden v. Mountain View Mln., etc., Co., 97
Fed. 672, approving appellant's action in bringing contest of min-
ing claim before appellate court by appeal, and writ of error where
character of action unsettled.
Syl. 2 (XI, 159). Removal for separable controversy.
Approved in Chesapealce & O. R. R. Co. v. Dixon, 179 U. S. 140,
45 L. 125, 21 Sup. Ct 71, holding indivisible action against rail-
road and engineer and fireman for concurrent negligence in iLilling
deceased, and not removable where employ rrs and plaintiff have
common citizenship.
Syl. 3 (XI, 160). Removal — Proof of slium parties.
Approved in Kansas Suburban Belt Ry. Co. v. Herman, 187 U.
S. 70, 23 Sup. Ct 27, 47 L. 79, sustaining refusal of second re-
moval petition raising for first time fraudulent joinder of defend-
ant without stating when fraud discovered; Board of Comrs. v.
Toronto Bank, 128 Fed. 159, holding citizenship for removal is ques-
tion of fact which must be well pleaded in removal petition;
Diday v. New York, etc., R. R., 107 Fed. 567, denying motion
to remand suit against foreign corporation where plaintiff fraudu-
lently joined Ohio corporation as lessor to create joint liability for
Injury and prevent removal.
118 U. S. 271-279, 30 L. 170, MULLAN v. UNITED STATES.
Syl. 2 (XI, 160). Mineral lands do not pass as school lands.
Approved in Northern Pac. Ry. v. Soderberg, 188 U. S. 529,
23 Sup. Ct 366, 47 L. 581, holding lands chiefly valuable for
118 U. S. 27^-^21 Notes on U. 8. Beports. 864
granite quarries are " mineral lands *' excepted from grant Jnly
2, 1864, to Northern Pacific railroad; Northern Pac. Ry. t. Soderberg,
104 Fed. 427, holding lands valuable for granite suitable for
quarrying "mineral land'* within grant July 2, 1864, to North-
em Pacific company, excepting mineral lands.
118 U. S. 279-289, 80 L. 167, CARSON v. HYATT.
SyL 2 (XI, 161). Removal — Questions for State court
Approved in Ashe v. Union, etc., Ins. Ck)., 115 Fed. 235, holding
where petition and removal bond filed on ground of diversity of
citizenship only notice to plaintiff not required.
SyL 8 (XI, 161). Citizenship stated in answ^ no estopp^
Approved in Marthinson v. Winyah Lumber Co., 125 Fed. 633,
holding statement of citizenship in former bill, which was dis-
missed, does not estop plaintiff in subsequent bill from alleging
that he is alien.
118 U. S. 290-321, 30 L. 83, PENNSYLVANIA CO. v. ST. LOUIS,
BTC, R. R.
SyL 3 (XI, 162). Grant of privilege not adoption of corporation.
Approved in Goodwin v. New York, N. H. & XL R. R. Co., 124
Fed. 358, 361, 367, holding liailroad incorporated in Massachusetts
and Connecticut cannot be sued by Massachusetts citizen in Cir-
cuit Court in Massachusetts; Howard v. Gold Reefs, 102 Fed. 658,
holding name "Gold Reefs of Georgia" and ownership of prop-
erty in Georgia do not overcome presumption of nonresidence
raised by allegation of incorporation in England; dissenting opinion
in Calvert v. Railway (3o., 64 S. C. 155, 41 S. B. 968, majority
holding foreign railroad complying with S. C. Acts March 19,
1896, becoming thereby domestic, is nonresident for Federal juris-
diction. See 85 Am. St. Rep. 907, note.
SyL 7 (XI, 163). Charter measures, corporate powers.
Approved in Cumberland Tel., etc., Co. v. Evansville, 127 Fed.
190, 191, holding 2 Bums' Rev. Stat. Ind. 1901, f 5517, author-
izing formation of telephone companies, confers no power to sell
all property and franchises; Seattle Gas, etc.. Electric Co. v.
Citizens* Light, etc.. Power Co., 123 Fed. 594, holding New Jersey
corporation, having no charter power to manufacture or sell gas,
cannot lay gas mains and sell in Washington; New Albany Water-
Works V. Louisville Banking Co., 122 Fed. 780, 781, holding quasi-
public water company, under Indiana laws, has no power to
transfer entire property to another corporation; Chicago Union
Traction Ca v. Chicago, 199 111. 605, 65 N. B. 479, holding, under
Rev. Code Chicago, S 1725, beneficial owner of street railway
line liable to penalty for refusal to give transfer, though not hold-
ing bare legal title; First Nat Bank v. American Nat Bank, 173
855 Notes on U. S. Reports. 118 U. S. 321-374
Mo. 159, 72 S. W. 1061, holding bank having no power, under
Rev. Stat., § 6136, to guarantee payment of draft drawn on cus-
tomer, may plead ultra vires when sued on guaranty.
SyL 8 (XI, 163). Railroads — Power to lease whole road.
Approved In Central Trust Co. v. Indiana, etc., R. R. Co., 98 Fed.
iS70, 671, holding railway operating leased line across State not
empowered by Burns' Rev. Stat Ind. 1894, { 5216, to guarantee
bonds of another company, lease being ultra vires; Chenoweth y.
Pacific Exp. Co., 93 Mo. App. 196, holding corporation cannot plead
ultra vires to contract by its superintendent to pay injured mes-
senger stipend, although contract held not binding for lack of
authority.
Syl. 14 (XI, 165). Relief from void executed contract
Approved In Eel River R. R. Co. v. State ex rel., 155 Ind. 456, 57
N. E. 396, holding lease by domestic railway comxMiny under which
It surrenders all corporate property is ground for forfeiture of
franchises by State; Kansas City v. O'Connor, 82 Mo. App. 661, hold-
ing contract for street sprinkling, being ultra vires, not validated by
part performance.
118 U. S. 321-346, 30 L. 211, LORING't. PALMER.
Syl. 1 (XI, 167). Several writings to show express trust
Approved in Wiggs v. Winn, 127 Ala. 627, 29 So. 97, holding letter
written to landowner inclosing deed to be executed, and third
party's letter advising landowner to convey to defendant to enable
latter to mortgage, created trust; Gates v. Anery, 112 Wis. 277, 87
N. W. 1093, nonsuiting plaintiff suing for price of land "where
defendant though beneficiary was not named in contract and
made no promise to pay.
118 U. 8. 346-355, 80 L. 207, SNOW v. UNITED STATES.
Syl. 1 (XI, 167). Review of State Judgment for plural cohabita-
tion.
Distinguished in dissenting opinion in State v. Thayer, 158 Mo.
49, 58 S. W. 13, 14, majority holding under Mo. Rev. Stat 1899,
p. 2566, providing for appeals from County Criminal (Ik>urt, appeal
lies from conviction for misdemeanor on Information.
118 U. S. 356-374, 30 L. 220, YICK WO v. HOPKINS,
SyL 2 (XI, 168). Binding effect of State statutory construction.
Approved in Ex parte McMinn, 110 Fed. 955, refusing petition for
release on habeas corpus of plaintiff confined in Tuscaloosa insane
hospital, leaving him to State court remedy.
Syl. 4 (XI, 169). Chinese protected by Fourteenth Amendment
Approved in Connolly v. Union Sewer Pipe Co., 184 U. S. 599, 46
L. 689, 22 Sup. Ct 439, holding unconstituUonal 111. Stat 1893, f 9,
118 U. S. 350^74 Notes on U. S. Reports. 8M
exempting agricultural products and live stock In hands of pro-
ducer from operation of statute prohibiting combinations in restraint
of trade; Downes v. Bidwell, 182 U. S. 283, 45 L. 1105, 21 Sup. Ct.
785, upholding Foralser act April 12, 1900, providing temporary civil
government for Porto Rico and imposing duty on imports from
Porto Rico; Union Co. Nat. Bank v. Ozan Lumber Co., 127 Fed. 211,
holding unconstitutional Ark. act April 23, 1891, requiring for
negotiable instruments in payment for patent things printed forms
stating consideration, excepting those of dealers; United States v.
Lee Huen, 118 Fed. 455, affirming Judgments for deportation of
Chinese aliens where evidence offered was insufficient to sustain
burden of proof placed in defendant by 27 Stat. 25; Beveridge v.
Lewis, 137 Cal. 623, 631, 92 Am. St Rep. 192, 1042, 70 Pac. 1085,
holding unconstitutional Cal. Code Civ Proc, { 1248, authorizing set-
ting off of benefits where property taken for public use, since Const,
art. 1, prevents equal operation; Schaezlein v. Cabaniss, 135 Cal.
469. 87 Am. St Rep. 124, 67 Pac. 756, holding unconstitutional Cal.
act February 6, 1889, authorizing commissioner to order machinery
to prevent inhalation of injurious gases, when generated in factories;
Consolidated Coal Co. y. People, 186 111. 138, 57 N. B. 882, upholding
Hurd*s Stat 111. 1897, p. 1088, providing for inspection of coal
mines and requiring operators to pay inspection fees; State v.
Montgomery, 94 Me. 202, 207, 47 Atl. 167, 169, holding unconstitu-
tional Me. Laws 1889, chap. 298, f 1, amended by Laws 1893, pro-
viding for hawkers and peddlers* licenses for citizens of United
States, discriminating against aliens; Marshall, etc., Bruce Co. v.
Citj' of Nashville, 109 Tenn. 507, 510, 71 S. W. 818, 819, holding
unconstitutional Tennessee city ordinance requiring all city print-
ing to bear union label; Matthews v. Jensen, 21 Utah, 228, 61 Pac.
308, holding unconstitutional county commissioner's ordinance tax-
ing sheep raising, placing $250 tax on owner of 5,000 sheep, and
$20U on owner of 4,000 and less than 5,000; State v. Cadlgan, 73 Vt
252. 87 Am. St Rep. 719, 50 Atl. 1081, holding unconstitutional
Vt Stat, chap. 175, { 4133, prohibiting agents of foreign corpora-
tions from acting as such unless corporation has filed bond on
taxes; State v. Currans, 111 Wis. 436, 87 N. W. 563, upholding
Wis. Rev. Stat 1898, § 1435b, amended by Laws 1901, chap. 306,
requiring diploma from accredited medical college and State board
examination for medical license.
Distinguished in Parks v. State, 159 Ind. 217, 218, 64 N. E. 865,
upholding Burns' Rev. Stat Ind. 1901, §§ 7318-7323, prohibiting
practice of medicine without license, holding same includes pro-
fessor of magnetic healing.
Syl. 6 (XI, 170). Laundry ordinance void under Fourteenth
Amendment.
Approved in Cotting v. Godard, 183 U. S. 107, 46 L. 108, 22 Sup.
8ST
Notes on U. S. KeportB. 118 O. S. 350-374
Gt 42. holding unconstitutloDHl Kan. act Marcb 3. 1897, defining
stockyard corporations and regulating charges tased entirely upon
amount of trade. In efttrct discrlniluatiDg against plaintiff; Clilcngo,
Milwaukee, etc.. Ry. v. Tompkins, 170 U. S. 172, 45 L. 420, 20 Sup.
Ct. 338, Loldlng rallronci commission's rate schedule must Lie tiased
upon com par is on liotween grosa receipts ot railroad and cost
of doing business: In re Wilslilre. 103 Fed. 622. upholding Los
Angeles ordinance limiting height ot billhoards within city to six
feet; ,Iew Ho v. Williamson. 103 Fed. 23, holding unreasonable San
Francisco quarantine regulations confining the 10,000 InhabitaDts
of region emhraclng twelve hloclis where nine deaths from bubonic
lilngue reported; In re Marshall. 102 Fed. 31!6, holding nnconstltn-
tionat California county ordinance making misdemeanor punishable
by fine to use magazine gun or repeating shotgun In bunting ducks,
geese, and other birds; State v. Mitchell, 87 Me. 72. 53 Atl. 8S9. 1«
Am. St Itop, 4S3, holding an constitution at Me. Laws 1001. chap.
277, dlscrlmlnaling between hawkers and peddlers paying taxes on
stock worth $25 and those owning leas; Scholle v. State of Mary-
land, 90 Md. 740. 46 Atl. 327. upholding Poe's Snpp. Code Md.. art.
43. anthorlElng examinations by boards appointed by Medical and
Chlrurgical Faculty of Maryland or by Homenpathic Medical Society;
State of Maryland v. Knowles, 00 Md. 654, 43 Atl. 878, upholding
Md. act 1800, chap. 378, i 0, requiring graduates of dental colleges lo
pass State examination, but enabling examiners to waive aucb exam-
ination; Northweslcrn Tel., etc., Co. v. City of Minneapolis. 81 Minn.
149. 83 N. W. 531. holding void Minneapolis ordinances requiring
removal of poles of telephone company previously granted use or
streets, requiring wires to be conveyed underground involving
great cost; Goodale \. Sowell. 62 S. C. 525. 40 S. E. 073, holding uu-
constitutional S. C. Acts 1899, giving commissioners in charge of
stock law fence niilhorlty to exclude or Include persona from terri-
tory exempt from stock law; Newbern v. McCaan, 105 Tenn. 1(J5.
58 8. W- 115. holding unreasonable and void Tennessee city ordi-
nance making unlawful for saloon proprietor or employees to enter
saloon on Sunday without permit stating time to remain; dissenting
opinion in Dowues v. Bldweli. 182 U. S. 359. 45 L. 1134. 21 Sup.
Ct 814. majority upholding Foraker act April 12. 1900. providing
civil government for Porto Rico and Imposing duties on Porto
Itlcan exports to United States.
Distinguished In Gundling v. Chicago, 177 U. S. 180. 44 L. 728, 20
Sup. Ct 635, upholding Chicago ordinance giving mayor power to
determine whether person wishing license to sell cigarettes Is suit-
able person, requiring Issuance of license It suitable; The Ten-
Hour Law for St Ry. Corporations, 24 R. I. 600. 54 Atl. 603. up-
holding R, I. Pub. Laws, chap. 1004. limiting street railway em-
plcyment to ten hours a day and holding Illegal contract violating
aame; Connelly v. Western Union Tel. Co.. 100 Va. 07, 93 Am. St
118 U. S. 375-385 Notes on U. S. Reports. 858
Rep. 932. 40 S. B. 624, holding damages for mental suffering orHj
for nondelivery promptly of message, not recoverable under Vir-
ginia Ck>de or statutes authorizing, prompt delivery.
Syl. 7 (XI, 172). Discriminatory execution of fair law — Four-
teenth Amendment
Approved in Austin v. Tennessee, 179 U. S. 350, 45 L. 229, 21 Sup.
Ct 134, upholding Tenn. Acts 1807, chap. 30, making misdemeanor
selling or importing to sell or dispose cigarettes or cigarette paper
and fining violation thereof; Western Union, etc., Co. v. Ferguson,
26 Ind. App. 220, 59 N. E. 419, holding erroneous decisions of State
Supreme Court awarding damages for mental anguish from failure
of telegraph company to deliver message; Western Union TeL Co.
T. Ferguson, 157 Ind. 72, 60 N. B. 677, holding plaintiff cannot
recover for mental anguish incident to defendant's failure to de-
liver telegram announcing grandmother's death, thus preventiug
attendance, such being only damage alleged; State v. Santee, 111
Iowa, 4, 82 N. W. 446, holding unconstitutional Iowa Code, f 2508,
low certain heat, exempting therefrom petroleum used In Welsbach
prohibiting use of petroleum for illuminating if emitting vapor be-
lamps; Commonwealth v. Pear, 183 Mass. 247, 66 N. B. 721, up-
holding Mass. Rev. Laws, chap. 75, { 137, authorizing boards of
health in discretion to require vaccination and revaccination of in-
habitants, penalizing refusal to comply with vaccination order;
Kansas City v. Bacon, 157 Mo. 467, 57 S. W. 1049, upholding under
Kansas City charter, authorizing establishment of parks, instruc-
tion In condemnation case that Jury should consider only direct,
certain, and proximate; State v. Dalton, 22 R. I. 81, 46 Atl. 235,
holding unconstitutional R. I. Pub. Laws, chap. 652, making mis-
demeanor to give stamps on sale of property entitling holder to
obtain article from third person; dissenting opinion in Taylor and
Marshal v. Beckham (No. 1), 178 U. S. 600, 44 L. 1209, 20 Sup. Ct
890, 1015, majority holding decision ol Kentucky State courts
against claimant to governorship no deprivation of property giving
Supreme Court jurisdiction on error; dissenting opinion in The Ten-
Hour Law for St Ry. Corporations, 24 R. I. 611, 54 Atl. 605, ma-
jority upholding R. I. Pub. Laws, chap. 1004, limiting street rail-
way employment to ten hours a day and holding illegal contract
violating same.
Distinguished In People of State of New York v. Bennett, 113
Fed. 518, upholding N. Y. Laws 1895, chap. 570, allowing record of
wagers by memorandum thereof if made on certain race courses
but punishing making of such records elsewhere.
118 U. S. 375-385, 30 L. 228, UNITED STATES v. KAGAMA.
Syl. 2 (XI, 173). Congressional control over Territories.
Approved in Downes v. Bidwell, 182 U. S. 290, 45 L. 1108, 21
Sup. Ct 788, upholding Foraker act April 12, 1900, providing tern-
869 Notes on U. S. Reports. 118 U. S. 37&-386
porary civil govemment for Porto Rico and imposing duty on
Porto Rlcan exports into United States.
Syl. 3 (XI, 173). Congressional power over Territories results of
sovereignty.
Approved in Downes v. Bldwell, 182 U. S. 290. 45 L. 1108, 21
Sup. Gt. 788, upholding Foral^er act April 12, 1900, providing tem-
porary civil government for Porto Rico and taxing imports from
Porto Rico into United States.
Syl. 8 (XI, 174). Grimes on Indian reservations.
Approved in In re Blacl^bird, 109 Fed. 140, 141, 142, holding act
March 3, 1885, defining crimes of Indians on reservations and pro-
viding courts to try same exclusive, hence Washington authorities
cannot enforce game laws thereon.
Syl. 9 (XI, 174). Indians are wards of nation.
Approved in United States v. Ricl^ert, 188 U. S. 438, 23 Sup. Ct
480, 47 L. 536, holding State cannot tax lands allotted in severalty
by act February 8, 1887, United States holding in trust, nor per-
manent improvements, nor personalty thereon; United States v.
Ghoctaw Nation, 179 U. S. 532, 45 L. 306, 21 Sup. Gt 164, holding
absolute cession to United States apparently made by Ghoctaw and
Chickasaw treaty of 1866 not construed as trust because Indians
are wards of nation; United States v. Fidelity Trust Co., 121 Fed.
771, holding United States may recover from bondsmen money paid
to Indian agent to pay Indians for services and retained by agent;
Peters v. Malin, 111 Fed. 249, 250, holding State court without au-
thority to appoint guardian for Sac and Fox Indians or to authorize
such guardian to place wards in school; Farrell ^. United States,
110 Fed. 946, upholding authority of Congress to pass act January
30, 1897, malting crime to sell liquor to Indian allottee of lands,
where title held in trust by govemment; In re Leah-Puc-lca-Chee, 98
Fed. 433, holding Iowa District Court has no jurisdiction to appoint
guardian for minor Indian on Iowa reservation ceded to United
States by act June 10, 1896; Bem-Way-Bln-Ness v. Eshelby, 87
Minn. 113, 91 N. W. 293, holding tribal Indians living on reserva-
tion may sue in State courts to recover land lying outside reserva-
tion, held by citizens of United States.
Distinguished in Dunbar v. Green, 66 Kan. 566, 72 Pac. 246,
holding laches in delaying twenty-one years after maturity to re-
cover land sold by guardian bars Shawnee Indian's right, land
having greatly Increased in value.
SyL 10 (XI, 175). Congressional power over Indians.
Approved in Lone Wolf v. Hitchcock, 187 U. & 566, 23 Sup. Gt
221, 47 L. 306, holding Medicine Lodge treaty with Kiowa and Com-
manche Indians could not preclude passage of act June 6, 1900,
allotting in severalty reservation lands held in common.
118 U. S. 385-417 Notes on U. S. Reports 860
Syl. 12 (XI, 175). Jurisdiction over Indian's crimes on reseiratlon.
Approved in Good Shot t. United States, 104 Fed. 258, holding
under Rev. Stat, { 5339, Federal courts may punish Indian for
murder of another Indian, 29 Stat 487, not revoking such power;
Board, etc. v. Godfroy, 27 Ind. App. 614, 60 N. B. 179, holding
Indians talking advantage of citizenship under act 1887, f 6, cannot
Avnil themselves of tax exemption accorded tribal Indians under
act July 13, 1787; State v. Ck)lumbia George, 39 Or. 131, 134, 137,
65 Pac. 605, 606, 607, holding under act Congress March 3, 1885,
making Indian murder cases cognizable in Federal courts, allottee
of Umatilla reservation is triable therein.
118 U. S. 385-389, 80 L. 165, FRANCIS v. FLINN.
Syl. 1 (XI, 176). No Injunction when law adequate.
Approved in Edison v. Chemical Co., 128 Fed. 963, holding Fed-
eral court has no jurisdiction of bill to enjoin use of Edison name
by inventor*s son in manufacture of novelties, such amounting ti
libel; Ar buckle v. Blackburn, 113 Fed. 627, dismissing bill to enjoin
State food officer from publishing that Ariosa, a coffee product man-
ufactured by plaintiff, was adulterated; A. B. Farquhar Co. v.
National Harrow Co., 99 Fed. 162, dismissing bill to enjoin owner
of patent from sending circulars to plaintifTs customers charging
infringement, and financial incompetence, plaintiff having adequate
legal remedy; Mariin Fire Arms Co. v. Shields, 171 N. Y. 394, 64
N. E. 166, refusing to enjoin publication of magazine articles criti-
cizing unjustly the Mariin rifle manufactured by plaintiff, though
no special damage provable.
118 U. S. 389-394. Not cited.
118 U. S. 394-417, 30 L. 118, SANTA CLARA CO. v. SOUTHERN
PAC. R. R.
Syl. 1 (XI, 176). Corporations as persons — Equal protection.
Approved in Beveridge v. Lewis, 137 Cal. 630, 67 Pac. 1041, hold-
ing unconstitutional Cal. Const., art 1, { 14, for assessment
of damages for condemnation of land by other than municipal
corporations, irrespective of benefits from improvements; Johnson
V. Goodyear Min. Co., 127 Cal. 8, 9, 78 Am. St Rep. 21, 59 Pac. 305,
holding Stat. 1897, p. 231, requiring all corporations operating
within State to pay employees monthly, giving preferred lien on
default violates Const, art. 1, § 21, against special privileges;
State V. Haun, 61 Kan. 156, 59 Pac. 344, holding unconstitutional
Kan. Laws 1897, chap. 145, mailing it unlawful for corporations
or trusts employing over ten men to pay employees in other than
lawful money; State v. Montgomery, 94 Me. 204, 47 Atl. 168, holding
unconstitutional Me. Laws 1889, chap. 298, § 1, as amended, provid-
ing for issuance of hawlters and peddlers' licenses to citizens of
United States; Russell v. Croy, 164 Mo. 99, 107, 63 S! W. 853, 854,
S61 Notes on U. S. Reports. 118 U. S. 417-454
856, holding nnconstltutlonal proposed amendment to Missouri Con-
stitution treating mortgage, or trust deed, as Interest in property
for taxation except as to quasi-public corporations; Sackett v.
Thomas, 25 Mont. 241, 64 Pac. 506, holding Mont. Const., art 5,
S 26, prohibiting special laws changing names of persons or places
prevents changing name of county; D'Arcy v. Mutual L. I.
Co., 108 Tenn. 573, 69 S. W. 770, holding policy-holders of foreign
insurance company filing power of attorney authorizing service on
secretary of State as required by repealed law entitled to such
service.
•
Syl. 4 (XI, 178). Taxation — Assessment Improperly including
property.
Approved In Southern P. R. R. Co. v. United States, 183 U. S.
627, 46 L. 312, 22 Sup. Ct 158, holding Southern Pacific company
constructing road as authorized by act July 27, 1866, entitled to
equal undivided moiety in lands of overlapping Atlantic and Pacific
grant; Hart v. Smith, 159 Ind. 196, 197, 64 N. E. 666, 667, holding
good will of business not taxable under Bums' Rev. Stat. 1901,
S 8410, declaring all property not exempt taxable; Chicago, etc.,
Ry. Co. V. Phillips, 111 Iowa, 384, 82 N. W. 789, holding void assess-
ment on railroad property to pay for sewer levied under ordinance
under Iowa Laws 25 Gen. Assem., chap. 7, f 11, assessment being
on part personalty; United States Trust Co. v. Territory, 10 N. Mex.
427, 62 Pac. 991, holding assessment on railway per mile separable
so as to sustain assessment though differing from actual number
of miles, by discarding surplus.
118 U. S. 417-425, 30 L. 125, SAN BBRNARDINO CO. v. SOUTH-
BRN PAC. R. R.
(XI, 178). Miscellaneous.
Approved In Russell v. Croy, 164 Mo. 100, 63 S. W. 854, holding
Invalid proposed amendment to Missouri Constitution making mort-
gages and obligations as security, for taxation, interest in the
property except as held by quasi-public corporations.
118 U. S. 425-454, 30 L. 178, NORTON v. SHELBY COUNTY.
Syl. 1 (XI, 178). Binding effect of State statutory construction.
Approved in New York Life Ins. Co. v. Board of Comrs., 99 Fed.
855, holding unconstitutional under Ohio Const, art. 2, { 28, against
retroactive laws, act April 21, 1898, authorizing county commission-
ers to pay bonds issued under unconstitutional statute.
Distinguished in Pickens Tp. v. Post, 99 Fed. 662, holding Federal
court having decided S. O. act 1S85, authorizing municipal bond
Issues to be constitutional, will not follow contrary State decisions
subsequent to issue.
Syl. 3 (XI, 179). No officer without office.
Approved in McClaughry v. Deming, 186 U. S. 64, 46 L. 1056, 22
Sup. Ct. 792, holding under 77th article of war, court-martial com-
118 U. S. 417-425 Notes on U. 8. Reports. 862
posed of officers of regular army cannot try volunteer; In re Norton.
64 Kan. 846, 91 Am. St Rep. 257, 68 Pac. 640, discharging on habeas
corpus petitioner imprisoned under sentence of court unlawful be-
cause matter of establishment not left to vote; Fillmore v. Van
Horn, 120 Mich. 56, 88 N. W. 70, holding in action to obtain books
of predecessor, by secretary of board of barber examiners, con-
stitutionality of law of predecessor's appointment may be ques-
tioned; Olcott V. Smith, 30 Tex. Civ.'351, 70 S. W. »44, holding where
act 1866 attached H. county to M. county, appointment of surveyor
for H. and J. counties under Tex. act 72, gave appointee no
authority.
Distinguished in Tulare Irrigation District v. Shepard, 185 U. 8.
14, 40 L. 780, 22 Sup. Ct 536, holding de facto corporation con-
stituted by bona fide attempt to organize irrigation district under
Gal. irrigation act March 7, 1887, and user of franchises; Balti-
more Building, etc., Assn. v. Alderson, 99 Fed. 494, holding
sureties liable for receiver's embezzlement of proceeds of property
sold where appointment was regular, though bill dismissed for no
Jurisdiction; Ranljen v. McCallum, 25 Tex. Civ. 87, 60 8. W. 977,
holding municipal corporation embracing same territory as predeces-
sor abolished for irregularities in organization liable for latter's
drainage bonds, latter being de facto corporation.
Syl. 5 (XI, 180). Unconstitutional statutes are inoperative.
Approved in Western U. Tel. Co. v. Myatt, 98 Fed. 355, holding
invalid Kan. act creating court of visitation with power to regulate
and enforce rates, hence court thus created invalid; Fillmore v.
Van Horn, 129 Mich. 50. 8S N. W. 70, holding in action to obtain
boolcs of predecessor as secretary of board of barber examiners, con-
stitutionality of law of predecessor's appointment may be ques-
tioned; Debnam v. Chltty, 131 N. C. 678, 43 S. E. 9, holding town-
ship not estopped to deny bonds issued under law invalid for failure
to read three times required by N. G. Const., art 2. § 14; In re
Brenner, 170 N. Y. 194, 03 N. E. 136, holding certificate of appoint-
ment pursuant to statute does not prevent inquiry into con-
stitutionality thereof to defeat suit for books of office; Lewis,
Auditor, etc. v. Symmes, 61 Ohio St. 487, 76 Am. St. Rep. 431, 5C
N. E. 19G, holding landowner within assessment district defined
by unconstitutional law for improving highway may enjoin col-
lection of assessment; Collier v. Montgomery County, 103 Tenn.
716, 54 S. W. 991, holding sheriff entering into valid contract with
defendant county to be liable for lieep of prisoners, though based
on unconstitutional law, cannot recover excess charges paid; dis-
senting opinion in State v. Smiley, 65 Kan. 270, 69 Pac. 209, majority
upholding Kan. Laws 1897, chap. 265 (anti-trust law), prohibiting
anti-competitive trade agreements as to products sold In general
marlcet.
863 Notes on U. S. Reports. 118 U. S. 456-467
SyL 7 (XI, 182). De facto officers and validity of their acts.
Approved In Brlnlserboff v. Jersey Gity, 64 N. J. L. 229, 46 Atl.
171, holding counsel appointed by four members of finance commit*
tee, one of whom was later ousted therefrom, was de facto counsel
entitled to salary; Rasmussen v. Commissioners Carbon Co., 8 Wyo.
292, 56 Pac. 1102. holding de jure officer excluded from county
office may on winning contest recover salary for term, though
paid to de facto officer with I^nowledge of contest; dissenting opinion
in Bowlby v. Dover, 68 N. J. L. 419, 5S Atl. 708, majority holding
void proceedings for removal of chief of police without a hearing
as given by N. J. Laws 1895.
118 U. S. 455-467, 30 L. 237, MORGAN. ETC., CO. v. LOUISIANA.
Syl. 2 (XI, 183). Examination of operation of quarantine law.
Approved in Compagnie Frangaise v. State Board of Health, La.,
186 U. S. 392, 40 L. 1216, 22 Sup. Ct 816, upholding La. Acts 1898,
No. 192, under which French steamship prohibited from landing
passengers at New Orleans because of infectious diseases at latter
place; Consolidated Coal Co. v. Illinois, 185 U. S. 207, 46 L. 876, 22
Sup. Ct. 617, upholding 111. act 1879, { 11, amended 1897, authorizing
insi)ection of mines by State mine inspectors having discretion as to
number of visits, and providing fees; City of New Orleans v. Sam
Kee, 107 La. 764, 31 So. 1014, upholding New Orleans ordinance
imposing inspection fee of twenty-five cents per visit to laundries
and public washhouses; Norfolk v. Flynn, 101 Va. 478. 44 S. E. 719,
upholding Norfolls City Code, § 344, chap. 43, requiring milk vendors
within city to pay fifty cents per cow, and $2 per milk stand, to
cover inspector's salary.
SyL 4 (XI, 183). Police powers cannot Invade Federal grant.
Approved In dissenting opinion In Austin v. Tennessee, 179 U. S.
376, 45 L. 239, 21 Sup. Ct. 145, majority upholding Tenn. Acts 1897,
chap. 30, making misdemeanor punishable by fine to sell or import
for sale or distribution cigarettes or cigarette paper. See 93 Am.
St Rep. 84, note.
Distinguished In St. Louis, etc., Ry. v. Smith, 20 Tex. Civ. 459,
49 S. W. 631, upholding Rev. Stat. 1895, tit. 102, giving live stock
sanitary commission authority to prohibit Importation of cattle from
infected States.
Syl. 6 (XI, 184). State quarantine valid until Congress acts.
Approved in Reid v. Colorado, 187 U. S. 147, 23 Sup. Ct 96, 47
L. 114, upholding Colo. Sess. Laws 1885, p. 335, prohibiting importa-
tion of cattle from south of 36 degrees north latitude durini; certain
months unless accompanied by certificate; Campagne Frangaise v.
State Board of Health, La., 186 U. S. 387, 389, 46 L. 1214, 1215, 22
Sup. Ct 815, upholding La. Acts 1808, No. 192, under which French
steamer was prevented from landing passengers in New Orleans,
an infected port; Smith v. St Louis & Southwestern R. R. Co., 181
lis U. S. 4GS-520 Notes on U. S. Reportk 884
U. S. 256, 45 L. 850, 21 Sup. Ct 606, upholding quarantine regnla-
tious established by governor of Texas on advice of live stock sani-
tary commission prohibiting importation of Louisiana cattle for fire
months; Louisiana v. Texas, 176 U. S. 21, 44 L. 355, 20 Sup. Gt
258, holding controversy between States not raised by maladminis-
tration of laws of Texas whereby health officer places embargo on
interstate commerce with Louisiana; In re Higgins, 97 Fed. 776,
holding bankruptcy act 1898, f 67c, providing that bankruptcy dis-
solves lien created by suit begim within four months before peti-
tion, means branch of suit securing lien.
118 U. S. 408-506, 30 L. 134, THE CITY OF NORWICH.
Syl. 4 (XI, 185). Shipowner's limitation of liability.
Approved in Hoffleld v. United States, 186 U. S. 276, 277, 46 L.
1163, 22 Sup. Ct. 929, holding purchaser of original rights of entry-
man at execution sale not assign within act June 16, 1880, allowing
repayment where entry erroneously allowed; Pacific Coast Co. v.
Reynolds, 114 Fed. 880, 881, 882, holding shipowner to claim statu-
tory limitation of liability where ship strands before end of voyage
must pay vessel's value on rocks which includes freight earned.
Syl. 6 (XI, 186). Freight pending means freight earned.
Approved in In re La Bourgogne, 117 Fed. 2?!>, 266, holding
** freight pendhig " in Rev. Stat, {{ 4283, 4284, means freight earned,
and vessel wrecked before voyage completed, though fare paid in
advance, earns no freight
Syl. 7 (XI, 186). Shipping — Insurance not considered in limiting
liability.
Approved in Farmers* Loan & T. Co. v. Penn Plate Glass Co.,
186 U. S. 453, 46 L. 1245, 22 Sup. Ct 849, holding purchaser of mort-
gaged property not bound to Insure for benefit of mortgagee, though
mortgagor bound and purchaser impliedly agreed to indemnify;
In re West Norfolk L. Co.. 112 Fed. 763, 764, holding insurance
policies assigned to bank as security for loans belonged to bank
and not to bankrupt debtor as part of latter's property; The Long-
fellow, 104 Fed. 363, holding owners of river steamer, holding her a
day for fog to clear, providing competent crew, pilot, and tug, not
liable for collision within Rev. Stat, § 3283.
Syl. 9 (XI, 186). Limited liability act applies in rem or in per-
sonam.
Approved in The St. Johns, 101 Fed. 477, holding insurer's claim
for subrogation, having paid policy on lost vessel, subordinate to
claims of those sufifering from collision with lost vesseL
118 U. S. 507-520, 30 L. 153, THE SCOTLAND.
Syl. 4 (XI, 187). Limitation of liability — Interest discretionary.
Approved In The Albert Dumois, 177 U. S. 255, 44 L. 760, 20 Sup.
Ct 601, refusing interest on value of '* argo " sunk by collision.
865 Notes on U. S. Reports. 118 U. S. 520-557
where vessel was faultily navigated; In re Michigan Cent. R. R.
GOm 124 Fed. 732, holding Circuit Court decree against litigant
allowing costs to cleric under statutory provision is not discre-
tionary and is appealable.
118 U. S. 520-541. Not cited,
118 U. S. 545-557, 30 L. 257, VICKSBURG, ETC., R. R. v. PUT-
NAM.
SyL 1 (XI, 188). Evidence of condition of rails causing accident
Approved in Railroad v. Wyatt, 104 Tenn. 436, 78 Am. St. Rep.
928, 58 S. W. 309, holding admissible under complaint charging
unsafe condition of platform evidence of unrepair of platform be-
yond plank from which injury occurred.
Syl. 3 (XI, 188). Federal judge may comment on facts.
Approved in Sebeclc v. Plattdeutsche Volltsfest Verein, 124 Fed.
18, holding not erroneous statement by court in charge that he did
not believe company employed unl^nown Italians to discharge fire-
works, law being correctly stated; Kerr v. Modem Woodmen of
Am., 117 Fed. 596, holding proper for judge in suit on benefit policy
to discuss evidence as to whether pistol wound causing death of
insured was self-infiicted; Lesser Cotton Co. v. St. Louis, etc., Ry.,
114 Fed. 142, sustaining charge in suit for injury from fire, properly
stating law, stating that if fire began in plaintifTs bam it could not
have come from engine; Aerheart v. St. Louis, etc., Ry., 99 Fed.
910, holding not reversible error for trial court to further instruct
jury in absence of counsel, facts being left to jury; Martin v.
Hughes, 98 Fed. 561, holding proper in ejectment court's intima-
tion of opinion as to boundary in dispute where all facts were left
to jury under proper instructions.
Syl. 4 (XI, 189). Damages for personal injuries.
Approved in Davenport v. Southem Ry. Co., 124 Fed. 985, holding
separable suit against railroad and servants alleging wanton and
willful acts of latter not showing company chargeable for willful-
ness; Southern Pac. Co. v. Hall, 100 Fed. 769, upholding in suit for
personal injuries charge that plaintiff was entitled to 'Moss of
wages,*' meaning loss before and after injury if incapacity resulted;
Trott V. C, R. I. & P. R. R. Co.. 115 Iowa. 87, 86 N. W. 35, holding
erroneous charge that damages should be estimated on basis of
longevity according to life tables and earnings as laboring man.
Syl. 7 (XI, 190). Damages not based on expectancy tables.
Approved in Gulf, etc., Ry. v. Mangham, 95 Tex. 419, 67 S. W.
767, holding admissible evidence of probable duration of life of
plaintiff injured in railway accident In estimating damages there-
for.
Vol. 11 — 55
lis U. S. 557-596 Notes on U. S. Reports. 866
118 U. 8. 557-506, 30 L. 244, WABASH, ETC., RY. CO. T. ILLINOIS.
Syl. 1 (XI, 190). State regulation of internal commerce.
Approved In Cotting v. Godard, 183 U. S. 85, 46 L. 90, 22 Snp. Ct
33, holding unconstitutional Kan. act March 3, 1897, defining stock-
yard corporation and regulating charges in manner which in effect
discriminated against plaintiff; Ohio Valley, etc., Recr. v. Lander,
etc., 104 Ky. 446, 47 S. W. 348, upholding Ky. separate coach law of
1892, requiring railroads to provide separate coaches for negroes
and whites; Osborn v. Wabash R. R. Co., 126 Mich. 115, 85 N. W.
4G6, upholding Michigan railroad commissioners' action under Pub.
Acts 1891, No. 90, regulating passenger rates on basis of earnings*
Including interstate fares on road within State; Osbornr v. Wabash
R. R. Co., 123 Mich. G72, 82 N. W. 527. upholding Mich. Laws
1891, p. 103, fixing passenger rates, based on earnings of road*
applying only within State.
Syl. 3 (XI, 190). State discriminatory Interstate rates.
Approved in dissenting opinion in Austin v. Tennessee, 179 U. S.
374, 45 L. 238, 21 Sup. Ct. 144, majority upholding Tenn. act 1897,
chap. 30, prohibiting sale or importation for sale or distribution of
cigarettes or cigarette paper, and finding violation thereof.
Syl. 4 (XI, 191). State regulation of rates of public business.
Approved In State v. Associated Press, 159 Mo. 449, 60 S. W. 102,
refusing mandamus to compel associated press to furnish Star
Publishing Company budget of news collected daily by former.
Syl. 6 (XI, 191). States cannot burden interstate commerce.
Approved in Lindsay & Plielps Co. v. Mullen, 176 U. S. 147, 44 L.
409, 20 Sup. Ct 333, upholding lien given surveyor-general undCT
Minn. Stat 1894, § 2402, on logs In boom for scaling same, though
part came from Wisconsin; Kansas City, etc., Ry. v. Board of
R. R. Comrs., 106 Fed. 356, holding Arliansas railroad commission
cannot regulate charges for carrying freight between Arkansas
points, where line lies in large part in Indian Territory.
Syl. 8 (XI, 192). State regulation of portion of interstate haul.
Approved in Lottery Case, 188 U. S. 352, 23 Sup. Ot. 325, 47 L. 499,
holding carriage of lottery tickets from one State to another by inter-
state express company constitutes interstate commerce which Con-
gress may prohibit; Hanley v. Kansas City South. Ry. Co., 187 U. S.
020, 23 Sup.|Ct. 215, 47 L. 335, holding Arliansas railroad commission
cannot fix freight rates between Arkansas points, where line lies
largely in Indian Territory and Texas; Erie R. R. v. Purdy, 185
U. S. 150, 46 L. 849, 22 Sup. Ct. 606, holding claim for penalties
under N. Y. Laws 1805, chap. 1027 (mileage-book acts), raise no
Federal question, since State court confined same to State territory;
Louisville & N. R. R. Co. v. Enbank, 1&4 U. S. 36, 46 L. 420, 22
Sup. Ct 280, 281, holding unconstitutional Ky. Const, { 218,
867 Notes on U. S. Reports. 118 U. S. 606-608
prohibiting common carriers from charging more for shorter than
for longer haul, not confined to State; Cleveland, etc., Ry. Co. v.
nUnois, 177 U. S. 518, 44 L. 870, 20 Sup. Ct 723, holding uncon-
stitutional 111. act March 21, 1874, requiring all regular passenger
trains to stop at county seats; Musliogee Nat. Tel. Co. ▼. Hall, 118
Fed. 386, holding Indian Territory cannot grant exclusive telephone
privileges, such being within congressional control, exercised in
act March 3, 1901, which annulled territorial acts; Oakland Sugar
Mill Co. V. Fred W. Wolf Co., 118 Fed. 243, upholding Comp. Laws
Mich. 1897, § 8574, requiring every foreign corporation operating
within State to pay franchise fee, confined by State court to
domestic commerce corporations; Kansas City Ry. v. Board of R. R.
Comrs., 106 Fed. 358, holding Arlicansas railroad commission can-
not fix rates for freight between Arlsansas points, where line lies
largely in Indian Territory and Texas; Williams v. Fears, 110 Ga.
590, 35 S. E. 701, upholding 6a. tax act 1898, imposing tax on
•* emigrant agent;" Cumberland, etc., R. R. Co. v. State, 92 Md.
687, 48 Atl. 509, upholding Maryland tax based upon proportion of
gross receipts earned therein by railway chartered in Maryland, but
operating partially beyond State; People v. Knight, 171 N. Y. 357,
64 N. E. 153, holding separate cab service maintained by interstate
railroad at its terminal in New Yorlt taxable under N. Y. Laws
1896, chap. 908; Purdy v. Erie R. R. Co., 162 N. Y. 51, 56 N. E.
510, upholding N. Y. Laws 1895, chap. 1027, amended 1896. chap.
835, requiring railroads operating in that State to issue mileage-
books, being confined only to State travel; Lowe v. Seaboard Air
L. Ry., 63 S. C. 250, 41 S. E. 298, 90 Am. St. Rep. 680, holding un.
constitutional as applied to freight shipped beyond State S. C.
22 Stat at Large, p. 12, imposing $500 fine for shipping by different
route; Southern Express Co. v. Goldberg, 101 Ya. 622, 623, 625, 44
8. E. 894, 895, holding unconstitutional Va. Code 1887, § 121, re-
quiring express companies to charge uniform rate per mile, not
confining applicfTtion to State. See notes, 90 Am. St. Rep. 257, 258.
Distinguished in Cotting v. Godard, 183 U. S. 86, 46 L. 100, 22
Sup. Ct. 34, holding unconstitutional Kan. act March 3, 1897,
defining stockyards corporations and regulating charges in manner
effecting discrimination against plaintiff.
118 U. S. 596-608, 30 L. 269, LITTLE v. GILES.
Syl. 1 (XI, 194). Removal — Denial of joint liability by non-
resident
Approved in Chesapeake & O. R. R. Co. v. Dixon, 179 U. S. 138,
45 L. 125, 21 Sup. Ct 70, holding indivisible suit against railroad
and engineer and fireman, charging concurrent negligence, causing
death and common citizenship of plaintiff and servants, defeats re-
moval; Fogarty v. Southern Pac. Co., 123 Fed. 974, holding action
against railroad and servants alleging negligence in maintaining
118 U. S. 608-Ca4 Notes on U. S. Reports. 8GS
tracks and operating cars states joint tort, not separable; Smedley
▼. Smedley, 110 Fed. 258, holding Indivisible suit against S., plain-
tiff's parol grantor, E., S.'s subsequent grantee, and H., E.'s grantee,
to cancel deeds and enforce S.*s gift of land; Winston ▼. Illinois
Gent R. R., Ill Ky. 959, 65 S. W. 15, holding plaintiff cannot remove
suit against railroad and engineer and fireman to enforce joint
liability, where servants have common citizenship with plaintiff.
Syl. 3 (XI, 195). Remand of collusively removed cause.
Approved in Pacific, etc., Ins. Co. v. Tomplsins, 101 Fed. 542,
holding plaintiff owning house in Virginia, living and voting there«
not citizen of West Virginia, for Federal Jurisdiction, though in-
tending to return there, having rented house.
118 U. S. 608-610, 30 L. 259, NEW YORK EL. R. R. CO. ▼. FIFTH
NAT. BANK.
Syl. 1 (XI, 195). Appellate jurisdiction determined by final judg-
ment
Approved in Hale v. Grogan, 106 Ky. 315, 50 S. W. 258, holding
interest accruing before institution of action not included in deter-
mining amount in controversy for appeal under Laws Ky. 1898,
p. 71.
118 U. S. 610-626, 30 L. 274, EX PARTE PHENIX INS. CO.
Syl. 3 (XI, 196). Admiralty — Shore fire communicated from ship.
Approved in Knapp, Stout & Ck>. v. McCaflTrey, 177 U. S. 643, 44
L. 924, 20 Sup. Gt. 827, holding bill to enforce lien for towage of
lumber raft, brought against individual defendants, suit In personam
cognizable in State courts under Rev. Stat, § 563; The Underwriter,
119 Fed. 737, holding no lien against owner for coal furnished where
charter party providing that charterer shall pay for all coal used;
dissenting opinion in The Robert W. Parsons, 191 U. S. 41, majority
upholding exclusive admiralty of suit to enforce lien for repair of
canal-boat operating entirely within New Yorlc State.
118 U. S. 626-630. Not cited.
118 U. S. 630-634, 30 L. 284, PENNSYLVANIA R. R. CO. ▼. ST.
LOUIS, ETC., R. R.
• Syl. 1 (XI, 196). Railroad lease for ninety-nine years.
Approved in Cumberland Tel., etc.. Go. v. Evansvllle, 127 Fed.
192, holding 2 Burns' Rev. Stat Ind. 1901, § 5517, chartering: cor-
porations enabling telephone companies to hold and convey land,
does not authorize transfer of franchise; Central Trust Go. v. In-
diana, etc., R. R., 98 Fed. 670, holding 2 Burns* Rev. Stat Ind.
1894, § 5216, authorizing telephone company, whose line crosses
State, to guarantee bonds, inapplicable to line leasing p^roperty,
leasing being unlawfuL
809 Notes on U. S. Reports. 118 U. S. 634-682
118 U. S. 634-655, 30 L. 200, DELANO v. BUTLER.
Sjh 1 (XI, 197). Reduction of increase in national banls stock.
Approved in Commercial Nat. Banlc v. Weinhard, 192 U. S. 251,
24 Sup. Ct 257, holding national banli directors not empowered by
Rev. Stat, {§ 5130, 5145, to levy assessment ordered by comptroller
to replace deficiency without stockholder's action; Bailey v. Tllling-
hast, 90 Fed. 810, upholding stockholders* resolution reducing $300,-
000 increase of national bank capital to $150,000 amount subscribed
and declaring subscribers' liability on subscriptions; Gettysburg
Bank v. Brown, 95 Md. 387, 52 Atl. 976, 93 Am. St Rep. 347, holding
defendant subscribing for 300 $1 shares In corporation changing from
capital of $1,000 of 200 shares to $250,000 of par value of $1 not
liable to creditors; Weinhard v. National Bank, 41 Or. 303, 68 Pac.
808, holding Invalid directors* assessment upon stockholders of
national bank without notice of comptroller under Rev. Stat, { 5151,
not authorization of stockholders.
(XI, 197). Miscellaneous.
Approved in Earle v. Carson, 188 U. S. 52, 23 Sup. Ct 258, 47 L.
378, upholding bona fide sale of stock of national bank though with
knowledge of insolvency thereof.
118 U. S. 655-663, 30 L. 266, WHITNEY v. BUTLER.
Syl. 2 (XI, 198). Liability of vendor of stock ceases when.
Approved in Earle v. CJarson, 188 U. S. 62, 23 Sup. Ct 258. 47 L.
378, upholding bona fide sale of bank stock where vendor did all
possible to secure transfer on books though bank was In fact in-
solvent at time; Matteson v. Dent, 176 U. S. 531, 44 L. 570. 20 Sup.
Ct 423, holding widow and heirs of national bank stockholder who
let stock remain in deceased's name are liable for assessments
thereon under Rev. Stat, {{ 5151, 5152; Earle v. Carson, 107 Fed.
640, holding defendant not liable as shareholder having sold shares
in good faith without knowledge insolvency and done all possible
to procure transfer; Earle v. Coyle, 97 Fed. 411, 412, holding defend-
ant not liable as stockholder for assessment four years after sale ai
auction to cashier of bank to whom bank paid dividends mean-
while; Foster v. Row, 120 Mich. 18, 79 N. W. 702. holding defend-
ant not liable as stockholder where name remained on books but
stock transferred to cashier who promised to pay overdraft on
strength of which defendant overdrew, cashier never paying.
Distinguished in Hawkins v. Investment Co., 38 Or. 555, 04 Pac.
824, holding shareholder assigning and delivering unpaid shares
to president as vendee liable thereon until shares changed on books
after sale by president.
118 U. S. 663-682. 30 L. 285. HARKNESS v. RUSSELL.
Syl. 4 (XI, 199). Validity of conditional sale.
Approved In In re Rodgers, 125 Fed. 177, holding voidable by
creditors transaction whereby bankrupt warehouseman made gratU'
118 U. 8. 682-G85 Notes on U. 8. BeportiL 870
itouB lease to anotber, receiving warehouse receipts which It hypo-
thecated for loans; In re George M. Hill Co., 123 Fed. 868, holding
under Illinois law where bankrupt taking machine title to remain
in vendor until acceptance and full payment refused to pay, bank-
rupt or trustee got no title; In re Gait, 120 Fed. 67, holding contract
to furnish wagons for sale, title to remain In manufacturer, wagons
on hand in twelve months to be reclaimed or paid for, constituted
bailment; Beggs v. Bartels, 73 Conn. 135, 46 Atl. 875, holding con-
ditional sale made in New York of machinery for use in Connecticut^
where for lack of acknowledgment it amounted to absolute sale^
governed by Connecticut law; McClung v. Colwell, 107 Tenn. 599,
89 Am. St Rep. 965, 64 S. W. 892, upholding right of pledgee of
stock to new stock in consolidated corporation Issued to pledgor as
pledgee's agent and attached as property of pledgor; Tumbow v.
Beckstead, 25 Utah, 477, 71 Pac. 1064, holding plaintiff transferring
sheep to defendant's transferrer on latter's agreement to pny fifty
cents per head for two years and keep old stock good, passed no title;
Standard Steam Laundry v. Dole, 22 Utah, 320, 61 Pac. 1106, sustain-
ing validity of conditional sale of laundry machinery, title not to
pass until notes securing price were paid; Mississippi River Logging
Co. V. Miller, 109 Wis. 85, 86, 85 N. W. 196. 197. holding vendor of
standing timber to logging company having similar timber, title
to remain In vendor until paid, estopped as against purchaser of
logs to claim title. See 91 Am. St Rep. 214, note.
Syl. 3 (XI, 199). Illinois — Purchaser from conditional yendee
protected.
Approved In Swedish, etc., Nat. Bank v. First Nat. Bank, 89 Minn.
113, 94 N. W. 222, holding valid warehouse receipts of Minnesota
elevator company covering grain in State elevators, and Invalid re-
ceipts covering grain in company's elevators in Dakota, Iowa, and
Nebraska; Page v. Urick, 31 Wash. 603, 72 Pac. 455, holding con-
tract for sale of dwelling-house stipulating that title shall remain
in seller until price paid, is contract for conditional sale; dissenting
opinion in Fleet v. Hertz, 201 111. 615, 94 Am. St Rep. 192, 66 N. E.
8G5, majority holding consig^nment of goods to be handled for con-
signor's account holding proceeds in trust until settlement, con-
stituted no sale.
118 U. 8. 682-695. Not cited.
CXIX UNITED STATES.
119 U. S. 1-44, 30 L. 306, CHOCTAW NATION V. UNITED STATES.
Syl. 3 (XI, 202). Indian treaties construed liberally.
Approved in Lone Wolf v. Hitchcock, 187 U. S. 667. 23 Sup. Ct.
222, 47 L. 307, upholding 31 Stat. 677, chap. 813, providing for allot-
ments to Indians in severalty out of lands held in common within
reservation and purporting to give adequate consideration for sur-
plus unallotted or reserved lands; United States v. Riekert, 188 U.
S. 439, 443, 23 Sup. Ct. 481, 482, 47 L. 537, 538, holding permanent
Improvements and cattle of Indians to whom lands have been
allotted in severalty under 24 Stat 389, chap. 119, are not subject to
State taxation; Minnesota v. Hitchcock, 185 U. S. 396. 46 L. 966,
22 Sup. Ct 659, holding Minnesota has no Interest in any lands in-
cluded in Chippewa cession of all title and interest in unsurveyed
and unallotted lands whose fee was in United States subject to
Indian right of occupancy under 25 Stat 642, chap. 24; United
States V. Choctaw Nation, 179 U. S. 532, 538, 45 L. 806, 308, 21 Sup.
Ct 164, holding release by Wichita Indians of all claims to lands
other than those allotted to them cannot be made condition of de-
cree for compensation on account of surplus lands under treaty of
1891, under 28 Stat. 876, 895-897, chap. 188; Board, etc. v. Godfroy,
27 Ind. App. 614, 60 N. E. 179, holding answer to bill to enjoin taxa-
tion of Indian's lands that such Indian was bom in United States
and that ever since attaining majority has availed himself of rights
of citizen and has taken up residence apart from tribe sets up good
defense.
Distinguished in Dunbar v. Green, 66 Kan. 566, 72 Pac. 246, hold-
ing where land of Shawnee Indian is sold while he Is minor by
guardian and Indian delays twenty-one years after attaining major-
ity, he cannot attack deed on ground of invalidity of proceedings
under which it was based.
119 U. S. 45, 46. Not cited.
119 U. S. 47-«2, 30 L. 303, WHITE v. DUNBAR.
Syl. 1 (XI, 203). Patents — Reissue expanding claims void.
Approved in Crown Cork, etc., Co. v. Aluminum, etc., Co., 108 Fed.
858, upholding Painter reissue No. 11,685, for bottle stopper, as not
having been lost by delay of seven months after granting original
patent
[871]
110 L. S. 53-73 Notes on U. S. Reporta 872
Syl. 2 (XI, 203). Patents — Confinement of claim as disclaimer.
Approved in Schreiber, etc., Mfg. Co. v. Adams Co., 117 Fed. 835,
boldiug Farwell patent No. 493,548, for adjustible stove damper,
valid but limited by prior art and language of claims.
Syl. 3 (XI, 203). Patents — Resort to context of specification.
Approved in Canada v. Micbigan Malleable Iron C!k)., 124 Fed. 490,
bolding Canada patent No. 400,42(>, for draw-bar attachment for rail-
road cars, valid and infringed by Thornbrough patent No. 588,722;
Westinghouse Air Brake Co. v. New York Air Brake Co., 119 Fed.
88^, limiting Westinghouse & Moore patent No. 401,916, for im-
proved engineer's valve for controlling air brakes, and holding not
infringed by Vaughan & Makee patent No. 504,290; American Bell
Tel. Co. V. National Tel. M. Co., 109 Fed. 997, holding Berliner patent
No. 403,569, for telephone transmitter, void for anticipation; Brace-
well V. Passaic Print Works, 107 Fed. 479, holding Whitehead patent
Xo. 499,689, for improvement in aniline-black resists, void; Santa
Clara, etc.. Lumber Co. v. Prescott, 102 Fed. 506, holding Prescott
patent No. 3(^.881, for band saw-mill, limited by prior art and not
infringed by Wilkin patent
119 U. S. 53-55, 30 L. 805, DAINESB v. KENDALL.
Syl. 2 (XI, 204). Appeal — Requisites of final decree.
Approved In Carmichael v. Tezarkana, 116 Fed. 847, holding
decree which retains or dismisses defendants who arc Jointly
charged with other defendants not final appealable decree; East
Coast Cedar Co. v. People's Bank, 111 Fed. 449, holding decree in
partition suit in which only question was whether land should be
partitioned in specie or sold and proceeds divided, which determines
8uch issue and orders sale leaving distribution of proceeds as only
tiling to be done, is final; Parmele v. Schroeder, 61 Nebr. 561, 85 N.
W. 565, holding foreclosure decree finding party liable for deficiency
and adjudging that if there Is deficiency on sale, sheriff shall report
amount of such deficiency, and on confirmation of report mortgagee
entitled to Judgment for amount of deficiency. Is not final; Parmele
v. Schroeder. 59 Nebr. 554, 81 N. W. 507, holding In action of fore-
closure decree in personam does not become final until after sale of
property and equity of Judgment for deficiency; Popp t. The Daisy
Gold Mining Co., 22 Utah, 462, 63 Pac. 186, holding no appeal lies
from order appointing receiver pendente lite.
119 U. S. 55-73, 30 L. 330, BUETZ v. NORTHERN PAC. RY.
Syl. 1 (XI, 205). Indian's right to occupancy.
Approved in State v. Dickinson, 129 Mich. 227, 88 N. W. 623, hold-
ing where defendants and grantors had been in possession for 100
years and that records relating to lands lost, and evidence showed
record of Indian deed in British records, in 1780, and that while
government ousted other settlers whose titles were based on mere
873 Notes on U. S. Reports. 119 U. S. 55-73
Indian deeds, defendant's grantors not disturbed, presumption of
gOTernroent gnmt arises.
Distinguished in Minnesota v. Hitchcock, 185 U. S. 399, 46 L. 9G7,
22 Sup. Ct. 6G0, holding Minnesota has no Interest in any lands In-
cluded in Chippewa cession of all their title and Interest In unsur-
Teyed and unallotted lands whose fee was in United States subject
to Indian right of occupancy by agreement made in conformity with
25 Stat. 642, chap. 24.
Syl. 2 (XI, 205). Political department determines extinguishment
of Indian's occupancy.
Approved in United States v. Mullan Fuel Co., 118 Fed. 664, hold-
ing government cannot maintain action to recover value of timber
cut and removed from unsurveyed land within limits of unsurveyed
land, which when surveyed would be within limits of odd section
to which government had parted with its title.
Syl. 6 (XI, 205). RaUroad's title on filing map.
Distinguished In Southern P. R. R. Co. v. Bell, 183 U. S. 681, 46 L.
387, 22 Sup. Ct. 234, holding under 14 Stat 299, granting lands to
Southern Pacific, secretary of interior could not withdraw lands
within indemnity limits in advance of selection by railroad based
on ascertained losses in place limits.
Syl. 7 (XI, 206). No pre-emption while Indian title subsists.
Approved In King v. McAndrews, 111 Fed. 869, holding Dak.
act of March 7, 1885, including portion of Sioux reservation in city
of Chamberlain, did not withdraw land from homestead or pre-
emption entry, because it was not part of public lands and was
not subject to public land laws.
Syl. 9 (XI, 206). Railroad grants — Odd-numbered sections with-
drawn.
Distinguished in United States v. Oregon, etc., R. R. Co., 176 U.
8. 44, 45, 44 L. 365, 20 Sup. Ct. 267, holding filing of map of general
route of Northern Pacific did not, prior to filing of map of definite
location, constitute such disposal of lands within exterior lines of
that route as to preclude subsequent grant of lands to another com-
pany.
Syl. 10 (XI, 206). Railroad grants — Preliminary designation.
Approved In United States v. Lrosekamp, 127 Fed. 961, holding
government could not recover for timber cut from public domain
which when surveyed would consist of odd-numbered sections
within Northern Pacific grant and would then be conveyed to rail-
road; Northern Pac. Ry. Co. v. Nelson, 22 Wash. 527, 61 Pac. 705,
holding under 13 Stat 365, § 6, granting lands to Northern Pacific,
order of commissioner of general land ofiSce declaring that company
had duly filed map of general route and withdrawing odd sections
110 U. S. 74-95 Notes on U. S. Reports. 874
constituted withdrawal so as to avoid homestead entry before
definite location; dissenting opinion in Nelson v. Northern Pac. By.
Co.. 188 U. S. 140, 148, 23 Sup. Ct. 314, 317, 47 L. 419, 422, majority
holding one who In good faith occupies unsurveyed land within
Northern Pacific grant after order of withdrawal based on map of
general route but before definite location is entitled to perfect title
under homestead laws as soon as land is surveyed, reversing 22
Wash. 621.
Distinguished In Nelson v. Northern Pac. Ry. Co., 188 U. S. 120,
23 Sup. Ct 306, 47 L. 411, holding one who occupies unsurveyed
land within Northern Pacific grant after order of withdrawal based
on map of general route but before definite location Is entitled to
perfect title under homestead laws as soon as land is surveyed,
reversing 22 Wash. 521.
Syl. 11 (XI, 207). When general railroad route deemed fixed.
Approved in United States v. Oregon, etc., R. R. Co., 176 U.
S. 43, 44 L. 3G4, 20 Sup. Ct. 266, holding under 13 Stat 365, granting
lands to Noi*thera Pacific, filing of map of general route did not,
prior to filing of map of definite location, constitute such disposal
of lands within exterior lines as to preclude subsequent grant to
another company; Southern Pac. R. R. v. United States, 109 Fed.
022, holding line of Texas Pacific never definitely fixed in California
between Yuma and San Diego, so as to give company right to ad-
jacent lands under 16 Stat 573, which would prevent such lands from
passing to Southern Pacific under grant to that company made by
same act; Northern Pac. Ry. Co. v. Nelson, 22 Wash. 530, 61 Pac.
705. 706, holding under 13 Stat 305, § 6, granting lands to Northern
^ Pacific, order of commissioner of general land office declaring that
company had duly filed map of general route and withdrawing odd
sections constituted withdrawal so as to avoid homestead entry be-
fore definite location; reversed in 188 U. S. 109.
Syl. 12 (XI, 207). Withdrawal of land by designation of route.
Approved in Northern Pac. Ry. Co. v. Nelson, 22 Wash. 534, 635,
61 Pac. 707, 708, holding under 13 Stat 365, § 16, granting lands to
Northern Pacific, order of commissioner of general land ofiice declar-
ing that company had duly filed map of general route and with-
drawing odd sections constituted withdrawal so as to avoid home-
stead entry before definite location; reversed in 188 U. S. 109.
119 U. S. 74-95, 30 L. 323, OREGON v. JENNINGS.
Syl. 5 (XI, 208). Recitals in bonds as estoppel.
Approved in Kearney v. Woodruff, 115 Fed. 95, holding irrigation
bonds reciting that they were Issued after submission to popular vote
of proposition to issue them for purpose of aiding construction of
canal for irrigation and water purposes, it is no defense that proposi-
tion submitted was not same as that recited in bonds; Independent
School Dist y. Rew, 111 Fed. 8, holding municipal corporation
875 Notes on U. S. Reports. 119 U. S. 9&-109
estopped from defeating action by bona fide j;)urcha8er on negotiable
bonds which recite that they were issued for purpose of funding
Judgments against corporation on ground that judgments were in-
valid or fictitious; Hughes CJo. v. Livingston, 104 Fed. 313, holding
recitals by county commissioners that bonds have been issued in
pursuance of statute estop county as against bona fide purchaser
from asserting that no lawful proposition to issue them was sub-
mitted to electors or that such proposition was not sustained by
vote; Miller v. Perris Irr. Co., 99 Fed. 148, holding recital in irriga-
tion bonds issued under Gal. act March 7, 1887, that bonds were
issued in conformity with statutes estops district from denying
compliance, with preliminary proceedings required by statute; Wes-
son V. Town of Mt. Vernon, 98 Fed. 809, holding recitals in town-
ship bonds that they are issued to retire unpaid legal obligations
estop township as against bona fide purchaser from showing that
obligations funded were illegal; Board of Gomrs. v. Sutliff, 97 Fed.
276, holding purchaser of bonds containing recital that they were
issued in conformity with statute protected where statute authorized
county to issue bonds within constitutional limit of Indebtedness
and required clerk to keep book showing amount of debt, but clerk
kept no such record; Ghilton v. Town of Gratton, 82 Fed. 882, hold-
ing purchasers of railroad and bonds not required to ascertain what
conditions as to time of completing road imposed by proposition
voted on, where conditions not shown on face of bond, and bonds
recite compliance with law; dissenting opinion in City of Santa
Cruz V. Waite. 98 Fed. 397, majority holding under Gal. Stat. 1893,
p. 59, authorizing city governing bodies to issue refunding bonds
by vote of people, recitals in bonds do not estop city from ehowing
that debt refunded was not legal fundable debt when city did not
receive benefit from bonds.
119 U. S. 96-99, 30 L. 362, PALMER v. HUSSEY.
SyL 2 (XI, 208). Bankruptcy — Debts arising from fiduciary
capacity.
Approved in Gee v. Gee, 84 Minn. 387, 87 N. W. 1117, holding
misappropriation of money by partner while engaged in conduct
of partnership business not within bankruptcy act, S 17, ds. 2, 4.
119 U. S. 99-109, 30 L. 299, VIGKSBURG, ETC., RY. v. O'BRIEN.
SyL 1 (XI, 209). Witness refreshing memory.
Approved in Palmer v. Hartford Dredging Co., 73 Conn. 188, 47
Atl. 127, holding writing from which witness refreshes memory
so that he can and does testify from memory is not admissible in
corroboration of oral testimony.
Syl. 4 (XI, 200). Harmlessness of error must clearly appear.
Approved in United States v. Honolulu Plantation Ck>., 122 Fed.
383, holding erroneous admission of material evidence before Jury
119 U. S. 99-109 Notes on U. S. Reports. 876
Ifl reversible error, unless harmlessness clearly appears; Alaska
Commercial Co. v. Dinkelspiel, 121 Fed. 322, holding it reversible
error to include in writings sent out to Jury papers marked for
identificatioD but not introduced in evidence; United States v.
Gentry, 119 Fed. 76, applying rule in trover for cutting timber on
government land; Choctaw, etc., R. R. v. HoUoway, 114 Fed. 465,
holding where court correctly charges Jury on conceded facts that
master was negligent as matter of law, erroneous charge relative
to degree of care required of master is harmless error, where no
question of master's negligence submitted to Jury; dissenting opin-
ion In Chicago House W. Co. v. Bimey, 117 Fed. 81, majority
holding charge on measure of damages for personal injuries not
erroneous when considered as whole; dissenting opinion in Choctaw,
etc., R. R. Co. v. Tennessee, 116 Fed. 30, majority holding state-
ment in charge that it was master's duty to furnish servants safe
machinery and safe place to work in, without qualification that
exercise of reasonable care only required, is harmless error where
correct rule given elsewhere; dissenting opinion in United States v.
Price Trading Co., 109 Fed. 250, arguendo.
Syl. 6 (XI, 209). Agent's declarations as res gestae.
Approved in Chicago v. McKechney, 205 111. 460, 68 AtL 985,
holding preliminary estimate signed by assistant city engineer,
but not signed by city engineer and commissioner of public works,
inadmissible in action against city on contract; Hall v. Murdock,
119 Mich. 392, 78 N. W. 330, holding in action for injuries received
through breaking of elevator cable, declaration of owner's agent
that it was defective is inadmissible, as not within scope of
employment.
Syl. 7 (XI, 210). Engineer's statements as to speed as res gestae.
Approved in Marande v. Texas & Pac. Ry. Co., 124 Fed. 46, hold-
ing in action for value of cotton destroyed by fire alleged to have
resulted from defendant's negligence while cotton in its possession,
statements by defendant's servants employed to guard premises
as to cause of fire inadmissible; Fidelity, etc., Co. v. Haines, 111
Fed. 340, holding admission of local insurance agent on day after
making by him of oral contract of insurance, that claimant was
insured, not admissible against principal; Travelers', etc., Assn.
V. West, 102 Fed. 227. holding in action on accident policy, state-
ments of insured as to fact, nature, and extent of injury which he
received in basement, claimed to have caused his death, made when
he came upstairs, few minutes after accident, are inadmissible as
res gestae; Marier v. Texas, etc., R. R. Co., 52 La. Ann. 731, 27
So. 178, refusing to admit declarations of person injured made in
answer to queries as to how accident happened, made out of pres-
ence of any one who was actor in transaction, a considerable time
after happening; Barnes v. Rumford, 96 Me. 323, 52 Atl. 847, bold-
877 Notes on U. S. Reports. 119 U. S. 110-152
ing declaration of driver of wagon in wliich plaintiff who was in-
jured by defect In road was passenger, made three or four minutes
after accident, not admissible to impeach witness.
Distinguished in Sample v. Consolidated Light, etc., Ry. Co., 50
W. Va. 482, 40 S. E. 602, holding motorman's declaration, made
while car was stili on body of one it had run down, that he saw
child but thought he could pass It, is admissible as part of res
gestse.
119 U. S. 110-129, 30 L. 342, PHILADELPHIA FIRE ASSN. v.
NEW YORK.
Syl. 1 (XI, 211). Examination of State opinion.
Approved in San Jos6 Land, etc., Co. v. San Jos6 Ranch Co., 189
U, S. 180, 23 Sup. Ct. 489, 47 L. 768, holding Federal right specially
set up where claim of right sufficiently appears in motion for new
trial and in assignment of errors in State Supreme Court, and was
fully considered there; Ashland Lumber Co. v. Detroit Salt Co., 114
Wis. 78, 89 N. W. 908, upholding Laws 1899, chap. 351, providing
conditions upon which foreign corporations may do business in
State.
. Syl. 3 (XI, 211). State restraint on foreign corporations.
Approved In D*Arcy v. Mutual Life Ins. Co., 108 Tenn. 573, 69
S. W. 770, holding State cannot repeal mode of service required in
•nits against foreign insurance companies so far as concerns pre-
existing policies.
SyL 4 (XI, 212). Issuance of insurance policy not commerce.
Approved in New York Life Ins. Co. v. Cravens, 178 V. S. 401,
44 L. 1124, 20 Sup. Ct 967, holding Mo. Rev. Stat, ii 5983-^5986.
regulating contracts of life insurance made between residents of
State and corporations of other States, not invalid as commerce
regulation; Jones v. Mutual Fidelity Co., 123 Fed. 532, upholding
Tenn. Acts 1891, p. 264, chap. 122, providing that no foreign cor-
poration can do business in State without first filing copy of charter;
Beilley v. United States, 106 Fed. 902, upholding anti-lottery act
of March 2, 1895.
119 U. S. 129-148, 30 L. 350, HOME INS. CO. v. NEW YORK.
Syl. 1 (XI, 213). Tax on stock does not exempt bond investment.
Approved in Plummer v. Coler, 178 U. S. 127, 44 L. 1005, 20 Sup.
Ct 834, holding legacy of United States bonds not exempt from
State Inheritance tax laws.
119 U. S. 149-152, 30 L. 376, MINNEAPOLIS, ETC., RY. v. CO-
LUMBUS ROLLING-MILLS.
Syl. 1 (XI, 213). Mutual assent necessary to contract
Approved in James v. Darby, 100 Fed. 231, holding letter from
holder of option to owner of property, saying he had determined
119 U. S. 152-17G Notes on U. 8. Reports. 878
to accept If details satisfactorily arranged, and if abstract of title
furnished, where option contained no such requirement, is no ac-
ceptance of option.
Syl. 2 (XI, 213). Acceptance on different terms is rejection of
contract
Approved in Bowen ▼. Hart, 101 Fed. 381, holding where one
engaged In looking up lands of another and clearing up titles wrote
to owner proposing that he get for his services one-half of lands
and pay own expenses, or one-third of lands and expenses, and
owner answered to go ahead and satisfactory settlement would be
made, there was no acceptance; James v. Darby, 100 Fed. 228, 229,
holding letter from holder of option to owner of property, saying
he had determined to accept if details satisfactorily arranged, and
if abstract of title furnished, where option contained no such re-
quirement, is not acceptance of option; United States Heater Ck>.
V. Applebaum, 126 Mich. 299, 85 N. W. 744, holding where defend-
ant offered to sign contract for delivery of iron during certain year,
return of contract requiring delivery between dates extending be-
yond year not acceptance of offer; Washington v. Mining, etc., Co.,
28 Tex. Civ. 434, 441, 67 S. W. 462, 465, 466, applying rule to
acceptance of option.
119 U. 8. 152-155. Not cited.
119 U. S. 15^-176, 30 L. 396, HANRIGK v. PATRICK.
Syl. 1 ^XI, 214). All Joint parties must appeal.
Approved in Kidder v. Fidelity, etc., Co., 105 Fed. 823, holding
where one of several interveners appeals from decree and cites only
complainant and receiver of one of several defendants, appeal will
be dismissed.
Syl. 3 (XI, 214). Appeal — Parties unaffected by separable decree.
Approved in Ayres v. Polsdorfer, 105 Fed. 739, holding where in
ejectment under statute authorizing Joinder as defendants of all
persons claiming interest in land, defendants severally pleaded title
In themselves by distinct titles, and plaintiff had Judgment, writ
of error by one defendant alone will be dismissed; The New York,
104 Fed. 563, holding sureties on stipulation entered into under
Rev. Stat, § 911, for release of vessel in collision suit, need not
be Joined in appeal by claimant, whose sureties they are, from Judg-
ment in suit, though such Judgment is Joint in form against
stipulators.
Syl. 5 (XI, 215). Aliens may inherit.
Approved in Blythe v. Hincltley, 180 U. S. 342, 45 L. 562, 21 Sup.
Ct 394, upholding Cal. Civ. Code, § 671, permitting aliens to inherit
lands, afflrmdng 127 Cal. 436, 59 Pac. 788; Hanrick v. Gurley, 93
Tex. 467, 54 S. W. 350, holding aliens, subject of Great Britain, and
579 Notes on U. S. Reports. 119 U. S. 176-190
heirs of one dying in 1S65, inherited defeasible estate in his lands
in Texas, which became indefeasible on passage of act of Parlia-
ment of 1870, permitting aliens to inherit lands in Great Britain.
SyL 12 (XI, 215). Warranty — Setting up after acquired title.
Approved in Baker v. Sherman, 73 Vt 31, 50 Atl. 635, holding
allegation that one sold and conveyed to another " his interest '* in
certain land Is not allegation that seller had or claimed to have
any interest to convey.
Distinguished in Boynton ▼. Haggart, 120 Fed. 822, holding regis-
try statutes estop holder of actual title evidenced by unrecorded
deed or decree from denying that title which appears of record is
real title.
119 U. S. 176-184. Not cited.
119 U. S. 185-190, 30 L. 372, FREEMAN v. ALDBRSON.
SyL 1 (XI, 216). Action in rem defined.
Approved in Colston v. Southern Building, etc., Assn., 99 Fed.
311, holding Federal court will not entertain suit by stockholders
for appointment of receiver and liquidation of affairs of corporation
as insolvent while prior State suit for same purpose is pending,
though State court on preliminary application refused to appoint
receiver; Paper Co. v. Shyer, 108 Tenn. 453, 67 S. W. 858, holding
personal judgment for money, rendered against nonresident, who
is not served with process, and does not appear, in proceeding by
attachment, subjecting attached property and awarding execu-
tion for unsatisfied balance, is void; dissenting opinion in Tyler v.
Court of Registration, 175 Mass. 99, 101, 55 N. E. 823, majority
upholding Stat. 1898, chap. 562, providing for cutting off adverse
Interests in land of unknown claimants by publication of notice
"to whom it may concern."
Syl. 3 (XI, 216). Subjection of nonresident's property to debts.
Approved in Moredock v. Klrby, 118 Fed. 184, holding service of
summons issued against defendant who is nonresident, made on agent
In charge of place of business, in accordance with Ky. Civ. Code,
I 61, subd. 6, as such statute is void as applied to actions In per-
sonam; Rothschild V. Knight, 176 Mass. 53, 57 N. E. 337, holding
under Pub. Stat, chap. 164, § 1, chap. 183, { 1, debt due nonresident
defendant sued as fraudulently preferred creditor by insolvency
assignee may be sued by trustee, process and Jurisdiction gained to
render Judgment against defendant for amount of debt, though no
service had on defendant; Oil Well Supply Co. v. Koen, 64 Ohio St.
429, 432, 60 N. E. 604, 605, holding in action to enforce collection
of debt by attachment of nonresident's property in State, who has
not been summoned, no valid Judgment in personam can be
rendered.
119 U. S. 191-214 Notes on U. S. Reports. 880
Syl. 5 (XI, 217). State process cannot summon nonresident.
Approved in Abbeville Electric, etc, Co. ▼. Western Electrlcalt
etc., Co., 61 S. C. 378, .39 S. E. 565, holding personal serrice within
State of summons and complaint alleging cause of action arisRlg
within State, on traveling salesman of foreign corporation not hav-
ing resident agent or place of business in State, who visits State
on business connected with transaction out of which suit arose. Is
good service; Paper Co. v. Shyer, 108 Tenn. 457, 67 S. W. 859, hold-
ing personal Judgment for money, rendered against nonresident,
who is not served with process and does not appear, in proceeding
by attachment subjecting attached property and awarding execu-
tion for unsatisfied balance, is void.
119 U. S. 191-199, 30 L. 384, WILLIAMBTTB CO. ▼. BANK OP
BRITISH COLUMBIA.
Syl. 1 (XI, 217). Corporation — Power to sell includes mortgage.
Approved in London, etc, Bank v. Block, 117 Fed. 904, holding
foreign corporation's franchise to do business is taxable under Cali-
fornia statutes; O'Brien v. Flint, 74 Conn. 505, 51 Atl. 548, holding
testamentary power of sale to widow to support herself iind son
does not include power to mortgage to raise money for support of
herself and son.
119 U. S. 1^9-214, 30 L. 858, THE HARRISBURO.
Syl. 1 (XI, 218). No action for death at common law.
Approved in Williams v. Quebec SS. Co., 126 Fed. 592, and Run-
dell V. La Compagnie, etc., 100 Fed. 659, both re-affirmlng rule;
The Albert Dumois, 177 U. S. 259, 44 L. 761, 20 Sup. Ct 602, hold-
ing lien on vessel for loss of life of passenger not created by La.
Civ. Code, art 3237, subd. 12, providing for privilege for loss or
damage to person or property by negligent management of vessel;
Pouppirt V. Elder Dempster Shipping, 122 Fed. 987, holding United
States Admiralty Court has Jurisdiction of action in personam
against owner of foreign ship to recover for injuries sustained by
American passenger on high seas, irrespective of law of ship's flag;
The Northern Queen, 117 Fed. 915, holding where, by statute in
force at place of collision, right of action for wrongful death, sur-
vives to widow or next of kin of decedent, claim for damages for
death of person who lost his life in such collision may be enforced
in admiralty in proceedings by owner of offending vessel for limi-
tation of liability; reversed in 123 Fed. 475; Lindstrom v. Interna-
tional Nav. Co., 117 Fed. 171, holding steamship company operating
American vessel registered in port of New York, is liable to admin-
istrator of passenger washed overboard on high seas, under N. Y.
Code Civ. Proc, S 1902, conferring on personal representative right
to sue for death of decedent; Schooner Robert Lewers Ca v.
S81 Notes on D. S. Reports. 119 U. S. 190-214
Kekauoha, 114 Fed. 8S1, upholding admiralty Jarlsdtctlon over ac-
tion by widow for wrongful deatli of husband under Hawaiian
laws; Stem v. La Oompagole Generale, etc., 110 Fed. 90S, holding
admiralty anlt Tor wrongful death must, under N. J. act of IBiS,
be brought within twelve months after death of decedent; Mlddle-
toa y. La Compagnle, etc., 100 Fed. 866, holding action may be
maintained in Admiralty Court to recover for wrongful death
occurring In Sandy Hook bay, under N. J. act of Mai'cb 12,
1840. ceding jurisdiction to United States over portion of such hay;
Mayor t. B. G. It. & N. Ry. Co., 115 Iowa. 312, 83 N. W. 818, hold-
ing under Code, !j 3443-3445, personal representative, but not wife
or children of decedent, can sue for wrongful death; Rodman T.
Hallway Co., 65 Kan. 650, TO Pac. 644, holding actions tor wrongful
death permitted by Gen. Stat. 1901, 3 4ST1, must be brought within
time limited by that act; Brinic t. Wabash R. R. Co., 160 Mo. 93,
60 S. W. 1059, holding negligent killing of passenger by railroad,
with willful Intent to Injure parents who bad contract with him
for support, does not give them right to sue railroad for damage
done In preventing him from carrying out contract; dissenting
opinion in Workman v. Mayor, etc., of New York, 179 U, S. 587,
43 L. 330, 21 Sup. Ct. 225, majority holding city liable for negligence
of servants In charge of Breboat while hastening to fire. In conae-
(luence of which boat collides with and Injures another vessel.
Syl. 2 (XI, 218). State limitations govern Federal courts.
Approved In Brunswick Terminal Co. v. National Bank. 99 Fed.
639, holding Oa. Code 1682. g 201i>, applies to action In Maryland
to ^iforce stockholders' liability, created by charter under Georgia
l&ir.
SyL 3 (XI, 219). Limitation governing new statutory liability.
Approved In International Nav. Co. v. Llndstrom, 123 Fed. 477,
holding New Jersey statute giving right of action for wrongful
death, provided action brought within twelve months, Is enforce-
able In Federal courts, reversing 117 Fed. 170; Stern V. La Com-
pagnle Generale, etc., 110 Fed. 1000, holding admiralty suit for
wrongful death must, under N. J. aOt of 1848, be brought
within twelve months after death of decedent; Brunswick Terminal
Co. V. National Bank, 99 Fed. 638. holding Ga. Code 1882, i 2016.
applies to action In Maryland to enforce stockholder's llahllltT,
created by Georgia corporation's charter; Rodman v. Railway Co.,
05 Kan. ffil, 70 Pac. 644. holding action for wrongful death per-
mitted by Gen. SiaL 1901, fi 4871, must be brought within time
limited by that act
Distinguished In Halo r. Coffin, 114 Fed. 680, holding Federal
court wlU enforce Rev. Stat, Me., chap. 87, providing that whera
right of action on demand against decedent does not accrue within
Vol. U — tB
119 U. S. 215-240 Notes on U. 8. Report!. 882
period limited by statute for brlDging salts against executor, daim-
ant may file demand in probate ofllce, but If claim not so filed
claimant may have remedy against heirs or devisees wltbln one
year after It becomes due; Pnlsifer v. Greene, 96 Me. 448, 52 AtL
924, holding general limitation statute of Kansas does not bar ac-
tion in this State to enforce liability of stockholders in Kansas
corporation.
119 U. 8. 215-220. Not cited.
119 U. 8. 226-234, 80 L. 809, HAPGOOD T. HEWITT.
8yl. 1 (XI, 220). Inventor employed to make improvements.
Approved in Pressed 8teel Car Co. v. Hansen, 128 Fed. 445»
holding obligation on part of employee to assign to employer pat-
ents obtained for inventions made in coarse of employment does
not arise from relation of employer and employee.
119 U. 8. 235-237. Not cited.
119 U. 8. 237-240, 30 L. 380, CONTINENTAL IN8. GO. V. BHOAD&
Syl. 1 (XI, 221). Courts — Record must show jurisdictional facts.
Approved in Central Grain & 8. Exchange v. Board of Trade, 125
Fed. 406, reaffirming rule; Redfield v. Baltimore & O. R. B. Co.,
124 Fed. 930. holding in suit by stockholder. of corporation of same
State against such corporation and a foreign corporation, to charge
latter as trustee, because of its acts as majority stockholder, do-
mestic corporation not being party in same interest as complainant
cannot be aligned with him for purpose of jurisdiction; Green v.
Heaston, 154 Ind. 129, 56 N. E. 88, holding removal petition
alleging diverse " residence " of parties at time of filing of com-
plaint insufficient; Thompson v. Southern Ry., 130 N. C. 142, 41
S. E. 10, holding removal petition must specifically allege that peti-
tioner is nonresident of State, and it is not sufficient to allege that
petitioner is corporation originally created under laws of another
State.
Distinguished in Litteil v. Erie R R. Co., 105 Fed. 539, holding
allegation in complaint that i)laintifr is c.'t^zen of United States,
and an actual resident of a State named, is sufficient allegation of
citizenship for jurisdictional purposes.
Syl. 2 (XI, 221). Courts — Citizenship of administrator governs.
Approved in Bishop v. Boston, etc., R. R., 117 Fed. 722, reaflirm-
ing rule.
Syl. 4 (XI, 222). Amendment of record in appellate court.
Approved in Burget v. Robinson, 123 Fed. 265, holding effect of
order of Circuit Court of Appeals, staying mandate after judgment
indefinitely. Is to retain Jurisdiction in that court, and power to
grant rehearing even after term, so long as mandate has not Issued;
888 Notes on U. 8. Reports. 119 U. S. 240-280
Watson T. Bonflls, 116 Fed. 161, holding where through mistake
or inadvertence of one of parties requisite averments of citizenship
have not been made, appellate court may reverse and remand
with leave to permit amendments showing jurisdiction, but It
cannot permit such amendment In appellate court
119 U. S. 240-244, 80 L. 382, BAST TBNNBSSEB, BTC, RY. GO.
V. GRAYSON.
Syl. 1 (XI, 222). Suit by stocl^holders against corporations —
Removal.
Approved in Redfield v. Baltimore & O. R. R. Co., 124 Fed. 931,
holding in suit by stockholder of corporation of same State against
such corporation and foreign corporation to charge latter as trustee
because of acts which It as majority stockholder, caused former
to do, domestic corporation is not party in same Interest as com-
plainant; MacGinniss v. Boston, etc.. Silver Min. Co., 119 Fed. 101,
holding suit by stockholder of domestic corporat^ion who Is citizen of
same State, against such corporation and foreign corporation to
enjoin latter controlling domestic corporation, does not Involve
separable controversy between complainant and foreign corporation.
Syl. 2 (XI, 222). Removal — Separable controversy — Allegations
deemed confessed.
Approved In Bryce v. Southern Ry. Co., 122 Fed. 711, re-affirming
rule.
119 U. S. 245-259, 30 L. 354, CUNARD SS. CO. v. CARBY.
Syl. 1 (XI, 222). Negligence.
Approved in The Anehoria, 113 Fed. 985, holding negligence of
fellow servant no defense to action for Injuries sustained by
employee on ship.
119 U. S. 259-265. Not cited.
119 U. S. 265-280, 30 L. 411, NBW ORLBANS V. HOUSTON.
Syl. 4 (XI, 223). Separate taxation of shares and capital stock.
Approved in dissenting opinion in Bacon v. Board of State Tax
Comrs., 120 Mich. 40, 85 N. W. 314, majority upholding Comp. Laws
1807, S 3831, relative to taxation of stock in foreign corporations
held by inhabitants of State.
SyL 6 (XI, 223). Tax on shares payable by company as tax on
company.
Approved in Carstairs v. Cochran, 95 Md. 505, 52 Atl. 003, up-
holding act 1900, chap. 320j requiring every distiller and ware-
houseman having custody of qistilled spirits to pay taxes on same,
although owned by other persons, and giving him lien on spirits so
paid for owner.
110 U. S. 280-311 Notes on U. 8. Report!. 881
111) U. S. 280-285, 80 L. 3S3. HAMILTON T. VIOKSBURG, ETC..
RY.
Syl. 1 (XI, 224). Power to baild railroad includes bridges.
Approved in Railroad v. Ferguson, 105 Tenn. 558, 58 S. W. 345,
holding authority conferred on railroad by charter to '* build
bridges" does not give right to obstruct navigable streams by
permanent bridges.
Distinguished in New York, etc, R. R. v. Piscataqua Nav. Co.,
108 Fed. d5, holding where owner of bridge over navigable channd
negligently permitted draw to improperly obstruct channel, owner
of sea-going vessels, which before had sailed with cargoes for points
above bridge, and of vessel above bridge, may, if vessels were
prevented by obstruction from passing up and down channel, sue
in admiralty for demurrage.
Syl. 4 (XI, 496). Temporary obstruction of navigation by bridge.
Approved in Dehon v. Lafourche Basin Levee Board, 110 La. 781,
34 So. 775, upholding building of dam and locks in Bayou Lafour-
che; Frost V. Railroad Co., 96 Me. 87, 51 Atl. 809, holding fact
that building and maintenance of trestle and consequent closing of
channel by railroad, under authority of legislature and Congress,
has seriously damaged business and selling value of property of
plaintiff does not entitle him to compensation from railroad.
119 U. S. 286-295. Not cited.
119 U. S. 296-311, 30 L. 363, NEW YORK, ETC.. RY. v. NICKALa
Syl. 1 (XI, 225). Right of preferred stockholders to dividends.
Approved in Gadd v. Equitable Life Assur. Soc, 97 Fed. 835,
holding where tontine policy provided that all surplus derived from
policies of same class as should not be in force at date of comple-
tion of dividend, period should be apportioned among those com-
pleting such period, and that holder might withdraw in cash sur-
plus apportioned by society to such policy, action of society in
.apportioning surplus not reviewable in absence of fraud. See 73
Am. St. Rep. 230, note.
Syl. 3 (XI, 225). Directors declare dividends.
Approved in Posner v. Southern Exhaust, etc.. Pipe Co., 100 La.
666, 33 So. 644, refusing to appoint receiver for corporation where
directors did not misapply funds; Quinn v. Safe-Deposit, etc., Co. of
Baltimore, 93 Md. 298, 48 Atl. 838, holding where testamentary
trustee directed to pay net income to children and divide principal
among certain remaindermen after their death, and part of estate
consisted of shares in corporation which had indorsed mortgage
bonds, and had amassed sinking fund for purpose of paying bonds,
where bonds were paid by mortgagor, resolution distributing sink-
ing fund as dividends made such dividend part of income. See 7S
Am. St. Rep. 233, note.
8S6 Notes on U. S. Reports. 119 U. S. 312-826
119 U. S. 312-522, 30 L. 416, WOOD v. FORT WAYNE.
Syl. 2 (XI, 225). Compensation on change of plans.
ApproTed In Wyandotte, etc., Ry. v. King Bridge Co., 100 Fed.
206, holding provision in building contract that no extra work or
changes made in plans, and no charge for extra work or materials
made, unless agreed to in writing, does not deprive contractor of
right of recovery for additional material or labor furnished outside
of contract at request of other party, though not made in writing;
Merritt v. Peninsular Con. Co., 91 Md. 466» 46 Afl. 1015, holding
under written contract for construction of railroad according to
certain plans, providing that no claim for extra work shall be
allowed unless work done in pursuance of written order from en-
gineer, contractor not allowed extra work of any kind done in
construction of road.
Distinguished in Mobile v. Shea, 127 Fed. 529, holding where
contract for sewer system In accordance with plans provided that
all estimates for work and materials should be made by engineer
and that his decision should be conclusive and final, decision of
engineer was conclusive, though plans in some instances departed
from; Abercrombie v. Vandiver, 126 Ala. 531, 28 So. 496, holding
where contract provided that no claim for extra work would be
considered except made in writing to engineer within one month
after such work done, fact that extra work done at request of other
party does not excuse making of claim as required by contract
119 U. S. 322-326. 30 L. 392, CLARK v. WOOSTBR.
Byl. 2 (XI, 226). Expiration of patent pending equity suit
Approved in Busch v. Jones, 184 U. S. 600, 46 L. 710, 22 Sup. Ct
512, holding equity jurisdiction over Infringement suit not defeated
because, since contract between patentee and coplaintitf convey^
only patent rights to machine and not process claimed in patent,
court could not order injunction against defendant who was mere
user of machine; United States Mitis Co. v. Detroit Steel, etc.,
Spring Co., 122 Fed. 866, upholding equity jurisdiction of suit for
infringement where both temporary and permanent injunction
prayed for and answer to bill due more than month prior to ex-
piration of patent though no motion for preliminary injunction
made; Barrett v. Twin City Power Co., 118 Fed. 865, . upholding
equitable jurisdiction over suit for appointment of receiver to com-
plete purchase of options on lands; Chlnnock v. Paterson, etc., Co.,
112 Fed. 532, and Bradner Adjustable Hanger Co. v. Waterbury,
etc., Co., 106 Fed. 735, both holding expiration of patent soon after
suit does not deprive equity of jurisdiction to restrain infringement;
Richi V. Chattanooga Co., 105 Tenn. 653, 58 S. W. 646, holding
equity will in suit to abate nuisance ascertain and award dam-
ages sustained by reason of such nuisance; dissenting opinion in
119 U. S. 327-347 Notes on U. 8. Reports. 886
McNulty V. Mt Morris B!. L. Co.. 172 N. Y. 418, 65 N. B. 198,
majority holding where action by lessee to restrain nuisance to
which has iKten joined legal claim for damages is by expire timi
of lease and vacation of premises prior to trial shorn of equitable
features, leaving nothing but claim for damages, defendant is
entitled to trial by jury.
Distinguished in McNulty v. Mt Morris El. L. Co., 172 N. Y. 415,
65 N. E. 197, holding where action by lessee to restrain nuisance
to which has been joined claim for damages is by expiration of
lease and vacation of premises shorn of equitable features, defend-
ant is entitled to jury trial.
119 U. S. 327-^4, 80 L. 408, McCREEBY v. HASKELL.
Syl. 4 (XI, 227). Date of operation of lien selections.
Approved in Olive Land, etc., Co. v. Olmstead, 103 Fed. 576,
holding rights of patentee selecting lands under forest reservation
act of June 4, 1897, not defeated because it is selected with view
of possible value as oil land where no discovery of oil has ever been
made thereon; Sage v. Crowley, 83 Minn. 320, 86 N. W. 411,
arguendo.
119 U. S. 335-343. Not cited.
119 U. S. 343-347, 30 L. 420. COIT v. GOLD AMALGAMATING GO.
SyL 3 (XI, 229). Exchange of prop^ty for stock — Fraud.
Approved in Great Western Min., etc., Co. v. Harris, 128 Fed. 329,
holding neither corporation nor receiver suing in its name and
behalf can maintain suit to set aside contract made between cor-
poration and all its stocl^holders; Taylor v. Cummings, 127 Fed.
109, holding where members of firm organized corporation to con-
tinue in business and adopted booliLliLeeper's valuation of assets, fact
that by reason of errors in bool^l^eeper's statement there was
material overvaluation did not render stockholders, receiving stock
for their interest in firm as fully paid, liable to creditors for dif-
ference between actual value of property and nominal value of
stock; Cunningham v. Holley, Mason, etc., Co., 121 Fed. 721,
holding where on organization of corporation by mutual agreement,
full paid stock was Issued to incorporators in payment for prop-
erty transferred by them to corporation, one of incorporators can-
not, on becoming creditor, assert its invalidity for purpose of hold-
ing other stockholders liable for unpaid subscriptions on ground
that property was not equal in value to par value of stock; State
Trust Co. V. Turner, 111 Iowa, 669, 674, 82 N. W. 1031, 1032, hold-
ing where payee takes note from corporation with knowledge that
its stock was exchanged for property at excessive valuation,
assignee, after maturity, who has secured judgment on note against
corporation, cannot recover on such judgment against owner of
stock because he has not paid full value of his stock; McClure v.
887 Notes on U. 8. Reportg. 119 U. S. &47-3o5
Padncah Iron Co., 90 Mo. App. 576, holding where property Is
turned into corporation in payment of its shares under whatever
scheme at an overvaluation, to knowledge of contracting parties,
th^e is such fraud as renders stocl^holders liable as creditors for
difference between par value of shares and real value at which
property turned in; Banli v. Coal & Coke Co., 51 W. Va. 79, 41
S. E. 398, holding fact that realty received by mining corporation
in full payment for stock issued at overvaluation will not make
holder of such stock liable for unpaid stock subscriptions until
transaction Impeached for fraud.
SyL 4 (XI, 230). Corporations — Who may object to recall of
stock.
Approved in Great Western Min., etc., Co. v. Harris, 128 Fed.
330, holding neither corporation nor a receiver suing in its name
and behalf can maintain suit to set aside contract made between
corporation and all its stockholders; Berry v. Rood, 168 Mo. 334,
67 S. W. 649, holding creditor who knows that corporation has
accepted property of less value than face of stock in full payment
of its stock, and so knowing loans money to corporation, cannot
call on stockholder to contribute toward payment of his debt;
Richardson v. Mining Co., 23 Utah, 383, 65 Pac. 78, holding no fraud
appears where mining claim transferred for stock and stockholders
voluntarily paid assessments and worked claim.
119 U. S. 347-355, 30 L. 451, BUZARD v. HOUSTON.
Syl. 1 (XI, 330). No equitable relief when remedy at law.
Approved in Jones v. Mutual Fidelity Co., 123 Fed. 519, holding
general unsecured creditors at law who have not reduced claims
to judgment cannot solely on ground of insolvency of corporation
have receiver appointed; Mutual Life Ins. Co. v. Pearson, 114 Fed.
398, holding where insurance policy provided that it should not
take effect until after payment of first premium during continuance
of assured In good health, and premium paid while assured ill
with appendicitis, illness being concealed, insurer could cancel
policy where it called for delivery of bonds payable thirty-five
years from date with interest.
Syl. 2 (XI, 231). Damages for fraud in equity.
Approved in Kruger v. Armltage, 58 N. J. Eq. 361, 44 Atl. 168,
denying equity jurisdiction over suit to compel, for false representa-
tions, repayment of money paid for stock, brought by purchaser
against treasurer of mining corporation, where complainant pur-
chased stock paying part cash and gave mortgage for balance to
third party.
Syl. 3 (XI, 232). Adequate remedy at law.
Approved in Such v. Bank, 127 Fed. 452, holding receipt in full
in nature of release but not under seal may be set aside in Federal
119 U. S. 355-^1 Notes on U. S. Reports. 888
court for fraud inducing settlement pursuant to which It was given,
and does not entitle malcer to resort to equity for its cancellation.
(XI, 230). Miscellaneous.
Cited in Southern Pine Co. y. Hall, 106 Fed. 89, upholding Federal
jurisdiction over suit to quiet title to land, though complainant not
in possession, where such suit authorized by State statute, and it
appears that defendant is not in possession.
119 U. S. 355-357, 30 L. 439, KRAMER v. COHN.
Syl. 1 (XI, 232). Dismissal without prejudice.
Approved in Miller v. Carlisle, 127 Cal. 330, 59 Pac. 786, holding,
in action to foreclose several mechanics* liens, where demand of
each claimant is less than $300, if liens claimed are invalid and
equity jurisdiction fails, Superior Court cannot render personal
judgment against landowners.
119 U. S. 357-373. Not cited.
119 U. S. 373-385, 30 L. 442, NEWTON v. FURST, ETC., MFG. CO.
SyL 1 (XI, 233). Patents — Prior art — Restriction to specific
claims.
Approved in National Hollow, etc., Co. v. Interchangeable, etc,
Co., 106 Fed. 714, upholding Hein patent No. 361,009, claim 2, for
improvement in braise beams.
119 U. S. 385, 386. Not cited.
119 U. S. 387, 388, 30 L. 441, WILSON v. BLAIR.
Syl. 1 (XI, 234). Appeal — Affidavits to show jurisdictional
amount.
Approved in Robinson v. Suburban Briclc Co., 127 Fed. 806, hold-
ing bill in' Federal court need not state amount in controversy, if
it appears to be within jurisdictional limit from allegations in bill,
or otherwise from record, or from evidence taken in case before
hearing of objections to jurisdiction.
Distinguished in Greene County Banlc v. J. H. Teasdale C. Co., 112
Fed. 803, holding in action for recovery of money only, amount of
damages claimed determines jurisdiction unless declaration on its
face shows such amount is claimed in bad faith and merely to give
colorable jurisdiction.
119 U. S. 388-401, 30 L. 447, JOHNSON v. CHICAGO, ETC.,
ELEVATOR CO.
Syl. 2 (XI, 234). Admiralty — Consummation of wrong on land.
Approved in dissenting opinion in The Robert W. Parsons, 191 U.
S. 41, majority holding enforcement of lien in rem against Erie
canal-boat for repairs made in port of home State la within ex*
elusive admiralty jurisdiction.
888 Notes on U. S. Reports. 119 U. S. 401-421
SyL 4 (XI, 235). Creation of State maritime lien.
Approved in The Robert W. Parsons, 191 U. S. 24, 25, holding
enforcement of lien in rem for repairs made in port of home State
to Erie canal-boat is within exclusiye Federal admiralty Juris-
diction; Knapp, Stout & Co. t. McCaffrey, 177 U. S. 643, 647, 44 L.
924, 925, 20 Sup. Ct 827, holding bill to enforce lien for towage
by foreclosure of lien on lumber raft in complainant's possession,
where suit is brought against individual defendants, seelcing decree
against them, and in default of payment, sale of property, is not
suit in rem within exclusive Federal jurisdiction; Olsen v. Birch,
etc., Co., 133 Cal. 484, 65 Pac. 1033, holding where, under Code Civ.
Proc, §§ 813-827, in action to enforce liens for work done in con-
struction and for sorvices rendered by crew on board steamer never
commissioned. State court has acquired jurisdiction of person of
owner who has appeared and answered, and vessel has not been
seized, it may enforce liens by execution sale.
119 U. S. 401-407. Not cited.
119 U. S. 407-436, 30 L. 425, UNITED STATES v. RAUSCHER.
Syl. 1 (XI, 236). Treaty necessary to extradition.
Approved in Terlinden v. Ames, 184 U. S. 289, 46 L. 545, 22 Sup.
Ct 492, holding violation of law of German Empire is extraditable
offense under treaty with Prussia; Tucl^er v. Alexandroff, 183
U. S. 431, 46 L. 268, 22 Sup. Ct. 198, extraditing deserter from crew
of Russian warship who deserts before crew organized and while
ship, though launched, is still in process of construction.
Syl. 3 (XI, 236). Courts talse judicial notice of treaties.
Approved in Cohn v. Jones, 100 Fed. 643, holding one extradited
from Canada for burning ** house " owned by person named, and
occupied and inhabited by persons named for specific business
purposes', may be tried for burning " store building."
SyL 4 (XI, 236). Fugitive only triable for extradited crime.
Approved in Cohn v. Jones, 100 Fed. 640, holding one extradited
from Canada for burning ** house " owned by person named may
be tried for burning ** store building."
Syl. 5 (XI, 237). Remedy of extradited prisoner tried for other
crime.
Approved in Cohn v. Jones, 100 Fed. 642, holding Federal court
may release on habeas corpus person confined under State judgment
where want of jurisdiction arises under treaty.
119 U. S. 436-445, 30 L. 421, KER v. ILLINOIS.
Syl. 1 (XI, 238). Due process — Irregularities in manner of arrest
Approved in Adams v. New Yorlt. 192 U. S. 596, 24 Sup. C^. 374,
holding papers found in possession of party against whom they are
119 U. S. 445-476 Notes on U. 8. Report!. 880
offered in execution of valid seareli warrant are admissible In
criminal trial; People v. Hyatt, 172 N. Y. 181« 64 N. B. 826, 92
Am. St Rep. 709, holding evidence that one accused of crime
sought to be extradited was not In demanding State when crime
was committed does not require his discharge on habeas corpus;
State V. Melvem, 32 Wash. 12, 72 Pac. 491, holding fact that defend-
ant was arrested in first instance by person not having legal war-
rant therefor not ground for reversal for lack of jurisdiction of
person, when It appears that he was in fact in custody of ofllcer, was
present on arraignment, pleaded not guilty, and was in court
throughout trial.
Syl. 4 (XI, 238).' Review of conviction of abducted prisoner.
Approved in Ex parte Glenn, 103 Fed. 948, hblding where person
regularly indicted for violation of criminal statutes of State is in
custody of State authorities, he will not be discharged before trla)
by Federal court on habeas corpus on ground that he was forcibly
and illegally brought within jurisdiction.
119 U. S. 445-468. Not cited.
119 U. S. 469-472, 30 L. 435, PEPER T. FORDYCB.
Syl. 2 (XI, 240). Removal — Citizenship of indispensable de-
fendant.
Approved in Gely v. Grlflln, 113 Fed. 982, holding equity suit to
set aside contract for sale of patent cannot be maintained in Fed-
eral court where indispensable defendant Is citizen of same State
as complainant; Colorado F. & I. Co. v. Four Mile Ry. Co., 29
Colo. 94, 66 Pac. 903, holding in condemnation against domestic
corporation as owner of premises and against foreign corporation
as trustee for holders of bonds secured by mortgage on premises,
both corporations being Indispensable parties, and interests not
separable so as to permit removal by foreign corporation. '
119 U. S. 47^-476, 30 L. 461, GERMANIA INS. CO. v. WISCONSIN.
Syl. 1 (XI, 241). Removal of suit by State.
Approved in Missouri, K. & T. R. R. Co. v. Hickman, 183 U. S.
58, 46 L. 83, 22 Sup. Ct. 20, holding State not real party in interest
so as to preclude removal in suit by railroad commissioners under
Mo. Rev. Stat. 1899, § 1150, to restrain railroad from violating law
and order of commissioners with respect to rates; South Carolina
V. Virginia-Carolina, etc., Co., 117 Fed. 728, holding action by State
to subject foreign corporation to penalties Imposed by State stat-
ute not removable on ground of Federal question, where statute pur-
ports to have been enacted under police powers and complaint
makes no reference to Constitution or laws of United States; State
of West Virginia v. King, 112 Fed. 370, holding suit by State
against land claimant to enforce forfeiture of land and subject it
to sale for benefit of school fund not removable.
891 Notes on U. S. Reports. 119 U. S. 477-498
Syl. 2 (XI, 241). Removal — Record must show Federal question.
Approved In Marrs v. Felton, 102 Fed. 777, holding where Federal
court receiver is properly joined In State court with codef.endant,
who has no right of removal and suit does not involve separable
controversy, suit is not removable by receiver; M'Mullen v. Bowers,
102 Fed. 500, denying Federal Jurisdiction over suit for forfeiture
of patented dredge and for Infringement of patent alleged to have
resulted from its use outside of territory covered by license; Carle-
too V. Bird, 94 Me. 188, 47 Atl. 155, upholding State Jurisdiction of
action of debt on covenant to pay license fee for use of patented
article and process, where defendant that during period sued for
their article was not covered by plaintiff's patent, and plaintiff
contended that defendant's apparatus was infringement of his
patent
119 U. S. 477-484. Not cited.
119 U. 8. 485-491, 30 L. 474, WOLVERTON v. NICHOLS.
Syl. 1 (XI, 242). Mines — Adverse claims — Who may sue.
Approved in Tonopah Fraction Min. Co. v. Douglass, 123 Fed. 939.
upholding bill by adverse claimant in possession, in nature of bill
to quiet title, which alleges that land is part of mining claim, of
which plaintiff is owner and in possession, and that it is claimed
by defendant as part of overlapping claim subsequently located;
Murray v. Polglase, 23 Mont. 414, 59 Pac. 441, holding under U. S.
Rev. §tat, S 2326, one who has not filed his adverse claim under
statute cannot intervene in action to determine adverse claims to
mining location, though he claims adverse interest to both iilaintlff
and defendant.
119 U. S. 491-494, 30 L. 476, GILBERT v. MOLINE PLOW CO.
Syl. 1 (XI, 242). Parol to alter guaranty.
Approved in Union Selling Co. v. Jones, 128 Fed. 676, holding
where contract for sale of binder twine contained words " quality
guaranteed," parol evidence inadmissible to show that warranty
by reason of prior negotiations between parties was intended to
Include certain representations as to quality.
119 U. S. 495-498, 30 L. 491, BIGNALL v. GOULD.
Syl. 1 (XI, 243). Indemnity bond for certain sum — Penalty.
Approved in Sun Printing & Publishing Assn. v. Moore, 183 U. S.
664, 46 L. 378, 22 Sup. Ct 249, holding parties to charter party may
stipulate agreed value of vessel as liquidated damages to be paid
in event of failure to return vessel, and such stipulation is con-
clusive upon them, in absence of fraud or mistake; Chicago House-
Wrecking Co. V. United States, lOG Fed. 392, holding bond of con-
tractor by which principal and sureties bound In certain sum, com-
119 U. S. 49&-630 Notes on U. S. Reports. 802
puted and agreed as liquidated damages and not as penalty to be
immediately due on certain day if contract not completed on date
stipulated, Is penalty.
119 U. S. 499-502, 30 L. 486, THACKRAH v. HAAS.
Syl. 1 (XI, 243). Cancellation of transfer made while intoxicated
— Tender.
Approved In Ludlngton v. Patton, 111 Wis. 248, 86 N. W. 583,
applying rule In action by widow to rescind on account of fraud
contract whereby she surrendered legal rights in husband's estate.
Distinguished in Hill v. Northern Pac. Ry. Co., 113 Fed. 918,
919, holding one executing release to railroad of claim for personal
injuries cannot avoid it as obtained by false and fraudulent repre-
sentations unless he first returns, or offers to return, money re-
ceived as consideration for its execution.
119 U. S. 502-513, 30 L. 482, BROOKS v. CLARK.
Syl. 1 (XI, 243). Removal where joint defendant defaults.
Approved in Lederer v. Sire, 105 Fed. 530, reaffirming rule.
Syl. 2 (XI, 243). Removal — Separate defense not separable
controversy.
Distinguished in Lake St El. R. R. v. Ziegler, 99 Fed. 122, 123,
holding in suit by corporation against nonresident stock and bond-
holders for accounting and surrender of stocks and bonds, where
bill alleged demand on trustees in trust deed securing bonds for
foreclosure, and made trustees, one of whom was citizen of com-
plainant's State, parties, trustees not indispensable parties.
Syl. 3 (XI, 244). Removal takes whole separable cause.
Approved in Yountsey v. Hoffman, 108 Fed. 701, holding where
on removal for separable controversy by one defendant, who alone
is citizen of another State, suit is dismissed as to such defendant,
suit will be remanded.
«
119 U. S. 513-522. Not cited.
119 U. S. 522-525, 30 L. 500, WHITFORD v. CLARK COUNTY.
Syl. 1 (XI, 241). Admissibility of deposition — Deponent pre-
sumed absent.
Approved in Texas & P. Ry. Co. v. Reagan, 118 Fed. 817, holding
under Rev. Stat, § 865, deposition of witness in Federal court in
Texas, which was taken at witness' residence in Minnesota, is ad-
missible without proof that witness was not within 100 miles of
court; Salt Lake City v. Smith, 104 Fed. 469, holding under Rev.
Stat, § 861, testimony of witness given at former trial inadmissible
where witness presumptively within Jurisdiction.
119 U. S. 526-530. Not cited.
893 Notes on U. S. Reports. 119 U. 8. 53(M^1
119 U. S. 630-«42, 30 L. 492, SUTTER v. ROBINSON.
SyL 1 (XI, 245). Patents — Disclaimer not Included.
Approved in Schreiber, etc., Mfg. Co. v. Adams Co., 117 Fed. 834,
holding Farwell patent No. 493,548, for adjustable stove damper,
limited by prior art and not infringed by Ohnemus damper.
(XI, 245). Miscellaneous.
Cited in Simplex Ry. etc., Ck). v. Wands, 115 Fed. 521, holding
parol evidence admissible to show state of art and as bearing on
manner In which doctrine of mechanical equivalents should be
applied to aid court in such construction.
119 U. S. 543-550, 30 L. 487, HUSE v. GLOVER.
SyL 1 (XI, 246). Admission gives same rights as original States.
Approved in Williams v. Hert, 110 Fed. 170, holding no right of
trial by jury on indictment in felony cases guaranteed by Indiana
courts; Mobile Transp. Co. v. Mobile, 128 Ala. 346, 30 So. 646, hold-
ing Alabama has title to shores and beds of navigable streams.
SyL 2 (XI, 247). Commerce charges for improving navigation.
Approved in Cummings v. Chicago, 188 U. S. 428^ 23 Sup. Ct 476,
47 L. 531, holding authority of State to iM-ohibit erection without
its permission of structure in navigable water wholly within limits
not superseded by river and harbor act of March 3, 1899, chap. 425,
S 10, providing that it shall be unlawful to erect structures on
navigable rivers without recommendation of plans by war depart-
ment; Lindsay & Phelps Co. v. MuUen, 176 U. S. 149, 150, 44 L. 409,
410, 20 Sup. Ct 334, holding Minn. Stat 1894, § 2400, giving lien on
logs for scaling, though applied to logs cut in another State for
surveying and scaling them by surveyor-general while in log boom,
not burden on interstate commerce.
Distinguished in City of St Louis y. Consolidated Coal Co., 158
Mo. 348, 59 S. W. 105, holding city ordinance that exacts license
from owner of boat licensed by Congress for coasting trade and
engaged in transporting freight on river from Illinois to Missouri,
for privilege of towing boats into or out of harbor, is void.
(XI, 246). Miscellaneous.
Cited in Atlantic & Pacific TeL Co. v. Philadelphia, 190 U. S. 163,
23 Sup. Ct 818, 47 L. 1000, to point that corporation engaged in
interstate commerce cannot take private property without compen-
sating owner.
119 U. S. 551-561, 30 L. 515, GOETZ v. BANK OF KANSAS CITY.
SyL 1 (XI, 247). Discounting bank does not guarantee genuine-
ness.
Approved in Citizens' Nat Bank of Davenport v. City, etc.. Bank
of Clinton, 111 Iowa, 215, 82 N. W. 465, holding indorsement to
drawee bank " for collection ** of check paid on presentation with
119 U. 8. 561-586 Notes on U. S. Report!. 804
forged indorsemeut of payee renders indorser liable for money had
and received on payment by drawee.
SyL 2 (XI, 247). Bank Indorsement of invoice.
See 91 Am. St Rep. 215, note.
Syl. 3 (XI, 248). Discounting draft with forged bill of lading.
Approved in Guaranty Trust CX>. v. Qrotrian, 114 Fed. 435, hold-
ing where draft directed drawee to pay, and to charge same to
account of certain seed, forged bills of lading for which were at-
tached to bill of lading, and drafts accepted against indorsed bills
of lading for flaxseed, and acceptor paid bills, acceptoi could recover
money paid, afllrming 105 Fed. 567; Blaisdell Ck>. v. National Banic,
96 Tex. 632, 75 8. W. 294, holding banlc purchasing from shipper
his draft on consignee for price of cotton shipped under contract
of sale, secured by assignment of bill of lading therefor, to shipper's
order attached to it, does not, it being accepted and paid, assume
obligations of drawer to drawee.
Syl. 6 (XI, 248). Declarations of agent as to past transactions.
Approved in Alger v. Keith, 105 Fed. 117, holding notice of facts
to agent is coostructive notice to principal only wh^i it comes to
agent while concerned for his principal and in course of every trans-
action or so near before it that agent must be presumed to recol-
lect it
119 U. 8. 561-566, 80 L. 513, NORTHERN PAO. RY. T. PAINE.
Syl. 1 (XI, 248). Equitable defense to legal action in Federal
court
Approved in Lantry v. Wallace, 182 U. S. 550, 45 L. 1225. 21 Sup.
Ct 883, holding fraudulent representations by which person Is in-
duced to become stoclsholder of national banli constitute no defense
In action at law by receiver of banit to enforce steels holder's statu-
tory liability; Goodyear Shoe Machinery Co. v. Dancel, 119 Fed.
696, holding stipulation by defendant in action at law to waive
jury not waiver of right to Insist that plaintiff has no right of
action at law.
Syl. 9 (XI, 249). Licenses terminate by sale.
Approved in Bruley v. Garvin, 105 Wis. 629, 81 N. W. 1039, hold-
ing where after laying out highway over L.'s land, G. who had con-
tract with town to clear same made oral contract to purchase stand-
ing? timber from L. and paid part of purchase price, written con-
tract of sale by L. bperated as revocation of Q.*s license.
119 U. S. 566-^4. Not cited.
il9 U. S. 584-586, 30 L. 513, EX PARTE mRZAN.
Syl. 2 (XI, 249). Issuance of habeas corpus by Supreme Court
Approved in Ex parte Post, 190 U. S. 557, 47 L. 1183, reaffirming
rule.
885 Notes on U. S. Reports. 119 U. 8. 586-603
119 U. S. 586. 587, 30 L. 538, HANCOCK v. HOLBROOK.
Syl. 1 (XI, 249). Removal for local prejudice.
Approved in Weldon v. Fritzlen, 128 Fed. 614, holding in suit
where plaintiff and defendant mortgagors are citizens of same
State in which suit is brought, nonresident creditor of mortgagors
cannot remove for local prejudice; Campbell v. MillilLen, 119 Fed.
985, holding under judiciary act of 1888, S 2, one of two defendants,
both necessary parties, cannot remove for local prejudice when there
Is no separable controversy.
119 U. S. 587-603, 30 L. 532, BORER v. CHAPMAN.
Syl. 4 (XI, 250). Executors — Nonresident creditor of decedent
Approved in Security Trust Co. v. Dent, 104 Fed. 386, holding
Gen. Stat. Minn. 1894, §§ 4509-4511, 4514, 4517, 4523, relating to time
within which claims against decedent shall be presented, does de-
prive Federal court of jurisdiction of action by nonresident creditor
against 'estate on claim not presented; dissenting opinion in Wahl v.
Franz, 100 Fed. 696, 698, majority holding where under Arkansas
statute appeal from Probate Court judgment sustaining will Is tried
de novo, such appeal not suit of civil nature at law or in equity
within judiciary act of 1888, S§ 1, 2.
Distinguished in M'Pherson v. Mississippi Valley Trust Co., 122
Fed. 374, holding Federal court bound by State decision with re-
spect to descent of property of intestate which was within juris-
diction of State courts.
Syl. 5 (XI, 250). Federal equity jurisdiction unaffected by State
law.
Approved in dissenting opinion in Wahl v. Franz, 100 Fed. 697,
majority holding where under Arlsansas statute appeal from I*robate
Court judgment sustaining will is tried de novo, such appeal not
suit of civil nature at law or in equity within judiciary act of 1888,
SS 1, 2.
Syl. 6 (XI, 251). Federal court's seizure of property in State
custody.
Approved in Hale v. Tyler, 115 Fed. 836, holding Federal court
has jurisdiction of suit by nonresident creditor of decedent to set
aside fraudulent conveyance made by decedent in his lifetime,
notwithstanding pendency of probate proceedings, where Probate
Court has made no order to sell such realty; Hale v. Coffin, 114 Fed.
574, 575, 576, holding where administration of estate has been com-
pleted by Probate Court and property has been distributed and
passed beyond jurisdiction, Federal court has jurisdiction of pro-
ceeding in equity to subject such property in hands of distributee
to decedent's debt; United States v. Elsenbels, 112 Fed. 197, hold-
ing where proceedings commenced by government In Federal court
and process Issued but not served on defendant until after summons
tferved on him in action subsequently commenced in State court
119 U. B. 604-624 Notes on U. 8. Reports. 896
by third person to recover Interest in same land involved in Federal
suit. State court had prior jurisdiction; Jordan v. Taylor, 98 Fed.
646, holding Federal court cannot during probate of estate enter-
tain bill in equity by cestui que trust under trust fund comprising
general residuary estate of testator to set aside probate sale of
stoclis.
Syl. 7 (XI, 251). Limitation against judgment runs from entry.
Approved in Hale v. Coffin, 114 Fed. 580, holding Minnesota decree
laying assessment on stockholders of insolvent corporation cannot
be enforced by receiver against heirs of Maine stockholder by suit
brought more than one year after making assessment, as it la barred
by Maine statute.
119 U. S. 604-608. Not cited.
119 U. S. 608-613. 30 L. 604, IRON MT.. ETC., BY. v. JOHNSON.
Syl. 1 (XI, 251). Recovery by one forcibly dispossessed.
Approved in Central of Georgia Ry. Co. v. Mayor, etc. 110 Fed.
872, holding where railroad has a lawfully acquired poesessioii of
terminal facilities under city grant and is In possession under dalni
of right, an ordinance declaring rights of company under grant
forfeited and directing mayor to use police in taking possession of
property deprives railroad of property without due process.
119 U. S. 613-615, 30 L. 506, BX PARTS RALSTON.
(XI, 252). Miscellaneous.
Cited In Highland Boy Gold Min. Co. v. Strlckley, 116 Fed. 855,
to point that judgment at law cannot be reviewed by appeal nor
equity decree challenged by writ of error.
119 U. S. 615-624, 30 L. 519, CHICAGO, BTO., RY. v. WIGGINS
FERRY CO.
Syl. 1 (XI. 252). Full faith and credit.
Approved In Eastern Bldg. & Loan Assn. t. Ebaugh, 185 U. S. 121,
46 L. 833, 22 Sup. Ct. 509, holding finding of fact by State trial
court as to law of another State and its application under decisions
of courts of that State is binding on Federal Supreme Court on
error to Supreme Court of former State which decided that such
finding of trial court was conclusive; Gill v. EJverman, 94 Tex. 214,
59 S. W. 532, holding in absence of proof, appointment by Kentucky
courts as guardian will not be taken as creating guardianship of
estate.
Syl. 2 (XI, 252). Judicial notice of laws of other States.
Approved in Eastern Bldg., etc., Assn. v. Williamson, 189 XT. 8.
125, 128, 23 Sup. Ct. 529, 530, 47 L. 739, 740, holding defense that
absolute promise contained in certificate of stock issued by New
York building association, to mature its shares In specified time, was
ultra vires of corporation, not available in action on such promise
897 Notes on U. S. Reports. 119 U. S. 625-663
by shareholder who has in good faith fully performed his part of
contract; New York Life Ins. Co. v. Orlopp, 25 Tex. Civ. 287, 61 S.
W. 338, holding where statute of another State governing contract
has received any peculiar construction by courts of such State,
which is relied on in courts of State, such construction must be
pleaded and proved.
Syl. 3 (XI, 253). Supreme Court's judicial notice of State laws.
Approved in Goodyear Shoe Machinery Co. v. Dancel, 119 Fed.
683, holding under contract by which assignee of patent agreed to
pay certain annuity to assignor while such patent remains in force,
right to such payments does not cease on death of assignor.
119 U. S. 625-630, 30 L. 501. COPE v. VALLBTTB DRYDOCK CO.
Syl. 1 (XI, 253). Salvage of floating drydock.
Approved in The Warfleld, 120 Fed. 847, holding neither drydock
fitted into piers to which it is held by cleats, so that it has only
vertical motion, nor steamer therein for repairs, is vessel in
navigable waters, so as to give maritime lien for tort therein;
dissenting opinion in The Robert W. Parsons, 191 U. S. 40, majority
holding Erie canal though wholly within New York State is navi-
gable water of United States within scope of exclusive admiralty
jurisdiction.
Distinguished in The Robert W. Parsons, 191 U. S. 30, 84, holding
Erie canal, though wholly within New York State, is navigable
water of United States within scope of exclusive admiralty Juris-
diction.
119 U. S. 631-637, 30 L. 507, SHARP v. RIESSNER.
SyL 1 (XI, 253). Patent for improvements.
Approved in Henry Huber Co. v. J. L. Mott Iron Works, 113 Fed.
004, holding Beaumont patent No. 555,033, limited by prior art and
not infringed.
119 U. S. 637-643, 30 L. 511, BARRELL v. TILTON.
Syl. 4 (XI, 254). CThanging judgment during term.
Approved in United States v. Llnnier, 125 Fed. 86, holding where
verdict of guilty of murder in first degree as charged was set aside
and new trial granted on ground that under , evidence defendant
was guilty of manslaughter only, court could at same term, on plea
of guilty of manslaughter, render judgment thereon.
119 U. S. 643-651. Not cited.
119 U. S. 652-663, 30 L. 544, IVES v. SARGENT.
Syl. 1 (XI, 254). Patents — Excuse for delay in reissue.
Approved in United Blue Flame Oil Stove Co. v. Glazier, 119 Fed.
160, holding delay of more than five years before applying for re-
issue on ground of inadvertence, accident, or mistake, invalidates
Vol. n— 57
120 U. S. 1-19 Notes on U. 8. Report!. 806
reissue, unless excused by special circumstances; Pelser y. Meyberg,
'9? Fed. 970, bolding where original patent is absolutely invalid nn-
excused delay of twelve years in applying for reissue constitutes
such laches as will invalidate reissue.
119 U. S. 664-679, 80 L. 539, HARTSHORN v. SAGINAW BARREL
CO.
Syl. 1 (XI, 254). Patents — Acquiescence in error precludes re-
issue.
•Distinguished in Grown Cork, etc., Co. v. Aluminum, etc., Co., 106
Fed. 858, holding delay of seven months after issuance of original
patent before applying for Painter reissue No. 11,685, for bottle
stopper, does not invalidate reissue as against patent for another
device granted in meantime.
110 jQ. S. 680-695, 30 L. 523, ENFIELD v. JORDAN.
Syl. 2 (XI, 255). Towns and incorporated villages are same.
Approved in People v. Pike, 197 IlL 452, 64 N. E. 394, holding
where on organization of village of Campbell Hill, statute in regard
organization of villages was followed, fact that in some of proceed-
ings it was designated as town did not invalidate organization;
Phillips V. Town of Scales Mound, 195 111. 358, 360, 63 N. E. 182,
holding Rev. Stat, chap. 21, i 5, gives incorporated town same right
to condemn land for cemetery purposes as village; State v. Lam-
mers, 118 Wis. 413, 89 N. W. 502, upholding Rev. Stat 1896, f 6M,
relative to incorporation of towns.
CXX UNITED STATES.
120 U. S. 1-19, 30 L. 565. WILDENHEIS'S (}ASE.
Syl. 1 (XI, 257). Local Jurisdiction — Crimes of foreign seamen.
Approved in Patterson v. Bark Eudora, 190 U. S. 177, 23 Sup.
Ct 824, 47 L. 1007, holding that United States statute preventing
advance payment to sailors applies to contracts of foreign seamen
in United States waters; The Kestor, 110 Fed. 447, holding 30 Stat
755, prohibiting prepayment of seamen's wages, extended to Briti^
seamen on British ships in American waters.
Syl. 2 (XI, 257). Treaty restrictions on habeas corpus construed.
Approved in Davis v. Burke, 179 U. S. 402, 45 L. 251, 21 Sup. C5t
211, holding Federal court in habeas corpus will not determine
validity of information where no such question was raised in State
court
889 Notes on U. S. Reports. 120 U. 8. 20-63
120 U. S. 20-40, 80 L. 673, ALLEN ▼. ST. LOUIS BANK.
SyL 2 (XI, 258). Cannot allege unreasonable usage unknown
defendant
Approved in Geyser, etc., Min. Go. y. Stark, 106 Fed. 664, brokers'
custom unknown to defendant of holding and transferring in own
names without notice of real owners was not binding.
SyL 3 (XI, 258). Factor for sale cannot pledge goods.
Approved in Geyser, etc., Min. Co. v. Starlc, 106 Fed. 662, holding
that certificates hold by " Stark, trustee " are trust property which
he cannot sell; Halsey y. Bird, 99 Fed. 528, holding instructions
erroneous which allowed tobacco commission merchant to pledge
as own tobacco even to extent of advances made thereon.
Syl. 6 (XI, 258). Judgment on special findings without retrial.
Approved in Churchill y. Buck, 102 Fed. 44, holding where facts
found by trial court do not support Judgment for plaintiff on re-
versal, Judgment for defendant instead of new trial will be directed.
120 U. S. 41-46, 30 L. 584, NEMAHA CO. v. FRANK.
Syl. 2 (XI, 259). County liable on precinct bonds.
Approved in Clapp v. Otoe County, 104 Fed. 479, holding under
Nebraska statute bonds issued by county commissioners at in-
stance of precinct voters are obligation of county.
120 U. S. 46-51, 30 L. 557, UNITED STATES v. SYMONDS.
SyL 1 (XI, 259). Secretary cannot reduce navy officer's pay.
Approved in Glavey v. United States, 182 U. S. 605. 45 L. 1252, 21
Sup. Ct 894, holding special Inspector of foreign vessels entitled to
statutory pay regardless of secretary's prohibition.
120 U. S. 52-59, 30 L. 559, UNITED STATES v. PHILBRICK.
Syl. 3 (XI, 260). Contemporary executive statutory construction.
Approved in United States v. Flnnell, 185 U. S. 244, 46 L. 893,
22 Sup. Ct. 636, holding, in accordance with practice of treasury
department, that services rendered by court clerk in Judge's absence
were valid since court was always open; Hawley v. DlUer, 178
U. S. 488, 44 L. 1162, 20 Sup. Ct. 990, holding that view of interior
department that holders under pre-emption laws before patent
issued were not bona fide purchasers should be followed; M'Fadden
v. Mountain View Min. & Mill. Co., 97 Fed. 677, holding in accord-
ance with understanding of land department that act of 1892, open-
ing Colvllle reservation, did not of Itself authorize settlement.
Distinguished in Falrbank v. United States, 181 U. S. 308, 309, 45
L. 873, 21 Sup. Ct 659, holding where meaning is clear, con-
temporary executive construction not consulted.
120 U. S. 60-63. Not cited.
120 U. S. 64-72 Notes on U. S. Reports. 900
120 U. S. 64-68, 30 L. 563. TAMMANY WATER-WORKS ▼. NBW
ORLEANS WATER -WORKS.
Syl. 1 (XI, 261). Constitution witbdrawlng charter prlvilegea
impairs contracts.
Approved in Detroit ▼. Detroit Citizens* Street R. R. Co., 1S4
U. S. 382, 46 L. 606, 22 Sup. Ct 416, holding that contract made
between city and street railway corporation, under legislative aa-
thority, was valid contract which city could not validate by raising
stipulated fares; Boise City Artesian Hot, etc.. Cold Water Co. t.
Boise City, 123 Fed. 235, holding permission to lay pipes for no
fixed period was mere license revocable by city; Mercantile Trustt
etc., Co. V. Collins Park, etc., Co., 09 Fed. 819, holding suit to en-
Join city ordinance granting railway franchise, which has force of
State law within contract clause of Constitution, on ground that
It Impairs prior contract Involves Federal question; dissenting
opinion in B'reeport Water Co. v. Freeport, 180 U. S. 608, 45 L. 692,
21 Sup. Ct 501, majority holding that municipalities* may alt^
exclusive water rates unless positive contract with corporation
prevents.
Distinguished In Knozville y. Knozville W. W. Co., 107 Tenn. 679,
64 S. W. 1083, holding agreement under act conferring power to fix
water rates but not to interfere with police power, not a contract
violated by change of rates; Clarksburg, etc., Co. y. Clarksburg,
47 W. Va. 745, 35 S. E. 996, holding that grant of exclusive franchise
to lighting corporation by city without charter or statutory author-
ity was not binding, hence not impaired by conflicting grant
Syl. 2 (XI, 261). Pipe privileges franchise grantable to corpo-
ration.
Approved In Los Angeles v. Los Angeles City Water Co., 177 U. S.
575, 44 L. 894, 20 Sup. Ct 742, holding that contract for care and
maintenance of water-works was valid as franchise, which might be
granted or assigned to a corporation.
120 U. S. 68-72, 30 L. 578, HAYES v. MISSOURL
Syl. 1 (XI, 262). Grading cities ha to peremptory challenges.
Approved in Connolly v. Union Sewer Pipe Co., 184 U. S. 559, 46
L. 690, 22 Sup. Ct 439, holding statute providing for punishment of
certain combinations and exempting from Its operation agricul-
tural producers and live-stock raisers an unconstitutional discrim-
ination; Union Co. Nat Bank v. Ozan Lumber Co., 127 Fed. 211,
holding unconstitutional Ark. act April 23, 1891, ri^quiring
notes taken In payment for patents to follow printed form stating
consideration, excepting merchants dealing in patent things; Mexi-
can Nat R. R. Co. V. Jackson, 118 Fed. 552, upholding act regulat-
ing rights and liabilities of railway operators and operatives in case
of injury of latter; Hawkins v. Roberts, 122 Ala. 148, 27 So. 332,
901 Notes on U. S. Reports. 120 U. S. 73-^
upholding Alabama act abolishing court of county commissioners
for Jefferson county; Parks v. State, 159 Ind. 225, 64 N. E. 867-869,
holding act of 1901, making unlawful practice of medicine without
license, not in contravention of Fourteenth Amendment; State v.
Smith, 158 Ind. 556, 63 N. E. 30, holding act providing for deduc-
tion from taxable value of land of mortgage indebtedness thereon
not unconstitutional as unequal taxation; Andrus v. Insurance
Assn., 168 Mo. 163, 67 S. W. 585, holding Missouri practice allowing
plaintiff suing on insurance policy to prove without alleging waiver
of conditions not against Fourteenth Amendment, preventing dis-
crimination.
Syl. 2 (XI, 263). Peremptory challenge — Right to reject Jurors.
Approved in United States v. Davis, 103 Fed. 467, holding dis-
missal by court of Juror on ground of illness no infringement upon
right of peremptory challenge and no cause for new ti'lal; Knights
of Pythias v. Steele, 108 Tenn. 628, 69 S. W. 337, holding refusal by
court to allow peremptory challenge to satisfactory Juror after
challenges exhausted not error.
120 U. S. 73-78, 30 L. 586, FORSYTH v. DOOLITTIB.
Syl. 3 (XI, 264). Value land foreclosed evidencing attorney's
services.
Approved in Graves v. Sanders, 125 Fed. 692, holding evidence of
yalue of mine admissible to determine value of attorney's services
in examining articles of incorporation of mining company.
120 U. S. 78-82, 30 L. 580, HUNTINGTON v. SAUNDERS.
SyL 1 (XI, 264). Equity — Bill demurrable not seeking discovery.
Approved in Tlllinghast v. Chace, 121 Fed. 436, holding waiver
of answer of defendant under oath fatal to bill; Excelsior Wooden
Pipe Co. V. City of Seattle, 117 Fed. 144, holding bill for infringe-
ment of patent insufficient where it contained prayer for relief but
propounded no interrogatories.
Distinguished in Hudson v. Wood, 119 U. S. 776, holding creditor's
bill sufficient as a bill of discovery although it waived answers under
oath; Bigby v. Warnock, 115 Ga. 391, 41 S. E. 624, holding wife of
fraudulent grantor liable to husband's creditors for value of prop-
erty received and disallowing set-off of her debt.
120 U. S. 82-^86, 30 L. 605, HEINEMANN v. ARTHUR.
Syl. 1 (XI, 264). Computing value from date of invoice.
Approved in united States v. Lucius Beebe, etc.. Sons, 122 Fed.
768, holding 28 Stat. 552, chap. 349, authorizing reliquidation of
foreign entry due to fluctuation of silver since entry, not ai^ly to
fluctuation of foreign money.
120 U. 8. 86-89. Not cited.
120 U. 8. 89-106 Notes on U. 8. Reports. 902
120 U. 8. 89-97, 80 L. 601, UNITBD 8TATB8 ▼. PABKBB.
Syl. 1 (XI, 265). Defendant's motion dismissal showing settlement
bars.
Approved in Jacobs v. Marks, 182 U. 8. 593, 45 L. 1247, 21 8np.
Ct. 869, holding Judgment of dismissal based on court's finding of
law and fact that parties had settled cause of action, a judgment
upon merits; Pethtel v. McCulloch, 49 W. Va. 522, 39 S. B. 200, hold-
ing order of "dismissal agreed" a bar between all parties on
original cause of action unless parties stipulate for another action.
Distinguished in Rlncon Water, etc.. Go. ▼. Anaheim Union Water
Co., 115 Fed. 549, holding under 2 Cal. Code Civ. Proc, f 581, dis-
missal entered on defendant's motion, pursuant to agreement of
parties, is not Judgment on merits.
SyL 3 (XI, 265). Bzplalning nonsuit and retraxit
Approved in Wilson v. Smith, 117 Fed. 710, holding nonsuit a
mere abandonment of action and retraxit a record acknowledg-
ment of abandonment
120 U. 8. 97-102, 30 L. 588, HUNTINGTON ▼. WOBTHBN.
Syl. 2 (XI, 265). Ministerial officers may disregard unconstitn-
tlonal statute.
Approved in Smith v. Indiana, 191 U. 8. 148, 24 Sup. Ct 51« hold-
ing that county auditor had power to refuse to enforce uncon-
stitutional statute exempting from taxation.
Syl. 3 (XI, 265). Separable constitutional portions of statute
good.
Approved in W. O. Peacock & Co. v. Pratt, 121 Fed. 778, hold-
ing that provisions of tax law authorizing unreasonable seizure and
requiring incriminating evidence do not Invalidate income tax law;
Kimball v. City of Cedar Rapids, 100 Fed. 803, upholding provisions
of contract fixing water rates and rejecting provisions granting
exclusive privileges to water company; Iowa v. San tee, 111 Iowa,
8, 82 N. W. 447, upholding Iowa Code, i 2508, regulating use of
petroleum but rejecting as unconstitutional the Code exception
favoring Welsbach lamps.
(XI, 265). Miscellaneous.
Cited In New York, etc., R. R. Co. v. McKeon, 189 U. 8. 509, 23
Sup. Ct. 853, 47 L. 922, holding temporary placing tracks on plain-
tifiTs side of highway when compelled by law to reduce grade
crossing a taking of property.
120 U. S. 103-105, 30 L. 593, KANSAS ENDOWMENT ASSN. v.
KANSAS.
Syl. 1 (XI, 266). Federal question decided confers Federal Juris-
diction.
Approved in Jacobi ▼. Alabama, 187 U. S. 135, 23 Sup. Ct 48, 47 L.
903 Notes on U. S. Reports. 120 U. 8. 106-100
108, denying Federal jurisdiction on ground that objection to ad-
mission of evidence as against Fourteenth Amendment was not
raised In trial court
120 U. S. 105-126. Not cited.
120 U. 8. 126-180, 30 L. 594, UNITED 8TATB8 v. 8AUNDER8.
Syl. 1 (XI, 267). Double pay — President's and committee's clerk.
Approved In Lovering v. United States, 117 Fed. 566, allowing
double pay to deputy before United States commissioners who had
same day served as bailiff before Federal court; Seller v. State, 160
Ind. 611, 65 N. E. 924, allowing $3 per diem compensation under
Acts 1891, p. 199, i 114, to county officers appoihted on board of
review as well as to freeholders thereon.
Distinguished In Swift v. United States, 128 Fed. 766, 767, hold-
ing under Rev. Stat, I 1765, bailiffs attending court as deputy
marshals for which they received pay not entitled to pay also aa
bailiff.
120 U. 8. 130-140, 30 L. 569, KIRBY v. LAKE SHORE, ETC., B. B.
SyL 2 (XI, 267). Discovery of fraud starts statute.
Distinguished in Frismuth v. Farmers', etc., Trust Co., 107 Fed.
174, holding suit against trustee-mortgagee of railway property
for negligence was suit for breach of trust not affected by allega-
tions of fraud to preserve statute.
Syl. 3 (XI, 268). Equitable jurisdiction to adjust complicated
accounts.
Distinguished In Randolph v. Tandy, 98 Fed. 940, upholding Fed-
eral jurisdiction of case of accounting between garnishee and
debtor, where accounts were not complicated.
SyL 5 (XI, 268). Laches bars extension of Statute Limitations.
Approved in Kessler v. Emsley Co., 123 Fed. 662, barring action
to recover land brought within State statutory period because of
laches In suit to set aside conveyance on ground of fraud.
120 U. 8. 141-160, 30 L. 614, ORESCENT LIVE STOCK CO. v.
BUTCHERS' UNION, ETC., CO.
Syl. 1 (XI, 268). Recognition Federal judgment raises Federal
question.
Approved in Deposit Bank v. Franlcfort, 191 U. 8. 516, 24 Sup.
Ct 159, holding whether Federal judgment has been given due
force in State court is Federal question, reviewable by Supreme
Court; Tulloclt v. Mulvane, 184 U. S. 507. 508, 46 L. 664, 22 Sup. Ct
376, holding claim of immunity from liability for attorney's fees
under injunction bond given in Federal court raises Federal ques-
tion; Hancocic Nat Banlt v. Famum, 176 U. S. 645, 44 L. 621, 20
Sup. Ct 508, holding contention that Rhode Island court denied
120 U. S. 160-183 Notes on U. S. Reports. 904
judgment of Kansas court, effect given by Rev. Stat, f 905, in-
volved Federal question; James v. Central Trust Ck>., 98 Fed. 491,
holding Circuit Court having decreed foreclosure of railway mort-
gage has Jurisdiction to enjoin action in State court brought in dis-
regard of such decree.
Syl. 4 (XI, 269). Plaintiff's judgment reversed evidences probable
cause.
Approved in Deposit Bank y. Frankfort, 191 U. S. 611, 515, 24
Sup. Ct 158, holding binding decree of Federal court based on fold-
ing of State court, conforming collection of taxes, though original
holding repudiated by State and Federal courts; Blackman v. West
Jersey, etc., Ry., 126 Fed. 253, holding record of plea of guilty and
fine on charge of not paying fare conclusive evidence of railroad's
probable cause in arresting plaintiff; Georgia Loan, etc.. Trust Co.
V. Johnston, 116 6a. 633, 43 S. E. 29, holding Judgment for plaintiff
on distress warrant, though reversed, conclusive evidence of proba-
ble cause for institution of action, unless Judgment obtained by
fraud; Swepson v. Davis, 109 Tenn. 108, 70 S. W. 67, holding in
action for malicious prosecution court cannot go behind final Judg-
ment for plaintiff to see who succeeded. See 93 Am. St. Rep. 460,
note.
Syl. 5 (XI, 270). Circuit and State courts Judgments equaL
Approved in Hancock Nat Bank ▼. Famum, 176 U. S. 645, 44 L.
621, 20 Sup. Ct 508, holding Judgment of Circuit Court in Kansas
of equal dijrnity with decisions of State courts of equal authority.
Distinguislied in Railroad v. Bentz, 108 Tenn. 675, 91 Am. St
Rep. 766, 69 S. W. 319, holding matter decided by District Court
on appeal followed by plaintiff, nonsuit not res adjudlcata, barring
second action in different State.
120 U. S. 160-169. Not cited.
120 U. S. 169-183, 30 L. 627, UNITED STATES v. HILL.
Syl. 3 (XI, 271). Executive construction of ambiguous statutes
weiglity.
Approved in In re Brodie, 128 Fed. 672, holding sentence of court-
martial determining that court-martial cannot ascertain local law
not open to collateral attack; Nunn v. Gerst Brewing Co., 99 Fed.
942, holding construction by treasury department of Rev. Stat,
§ 3341, regulating revenue on beer, controlling in case of doubt
Distinguished in Fairbank v. United States, 181 U. S. 308, 310,
45 L. 873. 21 Sup. Gt 658, 659, holding practical construction of
constitutional provision by legislative action entitled to no force
except in cases of doubt; Board of County Comrs. v. Dickey, 86
Minn. 342. 90 N. W. 780, holding clerk of court cannot retain fees
received as clerk on ground of executive construction that court
acquiesced in his retention of fees.
U05 Notes on U. S. Reports. 120 U. S. 183-197
120 U. S. 18:^197, 30 L. 044. PHCENIX LIFE INS. CO. v. RADDEN.
Syl. 1 (XI, 272). Answers in application construed as representa-
tions.
Approved in McGlain v. Provident Sav. Life Assur. Soc, 110 Fed.
87, holding answers stipulated by blanl^ to be full, true, and com-
plete, and warranted by applicant as true, mere representations
avoiding policy only on bad faith; Fidelity Mut. Life Assn. v. Jef-
fords, 107 Fed. 408, holding applicant's answer that he was free
from any and all diseases a representation and not warranty
against unknown diseases; Hubbard v. Mutual Reserve Fund Life
Assn., 100 Fed. 721, holding as warrantees answers warranted in
application as full, complete, and true; Callies v. Modern Woodmen,
98 Mo. App. 529, 72 S. W. 715, holding where questions of brothers'
deaths not asked in terms, answer giving other facts concerning
them not warranty.
Distinguished in dissenting opinion in McGannon v. Fire Ins. Co.,
127 Mich. 650, 87 N. W. 66, 89 Am. St Rep. 512, majority holding
insured's agreement in application to keep watchman not a war-
ranty.
Syl. 2 (XI, 272). Substantial misrepresentations relied upon avoid
policy.
Approved in Northern Assur. Co. v. Grand View Bldg. Assn., 183
U. S. 348, 46 L. 231, 22 Sup. Ct 148, holding condition of no other
insurance not waived by knowledge of Insurer's agent where
waiver had to be written upon policy; Nelson v. Nederland L. I. Co.,
110 Iowa, 602, 81 N. W. 807, holding policy stipulating it should
be void if applicant's statements were untrue avoided by false
statements that applicant required no medical assistance; Jeffrey
V. Golden Cross, 97 Me. 179, 53 Atl. 1103, holding answers to ques-
tions not substantially true avoid policy; dissenting opinion in Bank
V. Life Ins. Co., 52 La. Ann. 45, 26 So. 808, majority holding insurer
estopped to show falsification by applicant, where policy was taken
for third party, and where insurer knew true facts. See 89 Am. St
Rep. 512, note.
Distinguished in Grabbs v. Farmers', etc., Ins. Co., 125 N. C. 397,
84 S. E. 505, holding knowledge of insurer or agents of conditional
ownership in insured waives the defense.
Syl. 3 (XI, 272). Issuing policy waives failure to answer.
Approved in Supreme Lodge Knights of Pythias v. Wellenvoss,
119 Fed. 675, holding acceptance of premiums on endowment fund
by Knights of Pythias after recommended suspension of member
waived disability and effectuated policy; Dimick v. Metropolitan
Life Ins. Co., 67 N. J. L. 376, 51 Atl. 696, holding issuance oi policy
waived failure to answer question concerning insured's pension.
Distinguished in Home Life Ins. Co. v. Myers, 112 Fed. 852, hold-
120 U. S. 108-214 Notes on U. 8. Reports. 906
ing acceptance of false answer by insurer no waiver of require-
ment for accurate Information.
Syl. 4 (XI, 273). Exceptions embodying entire charge condemned. ,
Approved in South Penn Oil Go. y. Latshaw, 111 Fed. 699, holding
refusal of instruction not reviewable unless exceptions contain
evidence showing instructions applicable; Sternenberg v. Mailhoe,
99 Fed. 46, holding bill of exceptions defective for failure to state
sufficient evidence to show applicability of instructions refused or
given; Frank Waterhouse v. Roclc Island Alaska Biin. Ck>., 97 Fed.
471, condemning bill of exceptions comprising the whole record;
dissenting opinion in Stubbs v. United States, 104 Fed. 993, ma-
jority holding erroneous an instruction based on- mistaken law,
although record did not show that it contained all evidence.
Syl. 5 (XI, 273). Accepting premium waives known broken con-
ditions.
Approved in Milkman v. United Mut Ins. Co., 20 R. L 11, 12,
36 Atl. 1121, holding acceptance of premium after loss, with knowl-
edge of breach of warranty to maintain sprinkler, waives breach.
Syl. 6 (XI, 273). Representations not made consideration by state-
ment
Approved in Home Life Ins. Go. v. Fisher, 188 U. S. 729, 23 Sup.
Gt. 382, 47 L. 669, holding declarations of insured to medical ex-
aminer not made warranties by provisions of application, t«flV|t?g
them part of consideration.
120 U. S. 198-206, 30 L. 649, BOFFINGER v. TURGIS.
Syl. 1 (XI, 274). Surety discharged by payment abandoning
appeal.
Approved in In re Freeman, 117 Fed. 684, holding accord and
satisfaction may be pleaded as defense to Judgment, though it be
a debt of specialty and record; Franklin Ins. Go. v. Villeneuve, 25
Tex. Giv. 360, 60 S. W. 1016, holding question for Jury whether
there was consideration for compromise to render it a good accord
and satisfaction.
120 U. S. 206-214, 80 L. 642, MEYERS v. BLOGK.
Syl. 1 (XI, 274). Equitable discretion in granting injunction.
Approved In Briggs v. Neal, 120 Fed. 228, holding requirement of
bond as condition of granting preliminary injunction within dis-
cretion of Gircuit Gourt; West v. East Goast Gedar Go., 113 Fed.
744, holding equity having required injunction bond has power to
assess damages for breach; dissenting opinion in TuUock v. Mul-
vane, 184 U. S. 521, 46 L. 669, 22 Sup. Gt 381, majority holding
question whether any liability arose on Injunctloii bond given by
Federal court raised Federal question.
90T
Notea on U. S. Reports. 120 D. S. 214-240
Syl. S (XI, 274). State's Jurisdiction over Injunction bond cttsea.
Approved In Tullock T. Mulvane, 184 V. S. SaS, 4S L. 064, 22 Sup.
CL 376, holding question of liability on Injunction bond given by
Federal court be/ore State court raises Federal question; Files v.
Davis, 118 Fed. 468, holding action on attachment bond executed
In suit pending in national court presents Federal question; dlS'
senting opinion In MacFarlane v. Garrett, 3 Pennew. (Del.) 44,
majority holding court may In discretion permit withdrawal of
pleas after Issues Joined and permit special demurrer.
120 U. S. 214-222. Not cited.
120 n. S. 223, 224, 30 L. 623, EVERHART v. HDNT8VILLB COIv
LEGE.
Syl. 1 (XI, 275). Avennent of cltlsenshlp necessary (or Juris-
diction.
Approved In Thomas v. National Bank, 106 Fed. 43S, holding
averment of residence of national bank not equivalent to averment
of citizenship.
120 U. 8. 225-227. 30 L. 823, KING BRIDGE CO. v. OTOE CO.
Syl. 1 (XI, 275). Presuming Circuit Court's lack of Jurisdiction.
Approved In Continental Nat. Bank v. Buford, IDl U. S. 120,
holding Jurisdiction of Supreme Court to review, and of Circuit
Court, must be considered where question arises on face of record;
Colburn v. Hill, 101 Fed. 507, holding creditors' suit Indivisible, re-
manding cause to State court on ground of no diversity of citizen-
ship, codefendants and creditors being citizens of same State.
Syl. 2 (XI, 273). Appeal — Jurisdiction considered tbougb not
raised.
Approved In Grent Southern Fire Proof Hotel Co. v. Jones. 177
U. S. 454, 41 L. 844, 20 Sup. Ct 692. holding citizenship of members
of Pennsylvania partnership must be alleged In suit brought In
Circuit Court on ground of adverse citizenship; dissenting opinion
In Giles V. Harris, 189 D. S. 500. 23 Sup. Ct 645. 47 L. 917, ma-
jority holding failure to aver Jurisdictional facts before Circuit
Court Dot available as defense on appeal to Supreme Court
(XI, 275). Miscellaneous.
Distinguished In Cross v. Board of Comrs., 9 N. Mex. 415, 54
Pac. 882. upholding ruling sustaining demurrer to complaint on war-
rant, where unexplained delay of nine years and no offer to amend.
120 U. S. 227-240. 30 L. G34, UNITED STATES v. PACIFIC R. R.
Syl. 1 (XI, 278). Military destruction property, government not
responsible.
I Approved In Montoya v. United States, 180 D. S. 265. 45 L. 622,
B 21 Sup. Ct 368, holding government not liable for destruction of
I property by Indians hostile to United States.
1
120 U. S. 241-287 Notes on U. S. Reporta. 906
S^. 2 (XI, 276). Military works not chargeable to landowner.
Approved in Neill v. Trans-Atlantic, etc., Co., 89 Mo. App. 64d,
bolding lien of void tax bill Issued for building a sewer which was
not built in time limit not enforceable against property.
120 U. S. 241-249, 30 L. 024, QUINCY ▼. STEEL.
Syl. 1 (XI, 277). Circuit Court denying nonresident stockholder's
bill.
Approved in Corbus ▼. Gold Mining Co., 187 U. 8. 462, 23 Sup.
Ct 100, 47 L. 259, dismissing appeal of nonresident stockholder fb
restrain payment of tax where no sufficient effort was made to
move corporation as required by equity rule 94; Elkins ▼. City of
Chicago, 119 Fed. 959, holding formal demand on, and refusal by
directors, with no allegation of noncolluslon, Insufficient compliance
with rule 94, and conferred no Federal Jurisdiction.
Distinguished in New Albany Water- Works ▼. LouisYlUe Banking
Co., 122 Fed. 778, holding equity rule 94 inapplicable where major-
ity of stockholders oppose bilL
120 U. S. 249-255. Not cited.
120 U. S. 256-260, 30 L. 639, INDIANAPOLIS ROLLING-MILL ▼.
ST. LOUIS, ETC., R. R.
Syl. 1 (XI, 277). Corporation president orally terminates parol
contracts.
Approved in Kent v. Addlcks, 126 Fed. 117, holding evidence ad-
missible of other similar transactions to show authority of agent
to sell principal's right to vend and manufacture acetylene gas;
Van Santvoord v. Smith, 79 Minn. 321, 82 N. W. 644, upholding
subsequent alteration by parol of parol contract entered into and
altered by lawfully authorized general agent
Syl. 2 (XI, 277). Ratification of agent's contract by acquiescence.
Approved in Egbert v. Sun Co., 126 Fed. 571, holding corporation
paying for services of plaintiff ratified act of president in employ-
ing him, entitling latter to stipulated sum, $5,000, on dismissal;
Alaska, etc., Chicago Commercial Co. v. Solner, 123 Fed. 860, hold-
ing corporate acquiescence in agent's contract for year equivalent
to ratification.
120 U. S. 260-274. Not cited.
120 U. S. 274-287, 30 L. 658. IN RE SNOW.
Syl. 1 (XI, 279). Appeal on refusal of habeas corpus.
See 87 Am. St Rep. 172, note.
Syl. 2 (XI, 279). Bigamy by act 1882, continuous offense.
See notes, 92 Am. St Rep. 136; 79 Am. St Rep. 379.
909 Notes on U. S. Reports. 120 U. S. 287-318
Syl. 4 (XI, 279). Repetition crime charged is new offense.
Approved in Bliss v. United States, 105 Fed. 509, holding counter-
feiting similar notes from same plate at different times distinct
offenses.
Syl. 5 (XI, 279). Refusing double punishment for continuous
offense.
Approved in Cawein v. Commonwealth, 110 Ky. 278, 66 S. W.
276, holding conviction under indictment for keeping poolroom
barred other indictments covering different periods of time. See
notes, 92 Am. St. Rep. 135, 136, 147.
Distinguished in Ex parte De Bara, 179 U. S. 821, 45 L. 210, 21
Sup. Gt. 112, holding fraudulent use of mails under U. S. Rev.
Stat, i 5480, distinct acts separately punishable.
120 U. S. 287-303, 30 L. 595, MEMPHIS, ETC., R. R. ▼. DOW.
Syl. 1 (XI, 280). Subrogation an equitable doctrine.
Approved in PoUock v. Wright, 15 S. Dak. 142, 8T N. W. 686,
holding volunteer paying another's mortgage not entitled to sub-
rogation.
Syl. 2 (XI, 280). Railway bonds not against Arkansas Con-
stitution.
Approved in William Firth Go. ▼. South Carolina Loan, etc.. Trust
Co., 122 Fed. 574, upholding under Const S. C, art 9, i 10, pledge
of bonds at 75 per cent value to purchase machinery; Lake St £1.
Ry. Go. V. Ziegler, 99 Fed. 126, upholding issue of stock by rail-
road for construction of road under Const 111., art 11, i 13, pre-
venting fictitious issues; Northside Ry. v. Worthington, 88 Tex.
573, 30 S. W. 1058, upholding sale of bonds at 95 per cent par value
under Const Tex., art 12, i 6, preventing bond issues save for
money paid. See 87 Am. St Rep. 860, note.
Syl. 8 (XI, 281). Paying mortgagee subrogated to prior lien.
Approved in Columbus, S. & H. R. R. Co. Appeals, 109 Fed.
211, holding purchasers of railway property to prevent foreclosure,
under agreement assuming debts, preserve lien as against Junior
mortgagees.
SyL 4 (XI, 281). Mortgagee paying lien entitled to Interest
Approved in Read v. Memphis G. Co., 107 Tenn. 439, 64 S. W. 771,
holding trustee entitled to reimbursement for expenditures protect-
ing estate.
120 U. S. 303-318, 30 L. 684, FARLEY v. KITTSON.
SyL 1 (XI, 281). Plea in equity should disclose bar.
Approved tn Miller v. Rickey, 127 Fed. 581, holding insufficient
In suit to restrain diversion of water plea not denying averment or
120 U. S. 318-^6 Notes on U. 8. Report!. '910
bill that defendants claimed right to deprive plaintiff of earlier
appropriation; Giberson y. Coolc, 124 Fed. 987, under Rev. Stat, f 723,
denying Federal court's jurisdiction where adequate remedy at law;
Miller, etc., Lux v. Riclcey, 123 Fed. 007, holding facts pleaded must
form one defense unless court grant permission to enter several
defenses; United States v. Peralta, 09 Fed. 024, holding demurrer in
equity setting up affirmative matter special pleas admitting matters
not controverted.
Distinguished in Hostetter Co. v. B. G. Lyons Co., 99 Fed. 736,
holding defect on face of bill met by demurrer not plea.
SyL 3 (XI, 282). Bill dismissed where facts pleaded true.
Distinguished in Soderberg v. Armstrong, 110 Fed. 710, holding
under equity rule 33, general replication to plea in bar does not
admit sufficiency of plea; Jones v. Hillls, 100 Fed. 356, holding
under equity rule 33, court determines sufficiency of facts in plea
found for defendant
SyL 4 (XI, 282). Setting plea for argument admits facts.
Approved in General Elec. Co. v. New England Elec, etc, Co.,
128 Fed. 739, holding setting down plea for argument in suit for
infringement of patent admits facts stated therein cessation of
manufacture; Standard Fireprooflng Co. v. Toole, 122 Fed. 651,
holding setting plea down for argument admits truth but denies
legal sufficiency of facts pleaded; Daniels v. Benedict, 97 Fed. 374,
holding replication to plea admits legal sufficiency of facts stated,
and If found true, bill dismissed.
Syl. 5 (XI, 282). At hearing matter pleaded is issue.
Approved in Eveleth v. Southern Cal. Ry. Co., 123 Fed. 838, hold-
ing on hearing on plea, replication, and proofs, truth of matters
pleaded alone In issue; Westervelt v. Library Bureau, 118 Fed. 826,
upholding defendants answer entered under equity rule 34, and
dismissing bill on plaintiff's failure to reply.
120 U. S. 318-326. Not cited.
120 U. S. 327-336, 30 L. 664, UNITED STATES v. NORTHWAY.
Syl. 2 (XI, 283). Indicting bank " president and agent"
Approved In Jewett v. United States, 100 Fed. 838, holding in-
dictment charging one as "president, director, and agent'* of na-
tional bank not duplex nor inconsistent
Syl. 3 (XI, 283). Alleging misapplication of funds sufficient
Approved in In re Grin, 112 Fed. 797, upholding complaint under
Penal Code Cal., §§ 503, 508, charging felonious approiH-iation, con-
version, and embezzlement of money intrusted to defendant; Mc-
Knight V. United States, 111 Fed. 736, holding intent to injure and
9U Notes on U. S. Reports. 120 U. S. 337-390
defraud essential allegation in indictment under Rev. Stat, I 5200;
Rieger y.- United States, 107 Fed. 926, 927, holding sufficient indict-
ment under Rev. Stat, i 5209, apprising defendant of particular
transactions and alleging acts done willfully to injure and defraud;
United States v. M'Clure, 107 Fed. 271, upholding indictment under
Rev. Stat, i 5200, charging embezzlement of funds: Breese y. United
States, 106 Fed. 688, upholding indictment charging president under
Rey. Stat, i 5209, with embezzlement of moneys, funds, and credits;
dissenting opinion In Rieger y. United States, 107 Fed. 934, majority
holding sufficient indictment describing acts charged and alleging
willfulness and intent to defraud bank.
Syl. 4 (XI, 284). Indictment charging president aiding and abet-
ting.
Approyed in Bliss y. United States, 105 Fed. 510, holding indict-
ment under chapter 52, section 1, 23 Stat. 22, charging aiding and
abetting need not allege conyictlon of principal.
120 U. S. 337-553, 30 L. 669, THE L. P. DAYTON.
Syl. 3 (XI, 285). Tug liable to tow for negligence.
Approyed in The Thomas Wilson, 124 Fed. 653, holding tug's
negligence not presumed must be shown by Injured tow.
Distinguished in In re Moran, 120 Fed. 567, holding loss of dredge
due to departure of tug not to defectiye hawsers negligently used.
120 U. S. 354-377. Not cited.
120 U. S. 377-390, 30 L. 718, SPIEDBL V. HENRIOL
Syl. 3 (XI, 287). Lapse of time bars implied trusts.
Approved in Newberger v. Wells, 51 W. Va. 633, 42 S. E. 629,
holding demurrable bill showing on face laches sufficient to bar
unless excuse be set forth; Beecher y. Foster, 51 W. Va. 617, 42 S.
E. 652, hoiding implied trust resulting from possession of trust
money in payment of debt barred by six years' delay.
Syl. 4 (XI, 287). Unexcused laches bars right of action.
Approved in Schwartz y. Duss, 187 U. S. 16, 26, 23 Sup. Ct 6, 10,
47 L. 55, 59, holding lapse of time raises presumption of satisfaction
of claims against communistic society by retiring members; Kessler
y. Ensley Co., 123 Fed. 563, holding suit to set aside fraudulent con-
veyance barred by unexcused laches- though brought within statu-
tory period; American St. Car Advertising Co. v. Jones, 122 Fed.
808, overlooliing delay In suing for patent royalties where plaintifiT
was ignorant of right and defendant uninjured by delay; Kimbell
y. Chicago Hydraulic Press Bricls Co., 119 Fed. 106, holding stoclt-
holder's delay of ten years barred right to cancellation of ultra vires
stock and to recovery of dividends paid thereon; Guarantee Trust,
etc., Co. V. Delta, etc., Co., 101 Fed. 15, holding suits to quiet title
to lands claimed under conveyances dated from nine to twenty-five
120 U. S. 300^42 Notes on U. S. Reports. 012
years before barred by unexplained delay; Sch warts ▼. Duss, 103
Fed. 567, affirming holding based on findings of master that claims
unenforced for sixty-seven years were barred by laches; First Nat
Bank v. Ewing, 103 Fed. 186, holding equity will not relleye from
compliance with statute governing mechanic's liens where lienor
delays four years before claiming; Taylor v. Slater, 21 R. I. 109, 41
Atl. 1003, holding fatal in suit on partnership note delay of twenty
years, two partners having died and survivors having banl^rupted;
Peyton v. Peyton, 28 Wash. 312, 68 Pac. 768, holding under 2 Ball.
Anno. Ck)des & Stat, 8 4800, wife's unexcused delay of thirteen years
barred right to vacate divorce obtained by fraud; Phillips v. Piney
Coal Co., 53 W. Va. 547, 44 S. B. 776, holding delay of ten years
unexplained bars plaintiff, and where appears on bill It is demuir-
able.
120 U. S. 390-412. Not cited,
120 U. S. 412-430, 30 L. 712, GRIER v. WILT.
Syl. 1 (XI, 289). Prior patents showing state of art
Approved in Jones v. Cyphers, 126 Fed. 754, holding prior patents
showing state of art of ventilation by heating outlet pipe admissible
to show improvement claimed on incubators not patentable; Jones
V. Cyphers, 115 Fed. 326, holding prior patents unless pleaded can
only show state of art and limit claims involved.
Distinguished in Parsons v. Seelye, 100 Fed. 454, holding single
patent inadmissible to guide court as to state of art
120 U. S. 430-442, 30 L. 708, HOPT v. UTAH.
Syl. 3 (XI, 290). Peremptory challenges available make error
unprejudiciaL
Approved in Dolan v. United States, 116 Fed. 582, holding under
Crim. Code Alaska, tit. 2, chap. 14, § 127, where court has not abused
discretion in determining juror's bias, denial of challenge not error;
Hawkins v. United States. 116 Fed. 575, holding denial of chal-
lenge for cause necessitating peremptory challenge not prejudicial
error where defendant retained peremptory challenges when Jury
complete; United States v. Davis, 103 Fed. 467, holding defendant
not entitled to new trial where two challenges for cause were sus-
tained when defendant retained fourteen peremptory challenges
when Jury sworn; Burke v. McDonald, 3 Idaho, 301, 29 Pac. 100,
holding defendant entitled to regain peremptory challenge on show-
ing Juror so challenged falsely swore to competency; K. of P. v.
Steele, 108 Tenn. 628, 69 S. W. 337, holding defendant not preju-
diced by error in denying challenge for cause where Jury when
complete was satisfactory; State v. Ha worth, 24 Utah, 409, 68 Pac.
159, uplioldiug, under Crim. Code Utah, § 4836, ruling of court ae
91S Notes on U. 8. Reports. 120 U. 8. 441^484
cepting challenged Juror who would be goremed entirely by evi-
dence, not by opinion.
8yl. 5 (XI, 290). Reasonable doubt In ordinarily ImpcMtant
matters.
Approved in 8tate v. Harras, 25 Wash. 421, 65 Pac 775, upholding
instruction to decide on " strong probabilities " of case, such as ex-
clude every reasonable doubt
Syl. 7 (XI, 290). Erroneously admitting evidence cured by with-
drawaL
Approved in Throckmorton ▼. Holt, 180 U. S. 567, 45 L. 671, 21
Sup. Ot 480, holding error in admitting opinion evidence of hand-
writing not cured by withdrawal from jury where evidence deeply
impressed jury.
(XI, 289). Miscellaneous.
Cited in Murphy v. Massachusetts, 177 U. 8. 159, 44 L. 714, 20
8up. C^ 641, holding conviction under Mass. Pub. 8tat. 187, i 18,
after reversal of former judgment, on defendant's application, not
double jeopardy or abridgment of liberty.
120 U. 8. 442-450, 30 L. 737, PLUMMER v. 8 ARGENT.
8yL 1 (XI, 291). Bronzing process and product — One invention.
Approved in Societe Fabriques de Produits (^iminques de Than
et de Mulhouse v. Lueders, 105 Fed. 632, holding plea to infringe-
ment charge setting up an indivisible Invention and abandonment of
patent bar for duplicity.
120 U. S. 450-164, 30 L. 743, ROSENBAUM v. BAUER.
8yL 2 (XI, 291). Federal court mandamus aiding existing jurift-
diction.
Approved in Cleveland v. United States, 127 Fed. 669, holding
mandamus proceedings in Circuit Court to enforce payment of
judgment is strictly legal and reviewable on writ of error; United
States V. Capdevielle, 118 Fed. 813, holding Federal court's right to
award mandamus based on Rev. Stat, S 716, and not governed by
prohibition of La. act No. 16, 1876; Jabine v. Oates, 115 Fed. 863,
holding no appeal from judgment of Federal court awarding man-
damus and no validity In appeal bond; Board of Liquidation v.
United States, 108 Fed. 691, upholding right of Federal court, under
Rev. Stat, { 716, to issue mandamus as ancillary to an action de*
oSded therein.
SyL 3 (XI, 292). Tax levy mandamus — Removable civil suit
Distinguished in Wahl v. Franz, 100 Fed. 686, holding probate pro-
ceeding not a suit of civil nature under judiciary act of VsSS, re*
movable to Federal court
yoL 11 — 58
120 U. S. 484-502 Notes on U. 8. Reports. ^4
120 U. S. 464-479, 30 L. 748, HERRON v. DATBR.
Syl. 3 (XI, 292). State court judgments not collaterally attacked.
Approved tn Wood v. City of Mobile, 107 Fed. 848, holding Federal
court cannot attack ruling of Alabama court on question of eminent
domain under Ala. Code, art 1, chap. 42, {{ 1712-1726, affirming
99 Fed. 616 ; Oliver v. Clarke, 106 Fed. 403, holding Federal court
bound by Texas State court doctrine that deed reserving vendor's
lien vests no legal title In vendee.
120 U. S. 479-489, 30 L. 728, UNITED STATES V. ARJONA.
Syl. 1 (XI, 293). Counterfeiting foreign securities punished
locally.
Approved in United States v. Lackey, 99 Fed. 967, upholding
Rev. Stat, SS 5607, 5508, passed to enforce Fifteenth Amendment
providing for punishing interference with voting rights secured by
Constitution by intimidation or conspiracy.
•
120 U. S. 489-502, 80 L. 694, ROBBINS Y. SHELBY CO. TAXING
DIST.
Syl. 1 (XI, 293). When congressional commerce power exclusive.
Approved in Atlantic & Pacific Tel. Co. y. Philadelphia, 190 U. 8.
162, 23 Sup. Ct 817, 47 L. 999, upholding Philadelphia license tax
on telegraph company as police regulation; Caldwell y. North Car-
olina, 187 U. S. 625, 23 Sup. Ct 232, 47 L. 338, holding invalid North
Carolina ordinance taxing agent of nonresident portrait company;
Kansas City, etc., Ry. v. Board of R. R. Comrs., 106 Fed. 356, deny-
ing State regulation of railway rates for continuous transportation,
extending into another State or territory; Buckwalter v. Atchison,
etc., R. R. Co., 64 Kan. 407, 67 Pac. 832, holding railroad possessing
right of eminent domain not liable in ejectment for improper
seizure of land, where plaintiff made no objection at time; Southern
Express Co. v. Goldberg, 101 Va. 622, 44 S. E. 894, holding uncon-
stitutional Va. Code 1887, { 1215, fixing express rates so far as it
attempts to regulate rates on interstate trafllc. See 06 Am. St
Rep. 847, 851, note.
Distinguished In Dissenting opinion in Champion v. Ames Lot-
tery Case, 188 U. S. 308, 23 Sup. Ct. 332, 47 L. 506, holding carriage
of lottery tickets by express company between States Interstate
commerce.
Syl. 2 (XI, 295). Congressional silence prevents State regulation.
Approved in Wall v. N. & W. R. R., 52 W. Va. 498, 44 S. B. 300,
M Am. St. Rep. 9G0, holding freight cars from different State ex-
empt from attachment; dissenting opinion in Austin v. Tennessee,
179 U. S. 374, 45 L. 238, 21 Sup. Ct 144, majority holding unad-
drossed packages of cigarettes expressed between States not original
packages, and subject to police power of State.
8U
Notea on U. S. Reports. 120 U. S. 489-502
Sjl. 4 (XI. 20S). State cannot tax Interstate c
Approved In Atlantic & Pacltlc Tel. Co. v. Phlladelplila, 190 U. S.
162, 23 Sup. Gt 818, 47 L. 990. npholding Philadelphia license tax
on telegraph company levied to cover cost of supervision; Lowry
V, Tile, etc., Assn., IOC Fed. 42, holding Invalid California associa-
tion organized to monopolize tile trade, requiring members to pay
entrance fee and annual dues; Pahst Brewing Co. v. City of Terre
Haute, 98 Fed. 335, holding invalid city ordinance tasing brewerleB,
depots, or agencies of breweries of other States witliln ciiy. as tax on
Interstate commerce; State v. Ducltworth, 5 Idaho, 648. 05 Am. St.
Rep. 202, 51 Pac. 457, hoidiug un const! tutionni Idaho Btntute. re-
quiring dipping of sheep brought into State; People v. Bunlier, 123
Mich. 183, 87 N. W. 01, holding Michigan ordinance taxing peddlers
uncoDstitntionai in application to solicitor for foreign principal;
State V. Zophy, 14 S. Dalt. 125, 84 N. W. 303. SB Am. St Bep. 745.
overruling, under Coust. U. S., art. 1, { 8. S. Dali. Sess. Laws 1897,
chap. 72, subjecting wholesale liquor dealers to annual tax; State
T. Cooli. 107 Tenn. 508, 64 S. W. 722, upholding as police regulation.
under Const. U. 9., art. 1. i 8, Acts 1879. chap. 228, making nou-
negotiabie note, where face siiowa given for patent right; Mul-
Unnli V. State. 42 Tei. Or. 527, 60 S. W. 769. upholding, under
Const. U. S., art. 8, S 2, Texas law Imposing SIO tax on operator
or owner of photograph gallery.
DlatinguiBhed In Slates v. Caldwell, 127 N. C. 525, 37 S. B. 130,
upholding under Const U. S., art 1, t 8, city ordinance taxing
peddlers ot pictures or frames, defendant representing nonresident
Arm,
Syl. 5 (XI, 207). Negotiation between States Interstate commerce.
Approved in Norfoilc, etc.. Ry. Co. t. Sims. 101 U. S. 440, 24 Sup.
Ct 153, holding unconstitutional llceuee tax imposed under N. C.
Laws lOOl, p. 116, I 52. as applied to sale of sewing machines Bhipped
Id by nonresident manufacturer; Caldwell v. North Carolina, 187 D.
8. 625, 23 Sup. Ct 230, 47 L. 338. holding invalid North CaroUna
ordinance requiring license fee from agent of nonresident portrait
company; Stockard v. Morgan, 185 D. S. 31, 33. 34, 35, 30, 33, 45
L. 702. 703, 704, 22 Sup. Ct. 5T8, 570, 580. denying under U. S, Const..
art 1. E 8, Tennessee tax on brokers soliciting orders for goods to
be shipped by nonresident owners; Gibba v. M'Neeley, 118 Fed.
123. condemning under U. S. Comp. Stat 1901. p. 3200. Washington
lumber association formed for purpose of controlling production and
price of shingles; Ex parte Green. 114 Fed. 060, holding agent fur
nonresident priclpal not liable to arrest under Kentucky ordinance
taxing Itinerant agents; Cottam v. Oregon City, 98 Fed. 571, 573.
upholding in its local application city tax on solicitors and reliev-
ing oOlcers for arrest thereunder of sulicitor engaged in interstate
:%; Stone v. State, 117 Ga. 200. 43 S. E. 742, exempting
k
4
1-20 V. S. 488-602 Notea on V. S. Reports. 91G
represontntlTe of foreign prJaclpol selllDg goods In State from
operation of eectioii 00(1. Ca. PenaJ Code: State v. Kanapby. IIT
Iowa. 18, SO N. W. 602. holding traTellng saleamnn for Illinois liquor
merchant exempt from lown Code. ( 2382. prohlbltlag aiding In
distributing liquor: State v. Ulckox. 64 Kan. 654. 08 Pac. 36, hold-
ing under TI. 8. Const., art. 1. | S, Kansas State law Invalid for re-
straining nonresident salesman soliciting for liquor orders; Com-
nionwealtli v. Pearl Laundry Co., 105 Ky. 266, 49 S. W. 28. holding
agent of nonresident laundry exempt from Kentucky ordinance
Imposing »100 license, authorized by Ky. Stat., i 2980: French v.
State. 42 Tex. Cr. 224, 58 S. W. 1018, boldlng agent of foreign
piano company selling pianos shipped In, not liable tu Texas ped-
■ ller'a license; Talbutt v. Siale, 39 Tex. Or. 65. 44 S. W. 1091. holding
uncoDstltutional In application to agent of nonresident manu-
facturer, Texas tax on Ilghtnlog-rod canvasBera; Gale Mfg. Co. t.
A-. FInkelsteIn & Son, 22 Tex. CIt. 242. 54 S. W. 819, holding sale
of goods by foreign corporation to citizen Interstate comraerce not
governed by Tex. Rev. Stat, E! 745, 746, regulating foreign corpora-
tions: Adkins V. Rlclimond. OS Va. 101. 34 8. E. 868. 969, 970, over-
ruling Virginia city ordinance taxing selling by sample goods of
jionresldcnt principals as violating U. 8. Const., art. 1. i 8; Wall v.
N. & W. R. R.. 52 W. Va. 406. 44 8. H. 299, 94 Am. St. Rep. 059,
exempting from attachment freight cars carrying frelgbt from
another State; dissenting opinion In State t. Caldwell. 127 N. C.
527, 37 S. B. 140, majority upholding under U. S. Const., art. 1, f 8.
North Carolina city ordinance taxing selling or delivering pictures
or frames whether ordered or not.
Distinguished In State v. Montgomery. 94 Me. 200. 47 Atl. 1G6.
holding unconstltutionat Me. Laws of 1S9S, chap. 29S, providing for
peddler's licenses, grantable only to United States citizens; Racine
Iron Co. V. McCommons. Ill Ga. 550, 36 8. E. 867. 869, 872. up-
holding Georgia revenue tax on traveling soliciting agents of
foreign principals BUIng contracts from goods in bulk liy agent;
WIlllamB V. Pears. 110 Ga. 589, 35 S. B. TOO, upholding Georgia
tax on person hiring laborers for service out of State.
Syl. 6 (XI, 20S). State cannot tax nonresident drummers.
Approved in United States v, Thomas. 115 Fed. 209, upholding
Indirect tax on memorandum of sale of railway stock In another
State, undw section 25. schedule A, revenue act 18.18.
Syl. 8 (XI, 300). Uniform tax of nonresident peddlers valid.
Approved In Saulshury v. State, 43 Tex. Cr, 93, 63 S. W. 5C9. 90
Am. St Rep. . holding under Tex. Penal Code, art 112, agent of
iiuoresldcnt buggy manufacturer liable for peddllug without license.
(XI, 293). Miscellaneous.
Cited In Fairbanl: v. United States, 181 D. 8. 293, ^ L. 869. 21
Sup. Ct 654, denying stamp tax on foreign bill of lading as tax on
exports under U. 8. Const., art 1, i 9,
817 Notes on U. S. Reports. 120 U. S. 602-517
12Q U. S. 502-506, 30 L. 099, CORSON v. MARYLAND.
Syl. 1 (XI, 301). State cannot tax nonresident solicitors.
Approved in Lowry v. Tile, etc., Assn., 106 Fed. 43, holding In-
yalid California association organized to monopolize tile trade, re-
quiring members to pay entrance fee and annnal dues; State y.
Zophy, 14 S. Dale. 125, 84 N. W. 393, 86 Am. St Rep. 745, hold-
ing void under U. S. Const, art 1, § 8, S. Dale. Laws 1897, chap. 72,
iBubjecting foreign wholesale liquor dealers to annual tax; Tal-
butt v. State, 39 Tex. Cr. 65, 44 S. W. 1001, holding unconstitutional
Texas tax on lightning-rod canvassers where applied to agents of
nonresident manufacturers.
Distinguished in Racine Iron Co. v. McCommons, lU Ga. 540, 86
S. E. 867, upholding Greorgia revenue tax on foreign principal's
agent who received goods in bulliL and filled orders therefrom.
120 U. S. 506-510, 30 L. 707, SCHULER v. ISRAEL.
SyL 2 (XI, 301). Garnishee's defenses same as against debtor.
Approved in Fidelity Trust Co. v. New York Finance Co., 125
Fed. 279, allowing garnishee trustee to show Judgment to subject
trust property to payment of Judgment obtained by collusion;
Daugherty v. Bogy, 104 Fed. 944, holding defendant can set off
against Judgment creditor of mutual debtor note of debtor to de-
fendant; Neely v. National BanliL, 25 Tex. Civ. 517, 61 S. W. 561,
allowing hSLUk holding notes of insolvent depositor to set off amount
against garnishment served before maturity of notes.
Distinguished in In re Meyer, 106 Fed. 831, refusing consignor set-
off unmatured notes given to consignee where latter made ad-
vances on goods now held by assignees; Donohoe-Kelly Banlcing
Co. V. S. P. Co., 138 Cal. 186, 94 Am. St Rep. 30, 71 Pac. 94,
holding banlc checlc for part of deposit not equitable assignment
and postponed to attachment on fund.
120 U. S. 511-517, 30 L. 704, LACLEDE BANK v. SCHULER.
Syl. 1 (XI, 302). Banlc unaffected by checlc until notice.
Approved in Third Nat Banlc v. Atlantic City, 126 Fed. 415,
holding orders on city by contractor for city hall equitable assign-
ments talking effect in order of notice by assignees to debtor;
First Nat Banlv v. Selden. 120 Fed. 214. holding draft or check
drawn on bank not an assignment of deposit giving holder prefer-
ence where drawer becomes insolvent; dissenting opinion in Brown
V. Schentz, 202 111. 522, 67 N. E. 177, majority holding delivery of
bank check an assignment pro tanto of deposit
Distinguished In Raesser v. National Exchange Bank, 112 Wis.
598, 88 Am. St. Rep. 984, 88 N. W. 620, holding bank discharged
on payment of check to holder, check being assignment
120 U. S. 517-G56 Notes on U. S. Reports. 918
120 U. 8. 517-^26, 30 L. 701, CARTER CO. v. SINTON.
Syl. 1 (XI, 303). Constitutional requirement that title contain
subject
Approved in McNeeley t. South Penn Oil Co., 52 W. Ya. 642, 44
S. E. 518^ holding chapter 6. Acts 1872-73, fixing limitation on oil
land suits, void for failure to express object In title.
Distinguished in Stewart v. Tennant, 52 W. Va. 572, 44 S. E. 228,
holding unconstitutional under W. Va. Const, i 80, art 6, act of
March, 1873, entitled concerning limitations actions in certain cases.
120 U. S. 527-534, 30 L. 740, ACCIDENT INS. CO. v. CRANDAL.
SyL 1 (XI, 303). Defendant introducing evidence waives error.
Approved in M'Crea v. Parsons, 112 Fed. 919, holding defend-
ant's exception to court's refusal to find for him at close of plain-
tiff's evidence waived by subsequent introduction of evidence;
Barnard v. Randlo, 110 Fed. 908, holding defendant waives de-
murrer to evidence by introducing evidence in own behalf; Mexican
Cent Ry. Co. v. Glover, 107 Fed. 360, holding no error in refusal
to instruct for defendant at close of plaintiff's evidence where
defendant introduced more evidence; Barabasz v. Kabat 91 Md.
59, 46 Atl. 339, holding defendant's introduction of evidence under
Md. Code, art 75, { 87a, after motion to direct verdict overruled
waived all error therein; Bopp v. New York, etc., Transp. Co., 177
N. Y. 36, 69 N. E. 123, holding introduction of evidence after denial
of motion for nonsuit, and cross-examination of codefendanf s wit-
nesses to disprove responsibility after second denial, waives re-
fusal.
Syl. 2 (XI, 304). Self-destruction not include suicide by insane.
Approved in Fidelity, etc., Co. v. Welse, 182 111. 498, 55 N. E.
541, holding burden on plaintiff suing on policy against accidental
injuries to show Insured husband did not commit suicide or did so
while insane. See 84 Am. St Rep. 547, note.
Distinguished in Clarice v. Equitable Life Assur. Soc, 118 Fed.
377, holding any self-destruction other than accidental avoided
policy expressly excluding risks of "self-destruction, sane or in-
sane."
120 U. S. 534-555, 30 L. 759, FLETCHER v. FULLER.
Syl. 1 (XI, 305). Grant presumed from possession and use.
Approved in State v. Dickinson, 129 Mich. 228, 88 N. W. 624,
holding possession for 100 years and payment of taxes raise pre-
sumption of lawful grant even against State.
Syl. 6 (XI, 306). Payment of taxes evidences ownership.
Approved In Grayson v. Lofiand, 21 Tex. Civ. 507, 52 S. W. 123.
presuming deed where grantor in subsequent deed recognized claim-
ant as owner and where claimant paid taxes twelve years.
919 Notes on U. S. Reports. 120 U. S. 556-575
(XI, 305). Miscellaneous.
Cited In Ck)peland v. Wabash By. Co., 175 Mo. 681, 75 S. W.
115, holding evidence of interviews given by attorney not proof
that he printed views as to former trial for distribution to Jury.
120 U. S. 556-560, 30 L. 754. PEOPLE'S SAVINGS BANK v.
BATES.
Syl. 1 (XI, 306). Fraud in mortgage question for jury.
Approved in Missouri, etc., Mfg. Co. v. Guymon, 115 Fed. 117,
holding vendee of corn who induced sale by fraud liable in equity
as conscructive trustee; Noyes v. Ross, 23 Mont. 442, 75 Am. St. Rep.
550, 59 Pac. 373, upholding chattel mortgage of defendant's stoclL
of goods where mortgagee sold goods at public auction before debt
matured; First Nat Bank v. Cabins, 12 S. Dak. 420, 81 N. W. 734,
holding mortgagor's knowledge of sale of mortgaged chattels by
mortgagee not necesarily avoid mortgage, intent being fact for jury.
Syl. 4 (XI, 307). Pre-existing debt not good mortgage con-
sideration.
Approved In Morgan Machine Oo. v. Ranch, 84 Mo. App. 519, hold-
ing ** trustee in deed of trust," under Rev. Stat. 1899, f 365, meant
assignee had given some legal consideration other than pre-existing
debt
Distinguished in Hamilton v. Fowler, 99 Fed. 22, holding trans-
feree of mortgage notes, aa security for antecedent debt, takes free
from unknown equities.
Syl. 6 (VI, 307). Delivery before maturity passes negotiable
instruments.
Approved in Chandler v. Calvert 87 Mo. App. 371, holding promis-
sory note represents money and is payable in money only.
120 U. S. 569-575, 30 L. 732, CHICAGO, E5TC., R. R. v. GDFFBY.
Syl. 2 (XI, 308). Tax exemption requires express grant.
Approved in Downs v. United States, 113 Fed. 148, upholding, un-
der section 5, tariff act 1897, imposition on Russian exported sugar,
of duty equal to Russian exportation bounty; Atlantic, etc., R. R.
V. Lesueur, 2 Ariz. 432, 19 Pac. 159, holding exemption of right of
way of railroad under 14 U. S. Stat at Large, 292, does not in-
clude road built thereon and building connected therewith; dis-
senting opinion in Citizens' Bank v. Parker, 192 U. S. 87, 24 Sup.
Ct 187, majority holding La. act January 30, 1836, S 4. exempting
capital stock of Citizens* Bank, Included exemption from tax for
carrying on business; dissenting opinion in Jackson v. Corporation
Commission, 130 N. C. 426, 42 S. E. 138, majority holding Acts 1901,
repealing law 1899, and providing quadrennial assessments beginning
1903, relieved corporation commissioners from separately assessing
railway franchises for 1901.
11:0 U. S. 575-606 Notes on U. 8. Rep<H-t8. 920
Distinguished In Monroe, etc.. Ck>. t. Monroe, 110 Wis. 18, 85 N. W.
687, u);>holding contract of city to pay water company as rental for
use of plant sum equal to assessed taxes as no exemption.
120 U. S. 575-586. 30 L. 789. SCHLEY v. PULLMAN CAB CO.
Syl. 1 (XI, 809). Husband Joining in wife's deed.
Approved in Morgan v. Snodgrass, 49 W. Va. 393, 88 S. B. 697,
upholding deed of married woman's separate realty not naming
husband as grantor but signed and aclmowledged by l>oth.
Syl. 2 (XI, 309). Personal acquaintance Implied from acknowl-
edgment
Approved in Northwestern, etc.. Bank v. Ranch, 5 Idaho, 756, 51
Pac. 765, holding substantial compliance with statute by married
woman in acknowledging deed sufficient
120 U. S. 586-595. Not cited.
120 U. S. 595-597, 30 L. 794, MARSH T, SHEPARD.
Syl. 1 (XI, 310). One appellant cannot dismiss appeal adversely.
Distinguished in Illinois C. R. Co. v. Adams, 180 U. S. 32, 45 L.
411, 21 Sup. Ct 252, holding appeal from decree refusing injunction
against collection of taxes not dismissed because taxes had been
collected.
120 U. S. 598-600. Not cited.
120 U. S. 600-605, 30 L. 798, EAST ST. LOUIS T. AMY.
Syl. 1 (XI, 310). Illinois Constitution allows municipal bond
taxation.
Approved in Wilson v. Board of Education, 12 S. Dak. 547, 549,
81 N. W. 955, holding school district incurring Indebtedness by bond
issue under S. Dak. Const, art 13, { 5^ without providing tax.
obliged to provide payment
Syl. 2 (XI. 310). Mandamus compelling city to levy tax.
Approved in City of Little Rock v. United States, 103 Fed. 426.
affirming award of mandamus compelling city to issue warrants cov-
ering indebtedness to judgment creditor.
Distinguished In Gay v. New Whatcom. 26 Wash. 396, 67 Pac.
90, refusing mandamus to compel new tax levy to meet interest on
water bonds where annual tax levy was deficient
Syl. 3 (XI, 310). Mandamus compelling single tax levy.
Approved in Padgett v. Post, 106 Fed. 603. upholding mandamus
to compel single tax levy to pay judgment on municipal bonds where
municipality failed to make required annual levies; Hicks v. Cleve-
land, 106 Fed. 4G5. upholding mandamus issued to compel levy of
single tax to pay township bonds and interest in arrears.
921 Notes on U S. Reports. 120 U. S. 605-^8
120 U. S. 605-630, 30 L. 801, GONZALES v. ROSS.
Syl. 2 (XI, 311). Presumptions favor validity rather than for-
feiture.
Approved in New River Mineral Co. v. Roanoke Coal & Coke Co.,
110 Fed. 345, presuming proper service made where in action under
Code Va, 1887, { 3211, return of service of notice by motion was
made; Sheaf er v. Mitchell, 109 Tenn. 210, 71 S. W. 94, holding
.after lapse of thirty-five years In which many conveyances occurred
where original proprietors have asserted no title, tax deed presumed
valid If possible.
120 U. S. 630-648, 30 L. 810, DUSHANB v. BENEDICT.
SyL 3 (XI, 310). Sale for particular purpose — Warranty.
Approved in Union Selling Co. v. Jones, 128 Fed. 677, excluding
parol evidence to vary ordinary meaning of words ** quality guar-
anteed " in contract for sale of binder twine, that such twine fit for
ordinary use.
Syl. 5 (XI, 312). All damages resulting recovered on warranty.
Approved in Tyler v. Moody, 111 Ky. 197, 63 S; W. 434, holding
damages recoverable for breach of warranty that gas machine
would not explode include personal injuries received; North Chicago
St. Ry. Co. V. Bumham, 102 Fed. 673, holding damages recoverable
for defective motor accepted by vendee, cost of alterations to ful-
fill contract
Syl. 7 (XI, 312). Purchaser may set off warranty claim.
Approved in Connolly v. Union Sewer Pipe Co., 184 U. S. 552, 46
L. 687, 22 Sup. Ct 436, holding where State practice prevents set-
ting off unliquidated damages treble damages under 26 Stat, at
Large, 209, chap. 647, recoverable in direct action only.
(XI, 311). Miscellaneous.
Cited in Arkwrlght Mills v. Aultman, etc., Mach. Ck>., 128 Fed.
196, applying Rev. Laws Mass., chap. 170, making nonresident plain-
tiff suing in State courts liable to suit by publication by defendant
therein where demands may be set off.
120 U. S. 649-678, 30 L. 830, PORTER v. PITTSBURG, ETC.,
STEEL CO.
Syl. 1 (XI, 312). Bond mortgagee precedes unsecured railway
contractor.
Approved in Nlles Tool Works Co. v. Louisville, etc., Ry. Co., 112
Fed. 563, holding claim for price of machinery sold to mortgagor
railroad, and used in construction of car shops of second company.
not preferred to mortgagees; St. Louis, etc., Ry. v. Continental Trust
Co., Ill Fed. 672, holding claim against Insolvent raliroad for
rental of premises for construction of tracks, one for original con-
struction so unpref erred to mortgagees; First Nat. Bank v. Ewing,
120 U. 8. 678-707 Kotea on D. S. Reporta.
103 Fe4. ise, holding contrnctor's clntms for original conBtnicttcm
TCorlc before receivorslilp postpoaed U> bandholder'H lien; FuUer-
Wnrren Co. v. Harter, 110 Wis. 81. 85 N. W. 702. denying Talldtty
of contract between »ettdor of chattels and mortgagor of realty,
chattels baving been annexed and mortgagee not Joining In
contract.
8fl. 2 iSl, 313). EubHcquent creditors cannot Impeach oxecuted
contrnct-
ApproTed In Illlnola Trust, etc.. Bank v. Doud. 105 Fed. 13S, hold-
ing laterveuer lending money to railroad to pay accrued Interest
postponed to prior mortgagee: WUswi t, Stevena, 129 Ala. 636, 29
So. 678, denying F^ubsetjuent creditor's right to complain of corpo-
rate property where Intent and operation was not to defraud such
creditors; Graham v. Estate of Townsend. 62 Nebr. 366, 87 N. W. 170,
holding, under section 17, chapter 32, Comp. Stat. 1SS&. fraudulent
conveyance by debtor gives subsequent uninjured creditors no rights.
120 D. 8. a-.8-707, 30 L. 700, BALDWIN v. FRANKS.
8yL 1 PCI, 314). Upholding separable constitutiooal parts of
Btatnte.
Approved in Louisville, etc.. R. B. Co. t. M'Cbord, 103 Fed. 223,
holding tin constitutional Ky. act March 10, lOOO, Bxing railway
rates aod leaving punishment for overcharging in hands of non-
judicial body; Cain v. Smith. 117 Ga. DOS, 44 8. E. 8, denying
Georgia statute authorizing submlssloo of question of municipal In-
debtedness to voters In connection with other foreign Issnes; Bal-
lard V. Oil Co., 81 Miss. 574, 05 Am. St Rep. 492, 34 So. 554, 650.
holding unconstitutional Miss, act ISOS. p. S5, chap. 66. Imposing
regulations on corporations not Imposed upon natural persons; dis-
senting opinion In State v. Smiley, 65 Kan. 274, 69 Pac. 210. holding
general longuage of Kansas statutea limited to persons and subjects
reasonably Included in legislative Intention.
Distinguished hi Waters-Pierce Oil Co. v. Texas. 177 U. 8. 42. 44
L. 063, 20 Sup. Ct. 523, holding provisions Tei. act 1S95, esempt-
Ing corporations If uucoustltutlonal, would vitiate entire act: State
V. Smiley, 65 Kan. 255, 69 Pac. 203. 204, limiting general terms of
anti-trust law 1897 to persons and subjects reasonably contem-
plated by legislature.
Syl. 2 (XI, 314). Act to prevent conspiracies invalid.
Distinguished In State v. SmUey, 65 Kan. 252, 60 Pac. 203, holding
valid chapter 265. Laws 1S97. regulating combinations and anti-
competitive trade agreements.
Syl. 3 (XI, 314). Construing section 5508. Revised Statutes.
Approved In United States v. Morris, 125 Fed. 322, holding within
Rev. Stat. U. S,, S 5508, conspiracy between several persons to
prevent negroes as such from leasing land.
923 Notes on U. S. Reports. 120 U. S. 707-759
120 U. S. 707-737, 30 L. 776. VITERBA v, FRIEDLANDER.
SyL 1 (XI, 315). Destruction of object excuses innocent promisor.
Approved in Losecco v. Gregory, 108 La. 655, 32 So. 988, holding
destruction of trees excused vendor from contract to sell all oranges
trees might produce.
Syl. 7 (Klf 315). Louisiana Code construed by texts.
Approved in Daniel v. Simms, 49 W. Va. 567, 39 S. E. 695, holding
ambiguous statute construed with prior repealed and unrepealed
statutes on same subject; dissenting opinion in Ogden City v. Weber
Ck)., 26 Utah, 136, 72 Pac. 436, majority holding Utah Rev. Stat
1898, I 511, empowering county commissioners to provide main-
tenance for indigent sick and poor of county, includes transient
paupers.
120 U. S. 737-747, 30 L. 818, EX PARTE PARKER.
Syl. 1 (XI, 316). Supreme Court mandamus against lower court
Approved in Raleigh v. First Judicial Dist Ck)urt, 24 Mont 313,
61 Pac. 993, allowing mandamus to compel District Court to en-
tertain contest of will erroneously struck from files; Roberts v. Paul,
50 W. Va. 530, 40 S. E. 471, refusing mandamus to reverse court's
refusal of costs; dissenting opinion in Crooks v. Fourth Dist Court,
21 Utah, 108, 59 Pac. 532, majority holding final, under Utah Const,
art 8, S 9, decisions of District Court appealed from justice court
120 U. S. 747-759, 30 L. 825, FOURTH NAT. ' BANK V.
FRANCKLYN.
Syl. 1 (XI, 317). Federal courts judicially notice State laws.
Approved in Barry y. Snowden, 106 Fed. 573, holding Federal
court takes judicial notice of Illinois statute as to attorney's fees.
SyL 2 (XI, 317). Statute giving remedy and right exclusive.
Approved in Middletown Nat Bank v. Toledo, etc., Ry., 127 Fed.
87, certifying to Supreme Court question whether Ohio Const.
1851, art 13, i 3, imposing individual liability on stockholders, Is
self-executing, State decisions confiicting; International Nav. Co. v.
Lindstrom, 123 Fed. 477, holding twelve months' time limit given
by New Jersey statute for actions for wrongful death must be
followed whenever statutory remedy sought; Williamson v. Amwi-
can Bank, 115 Fed. 797, holding act 1876 (19 Stat 63), prescribing
creditor's suit in equity in District Court, only authorized procedure
to enforce Individual liability of national bank stockholders; Boston,
etc., R. R. V. Hurd, 108 Fed. 120, 125, holding Mass. Pub. Stat., chap.
112, S 212, limiting actions against railways to one year, binding
in Federal court; Old Colony Boot, etc., Co. v. Parker, etc.. Co., 183
Mass. 561, 562, 67 N. B. 872, relieving bankrupt director from
statutory liability under U. S. Comp. Stat 1901, p. 3447, providing
for proof against bankrupt of contractual claims only; Finney v.
120 U. S. 75^-778 Notes on U. S. Reports. 924
Guy, 106 Wis. 266, 82 N. W. 5d8, holding Gen. Stat. Mhin., H 2501,
5905-5907. 5911, authorizing enforcement in eqnlty of double liabil-
ity against bank stoclcholders, gave exclusive remedy.
Distinguished in King v. Pomeroy, 121 Fed. 292, 295, holding new
remedy to enforce shareholder's liability provided by U. 8. Ck>mp.
Stat 1901, p. 3509, merely additional to existing remedy of 13
Stat. 99.
Syl. 4 (XI). 318). State laws govern stockholder's liability.
Approved in In re Remington Automobile & Motor Co., 119 Fed.
444, allowing judgment against insolvent corporation under Laws
N. J. 1896, chap. 185, SS 21, 48, 49, prescribing creditor's bill after
Judgment as sole remedy enforcing stockholder's liability; Hilliker y.
Haie, 117 Fed. 225, holding receiver appointed by Minnesota court
cannot sue in New York to enforce New York stockholder's liability
on Minnesota corporation; Kirtley v. Holmes, 107 Fed. 6, holding
stockholder's liability under Const Ohio, art. 13. f 3, enforceable
against nonresident stockholder in Federal courts; Brunswick, etc.
Go. y. National Bank, 99 Fed. 638, 639, following Code Ga. 1882,
S 2916, providing twenty years Statute of Limitations in action by
creditors of Georgia bank; Pfaff v. Gruen, 92 Mo. App. 571, holding
Missouri members of Ohio corporation liable to same extent on
corporate assessments as Ohio stockholders.
(XI, 317). Miscellaneous.
Cited In Swann v. Mutual Reserve Fund Life Assn., 100 Fed. 929,
holding revocation by State of license of foreign corporation to
operate therein ends corporation's liability to suit in State.
120 U. S. 759-765, 30 L. 786, BOLLES v. BRIMFIELD.
Syl. 1 (XI, 310). Federal qourts follow State court's construction.
Approved in dissenting opinion in In re Falconer, 110 Fed. 117,
majority upholding under Aik. Stat, Sandf. & H. Dig., chap. 78»
S§ 3716, 3718, reclaim by bankrupt of property subject of exemptiou
but transferred by bankrupt.
Syl. 2 (XI, 319). Legislature may ratify unauthorized municipal
acts.
Approved in Steele County v. Erskine, 98 Fed. 217, upholding
retroactive legislative act ratifying contract of county for auditing
of claims not previously authorized but not prohibited by Con-
stitution.
120 U. S. 765-774. Not cited.
120 U. S. 775-778, 30 L. 815, GOODWIN v. FOX.
Syl. 3 (XI, 320). Approval of bond waives service.
Approved in M'Fadden v. Mountain Vine Min. & Mill. Co., 97
Fed. G72, holding under rule 30, Circuit Court Appeals, 90 Fed. 141,
925 Notes on U. S. Reports. 121 U. S. 1-14
regulating appeals, citation returnable at San Francisco Instead
of Seattle cured by prior stipulation.
120 U. S. 778-782. 30 L. 816. LEATHERS MFRS*. BANK v.
COOPER.
Syl. 2 (XI, 320). National bank suit not necessarily removable.
Approved in Continental Nat. Bank v. Buford, 191 U. S. 125. 24
Sup. Ct. 55. 56. holding Judgment of Circuit Court final under Comp.
Stat 1901. SS 488. 547. in suit of national bank against foreign cor-
poration; Speckert v. German Nat. Bank. 98 Fed. 153. holding
receiver of national bank not necessary party to suit against bank
pending at appointment not entitled to removal to Federal court
120 U. S. 782-784, 30 L. 824, EX PARTE HARDING.
Syl. 1 (XI, 321). Alien as grand juror.
Approved in Greer v. Richards. 3 Ariz. 231, 234, 32 Pac 268, hold-
ing under Comp. Laws 1877. §S 2547, 2555. following Federal practice,
counsel fees not recoverable as damages in suit on injunction bond.
Syl. 2 (XI, 321). Denying compulsory process cannot invalidate
judgment.
See 87 Am. St Rep. 185. 189, note.
CXXI UNITED STATES.
121 U. S. 1-14, 30 L. 849. EX PARTE BAIN.
Syl. 1 (XI. 323). Amendment of Indictment
Approved in United States v. Linnler. 125 Fed. 87. holding where
verdict finding defendant guilty of murder in first degree as charged
in indictment, was set aside by court and new trial granted on
ground that evidence showed only guilt of manslaughter, and
at same term defendant pleaded guilty to manslaughter, court could
accept jplea and render judgment thereon. See 87 Am. St Rep.
186, note.
Distinguished in In re Glass. 119 Fed. 511. holding specifica-
tions opposing bankrupt's discharge, though entirely defective, may
be amended at discretion of court
Syl. 4 (XI, 323). What is proper indictment
Approved in dissenting opinion in Hawaii v. Manklchi, 190 U. S.
245, 23 Sup. Ct 801. 47 L. 1033. majority holding criminal pro-
ceedings by grand and petit juries not substituted for existing
criminal Hawaiian procedure by Newlands resolution of annexation.
121 U. S. 14-66 Notes on U. S. Reports.
121 U. S: 14-27, 80 L. 853, WORDBN T. SEARLS.
Sjl. 6 (XI, 325). Punishment of violation of preliminary injunc-
tion appealable.
Approved In Enoch Morgan's Sons' Co. v. Gibson, 122 Fed. 422,
423, holding order discharging rule to show cause for contempt In
violating injunction against infringement of trade-mark granted hy
final equity decree Is reviewable by appeal.
121 U. S. 27-66, 30 L. 864, RICHMOND v. IRONS.
SyL 2 (XI, 325). Amendments presenting new case.
Approved In Southern Ry. Oo. v. North Carolina Corp. Comm., 106
Fed. 271, holding amendments cannot be allowed to answer after
time for taking testimony by complainant has expired, purpose of
which is to make certain construction of original answer contended
for by defendant but disputed by complainant
Distinguished in In re Glass, 119 Fed. 511, holding specifications
opposing bankrupt's discharge though entirely defective may be
amended at discretion of court
Syl. 8 (XI, 325). Equity — Enforcement of stockholder's liablliOr.
Approved in Boyd v. Schneider, 124 Fed. 241, holding creditors
cannot sue directors of insolvent national bank to recover for
general distribution, as assets of bank, sums alleged to have been
lost through negligence or mismanagement of its affairs; King v.
Pomeroy, 121 Fed. 292, 293, 295, 296, holding Federal equity court
may appoint national bank receiver to liquidate its affairs and
to authorize him to collect and to enforce by action stock holder's
liability; Williamson v. American Bank, 115 Fed. 797, applying
principal in suit to enforce individual liability of national bank
stockholders under 19 Stat 63.
Syl. 5 (XI, 325). Limitations on creditor's bill.
Approved In Hargadlne-M'Kittrick Dry Goods Co. v. Hudson, 122
Fed. 235, holding where judgment creditor filed judgment as claim
against debtor's estate which was being administered in State of
bankrupt's residence, whether such claim was barred by limitation
determined by laws of State where bankruptcy proceedings pend-
ing; King V. Pomeroy, 121 Fed. 297, holding liability of shareholder
of national bank whose affairs are in course of administration in
equity does not mature until court determines amount of and
fixes time of payment; Taber v. Royal Ins. Co.. 124 Ala. 688, 689,
26 So. 259. holding filing of creditors' bill and decree thereon stop
running of limitations against creditors who come In under its
provisions; Dunne v. Portland, etc., Ky., 40 Or. 299, 300, 65 Pac.
1054, holding where creditor of insolvent corporation files creditors'
bill against it, another creditor who subsequently makes himself
party and proves his claim is entitled by relation to benefit of suit
827
Notes on U. S. Reports. 121 D. S. 27-60
. State of Nebraska,
t. « L. 495, 21
me. nature and
behnlC as well
SB party plalDtlEf from beginning: McDonald
101 FeiJ. 181, arguendo.
Syl. fl (XI, 32Qi. Rights under creditor's blU.
Approved in New Orleans v. Warner, ISO U.
Sup. Ct. 354. holding parties holding obligations
kind as plaintiff Id suit brought by blm in his
as on behalf of nil such persons may, after decree In his favor,
coiue In and prove their claims without formal intervention.
Syl. T (XI, 32C). Stockholder's liability assumed by subscription.
Approved In Whitman v. Oiford Nat Bank, 176 U. S. 565, 44 L.
591, 20 Sup. CL 479, holding action to enforce liability of stock-
holder under Stale Constitution and statutes which make him liable
to additional amount e(|ual to stock can be maintained In any court
of competent Jurisdiction; Id re Remlugton Automobile & Motor
Co., 119 Fed. 444, holding creditors of Insolvent New Jersey cor-
poration who claim to have causes of action against certain Btock-
holders by virtue of New Jersey laws cannot be reatralned from
prosecutiog claims against corporation to judgment after proceed-
ings in bankruptcy begun but before adjudication; Aldrlcb v. Mc-
Claine, 106 Fed. 793, holding suit to enforce liability of stock-
bolder in national bank located In Washington, If he be resident
there, is governed by Hall. Codes, i 4S00. subd. 3. providing that
action on contract not In writing may be commenced within three
years after flccrual of acllon; Howarth v. IiOmbard. 17.') Mass. 575,
578, 5S N. E. 890. 891, holding under Hill's Wash. Codes, j 1511,
on Insolvency of bank receiver may be appointed to enforce stock-
holder's liability; Howartb v. Angle. 162 N. Y. 187, 5G N. E. 402.
holding all stockholders of Insolvent bank not necessary parties to
application for appointment of receivers.
Syl. 8 (XI, 326). Survival of bank stockholder's liability.
Approved In Matteson v. Dent. 176 U. 8. 526, 528, 44 L. 574. 575.
20 Sup. Ct 421, 422. holding widow and heirs of national bank
shareliolder to whom Probate Court allots shares In divlalon, but
who let stock stand in name of decedent, without notice of their
title to it, are, under Rev. Stat, H 5139. 5151, .^152, liable to assess-
ments on bank's Insolvency; Fidelity Ins., etc., Co. v. Mechanics'
Sav. Bank, S7 Fed. 300, holding stockholder's liability under
Kansas statute continues so that death does start limitations to
running against action to enforce liability by creditor whose right
of action accrued subsequent to death.
Syl. 9 (XI, 326). Transfer on books terminates stockholder's lia-
bility.
Approved In Robinson t. Southern Nat. Bank, 180 D. S. 306. 45
L. 540. 21 Sup. CL 387. holding bank which receives national hank
stock BB security and bids sane In on foreclosure not liable as
k
i
121 U. S. 27-06 Notes on U. S. Reports. 928
stockholder where It never has had stock transferred on books of
national bank; Matteson v. Dent, 176 U. S. 530, 44 L. 575, 20 Sap.
Ct 423, holding widow and heirs of national bank shareholder to
whom Probate Court allots shares In Indlvlslon, but who let stock
stand in name of decedent without notice of their title to it, are
liable to assessments on bank's insolvency; Earle ▼. Oarson, 107
Fed. 640, holding owner of national bank shares selling same in
good faith without knowledge of bank's insolvency not liable for
assessment on subsequent closing of bank as insolvent, though
evidence shows bank's insolvency at time of sale and that pur-
chaser was also insolvent; Giesen v. London & Northwest American
Mort Co., 102 Fed. 589, holding stockholder in foreign corporation
liable as stockholder where no transfer made on books; Hawkins
v. Investment Co., 38 Or. 556, 64 Pac. 324, holding where share-
holder assigned and delivered unpaid shares to president of cor-
poration as vendee and received price therefor, and not for pur-
pose of having shares transferred on books, and they were not
so transferred until they were resold, shareholder liable thereon to
creditor to whom corporation became indebted before transfer.
Distinguished in Earle v. Coyle, 97 Fed. 412, holding stock-
holder's title divested so as to relieve him of assessment levied
four years thereafter where he delivers blank assignment to auc-
tioneer and it was sold to bank's cashier.
Syl. 10 (XI, 326). Acts of national bank ofQcers after liquidation.
Approved in Lawrence v. Greenup, 97 Fed. 908, 911, holding
national bank receiver cannot recover from stockholder sum re-
ceived by him on partial distribution of capital of bank made and
received in good faith during voluntary liquidation, when bank
at time was solvent though it subsequently became insolvent.
Distinguished in Jewett v. United States, 100 Fed. 839, holding
national bank president who has been appointed by shareholders to
close its affairs In liquidation with authority to collect Its credits Is
an *• agent " within Rev. Stat.. § 5209, providing for punishment of
national bank agent who willfully misapplies its assets; Ward ?.
Joslln, 100 Fed. 679, holding under Arkansas statute Judgment
against corporation Is not conclusive upon stockholder that claim
is one of nature for which he is rendered individually liable by
Constitution.
Syl. 11 (XI, 326). Rights of creditors after bank liquidation.
Approved in Moss v. Whitzel, 108 Fed. 580, holding national
bank officers have no power to incur liability on part of such bank
after it has gone into liquidation which will be binding on share-
holders, and Judgment on liability so created, rendered against
bank by collusion of officers, is not conclusive on shareholders.
Syl. 12 (XI, 327). Liability of bank stockholder for interest
Approved in Cumberland Lumber Co. v. Clinton Hill Lumber
029 Notes on U. S. Reports. 121 U. S. 67 '105
Co., 64 N. J. Eq. 523, 54 Atl. 453, holding where corporation has
been decreed insolvent and receiver appointed, interest on corpora-
tion's debt should be included in assessment against stocliholders;
Baker v. Williams Bank Co., 42 Or. 222, 70 Pac. 714, holding under
Hiirs Anno. Laws, § 3587, call-depositors are entitled to interest
on their claims against insolvent bank from time of allowance
thereof by court
Syl. 13 (XI, 327). Comptroller controls bank receiver on involun-
tary liquidation.
Approved in McDonald v. Thompson, 184 U. S. 75, 46 L. 440, 22
Sup. Ct. 290, holding demand which starts limitations against right
of national bank receiver to enforce stockholder's liability shown
by allegations that on specified date comptroller made assessment
and did thereby make demand on shareholders and directed receiver
to enforce individual liability; Aldrich ▼. Campbell, 97 Fed. 665,
holding action of comptroller in ordering assessment oil stockholders
of insolvent national bank is conclusive on stockholders and can-
not be questioned by them in any litigation.
(XI, 325). Miscellaneous.
Cited hi Rehbein ▼. Rahr, 109 Wis. 152, 85 N. W. 321, to point
that all creditors of corporation are plaintiff in creditor's suit
121 U. S. 67-73. Not cited.
121 U. S. 74-87, 30 L. 877, FIRST NAT. BANK v. SHEDD.
Syl. 4 (XI, 328). Decree of sale by receiver.
Approved in Merchantile Realty Co. ▼. Stetson, 120 Iowa, 331,
94 N. W. 862, holding court may, on application of receiver, order
sale of property in hands of receiver without right of redemption,
subject to incumbrances.
121 U. S. 87-89, 30 L. 882, CARPER ▼. FITZ-GERALD.
Syl. 1 (XI, 328). Courts — Circuit Judge's discharge on habeas
corpus.
Approved in Chow Loy v. United States, 112 Fed. 359, holding
right of appeal given by section 13 of Chinese exclusion act of 188S,
providing that Chinese convicted before commissioner may, within
ten days, appealed to Judge of District Court is to Judge as special
tribunal and not to District Court
Syl. 2 (XI, 329). Review of Circuit Court's decision on habeas
corpus.
Approved in Ex parte Jacobi, 104 Fed. 681, holding decision of
circuit ^dge in chambers In habeas corpus proceedings is not final
decision of court from which appeal lies.
121 U. S. 89-105. Not cited.
Vol. 11 — 59
121 U. S. 105-138 Notes on U. S. Reports. 990
121 U. S. 105-118, 30 L. 905. GRANT ▼. ?HCENIX LIFE INS. CO.
SyL 1 (XI, 329). Gestui's right to foreclose equity of redemptioiL
Approved in Claflln Co. v. Furticli, 119 Fed. 432, holding where
chattel mortgage single debt is taken to third person as trustee,
creditor may foreclose in own name.
Syl. 5 (XI, 330). Equity — Filhig plea with answer.
Approved in Miller, etc.. Lux v. Riclcey, 123 Fed. 607, holding
erroneous to file without leave of court, three pleas.
Syl. 7 (XI, 330). Appointment of receiver on foreclosure.
Approved in Boyce v. Continental Wire Co., 123 Fed. 742, hold-
ing when receiver appointed in foreclosure on ground of insolvency
of mortgagor and inadequacy of security, right to Income is bi
mortgage; Pacific Northwest Packing Co. ▼. Allen, 109 Fed. 618,
upholding appointment of receiver for corporation at suit of prin-
cipal creditor, who holds mortgage on entire plant, where it is
probably insolvent and some of its numerous creditors have brought
actions against it; dissenting opinion in Heinze v. Butte, etc, Min.
Co., 126 Fed. 29, majority holding appellate court will not reverse
order of lower court in partition of mine, ordering receiver pre-
viously appointed to operate interest in dispute, to operate whole
of mine. See 72 Am. St Rep. 75, note.
Syl. 8 (XI, 330). Usury — Commissions on loan.
Approved in Union Mort., etc.. Go. ▼. Hagood, 97 Fed. 365,
holding loan on real estate security negotlafed by bank and its
local agent, who acted for borrower, notes and mortgage boing exe-
cuted to third party, which furnishes the moiioy on delivery to it
of notes and executed mortgage, notes bearlnsc Ici^al interest not
usurious, because borrower pays commission to bank or its agent
121 U. S. 118-121. Not cited.
121 U. S. 121-138, 30 L. 923, BLOOMFIELD v. CHARTER OAK
BANK.
SyL 3 (XI, 331). Town meeting duly called necessary to contract
Approved in Emmons Co. v. Lands of First Nat Bank, 9 N. Dak.
591, 84 N. W. 381, upholding call made by county commissioners
under Laws 1897, §§2, 67, for meeting at which newspaper for
printing delinquent tax list was designated.
Syl. 6 (XI, 331). Estoppel in pals arises when.
Approved in Gale v. Chase Nat Bank, 104 Fed. 219, holding to
warrant finding that bank cashier had implied authority to issue
cashier's drafts to his own order in payment of his individual debts,
so as to bind bank and protect creditor in accepting draft so
drawn for sum so large as to be out of usual line of conduct in
9S1 Notes on U. S. Reports. 121 U. 8. 13&-1^
banking business, evidence that be bad drawn only nine drafts
In payment of individual debts, only four of wbicb were to own
order, is insufficient
(XI, 831). Miscellaneous.
Cited in State v. Barker, 116 Iowa, 102, 89 N. W. 206, holding
▼old Code, § 747, authorizing District Court to appoint trustees of
water- works in cities of first class.
121 U. S. 138-162, 30 L. 895, MBRCANTILB BANK ▼. NEW YORK.
Syl. 1 (XI, 331). State tax on national bank shares.
Approved in First Nat Bank v. Turner, 154 Ind. 458, 57 N. B. Ill,
holding owners of shares In national bank not entitled to deduct
from assessed valuation of stock their bona fide indebtedness; Jen-
kins V. Neff, 163 N. Y. 327, 57 N. E. 410, holding fact that banking
law of 1892, chap. 689, S 156, authorizes trust companies to exercise
powers conferred on individual banks and bankers by section 55,
fixing rate of interest to be charged and Imx>osing penalty for vio-
lation of Its provisions does not bring such banks in competition
with national banks within Rev. Stat, S 5219.
Syl. 2 (XI, 332). Tax on bank shares — Investment in consols.
Approved In Cleveland Trust Co. ▼. Lander, 184 U. S. Ill, 46 L.
458, 22 Sup. Ct 395, holding shareholders in trust company, under
Ohio statutes, not entitled to have deduction from value of shares
of amount of capital stock of company Invested in government
bonds; People's Nat. Bank v. Marye, 107 Fed. 580, upholding Virginia
act taxing bank shares at market value without deduction for Indebt-
edness, though taxpayer may deduct amount of indebtedness from
all evidences of debt which he is required to return for taxation.
Distinguished in Cleveland Trust Co. v. Lander, 62 Ohio St 274,
56 N. B. 1039, upholding Rev. Stat, SS 2762, 2764-2766, 2769, taxing
bank shares.
Syl. 3 (XI, 332). Object of limitation of tax on bank shares.
Approved in Jenkins v. NefT, 186 U. S. 231, 232, 46 L. 1141, 22 Sup.
Ot 906, holding N. Y. Laws 1892, chap. 689, relative to taxation of
trust companies, does not discriminate against national banks; Illi-
nois Nat Bank v. Kinsella, 201 111. 38, 66 N. B. 339, upholding Hurd's
Stat 1899, p. 1393, which taxes bank shares as well as real estate at
full fair cash value and does not permit deduction of assessed value
of realty from value of shares; National State Bank v. Burlington,
119 Iowa, 700, 94 N. W. 235, holding taxation of private banks on
aggregate value of property invested, while incorpoi'ated banks,
including national banks, are taxed according to value of shares,
not discrimination; Scobec, Sheriff v. Bean, etc.; Same v. Scott,
etc., 109 Ky. 533, 59 S. W. 861, holding fact that national bank
shares are taxed in hands of owners while other banks taxed by
121 U. S. 138-ie2 Notes on U. S. Reports. 932
imposition of franchise tax does not discriminate against natiomil
bank shares; Deposit Bank of Owvnsboro t. Daviess Co., 1Q2 Kj,
192, 39 S. W. 1035, holding shares of stock in banks are subject
to county and municipal taxation; Primm v. Fort, 23 Tex. Civ. 612,
57 S. W. 90, holding imder Rev. Stat, arts. 5063, 5064, 5079-5061,
owner of national bank shares cannot deduct his indebtedness from
value of stock for taxation purposes; Commercial Nat Bank v.
Chambers, 21 Utah, 346, 61 Pac. 565, holding under Const, art 13,
§S 2, 3, and Rev. Stat 1898, Sf 2505-2508, allowing certain deductions
of value of real estate from value of shares, no discrimination is
made against national banks.
SyL 4 (XI, 832). *' Money capital *' construed.
Approved in National Bank v. liayor, etc., of Baltimore, 100 Fed.
29, heading Md. Laws 1896, chap. 143, providing that evidences
of indebtedness of corporations and shares in foreign corporations,
owned by residents, cannot be taxed for coimty or city purposes
at more than certain rate, does not render taxation of national bank
shares for city purposes at higher rate Illegal; Mercantile Nat Bank
V. Hubbard, 98 Fed. 471, holding Ohio tax statutes permitting de-
duction of indebtedness from credits make no discrimination against
national bank shares merely because such credits include savings,
deposits, and shares in building associations; First Nat Bank v.
Turner, 154 Ind. 461, 462, 57 N. B. 112, 113, holding owners of shares
in national bank not entitled to deduct from assessed valuation
of stock their bona fide Indebtedness; Cleveland Trust Co. v. Lander,
62 Ohio St 270, 56 N. E. 1037, upholding Rev. Stat, f f 2762, 2764-
2766, 2769, taxing bank shares.
Syl. 6 (XI, 333). Trust companies are not banks.
Approved In Jenkins v. Neff, 186 U. S. 233, 237, 46 L. 1142, 1143,
22 Sup. Ct 906, holding N. Y. Laws 1892, chap. 689, relative to
taxation of trust companies, does not discriminate against national
banks; National Bank v. Mayor, etc., of Baltimore, 100 Fed. 30,
holding Md. Laws 1896, chap. 143, providing that evidences of
Indebtedness of corporations and shares in foreign corporations,
owned by residents, cannot be taxed for city or county purposes
at more than certain rate, does not render taxation of national bank
shares for city purposes at higher rate Illegal; Mechanic's Nat Bank
V. Baker, Recr., 65 N. J. L. 551, 48 Atl. 582, affirming 65 N. J. L. 118.
46 Atl. 587, reaffirming rule in upholding tax act of 1899.
Syl. 9 (XI, 333). Municipal bonds not taxable.
Approved In Plummer v. Color, 178 U. S. 117, 44 L. 1001, 20
Sup. Ct 830, holding legacy of government bonds not exempted
from inheritance tax laws of New York.
933 Notes on U. 8. Reporta. 121 U. S. 16^200
121 U. S. 163-165, 30 L. 904, NEWARK BANKING CO. V.
NEWARK.
Syl. 1 (XI, 334). Same as preceding case.
Approved in Illinois Nat Bank v. Kinsella, 201 IlL 38, 66 N. E.
340, upholding Kurd's Stat. 1899, p. 1393, which taxes bank sharei
as well as real estate at full fair cash value and does not permit
deduction of assessed value of realty from value of shares.
121 U. S. 165-171, 30 L. 885, CONCORD v. ROBINSON.
Syl. 1 (XI, 334). Municipal power to aid railroad — Bonds.
Approved in Watson v. City of Huron, 97 Fed. 450, holding ne-
gotiable warrants issued by city officers to raise funds for purpose
for which city had no authority to create debt, and proceeds used
by city for puri>osc intended, are void in hands of bona fide holder
In spite of recitals that they wexe issued for legitimate and au-
thorized purpose.
121 U. S. 172-179, 30 L. 911, KATZENBERGER v. ABERDEEN.
Syl. 3 (XI, 334). Ratification of unauthorized bonds.
Approved in Clarke v. Town of Northampton, 120 Fed. 662, hold-
ing where municipality has no power to issue bonds payment of
interest thereon is not such ratification as estops municipality from
pleading invalidity.
121 U. S. 179-182, 30 L. 883, LAIDLY v. HUNTINGTON.
Syl. 2 (XI, 335). No removal after hearing on demurrer.
Approved in Winkler v. Chicago, etc., R. R. Co., 108 Fed. 307,
holding under Indiana statute, where demurrer to complaint was
overruled on third day of second term after that to which sum-
mons was returnable, petition for removal filed on fourth day of
succeeding term is too late.
121 U. S. 182-185. Not cited.
121 U. S. 186-200, 30 L. 915, BARRON v. BURNSIDB.
SyL 2 (XI, 336). Foreign corporations — Stipulation not to re-
move causes.
Approved in Cable v. United States Life Ins. Co., 191 U. S. 306,
307, reversing 98 Fed. 767, upholding Federal Jurisdiction of suit to
cancel insurance policy where diverse citizenship exists, notwith-
standing commencement of State suit on policy by defendant, where
bill alleges fraud in procurement of policy, and that if Insurer
removes suit to Federal court it will forfeit its license to do busi-
ness In State; Debnam v. Southern, etc., Tel. Co., 126 N. C. 841,
36 S. E. 272, holding Acts 1899, chap. 62, made foreign corporations
domestic and did not merely license them, and so prohibited them
121 n. 8. 201-24T Notes oa U. S. Reports. 934
from removing eults to Federal courts. See 85 Am. St Rep. 921,
121 U. S. 201-215, 30 L, 832, McCONIHAY v. WRIGHT.
S;l. 1 (XI. 336). Wbat Is adequate remedf at law.
Approved la Smtth v. Reevee, ITS U. S. 444, 44 L. 1144, 20 Sup.
Ct, »22, boldlng consent of State U> be sued, which Is given by
Cal. Pol, Code, { S609, providing tliat State treasurer may demand
trial in Superior Court of Sacramento county, does not authorize
action In Federal court: Rochceter Cermaa Idb. Co. v. Schmidi.
126 Fed. 1002, holding where several insurers if liable were only
liable pro rata, and several State suits bad been brought against
them to which same derenses were Interposed and some were re-
moved, Federal courts could enjoin suits in both Federal and Statp
courts by bill In equity to determine and adjust liabilities: Twin City
Power Co. t. Barrett 120 Fed. 307, affirming 118 Fed. 86S, upholding
Jurisdiction of suit for appointment of receiver to complete purchase
of options which were about to expire; National Surety Co. t. State
Banlc, 120 Fed. G03, holding Federal equity court may enjoin plain-
tiff in unconscionable State Judgment from using It to estort
money from defendant: Fecit v. Ayers, etc.. Tie Co., 116 Fed. 275,
holding possession by complainant not essential to maintenance of
suit In equity to restrain waste by cutting and removal of timber,
and incidentally for an accounting for waste already committed;
Groen v. Turner. S8 Fed. 759, holding Jurisdiction of Federal equity
court in action to quiet title by resident of State where land is situ-
ate, against residents of other States on whom personal service could
not be bad in such State, not defeated merely because action for
possession could be maintained against tenants In poBSeeslon.
121 U. S. 215-230. Not cited.
121 U. S. 230-247, 30 L. 838, FARGO T. MICHIGAN.
Syl. 3 (XI, 338). State cannot tax business which is interstate.
Approved In Atlantic & Pacific Tel. Co, v. Phlladelpbia, 100 C.
S. 162, 23 Sop. Ct 818, 47 L. 9»9, holding telegraph company thougli
engaged In InterBtate commerce may be compelled by municipality
to pay reasonable license fee for enforcement of local supervision of
Its poles and wires; In re Appeal of Union Tank: Line Co., 204 IlL
350, 68 N. B. 505, holding cars of foreign corporation (not railroad)
having its principal office in another State, which are merely in
transit for purpose of bringing goods Into or through this State, can'
not be taxed here.
SyL 4 (XI. 338). State taxation of interstate road's gross receipts.
Approved in Cumberland & Pa. R. R. v. SUte, 92 Md- 685, 68T,
689, 48 Atl. 508, 509, upholding Acts ISSM), chap. 559, and 189(i, chap.
120, levying tax gross receipts of railroads doing business In State
935 Notes on U. S. Reports. 121 U. S. 248-204
and prOTldlng for proportional deduction where road does Interstate
121 U. S. 248-250. Not cited,
121 U. S. 251, 252, 30 L. 915. PENNSYLVANIA t. CALHOUN.
S7I. ( XI, 338}. Loan to pay mortgage interest gives do rlgbt In
mortgage.
Approved In Ullnoia Trust, etc., Bank 7. Doud, 105 Fed. 133, 145,
boldlng claim of creditor for money loaned to pay Interest on prior
mortgage debt Is Inferior to Hen at prior mortgage and cannot be
preferred In administration of mortgaged property under foreclosure
recelverahlp; First Nat. Bank v. Ewing, 103 Fed. 180, holding
contractor wtio furnished labor and materials for original con-
struction of railroad prior to time it passed Into bands of receiver
not entitled to prior Den over prior mortgages.
121 U. S. 253, 251, 30 L. 914, MENARD v. GOGGAN.
SyL 1 (XI, 339). Coui'ts — Averment of residence InsnfflclenL
Approved m LIttell v. Brie R, R. Co., 105 Fed. 539, holding allega-
tion In complaint that plalntllT Is citizen of United States and an
actual resident of State named is sufficient allegation of his citizen-
ship In such State for Jurisdictional purposes.
121 U. S. 254, 30 L. 914. UNITED STATES v. PHILLIPS.
Syl. 1 <X1, 340). Notice of writ of error In open court
Approved In Loveless v. Ransom, 109 Fed. 392, holding fact that
judge of trial court approved bond on writ of error does not operate
as writ of error.
121 U. S. 255-264, 30 L. 920, CLE^'■ELAND ROLUNG-MILLS v.
RHODES.
SyL 1 (XI, 340). Delivery of goods after stipulated time.
Approved In Roehm v. HorHt, 178 U. S. 15, 44 L. 959. 20 Sup. Ct
785, holding unqusllBed and positive refusal to perform contract
though performance not due may be treated as complete breach
entitling injured party to sue at once; National Surety Co. v. Long,
125 Fed. 802, holding surety discharged If condition known to obligee
upon which surety agreed to be bound Is not complied with; Loaden-
back Fertilizer Co. v. Tenneasee Phosphate Co., 121 Fed. 305, hold-
ing contract by manufacturing concern for purchase of all of certain
material used In Its factory tor Ave years at fixed price to be shipped
on orders as required is entire and Indivisible; Rice v. Fidelity &
Deposit Co., 103 Fed. 433, holding failure to comply with promise
In Btatemeut by employers to obligor In bond of Indemnity against
dishonest acts of their employee that they will apply certain checks
to hlB action, which is to be basis of bond, la fatal to action on
i
121 U. S. 264-285 Notes on U. S. Reports. 936
bond; Denton ▼. Mclnnfs, 85 Mo. App. 556, holding delay of fomteen
days In shipments being unreasonable delay under contract in which
time was of essence, party could repudiate; dissenting opinion in
Phenlz Ins. Go. ▼. Guarantee Co., 115 Fed. 070, majority construing
statement in application to surety company for cashier's bcHid as to
rendition of statement of balances to customers.
121 U. S. 264-278, 30 L. 967, HINCKLEY ▼. PITTSBURG. ETC.,
STEEL CO.
Syl. 1 (XI, 841). Tender where buyer renders performance im-
possible.
Distinguished in Wheeling Steel Co. v. Evans, 97 Md. 814, 55 Aa
875, holding where in reply to Inquiries plaintiff offered to sell tack
plate at certain prices and defendant replied to enter order and
that specifications were to follow but afterward refused to send
specifications, no complete contract made.
SyL 2 (XI, 341). Damages for breach of contract
Approved in Puritan Coke Co. ▼. Clark, 204 Pa. St. 565, 54 AtL 853,
reafilrming rule; Koehm v. Horst, 178 U. S. 21, 44 L. 961, 20 Sup. Ct
788, holding damages for breach of contract by renunciation thereof
before performance due are loss sustained by continued breach down
to time of complete performance, less abatement by reason of chr-
cumstances of which he ought to have availed himself; Lincoln v.
Levi Cotton Mills Co., 128 Fed. 868, holding where yam was sold
by manufacturer through broker, on breach of contract by buyer,
manufacturer could recover profit he would have made if buyer had
performed contract, less profit actually received from sales to others;
In re Stem, 116 Fed. 608, holding claims for damages for breach of
contract are provable claims in involuntary proceedings in bank-
ruptcy under bankruptcy act 1898, fi 50, 63.
121 U. S. 278-280, 30 L. 946, UNITED STATES ▼. LE BRIS.
Syl. 2 (XI, 342). Reference to repeated statutes in construction.
Approved In Daniel v. Slmms, 49 W. Va. 567, 39 S. E. 695, follow-
ing rule.
121 U. S. 281-284. Not cited.
121 U. S. 284, 285, 30 L. 961, LOUISIANA BANK ▼. WHITNEY.
SyL 1 (XI, 342). Order to pay Into court not final.
Approved in Southern R. R. (>). v. Postal Tel. Cable Co., 179 U.
S. 643, 45 L. 356. 21 Sup. Ot 250, holding writ of error does not lie
when it is taken without waiting for any further proceedings after
appointment of commissioners in condemnation proceedings and
sustaining demurrer to answer which is filed, and refusal to permit
testimony In support of answer.
937 Notes on U. S. Reports. 121 U. S. 28^-324
121 U. S. 28&-295, 30 L. 942, THATCHER HEATING CO. v.
BURTIS.
Syl. 2 (XI, 343). Patents ~ Combination of old elements.
Approved In Wisconsin, etc., Co. v. American, etc.,. Co., 125 Fed.
769, holding Notion patent No. 521,174, for cleaning machine, void.
121 U. S. 295-309. Not cited.
121 U. S. 310-324, 30 L. 971, HUISKAMP v. MOLINB WAGON CO.
Syl. 1 (XI, 344). Fraudulent conveyance — Mortgage from in-
solvent
Approved in Foster v. McAlester, 114 Fed. 154, holding chattel
mortgage valid on Its face taken by bona fide creditor to secure
debt, and not for purpose of assisting debtor to hinder or delay
other creditors, Is valid.
SyL 3 (XI, 344). Appropriation of firm property to individual
debts.
Approved In Merchants' Bank v. Thomas, 121 Fed. 310, holding
where all creditors of firm who were such at time firm agreed to
pay individual debt of one partner in consideration of extension
of time, both for debt of such individual partner and debt of
firm to same creditor, had been paid in full prior to petition in
bankruptcy, firm's agreement to pay individual debt not attackable
by other creditors as fraud on firm's creditors; In re Keller, 109
Fed. 121, holding where partner purchased copartner's Interest,
assumed debts, and continued business, and then went Into bank-
ruptcy, but firm not adjudged bankrupt, firm creditor could prove
claim against bankrupt's estate only on surrendering preferential
payments received within four months prior to filing petition.
SyL 5 (XI, 344). Transfer of firm property extinguishes equities.
Approved in Mansur-Tebbetts Imp. Co. v. Bruton, 159 Mo. 225,
60 S. W. 90, holding when party bought out one member of firm,
borrowing money from bank to do so, and later other partner
bought out purchaser giving note and deed of trust in payment for
interest, which note was immediately transferred to bank in pay-
ment of loan, bank's knowledge of transaction did not make deed
invalid as against attachment levied by firm creditor.
Distinguished in dissenting opinion in Mansur-Tebbetts Imp. Co.
V. Bruton, 159 Mo. 229, 60 S. W. 91, majority holding where party
bought out one member of firm, borrowing money from bank to
do 80, and later other partner bought out purchaser giving note
and deed of trust in payment, which was immediately transferred
to bank in payment of loan, bank's knowledge of transaction did
not make deed invalid as against attachment levied by firm creditor.
121 U. S. 325-392 Notes on U. S. Reports. 988
121 U. S. 325-382, 30 L. W9, MAXWELL LAND GRANT CASE.
Syl. 3 (XI, 345). Proof for cancellation of instruments.
Approved In Chicago, etc., Ry. Co. v. Wilcox, 116 Fed. 914,
holding where complainant released claim for broken hip and was
Induced by her physician who was also company's physician to
believe she would be well within year, and she settled on that
basis, fact that injury turned out to be permanent not ground to
avoid release; Koen v. Kerns, 47 W. Va. 580, 35 S. B. 904, holding
where deed made under prior executory contract varies there-
from, it may be shown that variance is due to mistake in drawing
deed.
Syl. 4 (XI, 345). Proof for cancellation of land patent.
Approved In Thallman v. Thomas, 111 Fed. 282, reaffirming rule;
United States v. Clark, 125 Fed. 777, holding patent for public land
will not be set aside on ground of fraud committed by patentees
where proof is only sufficient to raise suspicion of fraud not amount-
ing to conviction; United States v. Detroit Timber & Lumber Co.,
124 Fed. 399, holding fact that lumber company lent money without
security to persons to enable them to enter and pay for Land under
timber and stone act. In expectation that when entrymen obtained
title it would be enabled to buy timber from such lands by reason
of its having only mill in vicinity, does not render entries void for
fraud; Files v. Brown, 124 Fed. 139, refusing to rescind sale of
Judgment by receiver pursuant to order of court on ground of in-
ad<Miuacy of price; Gray v. Law, 6 Idaho, 566, 57 Pac. 436, 96 Am.
St Rep. 283, applying principle in attempt to impeach married
woman's certificate of acknowledgment
Syl. 6 (XI, 346). Courts cannot limit confirmed Mexican grant
Approved in Astiazaran v. Santa Rita Land, etc., Co., 3 Ariz.
26, 20 Pac. 192, holding territorial courts cannot determine validity
of Spanish or Mexican grant until surveyor-general reports.
121 U. S. 383-387. Not cited.
121 U. S. 388-392, 30 L. 1059, LEHIGH WATER CO. v. BASTON.
Syl. 2 (XI, 347). Obligation clause applies to subsequent laws
only.
Approved in Oshkosh Water- Works v. Oshkosh, 187 U. S. 446, 23
Sup. Ct 237, 47 L. 253, holding obligation of contracts with munici-
pality not impaired by subsequent changes in its charter, which pro-
tect it from suit on claims not first presented to council and disal-
lowed; Skanea teles Water- Works Co. v. Skaneateles, 184 U. S. 367, 46
L. 692, 22 Sup. Ct 405, holding implied contract that village will not
construct its own water-works or provide itself therewith other-
wise than by purchase or condemnation of works of incorporated
water company, after expiration of contract for water supply, does
Not
I D. S. Reporta. 121 D. S. 31»3~403
not arise from consent of vHInge to lucorporatlon of company and
Ita construction of works under nonexclusive franchise; Plnney
V. Nelson. 183 D. S. 147. 46 L. 127. 22 Sup. Ct 54. holdlnft obliga-
tion of contract of stockholders In foreign corporation not Im-
paired by Cal. Civ. Code, 5 322 (enacted prior to Incorporation), Im-
posing same personal liability upon stockholders of foreign cor-
porations doing business in State as upon stockholders in domestic
corporations; Newburyport Water Co. v. City of Newburyport, 103
Fed. 589, holding where legislative franchise to corporation to erect
water-works to supply city wltti water is not exclusive, subse-
quent grant to city of right to build competing water-works does
not constitute taking without due process; Mercantile Trust, etc.,
Co. T. Collins Park, etc., Co., S9 Fed. 815, holding under provision
of Georgia Constitution prohibiting legislature from authorizing
construction of street railroad In city witbout consent of corporate
authorities, ordinance granting such franchise is State law within
contract clause of Federal Constitution; Falconer v. Simmons, 51
W. Va. 177. 41 S. E. laS. holding where there la a statute and a
decision giving It certain construetlon and there Is a contract valid
under such construction, later decision does not retroactively In-
validate such contract. See 93 Am. St. Rep. 898, note.
Syl. 3 (XI. 347). Review of State decision construing contract.
Approved In Baltimore, etc., Ry. Co. v. Mayor and City Council,
178 V. S. 681, 45 L. 384, 21 Sup. Ct. BIS, reaffirming rule; New
Orleans Water-Works Co. v. Louisiana. 185 U. S. 351, 48 L. &44. 22
Sup. CL 696. holding claim that forfeiture of charter of water-
works for maintaining Illegal rates by decree of State court after
full hearing by all parties In quo warranto Impaired obligation of
contract gives no Jurisdiction to Supreme Court to review decree;
Gulf & Ship Island R. R. Co. v. Hewes. 183 U. S. 76. 40 L. 01. 22
Sup. Ct. 29. bolding exemption from taxation for term of twenty
years which Miss, act of February 23, 18S2, { 18, assumes to give
to railroad thereby Incorporated, la subject to power of legislature
to alter or amend it; Yazoo & M. V. R. R. Co. v. Adams, 180 U. S.
45, 45 L. 417, 21 Sup. Ct. 257. bolding Federal question as to Im-
pairment ot contract not raised where only question Involved In
State court was construction of charter, though it appeared that
there were statutes subsequent thereto which might have been
but were not relied upon as raising Federal question concerning
construction of charter.
121 D. 8. 303-403, 30 L. 1061, NOONAN v. CALEDONIA MIN. CO.
Syl. 2 (XI. 348). Objection to evidence must specify grounds.
Approved In Choctaw, Oklahoma, etc., R. R. Go. v. McDade. 191
D. 8. 09, reaffirming rule; Illinois Car, etc., Co. v. Llnstroth Wagon
Co., 112 Fed. 739, bolding objection that copy of contract Intro-
k
i
121 U. S. 404-430 Notes on U. S. Reports. 940
duced in evidence was not stamped and that there was no proof
that original was, as req aired by internal revenue laws, must be
made when document is offered.
Distinguished in Holy Cross, etc, Co. v. O'Sullivan, 27 Colo. 242.
00 Pac. 572, holding where general objection is made to objection of
evidence that it is " incompetent, irrelevant, and immaterial,*' it is
sufficient to permit assignment on review of any specific objecticm
embraced within general one.
Syl. 8 (XI, 84S). Mines — Validation of wrongful location work.
Approved In Deadwood v. Whittaker, 12 S. Dak. 520, 81 N. W.
009, holding one entering Indian reservation and attempting to lo-
cate mining claim to which, after opening of reservation. It was
given patent, had, prior to opening, sufficient right in such dalm
to part with portion thereof by dedication for highway.
1^ U. 8. 404-421. Not cited.
121 U. 8. 421-430, 80 L. 992, CARSON v. DUNHAM.
8yl. 4 (XI, 849). Removal of cause divests State court Jurisdic-
tion.
Approved In Hadfleld v. Northwestern Life Assur. Co., 105 Fed.
532, holding Federal court may permit amendment of removal
petition and bond correcting name of court to which cause is re-
moved.
Syl. 5 (XI, 349). State decision adverse to Federal right — Record.
Approved in Files v. Davis, 118 Fed. 409, holding action on at-
tachment bond executed in Federal court presents Federal question;
State of South Carolina v. Virginia-Carolina, etc., Co., 117 Fed. 728,
holding action by State to subject foreign corporation to penalties
imposed by State statute not removable on ground of Federal
question, where neither complaint nor statute makes any reference
to Federal Constitution, but statute purports to have been pa^ised
in exercise of police powers; Marrs v. Felton, 102 Fed. 779, hold-
ing where Federal court receiver Is properly Joined in State court
witli codefendant who has no right of removal, and suit does not
involve separable controversy, receiver cannot remove; State v.
Frost, .113 Wis. 646, 89 N. W. 919, holding information in behalf of
State to enjoin Federal receiver from destroying railroad to sell
materials composing it pursuant to order of court is removable.
Syl. 7 (XI, 349). Petition on removal must show facts.
Approved In Kinney v. Columbia Savings, etc., Assn., 191 U. S.
82, upholding power of Circuit Court before action on merits to
amend removal petition by addition of specific averments of plain-
tiff's citizenship, where such citizenship may be inferred from
record; Hodge v. Chicago, etc., Ry. Co., 121 Fed. 61, holding Fed-
9il Notes on U. S. Reports. 121 U. S. 430-457
eral court may permit amendment of removal bond after time for
s'emoval, where it incorrectly designates district and removal pe-
tition disclosed jurisdictional facts; Randall v. New England Order
of Protection, 118 Fed. 783, holding where removal petition filed Feb-
ruary 13th alleged that defendant was required to appear within
forty-two days of December 3d, but that time to plead was to lie regu-
lated by rule of court, and that time did not expire until February
14th, motion to remand because under court rules time had expired
which fails to set up rules not sustained; Kerr v. Modern Wood-
men of America, 117 Fed. 595, holding Federal court may permit
amendment of removal petition to correct allegations of plaintiff's
citizenship, where plaintiff's own showing establishes requisite
diversity of citizenship; Green v. Heaston, 154 Ind. 129, 56 N. E.
88, holding removal petition alleging diverse residence of parties at
time of filing complaint instead of diverse citizenship at commence-
ment of action and also when petition is filed is insufl^olent where
pleadings do not show citizenship.
Distinguished in Dalton v. Milwaukee Mechanics' Ins. Co., 118
Fed. 882, 883, holding where record in State court after filing of
removal petition fails to show facts necessary to divest that court
of Jurisdiction, Federal court into which record is removed cannot
permit amendment of removal petition to show such facts.
121 U. S. 430-443. Not cited.
121 U. S. 444-450. 80 L. 976, OUACHITA PACKET CO. V. AIKEN.
SyL 1 (XI, 350). State commerce regulation in absence of con-
gressionaL
Approved In Portland v. Montgomery, 38 Or. 224, 62 Pac. 758,
holding 21 Stat 454, 455, S 7, prohibiting construction of wharf out-
side harbor lines without permission of war department does not
prohibit city from restraining erection of wharves beyond city
wharf line which is within war department's line.
(XI, 350). Miscellaneous.
Cited in Atlantic & Pacific Tel. Co. ▼. Philadelphia, 190 U. S. 163,
23 Sup. Ct 818, 47 L. 1000, to point that corporation engaged in in-
terstate commerce cannot take property without compensating
owner.
121 U. S. 451-457, 30 L. 982, ALBANY, ETC., CO. ▼. LUNDBERG.
Syl. 1 (XI, 350). Suit by agent contracting in own name.
Approved in Hale v. Tyler, 104 Fed. 761, holding special receiver
appointed by Minnesota court for that purpose can maintain an-
cillary suits in Federal court of another Jurisdiction to enforce
statutory liability of nonresident stockholders in Minnesota cor-
poration.
121 U. S. 457-521 Notes on U. S. Reports. M2
121 U. S. 457-468, 30 L. 985, BOYNTON ▼. BALL.
Syl. 1 (XI, 351). Bankruptcy — Original debt not merged In
Judgment
Approved In Turner ▼. Turner, 108 Fed. 780, holding alimony
award in divorce decree not released by discbarg^e of husband
In bankruptcy; In re McBryde, 99 Fed. 688, holding where
creditor holding provable debt against bankrupt at date of adjudi-
cation thereafter brings suit in State court and recovers Judgment,
he may prove such Judgment as unsecured claim; Grand Ck>unty
V. People, 16 Colo. App. 223, 225, 64 Pac. 678, holding in man-
damus to compel county commissioners to levy tax to pay Judg-
ment rendered on county warrants, petition must show that board
has failed to levy tax it was required by law to levy to pay such
warrants.
Syl. 2 (XI, 351). Discharge in bankruptcy stays State Judgment
Approved in In re Geister, 97 Fed. 323, holding where at time
of adjudication in bankruptcy action is pending in State court
against bankrupt based on claim from which discharge in bank-
ruptcy will discharge him, application for stay of proceedings must
be made to State court; Lane v. Holcomb, 182 Mass. 361, 65 N. E.
794, holding under Pub. Stat, chap. 167, § 82, providing that Judg-
ment shall not be arrested for cause existing before verdict unless
cause affects Jurisdiction, proceedings will not be stayed because
of discharge in bankruptcy prior to verdict; dissenting opinion in
Grand County v. People, 16 Colo. App. 245, 246, 64 Pac. 686, ma-
jority holding In mandamus to compel county commissioners to levy
tax to pay Judgment rendered on county warrants, petition must
show that board has failed to levy tax it was required by law
to levy to pay such warrants.
121 U. S. 469-478. Not cited.
121 U. S. 478-484, 30 L. 1008, BRAGG v. FITCH.
Syl. 1 (XI, 352). Patent for improvements.
Approved in National Hollow, etc., Co. v. Interchangeable, etc.,
Ck)., 106 Fed. 714, upholding Hein patent No. 361,009, claim 2, for
metallic brake beam; Stokes Bros. Mfg. Co. v. Heller, 101 Fed. 269.
holding Stokes patent No. 397,254, for improvement in rasp-outting
machines, limited to specific combination described and not in-
fringed.
121 U. S. 484-^88. Not cited.
121 U. S. 488-521. 30 L. 1039, WRIGHT ▼. ROSBBBRRY.
Syl. 1 (XI, 353). Swamp land act was grant in prsesentl.
Approved in Simpson v. Stoddard Co., 173 Mo. 444, 73 S. W. 703,
reaffirming rule; Young v. Charnquist, 114 Iowa, 119, 86 N. W. 206,
0« Notes on U. S, IteporU. 121 U. S. 522^:24
holJlng after cerHflcation of land by land department an part of
Innd grant by railroad State could not claim it as awamp land.
Syl. 2 (XI, 351), Collateral attack on Interior department's acts.
Approved in Warner Stock Co. v. Calderwood, 36 Or. 232, 59
Pae. 118, holding under swamp land act purchaser ot swamp land
from State haa better title thereto than homesteader who settled
thereon after 18G0.
Syl. 6 (XI. 355). Oollateral sttaclc on land patent
Approved in King v. McAndrews. Ill Fed. 803. 873, 874. holding
patents issued by land department under town alte art of Starch 2,
1889. cannot be collaterally attacked, reversing 194 Fed. 431. hold-
ing Dak. act March 7, 1885, amending previous act Incorporating
city or Chamberlain by extending city limits, was valid notwith-
standing portion of land within Sioux reservation; Standard Qulck-
BllvOT Co. V. Hablshaw. 132 Cal. 119, 61 Pac. 115. holding determina-
tion of land department upon issuing patent to homestead settler
that land is agrlcnltural without rcBervatton of nilnersl lands Is
conclusive as against subsequent mineral claimant of any part of
IMitented land not known to be valuable for minerals at date of
patent; Small v. Lutz. 41 Or. 579, 69 Pac. 827, holding determina-
tion by secretary of interior, on application for patent, that lands
applied for were subject to homestead entry Is conclusive as against
one to whom laud had previously been conveyed by State under
list of swamp lands, approval of which had been revoked; Warner
Stock Co. V. Calderwood, 3G Or. 233, 50 Pac. 117, holding In eject-
ment by swamp land patentee against homesteader of same prop-
erty, defendant cannot show that land in dispute was not swamp
but was really beneath waters of nonnavlgable lake.
121 U. S, 522-524, 30 L. 192J, BOBINSON v. ANDERSON.
Syl. 1 (XI, 35ti). Dismissal where Jurisdictional allegations Im-
material.
Approved in Boston, etc., Mln. Co. t. Montan.i Ore Co., 188 TJ. S.
a43, 23 Sup. Ct 438, 47 L. 633, holding Jurisdiction If conferred on
Circuit Court by averments In bill as to defense which defendants
Intend to assert is ousted by filing answers disclaiming Intention
of relying on such defense; Excelsior Wooden Pipe Co. t. Pacific
Bridge Co., 185 U. S. 287, 46 L. 914, 22 Sup. CL 683, holding suit by
licensee against patentee and third person, In which bill sets up
title under third license, and alleges validity of patent and In-
fringement Is within Circuit Court's jurisdiction, though answer
raises no issue as to validity of patent or as to Infringement and
admits license but denies that It is a subsisting one; Chrystal
Springs Land, etc., Co. v. Los Angeles, 177 U. S. 160, 44 L. 720, 20
Sup. Ct. B73. holding suit to establish water rights connected with
lands Included In grant from Mexican government, which rights are
k
J
121 U. S. 52&-552 Notes on U. 8. Reports. 944
claimed to be within protection of Mexican treaty, involves no
Federal question; Florida Cent, etc., R. R. v. Bell, 176 U. 8. 330,
44 L. 491, 20 Sup. Ct 408, holding plaintiff whose statement of his
own claim does not disclose Federal question cannot create Juris-
diction in Circuit Court by anticipating defendant's claim and by
alleging that defendant will set up defense under Federal law.
121 U. 8. 625-535, 30 L. 980. WILSON'8 EXECUTOR v. DON,
Syl. 1 (XI, 856). Judgment on merits as bar.
Approved in Kilham v. Wilson, 112 Fed. 573, holding where firm
undertook to sell ranch for certain compensation and all in excess
of $225,000 and found purchaser who agreed to pay |275,000, part
cash and part notes, and purchaser defaulted, owner receiving in
all less than $225,000, and surviving partner sued for fixed com-
pensation and contingent fee, and lost as to contingent fee, such
Judgment bars accounting tn equity as to contingent fee; Hoagland
V. Hoagland, 25 Utah, 63, 69 Fac. 473, holding Judgment for defend-
ant in suit to compel him to support plaintiff and her child is
bar to subsequent suit on same facts, though in meantime sister
State divorce decree on which Judgment based has been annulled.
Syl. 2 (XI, 357). Extrinsic evidence to show res Judicata.
Approved in City Trust, etc., Co. v. Glencove Granite Co., 113 Fed.
179, upholding sufficiency of aflldavit of defense in action on bond;
In re Henry Ulfelder Clothing Co., 98 Fed. 412, holding where re-
spondent in bankruptcy denies alleged indebtedness to petitioning
creditor, adjudication is conclusive evidence of validity of peti-
tioner's claim when presented against estate.
121 U. S. 535-552, 30 L. 1000, STANLEY v. SUPERVISORS OF
ALBANY.
Syl. 1 (XI, 357). Findings of fact conclusive on appeal.
Approved in Ogden City v. Weaver, 108 Fed. 566, and (Consolidated
Coal Co. V. Polar Wave Ice Co., 106 Fed, 799, both reaffirming rule;
Dooley v. Pease, 180 U. S. 131, 45 L. 460, 21 Sup. Ct. 331, holding
errors In findings of Circuit Court not reviewable if there was any
evidence . upon which such finding could be made; American Sales
Book Co. V. Bullivant, 117 Fed. 200, applying principle in suit for
damages for infringement of patent; Empire State-Idaho Min., etc.,
Co. V. Bunker, etc., Min., etc., Co., 114 Fed. 418, applying principle
in ejectment for recovery of underground portions of lode; King v.
Smith, 110 Fed. 96, holding question of sufficiency of evidence to sup-
port findings of Circuit Court is reviewable on writ of error.
Syl. 3 (XI, 357). Remedy for wrongful tax levy.
Approved in Western Union Tel. Co. v. Missouri, 190 U. S. 426,
23 Sup. Ct 734, 47 L. 1122, aflirming 165 Mo. 516, 517, 524, 65 S. W.
777, 780, holding corporation alleging discrimination against itself
Notes c
U.
Beporte. 121 0. S. BSJ-Mb
by board wblcb hiu power to equalize aaeessmeuts canoot raise
question of tUscriminatJOD as defease to acttao at Inw n^'nlnBt it by
eonnty collector to collect tasea; Barber Asphalt Pav. Co. v. French,
158 Mo. 553. nS S. W. !H0, upboldiog assessment for street tniprove-
menta under city charter, providing that total cost shall be ap-
portioned to frontage of abutting lands according fronia^: Erick-
son v. Case County, 11 N. Dak. 507. 92 N. W. 848. holding appor-
tionment of cost of construction of drains by drainage commls-
sloaers nnder Laws ISOO. cbap. 79. is conclusive.
Syl. fi (XI, 358). Injunction where tax asseaament illegal.
Approved In Weyerliaueser v. Minnesota, 170 D. 8. 558, 44 L.
587. 20 Sup. Ct. 489. upholding Minn. Gen. Laws 1893, chap. 151,
relating to proceedings before governor for revaluation of under-
valued property, though no bearing provided for.
Dlstlngrulahed in Mercantile Nat. Bank v. Mayor. 172 N. T. 41, 49,
64 N. E. 758 ,761, refusing to restrain collection of tax on national
bank shares, tbough assessed at actual value, while real estate as-
sessed at 60 per cent
121 U. 8. 552-558, 30 L. 1010, FROST v. SPITLEY.
Syl. I (XI, 358). Possession and legal title necessary to quiet title.
Approved In Mitchell v. Funnan. 180 U. S. 428. 45 L. 609, 21
Snp. CL 440; Cocke v. CopenJiaver, 120 Fed. 14S, and Hltcbcoi
V. Morrison, 47 W. Va. 214, 34 S. B. 006. all reafflrmlug rule;
Eellar v. Craig. 128 Fed. 631, holding possession negatived where
It appears from bill that derendaals, with complalnaDt's consent,
drilled oil wells on land In compliance with lease, which is allegeO
to constitute cloud on title, and that they are In possession of-wells
and producing oil therefrom; Bent v. Hall, 1X9 Fed. 340, denying
Bnfflciency of bill alleging acceptance of application by State treas-
urer for purchase of school lands and acceptance of part payments,
and refusal of treasurer to accept further payments, and attempt
of land commissioner to cancel contract and attempt to sell lands
to another, and praying for cancellation of others' evidence of title,
and for writ of posaeHslon; Peck v, Ayers, etc., Tie Co., 116 Fed. 275,
upholding equity Jurisdiction over bill to remove cloud from title
and enjoin trespasses thereon, wblcb alleges title and possession In
complainant, adverse claim by defendant, tbat land Is chleSy
valuable for timber, and tbat defendant has repeatedly entered
thereon and cut and removed timber; Rlncon Water, etc., Co. v.
Anaheim Union Water Co., 115 Fed. 548, holding under California
Code claimant to water, who has not perfected appropriation of
water, acquires no exclusive right to use of water so as to be enti-
tled to sue for its diversion by others or to determine adverse
claims: Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 8,
holding averments that defendant has drilled oil wells on land and
Vol. 11— eo
k
n
121 U. S. 652-558 Notes on U. S. Reports. 9ie
Is taking oil therefrom, against which Injunction Is prajed, are
averments that defendant is in possession and render bill de-
murrable as in effect an ejectment bill; Dewing ▼. Woods^ 111
Fed. 577, denying Federal equity Jurisdiction where land sold to
State for taxes and bill asks injunction against sale of land under
decree adjudging title to be in State; Hanley v. Kansas & T. Goal
Co., 110 Fed. 69, denying Federal equity Jurisdiction over suit
seeking to declare trust in lands under will and for acoounttng
from defendant in possession and claiming adversely, where facts
showed that complainant's interest in lands vested him with equi-
table fee and entitled him to possession; M*6uire v. Fensacola City
Co., 105 Fed. 680, holding complainant out of possession but having
legal title cannot sue defendant in possession in Federal equity
court to remove cloud from title; Metzgar v. McCoy, 105 Fed. 676,
holding where plaintiff bad been in possession of realty for short
time and acquired title thereto by conveyance, after adverse Judg-
ment in ejectment against grantor by present defendant, and noth-
ing suggested in plaintifTs bill to quiet title which was not avail-
able as defense in ejectment suit, demurrer must be sustained;
Savage v. Worsham, 104 Fed. 20, holding where object of bill was
to establish trust in land and compel conveyance to complainant
on ground that through fraud defendant had been permitted to
enter land from United States, second pleading seeking to quiet
complainant's title not amendment to original bill which can be
filed without leave; Guarantee Trust, etc., Co. v. Delta, etc., Co., 104
Fed. 8, holding though one out of possession may be authorized
under State statute to bring action in Federal court to quiet title
he must establish legal title in himself; Pacheco v. Wilson, 2 Ariz.
414, 18 Fac. 597, holding where plaintiff claims title by possession
and shows that he holds as heir of mother, who claimed under will
of husband who died in possession more than eleven years before, he
is entitled to have his title quieted; M. O. P. Co. v. B. & M., etc.,
Co., 27 Mont 309. 539, 70 Pac. 1120, 71 Pac. 1006, holding where
plaintiff brings suit under Code Civ. Proc, § 1310, against defendant
not in possession, neither party entitled to Jury trial as of right
unless defendant, where plaintiff is in possession, raises legal
issue upon right of possession founded on assertion of legal title;
Moore v. Shofner. 40 Or. 491, 492, 67 Pac. 512, holding under Lawis
1890, p. 227, § 1, providing that any one claiming interest in realty
not in actual possession of another may maintain equity suit to
determine claims, it is necessary to plead and prove that land Is not
in possession of any one.
Distinguished in Dalrymple v. Security, etc., Co., 9 N. Dak. 314,
83 N. W. 248, holding under Rev. Codes, § 5904, suit to quiet title
may be maintained by a plaintiff who has an estate or interest io
real property, whether legal or equitable.
947 Notes on U. 8. BeportB. 121 U. S. 668-609
SyL 2 (XI, 359). Quieting title— In Nebraska legal title neces-
sary.
Approved in Ely ▼. New Mexico, etc, B. B., 2 Ariz. 427, 19 Pac. 9,
holding under Laws 1881, p. 116, § 1, complaint in suit to quiet title
must allege possession or right to possession in plaintiff or some
ground for equitable relief.
Syl. 3 (XI, 359). Courts — Quieting title by one out of pos-
session.
Approved in United States Mln. Ck>. v. Lawson, 115 F^ 1007,
holding Federal equity court, though sitting in State where by
statute suit to quiet title or to determine adverse claim may be
brought regardless of possession, cannot entertain suit by holder
of legal title unless bill shows affirmatively either possession in
complainant or that both complainant and defendant are out of
possession; Green v. Turner, 98 Fed. 758, holding Federal court's
jurisdiction of action to quiet title by resident of State where land
is situated against residents of other State, on whom personal ser-
vice could not be had in such State, not defeated m^ely oecause
action for possession could be maintained against tenants in pos-
session; Ely V. New Mexico, etc., R. R., 2 Ariz. 426, 19 Pac. 8,
holding under Laws 1881, p. 116, S 1, complaint in suit to quiet title
must allege possession or right to possession in plaintiff or some
ground for equitable relief; dissenting opinion in Heinze v. Butte,
etc., Mln. Co., 126 Fed. 25, majority holding to support partition
suit under Mont Code Civ. Proc., S 1340, which authorizes such suit
by cotenants who hold or are in possession of realty as Joint
tenants or tenants in common, actual possession is not necessary;
dissenting opinion in Wahl v. Franz, 100 Fed. 701, majority holding
where under Arkansas statute on appeal from decree granting pro-
bate of will case is tried de novo, such trial on appeal is not suit
of dvil nature at law or in equity within Judiciary act 1888, §§ 1, 2.
121 U. S. 558-575, 30 L. 1022, METROPOLITAN B. B. v. MOORE.
SyL 1 (XI, 359). Insufficiency of evidence to set aside verdict
Approved in Kelley v. Cunard SS. CJo., 120 Fed. 542, applying
principle in action by shipper against steamship company to recover
for failure to deliver cargo.
Syl. 2 (XI, 359). Construction of adopted statutes.
Approved in Peterman v. Northern Pac. By. Co., 105 Fed. 336,
holding under Bev. Stat Idaho 1887, S 4100, giving right of action
for wrongful death to heirs or personal representatives, mother of
adult unmarried son may recover damages for his wrongful death.
121 U. S. 575-609. Not cited.
121 U. 8. 60^-637 Notes on U. 8. Reports. 948
121 U. 8. 000-616, 80 L. 1012, HARTRANFT ▼. WEriGMANN.
8yL 2 (XI, 860). Manufactured article — Application of labor.
Approved In Hemlschel v. Drug Co., 26 Tex. Civ. 4, 61 8. W. 421,
holdihg within meaning of cltj ordinance requiring factories over
two stories in height to be provided with fire-escapes, wholesale
drug store not factory, though part of business was conducted In
laboratory where prescriptions compounded and goods rebottled
for retail trade.
8yL 4 (XI, 861). Duties not Imposed on vague interpretations.
Approved in 8wan & Finch Ck>. v. United States, 100 U. 8. 146,
28 8up. Ct 704, 47 L. 086, holding drawback provided for by 28 8tat
561, chapw 840, on exportation of articles manufactured from im-
ported materials on which duties have been paid not allowed on
goods placed on ship to be consumed during voyage; Eidman v.
MarUnez, 184 U. 8. 588, 46 L. 701, 22 Sup. Ct 517, holding Ameri-
can securities passing partly under will executed abroad by non-
resident alien and partly by foreign Intestate laws are not subject
to inheritance tax ImiXMBOd by war revenue act 1808, § 20; Hemp-
stead, etc.. Son V. Thomas, 122 Fed. 538, holding Tunstead ore en-
titled to free entry under tariff act 1807, S 614; Schoenemann v.
United States, 110 Fed. 587, holding shells treated with chloride of
lime to cleanse them are entitled to free entry under paragraph 635
of tariir act of 1807; United States v. Mullins, 110 Fed. 336, holding
where distilled spirits are purchased by United States and ordered
by secretary of treasury to be withdrawn from bonded warehouse,
free of tax, distiller cannot be charged with tax upon claimed
excess of shrlnl^age therein; Spreckles Sugar Refining Co. v. M*-
Claln, 118 Fed. 246, holding under war revenue act 1808, § 27, im-
posing tax on ];>ersons doing business of refining oil or sugar, whose
gross annual receipts exceed $250,000, regulation of commissioner
requiring assessment and collection of tax monthly on monthly
returns is unauthorized; Hart v. Smith, 150 Ind. 100, 64 N. E. 664.
holding good will of business not taxable under Bums* Rev. Stat
1001, § 8410, declaring that all property not expressly exempted
shall be taxable and section 8411 taxing certain described per-
sonalty but not mentioning good will.
121 U. S. 617-630, 30 L. 1004, SNOW v. LAKE SHORE, ETC., RY.
SyL 1 (XI, 362). Patents for improvements.
Approved in Union Steam Pump Co. v. Battle Creek Steam Pump
Co., 104 Fed. 345, holding Frost patent No. 428,602, for improve-
ment in steam valves, valid but not infringed by Metcalf patent
No. 442,005.
121 U. 8. 631-687. Not cited.
M9 Notes on U. S. Reports. 122 U. 8. 1-27
121 U. S. 637-e50. 30 L. 1049, NEW JERSBY STEAMBOAT CO. T.
BROCKBTT.
SyL 2 (XI, 863). Carriers — Misconduct of servant toward pas-
sengers.
Approved in Missouri Pac Ry. Co. v. Divinney, 66 Kan. 777, 71
Pac 856, reaffirming rule; Pouppirt v. Elder Dempster Shipping,
122 Fed. 992, holding libelee liable for injuries to passenger oc-
casioned by being strucls by long timber thrown over vesseFs side
by crew under command of officer; Pacific Postal Tel. Cable Co. v.
Bank of Palo Alto, 109 Fed. 376, holding telegraph company liable
to bank for loss occasioned to latter by its payment of money.
Without negligence, on message forged by operator; Jackson y.
Railroad, 52 La. Ann. 1712, 28 So. 243, holding where boy of four-
teen, even though he be trespassing, is forcibly ejected from moving
train, by person for whose actions company Is responsible, and
thereby loses an arm, company Is liable; Seawell v. Carolina Cent
R. R., 132 N. C. 859, 44 S. E. 611, upholding refusal of nonsuit in
action by passenger against railroad for assault by its employees.
SyL 5 (XI, 363). Declarations of officers as res gestae.
Approved in Jefferson Hotel Co. v. Warren, 128 Fed. 568, hold-
ing in action for destruction of guest's baggage In hotel fire, evi-
dence that on guest complaining to clerk that he ddd not 'desire room
as high as fourth floor, clerk assured him hotel was fireproof, was
i|dmlssible.
CXXII UNITED STATES.
122 U. S. 1-21, 30 L. 1128, BARNES v. CHICAGO, ETC., RT.
(XI, 364). Miscellaneous.
Cited in Gunnison v. Chicago, etc., Ry. Co., ^17 Fed. 645, to,
effect adverse possession commenced from time property sold and
conveyed under decree.
122 U. S. 21-23. Not cited.
122 U. S. 24-27, 30 L. 1117, HANA v. MAAS.
Syl. 1 (XI, 364). Bill of exceptions — Evidence, instructions,
notes.
Approved in Waterbouse v. Rock Island Alaska Min. Co., 97 Fed.
471, condemning presentation, record incumbered with much use-
less matter.
IMstlnguished in Columbus Const Co. v. Crane Co., 101 Fed.
57, 58, holding different grounds for objection to charge need not
be stated in bill of exceptions.
122 D. 8. 27-70 Notes on U. 8. Reporta.
!^I. 2 (XI, 3S1). EicepttODB duly framed and preseoted.
Approved In Western Dredging, etc., Co. 7. Beldmaler, 116 FeiL
1S2. holding under cIrcumBtances, elgnlDg of blU by trial judge at
subsequent term, nunc pro tunc, proper; Jolinson v. GebLauer, 159
Ind, 277, 6i N. E. STiT, boldlng appellant falling to present biU of
exceptions within Ome flsed by court Irrecoverably lost rlgLt to
do BO.
122 D. a 27-^. 30 L. 1083. GIBSON v. SHDFELDT.
8yl. 1 (XI, 365). Appeal — Amount In dispute — Record de-
term I nes.
Approved In Taylor v. Decatur Mineral, etc., Co.. 112 Fed. 450,
holding In dissolution of corporation and distribution of assets,
value of property administered upon determines JurlsdlctioD.
SyL 2 (XI, 306). Appeal — JurlsdlctloD. unnecessary parties
Approved tn Chamberlain v. Browning. 177 IT. S. 608. 44 L. 90S.
20 Sup. Ct. 822, dismissing for want of Jurisdiction, claims of none
of defendants Bufficlently large to confer Jurisdiction: Wakeman
V. Throckmorton, 124 Fed. 1011, remanding BUit to foreclose lien
where amount of lien ?827.60; Wisconsin Cent. Ry. Co. v, Fboenli
Ins. Co., 123 Fed. 890, denying JurlBdlctlon, liability of each insur-
ance company made party defendant, not exceeding $2,000; Jones
V. Mutual Fidelity Co., 123 Fed. 514, sustaining Jurisdiction In re-
ceivership proceedings, corporation's assets exceeding $2,000, ex-
clusive of Interest and costs. aithouj^U creditors' claims not ag-
gregating said amount: McDanlel v. Traylor, 123 Fed. 339. denying
Jurisdiction, action to set aside as fraudulent. Judgments against
estate, none exceeding $2,000, and Judgment creditors not Jointly
liable; Hagge v. Kansas City S. Ry. Co., 104 Fed. 393. sustaining
objection to Jurisdiction damage by overQow to each complaining
adjoining landowner leas than $2,000; Stemmler v. M'Neil, 102 Fed.
<S01. sustaining objection In suit to quiet title, no privity of title, and
value of property between each defendant and complainant less
than $2,000.
Distinguished In t^uIsviUe, etc., R. R. v. Smith. 128 Fed. 4, al.
lowing joinder of different landowners by railroad company to en-
join Interference with right of way regardless of value of respective
landowners' land; Colston v. Southern Home, etc., Assn., 99 Fed.
307, leaving undecided. In stockholders' proceeding for receiver's
appointment, whether value of property to be administered upon
or complainant's Interest determines jurisdiction.
122 U. S. 40-70, 30 L. 1064, EAMBS v. ANDRBW3.
Syl. 1 (XI, 366). Patents — Novelty discussed.
Approved tn Cblsholm v. Johnson, 108 Fed. 200. sustaining patent
for Improvements In melliod of bulling green peas.
951
Notes on U, S. Beporta.
122 U. S. 71-78
Sjt 2 (XI, 387), Patents — Speclficatione sufflcl en t — Scientific
theory unneceBsarr.
Approved In Amerloan Bell TeL Co. v. National Tel. Ufg. Co.i
109 Fed. 1046. holding upon question Ot anticipation, distinction
made as to actnal apparatus and manner oC operating not to In-
tention of prior patentee; Williams Futent Crusiier. etc.. Co. v.
St Louis Pulverizer Co.. 1(M Fed. 799. iiolding patentee failing to
appreciate and state every result in apeciflcatlon not deprived of
benefit thereof. If claims broad enougb; Emerson Co. v. Nimocka.
99 Fed. 740, bolding patent not void, because wrong rule of physics
assigned as cause of producing air currents.
Syl. i (XI. 3G7), Patents — Amended spedficatlong.
DistlngulBbed In Ide t. Trorllcbt, etc., Co., 115 Fed. 140. holding
:jiBertloa la reissued patent of claims, described but not claimed
or Intended so to be In original patent, unauthorized and void.
Syl. D (XI, 307). Patents — AnUcipatlon — ForelgD publicationa.
Approved in Klrcbberger v, American, etc.. Burner Co., 128 Fed.
605, holding upon question of anticipation foreign publication not
containing sufficient representation of patent Improvement to enable
person skilled In art to construct and practice Invention; Fay r.
Mason, 120 Fed. 509, holding drawings and speclflcatlons of alleged
aDtlclpating foreign patents Insufficient to establleb use of essential
elements.
122 U. S. 71-78, 30 K 1074, BEEDLH v. BENNETT.
Syl- 1 (XI, 368). PatcDta — Expiration, pending suit — Injunction.
Approved In Busch t. Jones, 184 D. S. GOO, 46 L. 710. 22 Sup. Ot
612. BustalDing Jurisdiction, although patent expired; United States
Mills Oa v. Detroit Steel, etc.. Spring Co., 122 Fed. SCO, bolding
Jurisdiction not defeated by failure of defendant to plead before
expiration of patent; Cblnnock v. Puterson P.. etc., Tel. Co., 112
Fed. 532, suetaJning Jurisdiction, although patent bad only four
months and five days to run after suit Instituted; minority opinion
in McNulty v. Mt. Morris El. L. Co.. 172 N. Y. 41S. 65 N. E. 108.
to effect, lease espiring before trial of action to restrain nuieance
to leasehold, plaintiff praying for damages, court of equity can
award same.
DIstingulBbed In McNulty T. Mt Morris El. L. Co.. 1T2 N. T. 415,
65 N. E. 197, holding In action to restrain nuisance to leasehold,
damages claimed, expiration of lease before trial not barring de-
fendant from trial by Jury for damages.
Syl. 2 (XI, 3tt8). Patents — Act 1869 — Proof of abandonment
Approved Id SwbId v. Hoiyobe Mach. Co., 102 Fed. 915, holding
construction and absolute sale of turbine wheel for actual nae
more tban two years prior to applicatlou defeats patent
U
122 U. S. 79-154 Notes on U. 8. Reports. 962
122 U. 8. 79-97, 80 L. 1077, IRON MOUNTAIN RY. T. KNIGHT.
Syl. 3 (XI, 860). Carrier's liability, biU of lading.
Approved in dissenting opinion in 8outhem Ry. Co. ▼. Atlantic
NaT. Bank, 112 Fed. 871, court allowing recovery of damages
against railway sued as carrier, but foond liable as owner of cotton
compress.
122 U. 8. 97-121. Not cited.
122 U. 8. 121-131, 80 L. 1110, TOPLIFF v. TOFLIFF.
SyL 1 (XI, 870). Contracts — Construction — Practical InteriHre-
tatlon.
Approved in Manhattan life Ins. Co. v. Wright, 126 Fed. 87,
construing note to be promise to repay loan, proceeds to be ap-
plied to payment of premium when due; Fitzgerald v. First Nat.
Bank, 114 Fed. 478, construing contract as applicable to particular
class of employees, parties so considering; Chicago, etc., R. R. Co.
V. Northern Pac. R. R. Co.,. 101 Fed. 795, holding payment for ten
years without objection of certain items under agreement evidence
that parties intended to include such items; Housekeeper Pub. Co.
V. Swift, 97 Fed. 296, holding consummation of sale und^ con-
tract strong evidence that contract embodied true ag^reement; Scho-
fleld V. State Nat. Bank, 97 Fed. 286, construing contract in light
of subsequent agreement made two months later between same
parties; St. Louis v. Laclede Gas L. Co., 155 Mo. 19, 55 8. W. 1008,
city failing to make demand for 5 per cent of gross earning for
six years, though entitled thereto every six months, if at all, barred
from so demanding; dissenting opinion in Ferrenbach v. Mutual
Reserve Fund, etc., Assn., 121 Fed. 952, court holding time ran
from date notice received and not from date sent
122 U. S. 132-138, 30 L. 1108, WARREN v. MOODY.
Syl. 1 (XI, 371). Bankruptcy — Conveyance to daughter.
Approved in Batchelder, etc., Lincoln Co. v. Whitmore, 122 Fed.
359, hoiding secret advantage given creditor in composition, sev-
eral years prior to bankruptcy, not a preference.
122 U. S. 138-154, 30 L. 1090, DAVIS v. PATRICK.
Syl. 1 (XI, 371). Bill of exceptions — Delay in signing.
Approved in Western Dredging, etc., Co. v. Heldmaier, 116 Fed.
183, 185, allowing bill signed at subsequent term after time al-
lowed, trial Judge absent from circuit; Reliable Incubator, etc., Ca
V. Stahl, 102 Fed. 593, striking out bill signed and filed at subse-
quent term, although defendants failed to object thereto, before bill
signed; Merchants' Ins. Co. v. Buckner, 98 Fed. 224, holding where
motion for new trial duly filed but not acted upon at Trial Term,
bill of exceptions settled at subsequent term proper; Johnson v.
968 Notes on U. S. Reports. 122 U. S. 15^188
Gebhauer, 169 Ind. 276, 64 N. B. 857, holding appellant irrecoTer-
ably lost right to present bill of exceptions failing to do so within
time fixed by court.
Syl. 2 (XI, 372). Partnership creditor — Payment in ores.
Distinguished in American, etc.. Trust Co. v. Takahashi, 111 Fed.
132, 133, holding surety company liable for agent's dishonesty,
acting as trustee for disbursement of money recelred mider con-
tract.
(XI, 871). Miscellaneous.
Cited in Dolan ▼. United States, 123 Fed. 54, referring to er-
roneous instruction of court to Jury.
122 U. S. 154-166, 30 L. 1088, WILLIAMS ▼. SUPERVISORS OF
ALBANY.
SyL 1 (XI, 372S). Taxation — National bank shares — Par value.
Approved in Cleveland Trust Co. v. Lander, 62 Ohio St 271, 66
N. E. 1038, taxation of national bank shares invalid, unless rate
and valuation same as other moneyed capltaL
SyL 2 (XI, 372). Taxation — Errors — Correction.
Approved in Ramish v. Hartwell, 126 Cal. 449, 58 Pac. 922, hold-
ing bond act making issuance of bond conclusive evidence of
validity of lien invalid.
122 U. S. 167-176, 80 L. 1123, BULLARD v. DES MOINES R. R.
Syl. 1 (XI, 372). Public lands — Relinquishment, effect upon
reservation.
Approved in United States v. Oregon, etc., R. R. Co., 176 U. S.
49, 44 L. 367, 20 Sup. Ct 268, upholding power of Congress to
forfeit lands, where road not definitely located, and confer same
upon another railroad company; O'Connor v. Gertgens, 85 Minn.
490, 89 N. W. 869, to effect, executive withdrawal of public lands
bars lawful settlement thereon; dissenting opinion in Hewitt v.
Scholtz, 180 U. S. 159, 45 L. 473, 21 Sup. Ct 316, court sustaining
settler's title to land within indemnity limits of railroad company.
122 U. S. 176-188, 30 L. 1105, SANGER v. NIGHTINGALE.
SyL 1 (XI, 373). Limitations, right to plead — Personal.
Approved in Hanchett v. Blair, 100 Fed. 825, denying foreign cor-
porations right to plead statute in foreclosure suit, corporation re-
siding outside State.
SyL 8 (XI, 373). Limitations — Requisite title to plead.
Approved In Coe v. Finlayson, 41 Fla. 182, 26 So. 708, denying
adverse possessor of lands right X6 plead statute as bar to fore-
closure suit
122 U. 8. 18&-197 Notes on U. S. Reports. 951
122 U. 8. 18&-197, 30 L. 1114, TUTTLB ▼. MILWAUKEE BT.
SyL 1 (XI, 873). Railroad curres, court's superTlsicm over.
Approved In King ▼. Morgan, 109 Fed. 448, holding mine employee
assumed risk incident to the use of bar furnished him for tem-
pering dynamite; McGormick y. Illinois Cent. R. R. Ck>., 100 Fed.
252, holding too speculative and remote to presume use of wider
engines for nine months unsafe for employees, employee injured
by crane near track; Bethlehem Iron Co. v. Weiss, 100 Fed. 50,
holding contributory negligence properly submitted, wheelbarrow-
man injured by engine regularly crossing path of labor; Norfolk,
etc., R. R. V. Cromer, 101 Va. 671, 44 S. B. 899, holding court erred
instructing defendant's duty could only be met by derailing switch
to prevent cars moving from siding to main track; dissenting opinion
in Pennsylvania R. R. Co. v. Jones, 123 Fed. 759, court holding
absence of bumper at end of switch upon trestle subjecting em-
ployees to danger not assumed.
Syl. 2 (XI, 374). Master and servant — Assumed risks.
Approved in St Louis Cordage Co. v. Miller, 126 Fed. 505, 51%
holding plaintiff, a young woman, not entitled to recover, hand in-
jured by slipping between exposed gears; Volk v. B. F. Sturtevant
Co., 104 Fed. 277, holding elevator employee assumed risk of sweep-
ing bottom of elevator shaft; Gamett v. Phoenix Bridge Co., 98 Fed.
195, holding master not liable for injuries due to breaking of
wrench; Slavins v. Northern Pacific R. R. Co., 97 Fed. 263, holding
company not liable for section hand's death by landslide due to
defective drainage by section crew.
Distinguished in Texas, etc., P. Ry. Co. v. Swearingen, 122 Fed.
197, 200, holding switchman not chargeable, as matter of law, with
knowledge of dangerous proximity of structure to track.
Syl. 3 (XI, 375). Master and servant — Brakeman assumed risks.
Approved in Kenney v. Meddaugh, 118 Fed. 212, holding fireman
assumed risk of proximity of mail crane to track; Hodges v.
Kimball, 104 Fed. 753, holding brakeman assumed risk of coupling
cars of different construction; Street v. Norfolk, etc., R. R., 101 Va.
750, 45 S. E. 285, holding employee pinching cars from position
astride rail. Instead of from side, guilty of contributory negligence,
employee injured by cars from behind; dissenting opinion in Potter
V. Detroit, etc., R. R., 122 Mich. 197, 81 N. W. 86, court denyhig
brakeman, as matter of law, assumed risk of Injury from telegraph
pole near track.
Distinguished In Memphis, etc., Newport Packet Co. ▼. Hill, 122
Fed. 247, holding owner liable for assault upon deckhand by another
deckhand, temporarily acting as captain of watch; Louisville, etc,
R. R. Co. y. Miller, 104 Fed. 126, refusing to determine as matter
955 Notes on U. S. Reports. 122 U. S. 197-267
of law plaintiff, a green man, assumed risk of coupling without In-
structions thereto.
1^ U. S. 197-210, 30 L. 1182, UNITED STATES v. AUFFMORDT.
Syl. 2 (XI, 876). Custom duties — Forfeiture provisions — Con-
struction.
Approved In In re Carter, 97 Fed. 408, holding court-martlars
jurisdiction to try particular offense conferred by article mentioning
offense.
122 U. S. 211-231. Not cited.
122 U. S. 231-241. 30 L. 1156, SHEPHERD v. THOMPSON.
SyL 2 (XI, 377). Limitations — New promise — Consideration.
Approved In Tridell v. Munhall, 124 Fed. 805, holding promise to
pay out of money received from estate conditional, not warranting
recovery, without proof of money received.
Distinguished in Reymond v. Newcomb, 10 N. Mex. 175, 61 Pac.
206, holding *' I will sell cattle at first chance • • • and pay
off that mortgage," sufficient to remove bar of Statute of Limita-
tions.
122 V. S. 241-255, 30 L. 1219, DREXEL v. BERNEY.
Syl. 2 (XI, 377). Equity — Restraining proceedings at law.
Approved in Twin City Power Co. v. Barrett, 126 Fed. 306, enter-
taining bill to appoint receiver of insolvent corporation to complete
purchases under options transferred to It and about to expire; Jones
▼. Mutual Fidelity Co., 123 Fed. 520, entertaining Jurisdiction under
Delaware statute of bill by unsecured creditors, claims unreduced
to Judgment, to appoint receiver of insolvent corporation's assets;
Sullivan Timber Co. v. Mobile, 110 Fed. 198, enjoining ejectment to
recover shore and submerged lands, proceedings threatening destruc-
tion to riparian owner's equitable rights; Roland Paris Co. v. Hull,
92 Md. 310, 48 Atl. 367, refusing to enjoin prosecution for main-
taining nuisance, on ground plaintiff estopped, having sold defendant
land with knowledge of intended use.
122 U. S. 256-267, 30 L. 1175, IRVINE v. THE HBSPER.
SyL 8 (XI, 378). Admiralty — Appeal, District to Circuit Court.
Approved in Chicago Ins. Co. v. Graham, etc., Co., 108 Fed. 273.
holding assignment of errors necessary in admiralty cause on appeal
from District to Circuit Court of Appeals; Gilchrist v. Chicago Ins.
Co., 104 Fed. 571, holding under section 11, act March 3, 1891, ap-
peal to Circuit Court of Appeals regulated by same rules regulating
appeals formerly taken to Circuit Court
Distinguished In Prescott v. Brooks, 11 N. Dak. 100, 90 N. W. 132.
holding section 5630, Rev. Codes 1899, new trial not permitted upon
ai^»eal from part of judgment
122 U. S. 847-309 Notes on U. S. Reports. 058
Distinguished in Atlantic & Pacific TeL Co. t. Philadelphia, 190
U. S. 162, 23 Sup. Ot 817, 818, 47 L. 999, sustaining municipality's
power to tax telegraph companies for police superrision, but holding
reasonableness thereof question for jury; Cumberland & Pa. R. R.
▼. State, 92 Md. 685, 686, 688, 689, 690, 48 Aa 508, 509, 510, up-
holding State franchise tax upon gross receipts of railroad com-
panies determined by number of miles of railroad in State; People,
etc. T. Knight, 174 N. Y. 485, 67 N. E. 69, upholding franchise tax
upon corporation, although entire capital invested in letters- patent
exempt from taxation, tax computed upon basis of capital employed
within State.
Syl. 2 (XI, 384). Commerce — Interstate and foreign — Regula-
tion.
Approved in Southern Express Co. t. Goldberg, 101 Va. 622, 44
S. E. 894, declaring State statute in so far as attempting to regulate
charges of Interstate carriers unconstitutional.
SyL 5 (XI, 384). Commerce, interstate and foreign, franchise tax.
Distinguished In Louisville, etc., Ferry Co. v. Commonwealth of
Ky., 108 Ky. 724, 57 S. W. 625, 626, upholding Kentucky State
franchise tax upon ferry comx>any chartered by and domiciled in
Kentucky engaged in Interstate commerce. Income determining
value of franchise.
Syl. 6 (XI, 385). Commerce — State corporations — Taxation.
Distinguished in Atlantic, etc., R. R. v. Lesueur, 2 Ariz. 433, 19
Pac. 160, upholding territorial tax upon franchise of railroad char-
tered by United States; Louisville, etc., Ferry Co. v. Commonwealth
of Ky., 108 Ky. 724, 57 S. W. 626, upholding Kentucky State tax
upon franchise of ferry company domiciled in Kentucky engaged in
interstate commerce, income determining value of franchise.
122 U. S. 347-359, 30 L. 1187, WESTERN UNION TEL. CO. ▼.
PENDLETON.
Syl. 2 (XI, 385). State law — Interstate telegraph companies.
Approved In Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S.
162, 23 Sup. Ct. 817, 47 L. 999, sustaining municipal tax upon inter-
state telegraph companies for police supervision, but holding ques-
tion of reasonableness one for jury; Lottery Case, 188 U. S. 351, 23
Sup. Ct. 325, 47 L. 499, holding carriage of lottery tickets by inde-
pendent carriers from one State to another subject to congressional
legislation; Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 518, 44 L.
870, 20 Sup. Ct 723, declaring statute requiring trains to stop at
county seats invalid as to through trains from St. Louis to New
York; Williams v. Fears, 110 Ga. 591, 35 S. E. 701, upholding State
tax upon person engaged in business of emigrant agent; Western
Union Tel. Co. v. Carter, 156 Ind. 532, 60 N. E. 305, denying recovery
968 Notes on tJ. S. Reports. 122 17. S. 360-391
of penalty under State law for telegraphic company's failure to
properly deliver message received for delivery outside State; Mar-
shall V. Telegraph Co., 79 Miss. 160, 161, 27 So. 615, 89 Am. St Rep.
586, holding State statute unconstitutional imposing penalty upon
telegraph company for undue delay in transmission of messages
from one State to another; Wall v. N. & W. R. R., 52 W. Va. 496,
44 S. E. 299, 94 Am. St. Rep. 958, holding car loaded with freight
sent from one State to be returned again reloaded not subject to
attachment by State attachment
Distinguished in Parlter v. Western U. Tel. Co., 87 Mo. App. 558,
allowing recovery of penalty against telegraph for failing to trans-
mit and deliver message to place within State properly.
122 U. S. 360-363, 30 L. 1161, ST. LOUIS, ETC., RY. v. VICKERS.
Syl. 1 (XI, 386). Judges, charging facts. State law prohibiting.
Approved in Kerr v. Modem Woodmen of Am., 117 Fed. 596, up-
holding Federal judge's power to state to jury his opinion as to
facts proved by evidence, jury informed they were not bound
thereby; Lesser Cotton Co. v. St Louis, etc., Ry. Co., 114 Fed. 142,
refusing to review opinion of Federal Judge upon facts expressed in
charge, no rule of law incorrectly stated.
122 U. S. 363-365, 30 L. 1150, WHITSITT v. UNION DEPOT &
R. R.
Syl. 1 (XI, 387). Appeal — Four years after decree.
Approved in Butt v. United States, 126 Fed. 795, denying Circuit
Court's power to allow United States an appeal from Judgment
after expiration of six months from entry.
122 U. S. 365-376, 30 L. 1211, MAXWELL LAND GRANT CASE.
Syl. 2 (XI, 387). Appellate court — Rehearing — Newly discov-
ered evidence.
Approved in F. C. Austin Mfg. CJo. v. American Well Worlcs, 121
Fed. 79, refusing to review additional evidence introduced into
record by stipulation after order granting preliminary injunction.
122 U. S. 376-382. Not cited.
122 U. S. 382-391, 30 L. 1207, ADAMS v. COLLIER.
Syl. 2 (XI, 387). Banltruptcy — Conveyance while banlcrupt sol-
vent
Approved in In re Garcewlch, 115 Fed. 89, holding title to goods
sold to bankrupt upon understanding title remaining in vendor as to
goods unsold vests in trustee; Lyman v. National Banlc, 98 Me. 458,
57 Atl. 801, vesting title In trustee in banl^ruptcy and denying banlc
right to set off debt against deposit for benefit of creditors.
122 U. S. 391-456 Notes on U. '8. Reports. 900
122 U. 8. 391-412, 30 L. 1230, GOODLETT y. LOUISVILLB B. B.
SyL 1 (XI, 388). Statutes — Title Umlting positive proyisions.
Approved in The New York, 108 Fed. 109, refusing to extend plain
provision of act to include Judgment and decrees, though title refers
thereto.
Syl. 2 (XI, 388). Corporations doing business in other States.
Approved in Goodwhi v. New York, N. H. & H. R. R. Ck>., 124
Fed. 358, holding railroad incorporated in two States not suable in
court of one State by citizen of same State; Seattle Gas, etc^ Co
V. Citizens' L. & P. C^., 123 Fed. 594, holding corporation without
power to sell gas in. State where chartered without power in other
States; Howard v. Gold Reefs of Georgia, 102 Fed. 058, allowing
corporation to remove, sued by citizen of State where doing busi-
ness, pleading showing incorporation in foreign State. See note, 85
Am. St. Rep. 907.
Syl. 3 (XI, 389). Removal — Suits against foreign corporations.
Approved in Goodloe v. Tennessee Coal, etc, R. R. Co., 117 Fed.
351, overruling motion to remand suit brought by citizen of Alabama
against corporation incori)orated in Tennessee, but doing business
under special Alabama statute; dissenting opinion in Calvert v. Rail-
way Co., 64 S. C. 155, 41 S. E. 968, court holding foreign corporation
though complying with act March 19, 1896, a nonresident for pur-
poses of removal to Federal court See note, 85 Am. St Rep. 908.
(Xt, 388). Miscellaneous.
Cited in St Louis Ck)rdage Co. v. Miller, 126 Fed. 498, 510, holding
court erred failing to instruct servant unentitled to recover injured
by hand slipping from handle into gears; Mason, etc., R. R. Co. v.
Yockey, 103 Fed. 269, holding question for Jury whether fireman,
observing water dripping from tank, but not icy formation, should
have left engine to avoid assumption of risk.
122 U. S. 413-432, 30 L. 1193, NEW PROCESS FERMENTATION
CO. V. MAUS.
Syl. 3 (XI, 390). Patents — New process.
Approved in Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 425.
46 L. 981, 22 Sup. Ct 707, holding Jones patent for a method of
mixing molten pig metal valid and infringed; Chisholm v. Johnson,
106 Fed. 200, sustaining patent for process of gathering and hulling
green peas from vines.
122 U. S. 432-450. Not cited.
122 U. S. 450-456, 30 L. 1228, ESTES v. GUNTHER.
Syl. 2 (XI, 391). Fraudulent conveyances — Preference to wife.
Approved in Blair State Bank v. Bunn, 61 Nebr. 469, 85 N. W. 529,
upholding reconveyance to debtor's wife by purchasing creditor.
961 Notes on U. S. Reports. 122 V. S. 457-513
122 U. S. 457-469. 30 L. 117S, TRAVELERS* INS. CO. v. EDWARDS.
• Syl. 1 (XI, 391). Insurance companies — Proof of death —
Waiver.
Approved in Hust v. Employers' Liability Assur. Corp., 122 Fed.
S33, holding petition alleging full proof furnished in manner and
form required by defendant, accepted and retained sufficient to
show waiver of condition.
122 U. S. 46^-477. Not cited.
122 U. S. 47&-486, 30 L. 1140, ARGENTINE MIN. CO. v. TERRI-
BLE MIN. CO.
Syl. 2 (XI, 392). Mining claims — Priority of location.
Approved in St Louis Min., etc., Co. y. Montana Mln. Co., 104
Fed. 66S, considering entire secondary vein crossing common side
line as apexing upon senior location until wholly passing beyond
side line.
Syl. 4 (XI, 392). Mines — Claims crossing course — End lines.
Approved in Bunker Hill, etc., Co. y. Empire State-Idaho M. & D.
Co., 100 Fed. 541, holding parallel lines crossing vein end lines of
claim; Empire Milling, etc., Co. y. Tombstone Mill, etc., Co., 100
Fed. 914, upholding owner's right, locating claim across lode^ to
follow dip of vein having apex within surface boundaries beyond
vertical plane passing through end lines.
Syl. 6 (XI, 392). Mines — Location crossing veins — Side lines.
Approved in Cosmopolitan Min. Co. v. Foote, 101 Fed. 521, 522.
denying owner of mining claim located across vein extralateral
rights in another vein extending transversely and apex within sur-
face lines; Parrot Silver, etc., Co. v. Heinze, 25 Mont 144, 64 Pac
328, denying defendant's right to follow vein, apex crossing both
side lines, beyond vertical planes drawn through side lines.
122 U. S. 487-496. Not cited.
122 U. S. 496-501, 30 L. 1126, BEAN v. PATTERSON.
Syl. 1 (XI, 393). Fraudulent conveyances — Husband and wife.
Approved in Blair State Bank v. Bunn, 61 Nebr. 469, 85 N. W.
529, upholding reconveyance to debtor wife made by purchxu9ing
creditor.
122 U. S. 501-513, 30 L. 1100, NORTHWESTERN LIFE INS. CO. v.
MUSKEGON BANK.
Syl. 2 (XI, 394). Insurance — Intemperate habits — Question for
Jury.
Approved in Bacon v. New England Order of Protection, 123 Fed.
154, holding question for Jury as to whether degree of intoxication
made out amounted to breach of warranty; Supreme Lodge v.
Vol. 11 — 61
122 U. S. 518^22 Notes on U. 8. Reports. 962
Foster, 26 Ind. App. 342, 59 N. E. 881, holding question and answers
as to use of intoxicating liquors related to habits of insured, ques-
tion for Jury, slight use not breach of warranty; Sitton v. Grand
Lodge, 84 Mo. App. 212, approving instruction as to what constitutes
habitual drunkard.
Distinguished in Hubbard y. Mutual Reserve Fund Life Assn.,
100 Fed. 723, holding court properly directed verdict for company
evidence showing breach of warranty given in application.
122 U. S. 513^17, 80 L. 1159, BURLINGTON, ETC., BY. v. DUNN.
SyL 1 (XI, 394). Removal — Circuit Court — Petition.
Approved in Coker v. Monaghan Mills, 110 Fed. 806, denying
Circuit Court's power to enjoin proceedings in State court, petition
for removal not presented to or acted upon by State court; Home
Ins. Co. V. Virginia-Carolina Chemical Co., 109 Fed. 689, holding
State court refusing to remove, party seeking removal may enter
copy of record in Circuit Court, said court entertaining Jurisdiction
and passing on merits; Hickman v. Missouri, etc., Ry. Co., 97 Fed.
121, holding State court without authority to proceed, transcript of
record filed and docketed in Federal court disclosing grounds for
removal; Colorado F. & I. Co. v. Four-Mile By. Co., 29 Colo. 93, 66
Pac. 903, holding State court must determine from facts stated in
petition for removal whether proper case presented; Duff v. Hil-
dreth, 183 Mass. 442, 67 N. E. 357, holding proceedings for removal
terminate with State court determining upon record and petition
case for removal exists and accepting bond and petition; Springs
V. Southern Ry., 130 N. C. 198, 41 S. B. 104, upholding State court's
power to pass upon sufiicieucy of petition as matter of law; United
States Mort Co. v. M'Clure. 42 Or. 196, 70 Pac. 544, sufficiency of
petition to remove and effect of statements appearing upon face of
record determinable by State court
122 U. S. 518. 519, 30 L. 1225, MORRISON v. DURR.
Syl. 1 (XI, 395). Equity — Verified answer, disproving.
Approved in Uri v. Hirsch, 123 Fed. 572, holding in action for in-
fringement record failed to show any contravailing evidence to
verified answer.
Distinguished in Harvey v. Sellers, 115 Fed. 760, refusing to dis-
miss bill although defendant's oath not waived, answer not respon-
sive to bill.
122 U. S. 519-522, 30 L. 1150, TEXAS TRANSP. CO. V. SEELIGSON.
Syl. 1 (XI, 395). Removal — Remanding upon discontinuance.
Approved in Youtsey v. Hoffman, 108 Fed. 701, remanding cause
where action dismissed in State court as to defendant removing
same.
Distinguished in Cassidy v. Atlanta, etc., Ry. Co., 109 Fed. 673»
96S Notes on U. S. Reports. 122 U. 8. 522^97
refusing to remand but dismissing action against resident and non-
resident corporation, acti(»i in State court dismissed as to non-
resident
122 U. S. 522-534. Not cited.
122 U. S. 535-543, 30 L. 1235, THORN WIRE-HEDGE CO. v. FUL-
LER.
Syl. 1 (XI, 396;. Removal — Suit against sheriff.
Approved in Smedley y. Smedley, 110 Fed. 258, remanding case
where controversy between plaintiff and defendants not separable.
122 U. S. 543-^61, 30 L. 1167, RUNKLE v. UNITED STATES.
SyL 2 (Kl, 39^. Army — Court-martiaL
Approved in McGlaughry v. Deming, 186 U. S. 62, 65, 69, 46 L.
1055, 1056, 1057, 22 Sup. Ct 791, 792, 794, affirming 113 Fed. 650, 652,
holdtog judgment by court-martial composed of regular army officers
against volunteer officer without jurisdiction and void; In re Brodie,
128 Fed. 668, sustaining validity of sentence by court-martial leav-
ing the character of the confinement, military post or penitentiary,
to reviewing authority.
Syl. 3 (XI, 397). United States — President — Executive depart-
ments.
Approved in dissenting opinion in Motherwell v. United States,
107 Fed. 452, court holding treasury department's order permitting
detail of foreign navy to enter country not conferring authority to
arrest deserters thereof.
122 U. 8. 661-575. Not cited.
122 U. 8. 675-^583, 80 L. 1172, SHIPPEN v. BOWBN.
SyL 3 (XI, 398). Breach of express warranty — Scienter*
Approved in Trenchard v. Kell, 127 Fed. 601, holding unnecessary
to prove a scienter in action for tort for breach of express warranty,
to which joined declaration of deceit; Tyler v. Moody, 111 Ky. 196,
63 S. W. 434, holding vendee need not allege vendor knew that war-
ranty " machine would not explode" was false; Tracy v. McKinney,
82 Mo. App. 512, holding in action to recover proceeds of sale for
fraud immaterial error to admit evidence of other transactions to
show retention fraudulent.
122 U. S. 58a-597, 30 L. 1137, SUN INS. CO. v. KOUNTZ LINE.
SyL 1 (XI, 398). Partnership — Person acting as partner — Liabil-
ity.
Approved in Mandevllle v. Ck>urtwright, 126 Fed. 1009, denying
stockholder's liability as partners for tort committed by servants
of cori)oration unlawfully carrying on certain business.
122 U. 8. 597-(M3 Notes on U. S. Reports. 9(H
122 U. S. 597-610, 30 L. 1146. DENVER, ETC.. RY. v. HARRIS.
Syl. 2 (XI, 308). CorporatioM — Agents* torts — Liability.
Approved in Bingham v. Llpman, 40 Or. 372, 67 Pac. 101, awarding
punitive damages against corporation, officers thereof exercising
entire executive power present and directed commission of tort. See
note, 88 Am. St Rep. 788.
Syl. 3 (XI, 399). Damages, resulting impotency — Evidence.
Approved in Mexican Cent. Ry. Co. v. Glover, 107 Fed. 363, hold-
ing allegations of general injury sufficient to admit evidence of
vomiting and hemorrhages; Denver, etc., R. R. Co. v. Roller,' 100
Fed. 758, approving instruction allowing recovery for fright, natural
consequence of collision not averred; S. A., etc., Ry. y. Weigers,
22 Tex. Civ. 348, 54 S. W. 912, holding damages for future and per-
manent effect of personal injuries recoverable under g^ieral ad
damnum clause; Clukey y. Seattle Elec. Co., 27 Wash. 74, 67 Pac
o80, admitting evidence under general allegation and allegations,
injury internal and permanent and describing location of same of
woman's pregnancy and subsequent miscarriage; concurring opinion
in Muth V. St Louis, etc., Ry., 87 Mo. App. 438, majority distinguish-
ing and holding plaintiff precluded from testifying to loss of mem-
ory, the same not being pleaded.
Syl. 4 (XI, 390). Punitive damages — Corporation.
Approved in Hindman t. First Nat Bank, 112 Fed. 9i0, affirming
98 Fed. 568, holding bank liable for false representations made by
cashier as to customer's standing; Craven v. Bloomingdale, 171 N.
Y. 447, 64 N. E. 171, reversing, court failing to instruct, punitive
damages not awarded, unless servants' acts wanton, oppressive, or
malicious and master implicated; Denison, etc., Ry. v. Randell, 29
Tex. Civ. 463, 69 S. W. 1015, upholding charge on exemplary dam-
ages, conductor assaulted passenger, struck and kicked him, railroad
company retaining conductor in service and defending him in crim-
inal prosecution.
(XI, 398). Miscellaneous.
Cited in Hindman v. First Nat Bank, 98 Fed. 566, holding board
of directors for all practical purposes same as bank.
122 U. S. 611-623. Not cited.
122 U. S. 643 (Appendix), 30 L. 1244, LANIER v. NASH.
SyL 1 (XI, 400). Mandamus — Public officer's resignation.
Distinguished in Murphy v. Utter, 186 U. S. 101, 46 L. 1075. 22 Sup.
Ct 778, holding mandamus proceedings not abating by change in
members of board of loan commissioners after petition filed and
before writ granted.
OXXIII UNITED STATES.
123 U. S. U. S. 1-39. Not cited.
123 U. S. 40-61, 31 L. 75. THE EXCELSIOR.
Syl. 2 (XI, 402). Salvage barred, binding contract preyed.
Approved in Munson v. Straits of Dover SS. Co., 09 Fed. 780, hold-
ing agreement to arbitrate all arising differences no defense to
action at law.
Syl. 3 (XI, 402). Salvage — Agreement to arbitrate.
Approved In Green v. American Cotton Co., 112 Fed. 745, refusing
to imply condition prohibiting salt on arbitration agreement not
expressly denying It
SyL 4 (XI, 402). Salvage decree — Error In law.
Approved In United States v. Morgan, 99 Fed. 575, refusing to dis-
turb allowance $1,200 salvage, service bordering on towage.
123 U. S. 52-56. Not cited.
123 U. S. 56-58, 81 L. 68, MOEBfY v. LOCKHART.
Syl. 1 (XI, 403). Appeal — Order remanding to State court.
Approved In German Nat Bank v. Speckert 181 U. S. 406, 408,
45 L. 926, 21 Sup. Ct 689, denying appeal from Circuit Court of
Appeals, Judgment directing Circuit Court to remand caso to btate
court; Cole v. Garland, 107 Fed. 761, dismissing writ of error from
order of United States Circuit Court remanding cause; Rio Grande
W. Ry. V. Power Co., 23 Utah, 33, 63 Pac. 997, denying State Supreme
Court's power to review on appeal Federal court's order declining
Jurisdiction and remanding cause.
123 U. S. 59-61. Not cited.
123 U. S. 61-65, 31 L. 92, HENDERSON v. LOUISVILLE, ETC., RY.
Syl. 1 (XI, 403). Carrier's liability — Train not stopping.
Approved In McCabe v. Southern Ry. Co., 107 Fed. 214, allowing
plaintiff to discontinue action removed to Federal court upon pay-
ment of Federal court costs only; Whicher v. Boston, etc.. R. R..
176 Mass. 277, 278, 79 Am. St Rep. 315, 316, 57 N. E. 602, (denying
plaintiff recovery for loss of traveling bag in sleeping car.
123 U. S. 65-67. Not cited.
[965]
123 U. S. 67-104 Notes on U. 8. Reports. 966
123 U. S. 67-76. 31 L. 63, ORIENT INS. CO. v. ADAMS.
SyL 1 (XI, 404). Insurance, proximate cause.
Approved in Cline v. Western Assur. Co., 101 Va. 498, 44 S. B.
700, holding declaration bad, damage due to breaking of machinery;
striking obstruction in river, not stress of weather.
Syl. 2 (XI, 404). Insurance — Master's fault
Approved in Nome Beach Lighterage, etc., Transp. Co. t. Munich
Assur. Ck>., 123 Fed. 826, holding allegation in answer plaintilT sailed
vessel into ice knowing danger thereof not allegation 1os(b due to
willful act of insured; Lewis v. ^tna Ins. Ck>., 123 Fed. 158, holding
temporary absence of master, without owner's knowledge, not re-
lieving insurer under policy exception of master's incompetency.
Syl. 7 (XI, 406). Insurance, abandonment — Vessel subsequently
floated.
Approved in The Livingstone, 122 Fed. 280, d^iying insurer, prop-
erty abandoned, right to impeach value stated in policy.
123 U. S. 76-82. Not cited.
123 U. S. 83-^ 31 L. 94, DAVJSNPORT BANK T. BOARD OF
EQUALIZATION.
Syl. 3 (XI, 405). Taxation — National bank shares — Discrimina-
tion.
Approved in Nevada Nat Bank v. Dodge, 119 Fed. 61, upholding
tax on national bank shares, State taxing property instead of shares
of domestic corporations; National State Bank v. Burlington, 119
Iowa, 700, 94 N. W. 235, holding distinction in method of taxing
national and State banks not prohibited discrimination against
national banks; Scobee, Sheriff v. Bean, etc.; Same v. Scott, etc.,
109 Ky. 533, 59 S. W. 861, holding fact national bank shares taxed
in hands of owners, other banking institutions taxed by imposition
of franchise tax, not necessarily discrimination.
123 U. S. 87-104, 31 L. 100, PARKER, ETC., CLOCK CO. v. YALE
CLOCK CO.
Syl. 1 (XI, 406). Original patent — Reissue substantially different
Approved in Franklin v. Illinois Moulding Ck>., 128 Fed. 50, de-
claring Adams reissued patent for machine for mounting ornamental
composition void, covering matters not in original patent
Syl. 2 (XI, 406). Reissued patents — Original specifications —
Suggestions.
Approved in Pfenninger v. Heubner, 99 Fed. 443, denying validity
of reissue, nineteen months after patent, broadening claim to mo-
nopolize defendant's device.
96T
I D.
Reports. 123 U. S. 105-181!
123 U. S. 105-112, 31 L. B7. BULL T. BANK OF KASSON.
SjL 3 (XI, 407). Cbeck payable In " cnrrenl funds."
Approved in Andrus v. Bradley, 102 Fed. 50, allowing recovery
upon check tranaferred by payee to plalntlCF, drawer BubacQueotly
paying payee, upon informatkin cbeck lost; Hatch t. National Bank,
94 Me. 352, 47 Atl. 910. conBtruliig "current fundB" used in com-
mercial transflctiona to mean funds current by law as money. See
note, 75 Am. Et Bep. 53.
123 D. S. 113-117, 31 L. 138, UNITED STATES t. PHILADEI-PHIA,
ETC., RT.
Syl. 1 (XI. 407). Federal Judge commenting upon testimony.
Approved in Sebeck v. Plattdeutsche Volksfest Vereln. 124 Fed.
18. holding inatructiona as to negllg««ce, followed by court's opinion
defeniianta not negligent, adding question of negligence for jury,
not error; Kerr v. Modero Woodmen of America, 117 Fed. 5S6, up-
holding Federal Judge's power to state own opinion aa to facts
proven, Jury instructed aa to effect of such opinion; Lesart" Cotton
Co. V. St. LoulB, etc., Ry. Co.. 114 Fed. 142, refusing to review
opinion of Federal court upon facts proven, no rule oi" law Incor-
rect] y stated.
123 U. S. 117-181. Not cited.
123 U. S. 131-182, 31 L. 80, SPIES r. ILLINOIS.
Syl. 1 (XI. 408). Writ of error — Federal question.
Approved In Weltmer v. Bisbop, 191 U. S. 561, and Brown v. Drain,
187 U. S. S35. 47 L. 343, 23 Sup. Ct 842, both realHrming rule; Mutual
Life Ins. Co. v. McGrew, ISS U. S. 308, 23 Sup. Ct 378, 47 L. 484,
dismissing writ, no claim under treaty made In trial courts, State
Supreme Court refusing to pass tbereon; Jacob! v. Alabama, 1ST U.
B. 136, 23 Sup. Ct. 49, 47 L. 108, dismissing writ of error, lioldlng
State court's Judgment conclusive, refusing to consider Federal
question not raised in lower court; Eastern Bldg. & Loan Assn. v.
Welling. 181 U. S. 49, 45 L. 741. 21 Sup. Ct. 531, holding assertion,
court's duty to look Into record and determine whether iiuestloa
necessarily Involved, unsound, questmn not claimed or set up.
Byl. 2 (XI, 408). Writ of error, question rightly decided.
Approved iu Erie R. R. v. Purdy, 185 D. S. 134, 46 L. 850, 22 Sup.
Ot GOT, dlamieslng writ, questl<Hi not raised. State court declining to
pass upon question.
. SyL 3 (XI, 409). First ten amendments — Federal restrictions.
Approved In Maxwell v. Dow, 176 D. S. 587, 44 L. 599, 20 Sup. Ct
450, sustaining conviction and imprisonment of person accused as
crlinlnal by eight persons instead of twelve; Oo-Operatlve. etc., Assn.
V. State, 16C Ind. 468, GO N. E. 148, upholding constitutionality of a
M
W
i
123 U. S. 182-233 Notes on U. 8. Reports. 968
giving tax officers right to examine books of taxpayers for purpose
of assessing property for taxation; State t. Height, 117 Iowa, (U^
91 N. W. 93G, 94 Am. St Rep. 326, excluding oil evidence obtained
by compulsory physical examination of one accused of rape, ex-
amination prohibited by Constitution; Wade y. Foss, 96 Me. 288,
52 AtL 642, holding unstamped note admissible In evidence In State
courts. United States statutes contrary thereto, applicable to Federal
courts only. See note, 78 Am. St Itepw 263.
Syl. 4 (XI, 409). Jurors — Disallowance of challenge.
Approved In Dolan v. United States, 116 Fed. 582, holding facts
failed to show court improperly exercised discretion In overruling
challenges; Hawkins v. United States, 116 Fed. 575, and Knights of
Pythiaa v. Steele, 108 Tenn. 628, 69 S. W. 337, both denying couFtTs
error prejudicial, compelling party to peremptorily challenge incom-
petent Juror, peremptory challenges unexhausted; United States v.
Davis, 103 Fed. 467, denying defendant in criminal case having
fourteen peremptcMry challenges remaining right to complain of per-
emptory challenge by State of Juror accepted, but not sworn.
Distinguished in Burke v. McDonald, 3 Idaho, 301, 29 Pac 100,
holding peremptory challenge should haye been restored used chal-
lenging Incompetent Jur<»r false swearing upon examination.
Syl. 7 (XI, 410). Jurors expressing opinions.
Approved in Hardin v. State, 66 Ark. 58, 59, 48 S. W. 906, 906^
denying juror's Incompetency, stating ftom rumor and newspapers
opinion formed, requiring evidence to remove, but could disregard
for purposes of trial.
123 U. S. 182-189. Not cited.
123 U. S. 189-214, 31 L. 114, CRAIG v. LBITBNSDORFBB.
Syl. 5 (XI, 411). Public lands — Land officers — Mandamus.
Approved In Robertson v. State Land Board, 42 Or. 188, 69 Pac
616, refusing to mandamus State land board to accept application
tor purchase of school lands and issue certificate therefor.
123 U. S. 215-222. Not cited.
123 U. S. 222-227, 31 L. 130, HOARD v. CHESAPEAKE, ETC., RT.
Syl. 4 (XI, 412). Railroad purchasing corporative property —
Liability.
Approved In Burge v: St. Louis, etc., R. R., 100 Mo. App. 465,
74 S. W. 8, denying liability of purchasing road for stock killed by
selling road; National Foundry, etc.. Works v. Oconto, etc., Co.,
105 Wis. 58, 81 N. W. 129, holding corporation organized to take
property of another corporation, title acquired through foreclosure
sale, takes property free from latter liabilities.
123 U. S. 227-233. Not cited.
1)69 Notes on U. S. Reports. 123 U. S. ^33-267
123 U. S. 233^-249, 31 L. 132, RIGHTEB y. JEROMB.
Syl. 1 (XI, 413). Mortgages — Trustee — Bondholder's interest
Approved In Fletcher y. Ann Arbor R. R. Co., 116 Fed. 481, hold-
ing beneficiary in trust deed made to and foreclosed by trustee
bound thereby in absence of trustee^s fraud or negligence; Rumsey
y. People's Ry., 154 Mo. 245, 246, 55 S. W. 624, holding suit by one
bondholder against company and trustee, other bondholders without
right, in absence of trustee's fraud, to be made parties.
Syl. 2 (XI, 414). Trustees — Good faith, bondholders.
Approved in Woods v. Woodson, 100 Fed. 519, holding bondholders
bound by decree against trustee, canceling bonds as invalid; Grant
V. Winona, etc., Southwestern Ry. Co., 85 Minn. 430, 89 N. W. 63,
construing mortgage trustee authorized to bind bondholders by de-
ficiency Judgment
Syl. 3 (XI, 414/. Mortgages — Trustees, bondholders' privity.
Approved in Atlantic Trust Co. v. Dana, 128 Fed. 225, holding de-
cree awarding fuad to mortgagee of corpori^tion binding upon re-
ceiver and all parties to suit, including intervening creditors. See
note, 73 Am. St Rep. 168.
123 U. S. 249-267, 31 L. 141, SMITH, ETC., MFG. CO. v. SPRAGUE.
Syl. 2 (XI, 415). Patento — Use to test machine.
ApiH-oved in Westinghouse, etc., Co. v. Saranac Lake, etc., Co.,
108 Fed. 230, holding furnishing lights to customers for small charge
not constituting prior public use of invention.
Syl. 3 (XI, 415). Patente — Public use.
Approved in Thomson-Houston, etc., Co. v. Lorain Steel Co., 117
Fed. 252, 253, holding use of commutator brush on electric motor car
two years before application renders patent therefor invalid al-
though used on experimenting car; Swain v. Holyoke ]^lach. Co.,
Ill Fed. 408, holding testimony of patentee, installation experi-
mental, insufficient evidence showing machine installed for prac-
tical use of purchaser two years before application, affirming 109
Fed. 158, 159, 100, affirming 102 Fed. 914, holding construction and
absolute sale of turbine wheel and Installation for actual use two
years before patent applied for constituted public use.
Distinguished in King Ax Co. v. Hubbard, 97 Fed. 893, holding
making six ax polls in course of experiment, five years before
patent issued, not constituting prior public use.
(XI, 414). Miscellaneous.
Cited in Sachs v. Kupferle, 127 Fed. 570, to effect decree in
suit against dealer for Infringement, adjudging complainant not
Inventor, bars subsequent suit against manufacturer.
123 U. S. 267-^307 Notes on U. S. Reports. V?
123 U. 8. 267-276, 31 L. 100. ANDREWS v. HOVBY.
SyL 2 (XI, 416). Patent — Prior pubUc use.
Approved In Covert v. Covert 106 Fed. 187, declaring Bmon's
patent tor wagon jack void, article Invented and placed on sate
more than two years before application; Welsbach Light Ca v.
American Incandescent Lamp Co., 98 Fed. 610, holding Rawson*8
patent for improvement in production of incandescent mantles
not void on ground of prior knowledge and use.
123 U. S. 276-286, 31 L. 153, SIEMBN'S ADMR. v. SELLERS.
Syl. 2 (XI, 416). Patents — Previous English patent — Date.
Approved in George Frost Co. v. Cohn, 112 Fed. 1012, holding
Gorton patent for hose supporter valid and not anticipated; West-
em Electric Co. v. Citizens* TeL Co., 106 Fed. 219, holding Ameri-
can patent for improvement in telephone exchange systems expired
with prior Italian patent issued to same patentee.
123 U. S. 286-28a Not cited.
123 U. S. 288-297, 31 L. 149, SANDS v. MANISTEB RIYBB UiP.
CO.
Syl. 1 (XI, 417). Constitutional law — Exaction of tolls.
Approved in Carson y. Brockton Sewerage Comm., 182 U. S. 404,
45 L. 1155, 21 Sup. Ct. 862, upholding assessment upon adjoining
owners for maintenance and operation of public sewer constructed
by assessments upon such property.
Syl. 2 (XI, 417J. Navigable waters — State's power over.
Approved in Lindsay & Phelps Co. v. Mullen, 176 U. S. 149, 44
L. 409, 20 Sup. Ct 334, upholding exaction of reasonable charges
for use of iihprovements made in Mississippi river by construction
of boom and works.
Syl. 7 (XI, 418). Navigable waters — New States.
Approved in Mobile Transp. Co. v. The City of Mobile, 128 Ala.
346, 30 So. 646, holding, upon admissions, Alabama's title to land
adjoining tide water between water and high tide^ became vested,
unaffected by subsequent Federal grant
123 U. S. 297-307, 31 L. 156, HITZ v. JENKS.
Syl. 3 (XI, 419). Acknowledgment conclusive evidence.
Approved in Linton v. "National Life Ins. Co., 104 Fed. 589, hold-
ing, as against mortgagees, grantors estopped from denying power
of attorney, acknowledged as stated in consul-general certificate.
Syl. 5 (XI, 419). Mortgages — Receiver — Application of rent
Approved in Atlantic Trust Co. v. Dana, 128 Fed. 218, upholding
mortgagee's prior right to income of mortgaged property in hands of
receiver.
971 Notes on U. S. Reports. 123 U. S. 307-334
(XI, 419). Miscellaneous.
Cited in Hitz v. Jenks, 185 U. S. 161, 171, 46 L. 853, 857, 22 Sup.
Gt 604, to effect, principal case adjudged deeds sought to be set
aside valid and enforceable instruments.
123 U. S. 307-328, 31 L. 182, COLORADO COAL & IRON CO. v.
UNITED STATES.
Syl. 2 (XI, 420). Public land — Effect of false proof.
Approved in United States v. Clark, 125 Fed. 776, holding pur-
chaser from gn^antee of entryman before issue of patent bona fide.
Syl. 3 (XI, 420). Public lands — Bona fide purchaser.
Approved In Olive Land, etc., Co. v. Olmstead, 103 Fed. 576,
allowing entryman acquiring equitable title to land and before
patent issued to enjoin persons from sinking oil wells and taking
oil therefrom; United States v. Southern Pac. R. R. Co., 98 Fed.
43, holding under act March 2, 1896, supplementing act March 3,
1887, for recovery of lands erroneously patented under railroad
grants, bona fide purchasers from railroad protected.
Syl. 5 (XI, 420). Cancellation of instrument — Proof .
Approved in United States v. Detroit Timber & Lumber Co., 124
Fed. 402, refusing to set aside patents, lumber company loaning
money to entryman with expectation of subsequently purchasing
lumber; Files v. Brown, 124 Fed. 139, refusing to rescind, under
facts, receiver's sale of certain Judgment for $25, purchaser realiz-
ing $3,200.
Syl. 6 (XI, 420). Public lands — Annulling patent — Proof .
Approved in United States v. Clark, 125 Fed. 778, holding facts
insnfllcient to set aside patent for public lands, fraud alleged to
have been committed by patentees.
Syl. 12 (XI, 421). " Known mines " — ^Ascertained deposits.
Approved in Olive Land, etc., Co. v. Olmstead, 103 . Fed. 578,
holding surface indications of oil in region of producing oil wells
not defeating right to patent, no actual discovery made; Standard
Quicksilver Co. v. Habishaw, 132 Cal. 121, 64 Pac. 116, upholding
agricultural patent, mines upon land presumably abandoned and
value of minerals unknown.
Distinguished in Cosmos Exploration Co. v. Gray Eagle Oil Co.,
104 Fed. 44, denying entryman, falsely claiming land as agricultural,
relief against prior oil locator although entry made iH*ior to actual
discovery of oil.
123 U. S. 329-334, 31 L. 179, DEWEY v. WEST FAIRMONT, ETC.,
CO.
Syl. 1 (XI, 422). Federal courts — Ancillary suit in equity.
Approved in Bottom v. National Ry. Bldg., etc.. Loan Assn.,
123 U. S. 335-^75 Notes on U. S. Reports. 072
123 Fed. 745, entertaining suit, by receiver appointed by Circuit
Ck>urt of northern district, against borrowing stoclcholder resident
of southern district of Georgia to foreclose mortgage; Virginia-
Carolina Chemical Co. v. Home Ins. Co., 113 Fed. 3, and Home Ins.
Co. y. Virginia-Carolina Chemical Co., 100 Fed. 687, both entertain-
ing bill without regard to citizenship enjoining separate actions
for damages, question as to value of property destroyed vital and
common to all suits.
123 U. S. 835-348. Not cited.
123 U. S. 349-356, 31 L. 175, THE MAGGIE J. SMITH.
Syl. 4 (XI, 423). Admiralty — Costs and Interest discretionary.
Approved in The George W. Roby, 111 Fed. 622, holding stipulators
agreeing to pay interest upon appraised value according to law
liable for interest from date of agreement
SyL 5 (XI, 422). Collision — Erroneous order in extremis.
Approved in The Atlantis, 119 Fed. 572, resolving every reason-
able doubt in favor of overtaken vessel, negligence of overtaking
vessel established; Ross v. Merchants', etc., Transp. Co., 99 Fed.
795, holding scows improperly anchored without lights, in narrow
channel, liable regardless steamer employing wrong alternative;
123 U. S. 35(^-369, 31 L. 164, OELBERMANN v. MERRITT.
Syl. 2 (XI, 424). Custom officer's apiH*aisement — Review.
Distinguished in United States v. Loeb, 107 Fed. 696, holding
appraisement invalid, appraisers failing to make personal examina-
tion of invoices, as required by statute.
Syl. 6 (XI, 424). Customs — Merchant appraiser as witness.
Approved in Renvy, Schmidt & Plelssner v. United States, 121
Fed. 442, presuming appraiser acted fairly as to production of
packages for examination; United States v. Loeb, 99 Fed. 732,
allowing collector to testify appeal taken was by direction of
secretary of treasury and not exercise of own Judgment.
123 U. S. 369-372. Not cited.
123 U.S. 372-375, 31 L. 174, IN RE HENRY.
Syl. 1 (XI, 425). Fraudulent use of malls — Section 5480.
Approved In United States v. Clark, 125 Fed. 93, holding indict-
ment charging defendant with depositing 500 letters with intention
to defraud bad; Packer v. United States, 106 Fed. 908, holding
each letter placed in or received from post-offlce, pursuant to fraudu-
lent scheme, constitutes separate and distinct offense.
SyL 3 (XI, 425). Post-offlce — Violations of section 5480 — Sepa-
rate punishments.
Approved in Carter v. McClaughry, 183 U. S. 394, 46 L. 251, 22
978 Notes on U. S. Reports. 123 U. S. 876-616
Sup. Ct 193, punishing accused, guilty of separate and distinct
offenses, by Imprisonment for one and by fine for other; Bx parte
De Bara, 179 U. S. 320, 45 L. 209, 21 Sup. Ct. 112, upholding court's
power to give single sentence in excess to that prescribed for one
offense; Hanley v. United States, 123 Fed. 853, remitting punishment
in excess of single sentence, defendant receiving separate sentences
for three offenses committed within six calendar months, chargeable
in distinct indictments; De Bara v. United States, 99 Fed. 945,
denying habeas corpus before expiration of portion of sentence
legally servable on ground of excessive sentence; aflirmed in 179
D. S. 320.
123 U. & 376-391, 31 L. 238, LAMASTEB t. KBELEB.
SyL 8 (XI, 425). Federal remedies — Judgments — State law.
Approved In Steele v. Buel, 104 Fed. 972, denying trustees in
bankruptcy title to policies of life insurance; same exempt by
Iowa law.
128 U. S. 392-436. Not cited.
128 U. 8. 436-442, 31 L. 267, SMITH v. CRAFT.
SyL 2 (XI, 428). Bankruptcy — Debtor preferring creditor.
Approved in Foster v. McAlester, 114 Fed. 151, upholding mort-
gage given under agreement, to give when demanded mortgage
upon stock to secure indebtedness.
128 U. S. 443-516, 31 L. 216, IN RB AYBRS.
SyL 1 (XI, 429). Contempt — Void order.
Approved in In re Reese, 107 Fed. 948, discharging upon habeas
corpus person imprisoned for contempt violating injunction, not
party to cause nor subject to court's Jurisdiction; In re Groen, 22
Wash. 55, 60 Pac. 123, discharging defendant in divorce case, violat-
ing injunction against disposing property, injunction granted with-
out notice, or necessity therefor shown or opportunity given to be
heard.
SyL 2 (XI, 429). Habeas corpus — Void order.
Approved In In re Nevitt, 117 Fed. 449, refusing to review upon
habeas corpus validity of bonds; Doming v. M'Claughry, 113 Fed.
649, discharging, upon habeas corpus, volunteer officer convicted by
court-martial composed wholly of regular army officers; In re
Reese, 98 Fed. 989, holding person imprisoned for contempt of void
order properly released upon habeas corpus. See note, 87 Am. St.
Rep. 180.
SyL 3 (XI, 430). States — Suits against officers.
Approved in Missouri, etc., R. R. Co. v. Missouri R. R. Comrs., 183
U. S. 59, 46 L. 83, 22 Sup. Ct 20, holding suit by board of raihroad
connnissioners against railroad not suit barring removal; Morenci
123 U. S. 443-516 Notes on U. S. Reports. 974
Copper Co. y. Freer, 127 Fed. 203, dismissing suit lirought against
attorney-general to restrain him from instituting salt to declare
corporation's charter forfeited; Western Union TeL Ca y. Myatt,
98 Fed. 356, holding suit by telegrraph company against Kansas
court of visitation and State solicitor to enjoin enforcement of
rates not against State; Salem Mills Co. y. Lord, 42 Or. 89, 69 Pac
1035, looking behind nominal parties to ascertain real parties, juris-
diction questioned on ground suit against State.
Syl. 6 (XI, 430). States — Suits against officers.
Approved in Minnesota v. Hitchcock, 185 U. S. 386, 46 L. 962, 22
Sup. Ct. 655, holding suit by Minnesota to enjoin secretary of in-
terior and comsnission^ of land office from selling public lands
against United States; Smith y. Reeves, 178 U. S. 440, 44 L. 1143. 20
Sup. Ct. 921, holding suit against treasurer of State of California
to recover taxes alleged illegally assessed suit against State;
Coulter V. Weir, 127 Fed. 905, denying jurisdiction of suit agahist
State auditor to restrain collection of franchise tax due State;
Morenci C(H>per Co. v. Freer, 127 Fed. 204, 205, denying jurisdiction
of suit by corporation to restrain attorney-general from instituting
suit to forfeit corporation's charter; Union Trust Oo. y. Stearns, 119
Fed. 791, 792, 793, 794, denying jurisdiction of suit against attorney-
general of State to enjoin institution of criminal prosecutions in
name of State; Arbuckle v. Blackburn, 113 Fed. 623, 624, denying
jurisdiction of suit to enjoin State officer from instituting prosecu-
tions under State statute, conceded valid if properly construed;
Farmers' Nat Bank v. Jones, 105 Fed. 464, denying jurisdiction of
suit against State debt board to compel board to issue new bonds
in lieu of bonds lost; Ransom y. City of Pierre, 101 Fed. 669, hold-
ing bondholder's action against city treasurer, to compel payment
of bonds, suit against city; State v. Chicago, etc., R. R., 61 Neor.
549, 85 N. W. 557, denying Injunction by United States Circuit
Court to restrain State attorney-general from collecting penalty
under maximum freight law; Cooper Co. y. Scherr, 50 W. Va. 541,
542, 40 S. E. 518, refusing to restrain State auditor from collecting
franchise tax Imposed upon corporations or from instituting suit
to forfeit charter.
Distinguished In Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, re-
straining State official from enforcing " Maximum Freight Rate
Law," enactment unconstitutional; Carolina Nat. Bank y. State,
GO S. C. 474, 38 S. E. 632, holding unauthorized act of penitentiary
sup erinteii dent Indorsing note and placing proceeds to State's credit
not State's act; Salem Mills Co. v. Lord, 42 Or. 94, 69 Pac. 1037,
liolding suit against State officers to restrain use of excessive
water under contract between State and riparian owners not suit
against State.
D75 Notes on U. S. Reporta. 123 U. S. 516-549
Syl. 8 (XI, 431). Eleventh Amendment — States' Immunity.
Approved in Smith v. Reeves, 178 U. S. 4^7, 44 L. 1146, 20 Sup.
Ct 923, denying Jurisdiction of suit by Federal corporation against
treasurer of State; Coulter v. Weir, 127 Fed. 904, holding suit
against auditor to restrain collection of franchise tax due State
not maintainable; dissenting opinion In South Dakota v. North
Carolina, 192 U. S. 331, 342, 343, 349, 24 Sup. Ct 281, 286, 289,
majority sustaining Jurisdiction, suit by South Dakota against
North Carolina, decreeing amount due upon bonds of latter State
owned by former and foreclosing stock held as security.
Distinguished in Southern Exp. Co. v. Mayor, etc., of Bnsley, 110
Fed. 760, restraining enforcement of invalid ordinance imposing
anlawful license fee and prescribing penalty for nonpayment thereof;
McConnell y. Arkansas Brick Mfg. Co., 70 Ark. 584, 585, 586, 69
S. W. 564, 565, sustaining suit to enjoin penitentiary superin-
tendent and commissioners from rescinding contract for hire of
State convicts.
SyL 10 (XI, 432). Contracts — Existing remedies.
Approved in dissenting opinion in South Dakota v. North Carolina,
192 U. S. 342, 24 Sup. Ct 286, court decreeing in suit against State
for nonpayment of bonds amount due, foreclosure of security for
payment thereof.
Syl. 11 (XI, 432). State's contracts — Binding force.
Approved in Farmers* Nat. Bank v. Jones, 105 Fed. 462, refusing
Jurisdiction of suit against State debt board, to compel them to do
acts, Imposing contractual liability upon State; dissenting opinion
in South Dakota v. North Carolina, 192 U. S. 342, 343, 24 Sup. Ct.
286, majority decreeing in suit against State for nonpayment of
bonds amount due, foreclosing and selling stock held as security.
SyL 13 (XI, 432). State officers — Personal wrongs.
Approved in State R. M. F. Co. v. Toole, 26 Mont 28, 91 Am. St.
Rep. 388, 66 Pac. 498, compelling State furnishing board, regularly
accepting bid, to sign formal contract
123 U. S. 516-540. Not cited.
128 U. S. 540-549, 31 L. 235, CHAPMAN v. GOODNOW.
SyL 3 (XI, 435). Federal question — Indirectly denied.
Approved in Rogers v. Alabama, 192 U. S. 231, 24 Sup. Ct 258,
reversing, where Judgment struck motion to quash indictment,
on ground that black men excluded from panel of grand Jury from
flies.
SyL 4 (XI, 435). Supreme Court's Jurisdiction — Federal question.
Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S. 15,
46 L. 404. 21 Sup. Ct 245, holding under second clause of Rev.
123 U. S. Wl)-572 Notes on U. S. Reports. 976'
Stat., § 709. sufficient If validity of State statnte or authority nec-
essarily involved in case.
123 U. S. 549-552, 31 L. 199, LITCHFIELD v. GOODNOW.
Syl. 1 (XI, 435). Judgment — Estoppel — Paying part expenses.
Distinguished in Hauke v. Cooper, 108 Fed. 925, holding decree,
involving title to land, conclusive upon grantee of person promoting
and controlling action although not nominal party.
Syl. 2 (XI, 435). Judgment — Estoppel — Parties directly Ui-
terested.
Approved In Williams v. Barclay, 1(55 N. Y. 58, 58 N. E. 768.
holding counsel, employed by attorneys of record, bound by decision
finding attorneys of record negligent and not entitled to fee.
Syl. 4 (XI, 436). Estoppels must be mutual
Approved in Wcstinghouse Elec., etc., Co. ▼. Jefferson Elec^ etc,
Co., 128 Fed. 752, denying former judgment a bar, defense not
open or known to adverse party.
123 U. S. 552-559, 31 L. 202, DES MOINBS NAV. CO T. IOWA
HOMESTEAD CO.
Syl. 1 (XI, 436). State courts ignoring Federal question.
Approved in Deposit Bank v. Frankfort, 191 U. S. 519, boldhig
State court denies right secured by Federal court Judgment, reus-
ing effect to said judgment
Syl. 2 (XI, 43G). Erroneous Judgments — Record not showing
Jurisdiction.
Approved in Johnson v. Hunter, 127 Fed. 227, holding decree
foreclosing tax lien not subject to collateral attack, failing to
disclose Jurisdictional facts; In re Ives, 111 Fed. 497, holding Bank-
ruptcy Court without Jurisdiction to entertain petition to set aside
adjudication not filed until several terms intervened; Weeds v.
Woodson, 100 Fed. 518, presuming, upon collateral attaclL, evidence
sufficient to sustain order for special service.
123 U. S. 560-562, 31 L. 268, PLUMB v. GOODNOW.
Syl. 1 (XI, 437). Judgment — Party beneficially interested.
Approved in Springfield v. Plummer, 89 Mo. App. 532, d^ijlng
lack of notice of pendency of suit, one answering over and partici-
pating in defense.
123 U. S. 562-572, 31 L. 255, LACOMBE v. FORSTALL.
Syl. 3 (XI, 437). Pledge — Pledgee unlawfully selling goods.
Approved in Schaaf, Admr. v. Fries, 90 Mo. App. 115, sustaining
trover to recover damages for conversion of certain shares of pledged
stock.
077
Notes on U. S. Repom. 123 D. 3. 572-018
1 L. 263, TEAL t, BILBY.
Contracts — Parol modlflcatlon — Burden of
123 n. 8. 672-582, 3
Bsh 4 (XI, 438).
proof.
Approved in Thompeon v. Thompaon, 78 Minn. 386, 81 N. W. 644,
hoUlDs storage receipt signed bj warebouseman'B agent not varied
bj parol u^eement
123 U. 8. 582-589. Not cited.
123 D. S. 68&-607, 31 L. 269, CRAWFOBD t. HBYSINGER.
Syl. 1 <SI, 439). Patentee bound by elaira limitation.
Dlstlngulsbed In National Hollow, etc.. Go. v. Interchangeable,
etc., Co., 100 Fed. 714. denying patent limited by precise geometrical
form or end caps, as shown in apeclflcatlons and drawings, from
being Immaterial.
123 U. S. 608-617, 31 L. 280, WILSON V. BIDDLB.
SyL 3 (VI, 439). Equity — Jury — Submitting Issues discretionary.
Approved in Oil Well Supply Co. v. Hall, 128 Fed. 878, upholding
dUtrlct Judge's discretilon [n Impaneling advisory Jury to try fact of
bankruptcy.
Syl. 6 (XI, 440), Equity — Jury — Appeal — Formal esceptlonB.
Approved In McKlnley Creek Idlnlng Co. v. Alaska, etc., Co., 183
n, 8. 567, 46 L. 333. 22 Sup, Ct 85. holding questionable whether
court's rulings upon admisElon of testimony, correctness of Instmc-
dons. and sulflplency of evidence reviewable; Southern Bl<lg.. etc.,
Assn. T. Carey, 117 Fed. 330, holding practice of bringing Into
record, by bill of exceptions, papers, filing thereof refused, unknown
to Federal equity cases.
128 n. 8. 617-622. Not dted.
123 U. S. 623-078, 31 L. 205, MUGLER v. KANSAS.
SyL 8 (XI, 441). States — Void police measures.
Approved In Jew Ho v. Williamson. 103 Fed. 17. declaring un-
reasonable quarantine regulation cutting off intercourse froui wltb'
out but permitting free Intercourse within; Republic Iron h Steel Co.
V. Sta.te, 160 Ind. 386, 66 N. E. 1007, declaring void set providing
for weekly i«yment of wages and Imposing penalty for vtolatlou
thereof; State v. Kreutzberg, 114 Wis. 539, 00 N, W. 1102, 91 Am.
St Rep. MI, declaring void law making It an offense to discbarge
employee because member of labor organization. See note, 78 Am.
St. Rep. 23&
Distinguished In Borth v. lUlnola, 184 U. 8. 429. 46 L. 626. 22 aup.
Ot. 427, refusing to declare means employed to suppress gambling
grain contracts, declaring Illegal all options to sell or buy ni future
time, unappropriate; Austin v. Tennessee, 17d U. 8. 344, 45 L. 227,
Vol n — 62
k
123 U. 8. 623-678 Notes on U. 8. Reports. ITTS
21 Sup. Ct. 132, upholding State legislature's power to resrnlate or
prohibit sale of cigarettes after taken from original packages ot
importer's hands; In re Wilshire, 103 Fed. 623, sustaining municipal
ordinance regulating height of billboards.
Syl. 4 (XI, 442). Intoxicating liquors, Stote prohibition.
Approved in Lottery Case, 188 U. S. 360, 23 Sup. Gt 828, 47 L.
503, upholding congressional act for suppression of interstate traffic
In lottery Uckets; August Busch, etc., Co. t. Webb. 122 Fed. 665»
sustaining local option law prohibiting sale of liquors, except for
certain purposes; United States v. Owens, 100 Fed. 71, exempting
saloon-keeper's bond, condition precedent to State granting license
from internal revenue stamp; Adams v. Cronin, 29 Colo. 499, 69 Pac.
594, upholding ordinance prohibiting saloon-keepers from maintain-
ing in connection with saloon winerooms for women; Commonwealth
V. Pear, 183 Maas. 245, 66 N. B. 721, upholding act authorizing city
to require vaccination of all inhabitants and imposing fine of |6
for violation thereof; Hoboken y. Goodman, 68 N. J. L. 221, 51 AtL
1093, upholding ordinance granting license to sell liquor upon ex-
press condition woman not employed in connection therewith; Dan-
ville ▼. Hatcher, 101 Va. 527, 44 S. E. 725, sustaining city ordinance
closing saloons between hours of 7 o'clock p. ic and 6 o'clock a. m.;
Farmville v. Walker, 101 Va. 328, 43 S. B. 560, upholding legislature
power to authorize municipal corporation to establish dispensary
for sale of liquor. See notes, 78 Am. St Rep. 253, 254, 255.
Distinguished in Henderson v. Heyward, 109 Ga. 376, 77 Am. St
Rep. 387, 34 S. B. 591. denying municipal authority under " general
welfare" clause in charter to make penal act receiving alcoholic
liquors purchased from without; State v. Hanaphy, 117 Iowa, 18,
19, 90 N. W. G02, holding traveling salesman of nonresident principal
soliciting liquor orders for shipment into State not subject to
prosecution under State prohibitory statute; State v. Hickox, 64 Kan.
656, 68 Pac. 37, holding State law restricting nonresident salesman
from purchasing and importing from another State intoxicating
liquors unconstitutional.
Syl. 6 (XI, 443). Fourteenth Amendment — State police power.
Approved in Otis v. Parker, 187 U. S. 608. 23 Sup. Ct 16f», 47 L.
327, holding Const. Cai., art 4, § 26, not unconstitutional aa to
sales upon margins; Austin v. Tennessee, 179 U. S. 347, 45 L.
227, 21 Sup. Ct 133, sustaining State legislature's power to regulate
or suppress sale of cigarettes after taken from original packages
or importer's, hands; Sheriff v. Turner, 119 Fed. 785, refusing to
enjoin army officer under orders of secretary of war from construct-
ing sewer because depreciating adjoining property; Ruh&trat v.
People, 185 111. 142, 76 Am. St Rep. 35, 57 N. E. 44, holding flag
law of 1899 unconstitutional depriving United States citizens of
privilege of using national flag as trade-mark; Meffert ▼• Medical
B79 Notes on V. 8. RcporU. 123 D. S. fi23-678
Board, 66 Kan. 719, 72 Pac. 250, upholding State's power to
create board of examiners to determine nualifl cations of persons
desiring to practice medicine; Scholle t. State, 90 Md. 740, 45 Atl.
327, upbolding legislative act requiring medical prsctitloners to
obtain licenses from board of examiners appointed by private cor-
poration; State V, Blxman, li;2 Mo. 27, 62 S. W. 833, upholding State
law imposing fee for privilege of manufacturing or selling beer
within State; State v. Layton, 160 Mo. 4S9, 61 3. W. 174, upholding
Slate act prohibiting arsenic, calomel, bismuth, ammonia, or alum
in articles used In prep.iration of food, baking powder; KnoivUle t.
KnoxvUle Water Co., lOT Tenn. G75, 61 S. W. 1082, upholding city's
power under statutory authority to regulate water rates.
Distinguished In In re Marshall, 102 Fed. 325, declaring county
ordinance Invalid, making It a misdemeanor to kill gamp with
repeating or magaalne shot-gun; Iowa v. Santee, 111 Iowa. 4. 82 N.
W. 446, declaring unconstitutional law prohibiting petroleum prod-
uta for lUumlnatJon escept In connection with Welsbach hydro-
carbon inca tides cent lamp; Asbell t. Edwards, 63 Kan, 620, 66 Pac.
tM4, confining live-stock sanitary commission strictly within limits
of Jurisdiction, not parsing upon validity of statutory provisions
authorizing summary proceedings against affected cattle; State v.
Dalton, 22 R. 1, 82. 46 Atl. 235, declaring unconstltutlona] act pro-
hibiting giving or receiving trade coupons.
SyL 7 (XI, 446). State's poUce power — Limited.
Approved lu la re Wilson, 10 N. Mex. 3S, 60 Pac. 75, dociaring
territorial statute unconstitutional impoaing license fee as condition
for sale of coal-oil !n original packages by Importer; dissenllug opin-
ion In State v. Blxman, 1(12 Mo. 56, 62 S. W. 843. majority upholding
State law Imposing tax upon manufacture and sale of beer, though
exporters placed In one class and domestic dealers In another, and
beer exported exempt from tax. See note, 92 Am. St. Rep. 60.
Syl. 8 (XI, 447). States — Prohibitory laws — Properly Injured.
Approved In L'Hote v. New Orleans, 177 V. 8. 508, 44 L. 004,
20 Sup. Ct 702, refusing to enjoin city ordinance conflnliig lewd
women within certain lltnlta at Instance of owners or adjoining
property,
Syl. 10 (XI, 447). States— Prohibitory laws — Individual Incon-
venlence.
Approved In Police Comra. v. Wagner, 93 Md. 101, 48 Atl. 450,
denying recovtry of slot machines, seized bj police. Intended for use
In violation of criminal law; State v. Barge, 82 Minn. 2«2, 81 N. W.
914, upholding ordinance prohibiting Inciosures In conneciion with
barrooms,
SyL 11 (XI, 448). Intoxicating liquors — Nuisance. \
Approved In California Reduction Oo. v. Sanitary Reduction,
Works, 126 Fed. 35, upholding municipal ordinance granting private
k
i
(23 U. 8. 8T&-721 Notta on D. S. Beporta.
Q60
corporation eicluslve franchise to remove and dlspoBe of gnrbage;
Common weallh v. Pear. 183 Mhrb. 247, B6 N. E. T21, holding legis-
lature aote Judge whether rnccinBtlon dangerous to public welfare.
See notes. 78 Am. St Sep. 254, 255. 257.
S7I. 13 (XI, 448). NulBSDce — Equity's control over.
Approved In Missouri v. Illinois, 180 U. S. 244, 45 L. 513. 21 Sup.
Ct. '6i5, entertalnlDg bill by Missouri to enjoin Iltlools and sanitary
district of Chicago from dlscharglog sewerage through artificial
channel Into MISBlsslppI river; Ripon Knitting Works v. S'.'brelber,
101 Fed. 813, upholding Bankruptcy Court's power to punlsb bank-
rupt for contempt falling to deliver property to trustee upon court's
order; Weston v. Ualslon, 48 W. Va. 194, 3U S. E. 458, holding equity
will cancel deeds to land operating om cloud upon public ensement
and enjoin further litigation thereof.
123 U. 8. 879, 680. 31 L. 278, SHERMAN v. GRINNELIi.
SyL 1 (XI. 449). Error, reviewing order remanding cauBe.
Approved In German Nat. Bank v. Spcckert, 181 U. S. 400. 45 L.
026, 21 Snip. OL G89. denying appeal under act March 3, 1891. | S.
from Circuit Couit of Appeals Judgment, directing Circuit Court to
remand case.
Syl. 2 (XI. 449), Pending eau see — Repeal of law.
Approved lu United States v. Kelley, 97 Fed. 461, holding pending
cases to recover official compensation abated with act couferrlug
concurrent Jurisdiction, expressly excepting such suits.
123 D. 8. 681-686. Not cited.
123 V. 8. 087-702, 31 L. 303, TEXAS. ETC., RT. CO. T. MABLOIl.
SyL 8 (XI, 450). Failure to exercise option.
Approved in Flick t. Hahn's Pk., etc.. Co.. 16 Colo. App. 492. 66
Pac. 455. holding defendant not executing note, under agreement
to accept stock. If note unpaid, plaintiff entitled to recover In money.
12a U. S. 702-710, 31 L. 283. ROBINSON v. PORTI^AND, ETC.,
ASYLUM.
Syl. 2 (XI, 450). Wills — Income — Remainder over.
Approved In Young Women's Christian Home v. French. 187 U. S.
412. 23 Sup. Ct. 187, 47 L. 237, holding under will property passed
to " Home," husband dying before testatrix, and testatrix and son
perishing together In shipwreck.
123 U. 8. 710-721. 31 L. 290. NORTHERN PAO. RT. T. MARES.
Syl. 1 (XI, 451). THal — Nonsuit denied — Exception waived.
Approved In M'Crea v. Parsons, 112 Fed. 919, holding defendant's
motion for judgment waived, unless renewed after evidence Intro-
duced; Barnard v. Bandle, 110 Fed. 907, holding demurrer to evi-
dence waived by SDbseqaent latroducUoa of evidence to merits;
,981 Notes on U. S. Reports. 123 U. S. 722-739
Barabasz y. Kabat, 91 Md. 60, 46 Atl. 339, holding ruling, not subject
to review, defendant offering evidence in defense; Bopp v. New
Yorlt, etc., Transp. Co., 177 N. Y. 36, 69 N. B. 123, holding objection
waived, if, at close of entire case, evidence presents question tor
jury.
Syl. 3 (XI, 451). Railroads — Personal injuries — Fellow servants.
Approved in Adolff v. Columbia, etc., Co., 100 Mo. App. 212, 73
S. W. 325, holding question whether servant under command of
master, attempting perilous service, assumed rislt, one for Jury;
dissenting opinion in St Louis Cordage Go. v. Miller, 126 Fed. 517,
court distinguishing at pages 498, 510, holding young woman em-
ployee barred from recovering, defect of exposed gearing obvious
and dangers apparent; separate opinion on rehearing in Epperson
V. Postal TeL Cable Ca, 155 Mo. 386, 55 S. W. 1050, court d^iying
recovery on ground, employee, experienced lineman, relied upon
foreman's assurance, line safe, after informing foreman line heavily
charged.
SyL 5 (XI, 451). Contributory negligence — Preponderating
proof.
Approved in Hemingway v. IlUnois Cent. R. R. Co., 114 Fed. 846,
holding court erred directing verdict for defendant, deceased killed
at street crossing; Southern Pac. Co. v. Yeargln, 109 Fed. 442, hold-
ing question whether accident due to deceased's negligence, falling
to read message or to improper equipment of headlight, one for
Jury; dissenting opinion in King v. Morgan, 109 Fed. 454, majority
denying plaintiff, an experienced miner, recoveiy for injuries re-
ceived by using alleged improper tamping iron.
123 U. S. 722-727. Not cited.
123 U. S. 727-739, 31 L. 287, NORTH PENNSYLVANIA RY. T.
COMMERCIAL BANK.
Syl. 1 (XI, 452). Trial — Direct verdict
Approved in Gilbert v. Burlington, etc., Ry., 128 Fed. 532, hold-
ing court properly instructed verdict for defendant, plaintiff stepping
between moving cars to uncouple them; St Louis Cordage Co. v. .
Miller, 126 Fed. 508, holding court should have directed verdict for
defendant danger apparent and obvious, to woman employee in-
jured; Cole V. German Savings & Loan Soc, 124 Fed. 122, sustain-
ing direction of verdict, deceased Isilled by stranger opening ele-
vator door; Marquardt v. Ball Engine Co., 122 Fed. 377, holding
directing proper, deceased Iiilled by breaking of flywheel, due to
defective worlsing of valve; Brady v. Chicago & G. W. Ry. Co., 114
Fed. 105, holding verdict properly directed, deceased liilled through
negligence of servants of depot corporation, defendant merely using
depot ti'uclLs; Cudahy PaclLiug Co. v. Marcan, 106 Fed. 648, holding
OXXIV UNITED STATES.
124 U. S. 1-11, 31 L. 325, LAWTHBR v. HAMILTON.
Syl. 1 (XI, 457). Patents — Process.
Approved in Dececo Co. t. .George E. Gilchrist Co., 125 Fed. 290,
sustaining patent for water-closet, showing improvement amounting
to patentable invention; Chiaholm y. Johnson, 106 Fed. 200, sus-
taining patents for improrements in machines for hailing green
peas; Stephenson ▼. Allison, 123 Ala. 449, 26 So. 293^ affirming
Chanoellor's opinion, churn novel and usefuL
124 U. S. 12r20. Not cited.
124 U. S. 20-32, 31 L. 264, NORTON v. HOOD.
SyL 1 (XI, 457). Banltruptcy — Assignee's suits.
Approved in In re Garcewich, 115 Fed. 89, holding title to goods
sold to banltrupt under agreement, title to goods remaining unsold
by bankrupt remaining in vendor, vests in trustee.
124 U. S. 32^38, 31 L. 362, DRYFOOS v. WIESB.
Syl. 1 (XI, 457). Patents — Infringement
Approved in Farmers' Mfg. Co. v. Spruks Mfg. Co., 119 Fed. 599,
holding East's patent ventilating barrel with parallel slits, void, prior
arts showing barrels ventilated by holes.
Distinguished In National Hollow, etc., Co. v. Interchanpeable.
etc., Co., 106 Fed. 715, holding patent infringed, although infring-
ing machine employed caps geometrically different in form, form
being immaterial.
124 U. S. 38-56, 31 L. 337, HINCHMAN v. LINCOLN.
Syl. 4 (XI, 458). Statute of Frauds — Sales — Buyer's control.
Approved in Devlne v. Warner, 75 Conn. 380, 53 AtL 784, 96 Am.
St Rep. , reversing, Jury Inferring from charge mental accept-
ance of goods sufficient; Coffin v. Bradbury, 3 Idaho, 779, 780, 95
Am. St. Rep. 96, 97, 35 Pac. 717, refusing to disturb jury's verdict
as to sale and acceptance, evidence conflicting.
124 U. S. 56-60. Not cited.
124 U. S. 60-64, 31 L. 352, DREYFUS v. SEARLB.
Syl. 1 (XI, 458). Patents — Old apparatus, applied.
Approved in Wisconsin, etc., Co. v. American, etc., Co., 125 Fed.
769, holding Nation's patent for duster not infringed by Thurman's
[984]
965 Notes on U. S. Reports. 124 U. S. 64-157
patent carpet renovator; Farrell y. Boston, etc., Gopper, etc., Co.,
121 Fed. 846, holding Mankes' patent for process of reducing com-
mercial pig copper, void, same as Bessemer's patent.
124 U. S. 64r-74. Not cited.
124 U. S. 74r^, 31 li. 344, LANGDON v. SHERWOOD.
Syl. 5 (XI, 460). Ejectment — Legal title alone snpporting^
Approved in Daniel y. Felt, 100 Fed. 728, denying interposition of
equitable title as defense to action of ejectment; Proctor y. City &
County of San Francisco, 100 Fed. 351, sustaining demurrer to bill
in equity to enforce trust for benefit of grants from certain specified
authority, complainant claiming adverse to such authority.
124 U. S. 86-97, 31 L. 329, UNITED STATES v. VILAS.
SyL 4 (XI, 460). Postmaster's readjustments of salaries.
Approved in United States y. Ewing, IM U. S. 148, 46 L. 474, 22
Sup. Ct 483, holding readjustment of salary dates f^m the im-
mediately succeeding quarter.
124 U. S. 98-131. Not cited.
124 U. S. 131-157, 31 L. 374, 6UMBEL y. PITKIN.
SyL 1 (XI, 461). United States marshal — Suits against
Approved in Phelps v. Mutual Reserve, etc., Assn., 112 Fed. 467,
refusing to enjoin receiver, appointed by State court, obtaining only
constructive possession on ground State court without Jurisdiction
to appoint; Columbus, S. & H. R. R. Co.'s Appeals, 109 Fed. 199,
holding lien upon property coming into possession of Circuit Court
enforceable by court having possession with proper parties before it.
SyL 2 (XI, 462). Federal courts, equitable power over process.
Approved in Put-in-Bay Water-Works, L. & R. Co. v. Ryan, 181
U. S. 433, 45 L. 938, 21 Sup. Ct 718, sustaining Jurisdiction of
Circuit Court to appoint receiver, property and franchises, subject-
matter of suit, not in possession of State court; In re Young, 111
Fed. 161, sustaining Banl^ruptcy Court's refusal, on mere motion
to return property to mortgagee on ground mortgagee legally in
possession when property seized; Connor v. Alligator Lumber Co.,
98 Fed. 156, sustaining bill by receiver, requiring defendant, as
authorized by State statute, to set up for adjudication adverse
claim, an alleged cloud upon title.
SyL 4 (XI, 462). Federal courts, State attachment law.
Approved in Connor v. Tennessee Cent Ry. Co., 109 Fed. 938,
approving intervention by purchaser of railroad property at Judicial
sale, in suit to enforce unforeclosed lien.
SyL 5 (XI, 463). Property, custodia legis — Void writ
Approved in National Foundry, etc., Worlss v. Oconto, etc., Co.,
105 Wis. 66, 81 N. W. 131, holding lien suit commenced in Federal
124 U. S. 157 189 Notes on U. S. Reports. 966
court not barring subsequent suit in State court to foreclose mort-
gage.
Distinguished in Pitkin y. Bumham, 02 Nebr. 897, 89 Am. St
Rep. 773, 87 N. W. 164, denying property legally attached, subject
to second levy by different officer under different process; Leigh y.
Green, 62 Nebr. 354, 89 Am. St Rep. 759, 86 N. W. 1097, allowing
tax lien holder to foreclose lien in State court, notwithstanding
pendency of action' in Federal court, wherein land attached.
(XI, 461). Miscellaneous.
Oited in Corbitt y. Farmers' Bank, 114 Fed. 604, aba^ting at-
tachment by which State court obtained Jurisdiction, uiMn remoyal
of cause to Federal court
124 U. S. 157-164. Not cited.
124 U. S. 165, 166, 31 L. 333, BALTIMORB, ETC., R. R. T. BURNS.
Syl. 1 (XI, 463). Remoyal, petition when made.
Approyed in Guarantee Go. of North Dakota y. Hanway, 104 Fed.
374, holding objections to time and manner of remoyal walyed by
silently proceeding to trial upon merits.
124 U. S. 167-169. Not cited.
124 U. S. 169-173, 31 L. 400, VBTTERLEIN y. BARNES.
SyL 1 (XI, 464). Trusts — Beneficiary as party.
Approyed in Atlantic Trust Go. y. Dana, 128 Fed. 225, holding
decree awarding fund to mortgagee, bound receiver and all parties
to suit including intervening creditors; Tompkins y. Tompkins et aL,
123 Fed. 208, holding legal representatives of testator not necessary
parties defendant in suit by assignee of legacy against executor and
holders of conflicting assignments; Woodbridge y. Bockes, 170 N. Y.
601, 63 N. E. 365, denying accounting at instance of cestui que trust
receiving property as trustee and wasting same.
124 U. S. 173-183. Not cited.
124 U. S. 183-189, 31 L. 396, RIGHARDS y. MAGKALL.
Syl. 1 (XI, 464). Equity — Appealing to chancellor's conscience.
Approved in Reynolds, etc., Hamby Go. v. Martin, 116 Ga. 502,
42 S. E. 799, denying relief, four years elapsing after perpetration of
fraud before application made.
SyL 2 (XI, 465). Equity — Relief refused, laches shown.
Approved in Westinghouse, etc.. Brake Go. v. New York, etc.,
Brake Go., Ill Fed. 742, refusing accounting for infringement, patent
dormant for fifteen years, infringed by defendant for seven years
with complainant's knowledge, without protest; Nash y. Ingalls, 101
Fed. 649, upholding defense of limitation and laches, lapse of time
appearing in bill and excusable circumstances not shown.
087
Notes on U. S. Reporta. 124 U. S. 190-225
Byl. 3 (XI, ieS). Equity — Kxecutlon sale — Plaintiff laches.
Approved In De Roux t. Glrard's Exr., 112 Fed. 96, deDylng salt
by mortgagor's heirs to Impeach mortgage for fraud, forty years
after mortgage executed and tlilrty-tliree years after foreclosed.
124 U. S. IDft-lfiS, 31 L. 386, WHITNEY v. ROBERTSON.
Syl. 2 (XI, 465). Treaties — fiulisequent laws prevail.
Approved in Uoltod Slates v. Lee Yen Tal, 185 U. S. 221. 46 L.
S83, 22 8up. Ct. G32, boldlug question whether congressional act
superseded in whole or In part by subsequent treaty with foreign.
nation governed by principles of Interpretation applied to alleged
Inconsistent fftatutes; De Lima v. Bidwell, 182 U. 8. 193, 45 L. 11)50,
21 Sup. Ct. 752, holding Porto Blco ceased to be foreign territory
with ratification of treaty of peace between United States and Spain;
The Kestor, 110 Fed. 448. upholding constitutional enactment apply-
ing to prepayment on American soil or in American waters wages
of seamen, British subjects shipping in American ports on American
vessels, no treaty Inconsistent therewith; Ex parte Ortiz, KK) Fed.
959, bolding upon cession of Island of Forto Rico, Constitution ex
proprlo vlgore extended over It and became supreme law of land.
Sjl, 3 (XI, 466). Statutes, nonconformity with treaty.
Approved tu Baiker v. Harvey, 181 U. S. 4SS, 45 L. 967, 21 Sup.
Ct. G93, refusing to enforce treaty with foreign nation, United States
as sovereign power chouHing to disregard.
124 U. S. 197-200. 31 L. 415. SEARL v. SCHOOL DIST. NO. 2.
Syl. 1 (XI, 466). Removal — Suits to condemn land.
Approved in Portal Tel. Cable Co. v. Southern Ry. Co., 122 Fed.
158, allowing removal of condemnation proceedings under eminent
domain, following State procedure as to compensation; Union Ter-
minal Ry. Co. T. Chicago. B. & Q. R. R. Co., 119 Fed. 213, billowing
removal of tult brought by railroad company under State statute
to condemn right of way; In re Delafield, 109 Fed. 579, allowing
proceeding in Federal court under State statute to determine com-
peusation of landowner, property taken under eminent domain;
Kirby V. Chicago, etc., R. R.. 106 Fed. 657, holding statutory pro-
ceeding In State court determining damages sustained by taking
land under eminent domain, civil suit, removable; Myers v. Chicago
& N. W. Ry. Co.. 118 Iowa. 316, 91 N. W. 1978, allowing removal of
condemnation proceeding, amount exceeding $2,000, and parties
citizens of different States.
1?4 U. 8. 200-225, 31 L. 402. IN RE SAWYER.
Syl. 1 (XI, 467). Actions, common law and equity — Distinction.
Approved in Randolph v. Tandy, 98 Fed. 910, sustaining Federal
court's jurisdiction at law to render Judgment against garnishee
regardless of accounting between garnishee and debtor Involved.
k
124 U. S. 200-225 Notes on U. 8. Reports. 968
Syl. 2 (XI, 407). Equity — Protection of property rights.
Approyed in Davis, etc., Mfg. Go. v. Los Angeles, 115 Fed. 538,
541, 542, 543, denying court of equity's Jurisdiction to enjoin criminal
prosecutions under alleged void and unconstitutional statute; Ar-
buckle y. Blacl^burn, 113 Fed. 623, denying equity's power to enter-
tain bill to inquire whether complainant yiolajtes penal statute, and
if not, enjoin prosecutions thereunder; Minneapolis Brewing Go. y.
M'Gllliyray, 104 Fed.. 272, denying jurisdiction of suit to restrain
State officers from instituting criminal prosecutions under uncon-
stitutional statute; People y. Barrett, 203 111. 103, 107, 96 Am. St
Rep. 301, 67 N. B. 743, discharging election' officer refusing to obey
injunction enjoining board from counting yotes; Robertson y.
Rocheerter F. B. Go., 171 N. Y. 553, 64 N. B. 446, 89 Am. St Rep. 839,
refusing to restrain unauthorized publication and distribution of
lithographic prints of young woman as an adyertisement
SyL 8 (XI, 467). Equity — Jurisdiction — Crimes — Criminal pro-
ceedings.
Approved in Dayis, etc., Mfg. Co. y. Los Angeles, 189 U. S. 217, 28
Sup. Ct 500, 47 L. 780, refusing to restrain city from enforcing
ordinance prohibiting erection of gasworks lawful when contract
made; Pacific Whaling Co. y. United States, 187 U. S. 452, 23 Sup.
Ct 156, 47 L. 255, doubting if equity would entertain bill to restrain
criminal prosecutions, eren if district attorney joined; Duluth
Brewing, etc., Co. y. City of Superior, 123 Fed. 356, holding munici-
pal ordinance requiring manufacturers of liquor, selling at place
other than manufactory, .to pay license tax, not discriminatiye be-
cause exempting manufacturers selling in quantities at manufac-
tory; State V. Wood, 155 Mo. 449, 56 S. W. 478, refusing to enjoin
State beer Inspector from enforcing beer inspection act; Weaver,
Mayor y. Toney, Judge, 107 Ky. 435, 54 S. W. 737, denying jurisdic-
tion to compel election offic«:*s exercising quasi-judicial functions
to admit inspectors to count
Syl. 4 (XI, 468). Equity enjoining removal of public officer.
Approved in Leathe v. Thomas, 97 Fed. 139, refusing to enjoin
sheriff from proceeding with enforcement of execution lawfully
issued to him; Marshall v. Illinois State Reformatory, 201 111. 14,
15, 66 N. E. 315, refusing to enjoin State prison managers from
removing physician appointed by them; Landes v. Walls, 160 Ind.
219, 66 N. B. 680, refusing to enjoin appointees from acting as mem-
bers of common council pending contest as to titie; Arnold y. Henry,
155 Mo. 54, 78 Am. St Rep. 559, 55 S. W. 1091, Supreme Court is-
suing prohibition, preventing Circuit Court from attempting by
injunction to determine titie to political office; State v. Withrow,
154 Mo. 403, 55 S. W. 461, denying chancery's power to enjoin
governor's appointees as police commissioners from taking office;
BS8 Notes od U. S. Beporto. 1^ U. S. 22&-23a
State V. Aloe, 152 Mo. 470, 54 S. W. 490, refusing to enjoin entrance
to public office of board of election com ml salon era appointed by
Governor; People v. Howe. 177 N. Y. 505, 509, 69 N. E. 1116, HIT,
refusing to enjoin comailssloners from removing keeper of peni-
tentiary and transferring penitentiary to sheriff; Kigglns y. Tbomih
son, 30 Tex. Civ. 243, 70 S. W, 578. denying injunction to restrain
city council from Impeaching and removing maj'or from office.
Distlngulsbed In Southern Exp. Co, v. Mayor, etc.. of Ensley, 116
Fed, 7G0, restraining in suit for Injunction enforcement of Invalid
ordinance imposing unlawful license fee and prescribing penalty for
nonpayment; dissenting opinion In Taylor v. Beckham (No. 1), 178
U. S. 597, 598, 44 L. 1208, 20 Snp. CL 1014, court refualng to revise
Judgment of State Supreme Court refusing to review decision of
constitutional tribunal In contested election of governor and lieu-
tenant-governor.
SyL 6 (XI, 468). Federal court enjoining State court
Approved In Texas Cotton Products Co, v, Stames, 128 Fed, 185,
refusing to enjoin plaintiff dismissing suit after removal from
bringing new suit upon same cause of action in State court
Syi. 10 (SI, 469). Courts, Jurisdiction lacking, proceedings void.
Approved In People v. Barrett 203 III. 103, 107, 96 Am. St Bep.
301. 67 N. E. 743, dlscbarglag election officer refusing to obey In-
junction enjoining board from counting votes, etc.; In re Groen, 22
Wash. 5S, 60 Pac. 123, denying defendant disobeying order against
disposing of property, guilty of contempt; Injunction granted with-
out notice or showing necessity therefor; dissenting opinion in
People T. District Court 2S Colo. 210. 88 Pa*. 258, court punishing
board of assessors and attorney-general for completing assessment
of property tliougb Injunction restraining them issued without
JurlsdlcdoD.
124 U. S. 225-236, 31 U 411, BISSELL t. BPRINQ VALLEY
TOWNSHIP.
Syl. 1 (SI, 470). Judgment opon demurrer — Conclufllvenesa.
Approved In Mitchell v. First Nat Bank, 180 U. 8. 481, 45 L. 632,
2! Sup. Ot 421, hotdlug determination by State court of question of
coverture binding upon Federal court in subsequent action between
some parties; Norton v. House of Mercy, 101 Fed. 380, holding
State court's decision denying charitable Institution's ability to hold
additional real estate estops institution maintaining action In otber
Slates against heirs to recover lands there situated; Theological
Seminary v. People, 189 III. 444, 59 N. E. 879, holding both parties
relying upon different former Judgments, Supreme Court's judg-
ment controls: Madison v. GarHeld Coal Co., 114 Iowa, 04, bG N. W.
44, holding dismissal of caae on merits as to use of lands outside
lease bars subseqaent suit as rights under lease.
L
124 U. S. 238-256 Notes on U. S. Reports. 900
Syl. 2 (XI, 470). Jodgment — Suit upon coupon — ConclnslTeness.
Approved in ^tna Life Ins. Co. ▼. Board of Comrs., 117 Fed. 80,
holding, in absence of proof, that present action presents seme de-
termining issue not litigated in former action, former action res
adjudicata; Gorham y. Broad River Tp., 109 Fed« 776, holding
judgment of State Supreme Court as to invalidity of bonds bars
action in Federal court upon coupons by one in privy with former
owner of bonds; Mercantile Naf. Bank v. Hubbard, 105 Fed« 821,
holding decree adjudicating that State statutes illegally discrimi-
nated against national bank shares res adjudicata as to subse-
queait assessments under same statutes; Haug v. Great Northern
Ry. Co., 102 Fed« 76, holding action dismissed, complaint failing
to state facts, bars plaintiff from afterward maintaining action
to enforce same right; legal effects of both complaints identical
McGrantt v. Raggett, 128 Ala. 485, 29 So. 199, holding validity of
deed of conveyance established in defendant's favor in form^
suits of ejectment, plaintiff barred from maintaining bill in equity
to cancel said deed of conveyance; Garden City v. Bank, 65 Kan.
848, 69 Pac. 326, 93 Am. St Rep. 286, holding suit upon coupons,
determining validity of bonds, bars subsequent suit upon other
similar coupons.
Distinguished in Pittsburg, etc., Ry. Co. v. Keokuk, etc. Bridge
Co., 107 Fed. 787, holding decree not res adjudicata as to rights
of same defendants in subsequent suit upon same contract for
deficiencies covering distinct period of time; Donaldson v. Nealis,
108 Tenn. 644, 69 S. W. 733, allowing second suit to set aside
tax sale upon another ground, first suit dismissed because collateral
attack upon tax proceeding.
124 U. S. 236-255, 31 L. 389, UNITED STATES v. JOHNSTON.
Syl. 2 (XI, 471). War — Secretary's findings conclusive.
Approved in Park v. Candler, 113 Ga. 679, 39 S. B. 101, not decid-
ing whether treasurer had right to refuse to pay warrants properly
drawn, on ground issuance unconstitutional.
Syl. 4 (XI, 471). Statutes — Contemporaneous construction —
Executive oflicers.
Approved in United States v. Sweet, 189 U. S. 473, 23 Sup. Ct
(>38, 47 L. 907, following settled practice and denying volunteer
oflicer, voluntarily resigning, travel pay and commutation of sub-
sistence; United States v. FinneU, 185 U. S. 244, 46 L. 893, 22 Sup.
Ct G3G, following departmental construction of statute with refer-
ence to services performed by clerk during Judge's absence; De Lima
V. Bidwell 182 U. S. 194, 45 L. 1055, 21 Sup. Ct. 752, following prac-
tice of executive department, and holding Porto Rico ceased to be
foreiprn country within meaning of tariff laws, upon ratification of
treaty; Hawley v. Dlller, 178 U. S. 488. 44 L. 1162, 20 Sup. Ct
001
Notes o
U. i
Eeporti. 124 U. S. 255-350
990, toIlowlDg construction of land department that pnrchaser
from entryman not bona fide; United States v. National Surety
Co.. 122 Fed. 910, boMlBg suretiea upon distlller'a bond given un-
der Rev. Stat., i 32iiO, bonnd for payment of tax on all spirits die-
tilled during term; In re Spreckles, 104 Fed. 882. allowing, under
construction of treasury department, shipowner cancellation of
duty on metal sheathing naed on bull and becoming unservleenljle:
Nunn T. WlUIam Gerst Brewing Co.. 99 Fed. 942, following thirty
years' construction of treasury department, holding brewer pur-
tbaalng stamps entitled to discount at time of purchase; M'Faddeii
y. Mountain View Mln. & Mill. Co., 97 Fed. 677, denying right
to locate mining claim In advance of president's proclamation, land
open to settlement
Distinguished In Falrbnnk v. United States, 181 U. S. 308. 45
L. 873, 21 Sup. CL 638, following practical construction only where
meaning of constitutional provision doubtfuL
124 D. S. 255-2G0. Not cited.
124 U. B. 261-301, 31 L. 430. 8ABARIBG0 v. MAVERICK.
8yl. 9 (XI, 472). Ejectment — PlaintitTa tiUe.
Approved In Bradshaw v. Aabley, 180 U. S. 64. 45 L. 429, 21 Sup.
Ct 299. holding In ejectment, plaintiff establishes prima facte case,
proving actual undisturbed and quiet possession of day named upon
which defendant entered and ousted him; Pendo v. Beakey, 15 S.
Dak. 348, 80 N. W. 657. holding plalntlSt relying upon alleged prior
possession must show premises Inclosed or occupied by himself or
tenants.
Syl, 10 (SI, 472). Ejectment — Prior poasesston — Continuous.
Approved in Bradshaw v. Ashley, 180 U. 3. 66. 71. 45 L. 430, 432.
21 Sup. CL 300, 301, reaffirming rule, possession of premises under
color of right, continuous and unabandoned, suflicleni against in-
truder or wrongdoer; Stockley v. Clssna, 119 Fed. 829, following
Tennessee statute holding plaJnOff to maintain ejectment must
show perfect legal title either by deralgnment from Stale or occu-
pation under deeds for seven years.
124 TI. S. 301-351. Not cited.
124 U. a 351-359. 31 L. 445. SHIELDS r. SCHIFF.
SyL 2 (XI, 474). War — Confiscation act— Life estates.
Approved In Ledoux v. Lavedan, 52 La. Ann. 32S, 27 So. 203, not
deciding effect of pardon upon remaining estate outstanding after
conSscatlon and during offender's natural life.
(XI, 474). Miscellaneous.
Cited tD Railroad y. FergnsoD, 105 Tenn. 661, 69 8. W. 346. to
effect prescrlpdye right must be set up under special plea.
k
i
124 U. 8. 860-436 Notes on U. 8. Reports.
124 U. S. 860^874. Not cited.
124 U. S. 374r^84, 81 L. 466, IRON, BTC^ MIN. CO. T. RBfYNOLDS.
SyL 5 (XI, ^6). Mines — Intent to acquire.
Approyed in Olive Land, etc., Co. t. Olmstead, 108 Fed. 578, hold-
ing entryman's right unaffected by subsequent discoTery of mineral
or selected with yiew of possible discovery of oil; Ohio Valley
Coffin Co. V. Goble, 28 Ind. App. 367, 62 N. B. 1027, holding allega-
tion plaintiff ** believed " passageway, where injury occurred, safe,
insufficient.
124 U. 8. 385-391, 81 L. 424, FLORENCE MIN. CO. T. BROWN.
8yl. 4 (XI, 477). Bank check — Equitable assignment.
Approved in PuUen v. Placer Co. Bank, 138 CaL 172, 94 Am. 8t
Rep. 22, 71 Pac. 84, denying check, given without consideration,
under directions not to present until after death* complete gift
or assignment of fund.
124 U. 8. 891-893. Not cited.
124 U. 8. 894-400, 81 L. 454, BROOKS T. BHSSOURL
8yl. 1 (XI, 477). Supreme Court — Federal question not claimed.
Approved in Jaoobi t. Alabama, 187 U. 8. 186» 23 Sup. Ct 49, 47
L. 108, dismissing writ, objection, testimony violating Constitutioii
not raised in trial court
124 U. 8. 400-405. Not cited.
124 U. 8. 405-429. 31 L. 497, UNION INS. CO. T. SMITH.
Syl. 1 (XI, 478). Expert witnesses.
Approved in Wabash Screen Door Co. v. Black, 126 Fed. 727,
refusing to disturb trial court's ruling witness with twelve years'
experience around machinery competent as expert; Ward v. *Brown,
53 W. Va. 257, 44 S. E. 500, holding court erred, instructing physician
testifying as expert, entitled to great weight only on trial of issue
devlstavit vel non.
Syl. 9 (XI, 479). Insurance — Continuing unseaworthiness.
Distinguished in Morse v. St Paul Fire, etc.. Marine Ins. Co.,
122 Fed. 749, holding underwriters of cargo, unowned by owner of
vessel, liable, master negligently leaving intermediate port in un-
seaworthy condition; Cleveland, etc., Co. v. Insurance Co., 115 Fed.
436, finding vessel seaworthy in ordinary sense, not deciding effect
upon policy, if unseaworthy at execution thereof.
124 U. S. 429-433. Not cited.
124 U. S. 434-436, 31 L. 494, WORTHINGTON v. ABBOTT.
Syl. 1 (XI, 480). Customs — Nail-rods, " rolled iron."
Approved in Milne v. United States, 115 Fed. 412, holding ** bar-
iron " dutiable under proviso providing for ** iron bars."
983 Notes on U. S. Reports. 124 U. S. 437-48:i
124 U. 8. 437-444. Not cited.
124 U. S. 444-468, 81 L. 479, WESTERN UNION TEL. CO v.
HALL.
SyL 1 (XI, 480). Damages — Loss of profits.
Approved in Globe Refining Co. v. Landa Cotton Oil Co., J90 U.
S. 544. 23 Sup. Ct 755, 47 L. 1173, holding mere notice to seller
of probable expense Incurred by vendee Insufi^clent to hold seller
answerable for special damage; Iron City Toolworks v. Wellscb,
128 Fed. 696, excluding ** loss of profits " failing to deliver patented
picks for sale to Alaska miners; Beatty Lumber Co. v. Western
Union TeL Co., 52 W. Va. 415, 44 S. E. 811, denying substantial
damages falling to deliver message offering to sell lumber at certain
price.
Syl. 2 (XI, 481). Sales — Rule of damages.
Approved in Brooks v. Western Union TeL Co., 20 Utah, 155,
72 Pac. 501, holding Judgment for damages equal to difference be-
tween contract price and price actually sold for erroneous, no evi-
dence such price highest obtainable.
Syl. 6 (XI, 482). Telegraph messages — Actual damage not shown.
Approved in Johnson v. Telegraph Co., 79 Miss. 61, 29 So. 787, 89
Am. St. Rep. 585, denying recovery ** loss of profits " on ground op-
portunity to make contract lost by failure to deliver telegram.
124 U. S. 459-464. Not cited.
124 U. S. 465-483, 81 L. 508, SMITH v. ALABAMA.
SyL 5 (XI, 483). Commerce — State Indirectly restricting.
Approved in Central Ry. Co. v. Murphy, 116 6a. 870, 43 S. E.
268, upholding statutory provisions, making carrier liable for loss
of freight on own and connecting line, failing to give information
as to where freight lost; Chicago & A. R. R. Co. v. Carlinville, 200
111. 325, 93 Am. St Rep. 198, 66 N. E. 733, upholding ordinance
limiting speed of trains; Wlllfong v. Omaha, etc., Ry., 116 Iowa,
551, 90 N. W. 359, upholding statute requiring railroad trains to
sound whistle before crossing reached.
SyL 6 (XI, 484). Ck>mmon law United States.
Distinguished in Western Union Tel. (^. v. Call Publishing Co.,
181 U. S. 100, 45 L. 770, 21 Sup. Ct 564, holding principles of
common law are operative upon all interstate commercial trans-
actions.
SyL 7 (XI, 485). Federal courts — State's common law.
Approved in Western Union TeL Co. v. Sklar, 126 Fed. 298, re-
fusing to follow State decisions and award damages for mental
suffering, statutory right to recover some damage alone existing;
VoL 11 — 63
124 U. S. 48^-489 Notes on U. 8. Report*. 991
Gilbert y. American Surety Co., 121 Fed. 502, denying binding
effect of State decision as to invalidity of contract upon rights
of parties; Independent School Dist v. Rew, 111 Fed. 11, holding
decisions of State court upon questions of commercial law not con-
trolling Federal courts.
Syh 9 (XI, 485). Interstate engineers — State restrictions.
Distinguished Tn Kansas City, etc., Ry. v. Board of R. R. Ck>mr8.,
106 Fed. 357, denying State regulation of railroad charges, goods
carried between points in State through another State.
SyL 10 (XI, 486). * Commerce — Interstate engineers — State
license.
Approved in Pennsylvania R. R. Co. v. Hughes, 191 U. S. 489,
sustaining Pennsylvania statute prohibiting common carriers from
limiting liability for negligence; Whitwell v. Continental Tobacco
Co., 125 Fed. 459, holding corporation restricting trade to those
declining to deal with competitors not violating anti-trust law;
Ex parte Young, 36 Or. 250, 78 Am. St Rep. 774, 59 Pac. 706,
sustaining State law prohibiting persuasion of seamen to leave
vessel within State.
Distinguished in Cleveland, etc., Ry. Co. v. Illinois, 177 U. S.
517, 44 L. 869, 20 Sup. Ct 723, declaring statute requiring trains
to stop at county seats invalid as applied to through trains.
(XI, 483). Miscellaneous.
Cited in Marshall v. Telegraph Co., 79 Miss. 162, 27 So. 615, 89
Am. St Rep. 587, denying recovery of statutory penalty for failing
to tr/cfismlt telegram, with proper dispatch, under statute provid-
ing for failure to transmit correctly.
124 U. S. 483-489, 31 L. 516, UNITED STATES V. HESS.
Syl. 1 (XI, 486). Indictment — Contents 'stated.
Approved in United States v. Penschel, 116 Fed. 649, holding
indictment to defraud uncertain charging defendant *'then and
there** knew land contained mineral deposits; United States v.
Greene, 115 Fed. 353, indictment charging conspiracy to defraud
United States by fraudulently presenting claims insufficient not
specifying fraudulent particulars, affirming 100 Fed. 947; Larkin
V. United States, 107 Fed. 699, holding Indictment bad, name of
definite person to be defrauded not given, or reasons for omission
stated; United States v. Greene, 100 Fed. 947, holding av«-ment
of means, by which conspiracy was to be carried out, too vague
and indefinite; dissenting opinion in Rieger v. United States, 107
Fed. 934, court holding Indictment sufficient without setting out
note in haec verba, note not subject-matter of offense.
ggs
» D. S. Reports. 12J U. S. 4S0-i!>3
Syl. 3 {XI, 487). Inaictment — Defrauding through malls.
Approved In Miity t. United States, 100 Fed. 6il, Indictment
to defraud [nsiifflclent, falling to aver "defendant would not or
did not Intend to send counterfeit money " offered for sale.
Syl. 4 (XI. 4S7). Indictment alleging facU.
Approved in United States v. Man, 122 Fed. 065, holding indict-
ment for conspiracy bad, failing to make clear within wliat Juris-
dictloQ offense committed; United States v. Post, 113 Fed. 854,
Indictment bad, falling to arcr defendant could not and did not
intend to cure diseases In return for money sent through mail;
Larkin v. United States, 107 Fed. 700, Indictment defective, failing
to state names of persons to be defrauded.
8yl. 5 (XI, 487). Indictment in terms of statute.
Approved In Dalton v. United States, 127 Fed. 54C. holding de-
vice or artlQce used to defraud must be' set out by positive aver-
ment; State V. Parkersburg Brewing Co., 53 W, Va. 5!)6, 45 S.
E. 925, quashing Indictment as Insufficient, falling to allege par-
ticular unlawful sales of liquor knowingly permitted by defendant
to be made.
124 U. S. 4SO-i93. 31 L. 495, BROWN r. McCONNELL.
Syl. 1 (XI, 488). Appeal — Allowance — Acceptance of security.
Approved In Alnska United Gold Mln. Co. v. Keating, 116 Fed.
665, upholding writ of error Issued and served by copy lodged
with clerk of court to which directed; Gorham v. Broad River Tp.,
113 Fed. 84, allowing amendment of writ of error after case re-
moved clerical error, word " defendant " used for " plaintiff;" Jor-
nauses v. Melaing, 106 Fed. 786, sustaining appeal, allowed by
lower court, supersedeas granted, certified copies of orders allow-
ing appeal and assignment of errors and bond filed with original
supersedeas and bond.
Syl. 3 (XI, 488). Appeal — Matter of right — Allowance,
Approved In Chow Loy v. United States, 112 Fed. 360, sustaining
appeal, under Chinese exclusion act, by oral notice to commissioner
within ten days and filed of record; Swift & Co. v. Kortrecht, 110
Fed. 328. refusing to dlBmiss, allowing new bond to be given, names
of all obilgeea in appeal bond not set out.
Syl. 4 (SI, 488). Appeal — Adversary properly cited.
Approved In Anderson v. Comptols, 100 Fed. 076, committing
respondent for contempt, advising disobedience of writ of aupcr-
sedeas lawfully Issued by Circuit Court of Appeals.
SyL 5 (SI, 488). Appeal — Allowance before end of terra.
Approved In McNulta v. West Chicago, etc., Comm,, on Fed. 329,
uolding citation unneceaaary, appeal talien in oi>eu court at term
de<7ee rendered.
k
i
124 U. 8. 493-IS51 Notei on U. 8. Reporti. 996
87L 7 (XI, 489). Appeal after term — 8ecurit7.
Approved in In re McKenzie, 180 U. 8. 547, 46 L. 06% 21 Bop.
Ct 472, holding appeal effective, original citation and supenMdeai
with certified copies of assignment of errors and supersedeas bond
and orders allowing appeal filed in District Court.
124 U. 8. 493, 494, 81 L. 607, STEWART T. MA8TERSON.
SyL 1 (XI, 488). Appeal — Citation — Failure to docket
Approved in Jomauses v. Melsing, 106 Fed. 786, sustaining ap-
peal, original citation and supersedeas, certified copies assignment
of errors and supersedeas bond filed in District Court
124 U. 8. 495-606. Not cited.
124 U. 8. 505-610, 81 L. 526, DISTRICT OF COLUMBIA T. GAIr
LAHER.
87L 1 (XI, 480). Contracts — City auperyising contractor's woriL
Approved in Chicago, etc, R. R. Ca v. Northern Pac R. R. Go^
101 Fed. 705, holding defendant bound, fulfilling obligation to pay
certain share of expenses for ten years without protest
124 U. 8. 510-623. Not cited.
124 U. 8. 524, 525, 81 L. 636, FRENCH T. HOPKINS.
SyL 1 (XI, 491). Courts — State decision. Federal questloiL
Approved in Eastern Bldg. & Loan Assnl v. Welling, 181 U. 8.
49, 45 L. 741, 21 Sup. Ct 531, setting up Federal question first
time in State Supreme Court on rehearing too late.
124 U. 8. 525-533, 31 L. 534, UNITED STATES v. SMITH.
Syl. 2 (XI, 491). United States — Officers distinguished from em-
ployees.
Approved in State v. Gray, 91 Mo. App. 442, holding chief en-
gineer of city hall an employee.
124 U. 8. 634-551, 31 L. 537, .ETNA L. INS. CO. v. MIDDLBPORT.
SyL 2 (XI, 492). Right of subrogation — Exists when.
Approved in Wabash R. R. v. Pearce, 192 U. S. 188, 24 Sup. C^
234, holding carrier has lien upon goods in transit over lines for
duties paid United States; Montgomery v. City Council, 99 Fed. 829,
denying subrogation, to city's rights against owner, of one volun-
tarily paying tax to city; Willsins. etc. v. Gibson, 113 Ga. 48, 38
S. E. 382, holding one paying off incumbrance at instance of
property-owner entitled to be subrogated to rights of incumbrancer;
Berry v. Bulloch, 81 Miss. 465, 33 So. 410, denying subrogation to
money lender, enabling borrower to pay mortgage on homestead
upon faith of oral promise to execute deed of trust; Pollock v.
Wright 15 8. Dak. 141, 87 N. W. 684, denying subrogation, grantor
WT
Notea on U. S. Reports. 124 D. S. 5u2-606
executing diCTerent deeds subject to mortgage, one grantee, aftor
deeds recorded accepting mortgage from second grantee and tbere-
atter paying first mortgage.
Syl, 3 (XI, 403). Subrogation — Purchaser — Unauthorized town
Approved In O'Brien v. Wheelock, IS4 U, S, 40S. 46 L. GofJ, 22
Snp. Ct. 371, denying purchaser of bonda In open market subroga-
tion to any equitable lien, contractor might have on levee.
Dlatlngulshed in Board ot Comrs. v. Irvine, 126 Fed. SB2, holding
bona fide purchasers of bonda aurrended to county and canceled
entitled to be subrogated to original holders, bonds subsequently
.idjudged void; Citizens' Sav., etc., Assn. v. Belleville, etc., R. R.
Co., 117 Fed. 112, compelling railroad to Issue stock to holders of
void county bonds Issued to construct road, case not one of subro-
Katlon; Coffin v. Board of Comrs., 114 Fed. 519. eubrogating pur-
I'hasera in open market ot void county bonds Issued In payment of
warrants evldeDctng outstandlDg Indebtedness to rights of original
warrant- holders.
124 U. 8. 552-581. Not cited.
124 D. S. 581-000, 31 L. 527, GREAT PALLS MFG. CO. t. ATTOK-
NEY-GENERAL.
Syl. 2 (XI, 493). ITntted States — Eminent domain — Compensa-
tion.
Approved In United States t. Lynab, ISS V. S. 459. 462, 23 Sup.
Ct 354, 47 L. 645, awarding compensation, lands totally flooded by
construction of government dam and other works; Lowndes t.
United States, 105 Fed. 839, allowing action to recover for ease-
ment destroyed by United States diverting water from stream.
Syl. 3 (XI, 493). Eminent do^laln — Waiving tort
Approved In United States v, Lynah, 188 U. S. 462, 23 Sup. Ct.
354, 47 L. 545, holding government under Implied contract to com-
pensate for land totally flooded by construction of dam.
SyL 4 (XI, 493). Eminent domain — Compensation — Claim's
court
ApproTed In Gross v. Board, etc.. 158 lod. 536, 64 N. E. 2T, deny-
ing connty officer's right to charge fees under prior statute from
time act 1891 declared unconstitutional until reversed.
124 D. 8. 601-605, 31 L. 586, MUNSON v. NEW YORK CITI.
Syl. 1 (XX, 494). Patent for blank-book.
Approved In Hocke v. New York Cent, etc.. H. R. R. R. Co., 122
Fed. 4R9, denying patentable novelty to improvement in method for
preventing loss of freight
k
<
124 U. S. 606-«66 Notes on U. S. ReporU. 908
124 U. S. 005-612, 31 L. 588, PHILLIPS y. MOUND CITY ASSN.
SyL 1 (XI, 494). State decision — Mexican grant — Federal
question*
Approved in Hoolcer v. Los Angeles, 188 U. S. 318, 23 Sup. Ct
397, 47 L. 491, dismissing writ, State decision involvinl? validity of
Mexican and Spanish grants prior to treaty; Ghrystal Springs Land,
etc., Ck>. T. Los Angeles, 177 U. S. 169, 44 L. 720, 20 Sup. Gt 373,
dismissing bill to quiet title to certain waters, water rights, and
works connected therewith.
124 U. S. 612-621, 81 L. 577, THORNTON t. SGHRIEBEB.
Syl. 1 (XI, 4M). Gopyrlght — Rev. Stat., | 4965, construed.
Approved in Falk v. Gurtis Pub. Go., 107 Fed. 128, affirming 102
Fed. 968, 969, 971, holding action to recover penalty not accruing
until sheet found in defendant's possession and seised; Snow t.
Laird, 98 Fed. 815, holding statute permitting recovery of penalty
for infringing copyright penal.
124 U. S. 621-639, 31 L. 691, UNITED STATES v. JUNG AH LUNG.
Syl. 2 (XI, 495). Chinese exclusion act — Federal courts.
Approved in In re Sing Tuck, 126 Fed. 391, denying Chinese on
habeas corpus right to raise question of citizenship, failing to pre-
sent evidence to immigration inspector; Mar Bing Guey t. United
States, 97 Fed. 578, holding Ghinese, interested in mercantile firm
but employed as head cook in restaurant of which part owner, a
laborer.
124 U. S. 639-646, 31 L. 553, HOADLBY v. SAN FRANCISCO.
Syl. 2 (XI, 495). Municipalities — Park lands — Conveyance.
Approved in La Societa, etc. v. San Francisco, 131 Cal. 174, 63
Pac. 176, declaring unauthorized contract by supervisors for erec-
tion of walls, fences, and other improvements upon cemetery lands
conveyed to plaintiff.
124 U. S. 647-652. Not cited.
124 U. S. 652-656, 31 L. 565, DOW v. MEMPHIS, ETC., R. R. CO.
Syl. 2 (XI, 496). Mortgages — Accounting to mortgagee — De-
mand.
Approved in Atlantic Fruit Co. v. Dana, 128 Fed. 218, 219, hold-
ing trust company intervening in receivership suit charged subse-
«quent income with mortgage lien; American, etc., Co. v. Home
Water Co., 115 Fed. 175, declaring against mortgagee maintaining
action to recover rents and profits of corporation before possession
taken by mortgagee or receiver; Eau Claire v. Pay son, 109 Fed.
678, denying receiver of water company appointed at instance of
mortgagee right to sue in equity city for hydrant rentals unaer
contract with company; Gregg v. Mercantile Trust Co., 109 Fed.
9e»
Notes on U. S. Reports. 124 D. S. 65(MJ94
223, stating mle and allowing- and dlsaUowlng; certain claims by
general creditors over mortgage upon corpus of property: Illinois
Trust, etc.. Bank v. Doud. 105 Fed. 135. denying loan to quasi-
public corporation to made subetantlsl additions priority of prior
mortgage covering entire property and income: Farmers', etc..
Trust Co. T. American, etc., Co., 107 Fed. 25, 31, applying Income
earned by receiver prior to suit toward payment of unsecured as
well as secured debts.
(XI, 406). Miscellaneoua.
Cited Jn Atlantic Trust Co. v. Dana, 128 Fed. 218, upholding
mortgagee's prior right to income of mortgaged property in hands
of receiver over Judgment against corporation for personal Injuries
to person not in employ.
124 D. S. S56-694, 31 L. 543. HOBOKEN v. PENNSYLVANIA R. H.
SyL 2 (XI, 497). State grant — Kxtlnguislmient of easement.
Approved in Atlantic City v. New Auditorium Pier Co.. 63 N. J.
Eq. G63, 53 Atl. 107, denying right of owner of land bordering upon
high-water marie to charge land in front of property below high-
water marit with easement, enforceable against State's grantee;
Morris & Essex R. R. Co. v. Jersey City. 63 N. J. Etj. 48. 50, 51. 51
Atl. 3SS, holding riparian commissioners' grant of lands formerly
luder tide water, together with " atl rights of State In such lands."
sufficient to extinguish highway rights; Attorney-General v. Central.
R. R. Co. of New Jersey, 61 N. J. Bq. 260, 48 Atl. 349, holding grant
of land, Including land below former high-water marli. may be rf-
fectually Interposed to claim of city to regain land as public hlgh-
Syl. 5 rXI, 497). State ownership — Lands below high water.
Approved in Mobile Trausp. Co. v. City of Mobile, 128 Ala. 348,
30 Bo. 647, holding government grant of land adjoining shore, where
tide ebbs and flows, extends only to high-water mark.
Syl. 6 (XI, 497). Lands below high water — State grant.
Approved In Shepard's Point Land Co. t. Atlantic Hotel, 132
N. C. 535. 44 S. E. 45, holding deed of land adjoining navigable
water from riparian owner conveys only easement In land covered
by water.
Syl. 7 {XI, 408). Tide lands— N. J. act 1S6».
Approved in Ocean City Assn. v. Shrlver, 04 N. J. L. 565. 43 Atl.
6%, holding under act 1871, grant by riparian comroisslonerB of
lauds under water to any but riparian owners a nullity.
(XI, 497). Miscellaneous.
Cited In Mobile Transp. Co. T. The City of Mobile, 128 Ala.
350, 30 So. G47, to effect ejectment maiatainable to recover land
Uiougb servient to Sow of water over IL
i
125 U. S. 1-17 Notes on U. S. R^)ort8. 1000
124 U. S. 694-719. 81 L. 567. ANDREWS T. HOVBT.
Syl. 7 (XI. 499). Patent — Public use.
Approved in Welsbach Light Co. v. American Incand. LAmp Co..
98 Fed. 616. holding Rawson's patent for improvement in produc-
tion of incandescent mantles not void on ground of prior knowledge.
124 U. S. 721-730, 31 L. 567, PACIFIC NAT. BANK T. MIXTBB.
SyL 3 (XI, 499). National banks — Attachment
Approved in Dennis v. First Nat Bank. 127 CaL 455, 78 Am. St
Rep. 79. 59 Pac. 777, denying State attachment against national
bank; Van Reed v. People's Nat Bank, 173 N. Y. 317, 319, 320, 65
N. E. 17, prohibiting attachment against solvent national bank;
Willard Mfg. Co. v. Merchants' Nat Bank. 130 N. C. 611, 612, 41 S. E.
871. dissolving attachment against property claimed by national
bank.
124 U. S. 730-736, 31 L. 574, SHOECRAFT t. BLOXHAM.
Syl. 2 (XI, 500). Federal court — Jurisdiction — Specific per-
formance.
Approved in Hoadley v. Day, 128 Fed. 303, holding suit to fore-
close trust deeds, securing notes with incidental relief, one to collect
money due on notes; Ban v. Columbia Southern By. Co., 117 Fed.
26. holding partner's citizenship immaterial, partnership suit brought
by one partner in own right and as assignee of oth^ interested
in net proceeds only, complaint alleging no net proceeds.
CXXV UNITED STATES.
125 U. S. 1-17, 31 L. 629. WILLAMETTE IRON BRIDGE CO. v.
HATCH.
Syl. 1 (XI, 501). Review — Reversal — Errors of law.
Approved in Osborne v. San Diego Co., 178 U. S. 32. 44 L. 966, 20
Sup. Ct 864, holding case clearly one for bill of review; Cocke v.
Copenhaver, 126 Fed. 147, approving rule, refusing to reverse, bill
not filed within time provided by statute.
Syl. 2 (XI. 501). Navigable waters — Obstructions.
Approved in B. A. Chatfield Co. v. New Haven, 110 Fed. 791, en-
tertaining suit to enjoin bridge across navigable stream, authorized
by State law, but declared by secretary of war to be unreasonable
obstruction to navigation.
Distinguished In United States v. Belllngham Bay Boom Co., 176
U. S. 217, 44 L. 442, enjoining boom authorized by State law con-
structed in violation thereof.
low
Notes a
U. 1
Reports. 125 U. S. 18-39
SyL 3 pCI, n02). New State's Boverelgnty.
Approved In Bolln v. Nebraska, 176 U. S. 83. 44 h. 384, 20 Sup.
Ct 280. holding Nebraska, upon admission, entitled to all rigbta ot
dominion and sorereignty, upholding proceeding by Information tor
felony; Williams v. Hert, 110 Fed. 170, holding Indiana admitted to
Union, trial by Jury on Indictment In felony caaee not guaranteed
by ConstituUon; Mobile Transp. Co. v. The City of Mobile, 128 Ala.
346, 30 So. 046, holding Alabama, upon admission, acquired title to
shores and beds of navigable strcamH.
Syl. 6 (SI, 502). Navigable waters — Obatmotiona.
Approved In Montgomery v. Portland. 190 D. S. 106, 23 Sup. Ct
737, 47 L. 070, denying private person's right to erect structiires In
navigable waters wholly within State without concurrent assent of
Federal and State governments; Leovy v. United States, 177 V. 8.
630, 44 L. 918, 20 Sup. Ct SOO. holding, upon evidence. "Red Pass"
not shown navigable, rendering dam erected therein, without au-
thority secretary of war, unlawful; United States v. Bellingbam Bay
Boom Co., 176 U. S. 214, 216. 44 L. 441. 20 Sup. CL 344, enjoining
boom erected across navigable Btream, under authority of State,
violating same in its cooHtructlon.
125 U. S. 18-30. 31 L. SOT, NEW ORLEANS WATER-WORKS v.
LOUISIANA SUGAR CO.
Syl. 3 (XI, 503). Contracts, impairment — Laws, Judicial deci-
sions, executive acts.
Awroved In New Orleans Water-Works Co. v. Louisiana, 185
U. S. 350, 46 L. 943, 22 Sup. CL 606, dismissing writ troro Judgment
of State court decreeing forfeiture of charter for abuse of privilege,
no Federal question Involved: Gulf & Ship Island R. K. Co. v.
Hewes, 183 U. S. 76, 46 L. 91. 22 Snp. Ct. 20, refusing to review
State court's decision, holding exemption In charter from taxation
for twenty years repealable; Allen v. Allen, 97 Fed. 530, denying
suit in Federal court, by defeated party In Stati.- court, to net aside
Judgment on ground of impairment of contract; concurring opinion
In Weston v. Ralston, 48 W. Va. 180 (see 36 S. E. 4B4). holding
conrfs decision that limitation bars city of easement In street not
a law vesting title.
Dlstingufshed In American, etc., Co. v. Home Water Co., IIS Fed.
178t entertaining suit to restrain enforcement of city's enactments
annnltiug contract made by prior ordinance.
Syl. 4 (XI, 503). Enactments as law — Municipal ordinance.
Approved in Sl Paul Gaslight Co. v. St. Paul. 181 U. S. 148, 45
L. 702, 21 Sup. CL 577, holding city ordinance, removing unused
lampposts and declaring Intention of refusing to pay Interest on
cost of constructing same, not law impairing contract
k
i
125 U. 8. 39^^ Notes on U. S. Reports. 1002
Syl. 5 (XI, 501). Ordinance, when license and not law.
Distinguished in Mercantile Trust, etc., Ck). v. Collins Park, etc.,
Co., 99 Fed. 815, 820, holding ordinance, granting railroad franchise
under authority delegated by State, a law of State, restrainable on
ground of impairing contract
Syl. 7 (XI, 501). State decisions — Impairment of contract
Approved in Wilson v. Standefer, 184 U. S. 412, 46 L. 618, 22
Sup. Ot 389, examining final Judgment and holding act changing
mode of procedure as to defaulting purchasers of public lands not
impairment of contract; Stearns t. Minnesota, 179 U. S. 233, 45 L.
170, 21 Sup. Ct 77, holding statute repealing former legislation
taxing railroad lauds at certain per cent of gross earnings, directing
taxation at actual cash value, impaired contract; Houston & Texas
Central R. R. Co. v. Texas, 177 U. S. 77, 44 L. 680, 20 Sup. Ct 549,
court declarlDg payments already made in treasury warrants Told
necessarily gave effect to act fixing amount company in default
act thus construed impairing validity of contract
125 U. S. 39-46. Not cited.
125 U. S. 46-54, 31 L. 683, DALE TILE MFG. CO. T. HYATT.
Syl. 2 (XI, 505). Actions — Agreement for royalties — Licensee.
Approved in Holt v. Indiana Mfg. Co., 176 U. 8. 71, 44 h. 376, 20
Sup. Ct 273, denying Jurisdiction to enjoin collection of tax upon
patents or patent right; M'Mullen t. Bowers, 102 Fed. 496, 500,
denying jurisdiction to forfeit patented dredge constructed under
agreement providing for forfeiture; Atherton Match Co. v. Atwood-
Morrison Co., 99 Fed. 114, dismissing bill to determine ownership
of patent claimed by both parties under separate assignments from
patentee.
Distinguished in Excelsior Wooden Pipe Co. v. Pacific Bridge Co.,
185 U. S. 286, 46 L. 913, 22 Sup. Ct 682, denying Jurisdiction for
infringement ousted by allegations in answer, that plaintiff had
forfeited all rights under license revoked for failure to comply with
conditions; Atherton Mach. Co. v. Atwood-Morrison CJo., 102 Fed.
954, reversing District Court's decision (99 Fed. 114) and sustaining
Jurisdiction for injunction and recovery of damages for infringe-
ment incidentally involving determination of ownership, both
parties claiming under separate assignments from patentee.
125 U. S. 54-60, 31 L. 687, FELIX v. SCHARNWEBER.
Syl. 1 (XI, 506). State court — Action for royalties.
Approved in M' Mullen v. Bowers, 102 Fed. 496, denying Jurisdic-
tion of suit for forfeiture of patented dredge, constructed under
agreement, providing for forfeiture if used outside prescribed
territory.
Distinguished in Excelsior Wooden Pipe Co. v. Pacific Bridge Co.,
185 U. S. 286, 46 L. 913, 22 Sup. Ct 682, denying Jurisdiction for
1003 Notes on D. S. Reporti. 125 n. S. 60-101
Infringement onsted by uJlegatlooa In answer, tbat plafotiff bad
forfeited all rigbts under license revoked for fallore to comply witli
conditions.
S;1. 3 {Xt, 608). Supreme Oourt — State conrt'i judgment —
Grounds.
Approved In Home for Incurables v. City of New York, 187 U. B.
168, 23 Sup. Ct 186. 47 h. 110, holding certificate of State Judge
Inenfflclent to give Jurisdiction, Federal qucetion not appearing from
record presented to State court.
125 D. a. eo-70. Not cited.
123 D. S. 70-77, 31 L. 643, ARTHDH v. BTJTTBRFIELD.
Syl. 1 (XI, 507). Revenue lawa — Construction by mercliantB.
Approved in Wleland v. Collector of Port of San Francisco, 104
Fed. 513. holding small Ssh, kuown as "sprats." packed in oil In
quarter tins and labeled and generally known to trade as "Bar-
dines In oil," dutiable as such.
Syl. 2 (XI, 507), Customa — Texture — Predominant Ingredient.
Approved In SchlfT v. United States, 00 Fed. 56G. assessing "gold
straw braids" aiid "silver straw braids," composed mainly of
bemp, remalnilH' being metal, cotton, and glue, as " manutactures
in part of metal."
125 U. 8. 77-BO, 31 L. 624, CDNNINGHAM v. NORTON.
Syl. 1 (XI. SOS). Assignments — Repaying surplus valid.
Approved in Manhattan Lite Ins. Co. v. Hennessy, 00 Fed. 71,
holding assignee of life Insurance policy not barred from recov-
ering upon policies, sharing in composition of Insured creditors,
continuing payment of premiums until Insured's death, equities
of Insured's heirs enforceable against assignee.
125 U. S. 00-08. Not Cited.
125 D, 8, 08-108. 31 L. 646, WEIR v. MORDEN.
Syl. 1 (XI, 500). Patents — " Substantial as shown " — Limitation.
Approved In Ross-Moyer Mfg. Co. v. Randall. 104 Fed. 369, lim-
iting Inventor to elements designated as shown by speciflcatlons
and drawings; Invention an Improvement of narrow character.
Distinguished in National Hollow, etc., Co. v. Interchangeable,
etc., Co., 106 Fed. 714, holding Invention Infringed, nlthougii forms
of caps and specific mechanical devices for locking geometrically
different from those described.
125 V. a. 109-136, Not cited.
123 U. S. 130-iel, 31 L. 664, TILGHMAN v. PROCTOR.
Syl. 4 (XI, 511). Patents — Infringer's liability for proQta.
Approved In Klsslnger-Ieon Co. v. Bradford Belting Co., 123 Fed.
93, 04, charging defendants, buying Infringing articles from man-
125 n. 8. 136-161 Notei on U. S. ReiK>rta. 1004
ufacturen and reselling same, only with profits made al>OTe price
paid, dedacting commissions paid agents.
Syl. 7 (XI, 511). Patents — Master's findings — Infringer's profits.
Approved in Big Greek, etc.. Iron Ck>. v. American Loan, etc.,
Co., 127 Fed. 633, affirming Judgment, appellant failing to point
out any plain mistake or error of law In master's report as con-
firmed; Manhattan Life Ins. Ck>. v. Wright, 126 Fed. 88, presum-
ing correctness of finding and decree of court of equity; transaction
a loan and not extension of time of payment of premium; Gregg
V. Metropolitan Trust Co., 124 Fed. 723, sustaining master's re-
port that gross earnings diverted for mortgagee's benefit more
than reimbursed by money derived from other sources; Moore v.
Moore, 121 Fed. 788, sustaining trial court's finding, that contract
between trustee and cestui que trust, whereby latter relinquished
title to land, unfair; Ferguson Contracting Co. v. Manhattan Trust
Co., 118 Fed. 792, sustaining master's findings denying validity
of lien upon railroad property in favor of subcontractor; Steams-
Roger Mfg. Co. v. Brown, 114 Fed. 943, sustaining lower court's
finding that infringement clearly established; Kinloch Tel. Co. v.
Western Electric Co., 113 Fed. 665, sustaining finding of lower
court that Seeley's improvement in grouping spring Jacks and an-
nunciators for multiple switchboards patentable; Thallman v.
Thomas, 111 Fed. 283, presuming correctness of findings and de-
cree of lower court, complainant falling to establish alleged mis-
take in land patent; Daughcrty v. Bogy, 104 Fed. 942, sustaining
finding of court of equity that note and mortgage fraudulent in
fact executed to hinder and delay other creditors; Fidelity, etc.,
Co. V. St Matthew's Sav. Bank, 104 Fed. 860, refusing to set
aside special master's findings, case involving examination of long
and complicated account and taking testimony of many witnesses;
North American Exploration Co. v. Adams, 104 Fed. 408, holding
evidence of abandonment of water rights not so clear and con-
vincing as to warrant disturbance of chancellor's decision; Hay-
mond V. Camden, 48 W. Va. 465, 37 S. E. 643, holding court erred
In setting aside findings of commissioner upon conflicting evidence
to substitute own opinion; dissenting opinion in Chauncey v. Dyke
Bros., 119 Fed. 21, court affirming decision of lower court revers-
ing referee's finding that certain fact established by evidence;
dissenting opinion in Wells, Fargo & Co. v. Walker, 9 N. Mex. 202,
50 Pac. 924, court holding master's findings of fact, in suit upon
note, sustained by evidence, conclusive.
Distinguished in National Hollow, etc., Co. v. Interchangeable,
etc., Co., 106 Fed. 716, sweeping aside presumptions where mind
of court inexorably forced to conclusion that no mechanical equiva-
lent of Heln's first patented brake beam found in prior art; John-
son V. Gallegos, 10 N. Mex. 4, 60 Pac. 72, upholding court's power
1005 Notes on U. 8, Reports. 125 U. S, 101-178
to malie Bnpplemental and additional fludlags to those of special
Syl. 8 I XI. 512t. Patents — Infringer's profits — PlalutilTa burden.
Approved In Jaiapa v. Gerniiiiila Iron Co., 107 Fed. G02, sustain-
ing finding charging legal title under patent wltb trust, patent la-
sued upon QD entry made before prior entry declared void,
SyL 9 (XI, 512). Patents — Infringer's profits— Interest
ApproTed in Campbell t. Mayor, etc., of New York, 105 Fed. 631.
awarding Interest from time order entered, allowing decree for
profits, notwithstanding delay in entering decree; National Fold-
ing-Box, etc, Co. V. Dayton Paper Novelty Co., 97 Fed. 332.
allowing interest from date of muster'a first report, master oub-
sequently filing another, court setting both aalde and trying ques-
tion de novo; New York, etc.. It. K. Co. v. Ansouta, etc., P. Co.,
72 Oonn. 706, 46 AU. 158, holding ptaintllTs road washed out
through defendant's negligence, Interest ou cost of transporting
passengers around break runs from date Item inserted In bill of
particulars.
125 U. S. 161-171, 31 L. 638, CHICAGO v. TAYLOB.
Syl. 2 {XI, S13). Eminent domain — Compensation — Consequen-
tial damage.
Approved la United States v. Lynab, 188 U. S. 473, 23 Sup, Ct.
358, 47 L. 549, holding government liable for constructing dams
in Bavannah river totally flooding adjoining property; Moore v.
New Orleans Water-Works Co., 114 Fed. 382, denying right of
drainage commission to Interfere with pipes and mains of water
company without making compensation; Paducah v. Allen, 111
Ky. 360, 63 S. W. 882, holding city liable for Injury to owners of
adjoining property from location of peatbouse; Less v. Butte. 28
Mont. 32, 72 Pac. 141, and Dickerman v. Duluth. 88 Minn. 203,
92 N. W. 1120, both holding city liable for damage to abutting
property by reason of change of street grade; dissenting opinion
In Austin v. Augusta Terminal Ky.. 108 Ga. 72S, 34 S. E. 874, court
holding railroad company not liable to owner of properly for
depreciation thereof resulting from making noise or sending forth
amoke and cinders; dissenting opinion In Ashland, etc., Catletts-
bnrg Ry. Co. v. Faulkner, 106 Ky. 347. 353. 46 S. W. 239. 240.
majority reversing decision, verdict excessive, evidence showing
damage due to construction of road In front of lot, obstructing
access thereto. Inconsiderable.
Distinguished In Brand v, Multnomah Co., 38 Or. 93. 60 Pac. 302.
84 Am, St. Itep. 776. denying abutting totowner compensation for
construction of elevated roadway completely blocking street In
front of lot and destroying access thereto.
125 U. B. 171-176. Not cltea
L.
i
125 U. S. 176-190 Notes on U. S. Reports. 1006
125 U. S. 176-181, 31 L. 662, UNITED STATES v. BURCHARD.
Syl. 4 (XI, 515). Court of Claims — Overpayments — GoTcm-
ment's counterclaim.
Approved In State v. Albright, 11 N. Dak. 30, 88 N. W. 734, hold-
ing suit lies by county to recover salary overpaid to school super-
intendent.
125 U. S. 181-100, 81 L. 650, PEMBINA MIN. CO. v. PBNNSYIi-
VANIA.
SyL 2 (XI, 515). Corporations in other States — Comity.
Approved in American Sugar Refining Co. v. Louisiana, 179 U.
8. 94, 45 L. 104, 21 Sup. Ct. 45, upholding statute imposing license
tax upon persons and corporations carrying on business of re-
fining sugar, exempting farmers refining own sugar; Wata-s-
Pierce Oil Co. v. Texas, 177 U. S. 46, 44 L. 665, 20 Sup. Ct 5%
upholding State statute prohibiting foreign corporations, violating
provisions thereof, from doing business within State; Anglo-Ameri-
can Provision Co. v. Davis Provision Co., 105 Fed. 537, declaring
State statute, denying foreign corporation right to set off Judgment
of sister State against Judgment rendered in. State court, uncon-
stitutional; Tolerton, etc., Co. v. Barck, 84 Minn. 499, 88 N. W.
20, upholding statutory requirement requiring foreign ccHirarations
to appoint resident agent upon whom service of process might be
made.
Syl. 5 (XI, 515). Corporations not citizens within privilege clause.
Approved in Waters-Pierce Oil Co. v. Texas, 177 U. S. 45, 44
L. 664, 20 Sup. Ct 525, upholding Texas statute prohibiting for-
eign corporations, violating provisions thereof, from doing business
within State; D*Arcy v. Mutual L. I. Co., 108 Tenn. 572, 69 S. W.
769, upholding service upon secretary of State, under act 1875,
in action upon insurance policy tal^en by foreign company under
and before repeal thereof; Hawley v. Hurd, etc., L. Co., 72 Vt.
124, 47 Atl. 402, holding nonresident banlLS not discriminated
against by State law exempting from attachment, by trustee process,
negotiable paper transferred to resident baulks before maturity;
dissenting opinion in Nashua Sav. Bank v. Anglo-American, etc.,
Co., 108 Fed. 782, court sustaining action by foreign corporation
against stockholder to recover call upon stock, action based upon
contract voluntarily made by defendant becoming stockholder.
Syl. 7 (XI, 516). CJommerce — Foreign corporations — State regu-
lation.
Approved in Anglo-American Prov. Co. v. Davis Prov. Co., 169
N. Y. 511, 62 N. E. 588, upholding validity of restriction restrict-
ing litigation between foreign corporations to causes of action
arising within State; Floyd v. Loan & In v. Co., 49 W. Va. 335. 38
S. E. 657, enjoining sale of real property within State, under deed
1007
NoteB on U. S. Reporla. 125 U. S. 100-216
of trust made between foreign corporation and cUlzeu, premium
Eot fixed and certain as required by law.
Syl. 8 (XI, 516). Fourteenth Amendment — Purpose stated.
Approved in Cargill Co. v. Minnesota ex rel. R. It. &. W. Comm..
180 U. S. 460, 45 L. G27, 21 Sup. Ct. 420, upholding statute' requir-
ing UceDse aa condition to engage In busiueas of warehousemBU;
State V. Travelers' Ins. Co., 73 Conn. 273, 47 AU. 305, upholding
method of taiation subJecOng resident stockholders to municipal
tas and nonresident etockliolderE to State tax; Milwaukee Trust
Co.. Recr V. Geraianin Ing. Co.. IOC La. G72, 31 So. 290, upholding
State enactment declaring those representing Insurance companies
within State sball be considered agents upon whom service of
process may be made; D'Arcy v. Mutiial Life Ina. Co., 108 Tenn.
.')73, 60 S. W, 770. upholding service ot process upon secretary of
State, under act 1875, In action upon Insurance policy taken bv
foreign company under, but before repeal thweof.
Distinguished In State v. Houn, 01 Kan. 150, S9 Pac. 344. declar-
ing unconstitutional law prohibiting payment of laborers in " scrip,"
by corporations or trusts employing ten or more persons; State
V. Montgomery, 04 Me. 200, 47 Atl. 1G9, declaring statute, permit-
ting any citizen of United States to obtain license as bawker or
,peddter, denying eame to alien, un co net Itut tonal.
SjL 0 (XI, 517). Fourteenth Amendment — Corporation a person.
Approved in Jones v. Mutual Fidelity Co., 123 Fed. 532, sustain-
ing validity of TenaeEsee statute, prohibiting foreign corporations
doing business without complying with requirement of filing copy
of charter with secretary of Stote; Oakland Sugar Mill Co. v. Fred
W. Wolf Co.. 118 Fed. 245. upholdiag Michigan statute prohibiting
foreign corporations from beginning business until franchise tax
paid; Johnson v. Goodyear MIn. Co., 127 Cal. 8, 78 Am. St. Rep.
21, 50 Pac. 305, declaring law regulating wages of employees of
eorporaiions and subjecting property tliereof to liens therefor dls-
crimina'llYe and unconstitutional.
125 U. S. 100-210, 31 L. G54. MAYNAED v. HILL.
Syl. 1 (XI, 513). Territorial legislation — Powers.
Approved In Andrews v. Andrews, 188 U. S. 30, 23 Sup. Ct.
240, 47 L. 309, upholding Massachusetts statute refusing to give
effect to dlvorct's obtained by citizens outside State for causes
not recogniaabie In Massachusetts; W. C. Peacock Co. v. Pratt, 121
Fed. 770. holding, under organic act, Hawaii has full and compre-
benslve powers to legislate in matter of taiation.
Syl. 3 (XI, 518). Impairment of contracts — Marriage.
Approved in Andrews v. Andrews, 188 U. S. 30, La Sup. Ct. 230,
47 L. 300, supporting Massachusetts statute, declaring divorces
k
i
125 U. S. 217-240 Notes on U. S. Reports. 1008
obtained in other Jurisdictions by citizens for causes not recog-
nizable in Massachusetts without effect In Massachusetts; Lewis
V. Tapman, 00 Md. 200, 45 AtL 461» holding agreement to marry
not within Statute of Frauds, hence promise to marry after expi-
ration of three years need not be in writing; University of Michigan
v. McGuckin, 64 Nebr. 303, 80 N. W. 770, holding necessary con-
sent to marriage need not be expressed in particular manner or
prescribed form, unambiguous language or conduct sufflciem; Rid-
dle V. Riddle, 26 Utah, 277, 72 Pac 1084, denying common-law
marriage existed, man continuing to cohabit with woman after
death of legal wife; dissenting opinion in Livingston v. Livingston,
173 N. Y. 380, 66 N. E. 127, 03 Am. St Rep. 606, declaring statute
unconstitutional so far as attempting to modify or vary valid Judg-
ments of alimony entered before enactment of statute. See note, 03
Am. St Rep. 606.
Syl. 5 (XI, 510). Public lands — Donation acts.
Approved in Oregon, etc., R. R. v. United States, 100 U. 8. 105,
23 Sup. Ct 677, 47 L. 1016, holding grant to railroad not defeated
by fact donation notification remained on record, person filing same
not complying with statutes.
Syl. 6 (XI, 510). Divorce — Effect upon unvested rights.
Approved in Quinn v. Ladd, 37 Or. 270, 50 Pac. 460, drying
husband an estate by curtesy, wife dying before completing four
years' residence and cultivation, as required by Oregon donation
law.
(XI, 518). Miscellaneous.
Cited in In re De Laveaga's Estate, 142 Cal. 171, 75 Pac 705,
denying illegitimate child's right to inherit, never having been
adopted, as required by Code.
125 U. S. 217-224, 31 L. 750, HOSKIN v. FISHER.
Syl. 8 (XI, 510). Patents — Reissue insufficient to explain delay.
Approved in United Blue-Flame Oil Stove Go. v. Glazier, 110 Fed.
150, 160, holding reissue void for excessive and inexcusable delay
in applying for such reissue.
Syl. 4 (XI, 510). Patents — Delay in seeking reissue.
Approved in Franl^lin v. Illinois Moulding Gb., 128 Fed. 51, court
bebig of opinion plaintiff estopped by laches, defendant using ma-
chine two years prior to date of reissue patent
Syl. 6 (XI, 510). Certiorari — Record partly brought up.
Approved in West v. East Coast Cedar Co., 113 Fed. 742, affirm-
ing rule, refusing to reverse, because of mere existence in record
of testimony excluded by court and not considered.
125 U. S. 224-240. Not cited.
lOOU
Notes on D. S. Reports. 125 U. S. 2I0-2&B
125 D. 8. 240-247, 31 L. 743, OEIGET v. UNITED STATES,
Syl. 3 (XI. 520). CuBtoms duOes — Forfeiture — False Involclag.
Approved in United SUtes v. Blsbap. 125 Fed. 187. holding action
to recover additional duties uimjq an undervaluation maintainable
wltliout proof of trauilulent intent on part of owner; Five Hun-
dred and Etghtr-one Diamonds \. United Statea, 119 Fed. 560,
denj-ing vendor baving rigbt as against purcba^cr to reacind Bale
right as against government to assert claim to goods seized from
purcbaser attempting to smuggle; State v. Mf-Manus. 65 Kan. 725.
70 Pac. 701. holding proceedlug to condemn and destroy intoxicating
liquors seized In house mainlaloed against law malntalnablp before
trial or conviction of person charged witb maintaining li')iise.
125 U. S. 247-208, 31 L. 678, SOUTHERN DEVELOPMENT CO.
V, SILVA.
Syl. 1 (XI, 520), Equity — Responsive answer under oath.
Approved In De Roui v. Glrard, K© Fed, 801, denying evidence
sufficient of attorney's confidential relation and fraudulent Insertion
of lands on mortgage to authorize recovery by mortgagor aft»
foreclosure,
Syl. 2 (XI, 520). Sales — Vendor's fraud— Reedssion.
Approved In Oppenhelmer v. Clunle, 142 Cal, 318, 75 Pac. BOl,
refusing rescission, on ground of lessor's representations as to exits
and stairways, lesBee occupying theater a season before seeking to
rescind.
Syl. 3 (XI, 621). Sales — Vendor's misrepresentations, ore in aight
Approved In Munitr«s v, McCaskilJ. 64 Kan. 525, 68 Pac. 44. deny-
ing reaclasion of contract to exchange properties expressly providing,
exchange subject to Inveatigatlona of tMrtb parties; Donoho v. Life
AsBur. Soc. 22 Tex. Civ. 108, G4 S. W, (J48, denying recovery under
agreement to pay at expiration of policy accumulated aurptus fixed
at definite sum, exact amount not guaranteed; Eldridge v, Toung
America Min. Co,. 27 Wash, 308, 87 Pac, 706, refusing to rescind,
party Investigating mlnlDg property and after purchase and knowl-
edge of fact constituting alleged fraud, continued to treat same aa
DlsdngulBhed in Trenchard v, Kell, 127 Fed. BOl, allowing de-
fendant to set off agaluat purchase notes difference In value of
timber actually conveyed and that represented.
Syl, 5 (XI, 521). Sales — Buyer not investigating- Rescifwlon.
Approved in Shappirlo v. Goldberg, 192 U. S. 242. 24 Sup. Ct 261,
denying rescission, buyer undertaking to Inveatlgate for himself and
report upon title, deed showing premises not of uniform depth;
Stratton's Independence v. DIaea. 126 Fed, 878, holding aoawer,
alleging plaintiff did not purcliaae In reliance upon deCendanfi
Vol II — 64
k
125 U. S. 260-^61 Notes on U. 8.. Reports. 1010
representations, but upon other independent information, states a
S:ood defense; Brown v. Smith, 109 Fed. 31, refusing rescission,
seller visiting property and examining same for himself.
125 U. S. 260-2T3, 81 L. 731, HANNIBAL, ETC., R. R. CO. T.
MISSOURI RIVER PACKET CO.
Syl. 1 (XI, 521). Statutes granting privileges — Construction.
Approved in Cornell v. Coyne, 192 U. S. 432, 24 Sup. Ct 386,
construing act and holding '* filled cheese " manufactured for ex-
port not relieved from ordinary manufacturing tax; Swan & French
Co. V. United States, 100 U. S. 147, 23 Sup. Ct 704, 47 L. 986,
resolving doubt in favor of government and holding lubricating
oils placed upon foreign bound vessels, to be consumed thereon,
not exportation entitling sellers to drawbacks.
126 U. S. 273-309, 31 L. 747, UNITED STATES v. SAN JACINTO
TIN CO.
Syl. 2 (XI, 522). United States — Suit to cancel land patent —
Fraud.
Approved in Oregon, etc., R. R. v. United States, 189 U. S. 104,
23 Sup. Ct 616, 47 L. 728, holding in suit to reconvey lands patented
to railroad, railroad not acquiring any rights to land within in-
demnity limits before proper approval and selection; United States
V. Chicago, etc., Ry. Co., 116 Fed. 972, taking Into consideration real
equities between parties. United States suing to cancel patent
wrongfully conveyed, to convey to one equitably entitled thereto;
State V. Zachrltz, 166 Mo. 314, 65 S. W. 1000, upholding State's
right to restrain Jockey club from exercising privilege of book-
making under licenses fraudulently obtained regardless of pecuniary
interest
125 U. S. 300-336, 31 L. 721, CLEMENT v. PACKER.
Syl. 2 (XI, 523). Private boundaries — Deceased's declarations.
See note in 94 Am. St Rep. 682.
Syl. 3 (XI, 523). Supreme Court— State land decisions.
Approved in Beldlng v. Hebard, 103 Fed. 544, admitting In evi-
dence, under Tennessee decisions, declarations of deceased persons
as to their understanding of location of boundary line between
North Carolina and Tennessee.
125 U. S. 337-345. Not cited.
125 U. S. 345-^61, 31 L. 763, SPENCER v. MERCHANT.
Syl. 2 (XI, 524). State decisions construing State Constitutions.
Approved in French v. Barber Asphalt Paving Co., 181 U. S.
340. 45 L. 888, 21 Sup. Ct. 631, sustaining resolution of Kansas
City council Assessing cost of street paving upon abutting owners;
question one of legislative expediency.
lOU
. Reports. 125 U. S. 345-3«l
SjL 5 (XI, 524). Street assessments — Burdeu — Property
beneflt«d.
Approved in Chadwlck v. Kelley, 187 U. S. 5-13. 23 Sop. Ct. 177,
47 L. 294, refuslus to declare Stale etaCute, making cost of pavliig
street assessable upon abutting properties, unconstitutional; City of
Indianapolis v. Holt, 155 lud. 241. 57 N. E. 972, upholding front-toot
role 08 to assessment for street improvementB as prima facte cor-
rect; Hackwortli v, Ottumwa, 114 Iowa, 471, S7 N. W. 426, up-
holding act assessing cost of sti'eet Improvement against abutting
property according to front-foot rule; liarSeld v. Gleaaon, 111 Ky.
617, 63 S. W. 9G9, upholding statute, charging entire cost of street
Improvements upon abnttiug owners acconliug to area, altliough
prellmlnajy bearing not provided for; Barber Asphalt Pav. Co. v.
French. 158 Mo. 544, 548, 553. 58 S. W. 937. 938, WO. upholding
assessment of cost of paving upon lots fronting upon street accord-
ing to frontage, regardless of special benefiU; Ileman t. Allen, 156
Mo. &S0, 67 S. W. 563, upholding power of municipal corporation
to impose the whole or any part of cost of constnictlng sewer
against adjoining property with'out notice or opportunity to owners
to contest existence of benefits derived; Lincoln SL K. R. v, Lincoln,
01 Nebr. 138, 84 N. W. 811, holding city authorized under legislative
act to pave streets occupied by railroad traclts and charge same
by BpecEal OHSessmcnt against railroad property; Nebnaaue Park
Afisn. V. Lloyd. 167 N. Y. 439, 60 N. B. 744, not deciding whether
Statute creating special tax district and assessing all lands therein
St certain rate, regardless oC beneflts derived, constitutional, com-
missioners without authority to act; Webster v. City of Fargo, 9
N. Dak, 210, 82 N. W. 733, upholding legislative enactment charging
entire cost of street pavement against abutting property in propor-
tion to frontage, legislature not limited to actual increase In value;
Eing V. Portland, 38 Or. 415, B3 Pac. 5, upholding legislature's
power to determine without notice amount of money to be raised
for public pui-pose and the district taxable for amount thereof;
Nottage V. Portland, 35 Or. 554, 76 Am. St. Rep. 519, 58 Pac. 886,
denying property-owner's right to be heard upon amount of tax to
be raised on land among which to be apportioned. See note, 62
Am. SL Rep. 459.
Limited In Baltimore City v. Stewart. 92 Md. 545, 48 Atl. 107.
sustaining front-foot rule of apportioning cost of paving upon
abutting owners where such owners notified; People v. Pitt, 169
N. Y. 529. 62 N. E. 665, upholding l^islature's power to distribute
coat upon property fronting street according to frontage; burden
less than actual cost of Improvement.
Distinguished In Van Lear v. Elsele, 120 Fed. 823, upholding power
of Congress to regulate use of " Arkansas Hot Springs," holding,
however, rules made by secretary of interior, limiting use to patients
k
i
125 U. S. 382-426 Notes on U. S. Reports. 1014
taining appointment of receiver, complaint alleging plant of cor-
poration idle, stockholders unable to agree amongst themselves,
corporation without money to operate works. See notes, 72 Am.
St Rep. 52, 80, 91.
Syl. 4 (XI, 528). Railroad — Mortgagee out of possession —
Earnings.
Approved in Southern Ry. y« Carnegie Steel Ck>., 176 U. S. 295,
44 L. 474, 20 Sup. Ct 362, charging mortgage security with resto-
ration of earnings improperly diverted from primary use, namely,
paying current expenses in keeping road in repair; Atlantic Trust
Go. V. Dana, 128 Fed. 219, denying cost of improvements, made
by receiver under order . of court, chargeable upon income af t^
mortgagee asserted right thereto by intervening in suit to fore-
close mortgage; American, etc.. Go. v. Home Water Go., 115 Fed.
176, holding weight of authority against mortgagee of rents and
profits maintaining action to recover rents before possession
taken by mortgagee or receive^ appointed; Eau Claire v. Pay-
son, 109 Fed. 678, denying suit by mortgage trustee against city
to collect rentala due water company under contract assigned as
security for payment of interest on bonds; Gregg v. Mercantile
Trust Co., 100 Fed. 228, holding claims for cross-ties and hardware
needed and used in operation of road payable out current income;
denying claims for locomotives and counsel fees.
Syl. 5 (XI, 528). Receivers — Accumulaited funds — Mortgage
creditors.
Approved in Illinois Trust, etc., Bank v. Doud, 105 Fed. 145,
holding loan to quasi-public mortgagor to make substantial and
necessary additions to mortgaged property not preferred in equity
to mortgagee.
125 U. S. 382-300. Not cited.
125 U. S. 397-426, 31 L. 778, WILLIAMS v. CONGER.
Syl. 1 (XI. 520). Evidence — Public records.
Approved in State v. Rodman, 173 Mo. 603, 73 S. W. 608, hold-
ing objection to proving contents of indictment by original utterly
untenable.
Syl. 2 (XI, 529). Replevin — Value named in bond.
Approved in Withaup v. United States, 127 Fed. 535, denying
court's power to take judicial notice of genuineness of signatures
upon papers filed in other cases, although part of own records;
Talbot V. Dillard, 22 Tex. Civ. 361, 54 S. W. 407, holding papers
containing admittedly genuine signatures, unconnected with subject-
matter of litigation or competent evidence in case, improper basis
for comparison.
Distinguished in Coppock v. Lampkin, 114 Iowa, 666, 87 N. W.
666, comparing husband's admittedly genuine signatures with slg-
lOlS
U. ;
Reporls. 123 U. S. 42G-524
nature upon contract In Issue, to sbow contract originally signed
by liuabanij, altered to appear Hignod by wife; University of Illinois
V. Spalding, 71 N. H. 1(16, 51 Atl. 732, admitting spwiniena of
bandwrlting, tor purpose of comparison with disputed writing, after
genuineness determined by court as preliminary fact.
Syl. 8 (XI, 529). Evidence— Recitals In power of attorney.
Approved in Barber v. latemailoaal Co., 73 Conn. «13. 48 Atl.
704, holding otHciai attestation of verity of copy of document In
public archives "a true copy" sufDcleut.
125 D. S. 420-447, 31 L. 7i». WASHINGTON ICE CO. v. WEBSTER.
Syl. 2 (SI, 529). Replevin — Value named In bond.
Approved In Lewis v. M'Nary, 38 Or. 119, 02 Pac. 8B8. denying
recovery upon redelivery bond, properly redelivered, and damages
not awarded; Capital Lumbering Co. v. Learned, 36 Or. 549. T3
Am. St. Rep. 795, 59 Pac. 45(1, holding signers of replevin bond
estopped (rom denying value stated therein.
125 V. 8. 44T-(C4, Not cited,
125 D. S. 465-524, 31 L. 700. BOWMAN v. CHICAGO, ETC.. RT.
Syl. 2 (XI, 530). Commerce — Foreign and Interstate relations.
Approved In Lottery Case, 180 U. S. 351, 23 Sup. Ct. 325, 47 L.
499, upholding congressional legislation prohibiting interstate trafflc
In lottei-y tickets.
Syl. 5 (XI, 630). Commerce — State Inspection laws.
Approved In Pabat Brewing Co, v. Crenshaw. 120 Fed. 154,
denying State, under police power, to subject article passing througli
State, or temporarily stored In warehouse for distribution outside
State, to tasation or Inspection fees.
Syl. 7 iXI. 531). Commerce — State restrictions — Police power.
Approved In dissenting opinion in Austin v. Tennessee, 179 U. S.
377, 45 L. 239, 21 Sup. Ct. 145, court sustaining conviction, under
State statute, prohibiting sale of cigarettes, cigarettes sold in
small pacliages Imported from another State In baskets.
Distinguished in Crosaman v. Lurman, 171 N. Y. 332, 83 N. H,
1098, upholding Stale's power to inspect original packages, and.
If found adulterated for purposes of fraud and deception, to esciudo
Syl. 8 (XI, 531). Interatate commerce — State reatrlctlons.
Approved iu Grossman v. Lurman, 192 U. B. 196, 24 Sup, Ct. 236,
upholding New York laws prohibiting sale of adulterated food and
drugs; Gibbs v. M'Neeley, 102 Fed. 508, denying association of
manufacturers within partlcidar Stale, formed for purpose of con-
certed action to prevent overproduction and establish uniform
prices. Illegal restraint of Interatate commerce; Wall v. Norfolk,
etc., R. B., 52 W. Va. 496, 44 B. B. 208, 94 Am. SL Rep. 967, deuf-
L
. 125 U. S. 465-524 Notes on U. S. Beportk 1016
Ing railroad car, coming loaded Into State, to be returned reloaded,
subject to State attacbment
SyL 9 (XI, 531). Commerce — Ck>ngreB8lonal legislation, absent.
Approved In Atlantic & Pacific TeL Ck>. t. Philadelphia, 190 U.
8. 162, 23 Sup. Ct 817, 47 L. 909, holding municipality may sub-
ject interstate telegraph companies to reasonable charge for police
supervision; dissenting opinion in Austin v. Tennessee, 179 U. S.
874, 45 L. 238, 21 Sup. Ct 144, court sustaining conviction, under
State statute, prohibiting sale of cigarettes, cigarettes sold In
small packages. Imported from another State, pacl^ed loosely in
baskets.
Syl. 10 (XI, 532). Ck>mmerce — State act restricting Importation.
Approved in Lottery Case, 188 U. S. 360, 23 Sup. Ct 329, 47 L.
503, upholding congressional legislation prohibiting Interstate traffic
in lottery tickets; Smith v. St Louis & Southwestern R. R. Co., 181
U. S. 254, 45 L. 849. 21 Sup. Ct 605, upholding SUte statute es-
tablishing quarantine district for diseased cattle and establishing
regulations therefor; Cleveland, etc., Ry.* Co. v. Illinois, 177 U. S.
518, 44 L. 870, 20 Sup. Ct 723, declaring State statute invalid,
requiring trains to stop at county seats, so far as applicable to
through trains; United States v. Adams Exp. 0>., 119 Fed. 242,
holding commerce clause not Involved, carrier indicted for receiv-
ing liquors from dealer without State, carrying same to consignee
C. O. D., and returning money to vendor; State v. Hanaphy, 117
Iowa, 19, 90 N. W. 602, holding salesman of nonresident principal,
taking orders in Iowa for liquors to be shipped from Illinois, not
subject to prosecution under State law prohibiting sale of liquors;
State V. Hickox, 64 Kan. 656, 68 Pac. 37, declaring Invalid State
law placing restrictions upon business of nonresident salesman
for intoxicating liquors, liquors imported from another State; Peoi^e
V. Buffalo Fish Co., 164 N. Y. 102, 104, 79 Am. St Rep. 627, 629. 68
N. E. 37, 38, holding statute prohibiting possession of fish within
certain season applicable only to fish taken within and not to
fish brought into State.
Distinguished in Racine Iron Co. v. McCommons, 111 Ga. 545,
36 S. E. 870, holding State not prohibited from imposing tax upon
traveling agent of nonresident principals, receiving goods In origi-
nal packages, breaking same and distributing goods.
Syl. 12 (XI, 534). Commerce — Liquor — Power to regulate.
Approved in State v. Intoxicating Liquors, 94 Me. 339, 47 AtL
532, declaring Maine statutes prohibiting importation of liquor
with intent to sell same repugnant to Federal Constitution.
(XI, 530). Miscellaneous.
Cited in Knoxville v. Knoxville W. Co., 107 Tenn. 675, 64 S. W.
1082, to point of legislature's power to enter into irrevocable con-
tract for water supply.
1017 Notes on U. S. Reports. 125 U. S. 625-666
126 U. S. 625-630, 31 L. 813, HARTRANFT v. OLIVER.
Syl. 1 (XI, 634). Customs — Importations — Time, duties col-
lective.
Approved in American Sugar Refining Go. t. Bidwell, 124 Fed.
681, liolding goods shipped from Philippines before, but arriving at
port of entry after, repeal of duties, not dutiable; De Pass t. Bid-
well, 124 Fed. 621, 622, subjecting goods imported from Porto Rico
after cessiom, voluntarily placed in bonded warehouse, to duty in
force at time of withdrawal
125 U. S. 530-555. 31 L. 700, WESTERN UNION TEL. CO. T.
MASSACHUSETTS.
SyL 1 (XI, 535). Taxation — Exemption — Telegraph companies.
Approved In Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S.
163, 23 Sup. Ct 818, 47 L. 999, holding municipal corporation may
charge interstate telegraph companies a reasonable amount for
police supCTvision; Toledo v. Western U. Tel. Co., 107 Fed. 13,
denying telegraph companies accepting provisions act Congress,
1866, right to erect and maintain lines and poles without complying
with city's regulation; State v. Western U. TeL Co., 165 Mo. 519,
65 S. W. 778, subjecting tangible property and franchise of tele-
graph company within State to taxation by State.
Syl. 3 (XI, 536). Telegraph companies — Taxation — Length of
line.
Approved in Western U. Tel. Ca v. Missouri ex rel. Gottlier,
ioo U. 8. 423, 23 Sup. Ct 733, 47 L. 1120^ sustaining State tax upon
interstate telegraph company, considered for purposes of taxation as
part of system operating in other States; Cumberland & Pa. R. R.
V. State, 92 Md. 685, 48 Atl. 508, upholding tax upon gross receipts,
amount determined by proportion length of line within State bears
to entire length of line; State v. Western U. Tel. Co., 165 Mo. 519,
•521, 522. 525, 526. 65 S. W. 778, 779, 780, 781, upholding tax upon
franchise considering franchise and tangible property as a system
and assessing in proportion as property within State bears to whole
property.
Distinguished In Eidman v. Martinez, 184 U. S. 582, 46 L. 701, 22
Sup. Ct 517, holding war tax law of 1898 not applicable to intan-
gible personal property of alien domiciled abroad passing by will
to son also an alien; Coulter v. Weir, 127 Fed. 908, holding valua-
tion of express company's intangible property in Kentucky fixed
without deducting surplus funds invested outside State erroneous;
Yost V. Lake Erie Transp. Co., 112 Fed. 747, denying Ohio's right
to tax vessels engaged in interstate commerce, owned by corpora-
tion in another State, where name of home port is painted on
stern; Ruckgaber v. Moore, 104 Fed. 950, holding bequest of
nonresident alien to daughter, also nonresident, of accounts against
125 U. S. 555-585 Notes on U. S. Reports. lOlS
N'ew York citlaens aud bonds of New York corporatJona, not eobjecl
U war tax.
Syl. 4 (XI, 537). Tai aU on — Corporation — Uniform.
Approved la CltlzenB* BL R. R. v. Common Council, 125 M!cb.
882, 85 N. W. lOa. bolillng determining railroad's cash vaJne far
astteesment purposes, tauxible propen; regarded as unit vaJue en-
baac-ed by fraueblae privileges; State v. Western U. Tel. Co., 185
Mo. 522, 65 S. W. TT9, upholding tax on gross earainga. amount
measured by proportion length ot line within State bears to entire
length of line; dissenting opinion In Jaekson v. Corporation Com-
mission. 130 N. C. 420, 42 8. E. 135, court holding railroad franchiees
need not be assessed separately from tangible property.
Syi. 5 (XI, 084). Telegraph companies — Nonpayment of taxes.
Approved In Western U. Tel. Co. v. Fennaylvanla K. R, Co., 120
Fed. S&i, enjoining railroad company from removing or Interfering
with telegraph company's lines until suit to condemn right or way
determined.
125 D. S. 555-585. 31 L. 795, BDCHER v. CHESHIRE B. E.
SyL 1 (XI, 538). Federal court — Nonsuit In State coort
Approved in Gilbert v. American Surlty Co., 121 Fed. 502, hold-
ing dismissal for want of prosecution no bar to subsequent action;
Mclver v. Florida Cent. R. R., 110 Ga. 225. 36 S. E, 776, allowing
second suit In State court, first suit commenced In State court
removed to Federal court discontinued and dismissed there; Ker-
rigan V. Chicago M., etc., Ry. Co.. 80 Minn. 410, DO N. W. 977,
holding action dismissed for failure of plaintilT to pay costs on
appeal not bar to another action: Railroad v. Bents, 108 Tenn. 675,
91 Am, St. Rep. 76li. GS S. W, 319, denying Federal court's decision
against plaintiff on appeal, remanding cause, bar to another action
In State court, plaintiff voluntarily dismissing first. See note, 90
Am, St Rep. 133.
Syl. 3 (XI, 538). Supreme Court — State decisions construing
Constitution.
Approved in Nashua Sav. Bank t. Anglo- American Co., 189 U. S.
228, 23 Sup. Ct. 518, 47 L. 785, holding laws of several States with
respect to reception as evidence includes decisions of highesrt State
court; League v. Texas. 181 D. S. 159. 46 L. 480, 22 Sup. Ct. 470. fol-
lowing State court aud upholding statute changing remedy tor col-
lection of taxes applied to tax already delinquent; Western TJ. Tel.
Co. V. Sklflr, 12B Fed. 298, following construcUon of State statute al-
lowing plaintiff nominal damages, defendant failing to deliver mes-
sages; refusing to follow State court allowing damages for mental
suffering: Hliott v. Felton. 110 Fed. 272, following Tennessee court's
eonstructioD of statute, holding plalntiCTs contributory negligence
not a bar to action for railroad's nonobservance of statute; Coltrane
1018 Notes on U. S. Heporta. 125 D. S. 586-U13
T. Baltimore BMg., etc., AflBn., 110 Fed. 314, following State law
and holding upon winding up of corporation borrowing stoubholder
does not contribute to losses of building assoctatioD Incorporated
under Maryland law; American Surety Co. t. Worcester Cycle Mfg.
Co., lUO Fed. 44, declaring ctiattel mortgage, under Connecticut
law, invalid as to after acquired property, mortgagee not tatlug
actual possession; F. Miller Brew. Co. v. Insurance Co., HI Iowa,
599, 82 N. W. 102G, sustaining Judgment entered by clerit of court
in vacation: State v. Citizens" Banls, 52 La. Ann. H03, 27 So. 717,
determining effect of corporation accepting legislative act wituoui
being controlled by decisions of Federal court.
Distinguished In Lee v. Board of Comra.. 114 Fed. 746, refusing
to follow construction contended for. allowing holder of void war-
rants. Issued In payment of bridge, to sue to remove same unleits
paid for: Independent School Dist. t. Rew, 111 Fed. 11, declining to
follow State decisions upon questions of commercial law and holding
municipality estopped to deny recitala In bond.
Syl. 5 Oil. 639). Supreme Court — Stale decisions — Property
Approved la Keene Five-Cent Sav. Bank v. Held, 123 Fed. 22fl.
construing independently Of State court provlBlons of mortgage
securing note, holding mortgage not causing note to mature In
advance of time ei'pressed upon face.
(XI, 638J. Miscellaneous.
Cited In Newbury v. Luke, 68 N. J. L. 192, 52 Atl. 626. allowing
recovery of damages for overdriving borse although horse hired
upon Sunday for Sunday driving.
120 n. S. 585-590. Not cited.
126 U. 8. B91-613, 31 L. 825. UNION TRUST CO. r. MORBISON.
Syl. 4 (XI, 640). Mortgages — Earnings — Current expendes.
Approved in Southern By. v. Carnegie Steel Co., 170 O. S. 281, 44
L. 4{i!), 20 Sup. CL 356, charging mortgage security with restoration
of funds Improperly diverted from payment of current expenses.
Distinguished in Southern Ry. Co. v. Ensign Mfg. Co., 117 Fed,
420, denying creditors, furnishing car wheels with knowledge of use
for leased road, preference over mortgagees, whose mortgugea do
not Include leased road.
Syl. 5 <XI, 541). Railroads — Mortgages — Trior liens.
Approved In Farmers', etc.. Trust Co. v. American Water-Works
Co., 107 Fed. 28, decreeing Income diverted to pay interest on mort-
gage Indebtedness restored to pay (or engines necessary to operate
plant: dissenting opinion la Illinois Trust, etc.. Bank v. Doud, 106
Fed. 154, court denying preferential lien Cor money loaned to make
substantial, beuehcial, and necessary additions to mortgaged
property.
i
125 U. S. 614-G42 Notes on U. S. Reports. 1020
Distinguished in Gregg v. Mercantile Trust Co., 109 Fed. 228,
allowing preferential lien for cross-ties but denying same for
locomotives and counsel fees rendered in ordinary course of busi-
ness; Illinois Trust, etc., Bank v. Doud, 105 Fed. 146, denying
preferential lien for money loaned to make substantial, beneficial,
and necessary additions to mortgaged property; Van Frank t.
Brooks, 93 Mo. App. 42S, 67 N. W. 092, holding account of raih-oad
employee, extending over period of eight years, including moneys
paid out indiscriminately on own motion, not such demand to dis-
K^ace prior liens upon property.
126 U. S. 614-618. Not cited.
125 tJ. S. 618-642, 31 L. ^4, DOOLAN v. GARB.
Syl. 1 (XI, 541). Land patent — Validity — Federal question.
Approved in North Pac. Ry. v. Soderberg, 188 U. S. 628, 23 Sup.
Gt 366, 47 L. 681, entertaining jurisdiction, plaintiff's case depend-
ing upon construction of act of Gongress, defeated by one con-
struction and sustained by another; Nevada Sierra Oil Go. v. Miller,
97 Fed. 690, taking Jurisdiction of bill asserting rights under mining
claim location, question whether locator discovered mineral vein
prior to location raised.
Syl. 3 (XI, 542). Public lands — Patents — AtUcking.
Approved in King v. M' Andrews, 104 Fed. 431, denying patent,
admissible in evidence to establish title, showing on face lands
embraced therein, not subject to appropriation; Ledbetter v. Bor-
land, 128 Ala. 428. 29 So. 580, declaring patent void upon record
evidence, showing location made upon lands other than covered by
patent.
Distinguished in King v. McAndrews, 111 Fed. 863, reversing
decision of District Gourt and holding land department having
jurisdiction to determine controversy, patent issued therefor, evi-
denced legal title and impervious to collateral attack.
Syl. 5 (XI, 543). Public lands — Mexican grants excluded.
Approved in Oregon, etc., R. R. Go. v. United States, 190 U. S.
189, 23 Sup. Ct. 675, 47 L. 1013, denying railroad grant attaching
to lands sold, pre-empted, reserved, or otherwise disposed of by
United States; Minnesota v. Hitchcock, 185 U. S. 392, 46 L. 964,
22 Sup. Gt 657, holding lands known as Red Lake Indian reserva-
tion not passing to Minnesota under grant of school lands; Snow-
den V. Loree, 122 Fed. 497, holding patent, attempting to convey
land dedicated as public street without autliority of law and void;
McFadden v. Mountain View Min. & Mill. Go., 97 Fed. 680, deny
Ing right to locate mining claims in advance to president's procla-
mation Indian reservation open to settlement; Fredericks v. Zum-
walt, 134 Cal. 48, G6 Pac. 40, holding swamp lands excepted by
State, certiUcate of purchase thereof, as swamp land, void.
1021 Notes oo U. S. BeporUL 125 U. 8. 642-680
125 U. S. 042-646, 31 L. 820. JOHNSON v. CHRISTIAN.
Syl. 2 (XI, 544). Circuit Court — Enjoining own Judgment —
Jurisdiction.
Approved In Bradford Belting Co. v. Kissinger-Ison Co., 113
Fed. S13, liolding Jurisdiction of former suit supporting second suit,
subject-matter of second dependent upon tliat of first; Aldricb v.
Campbell, 97 Fed. 665, entertaining jurisdiction to restrain re-
ceiver of insolvent national bank from prosecuting action at law
in same court
125 U. S. 646-658. Not cited.
125 U. S. 658-680, 31 L. 832, ST. LOUIS, ETC., R. R. v. CLEVE-
LAND, ETC., R. R.
Syl. 1 (XI, 545). Railroads — Operating expenses — Net revenue!.
Approved in Farmers', etc.. Trust Co. v. American Water- Works
Co., 107 Fed. 28, ordering moneys diverted from income to pay in-
terest on mortgage restored for purpose of paying claim for en-
gines furnished.
Syl. 2 (XI, 546). Railroads — Secured and unsecured claims —
Priority.
Approved in dissenting opinion in Southern Ry. v. Carnegie
Steel Co., 176 U. S. 297, 44 L. 475, 20 Sup. Ct 353, court charging
mortgage security in equity with restoration of funds improperly
diverted for benefit of mortgage creditors.
Syl. 3 (XI, 546). Railroads — Mortgage security — Current ex-
penses.
Approved in Southern Ry. v. Carnegie Steel Co., 176 U. S. 282,
44 L. 469, 20 Sup. Ct 357, charging mortgage security in equity
with restoration of funds improperly diverted for benefit of mort-
gage creditors; Southern Ry. Co. v. Ensign Mfg. Co., 117 Fed.
420, denying as preferential claims for car wheels furnished with
knowledge of use for repairing equipment of leased road; Gregg
V. Mercantile Trust Co., 109 Fed. 228, 229, giving preferential
character to claims for cross-ties and hardware, denying same to
claims for locomotives and counsel fees; Farmers*, etc., Trust Co.
V. American Water- Works Co., 107 Fed. 28, ordering moneys diverted
from income to pay Interest on mortgage restored to pay claim for
engines furnished; Lee v. Pennsylvania Traction Co., 105 Fed. 409,
holding claim for purchase price of rail joints and track bolts en-
titled' to preference over mortgage debt; dissenting opinion In
Illinois Trust, etc., Co. v. Doud, 105 Fed. 153, majority denying
loan to quasi-public corporation to make substantial, beneficial,
and necessary additions to mortgage property entitled to priority
over prior mortgageii.
125 U. S. 658-e80 Notes on U. S. Reports. 1022
Distinguished in Gregg v. Metropolitan Trust Ck>., 124 Fed. 723,
725, holding gross earnings reimhursed by money borrowed on
notes secured by mortgage and used to pay current expenses;
Rhode Island Locomotive Worlds v. Continental Trust Ck>., lOS
Ped. 9, denying claim for engines preferential. It not appearing
engines necessary to maintain road as a going concern; Illinou
Trust, etc., Bank t. Doud, 105 Fed. 141, 145, 146, denying loan
to quasi-public corporation to malce substantial, beneficial, and
necessary additions to mortgaged proper^ entitled to priority oyer
prior mortgage.
125 U. S. 6S0-602. 81 L. 841, DOW v. BEIDBLMAN.
Syl. 1 (XI, 547). Carriers — Umitatioo of rates — Legislature.
Approved In San Diego Land, etc., Town Co. ▼. Jasper, 189 U.
S. 443, 23 Sup. Ct 573, 47 L. 895, sustaining water rates fixed by
board of supervisors, under California statute March 12, 1885;
Minneapolis & St. L. R. R. Co. v. Minnesota, 186 U. S. 264, 46 L. 1156,
22 Sup. Ct 903, holding commission rates for coal in carload not
proven unreasonable by showing, If rate applied to all freight, road
unable to pay operating expenses.
Syl. 3 (XI, 547). Carriers — State's power to limit rates.
Approved in Cottlng v. Godard, 183 U. S. 85, 46 L. 99. 22 Sup.
Ct. 33, declaring act unconstitutional, defining public stockyards,
regulating management thereof, etc., act applicable to Kansas City
Stoclt Yards Company only; State v. Minneapolis, etc., R. R., 80
Minn. 204, 83 N. W. 66, refusing to assume reproduction cost or
present cost of construction equivalent to amount of stock and
bonds outstanding, upon question of fixing rates.
Syl. 3 (XI, 547). Carriers — State's power to limit rates.
Approved in Cotting v. Godard, 183 U. S. 87, 46 L. 100, 22 Sup.
Ct 33, holding act unconstitutional, regulating stockyards, applicable
only to Kansas City Stock Yards CJompany; Chicago, Milwaukee,
etc., Ry. V. Tompkins, 176 U. S. 173, 44 L. 420, 20 Sup. Ct 338,
holding findings of court insufifclent to determine question of rea-
sonableness of rated and declaring process employed unreliable;
Agua rura Co. v. Mayor, -etc., 10 N. Mex. 29, 60 Pac. 216, declar-
ing unconstitutional act delegating to city authority to fix water
rates, without providing for determination of reasonableness thereof
by courts.
Syl. 7 (XI, 549). Carriers — Classification regulating rates.
Approved in Andrus v. Insurance Assn., 168 Mo. 163, 67 S. W. 585,
sustaining practice of permitting proof of waiver, without specially
pleading same, although applicable only to Insurance companies.
See note. 89 Am. St Rop. 530.
1023 Notes on U. 8. Reports. 125 U. S. 602-702
125 U. S. 692. 31 L. 854, BONAHAN v. NEBRASKA.
Syl. 1 (XI, 549). Crimes — Prisoner escaping pending writ
Approved In Batesburg v. Mitchell, 58 S. C. 571, 37 S. E. 38, deny-
ing appeal by defendant convicted by town council of violation of
ordinance after payment of fine Imposed.
125 U. S. 693, 31 L. 853, ADDINGTON v. BURKE.
(XI, 549). Miscellaneous.
Cited In State v. Lambert, 52 W. Va. 250, 43 S. B. 177, dismissing
writ from order awarding mandamus commanding candidate's
name placed upon ballot, election held.
125 U. S. 694, 31 L. 854, SHREVEPORT v. HOLMES.
SyL 1 (XI, 549). Rehearing — Divided court
Approved In Territory v. Delinquent Tax List, 3 Ariz. 89, 21 Pac.
893, stating purpose of rehearing to give opportunity to court to
correct misapprehensions of record or any oversight or omission
Inadvertently made.
125 U. S. 695, 696, 31 L. 853, EAST TENNESSEE, ETC., R. R. v.
SOUTHERN TEL. CO.
Syl. 1 (XI, 549). Appeal ~ Dismissal — Plaintiff acquiring de-
fendant's Interest
Approved in Hatfield v. King, 184 U. S. 165, 46 L. 483, 22 Sup.
Ct 478, holding upon motion supported by afildavits, no real con-
trpversy Involved, court's duty to make inquiry; Western Electric
Co. V. Anthracite Tel. Co., 113 Fed. 835, denying conclusiveness of
decree In prior suit adjudging validity of patent, where prior to
hearing cause ceased to be an adversary proceeding, aflirmmg 100
Fed. 304; State v. Lambert 52 W. Va. 250, 43 S. E. 177, dismissing
writ from order awarding mandamus commanding candidate's name
placed upon ballot election held and right Involved ceasing to
exist
125 U. S. 696, 697. Not cited.
125 U. S. 698-702, 31 L. 855, LYON v. PERIN, ETC., MFG. CO.
(XI, 550). Miscellaneous.
Cited In Irion v. Bexar Co., 26 Tex. Civ. 529, 63 S. W. 551, hold-
ing inadmissible parol evidence to contradict the record as to date
of entry of judgment
CXXVI UNITED STATKS.
126 U. S. 1-684, 31 U 8C3, TELEPHONE CASES.
Syl. 1 (XI, 551). l*2ttents — Results by dlffereut means.
Approved in Chlsholm v. Johnson, 106 Fed. 200, sustaining patenta
for Improvement in method for hulling green peas aa not antici-
pated by patent, of which hulling is mere incident.
SyL 3 (XI, 651). Patents — Description clear to artisan.
Approved in Lamson ConsoL Store Service Oo. v. HiUman, 128
Fed. 422, holding utility of McCarty's apparatus for store service
not negatived by fact susceptible of improvement; Brishir v. Ca^
negie Steel Co., 118 Fed. 600, holding mere mechanical improve-
ment in patented machine, increasing eflaclency without changing
principle of operation, not avoiding infringetnent; American BeU
Tel. Co. V. National Tel. Mfg. Co., 109 Fed. 1027, holding caveat
made without experimental knowledge, statements therein merely
possibilities unbased upon scientific or experimental knowledge,
not constituting reduction supporting invention.
Distinguished In Dowagiac Mfg. Co. v. Superior Drill Co., 115
Fed. 895, holding objection untenable, although expert unable to
state precise angle disc set at to work properly, result obtainable
through exercise of expert's Judgment.
Syl. 4 (XI, 551). Patents — Application of undulating current.
Approved In American Bell Tel. Co. v. National Tel.* Mfg. Co.,
109 Fed. 992, 1027, denying Berliner had in fact made Inventiou
of telephone for transmitting speech at date of filing application,
such Invention expressly disclaimed; Plaget Novelty Co. v. Head-
ley, 107 Fed. 13G, sustaining claim for patent for money receptacle,
having dials indicating amount of coins deposited, not openable until
definite amount deposited.
Syl. 6 (XI, 552). Patents — Art or process — Means employed.
Approved in Steinmetz v. Allen, 192 U. S. 559, 24 Sup. Ct 421,
declaring Invalid rule 41 of practice la patent ofilce, requiring
division between claims for a process and claims for an apparatus,
inventions dependent and related.
Syl. 7 (XI, 552). Patents — Electrical speech-transmissions —
Experiments.
Approved In American Bell Tel. Co. v. National Tel. Mfg. Co.,
109 Fed. 1051, holding Substitution by Berliner of solid metal elec-
[1024]
1025 Notes on U. S. Reports. 127 U. S. 1-45
trode for merctiiy electrode of Bell's anticipated by Edison's In-
ventions.
Syl. 8 (XI, 552). Bell's patents — Anticipation — Reld's musical
sound.
Approved In American Bell Tel. Co. v. National Tel. Mfg. Co.,
109 Fed. 979, 988, 998, 1026, 1054, holding Berliner's patent claim-
ing broadly method of producing circuit electrical undulations an-
ticipated by prior Bell liquid transmitter.
Syl. 10 (XI, 552). Patents — Mere conception not Invention.
Approved in Brown v. Zanbitz, 105 Fed. 244, holding oral testi-
mony insuflacient, unsupported by patents or exhibits, and under
circumstances shown, contrary to probabilities, to support defense
of prior use.
(XI, 551). Miscellaneous.
Cited in American Bell Tel. Co. v. National Tel. Mfg. Co., 109
Fed. 987, 988, 990, 993, 1001, 1005. 1006, 1012, 1019. 1026, 1030. 1034,
1048, in general to effect Berliner's patent for combined telegraph
and telephone anticipated by Bell's invention.
CXXVII UNITED STATES.
127 U. S. 1-46, 32 L. 150, CALIFORNIA v. CENTRAL PAC. R. R.
Syl. 1 (XI, 554). Assessment — Quantity of property — Validity.
Approved in Chicago, etc., Ry. Co. v. Phillips. Ill Iowa, 384, 82
N. W. 789, holding assessment on all property of railroad to pay
for construction of sewer void, being in part tax on personal
property.
Syl. 2 (XI, 554). Taxation — Assessment, part legal.
Approved in United States Trust Co. v. Territory, 10 N. Mex.
427, 62 Pac. 991, sustaining validity of assessment, number of
miles different from that stated in original assessment, tax per
mile given.
Syl. 4 (XI, 554). Commerce — Interstate highways — Corpora-
tions.
Approved in Southern P. R. Co. v. United States, 183 U. S. 527,
46 L. 312, 22 Sup. Ct. 157, upholding congressional power to grant
corporations created by State additional powers; dissenting opinion
in Citizens' Bank v. Parlier, 192 U. S. 92, 24 Sup. Ct. 189, court
including within exemption from taxation license tax on occupa-
tion, as well as taxes on property.
Vol. 11 — 66
127 U. S. 45-02 Notes on U. 8. Reports. 1026
Syl. 6 (XI, 554). State taxation — Property ot- Federal oorpo-
rations.
Approved In Knowlton v. Moore, 178 U. S. 61, 44 L. ©78, 20 Sop.
Ct. 755, upholding war tax upon legacies and distributlTe shares
of personal property; In re Appeal of Union Tank Line Co., 204
111. 350, 08 N. E. 505, holding foreign corporation's cars In transit
through State, to be returned when not In use, not subject to State
taxation.
Syl. 7 (XI, 555). States cannot tax Federal franchise.
Distinguished In Atlantic, etc., B. R. v. Lesneur, 2 Ariz. 433,
19 Pac. 100, upholding territorial right, under powers delegated
to Congress and Territories, to tax franchises regardless of whether
Federal agencies or means of interstate commerce.
Syl. 9 (XI. 555). Franchises under executive department's controL
Approved In Trustees of Southampton v. Jessup, 102 N. Y. 120,
50 N. E. 539. holding town trustees authorizing riparian owner to
construct bridge across bay not to delay navigation granted fran-
chise.
Syl. 13 (XI, 550). Corporate franchise — Taxation — Arbitrary
authority.
Approved in Citizens' St R. R. v. Common Council, 125 Bflch.
081, 85 N. W. 98, considering, in determination of cash value of
street railway for assessment purposes, tangible property as unit,
value enhanced by special privileges.
(XI, 554). Miscellaneous.
Cited In Smith v. Reeves, 178 U. S. 440, 44 L. 1145, 20 Sup. Ct
923, excluding from Judicial power of United States suits brought
by Federal corporations against State without consent; Germanla
Tr. Co. V. San Francisco, 128 Cal. 590. 01 Pac. 180, holding bonds
of a rallronil con>oration secured by mortgage on property within
State not assessable for taxation to holders thereof.
127 U. S. 4r> .^0. Not cited.
127 U. S 51 -.ns, 32 L. 02, UNITED STATES v. WELD.
Syl. 1 (Xl, 550). Claims' Court — Alabama Claims' Court — Judg-
ments.
Ai)prove(1 In dissenting opinion In Pam-to-Pee v. United States,
187 U. S. MHl 2:i Sup. Ctl54, 47 L. 233. court holding Claims Court's
method of distribution of funds approved by Supreme Court final,
further relief obtainable only from Congress.
127 U. S. 5.S r.2. 32 L. 00, ROBARDS v. LAMB.
Syl. 1 (XI. 557). Statutes — Settlement of accounts without
notice.
Ai)i roveil in In re Meggett 105 Wis. 290, 81 N. W. 421, holding
in con tempt proeeedings, final step committing for contempt sum-
1027 Notes on U. S. Reports. 127 U. S. 63-96
mary, not objectionable, when prior to determination party given
opportunity to be heard.
127 U. S. 63-67, 32 L. 56, MORGAN v. EGGERS.
(XI, 557). Miscellaneous.
Cited in Daniel v. Felt, 100 Fed. 728, holding equitable title can-
not be interposed as defense to action in ejectment*
127 U. S. 67-69. Not cited.
127 U. S. 70-85, 32 L. 51, MORE v. STEINBACH.
SyL 4 (XI, 577). Public lands ~ Mexican grants.
Approved in United States v. Elder, 177 U. S. 117, 44 L. 695, 20
Sup. Ct 542, denying mere approval of Mexican governor indorsed
on petition for grant equivalent to grant where no reference had
to ascertain prerequisites.
SyL 12 (XI, 558). Public lands — Commissioners' acts under act
1851.
Approved in Thompson v. Los Angeles F. & M. Ck>., 180 U. S.
78, 80, 45 L. 435, 436, 21 Sup. Ct 291, holding, upon confirmation of
claim by commissioners, District or Supreme Court issued patent
conclusive against United States; Brown v. Parker, 127 Mich. 394,
86 N. W. 990, holding government survey line bounded by meander
line of lake conclusively established character of territory as land.
127 U. S. 85-96, 32 L. 102, BUCKER v. WHEELER.
SyL 1 (XI, 559). Federal Judges — Opinions upon fact — Jury.
Approved in Kerr v. Modem Woodmen of America, 117 Fed.
596, denying error, court expressing opinion as to fact proven,
jury instructed not bound by opinion, but should consider evi-
dence and find facts therefrom; Lesser Cotton Co. v. St Louis,
etc., Ry. Co., 114 Fed. 142, refusing to review on error Federal
jndge*s opinion on facts expressed in charge, no rule of law In-
correctly stated; Nyback v. Champagne Lumber Co., 109 Fed.
737, holding question of fact properly submitted, court erred, fur-
ther stating Jury not Justified finding fact as alleged by plaintiff
"evidence all on one side;" Aerheart v. St. Louis, etc., Ry. Co., 99
Fed. 909, denying reversible error, court further instructing Jury
at request thereof, in explanation of previous charge, in absence
of counsel.
Distinguished in Haun v. Rio Grande, etc., Ry., 22 Utah, 361,
62 Pac. 912, declaring instruction, practically directing Jury to
give greater weight to affirmative testimony of defendaDt*s credible
witnesses than to negative testimony of plaintiff's credible wit-
nesses, erroneous.
127 U. S. 90-125 Notes on U. S. Reports. 1028
«
127 U. S. 90-105, 32 L. 70, BLACKLOCK v. SMALL.
SyL 1 (XI, 659). Circuit Court — Jurisdiction — Cilteenshlp —
Assignee suing.
Distinguished in Cincinnati, etc., R. R. Co. y. Thlebaud, 114
Fed. 922, 928, entertaining suit by administrator to recover dam-
ages for wrongful death of intestate, regardless of citizenship of
beneficiaries.
Syl. 2 (XI, 559). Circuit Court — Jurisdiction ^ Citizenship -
Codefendant beneficially interested.
Approved in Goodwin v. New York, N. H. & H. R. R. Co., 124 Fed.
307, denying suit by Massachusetts citizen in Circuit Court of
Massachusetts against corporation Incorporated in Massachusetts
and Connecticut
Distinguished in Carroll v. Chesapeake & O. Coal Agency Co.,
124 Fed. 309, entertaining suit to restrain strikers from interfering
with operation of mines, plalntifTs Interests not adverse to mine-
owners, but founded on different rights.
127 U. 8. 105-113, 32 L. 73, SMITH v. BOURBON COUNTY.
Syl. 1 (XI, 560). Mandamus — County refusing issuance of bonds.
Approved in Jones Co. v. Guttenberg, 66 N. J. L. 669, 51 Atl.
277, awarding mandamus to compel issuance of bonds, councllmen
determining bonds' Issue, advertising for and accepting bid of
relator.
. Syl. 6 (XI, 560). Circuit Court — Acquired jurisdiction — Man-
damus.
Approved in Cleveland v. United States, 127 Fed. 669, holding
mandamus proceedings to enforce payment of Judgment, strictly
legal in nature, should be conducted in conformity with common-
law practice.
Syl. 7 (XI, 560). Circuit Court without Jurisdiction should dismiss.
Approved in In re Williams, 120 Fed. 36, denying costs, proceed-
ings to declare debtor involuntary bankrupt dismissed for want of
Jurisdiction; Hudson v. Wood, 119 Fed. 771, 778, holding bill, multi-
farious, uniting equitable and legal demands, should be dismissed
:as to legal relief sought
(XI, 560). Miscellaneous.
Cited in American, etc., Co. v. Home Water Co., 115 Fed. 181.
•denying Jurisdiction of Federal court, as court of equity, of suit
against city to recover rentals, although equitable Jurisdiction ac-
quired to determine other matters between parties.
127 U. S. 113-116. Not cited.
127 U. S. 117-125, 32 L. 94, MARYE v. BALTIMORE, ETC., R. R.
Syl. 1 (XI, 561). Taxation — State — Property within Jurisdiction.
Approved in Efdman v. Martinez, 184 U. S. 582, 46 L. 701, 22, Sup.
Ot 517, holding war tax not applicable to intangible personal prop-
1029 Notes on U. S. Reports. 127 U. & 126-182
erty of alien domiciled abroad, passing by will to son, also domi-
ciled abroad.
Syl. 2 (XI, 561). Taxation — Railroad's personal property — Situs.
Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U.
S. 163, 23 Sup. Ct 818, 47 L. 999, upholding State's power to charge
Interstate telegraph companies reasonable charge for police su-
pervision; Ruckgaber v. Moore, 104 Fed. 950, holding bequest, un-
der will of alien, of accounts against New York citizens and of
stocks and bonds of American corporations In New York, to non-
resident alien not subject to war tax.
Syl. 4 (XI, 561). Taxation — Cars used in Interstate commerce.
Approved In Atlantic, etc., R. R. v. Lesueur, 2 Ariz. 434, 19 Pac.
161, upholding Arizona's right, under powers delegated to Congress
and Territories, to tax franchises, whether Federal or means of
Interstate commerce.
(XI, 661). Miscellaneous.
Approved in Goodwin v. New York, N. H. & H. R. R. Go., 124 Fed.
369, denying Jurisdiction of suit by Massachusetts citizen in Cir-
cuit Court of Massachusetts against corporation incorporated In
both Massachusetts and Connecticut; Howard v. Gold Reefs of
Georgia, 102 Fed. 658, refusing to remand, name Indicating cor-
poration of same State, owning property and carrying on business
there, plaintiff's pleadings showing incorporation In different State.
127 U. S. 125-139. Not cited.
127 U. S. 139-160, 32 L. 77, KELLEY v. MILAN.
Syl. 1 (XI, 5Cf2). Municipal corporations purchasing railroad
stock.
Approved in Washington Co. v. Williams, 111 Fed. 806, holding
municipal bonds payable out of special fund raised by annual levy
not negotiable.
Syl. 2 (XI, 562). Municipal corporations — Implied powers —
Bonds.
Approved in Coquard v. Oquawka, 192 IlL 366, 61 N. B. 663,
holding power to issue new negotiable bonds to take place of former
Issue not implied from power authorizing former issue.
127 U. S. 160-176. Not cited.
127 U. S. 176-181, 32 L. 97. FORNCROOK v. ROOT.
(XI, 564). Miscellaneous.
Cited in United States Mineral Wool Co. v. Manville Covering
Co., 125 Fed. 772, holding patent for processes of manufacturing
mineral wool by remelting hardened slag void, process used pub*
lically by others.
127 U. S. 182-192. Not cited.
127 U. S. 183-210 Notes on U. S. Reports. 1030
127 U. S. 193-200, 82 L. 118, WHITBBCK T. MBRCANTILH
BANK.
Syl. 1 (XI, 565). Taxation — National bank shares — Discrimina-
tion.
Approved in First Nat Bank v. City of Covington, 103 Fed. 629,
holding State law taxing national bank's shares as real estate and
State banks upon franchise value sustainable only by proof, law
not discriminative.
SyL 3 (XI, 565). Taxation — National bank shares — Deducting
debts.
Approved in Lander v. Mercantile Nat Bank, 118 Fed. 785,
holding auditor without authority to place upon tax lists sums
deducted from valuation of national bank shares in previous years,
under authority of principal case; Mercantile Nat Bank v. Lander,
109 Fed. 28, holding under later decision, contrary to prior one.
State unauthorized to collect taxes on deductions made from na-
tional bank shares under prior decision.
Distinguished in Mercantile Nat Bank v. Hubbard, 106 Fed.
814, 816, 817, 820, holding Judgment, declaring statute invalid,
denying deductions of indebtedness from national bank shares,
res adjudlcata as applied to subsequent assessments between same
parties although lat^r decision contrary thereto; Hull v. Alexander,
69 Ohio St 84, 68 N. B. 643, denying taxpayer right to deduct debts
from assessed value of national bank shares.
(XI, 565). Miscellaneous.
Approved in Lander v. Mercantile Nat Bank, 186 U. S. 470, 471,
474, 475, 476, 477, 46 L. 1254, 1256, 22 Sup. Ct 913, to effect, res
Judicata applies to tax cases where cause of action relied on is the
thing adjudged In prior suit
127 U. S. 200-205. Not cited.
127 U. S. 205-210, 32 L. 107, MISSOURI, ETC., RY. v. MACKEY.
Syl. 1 (XI, 565). Corporations — State prescribing future lia-
bilities.
Approved in Fidelity & Casualty Co. v. Freeman, 109 Fed. 856,
upholding statute, providing misrepresentation or warranty made
negotiating for insurance not deemed material unless intentional
or increasing risk of loss.
Syl. 3 (XI, 566). Railroads — Negligence — Statutes prescribing
liability:
Approved in Chicago, R. I. & P. R. R. Co. v. Zernecke, 183 U. S.
58G, 4G L. 341, 22 Sup. Ct. 231, and Clark v. Russell, 97 Fed. 904, both
upholding validity of State statute making railroads liable for all
damage Inflicted on passengers transported over road, with certain
exceptions; Indianapolis, etc., R. R. v. Houlihan, 157 Ind. 502, 60 N. E.
946, sustaining statutes holding railroad companies liable to em-
1031
Notes on U, S. Reports. 127 D. S. 205-210
ployees for neftllsence or employeefi In charge of elgnals, etc.;
Gano T. Minneapolis A St L. H. R. Co., 114 Iowa, 719. 87 N. W.
716, 89 Am. St. Rep. 397. upboldlng act requiring railroads con-
demning land to pay landowner rensouable attorney's fees Inci-
dental to aaaessment of damages; Callahan v. St. Louis, etc., Ry.,
170 Mo. 492. 494. 71 S. W. 214, 04 Am. St. Rep. 759, 760, suetaining,
under fellow- servant act, action by railroad employee to recover
for Injuries received througb negligence of fellow servant: Powell
V. Sherwood. 162 Mo. 620. fi3 S. W. 489, austainlng act making re-
ceiver appointed by a United Slates court liable to damugea for In-
Jury to employee to same extent as corporation; People v. Locbner,
177 N. Y. 149. 60 N. E. S14, sustaining State laws regulating hours ot
labor In bakeries; Coley v. North Carolina R. R.. 120 N. C. 410, 40
S. E. 19G, sustaining act allowing action against railroad for in-
juries caused by negligence or Incompetency of otber servants of
company.
DIstlnKulsbed In Ballard t. Oil Co., 81 Miss. 657. EI5 Am. St Rep.
478, 34 So. 549. holding unconstitutional, act imposing restrictions
upon nil corporatioDH without reference to nature of business, 88 to
actions by employees for injuries due to negligence.
Syl. 4 (XI, C67). Special legislation — Uniformity — Repugnancy.
Approved In Florida C. & P. R. H. Co. v. Reynolds. 183 U. S. 478,
46 L. 280, 22 Sup. Ct 179. sustaining act autborlziiig assessment of
taxes upon property belonging to railroad compaules. omitted from
tax roll of previous years; American Sugar BeQnlag Co. v. Iioulsi-
ana, 17& U. S. 94, 45 L. 104, 21 Sup. Ct 45. sustaluiDg statute Im-
posing license upon persons and corporations refilling sugar and
molasses, exempting planters and farmers refining own sugar and
molasses; Clark v. Kansas City, 176 U. S. 119. 44 L. 337. 20 Sup.
Ct 2SC. upholding ordinance, taking lands belonging to railroad
company Into city limits, where same used for railroad purposes;
Dastervignes v. United States, 122 Fed. 36, upholding rules by
secretary of Interior preventing pasturing of abeep within govern-
ment reservations; Mexican Nat R. B. Co. v. Jackson, 118 Fed. 552,
sustaining act making persons, receivers or corporations operat-
ing railroads, liable for Injuries to servants or employees, and pro-
hibiting limitation of such llublllty; Duckwall v. Jones. 150 Ind.
680. 5S N. K. 1057, upholding statute authorizing attorney fees In
suits to foreclose mechanic's Iten; Gano v. Minneapolis & St. L.
R. R. Co.. 114 Iowa. 720. 87 N. W. 719. 89 Am. St. Rep. 403, uphold-
ing act requiring railroads condemning land to pay landowner rea-
sonable attorney's fees Incidental to assessment of damages; Calla-
han V. St Louis, etc.. Ry.. 170 Mo. 494. 71 S. W. 214, 94 Am. St Rep,
760, sustaining, under fellow-servant act, action by railroad em-
ployee to recover for injuries caused by negligence of coemployee;
State V. Darrah. 152 Mo. 535. 54 S. W. 231, sustaining act punlsh-
las banic officer receiving money for deposit after knowledge of
i
127 U. S. 210-212 Notes on U. S. Reports. 1032
bank*s insolvency; Chicago, etc., R. R. y. Zemecke, 69 Nebr. 697, 82
N. W. 28, sustaining statutes giving persons right of action for al)
Injuries sustained while a passenger, except such occasioned by
own negligence or violating express rule.
Distinguished in Iowa v. Garbroskl, 111 Iowa, 498, 82 N. W. 959,
declaring act unconstitutional, requiring peddlers plying vocation
outside city or town to secure license, expressly exempting persons
who have served In army or navy; State v. Montgomery, 94 Me. 206,
47, Atl. 169, holding act unconstitutional, restricting Issuance of
licenses for peddling and hawking to United States citizens, ex-
cluding aliens; Sams v. St Louis, etc., Ry., 174 Mo. 73, 73 S. W. 691,
refusing to Include street railways within operation of fellow-
servant act of 1897.
Syl. 6 (XI, 568). Fourteenth Amendment — Ck>rporation8 are
persons.
Approved In Johnson v. Goodyear Min. Co., 127 Cal. 8, 78 Am.
St Rep. 21, 59 Pac. 305, declaring act unconstitutional regulating
corporation's contracts with employees respecting wages and estab-
lishing liens therefor.
Syl. 6 (XI, 568). Railroad — State regulation — Hazardous busi-
nesses.
Approved In Callahan v. Missouri, etc., Ry., 170 Mo. 486, 71 S. W.
211, 94 Am. St. Rep. 753, sustaining, under fellow-servant act, action
by railroad employee to recover for injuries caused by negligence of
coemployee; Orr v. Southern Bell Tel. Co., 132 N. O. 694, 44 S. B.
403, holding telegraph company liable for injuries to employee,
suflScient tools not furnished; Railway v. Kreager, 61 Ohio St 338,
56 N. E. 208, upholding statutes Imposing upon railroad companies
an absolute liability for loss or damage by fire originating upon
land caused by operating road; Simmons v. Telegraph Co., 63 S. C.
430, 432, 433, 41 S. E. 522, sustaining statutes, making telegraph
companies liable for damages for mental anguish, although not
applicable to telephone companies; Jul! en v. Model R. L., etc.,
Assn., 116 Wis. 85, 86, 92 N. W. 563, sustaining statutes giving to
building and loan association mortgages priority over liens upon
mortgaged premises filed subsequent to recording of mortgage;
dissenting opinion In Sams v. St. Louis, etc., Ry., 174 Mo. 94, 73
S. W. 698, court excluding from operation of fellow-servant act of
1897 street railways.
127 U. S. 210-212, 32 L. 109, MINNEAPOLIS, ETC., RY. v.
HERRICK.
Syl. 1 (XI, 568). Railroads — Negligence — Statutes prescribing
liability.
Approved in Chicago, R. I. & P. R. R. Co. v. Zemecke, 183 U. S.
587, 46 L. 341, 22 Sup. Ct 231, upholding statute, making railroad
liable for all damages infilcted upon passengers, excepting certain
1033 Notes on U. S. Reports. 127 U. S. 213-300
causes; Clark v. Kansas City, 176 U. 8. 119, 44 L. 397, 20 Sup. Ct.
286, upholding statute, authorizing cities to take described tracts
within city limits, excluding agricultural lands not owned by rail-
roads; Callahan v. St. Louis, etc., Ry., 170 Mo. 492, 493, 71 S. W.
214, 94 Am. St. Rep. 759, sustaining action under " Fellow Servant
Act " brought by employee against railroad for Injuries caused by
negligence of coemployee; Powell v. Sherwood, 162 Mo. 620, 63
S. W. 489, sustaining act defining liabilities of railroad corpora-
tions in relation to damages sustained by employees; Coley v. North
Carolina R. R.. 129 N. C. 410, 40 S. B. 196, sustaining fellow-servant
act, making railroads liable for injuries to employees through
negligence of coemployees; Andrus v. Insurance Assn., 168 Mo.
163, 67 S. W. 585, upholding act, permitting practice of proving
waiver without specially pleading same, applicable only to in-
surance companies; Orr v. Southern Bell Tel. Co., 132 N. C. 695, 44
S. E. 403, holding telegraph company liable, falling to furnish
Injured employee with proper tools for taking down telegraph
pole; dissenting opinion in Sams v. St. Louis, etc., Ry., 174 Mo. 94,
72 S. W. 698, court holding fellow-servant act, making railroad
liable for Injuries received by employees through negligence of co-
employees, not applicable to street railway.
Distinguished in Ballard v. Oil Co., 81 Miss. 572, 95 Am. St Rep.
491, 34 So. 554, holding act declaring railroad corporations liable for
Injuries to employees, caused by coemployee's negligence, knowledge
of defective appliances no defense, unconstitutional.
127 U. S. 213-216, 32 L. 147, JONES v. CRAIG.
Syl. 1 (XI, 569). Appeal — Final orders.
Approved in Llde v. Park, 132 Ala. 223, 31 So. 360, holding, where
decree sustained demurrers with thirty days to amend on bill dis-
missed, subsequent order necessary to effectuate dismissaL
127 U. S. 216-265. Not cited.
127 U. S. 265-300. 32 L. 239, WISCONSIN v. PELICAN INS. CO.
Syl. 1 (XI. 571). Supreme Court — Suits by States against States.
Approved in Minnesota v. Hitchcock, 185 U. S. 385, 46 L. 962.
22 Sup. Ct 655, entertaining jurisdiction of suit by Minnesota to
enjoin secretary of interior and land office commissioner from
selling lands known as Red Lake reservation.
Distinguished in Louisiana v. Texas. 176 U. S. 18, 44 L. 354, 20
Sup. Ct 257, dismissing bill by Louisiana against Texas to restrain
Texas health officers from maintaining quarantine over infectious
diseases.
Syl. 4 (XI, 571). Supreme Court — Obligation between States.
Approved In Louisiana v. Texas, 176 U. S. 15, 44 L. 353, 20 Sup.
Ct 257, dismissing bill by Louisiana against Texas to enjoin Texas
127 U. S. 2C&-300 Notes on U. S. Reporta. 1034
health oflScen from maintaining qoarantlne against Infections
diseases.
Syl. 5 {Xt, 671). Criminal laws not operating extraterrltorlally.
Approved In State v. Frost, 113 Wis. 643, 654, 89 N. W. 918, 922.
holding proceeding by State to enjoin receiver of railroad from
obeying order of Federal court to dismantle same suit of clvU
nature removable to United States Circuit Court
Distinguished In Missouri v. Illinois, 180 U. S. 234, 45 L. 509, 21
Sup. Ct 341, entertaining jurisdiction of bill by Missouri against
Illinois to restrain sanitary district of Chicago from discharging
sewerage Into Mississippi river to detriment of health of Missouri's
inhabitants.
Syl. 7 (XI, 572). Courts — Penal laws — Suits for penalty.
Approved In Missouri v. Illinois, 180 U. S. 232, 45 L. 509, 21 Sup.
Ct 340, entertaining jurisdiction of bill by Missouri against Illinois
to restrain sanitary district of Chicago from discharging sewerage
into Mississippi to detriment of health of inhabitants of Missouri;
Boston, etc., R. R. v. Hnrd, 108 Fed. 121, entertaining jurisdiction
of action, under statute punishing railroads for negligence caus-
ing death, statute penal in form allowing alternate civil remedy;
Atlanta v. Chattanooga Foundry, etc., Co., 101 Fed. 902, 903, hold-
ing action under anti-trust act, to recover for injuries inflicted by
violation of act, not action for penalty but for enforcement of civil
remedy for private Injury; Hamilton v. Jos. Schlltz Brewing Co.,
100 Fed. 676, remanding action to recover payments for liquor
sold in violation of Iowa statute; dissenting opinion in Roberts v.
Fullerton, 117 Wis. 242, 93 N. W. 1118, court sustaining action for
damages against Minnesota officer destroying fish and net of plain-
tiff on Wisconsin side of Mississippi river; Minnesota v. Northern
Securities Co., 184 U. S. 235, 46 L. 515, 22 Sup. Ct 322, holding un-
necessary to decide nature of suit brought In name of State to
restrain foreign corporation from controlling competing railroads
of complaining State.
Distinguished in McCreary v. First Nat Bank, 109 Tenn. 138,
70 S. W. 823, State chancery courts entertaining Jurisdiction of
action against national bank, knowingly collecting usurious interest
In violation of United States statutes; State v. Frost 113 Wis. 654,
057, 89 N. W. 922, 923, allowing removal to Circuit Court of proceed-
ing by State to enjoin receiver of railroad from obeying order of
Federal court to dismantle road.
Syl. 9 (XI, 572). Judgments — Constitutional guaranty — Evi-
dence.
«
Approved in Anglo-American Prov. Co. v. Davis, etc., Co. (No. 1),
191 U. S. 374, and Anglo-American Prov. Co. v. Davis Prov. Co., 169
N. Y. 512, 62 N. E. 589, both upholding leglslature*s power to deny
loao Notes OD V. S. Reports. 127 D. S. 205-300
Jurisdiction of Slate court to litigation between foreign corpora-
tions npon foreign Judgmeat.
Syl. 10 (XI. 572), Stdte Judgments differ from foreign.
Approved In Lynde v. Lynde, 181 U. S. 187, 45 L. 814. 21 Sup. Ct.
5G6, refusing to review State court's refusal to give effect to so mucb
of decree of slater State as awards future alimony and requires bond,
sequestration, receiver and Injunctloii; Union, etc.. Bank v. Mem-
phis, 111 Fed. 571, determining effect of judgment of State court,
pleaded Id Federal court la support of plea, res judicata by law or
uaage of State where rendered.
SyL 13 (SI, 573). Courts— Foreign Judgments — Original claim.
Approved In Andrews v, Andrews, 188 D. S. 35, 39, 40, 23 Sup.
Ct 241, 243, 47 L. 371, upliolding Masaacbosetts statute refusing to
give effect to divorce obtained by citizens in anotlier Jurisdiction
upon grounds not authorized In Massactiu setts; Guardian Trust,
etc., Co. V. Greensboro, etc., Cki., 115 Fed. 189, sustaining priority of
Judgment lien la favor of property-owner for damage due to com-
pany's neglect In falling to keep sufficient supply of water for fire
purposes over prior mortgage; Boston, etc., B. R. v, Hurd, 108 Fed.
119, entertaining Jurisdiction of action to recover damages, under
statute punishing railroads for negligence causing death, statute
penal In form allowing alternate civil remedy; Grand County v.
People, 16 Coto. App. 224, 64 Pac. 678. holding relator, in action for
mandamus to enforce Judgment upon county warrant, muat make
same showing as If action upon warrant; Paterson v. Smith. 72
Vt. 294, 47 Atl. 1000, regarding In Insolvency proceedings Judgment
for conversion of property still resting upon tort and not upon
contract
Distinguished in dlsscntlog opinion In Grand Couuty y. People,
16 Colo. App. 246, 64 Pac. t>86, court holding relator In action for
mandamus to enforce judgment upon county warrant must make
same ahowlng as If action brought upon warrants.
Syl. 14 {XI. 573). Supreme Court — Jurisdiction — State suit for
penalty.
Approved In Missouri v. llllnoia. 180 U. S. 240, 45 L. 512, 21 Sup.
Ct 343, entertaining Jurisdiction of bill by Missouri against Illinois
to restrain sanitary district of Chicago from discharging sewerage
Into Mississippi to detriment of health of Missouri's Inhabitants.
Distinguished In Keyaer v. Lowell, 117 Fed. 404, declaring State
statute void barring actions against residents upon Judgment of
sister State, barred In former but not In latter State.
Syl. 15 (XI, 573). Courts — Penal laws — Suits for penalty.
Approved In dissenting opinion In South Dakota v. North Carolina.
192 U. S. 340, 24 Sup. Ct, 285. court entertaining suit by one State
against another to enforce property right.
L
127 U. 8. 300^22 Notes on U. S. Reports. 1036
127 U. 8. 300-322, 32 L. 138. COLTON v. COLTON.
Syl. 2 (XI, 574). Wills — Construction — Intent of testator.
Approved in Sherman v. American Congregational Assn., 98 Fed.
490, sustaining bequest to library association upon condition associ-
ation agrees to pay annuity to testator's wife, wife dying before
association made such agreement; Clifford v. Stewart 95 Me. 47,
48, 40 Atl. 55, holding property given to ** three wives of my three
sons ** for education of children created a trust to extent of secur-
ing education of children; Ensley v. Ensley, 105 Tenn. 122, 58 S. W.
291, court looking to whole will, circumstances and environments
of testator, state and condition of family and size of estate, to ascer-
tain intention of testator.
Syl. 3 (XI, 574). Wills — Construction — Ambiguous expressions.
Approved in Adams v. Cowen, 177 U. S. 477, 44 L. 853, 20 Sup.
Ct 670, construing will In light of circumstances ^d holding
amount advanced in lifetime not intended as advances, but gifts.
Syl. 6 (XI, 574). Wills — Precatory trusts.
Approved in Allen v. McGee, 158 Ind. 467, 62 N. B. 1003, enforcing
trust in grandchildren's favor, testatrix devising property to sons
and wives Jointly for use and support of legatees and children.
Syl. 7 (XI, 574). Wills — Benefits to others than devisee.
Approved in Beyer v. Le Fevre, 186 U. S. 121, 46 L. 1083, 22 Sup.
Ct. 768, holding direction in will, charging devisee with duty of
furnishing home for husband as long as he lived, in nature of prec-
atory trust, enforceable in courts; Collister v. Fassitt, 163 N. Y. 280,
79 Am. St. Rep. 592, 57 N. E. 493, enforcing provision directing
testator's wife, out of residuary estate, to expend as much thereof
as she deem best for support and benefit of certain niece; Ensley
V. Ensley, 105 Tenn. 124, 58 S. W. 292, enforcing executrix under
will directing payment of certain sum to one named, balance to
others in executrix's discretion, to pay to one named.
Syl. 11 (XI, 575). Wills — Express wish equivalent to direction.
Approved in McCreary v. Robinson, 94 Tex. 227, 59 S. W. 538,
holding under facts, devisee of estate charged with his support
not entitled to allowance In money for that purpose.
Distinguished in M'Duffle v. Montgomery, 128 Fed. 108, holding
will requesting wife to assist brothers and at death divide prop-
erty among them as she may deem best, not creating precatory
trust In favor of brothers; Russell v. United States Trust Co., 127
Fed. 446, 447, holding will expressing ** that It Is my wish and ex-
pectation " that my wife making her will will generously remember
children of deceased brother, not creating trust; Estate of Marti.
132 Cal. 670, 61 Pac. 965, holding precatory words "upon death
of my wife, I desire one-half of property bequeathed to her shall
be devised by her to my relatives," not creating trust.
1037 Notes on U. S. Reports. 127 U. S. 322-^64
127 U. S. 322-326, 32 L. 132, CAMERON v. HODGES.
Syl. 4 (XI, 575). Supreme Court — CIrcnIt Court's Jurisdiction.
Approved In dissenting opinion In GIbbs v. Gibbs, 26 Utah, 428,
73 Pac. 657, court holding defendant's appearance and failure to
object that action be* tried In county where .adultery committed,
waived all objections to court's jurisdiction.
»yi. 7 (XI, 576). Hemoval — Amendment of record.
Approved in Springs v. Southern Ry., 130 N. C. 199, 41 S. E. 105,
refusing to dismiss action In State court, petition for removal failing
to allege affirmatively corporation created under laws of another
State.
127 U. S. 326-337. Not cited.
127 U. S. 338-348. 32 L. 121, UNITED STATES v. BEEBE.
SyL 1 (XI, 576). United States suit to annul land patent
Approved in Oregon, etc., R. R. v. United States, 189 U. S. 104,
23 Sup. Ct. 616, 47 L. 728, sustaining suit by United States against
railroad company to cancel patents alleged illegally and by mistake
issued to company.
SyL 4 (XI, 577). United States — Actions — Limitations —
Laches.
Approved in Pond v. United States, 111 Fed. 995, denying defense
by sureties upon collector's bond that treasury department officers
failed to notify sureties of collector's defalcations until long after
knowledge acquired.
Syl. 6 (XI, 577). United States, nominal party, exemptions dis-
regarded.
Approved in French Republic v. Saratoga Vichy Co., 191 U. S. 438,
refusing interference of equity, French Republic suing for lessee,
label, dissimilar in form, used long without protest; Moran v.
Horsky, 178 U. S. 213, 44 L. 1041, 20 Sup. Ct. 859, to effect. United
States proceeding to set aside patent to establish interest of per-
son having equitable claim, subject to same defenses of laches,
limitation and want of equity as individual; United States v. Chi-
cago, etc., Ry. Co., 116 Fed. 972, holding United States barred from
maintaining action to cancel land patent in interest of homestead
claimant knowing of adverse claim many years before suit brought.
127 U. S. 348-354, 32 L. 168, NOYES v. MAUTH.
Syl. 1 (XI, 578). Mines — Perfection of location.
Approved in McKinley Creek Mining Co. v. Alaska, etc., Co., 183
U. S. 572, 46 L. 335, 22 Sup. Ct. 87, holding location by alien proof
against all attacks except government
127 U. S. 854-590 Notes on U. S. R^orta. 1038
127 U. S. 354-363, 32 L. 182, MOSLBB SAFB GO. T. MOSLBB.
SyL 1 (XI, 579). Patento — Article and process.
Approved in Steinmetz v. Allen, 192 U. S. 562, 24 Sup. Gt 422,
upholding inventor's right to unite clahns for process with claims
for apparatus; Thomson-Houston Elec. Co. v.* Black Biver Tracticm
Co., 124 Fed. 512, declaring original and reissue patent for travel-
ing contract for electric railways included and distinctly claimed in
former patent to same inventor; Society Fabriques, etc. v. Lueders,
105 Fed. 632, holding second patent void, both patents for one and
same or indivisible invention.
127 U. S. 363-370. Not cited.
127 U. S. 370-^76, 32 L. 207, HENDY T. GOLDBN STATE. BTO^
IBON WOBKS.
Syl. 1 (XI, 580). Patents — Novelty — Putting roUetB nndet
article.
Approved in Jones v. Gyphers, 126 Fed. 755, declaring patent
mere application to incubators of heated outlet pipe to produce
circulation of air void, device already applied to houses and rooms;
National Hollow, etc., Co. v. Interchangeable, etc, Co., 106 Fed.
715, holding patent infringed by machine using caps geometrically
dlfTerent in form, form immaterial.
Syl. 3 (XI, 580). Patents — Combination, a mere aggregation.
Approved in Boss-Moyer Mfg. Co. v. Bandall, 104 Fed. 359, limit-
ing Randall's patent, for improved strap trimmer, to particular
construction specified in claim and described in drawing.
127 U. S. 376-378, 32 L. 251, ST. PAUL PLOUGH WOBKS v.
STARLING.
Syl. 1 (XI, 581). Supreme Court — Appeal — Patentee's action
against licensee.
Distinguished in Carleton v. Bird, 94 Me. 188, 47 Atl. 155, enter-
taining action in State court to enforce contract whereby defend-
ant promised to pay for use of patented article— case arising on
contract.
127 U. S. 379-390, 32 L. 246, ABKANSAS VALLEY SMELTING
CO. V. BELDEN MINING CO.
Syl. 1 (XI, 581). Assignment — Agreement to pay money or
deliver goods.
Distinguished in Mueller v. Northwestern University, 195 111.
240, 88 Am. St. Bep. 195, 63 N. E. 115, denying recovery upon as-
signed contract to furnish building materials, contract providing
against assignment without consent; State v. Kent, 98 Mo. App. 287,
71 S. W. 1007, sustaining validity of provision in municipal contract
with employee prohibiting assignment of claim for wages. '
1038 Notes on U. S. Reports. 127 U. S. 390-405
SyL 2 (XI, 581). Assignments — Contract rights — Personal con-
fidence.
Approved in Golton v. Raymond, 114 Fed. 869, holding agency
in which delectus personse is essence of relation cannot be sold
or assigned; Snow y. Nelson, 113 Fed. 358, holding option, not as-
signable in terms, to one representing himself as agent of person
known to owner, not assignable; Neeley y. Phillips, 70 Ark. 92, 66
5. W. 350, holding waiver of priority of landlord*8 lien did not
pass with assignment of mortgage on tenant's crop; Tifton, etc.,
6. Ry. Go. v. Bedgood, etc., Co., 116 Ga. 950, 43 S. B. 259, denying
assignability, without consent, of contract whereby railroad agreed
with certain millowners to build spur track to mill; Moore v.
Thompson, 93 Mo. App. 347, 67 S. W. 683, holding under facts,
assignment of contract to furnish shoes and storeroom, etc., con-
sented to. See note, 88 Am. St Rep. 201.
Distinguished in American Colortype Co. v. Continental Co., 188
U. S. 107, 23 Sup. Ct 266, 47 L. 405, enforcing contract where
employee recognized substituted parties, new contract entered into;
American Bonding & Trust Co. v. Baltimore & O. L. W. R. R. Co.,
124 Fed. 871, allowing assignee of contract entered into between
receiver and contractor for certain betterments to sue upon con-
tractor's bond for contractor's default; Campbell v. Sumner County,
64 Kan. 377, 67 Pac. 866, denying assignability of contract to do
printing of county without consent of board of qounty commis-
sioners.
127 U. S. 390-396, 32 L. 249, MOSHBR v. ST. LOUIS, ETC., R. B.
Syl. 1 (XI, 582). Carriers — Passenger's right — Tourist ticket
Approved in Illinois Cent Ry. v. Caffrey, 128 Fed. 772, and
Louisville, etc., Ry. v. Bitterman, 128 Fed. 178, both issuing in-
junction restraining ticket brokers from buying and selling tickets
issued to persons at a reduced rate, agreeing not to transfer same;
Delaware, etc., R. R. Co. v. Frank, 110 Fed. 694, holding railroad
imder no obligation to transport subsequent purchaser of ticket
from broker.
Syl. 2 (XI, 582). Carriers — Stamp upon ticket — Valid condition.
Approved in Watson v. Railroad, 104 Tenn. 201, 56 S. W. 1026,
upholding rule of company requiring return ticket to be stamped
in order to be valid.
127 U. S. 396-404. Not cited.
127 U. S. 404, 405, 32 L. 198, HOSFORD v. HARTFORD FIRE
INS. CO.
SyL 1 (XI, 584). Insured's warranty — Incumbrances.
Approved in Fonts v. Millikan, 30 Ind. App. 301, 65 N. E. 1061,
holding condition in deed, incumbrancing by grantee shall work
127 U. S. 406-457 Notes on U. S. Reports. 1010
forfeiture, not including lien for taxes; Insurance Ck>. of Brooklyn
V. Smith, 9 Kan. App. 832, 61 Pac. 502, declaring policy not for^
felted by Judgment lien procured In Invltum.
127 U. S. 406-409, 32 L. 180, CHICAGO, ETC., EY. T. UNITED
STATES.
Syl. 3 (XI, 584). Later statutes — Construction — Repugnancy.
Approved in The Adula, 127 Fed. 857, holding district attorneys
act, fixing salaries of such officers, not repealing former act, allow-
ing district attorneys additional compensation in prize cases; Ban
V. Columbia Southern Ry. Co., 117 Fed. 33, construing later statute
giving liens to additional class of creditors, providing different
method of enforcing same, afford latter class a cumulative remedy.
127 U. S. 409-411. Not cited.
127 U. S. 411-428, 32 L. 229, RATTERMAN T. WESTERN UNION
TEL. CO.
SyL 2 (XI, 585). Telegraph an instrument of commerce.
Approved in Western Union Tel. Co. v. Missouri ex reL Gotther,
190 U. S. 424, 23 Sup. Ct 733, 47 L. 1121, upholding State tax upon
telegraph company though nominally upon capital stock, amount
determined by relation length of lines within State bears to entire
length; Lottery Case, 188 U. S. 352, 23 Sup. Ct 325, 47 L. 499,
upholding congressional legislation prohibiting interstate traflic in
lottery ticltets.
Syl. 4 (XI, 586). Commerce — State tax on gross receipts.
Approved in Kehrer v. Stewart, 117 Ga. 976, 44 S. K 857, uphold-
ing tax upon business conducted by resident agent receiving goods
from nonresident principal and selling same In open market, deny-
ing same where goods received and delivered directly to customers;
State V. Western Union Tel Co., 165 Mo. 522, 65 S. W. 779, hold-
ing telegraph company's franchise taxable. Impressed upon tangible
property and taxed upon basis property within State bears to entire
property; In re Wilson, 10 N. Mex. 36, 60 Pac. 75, declaring ter-
ritorial statute, imposing license fee as a condition to sell coal oil,
unconstitutional as to sales by importer in original packages.
127 U. S. 428^57. 32 L. 213, UNITED STATES v. MCLAUGHLIN.
Syl. 5 (XI, 580). Public lands — Floating grant — Sale before
location.
Approved in Oregon, etc., R. R. Co. v. United States, 190 U. S.
189, 23 Sup. Ct 675, 47 L. 1013, holding railroad grant not attaching
to lands which at time of location had been sold, pre-empted, re-
served or otherwise disposed of by United States.
1041 Notes on U. S. Reports. 127 U. S. 457-483
127 U. S. 457-471, 32 L. 234, BENSON v. McMAHON.
SyL 1 (XI, 587). Extradition — Mandate to initiate proceedings.
Approved In Grin v. Shine, 187 U. S. 195, 23 Sup. Ct 104, 47 L.
138, holding requisition from demanding government unnecessary
before commissioner acts.
SyL 3 (XI, 588). Habeas corpus — Appeal from dismissal.
Approved In The Japanese Immigrant Case, 189 U. S. 98, 23 Sup.
Ct 613, 47 L. 725, refusing to review decision of executive officers
excluding alien from country, where proper hearing had; In re
Count De Toulouse Lantrec, 102 Fed. 879, reviewing, upon habeas
corpus, commissioner having jurisdiction of accused and subject-
matter, whether legal evidence of facts sufficient to Justify con-
clusion.
Syl. 6 (XI, 588). United States — Common-law crimes.
Approved In Wright v. Henkel, 190 U. S. 59, 23 Sup. Ct 785, 47
L. 954, holding under extradition treaty, act must be crime by both
countries, 1. e., by law of State wherein found, not by acts of
Congress.
Syl. 9 (XI, 588). Forgery by printing or stamping.
Approved in In re (Ik>unt De Toulouse Lantrec, 102 Fed. 881,
declaring person guilty, issuing, as genuine, copies of bonds and
coupons made by engravers as samples.
127 U. S. 471-482, 32 L. 172, GLACIER MIN. CO. v. WILLIS.
SyL 1 (XI, 589). Ejectment — General description sufficient
Approved in Walsh v. Erwin, 115 Fed. 536, holding claim, suf-
ficiently designated to enable surveyor to ascertain exact limits of
location, sufficient
Syl. 4 (XI, 589). Mines — Allegations of adverse possession.
Approved in Buffalo Zinc, etc., Co. v. Cuimp, 70 Ark. 538, 69
S. W. 576, 91 Am. St Rep. 96, holding adverse possession of min-
ing claim on government land for longer than statutory period of
limitation renders claim valid against all except government.
SyL 5 (XI, 589). Mines — Ejectment — Excessive location.
Approved In Gohres v. Illinois Min. Co., 40 Or. 519, 67 Pac. 667,
holding excessive location of mining ground, through mistake
and in good faith, void only as to excess.
127 U. S. 482, 483, 32 L. 210, HEGLER v. FAULKNER.
SyL 1 (XI, 580). Removal — Record must show order.
Approved in dissenting opinion in Gibbs v. Gibbs, 26 Utah, 428,
73 Pac. 658, court holding defendant's appearance and failure to
object to action being tried in county where adultery committed
waived objections to court's Jurisdiction.
Vol. 11 — 66
127 U. S. 484-^507 Notes on U. 8. Reports. 1042
127 U. S. 484-489, 32 L. 189, JENKINS v. INTERNATIONAL
BANK.
Syl. 1 (XI, 589). Equity — Supplemental bill — Limitations.
Approved in Mellor v. Smither, 114 Fed. 120, holding original bill
stating cause of action, material facts occurring after bill filed
may be brought in by supplemental bill.
127 U. S. 489-494, 32 L. 179, TAYLOR v. HOLMES.
Syl. 1 (XI, 589). Corporations! — Stockholders suing for.
Approved in Savings, etc., Co. v. Bear Valley Irr. Co., 112 Fed.
704, denying stockholder right to question deed of company in
absence of proof that corporation failed, after proper application,
to bring suit; Fry y. Rush, 63 Kan. 438, 65 Pac. 704, denying stock-
holder's suit to set aside deeds and assignments of corporation's
property by receiver, no allegation that stockholder in good faith
and without success sought action by directors.
Distinguished in Tevis v. Hammersmith, 31 Ind. App. 283, 287,
66 N. E. 80, 81, sustaining stockholder's suit against officer of cor-
poration for selling corporation's goods for own benefit without
showing demand upon directors, fact showing such demand useless.
127 U. S. 494-507, 32 L. 163, FREEM^MAN'S SAVING CO. Y.
SHEPHERD.
Syl. 2 (XI, 590). Mortgagees — Right to rents and profits.
Approved in Atlantic Trust Co. v. Dana, 128 Fed. 218, 219, hold-
ing mortgagee, under mortgage of income beginning foreclosure
suit against corporation, and intervening in receivership suit, en-
titled to income earned by receiver thereafter; American, etc., Co.
V. Home Water Co., 115 Fed. 176, holding weight of authority
against mortgagee, under mortgage of rents, maintaining actdon
for rents, before possession taken or receiver appointed; North?
American Trust Co. v. Burrow, 68 Ark. 586, 60 S. W. 951, denying
purchaser at foreclosure sale right to recover from mortgagor in
possession rents and profits accrued during period of redemption,
no demand made.
Syl. 4 (XI, 590). Mortgages — Mortgagor insolvent — Receiver.
Approved in Bagley v. Illinois Trust, etc., Sav. Bank, 199 111. 79,
64 N. B. 1086, holding mortgage stipulation for appointment of
receiver to collect rent during pendency of suit created valid lien
upon rent, enforceable without regard to mortgagor's insolvency.
Syl. 6 (XI, 590). United States — Assignments — Rev. Stat,
§ 3477.
Approved in Thayer v. Pressey, 175 Mass. 233, 234, 235, 56 N.
B. 6, 7, sustaining, in suit to enforce trust to money received
from United States, validity of assignment by patentee of any
and all claims for past infringements; Fewell v. Surety Co., 80
Miss. 791, 28 So. 756, 92 Am. St Rep. 628, refusing defense of
1043 Notes on U. S. Reports. 127 U. 8. 507-657
assignment, action between parties to assigned contract as to pro-
ceeds thereof.
127 U. S. 507-517, 32 L. 203, ROBERTSON v. SICHBL.
SyL 2 (XI, 591). Public officers — Subordinate's malfeasance.
Approved in Bigby v. United States, 188 U. S. 406, 23 Sup. Ct
471, 47 L. 523, denying action against United States to recover
damages for injuries received by fall from government elevator
operated by employee of government; Bankers* Mutual C. CJo. v.
Minneapolis, etc., Ry. Co., 117 Fed. 439,. 440, denying recovery
against railroad company, carrying mails for United States, for
negligence of employee in losing registered letter; Boston Ins. Co.
V. Chicago, etc., Ry. Co., 118 Iowa, 433, 92 N. W. 92, denying
railroad company's liability to individual, under contract with
government to carry mails, for loss of letter, company furnishing
suitable cars and competent employees.
127 U. S. 51&-532. 32 L. 191. STUART v. GAY.
SyL 2 (XI, 591). Mortgages — Foreclosure purchaser — Proceeds.
Approved in Columbus, S. & H. R. R. Co. Appeals, 109 Fed.
204, holding reorganized corporation purchasing property of in-
solvent company at foreclosure sale takes same free from debts
and liabilities of old corporation.
127 U. S. 532-539. 32 L. 210, EASTON v. GERMAN, ETC., BANK.
Syl. 5 (XI, 592). Mortgages — Creditors purchasing at sale.
See note in 92 Am. St Rep. 581.
127 U. S. 540-557, 32 L. 223, CALLAN v. WILSON.
Syl. 2 (XI, 592). Trial by Jury.
Approved in dissenting opinion in Hawaii v. Mankichi, 190 U. S.
226, 23 Sup. Ct 794, 47 L. 1026, sustaining conviction of one tried
on information and convicted by Jury not unanimous. In accord-
ance with legislation of Hawaii Republic at time of annexation.
Syl. 5 (XI. 592). District of Columbia — Trial by Jury.
Approved in dlssentiug opinion In Downes v. Bldwell, 182 U. S.
361, 362. 45 L. 1135. 21 Sup. Ct. 815, 816, court holding constitutional
provision providing for uniformity of duties, imposts and excises^
not extending to Porto Rico; dissenting opinion in Maxwell v.
Dow, 176 U. S. 609, 44 L. 608, 20 Sup. Ct 4^. majority sustaiuiuj>
conviction and subsequent imprisonment of person accused as crimi-
nal by Jury of eight persons instead of twelve.
Syl. 8 (XI, 593). Trial by Jury attaches from beginning.
Approved in In re Cox, 129 Mich. 637, 89 N. W. 440, denyiug
right to trial by Jury, one charged with violating city ordinance
regulating use of public places; D^^laney v. Police Court 167 Mo.
678, 67 S. W. 592, denying, under Kansas City ordinances, right
127 U. S. 557-607 Notes on U. S. Reports. lOM
to trial by Jury, one charged with drunkenness and disorderly
conduct; State v. Kennan, 25 Wash. 623, 626, 66 Pac. 63, upheld-
Ing ordinance denying trial by jury to persons violating city or-
dinance against disorderly conduct; Ogden v. Madison, 111 Wis.
430, 87 N. W. 573, sustaining summary prosecution by city to
recover penalty imposed by ordinance against maintaining disorderly
houses.
(XI, 592). Miscellaneous.
Cited in concurring opinion in Downes v. Bidwell, 182 U. S.
293, 45 li. 1109, 21 Sup. Ct 789, to point that determination of
particular provision of Constitution applicable to territory de-
pends upon situation of territory and its relation to United States;
Downes v. Bidwell, 182 U. S. 262, 45 L. 1096, 21 Sup. Ct 777, hold-
ing Porto Rico not part of United States within constitutional pro-
vision declaring all duties, imposts and excises shall be uniform
throughout United States.
127 U. S. 557-672. Not cited.
127 U. S. 572-^78, 82 L. 201, ARTHUR v. VICTOR.
(XI, 594). Miscellaneous.
Cited in Knowlton v. Moore, 178 U. S. 93, 44 L. 990, 20 Sup. Ct
768, to effect that uniformity required by Constitution, with refer-
ence to duties, imposts and excises, relates to geographical uni-
formity.
127 U. S. 579-589. 32 L. 262, BROWN v. DISTRICT OP COLUMBIA.
(XI, 595). Miscellaneous.
Cited in Snook v. City of Anaconda, 26 Mont 135, 66 Pac. 758,
affirming Judgment awarding damages against city for injuries
caused by negligent omission to keep street in repair.
127 U. S. 589-596, 32 L. 271, ALLEN v. GILLETTE.
Syl. 1 (XI, 595). Trustee purchasing at own sale.
See note in 80 Am. St Rep. 555.
Syl. 3 (XI, 595). Trusts — Trustee purchasing property.
Approved in McMillan v. Harris, 110 Ga. 83, 78 Am. St Rep.
103, 35 S. E. 338, holding not against public policy for persons en-
titled to proceeds of land, sold by executor, to engage third person
to run price of property up; Fleming v. McCutcheon, 85 Minn. 154,
156, 88 N. W. 434, 435, sustaining administrator's right, holding
mortgage upon estate, to foreclose same and purchase in good
faith premises for full amount due upon mortgage; Tenison v.
Patton, 95 Tex. 291, 67 S. W. 94, holding trustee not liaole for
profits made, after land sold, under agreement with purchaser to
manage and sell same.
127 U. S. 597-607. Not dted.
1045 NQtes on U. S. Reports. 127 U. S. 607-649
127 U. S. 607-614, 32 L. 269. ROBERTSON v. DOWNING.
Syl. 3 (XI, 596). Statutes — Departmental constru.ction.
Approved in United States v. Townsend, 113 Fed. 443, construing
statute in accordance with earlier practice of treasury department
and holding *' professloi^il productions of sculptor" synonymous
with " productions of professional sculptor;** Nunn ▼. Gerst Brew-
ing Co., 99 Fed. 942, following treasury department's practice of
thirty years with reference to time of discount upon purchases
of beer stamps; United States t. Hensel, 98 Fed. 419, following
uniform practice of treasury department, and holding ** paintings,"
not including frames, frames dutiable as manufactures in wood.
Distinguished in Fairbanls t. United States, 181 U. S. 308, 310,
45 L. 873, 21 Sup. Gt. 658, 659, holding stamp ta^ on foreign bill
of lading in substance and effect tax on articles included therein,
legislative action notwithstanding.
Syl. 4 (XI, 597). Custom duties — Time of protest.
Approved in Sgobel v. Robertson, 126 Fed. 578, holding protest
against excessive exactions of duty, filed at time of reliquidation
of entry, within time, though not filed at time of original liquida-
tion; In re Brown, Durrell & Co., 121 Fed. 606, holding time for
protest runs from act of collector imposing final duty upon re-
liquidation proceedings.
127 U. S. 614-621, 32 L. 289, ST. ROMBS v. LEVEE, ETC.,
PRESS CO.
Syl. 3 (XI, 597). Corporation negligently canceling stoclc — Lia-
bility.
Approved in Geyser, etc., Min. Co. v. Stark, 106 Fed. 560, hold-
ing corporation liable for negligence, canceling certificates of stock
and transferring same upon trustee's signature without inquiry for
cestui que trust.
127 U. S. 622-640. Not cited.
127 U. S. 640-649, 32 L. 311, LELOUP v. PORT OF MOBILE.
Syl. 1 (XI, 598). License tax prerequisite to doing business.
Approved in Fairbank v. United States, 181 U. S. 297, 45 L. 868,
21 Sup. Ct 654, holding stamp tax on foreign bill of lading a tax
on articles included therein and void; State v. Allgeyer, 110 La.
840, 34 So. 799, holding license tax upon business of buyer of cotton
for export duty upon exports, and invalid.
SyL 2 (XI, 598). Taxation — Interstate telegraph companies.
Approved in Cumberland & Pa. R. R. v. State, 92 Md. 684, 48
Atl. 507, upholding State franchise tax upon gross receipts of rail-
road, amount of tax measured by number of miles of road within
Btata.
127 U. S. 640-649 Notes on U. S. Reports. 1<M0
Syl. 3 (XI, 596). Commerce — Telegraphing between States.
Approved in Lottery Case, 188 U. S. 352, 23 Sup. Gt 325, 47 L.
499, upholding congressional legislation prohibiting interstate traffic
in lottery ticl^ets; Southern Exp. Co. v. Mayor, etc., of Ensley, 116
Fed. 758, declaring city ordinance requiring express company doing
local and interstate business to pay license fee, making same con-
dition to do business, unconstitutional.
Syl. 4 (XI, 599). Commerce — Interstate telegraph companies —
State tax.
Approved in Williams v. Fears, 110 Ga. 589, 35 S. E. 700, up-
holding tax upon emigrant agent engaged in hiring laborers within
State for employment outside same.
SyL 5 (XI, 999). Interstate commerce — State taxation.
Approved in Allen v. Pullman Co., 191 U. S. 179, declaring State
law imposing certain sum per annum per car applicable to cars
running through State repugnant to Constitution; Stockhard v.
Morgan, 185 U. S. 34, 46 L. 793, 22 Sup. Gt 579, denying State
right to tax people representing nonresidents for privilege of
soliciting orders for goods to be shipped within State; Ex parte
Green, 114 Fed. 960, denying validity of city ordinance imposing
license tax on itinerant peddlers so far as applicable to agent of
nonresident, soliciting orders for goods to be shipped within State;
Kehrer v. Stewart, 117 Ga. 975, 44 S. E. 856, upholding tax upon
occupation of resident agent receiving goods from nonresident
and selling same in open market, denying same as to goods received
and delivered directly to customers; People v. Bunker, 128 Mich.
1(53, 87 N. W. 91, declaring ordinance Invalid so far as applying
to agents of nonresidents going from place to place soliciting orders
for sale by sample; In re Wilson, 10 N. Mex. 36, 60 Pac. 75, de-
claring territorial statute, imposing license fee as condition to
sell coal oil, unconstitutional as far as applies to sales by import-
ers in original packages; State v. Northern Pac. Exp. Co., 27 Mont
426, 71 Pac. 40G, holding interstate express company not liable to
State occupation tax; Turner v. State, 41 Tex. Cr. 548, 55 S. W.
835, holding nonresident traveling salesman soliciting orders for
nonresident firm not liable to State occupation tax; Adkins v. Rich-
mond, 98 Va. 95, 96, 34 S. E. 968, holding license tax upon resident
agent soliciting orders for and forwarding same to nonresident
principal, receiving commission therefor, unconstitutional; dissent-
ing opinion in People v. Knight, 171 N. Y. 371, 64 N. E. 158, court
holding property employed by interstate railroad in cab service,
operating wholly within New York city, subject to State taxation.
Distinguished in Western Union Tel. Co. v. Missouri ex rel. Gott-
lieb, 190 U. S. 424, 23 Sup. Ct. 733, 47 L. 1121, sustaining State
tax on telegraph company, nominally tax on capital stock, in effect
tax on property owned within State, proportion of lines within
State to entire length basis of valuation; Atlantic, etc., TeL Co.
1047 Notes on U. S, ReporU. 127 C. ;
T. Philadelphia, 190 C. S. 162. 163, 23 Sup. Ct. 817. 81S. 47 L. 999,
holJlns municipal government may Impose reasonable charge lor
police supervlBion upon Interstate telegraph coropaniea.
Syl. 6 (XI, 600). Taxation — Telegraph company's property
within State.
Approved Id Atlantic, etc., TeL Co. v. Philadelphia, 190 U. S. 163.
23 Sup. 818. 47 L. 999. holding municipal government may impose
reasonable charge for police supervision upon Interstate telegraph
companies; State v. Rocky Mountain Bell Tel. Co., 27 Mont. 404,
71 Pac. 314, upholding license tax o( BeventJ-tive cents upon every
telephone In use In State, though company also engaged In Inter-
state tramc; State v. Western Union Tel. Co., 165 Mo. 522. 65 S.
W. 779, holding telegraph company's (ranchlae taxable Impressed
upon tangible property and taxed upon relation property within
State bears to entire property; Postal Tel. Co. v. Richmond, 99 Va.
ItrZ. 86 Am. SL Rep. 881, 37 S. B. 791. upholding city's power to Im-
pose license fee upon telegraph companies, such fee not In excess of
tax upon property within city limits by ordinary modes of taxation.
Distinguislied In In re Appeal of Union Tank Line Co., 204 111.
350. 68 N. B. 505, holding cars of foreign corporation in transit
through State, to be returned when not In use. not subject to taxa-
tion by said State.
(XI, 598). Mtaceltaneoas.
Cited in Cumberland & Pa. R. B. v. State. 92 Md. 687, 48 AO.
B09. to effect, principal case ovemiled (Osborne v. Mobile. 16 Wall.
479).
127 U. S. 649-6C1. Not cited.
127 U. S. 601-668. 32 L. 308, TRAVELERS' INS. CO. v. McCONKBY.
Syl. 3 (XI, 602). Insurance policy construed In insured's favor.
Approved In Mutual Life Ins. Co. v. Kelly, 114 Fed. 278. con-
struing agreements in application with tliose In policy proper to
determine true Import and meaning of contract of Insurance; Camp-
l)dl T. Fidelity, etc.. Casualty Co, of New York, 109 Ky. 072, 60
8. W. 495. holding beneflclarj not barred from recovering under
policy, excepting voluntary exposure, If assured killed while as-
saulting person, unaware of danger; dissenting opinion in McMaster
V. New York Life Ins. Co., 09 Fed. 878, court holding Interlinear
tlon In application made without insured's knowledge Immaterial,
Insured accepting policy Hubscquentty Issued. See note tn 05 Am.
St. Rep. 380.
Syl. 1 (XI, 601). Insurance against external violence — Suicide.
Approved in Taylor v. Pacific Mut. L. I. Co.. 110 Iowa. 623. 82
N. W. 327. holding charge placing burden of proof upon Insurance
company to show injury not accidental error; Laessig v. Travel-
ers' Protective Assn., 169 Mo. 280, CO S. W. 471, holding in suit
127 U. S. 661-<SG8 Notes on U. S. Reports. 1018
upon accident insurance policy, proof of accident must be made,
death alone insufficient; Maryland, etc., Co. y. Glass, 29 Tex. Cir.
161, («7 S. W. 1063, relieving company from liability, under policy
insuring against death, through external, violent and accidental
means, including anaesthetics, insured dying while operated on for
appendicitis.
Syl. 5 (XI, 602). Insurance — Suicide — Self-destruction not pre-
sumed.
Approved in Standard Life, etc., Ins. Co. v. Thornton, 100 Fed.
586, holding in action upon accident policy, excluding liability for
death by suicide, burden rests upon insurer to prove defense of
suicide; Sharland v. Washington Ldfe Ins. Co., 101 Fed, 213, 214,
sustaining instruction as sufficient, that presumption of law is
against suicide, insured found dead in room under circumstances
indicating suicide; Jenkin v. Pacific, etc., Ins. Co., 131 Cal. 124, 63
Pac. 181, reversing order denying new trial, finding death not
accidental, against legal presumption, insured dying from gunshot
wound; Supreme Lodge, etc. v. Foster, 26 Ind. App. 347, 59 N. E.
882. sustaining instruction that Jury could properly consider in-
stinctive love of life, in determining defense of suicide proved;
Modern Woodmen of America v. Kozak, 63 Nebr. 156, 88 N. W.
251, holding burden upon insurer to prove insured, found with bul-
let-hole in head, committed suicide. See note in 84 Am. St Rep. 540.
Distinguished in Sovereign Camp v. Haller, 24 Ind. App. Ill,
56 N. E. 256, holding evidence excluded any other hypothesis of
death by any other cause than suicide by drowning.
Syl. 7 (XI, (503). Insurance, excepting Intentional Injury.
Approved In Matson v. Insurance Co., 93 Me. 473, 74 Am. St Rep.
369, 45 Atl. 519, denying recovery, under policy excepting " inten-
tional injuries," where insured intentionally Injured by another,
although precise injury not intended.
Syl. 8 (XI, (JOS). Insurance — External and accidental death —
Suicide.
Approved in Clarke v. Equitably Life Assur. Soc, 118 Fed. 377,
denying recovery under policy, excepting self-destruction, sane or
insane. Insured taking own life, regardless of mental condition;
Mutual Life Ins. Co. v. Kelly, 114 Fed. 281, sustaining validity
of covenant, in life insurance policy, that insured will not die by
own act while insane; Seitzinger v. Modern Woodmen, 204 111.
62. 63, 68 N. E. 479, 480, holding company relieved from liability
under policy, excepting suicide, sane or insane, by insured com-
mitting suicide, regardless of mental state; dissenting opinion In
Latimer v. Woodmen, 62 S. C. 160, 40 S. E. 160, court denying
recovery by beneficiary, under policy excepting suicide, sane or
insane, regardless of Insured's mental condition at time of suicide.
See note in 84 Am. St Rep. 551, 552.
11M9 Notes on U. S. Reports. 127 U. S. 6e&-^99
127 U. S. CG8-677, 32 L. 314, NICKERSON v. NICKBRSON.
Syl. 1 (XI, 604). Specific performance — Court's discretion.
Approved In Washington Irr. Co, v. Krutz, 119 Fed. 288, enforc-
ing contract against irrigation company to convey water rights,
eo"taplainant conveying property to company in consideration thereof;
Newton v. Wooley, 105 Fed. 545, refusing specific performance of
contract to convey stocls, enforcement operating as hardship on
defendant
Syl. 3 (XI, 604). Specific performance — Agreement not clear.
Approved in Pressed Steel Car Co. v. Hansen, 128 Fed. 446, de-
nying performance, evidence insufficient to establish contract to
assign employer all patent rights on inventions made in course of
employment,
127 U. S. 678-609, 32 L. 253, POWELL v. PENNSYLVANIA.
Syl. 1 (XI, 604). Fourteenth Amendment ~ States — Police
power.
Approved in Dobbins v. City of Los Angeles, 139 Cal. 183, 72
Pac. 971, upholding municipal ordinance, directing erection and
maintenance of gasworks within certain defined limits; Young
V. Commonwealth, 101 Va. 863, 45 S. B. 329, denying State*»
power to prohibit use of trading stamps given by merchants to
customers.
Distinguished in In re Wilson, 10 N. Mex. 86, 60 Pac. 75, declar-
ing territorial statute imposing license fee as condition for sale of
coal oil unconstitutional as applied to sales by Importer in original
packages.
Syl. 3 (XI, 605). Fourteenth Amendment — Trade and property
rights.
Approved in Bessette v. People, 193 111. 344, 62 N. E. 218, de-
claring unconstitutional State law, regulating occupation of horse-
shoeing, requiring four years' experience, examination by board
and payfnent of license fee to practice same; Ruhstrat v. People,
185 111. 138, 76 Am. St. Rep. 32, 57 N. E. 43. declaring State law
prohibiting use of national flag as advertisement unconstitutional;
Street v. Vamey, etc., Co., 160 Ind. 345, 66 N. E. 807. declaring
minimum wage law, fixing minimum rate of wages to be paid to
unskilled laborers upon public work, unconstitutional. See note,
86 Am. St. Rep. 313.
Syl. 4 (XI, 605). Constitutional law — Statutes presumed con-
stitutional.
Approved in Fair Haven, etc., U. K. t. Fair Haven, 75
Oonn. 451, 53 Atl. 964, upholding act authorizing municipality
to tax railroad companies for cost of paving portion of street
occupied by tracks; State v. Dal ton. 22 R. I. 82, 46 Aa 235,
127 U. S. 700-718 Notes on U. S. Reports. 1050
holding act prohibiting merchants giving trading stamps to pur-
chasers unconstitutional.
Syl. 5 (XI, 606). Adulterated food — State legislation.
Approved in State v. Crescent Creamery Co., 83 Minn. 286, 86
N. W. 108, upholding State law prohibiting sale of cream containing
less than 20 per cent, of fat.
Syl. 6 (XI, 606). Police power — Legislature's determination of
necessity.
Approved In California Reduction Co. v. Sanitary Reduction
Works, 126 Fed. 35, upholding ordinance granting private c(»po-
ration exclusive monopoly of removing and disposing of garbage;
Commonwealth v. Pear, 183 Mass. 247, 66 J>^. E. 721, upholding law
authorizing board of health to require vaccination of inhabitants
and impose $5 fine for violation thereof.
Syl. 11 (XI, 607). State statutes — Prohibiting oleomargarine.
Approved In Capital City Dairy v. Ohio, 183 U. S. 246, 46 L. 176,
22 Sup. Ct. 123, upholding State statutes prohibiting sale and manu-
facture of oleomargarine; Austin v. Tennessee, 179 U. S. 347, 45
L. 228, 21 Sup. Ct. 133, sustaining legislature's power to prohibit
sale of cigarettes after taken from original packages; Iowa v.
Schlenker, 112 Iowa, 647, 650, 84 N. W. 609, 700, upholding act
imposing fine for the sale of adulterated milk; State v. Rogers, 95
Me. 100, 49 Atl. 566, upholding statute prohibiting manufacture
and sale of oleomargarine or butterine in form and color tending to
deceive public; State v. Lay ton, 160 Mo. 494, 61 S. W. 175, uphold-
ing law prohibiting manufacture or sale of articles used in prepa-
ration of food containing certain specified ingredients, although
law designed to suppress certain baking powder in general use;
Crossman v. Lurman, 171 N. Y. 333, 63 N. E. 1099, upholding law
prohibiting adulteration in foods, whereby damage is concealed
and article made to appear better than it really is, or of greater
value. See notes, 85 Am. St Rep. 402; 78 Am. St Rep. 257.
127 U. S. 700-718, 32 L. 283, MAHON v. JUSTICE.
Syl. 4 (XI, 608). Extradition — Unlawful abduction into indicting
State.
Approved in Adams v. New York, 192 U. S. 596, 24 Sup. Ct 374,
holding papers pertinent to issue, although illegally taken from
possession^of party against whom offered, admissible in evidence;
People V. Hyatt, 172 N. Y. 181, 64 N. E. 826, 92 Am. St Rep. 709,
holding State's power to punish fugitive from Justice not depend^
ing upon manner custody obtained; Schmulbach v. Speidel, 50
W. Va. 5G8, 40 S. E. 430, upholding election of officer, although
certain members of council arrested and brought to meeting to con-
stitute quorum.
1051 Notes on D. S. Reports. 127 U. S. 71J^-780
Syl. 5 (XI, 609). Criminal law — Jurisdiction — Manner accused
apprehended.
Approved in In re Grin, 112 Fed. 794, holding United States com-
missioner's jurisdiction to examine and commit one committing
crime in foreign country not dependent on fact he issued warrant
of arrest
127 U. S. 719-730, 32 L. 299, SEWALL v. HAYMAKER.
Syl. 1 (XI, 609). Husband and wife — Conveyance — Acknowl-
edgment
Approved In Morgan v. Snodgrass, 49 W. Va. 389, 38 S. B. 695,
upholding deed of husband and wife for wife's separate estate, duly
executed, acknowledged and delivered as between parties, though
not recorded.
127 U. S. 731-764, 32 L. 274, IN RE COY.
Syl. 3 (XI, 609). State elections — Congress' power over.
Approved in Files v. David, 118 Fed. 467, holding, under Rev.
Stat, § 915, Circuit and District Courts afTord same remedies by at-
tachment in common-law causes as provided by State laws where
courts held.
Distinguished in dissentiug opinion in Giles v. Harris, 189 U. S.
491, 23 Sup. Ct 648, 47 L. 914, court denying jurisdiction of Circuit
Court of suit in equity to compel board of registrars to enroll
names of certain negroes upon voting lists of county.
SyL 4 (XI, 610). Courts — Jurisdiction — Release upon habeas
corpus.
Approved in McClaughry v. Deming, 186 U. S. 69, 46 L. 1058,
22 Sup. Ct 794, affirming Deming v. M'Claughry, 113 Fed.
650, releasing volunteer officer tried and convicted by court-martial
composed wholly of regular army officers; In re Nevitt, 117 Fed.
449, refusing to discharge judges of State court committed for
failure to comply with order of Federal court to levy tax to pay
Federal judgment; Rose v. Roberts, 99 Fed. 949, sustaining upon
habeas corpus military authorities' jurisdiction to carry out sen-
tence, imposed by court martial, of fine and imprisonment; In re
Application of Walker, 61 Nebr. 807, 86 N. W. 511, denying habeas
corpus to release petitioner from commitment to enforce judgment
of filiation. See note, 87 Am. St Rep. 169.
127 U. S. 764-780. Not cited.
127 U. S. 780, BELL TEL. CO. v. MISSOURL
(Miscellaneous).
Cited in State v. Telephone Co., 61 S. C. 95, 89 8. B. 262, to
point principal case dismissed by Supreme Court without hearing
upon authority of plaintiff In error.
CXXVIII UNITED STATES.
128 U. S. 1-26. 32 L. 346, KIDD v. PEARSON.
Syl. 1 (XI, 612). Liquor law as police regulation.
Approved in Austin v. Tennessee, 179 U. S. 347, 45 L. 227, 21
Sup. Ct 133, upholding Tenn. act 1897, chap. 30, prohibiting impor-
tation of cigarettes.
SyL 5 (XI, 613). Relation of manufacture to commerce.
Distinguished in Gibbs v. McNeeley, 118 Fed. 123, holding asso-
ciation of shingle manufacturers within particular State formed to
prevent overproduction and establish uniform prices, which by its
action closes mills of members, and arbitrarily raises prices, is com-
bination in restraint of interstate commerce within anti-trust law
of 1890.
Syl. 7 (XI, 614). Congressional power does not extend to manu-
facture.
Approved in Diamond Glue Go. v. United States Glue Co., 187
U. S. 617, 23 Sup. Ct 208, 47 L. 333, holding contract, under
which foreign corporation was to superintend factory within State
and handle its output, not relieved from operation of Wis. Stat.
1898, §§ 1770b, 4978, prohibiting foreign corporations from doing
business until copy of charter filed with secretary of State, be-
cause traffic might extend beyond State; Capital City Dairy Co.
V. Ohio. 183 U. S. 245. 46 L. 175. 22 Sup. Ct 123. upholding Ohio
act of 1887, relating to manufacture and sale of oleomargarine; Gibbs
V. M'Neeley. 102 Fed. 598, holding association of shingle manu-
facturers within particular State formed to prevent overproduc-
tion and establish uniform prices not illegal combination in restraint
of interstate commerce within an tl- trust law of 1890; reversed, 118
Fed. 123.
Syl. 8 (XI, 615). State may prohibit manufacture of liquor.
Approved in Jew Ho v. Williamson, 103 Fed. 20, holding void
San Francisco bubonic plague quarantine, where It was enforced
against all Chinese within quarantine district and against build-
ings occupied by them, but not against persons of other races or
their residences though within limits of quarantine district; Dan-
ville V. Hatcher. 101 Va. 527, 44 S. E. 725, upholding ordinance pro-
viding for closing of saloons within certain hours and prohibiting
screens or obstructions to view during closed hours; Farmvllle v.
Walker, 101 Va. 327, 43 S. E. 560, upholding act of 1901, chap. 113,
[1052]
1053 Notes on U. 8. Reports. 128 U. S. 2(W52
conferring on municipalities right to establish dispensary for sale
of liquors.
Syl. 10 (XI, 615). Scope of State police power.
Approved in California Reduction Co. v. Sanitary Reduction
Worlds, 126 Fed. 35, upholding exclusive contract made by San
Francisco supervisors for removal, collection and burning of garbage
in city for term of fifty years; Iowa v. Schlenker, 112 Iowa, 650,
84 N. W. 700, upholding Code, § 4989, imposing fine on sale of
adulterated milk; Miflfert v. Medical Board, 66 Kan. 720, 72 Pac.
250, upholding Laws 1901, chap. 254, regulating practice of medicine
and creating board of medical registration; dissenting opinion in
Rochester, etc., Co. v. Rochester, 176 N. Y. 62, 68 N. E. 124, ma-
jority upholding right of water company to extend its mains
through city street
Syl. 11 (XI, 616). When commerce commences.
Approved in Cornell v. Coyne, 192 U. S. 428, 24 Sup. Ct 385,
holding fact that quantity of filled cheese was manufactured ex-
pressly for export does not exempt it from tax imposed by 29
Stat 253.
128 U. S. 26-39, 32 L. 342, LEATHER MAN. BANK ▼. MER-
CHANTS* BANK.
Syl. 2 (XI, 617). Recovery by bank paying In ignorance of
forgery.
Approved in Crocker Woolworth Bank v. Nevada Bank, 139
Cal. 584, 72 Pac. 463, holding plaintifT bank did not aver that it
relied on representations of defendant bank as to its ownership
of check, finding that defendant represented Itself to be absolute
owner of check, and that plaintlfT had no notice that it was pre-
sented by defendant otherwise than as owner, is unwarranted.
Syl. 3 (XI, 617). Limitations on payment of forged check.
Approved in Richardson v. Bales, 66 Ark. 453, 51 S. W. 322,
holding action to recover money paid under mistake of fact is
barred in three years from date of payment if there was no fraudu-
lent concealment though mistake not discovered till year afterward.
128 U. S. 40-52, 32 L. 354, UNITED STATES v. BLACK.
Syl. 2 (XI, 617). Mandamus to compel discretionary executive act.
Approved in United States ex rel. Riverside Oil Co. v. Hitchcock.
190 U. S. 324, 23 Sup. Ct 701, 47 L. 1078, holding mandamus does
not lie to compel secretary of interior to vacate decision that se-
lection of land in lieu of land relinquished in forest reservation
is void; Keim v. United States, 177 U. S. 293, 44 L. 775, 20 Sup.
Ct. 575, holding action of secretary of interior In discharging clerk
for incompetency not reviewable by mandamus to reinstate clerk
or by compelling payment of salary as though he had not been
removed; Kimberlin v. Commission to Five Civilized Tribes, 104
128 U. S. 53-96 Notes on U. S. Reports. 105ft
Fed. 656, 657, 658, holding mandamus does not lie to correct errors
or control decisions of commission of five civilized tribes.
Distinguished in Roberts v. United States, 176 U. S. 290, 44 L.
446, 20 Sup. Gt. 379, holding mandamus lies to compel United
States treasurer to pay interest on credit certificates pursuant to
act of Congress of August 13, 1894.
128 U. S. 53-91. Not cited.
128 U. S. 91-96, 32 L. 339, KANE v. NORTHERN CENT. RY.
Syl. 1 (XI, 619). Direction of verdict where contributory negli-
gence proved.
Approved in Alasl^a SS. v. Collins, 127 Fed. 940, holding in action
for injuries to plaintilTs wharf, which was struck by defendant's
vessel, question whether wharf injured, by reason of negligence of
vessel's operatives, was for Jury;- Southern Pac. Co. v. Yeargin, 109
Fed. 442, holding question of contributory negligence of engineer
in failing to correctly interpret message from train despatcher relat-
ing to colliding train was for Jury; McGhee v. Campbell, 101 Fed.
940, holding question of contributory negligence for Jury where
foreman of section gang injured by collision between train and
hand car on which gang was going to work on dark morning;
Nelson v. New Orleans, etc., R. R. Co., 100 Fed. 738, holding ques-
tion of contributory negligence for Jury where hod-carrier struck by
train while carrying water across track to new depot; Thompson
V. Bartlett, 71 N. H. 177, 93 Am. St. Rep. 506, 51 Atl. 635, holding
servant not chargeable with negligence, as matter of law, if he
proceeds with work for which he was employed without inspec-
tion of safety of place or appliances; Coley v. North Carolina R. R.,
129 N. C. 414; 40 S. B. 198, holding whether enghieer is guilty of
contributory negligence in using drain pipe as grab-iron in trying
to get upon engine is for Jury; Danville v. Robinson, 99 Va. 459, 39
S. E. 125, holding question of plaintiff's contributory negligence in
going up walkway of bridge, which was in unsafe condition, was
for Jury.
Syl. 2 (XI, 619). Contributory negligence where danger obvious.
Approved in Mason, etc., R. R. Co. v. Yockey, 103 Fed. 269, hold-
ing where water escaped from locomotive tank owing to substitu-
tion of modern plug for safety-valve, and fell on iron apron con-
necting engine and tender, where it froze, creating icy covering on
which plaintiff slipped, question for Jury whether, on discovering
defect, it was plaintiff's duty to abandon engine; Chicago, etc., Ry.
Co. V. Price, 97 Fed. 431, holding dangers from defective track must
have been so obvious and threatening to servant engaged in oper-
ation of trains that reasonably prudent man in his situation would
have avoided them; Indiana, etc.. Oil Co. v. O'Brien, 160 Ind. 276,
65 N. E. 921, holding, in action for injuries caused by giving way
of temporary bridge erected by private corporation over excava-
J 055 . Notes on U. S. Reports. 128 U. S. 96-102
tlon in public street, where relation of master and servant does not
exist, plaintiff need not allege lack of knowledge of defects; Louis-
ville & Nashville R. R. v. Vestal, 105 Ky. 469. 49 S. W. 206.
holding where brakeman stepping on clinker lying at side of track
while engaged in performance of his duties, question of negligence
is for jury; Konold v. Rio Grande, etc., Ry., 21 Utah. 399, 60 Pac.
1025, construing insfructions as to assumption of risk in action by
employee for injuries received by explosion of defective boiler;
dissenting opinion In St Louis Cordage Co. v. Miller, 126 Fed. 5.17,
majority holding where girl had worked at machine at which she
was hurt for more than six months, she could not recover.
Distinguished in St Louis Cordage Co. v. Miller, 126 Fed. 498.
510, holding where girl had worked at machine at which she was
hurt for more than six months, she could not recover.
Syl. 3 (XI, 620). Negligence of brakeman.
Approved in Kilpatrick v. Grand Trunk Ry., 74 Vt 304, 93 Am.
St Rep. 807, 898, 52 Atl. 536, reaffirming rule; Lorenz v. B. C. R.
& N. Ry. Co., 115 Iowa, 380, 88 N. W. 836, holding where decedent
was struck by train at crossing while attempting to drive back
cow which had escaped, failure to look and listen was not con-
tributory negligence as matter of law; Frye v. Gas Co., 94 Me.
24, 46 Atl. 806, holding where fireman fell in hole dug by defend-
ant's servants and left open in front of boiler, question of defend-
ant's negligence in leaving hole uncovered is for jury.
128 U. S. 9a-102, 32 L. 352, NASHVILLE, ETC., RY. v. ALABAMA.
Syl. 2 (XI, 622). Commerce — Statute requiring examination of
eyesight
Approved in Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 517, 44
L. 869, 20 Sup. Ct 723, holding 111. act of 1874, requiring all
regular passenger trains to stop at county seats, constitutes burden
on interstate commerce in so far as it relates to interstate trains;
Kansas City, etc., Ry. v. Board of Railroad Comrs., 106 Fed. 357,
holding State cannot regulate railroad charges for carriage of goods
between points in State where course of transportation must be for
considerable distance through another State.
Syl. 5 (XI, 623). Due process — Requiring payment of examina-
tion fee.
Approved in Consolidated Coal Co. v. Illinois, 185 U. S. 207, 46
L. 876, 22 Sup. Ct G17, upholding III Sess. Laws 1897, p. 269, § lie,
by which coal mines where not more than five men are employed
are exempt from operation of act providing for appointment of
mining inspectors whose fees are paid by miueowners; Detroit,
etc.. Ry. V. Commissioner, 127 Mich. 229, 86 N. W. 846, holding
under Acts of 1893, No. 171, § 5, where steam railroad extends its
line across existing street-car line, railroad commissioners may re-
quire street railroad to pay portion of expense of constructing and
L2S U. S. 102-132 ^oteB on U. S. Reporto. 1066
tuaintaining safety appliances; People ▼. Lochner, 177 N. Y. 149,
GO N. E. 374, upholding Laws 1807, p. 485, cliap. 415, restricting
liours of labor in bakeries.
128 U. S. 102-128. 32 L. 350, UVINGSTON COUNTY ▼. POETS-
MOUTH BANK.
8yi. 1 (XI, 623). Ckinsolldatlon act applied to constructed roads
— Aid.
Approved in Board of Ck)mrs. ▼. Travelers' Ins. Ck>., 128 Fed.
821, holding N. O. Const. 1868, art 2, | 14, requiring acts creating
county debts to be passed in specified manner, did affect validity
of county bonds issued thereafter under authority of act previously
passed without such formalities.
Syl. 2 (XI, 623). Railroad aid bonds — Effect of consolidation.
iSee 80 Am. St Rep. 620, 631, 632, note.
128 U. S. 120-132, 32 L. 368, ASHER v. TEXAS.
<yL 1 (XI, 623). Commerce — Occupation tax on drummers.
Approved in Norfolk, etc., Ry. Co. v. Sims, 101 U. S. 450, hold-
ing where goods made in one State and shipped in original pack-
age in pursuance of order to person in another State, to be there
delivered on payment of price, seller not liable to license tax;
AtlauUc & Pacific Tel. Co. v. Philadelphia, 100 U. S. 162, 163, 23
Sup. Ct. 818, 47 L. 000, holding telegraph company, though engaged
in interstate commerce, may be compelled by municipality to pay
reasonable license fee for enforcement of local supervision of its
poles and wires; Caldwell v. North Carolina, 187 U. S. 627, 23 Sup.
Ct 231, 47 L. 330, holding void ordinance requiring license fee
from agent of nonresident portrait company, who receives from
such company pictures and frames manufactured by it to fill orders
previously obtained, and after breaking bulk and placing picture in
frame delivers it to purchaser; Stockard v. Morgan, 185 U. S. 34,
46 L. 703, 22 Sup. Ct 570, holding privilege tax imposed by Tenn. act
upon residents of that State as merchandise brokers, whose busi-
ness is exclusively confined to soliciting orders from jobbers and
wholesale dealers within State as agents for nonresidents for goods
to be shipped by such nonresidents to such dealers, is void; Ex parte
Green, 114 Fed. OGO, holding under city ordinance imposing license
tax on itinerant person traveling from residence to residence solicit-
ing orders for or selling goods directly or indirectly, one who was
agent for party living in another and goods sent direct from other
State to purchaser not liable for tax; Lowry v. Tile, etc., Assn.,
106 Fed. 43, holding Tile, Mantel & Grate Association of Cali-
fornia, which united all acceptable dealers in tiles, etc., in San
Francisco and vicinity, and all American manufacturers of tiles,
etc., was combination in restraint of trade and commerce in viola-
tion of anti-trust law of 1800, §§ 1, 2; Stone v. State, 117 Ga. 20(1
llfflT Notes ou D. S. Reports. US D. S. 129-132
43 S. E. 742, holdlDg traveling salesman for nonresldeat principal,
inaklDg executory contract for sale of goods, who, wben goods
slilpped, receives them In bulk, breaks original package and dis-
tributes tbem to purchaserB, Is engaged In interstate commerce;
Slate V. Hanaphy, 117 Iowa. 18. 90 N. W. 602, holding where travel-
ing salesman, whose principal was lu another State, sent liquor
order subject to latter's approval and liquor sent C. O. D. to buyer
by principal, salesman not liable to prosecution under Code, i 2382.
probiblting persons from soliciting orders for liquor; State v. Htckox,
64 Kan. 654. 6S Pac. 37. holding void State law placing restrictions
on taking of orders by nonresident salesman for liquors to be pur-
chased In and Imported from another State, and orders are sub-
ject to approval of principal; Gale Mfg. Co. v. Flnkelsteln, 22 Tex.
CIt. 242, 54 S. W. 619, holding In action by foreign corporation for
price of goods sold, petition need not show that plalntlH bad ob-
tained permit to do business In State as required by statute, where
it la shown that transaction was mall order and Interstate com-
merce; Klrkpatrlck v. State, 42 Tex. Cr. 461, CO S. W. 762. hold-
ing peddler of buggies employed by nonresident manufacturer,
who sells on order or for cash and buggy is shipped directly to
buyer or to order of company and thus delivered to buyer by em-
ployee, not liable for occupation tax; French v. State, 42 Tex.
Cr. 223, 58 S. W. 1015, holding peddler of organs for nonresident
principal not liable for occupation tax whore be sells as agent of
principal and delivers at purchaser's residence directly from bJs
wagon or as soon as shipped by company, he receiving payment
therefor, though he sold organ which he had previously left at
residence of third party; Turner v. State. 41 Tex. Cr. 048, 55
U. W. 835. holding nonresident traveling salesman soliciting orders
for wholesale drug house in another State, and selling same by
sample and delivering and collecting for same, not subject to occu-
pation tax; Talbtitt v. State, 39 Tes. Cr. 65, 44 8. W. 1001. holding
occupation tax on sale of lightning rods manufactured In another
State and sold upon orders taken by traveling agent Is void;
AdkluB V. Bichm'ond. 98 Va. 87, 34 S. E. 969, holding resident,
■oUcltlng orders by saiaple solely for nonresident owners, who for-
wards such orders and receives commission for sales, la engaged
In Interstate commerce and cannot be taxed by State or counlclpnl-
Ity. See 96 Am. St. Rep. 819, note.
Distinguished in Racine Iron Co. v. McCommons, 111 Ga. 540. 36
S. B. 867, holding State may impose license tax on traveling sales-
men for principals residing in other States, making executory
contracts for sale of goods, who, when goods shipped, receive tbem
in bulk, break package and distribute them to purchasers; Sauls-
bury V, State. 43 Tex. Cr. 93, 63 8. W. 569, 96 Am. St. Rep,
upholding statute requiring peddlers to take out license as to
peddlers of goods sent them by manufacturers In other States.
Vol II— 67
i
128 U. S. 132-173 Notes on U. S. Reports. 1068
Syl. 2 (XI, 625). Later conflicting decision overroles former.
Approved in dissenting opinion in Becker ▼. Chester, 115 Wis.
147. 91 N. W. 107, majority holding provision of express trust of
personalty, directing subject of trust to be delivered to beneficiaries
at expiration of lives in being at creation of estate and the added
common-law period thereafter, does not ofTend against perpetuities;
dissenting opinion in Harrington ▼. Pier, 105 Wis. 525, 82 N. W.
359, arguendo.
128 U. S. 132-134, 32 L. 369, GHAPPELL v. BRADSHAW.
Syl. 1 (XI, 625). Appeal — Objections not raised below.
Approved in Eastern Bldg. & Loan Assn. v. Welling, 181 U. 8.
49, 45 L. 741, 21 Sup. Ct 531, holding, on error to State court.
Supreme Ck>urt will not consider Federal question not raised bdow
nor examine record to see if question was necessarily involved;
DufTy V. Gleason, 26 Ind. App. 181, 58 N. E. 729, holding, under
U. S. Rev. Stat, I 563, limitation of liability pleaded in action
against individual owners of vessel for injuries sustained in col-
lision was not av&ilable.
128 U. S. 135-158. Not cited.
128 U. S. 158-170, 32 L. 890, CRESCENT BREWING CO. T. GOTT-
FRIED.
Syl. 1 (XI, 626). Patent for applying heated air to casks
anticipated.
Approved in Dececo Co. v. George B. Gilchrist Co., 125 Fed. 299,
upholding Frann and Neff patent No. 425, 416, for water closet;
Farrell v. Boston, etc., Copper, etc., Min. Co., 121 Fed. 846, holding
Mauher patent No. 470,644, for process for reducing copper ore,
void for lack of invention.
128 U. S. 171-173, 32 L. 389, LOVEJOY v. UNITED STATES.
Syl. 1 (XI. 627). Calling Jury from by-standers.
Approved in Sebeck v, Plattdeutscbe Volksfest Verein, 124 Fed.
18, holding, in action for injuries to spectator at amusement park
by discliarge of bomb, instruction that if defendant employed
men about whom they knew nothing to produce fireworks, they
did not exercise reasonable prudence, and then stating that Judge
did not think they did such thing but that that is for Jury to deter-
mine is not erroneous.
Syi. 2 (XI, 627). Federal court may express opinion on facts.
Approved in Lesser Cotton Co. v. St. Louis, etc., Ry. Co., 114
Fed. 142, applying rule in action for damages from fire caused by
sparks from passing locomotive; Nyback v. Champagne Lumber
Co., 109 Fed. 737, holding where question of fact is properly sul>-
mitted to Jury it is error to further charge that in opinion of Judge
Jury will not be Justified in finding such fact as alleged by plaintiff
because evidence on that question Is all on one side; Breese v. United
1069 Notes on U. S. Reports. 128 U. S. 174-182
States, 106 Fed. 686, holding expression of opinion by Judge that
defendant is guilty is not erroneous, where he has cautioned Jury
that they are sole Judges of facts and should not be governed by
opinion of court; Haun v. Rio Grande, etc., Ry., 22 Utah, 361, 62
Pac. 912, holding, in action for personal injuries at railroad cross-
ing, instruction that positive testimony of credible witnesses in
position to know whether signals given Is of higher order than
negative testimony of witnesses that they did not hear signals
Is erroneous, though Jury told that they were to determine whether
or not signals given.
128 U. S. 174-182, 32 L. 377, GEORGIA R. R., ETC., CO. v. SMITH.
Syl. 2 (XI, 627). Legislative regulation of carrier's rates.
Approved in Trammell v. Dinsmore, 102 Fed. 799, holding Georgia
railroad commission may prohibit express company from adding
cost of revenue stamp to maximum rate prescribed by it; Matthews
V. Board of Corporation Comrs., 97 Fed. 403, holding charter pro-
vision, authorizing directors to fix rates does not pass on sale of
company's property on foreclosure, though purchaser succeeds to all
rights, franchises and privileges of mortgagor.
Distinguished in Detroit v. Detroit Citizens' Street Ry. Co., 184
U. S. 387, 46 L. 607, 22 Sup. Ct 418, holding ordinance adopted
under legislative authority, providing that fares oh street cars
shall not exceed five cents, gives company, when accepted by it,
contract right to charge such rate, which cannot be rediiced with-
out its consent.
Syl. 3 (XI, 628). Railroads subject to regulation.
Approved in Chicago, Milwaukee, etc., Ry. v. Tompkins, 176
U. S. 173, 44 L. 420, 20 Sup. Ct. 338, holding reasonableness of rate
schedule for local business of railroad must be determined by
comparison between gross receipts and cost of doing business, and
cannot be determined until cost of doing business is ascertained;
Central Ry. Co. v. Murphy, 116 Ga. 866, 43 S. B. 266, upholding
Civ. Code, §§ 2317, 2318, requiring initial carrier to trace lost
freight; Detroit, etc., Ry. v. Commissioner. 127 Mich. 229, 86 N. W.
846, holding, under 2 Comp. Laws, § 6353, where railroad extends
lines across existing street-car track, railroad commissioner may
require street-car company to pay j)ortion of expense of construct-
ing and maintaining necessary safety appliances; dissenting opin-
ion in Louisville, etc., R. R. Co. v. Commonwealth, 108 Ky. 650. 57
S. W. 514, majority holding under Const.. § 215, relating to dis-
crimination by railroads, company may charge less for hauling coal
used for manufacturing purposes than it charges for hauling coal
used for domestic purposes.
Syl. 4 (XI, 629). Statutes — Significance of "provided."
Approved in Knoxville Water Co. v. Knoxville, 189 U. S. 436, 23
Sup. Ct 532, 47 L. 891, holding provision In contract between water
128 U. S. 182-212 Notes on U. S. Reports. 1060
company and municipality that company shall supply water to
private consumers at specified rate is not an implied undertaking
by municipality not to reduce them; Ghesapeal^e & Potomac Td.
Co. V. Manning, 186 U. S. 242. 46 L. 1146, 22 Sup. Ct 883, constru-
ing 30 Stat. 525, 538, regulating telephone rates in District of
Columbia; In re Scheld, 104 Fed. 871, holding, under bankruptcy act
1898, I 70, subd. 5, title to insurance policy having cash surrender
value vests in trustee notwithstanding it is exempt from execution
under State laws; Merwin v. Boulder County, 29 Colo. 177, 67 Pac
288, holding, under Laws 1891, p. 214, § 8, concerning fees, allowance
or disallowance of compensation to deputy district attorney is dis'
cretionary with county commissioners.
(XI, 627). Miscellaneous.
Cited in San Diego Land, etc., Co. v. Jasper, 110 Fed. 713, hold-
lug suit by company furnishing water to consumers for irrigation
purposes, to test validity of rates fixed by supervisors as required
by statute, is properly brought against board.
128 U. S. 182-184, 32 L. 395, LIGGETT, ETC., TOBACCO CO. T.
FINZER.
Syl. 2 (XI, 630). Trademarks.
Approved in Weyman v. Soderberg, 108 Fed. 65, holding '* KJoben-
havn Snus," on snuff jars, does not infringe trademark "Copen-
hagen," on snuff jars; Nicholson v. Stlckney Cigar Co., 158 Mo.
165, 166, 59 S. W. 123, holding there has been no infringement by
one manufacturer of cigars on trademark of another where there
is no such similitude between the two trademarks as would deceive
any one; Dennison Mfg. Co. v. Scharf Tag, Label, etc., Co., 121 Fed.
317, arguendo.
128 U. S. 185-189. Not cited.
128 U. S. 189-194, 32 L. 398, JASHUB v. NEW YORK.
Syl. 2 (XI, 630). Statute void as to some classes.
Approved in Kimball v. City of Cedar Rapids, 100 Fed. 803, hold-
ing fact that city, in contract for water, exceeded powers by
attempting to cohfer on company exclusive right to furnish water,
does not affect other provisions of contract.
128 U. S. 195-212, 32 L. 370, WASHINGTON CENT. BANK v.
HUME.
Syl. 1 (XI, 630). Fraudulent conveyance laws apply only to
consideration.
Approved in In re Slingluff, 106 Fed. 159, holding where endow-
ment policy on life of bankrupt, payable to him, with accumulated
dividends if he survives the term, which has no surrender value
but is assignable, passes to trustee under bankruptcy act, | 70a, cL 5,
lOOT
I r.
, Reports. 128 U. S. 195-211!
and latter may pay premiums as they mature, where policy will
mature before estate can be dosed.
Syl. 3 <XI, S30). Creditor has Insurable interest In debtor's life.
Approved in Farmers Sc Traders' Bank v. Johnson, 118 Iowa,
284, 91 N. W. 1073, holding where daughter designated as bene-
flclary in policy on father's life assigned It to secure loan to herself
and husband, she is estopped In subsequent action by lender to
enforce assignment to contend that policy was void because she
had no Insurable Interest in father'a life; Belknap v. Jobustou, 114
Iowa, 269, 86 N. W. 268, holding debtor may Insure in favor of
creditor,
SyL 4 (XI, 631). Creditor's rights on policy obtained by debtor's
Approved In Millard v. Brayton. 177 Mass. 540, B9 N, E. 437,
holding where Insurance on husband's life was payable to wife If
living, and If not to children, and husband signed application In
wife's name and paid premiums, and wife died before children
who were survived by husband, executor of dnugbter could not
recover of husband's administrator ber share of Insurance money,
Syl. 5 (XI. 631). Money due on policy belongs to beneficiary.
Approved In In re Holden, 114 Fed. 652, holding wliere husband
and wife were adjudged bankrupt, policy on husband's life payable
to wife If she survived, if not then to bis personal represeutatlves,
passed to trustees of each under bankniptcy act, i 70a, ci. 5, affirm-
ing In re Welling, 113 Fed. 193, holding where seml-tontiue policy
on bankrupt's life contracted to pay wife SIO.OOO on insured's death,
and provided that If three annual premiums paid and default there-
after made, proportional paid-up policy should be Issued to wife^
and gave Insured right at end of period to receive polk-y'B aceumn-
tated reserve, policy passed to trustee; In re West Norfolk Lumber
Co., 112 Fed. 764. holding proceeds of fire policy wblcb have been
pledged by owner of property to secure debt exceeding amount
of aucb proceeds Is no part of debtor's estate but belongs to
pledgee, and other creditors can claim no Interest therein; Kelley
V. Mutual Life Ins. Co., 109 Fed. 60, construing contract of insur-
ance containing dependent and Independent covenants; Haether v.
Mohr. 114 Iowa, 638, 87 N. W. 692, holding where life policy pro-
vided that company would pay amount of insurance " unto H., wife
of M., bis executors or aaslgna," word " his " referred to H.;
Laughlln v. Norcross, 9T Me. 34, 53 Atl. 835, holding will devising
all estate of which testator may die possessed passes policy of
Insurance in favor of testator though policy not In existence at
dale of will; Haskell v. Equitable Life Assur. Soc. 181 Mass. 343,
63 N. B. 900, holding where policy payable to mother If be dies in
twenty years, and If she Is dead to his estate, and to himself if he
Is living at expiration of period. Insurer not liable to Insured's bank-
i
128 U. S. 195-212 Notes on U. S. Reports. 1062
ruptcy trustee, though policy has cash surrender value, in absence
of showing that beneficiary had consented to surrender; Grego ?.
Grego, 78 Miss. 445, 28 So. 818, holding where wife is beneficiary
in policy on husband's life, court cannot divest her of property
therein because she has been guilty of conduct entitling husband
to divorce, though husband has paid premiums; Bank v. Williams,
77 Miss. 403, 78 Am. St Rep. 531, 26 So. 966, holding procurer of
insurance policy designating another as beneficiary lias no power,
without beneficiary's consent, to pledge it; United States Casualty
Go. V. Kacer, 169 Mo. 313, 69 S. W. 372, 92 Am. St Rep. 646, hold-
ing where policy provides that person named shall be beneficiary if
he survives assured, otherwise policy and money are to go to
assured's legal representatives, beneficiary takes vested interest
subject to be divested by his death prior to assured's death; Ship-
man V. Protected Home Circle, 174 N. Y. 408, 67 N. E. 86, and
Mutual Life Ins. Co. v. Kelly, 114 Fed. 274, both holding where
insured warranted in application not to die by his own act within
two years after issuance of policy, and covenanted that such
agreement should be consideration for policy, such agreement binds
beneficiary; Herring v. Sutton, 129 N. C. 109, 39 8. B. 773, hold-
ing where father who is guardian of children insures life for their
benefit, and sureties are influenced to sign guardian bond by
promise that policy was for protection of wards and sureties, no
trust raised for benefit of sureties; Ov«rhiser v. Overhiser, 63
Ohio St 82, 57 N. E. 966, holding when married woman is named as
beneficiary in policy on husband's life she is entitled to proceeds of
policy, notwithstanding she obtained divorce prior to his death;
D'Arcy V. Mutual Ldfe Ins. Co.. 108 Tenn. 576, 69 S. W. 770, holding
under life policy payable to wife if she should survive, otherwise to
children, children take severable and transmissible interests im-
mediately on delivery of policy, subject to be defeated by survivor-
ship of wife but not by transfer of policy by insured. See 87 Am.
St Rep. 498, 500. note.
Syl. 7 (XI. 631). Insurance — Statute as part of policy.
Approved in Mutual Life Ins. Co. v. Phinney, 178 U. S. 338, 44
L. 1093. 20 Sup. Ct 910. holding it is presumed that both parties
to contract knew law in respect to which they make it when they
agree that it shall be determined by laws of certain State; Mutual
Life Ins. Co. v. Hill, 97 Fed. 267. holding where insurance company
in New York issued policy on application made at and forwarded
from company's office in Washington, and proof of death and pay-
ment thereunder were to be made to and by New York office, policy
is New York contract.
Syl. 8 (XI, 632). Right of creditors to premiums on policy to
wife.
Approved in Masonic, etc.. Life Assn. v. Paisley, 111 Fed. 34,
holding where insured was Insolvent from time of procurement of
1063 Notes on U. 8. Rpporte. 128 D. S. 212-230
mutual policy payable to wife and children does not entitle cred-
itors to proceeds, tliongli he remained losolvait till death, where
there was no actual fraud.
S;l. 10 (XI, 632). Assignment of policy wheD iDsolveut as fraudu-
lent
See 87 Am. St, Rep. -188. 489, note.
Syl. 12 (XI, 632). Fraudulent intent Id gift to family.
Approved In Steele v. Buel, 104 Fed. 972, boldiug Insurance poli-
cies on life of bankrupt which were eiempt under Stale laws from
payment of debts did not pass to bankruptcy trustee; Barbour's
AUinr. V. Larne'8 AsBlgnee. etc. 106 Ky. 558, 81 S. W, 9. holding
until Insurance policy has been carried to point where under terms
of policy ItBelf It has value, It does not pass to assignee for benefit
of creditors under assignment of all " property, accounts or claims
not herein mentioned."
128 D. 8. 212-225, 32 L. 401, RIDINGS v. JOHNSON.
Syl. 4 <XI. 633). Equity appeal brings up whole case.
Approved In Hltz v, Jenks, 185 D. S. 170, 4C L. 857, 22 Sup. CL
604, holding deed of trust did aot confer power ou trustee to sell
property while In his poeaession as receiver, after appeal from de-
cree dissolving iDjunction restraining sale by trustee, by provision
of decree appointing trustee receiver, with power until Bale made
under deed of trust to take and hold property for certain designated
purposes; United States v. Bio Grande Dam & Irrigation Co., 184
U. S. 423, 40 L. 622, 22 Sup. Ct. 431, dlsmlsslitg suit b; United
States to enjoin creation of obstruction of navigable stream and
remanding cause for further hearing when material evidence is
absent from record because of failure of trial court to give gov-
ernment time to prepare case; In re Lipset, 119 Fed, 380, holding
referee In bankruptcy must take down all excluded testimony an.]
make same part of record together with rulings on objections and
the exceptions thereto; In re GottardJ, 114 Fed. 342. applying nils
to review by court of proceedings before referee In bankruptcy;
Coltran« v. Tempieton, 106 Fed. 378, holding order entered on In-
tervening petition of stockholders appointing resideut coreceiver to
act with receivers previously appointed on application of plalntlfT In
taking charge of property of corporation within district is not floal
appealable decree.
128 U. S. 225-230. 32 L. 437. BSTIS r. TRABUE.
Syl. 2 (XI, 034). Appeal from Joint Judgment
Approved In Loveless v. Ransom, 107 Fed. 627, reaffirming rule;
Kidder v. Fidelity Ins,, etc., Co.. 105 Fed. 823, holding where one of
several Interveners appeals and cites only complainant and receiver
of one of several defendants, appeal will be dismissed; Ayers v.
Polsdorfer. 105 Fed. 739, 740. holding where in ejectment nnder
i
128 U. S. 230-2G1 Notes on U. S. Reports. 1064
statute authorizing Joinder as defendants of all persons claiming
interest in land, and defendants severally pleaded title by distinct
title, writ of error by one defendant alone will be dismissed; Clayton
V. Sievertsen, 115 Iowa, 689, 87 N. W. 413, holding where land sold
to A., who executed purchase-money mortgage, and. thereafter land
conveyed to B., and in foreclosure against A. and B., B. filed cross-
claim and Judgment given for plaintiff for full amount, in appeal by
B., A. must be served with notice.
Distinguished in The New Yorit, 104 Fed. 564, 565, holding sureties
on stipulation for release of vessel seized in suit for collision need
not be Joined In appeal by claimant, whose sureties they are,
from Judgment in suit, though such Judgment is Joint in form
against stipulators.
128 U. S. 230-244. Not cited.
128 N. S. 244-254, 32 L. 425, BANKS v. MANCHESTER.
Syl. 1 (XI, 635). Equity — New matter in answer taken as true.
Approved in Barrett v. Twin City, etc., Co., Ill Fed. 46, 47, re-
viewing mode of objecting to sufficiency of answer in equity;
Stokes V. Famsworth, 99 Fed. 837, holding, in equity, legal suf-
ficiency of facts averred to constitute defense cannot be presented
on exceptions to answer for impertinence or on motion to strike
out defense.
Syl. 5 (XI, 636). Opinions cannot be copyrighted.
Approved in Dielman v. White, 102 Fed. 894, holding where artist
is given commission to execute work of art not In existence at
time commission executed, presumed that when executed, sold and
delivered under commission, it belongs unreservedly to patron,
who may make reproductions thereof.
128 U. S. 254-257. Not cited.
128 U. S. 258-261, 32 L. 448, CREDIT CO ▼. ARKANSAS CENT.
RY.
Syl. 1 (XI, 636). When appeal considered "taken."
Approved in In re McKenzie, 180 U. S. 546, 45 L. 661, 21 Sup. Ct.
472, holding supersedeas issued by Circuit Court of Appeals to
District Court after appeal allowed, citation signed and super-
sedeas bond approved, not void because appeal papers not filed with
District Court clerk till subsequent day; Chamberlain Transp. Co.
V. South Pier Coal Co., 120 Fed. 167, holding order granting leave
to file petition for and assignment of errors and subsequent approval
of appeal bond, reciting allowance of appeal is sufficient to show
allowance of appeal when petition filed; Pender v. Brown, 120 Fed.
497, holding Circuit Court of Appeals does not acquire Jurisdiction
of cause by writ of error unless writ and record are returned to
next term of court to which it is made returnable; Chow Loy v.
United States, 112 Fed. 356, applying principle to appeal from
)065 Notes on D. S. Reports. 123 U. 8, 2U2-272
commissioner's order of deportation nnder Chineae exclusion act
of ISSS; Anderson v. Coniptols, 109 Fed. 076, holding where appeal
has been regnlarly allowed, citation Issued and signed and soper-
Kedens bond approvetl, filed and served, Circuit Court of Appeals
may enforce obedience to Ita writ by contempt proceedings; dis-
senting opinion In McDaniel v. Stroud, 106 Fed. 492, majority re-
fusing to diemlaa appeal from order allowing bankruptcy claim,
though taken in name of other creditors, where trustee refused to
allow use of name and time bad so nearly expired that It was
Impossible to get order requiring him to consent; Norcross v. Nave
& MfCord Mercantile Co.. 101 Fed. 797, holding wliere appellant
within ten daya after adjudication prayed appeal therefrom, which
was allowed, and filed bond, but prayer for appeal. Its allowance
and citation and service thereon not filed in District Court till after
ten days, appeal was not "taken" within time limited by bank-
ruptcy act i 25a; Stroud v. McDaniel, 106 Fed. 494, arguendo.
Distinguished In Mutual Life Ins. Co. v. Phlnney, 178 C. S. 335,
44 L. 1092, 20 !5up. CL 909, holding failure of clerk of Circuit Court
of Appeals to Indotse writ of error as filed does not defeat transfer
of cause.
123 U. 8. 262-272, 32 L. 442, UNITED STATES v. PALMER.
SyL 1 (XL 637). Patents — Implied contract for compensation.
Approved in Bigby v. United States, 188 U. S. 408, 23 Sup. Ct.
471. 47 L. 524, denying jurisdiction of Federal court over action
for damages for Injuries to passenger in elevator In goremment
building sustained by reason of employee's negligence.
Distinguished In Russell v. United States, 182 U. S. B30, 531, 45
L. 1210. 21 Sup. Ct. 004, holding Implied contract to pay patentee for
infringement of patent by United States, on which claim can be
brought within jurisdiction of Court of Claims, does not arise from
fact patentee presented claim for infringement by gun adopted by
war department to ordinance department and also to commissioner
of patents.
Sj-I. 2 IXI, 637). Government appropriation of patentee's property.
Approved In United States v. Lynah, 188 U. S. 463. 23 Sup, Ct.
354, 47 L. 540, upholding Circuit Court's jurisdiction of suit against
United States to recover compensation for destruction of vnlue of
land as result of acta of officers lu Improving navigation; Sheriff
V. Turner, 119 Fed. 784. refusing to enjoin army officer acting
under orders of war department and puiauant to statute providing
for building of army post, from conslnicling sewer therefrom upon
landd over which government has right of way, at suit of owner of
laud lying below mouth of sewer and through which stream runs
into which It will discharge; United States v. Morgan, 99 Fed. 573,
holding where government lightship broke from moorings In storm
and was carried ont and signaled tug for assistance and tug, after
H
128 U. S. 273-314 Notes on U. S. Reports. 1086
repeated efforts to cast line to ber, succeeded In towing h&r to
wharf, tug was entitled to $1,200 for salvage service; Dick^rson v.
Sheldon, 98 Fed. 022, holding fact that infringing article has be^
seized and sold for violation of customs laws does not vest pur-
chaser, who buys with knowledge of its infringing character, with
any right to vend it as against owner of patent.
Syl. 3 (XI, 638). Court of Claims — Suit by patentee for com-
pensation.
Approved in United States ▼. Lynab, 188 U. S. 459, 23 Sup. Ct
362, 47 L. 644, upholding Circuit Court's jurisdiction over suit
against government to recover compensation for destruction of
value of land as result of acts of officers in improving navigation;
Dooley v. United States, 182 U. S. 229, 45 L. 1080, 21 Sup. Ct. 765.
holding action to recover back duties illegally exacted and paid
under protest upon imports into Porto Rico from New York is
within Jurisdiction of Circuit Court as Court of Claims, whether
exactions were tortious or not; International Postal Supply Co. v.
Bruce, 114 Fed. 613, denying jurisdiction over bill for Injunction
against infringement of stamp canceling machine used by post-
master under lease, where postmaster pleaded that he never person-
ally used machines, but that they were used by subordinates under
orders of post-office department, and rental of such machines paid
by order of department from government funds.
128 U. S. 273-289, 32 L. 429, MBANS v. DOWD.
Syl. 2 (XI, 638). Trust deed securing debts — Reservation of
possession.
Approved in Donk Bros. Coal, etc., Co. v. Klnealy, 81 Mo. App.
652, holding where trust deed of realty and personalty to secure
indebtedness authorized trustee, at his discretion, to continue busi-
ness and charge expense to trust fund, and to hold property in-
definitely, such instrument was fraudulent
128 U. S. 289-314, 32 L. 405, EX PARTE TERRY.
Syl. 3 (XI, 639). Circuit Court may punish contempts.
Approved in Ex parte McLeod, 120 Fed. 134, holding assault
upon United States commissioner, because of past discharge of
duty, is contempt of authority of court whose officer commissioner is.
Syl. 4 (XI, 639). Habeas corpus where court lacks jurisdiction.
Approved in In re Reese, 107 Fed. 949, holding habeas corpus
proper where one imprisoned for violating injunction sought on
ground that prisonel* not being party to cause was not subject to
jurisdiction of court in particular case.
Syl. 6 (XI, 640). Habeas corpus cannot review facts.
Approved in In re Nevitt, 117 Fed. 449, denying habeas corpus
to review commitment of county judges refusing to comply with
mandamus directing them to levy tax to pay^ judgment against
1067 Notes on U. S. Reports. 12S V. S. 315-373
conntr: dEsBentliis oplnioo Id Ex parte Dudcbd, 42 Tex. Cr. 676.
62 S. W. 763, 7C4, majority holding recitations Id Judgment for
contempt are not conclusive of (acts recited but may be subject
to attack on habeas corpus.
Syl. 8 (XI, 640). Inherent power to punish contempts.
Approved In Ex parte Stricter, 109 Fed. 148, holding person '
summarily adjudged guilty of contempt without hearing or ser-
vice upon bim of any process for act not committed in presence
oC court and imprisoned for nonpayment of fine Imposed Is deprived
of liberty without due process; In re Reese, 107 Fed. 945, hold-
ing one not party nor bound by Injunctlonal order cannot be tried
and convicted on charge of contempt proceeding wholly on theory
that he was bound by order; Rlpoo Knitting Works v. Schrelber,
101 Fed. S13, holding where bankrupt falla to obey order of Bank-
ruptcy Court requiring him to surrender to trustee property In his
possession and belonging to bankrupt estate, sucb court on peti-
tion of trustee lliay punish him for contempt; Burns v. Superior
Court, 140 Col. 4, 73 Pac. 500, holding Superior Court In which
action Is pending has jurisdiction, upon proper showing by affi-
davit, to punish as contempt disobedience of witness to subpcena
of notary requiring bim to appear and give his deposition to be
used as evidence tn such action.
128 U. S. 315-373. 32 L. 450, UNITED STATES v. BELL TEL. CO.
Syl. 1 (XI, 641). Bill attacking two patents as multifarious.
Approved in Adam v. Folger, 120 Fed. 264. holding bill seeking
to enjoin unautborlzed person from using patented article and
also from using generic name of that article Is not multifarious;
Burlington Sav. Bank v. Clinton. 106 Fed. 276, holding bill not
multifarious because It seeks to enforce two series of bonds, both
owned by complainant, and Issued by same city, to cover cost of
same Improvement, though payment of one provided for by general
tai, and other by special assessment; United States Mineral Wool
Co. V. Manville Covering Co., 101 Fed. 146, holding bill alleging
infringement of two separate patents, both of wbleh are for proc-
esses having single object, not multifarious, though they are not
charged to have been used conjointly, where no injustice will re-
sult from thus saving multiplicity of suits; Animarium Co. v. Nel-
man. 98 Fed. 15, holding bill joining as defendants certain Indi-
viduals and a company, alleging that Individual defendants under
name of company, as pretended corporation, are engaged In sale
of infringing article, and also that they wrongfully use on such
articles Imitation of complainant's trademark is not multifarious.
SyL 8 (XI, 642). Courts — BUI by government to cancel patent.
Approved In United States v. Southern Pac. R. R. Co.. 117 Fed.
653, holding government may sue In equity to set aside patents
erroneously Issued to railroad for lands under grant, to test bona.
i
128 U. S. 374-390 Notes on U. S. Reports. 10(»
fides of purchasers, and establish their rights in any lands so pat-
ented and for accounting from railroad for lands sold.
Syl. 10 (XI, 642). Basis of government's right to set aside patent
Approved in Muncie Nat. Gas Co. v. Muncie, 160 Ind. 106, 66
N. E. 440, holding where gas company is permitted to use city
streets to distribute gas to consumers by virtue of contract with
city which fixes maximum price to be charged for gas, city may
enforce contract by injunction; State v. Zachritz, 166 Mo. 314,
65 S. W. 1000, holding attorney-general cannot in behalf of State
restrain Jockey club from exercising privilege of bookmaking un-
der license fraudulently obtained.
128 U. S. 374-382, 32 L. 412, JOHNSON v. CHRISTIAN.
Syl. 2 (XI, 643). Presumption of continuance of agency from
ratification of acts.
Approved in Alger v. Keith, 105 Fed. 112, 114, applying rule
where agent bribed by other parties to sale of coal lands; Con-
tinental Fire Ins. Co. v. Brooks, 131 Ala. 620, 30 So. 878, holding
where general insurance agent with authority to waive condition
In policy forbidding change in interest or possession ceased to be
agent, waiver by him of such condition after termination of agency
binds company, where insured had no knowledge of termination of
agency.
Syl. 3 (XI, 643). Legal title necessary in ejectment
Approved in Lockhart v. Johnson, 181 U. S. 529, 45 L. 986, 21
Sup. Ct. 670, holding ejectment to recover mining property cannot
be maintained on ground that defendants have acquired it by re-
location in pursuance of conspiracy with plaintiff's partner, whereby
that partner, who was not one of locators, ceased to do necessary
work on mine and abandoned its' possession; M'Manus v. Chollar,
128 Fed. 003, holding equitable defense cannot be maintained in
trespass to try title in Federal court sitting in Texas, though State
statutes permit equitable defenses in such action in State court;
Daniel v. Felt, 100 Fed. 728, holding equitable title cannot be
interposed as defense to ejectment.
128 U. S. 383-390, 32 L. 439, STEWART v. WYOMING RANCHE
CO.
Syl. 1 (XI, 643). Concealment as fraudulent representation.
Approved in In re J. S. Patterson & Co., 125 Fed. 566, holding
where retail merchants made to wholesaler, as basis for credit,
a statement purporting to be true and accurate statement of as-
sets and liabilities, but failed to answer question as to amount
due relatives, concealment of fact that $3,500, due relative, was
such fraud as entitled wholesaler to reclaim goods; Oliver v. Oliver.
118 Ga. 371, 45 S. E. 235, holding where director purchases shares
from stockholder at 110, concealing fact that there is contemplated
10C» Notes on V. S. Reports. 128 O. S. 3&1-103
Bale of entire plant of company which makes stock worth 185.
seller may rescind eale. •
Syl. 4 (XI, 644). Sales — Misrepreseotatloa Is for Jury,
Approved In Metcalf v. Miller, lOT Fed. 226, holding there la
eouHlderotion for note given by stockholder to satisfy assessment,
made pursnaiit to requlsitioa by California insurance commissioner,
though assessment Is technically defective.
Syl. 5 (XI, C44). Appeal — Failure to escept to Instruction — Ab-
sence of counsel.
Approved In Aerhenrt v. St Louis, etc., Ry. Co., 99 Fed. 910,
holding not reversible error to give further instructions at request
of jury In absence of counsel where Instructions given In open
court during regular session.
Syl. 6 (XI, 644). Appeal — Affidavits on new trial not part of
Approved In Htgglnbotham v. State, 42 Pla. 579, 29 So. 412. Ss
Am. St. Hep. 241, reaffirming rule; Hlldreth v. Grandln, 97 Fed.
872, holding ruling on motion for new trial raising Issue of fact
to be determined on evidence not reviewable unless bill of excep-
tions emt>odles motion and proofs.
128 U. S. 391-394. Not cited.
128 U. S. 394, 395, 32 L. 488. PACIFIC POSTAL, ETC.. CABLE CO.
V. O'CONNOR.
Syl. I {XI. 645). Remittitur of part of verdict in defendant's
absence.
Approved In Dodge v. Corliss, 28 Wash. 47G, 68 Pac. S69, hold-
ing where in action for ?2G0 damages plaintiff, before resting case,
waived Item amounting to $100, judgment would not be appealable
under constitutional limit of $200.
128 U. 8. 395-397. Not cited.
128 U. S. 398-403, 32 L. 4S0, UNITED STATES v. REISINGER.
Syl. 1 (XI, 64(!). Effect of repeal of penal law on Incurred liability.
Approved in Wallace v. Goodlett, 104 Tenn. 084, 58 S. W. 346,
holding repeal of Acts I3!)7, chap. 81, giving remedy on contracts
usurious on their face, did not affect soil brought under repealed
act for foreclosure of mortgage usurious on face, pending on appeal
at date of passage of repealing act-
Syl. 2 (XI, 646). " Penalties " and " forfeitures " relate to penal
offenses.
Approved In Featherstone v. People, 194 111. 334, 62 N. E. 687,
holding habitual criminal act not repealed by enactment of parol
act of 1899, and persona convicted thereunder receive benefit of
parol law of 1899, and are required to serve not less than one year
i
128 U. S. 408-416 Notes on U. S. Reports. 1070
nor more than term fixed by habitual criminal act; American, ete^
Co. y. ElllR, 156 Ind. ^1, 50 N. B. 682, holding action given by
section 15 of act for incorporation of manufacturing companies
for giving false report of financial condition of corporation is not
penal, and is governed by limitation of six years; Kilton, etc., Co.
V. Providence Tool Co., 22 R. I. 614, 48 Atl. 1041, holding action
against stoclsholder, under Gen. Laws, chap. 180, S 22, is governed
by Gen. Laws, chap. 234, { 4, allowing twenty .years for bringing
action of debt on specialty.
128 C. S. 40a-416» 82 L. 468, BROWN v. GUARANTEE TRUST CO.
SyL 1 (XI, 646). Multifariousness — Parties interested only in
part of case.
Approved in Williams ▼. Crabb, 117 Fed. 203, holding causes
of action to set aside will and deed, both made by same persons,
and alleged to have been procured by fraud of one of defendants,
may be Joined in same bill; Commercial Bank v. Sanford, 99 Fed.
157, holding bill to foreclose mortgage on realty not multifarious,
because it Joins as defendants parties claiming title to land under
sale upon tax warrant against mortgagor, which sale was made
after execution of mortgage, and seelu to set aside sale; Demarest
V. Holdeman, 157 Ind. 474, 62 N. B. 20, upholding Joinder of
county treasurer, auditor and county board of commissioners in
suit by treasurer of school city to recover shortage by treasurer
due to school city; Bradley v. Bradley, 165 N. Y. 187, 58 N. E.
888, holding bill to rescind sale of stock which alleges that plain-
tiffs, father and son, though owners of separate shares, yet acted
in concert respecting them, and were by same fraud of defendant
induced to act in concert in selling their stock to him, is not
multifarious.
Syl. 2 (XI, 647). When bill multifarious.
Approved in United States v. Southern Pac. R. R. CJo., 117 Fed.
554, holding government may sue in equity to set aside patents
erroneously issued to railroad for lands under grant and to test
bona fides of purchasers and establish and confirm their rights
in lands, and to require accounting from railroad for lands sold;
Watson V. Bonfils, 116 Fed. 159, holding party, who has real con-
troversy with opposing parties to suit, which presents common
point of litigation that affects its entire subject-matter, and de-
cision of which will settle rights of parties to suit, is proper and
real party to suit; United States Mineral Wool Co. v. Manville
Covering Co., 101 Fed. 145, 146, holding bill not multifarious be-
cause it alleges infringement of two separate patents, both for
processes having single object, though they are not charged to have
been used conjointly; dissenting opinion in Washington Co. v.
Williams, 111 Fed. 815, majority holding where county issued
bonds payable to bearer, in which it promised to pay pro rata,
1071 Notes on U. S. Reports. 128 U. S. 416-426
proceeds of annual tax to be levied in property, several bondhold-
ers could not unite and Jointly maintain suit in equity to obtain de-
cree establishing validity of bonds and recovery of amount due
thereon on repudiation by county.
SyL 4 (XI, 647). Nonpayment within time — Time of essence.
Approved in Henderson v. M'Fadden, 112 Fed. 395, holding ques-
tion whether time was of essence of contract for purchase of cotton
was for Jury,
128 U. S. 416-426, 32 L. 472, WOOD v. GUARANTEE TRUST CO.
Syl. 1 (XI, 648). Mechanics' Uens •— Diversion of funds giving
priority.
Approved in Niles Tool Works Co. v. Louisville, etc., Ry. Co.,
112 Fed. 563, holding claim for price of machinery sold to mort-
gagor railroad and used by it in construction of shops owned by
second company, under contract by which mortgagor secured their
use by lease, and also stoci^ of second company, not entitled to
priority of payment over mortgage debt; Louisville & N. R. R. Co.
V. Memphis Gaslight Co., 125 Fed. >88, holding one furnishing coke
and coal to gas company, for use In its business, not entitled to be
paid out of proceeds of forfeiture sale in preference to mortgagees;
Guaranty Trust Co. v. Galveston City R. R. Co., 107 Fed. 324,
holding mortgage of street railroad system covering after acquired
property creates lien on engines thereafter furnished to company
in constructing plant which was part of system, and is not dis-
placed by stipulation in contract of sale that title should not pass
till they were fully paid for; Illinois Trust, etc.. Bank v. Doud, 105
Fed. 132, 139, 150, holding loan to quasi-public mortgagor on pledge
of its income to make necessary additions to its mortgaged prop-
erty entitles lender to no preference in distribution of income
over claim of prior mortgagee whose mortgage covered all income
and property acquired and to be acquired. See 83 Am. St. Rep. 77,
note.
Limited In Farmers', etc.. Trust Co. v. American Water-Works
Co., 107 Fed. 30, 31, holding one furnishing material or labor in
face of recorded mortgage to construct necessary permanent im-
provements for quasi-public corporation has not superior lien to
that of prior mortgagees, either on income earned after appointment
of foreclosure receivers or on corpus of property.
Distinguished in International Trust Co. v. United Coal Co., 27
Colo. 254, 256, 60 Pac. 624, 625, holding expenses of receivership
of insolvent coal company in operating mine not prior to that of
mortgage bondholders.
Syl. 2 (XI, 648). Turning in couponp as sale — Question of fact.
Approved in Bennett v. Chandler, 199 111. 109, 64 N. E. 1056,
holding agent who receives interest coupons for collection from
12S U. S. 426~i37 Notes on U. S. Reports. 1072
mortgagee, and who wishing to conceal mortgagor's default, in
order to retain mortgagee's patronage, remits amount oat of his
own funds, without knowledge of parties, is mere volunteer, and
not purchaser of coupons; Baker y. Meloy, 95 Md. 9, 14, 51 AtL
894, 896, holding where bondholders presented overdue coupons to
fiscal agents of corporation and received therefor checks of such
agents, and bonds from which coupons detached were sold to one
who had no knowledge of nonpayment of coupons, coupons w^e
not sold, and party paying them could not share with bondholders
in distribution of proceeds of sale.
Syl. 3 (XI, 649). Corporations ^- Canceled coupons as purchased.
Approved In Contracting, etc., Co. v. Continental Trust Co., 108
Fed. 4, holding that money was borrowed to pay interest on ma-
tured railroad mortgage coupons is no ground for giving lendw
preference over mortgage; Illinois Trust, etc., Bank v. Doud, 105
Fed. 133, holding loan to quasi-public iportgagor on pledge of its
income to make necessary additions to its mortgaged property en-
titles lender to no preference in distribution of income over claim
of prior mortgagee whose mortgage covered all income and prop-
erty acquired and to be acquired; New York Security, etc, Ca v.
Louisville, etc., R. R. Co., 102 Fed. 393, holding where articles of con-
solidation between railroads provided for issue of bonds by consoli-
dated company to be exchanged for outstanding bonds of constituent
companies, and holders of second mortgage bonds of one of its com-
panies delivered bonds to agent of new company in exchange for
new bonds, there was novation of debt and extinguishment of
old bonds; Contoocook Precinct v. Hopkinton, 71 N. H. 578, 53
Atl. 799, holding one voluntarily paying debt of another not enti-
tled to subrogation unless there was an assignment of claim by
creditor or agreement that party making payment should be sub-
rogated to creditor's rights.
Syl. 5 (XI, 649). Rights of purchaser of overdue coupons.
Approved in Capwell v. Machon, 21 R. I. 522, 45 Atl. 260, hold-
ing title to negotiable note indorsed in blank passes by delivery
after maturity, irrespective of express assent to transfer by holder.
128 U. S. 426-435, 32 L. 503, FIRE INS. ASSN. v. WICKHAM.
Syl. 1 (XI, (>49). Certification of question as to verdict on
evidence.
Approved in Felsenheld v. United States, 186 U. S. 134, 46 L.
1090, 22 Sup. Ct. 743, holding questions which may be certified
by Circuit Court of Appeals to Supreme Court, under Judiciary act
of 1891, must present distinct proposition, and not require latter
court to search entire record.
128 U. S. 435-^37. Not cited.
1073 Notes on D. S. Reports. 128 U. S, 4:iS-4ly
j28 U. 8. 438^43. 32 L. 600. HENNESST v. WOOLWOHTH.
Syl. 2 (XI, 050). SpeclOc performance ts discretion at?.
Approved In Wesley v. Eells, 177 U. S. 376, 44 L. 812, 20 Sup. Ct
GG4, holding contract to purcbaee land wilt not be speciScully en-
rorced against vendee wbeu lltle is not marketable, and cannot be
made so except by successful litlgotion to remove niorignge from
record; Washington Irr. Co. v. Krut2. 119 Fed. 288, enforcing ape-
clflc performance of contract for water right; Newton v. Wooley.
105 Fed. 545. holding equity rosy decree epeclBc performance of
contract for sale of stock In cori>oratlon where such stock cannot
be purchased In market and has no mnrket value.
Syl. 3 (XI, 650). Proof necesBary for epeclflc performance.
Approved in Pressed Steel Car Co. v. Hansen, 128 Fed. 44<i. ap-
plying rule In refusing to compel employee to assign to employer
right to application for patent for Invention; White v. Wansey, 116
Fed. 349, holding contract for sale of realty not eulBclently estab'
lished where there la conflict of evidence as to whether or not It
was signed, and It was understood that it was to be acknowledged,
but it Is shown that vendor refused to acknowledge and took it
from Qotury with whom It had been left.
11>8 U. S 443-146, 32 L. *?8, JONES t. BAST TENNESSEE, ETC.,
R. It.
Syl. 1 (XI, 60J). Contributory negligence as question for Jury.
Approved in Swift v. Langbein, 127 Fed. 115, applying rule In
action by pedestrian against abutting owner for Injuries sustained
at nigUt occasioned by stepping into bote left In sidewalk by re-
moval of Iron grate; Hemingway v. Illinois Cent. K. R. Co.. 114
Fed. 847, holding question of contributory nesllgenee for accident
at railroad crossing on curve where train could not be seen until
one wltliln six feet of track was tor Jury; Texas, etc.. By. v.
Carlln, 111 Fed. 781. holding where It was foreman's duty to re-
more obstructions from bridge when train approached, but he
failed to remove hammer, and It was struck by train and thrown
some distance where It struck one of workmen, negligence of
foreman was proximate cause of Injury; King v. Morgan. 100 Fed.
463, holding where experienced mining employee was Injured by
premature exploRion of dynamite which he was tamping with Iron
bar. be assumed risk Incident to bar furnished bim; M'Ghee v.
Campbell, 101 Fed. 940, holding where section foreman riding on
band car to work, on dark morning, was killed by colllaion, rules
prohibiting riding on hand cars after dark, question of contributory
negligence was for Jury; Nelson v. New Orleans, etc., R. B. Co.,
100 Fed. 738, applying rule where employee killed while carrying
mortar across railroad track to new depot; Coley v. North Caro-
lina 11. It., 129 N. C. 414, 40 S. E. 198, holding whether engineer is
Vol. 11 — flS
128 U. S. 44(M63 Notes on U. S. Reports. 1074
iruilty of contributory negligence in using drain-pipe as grab-iron,
in trying to get upon engine, is question for Jury; Konold v. Rio
Grande, etc., Ry., 21 Utah, 399, 60 Pac. 1025, holding in action
for damages for injuries sustained by explosion of locomotive
boiler, it is error to charge that plaintiff did not undertake to
Incur TlBkB arising from defective machinery with which he Is
to work; Danville v. Robinson, 99 Va. 459, 39 S. E. 125, applying
rule where foot passenger over bridge was injured by defect in
walk; dissenting opinion in Dawson v. Chicago, etc., Ry. Ck>., 114
Fed. 874, majority holding where brakeman going between mov-
ing cars seized grip-iron on end of flat car, used for making coupling,
and was killed in attempting to step on brake beam, and there
were hand-holds on car next to flat, he was guilty of contributory
negligence.
128 U. S. 446-456, 32 L. 474, POLLAK v. BRUSH ASSN.
Syl. 1 (XI, 652). Sustaining demurrer as harmless error.
Approved in Home Life Ins. Co. v. Fisher, 188 U. S. 729, 23
Sup. Ct 381, 47 L. 669, holding sustaining demurrers to pleas of
breach of warranty with respect to insured's use of liquors is
harmlefiOs where Jury found for plaintiff under instructions that
if they found insured's answers on that subject to be untrue they
should find for defendant; M*Crea v. Parsons, 112 Fed. 919, hold-
ing sustaining of demurrer to special plea setting up defense which
is provable, under general issue, is harmless erroh
Syl. 5 (XI, 652). Dependent and independent covenants.
Approved in Kelley v. Mutual Life Ins. Co., 109 Fed. 60, hold-
ing covenant in insurance policy to pay amount of insurance and
to pay premiums were dependent, but that covenant of Insured
against suicide and that of insurer to beneficiary were independent.
128 U. S. 456-403, 32 L. 482, CORNELIUS v. KESSEL.
Syl. 4 (XI, 652). Payment of price withdraws land from sale.
Approved in Teller v. United States, 117 Fed. 581, holding pay-
ment of purchase price by entryman vested title in him as of
date of application, including ties cut from land by his licensee,
between date of application and date of payment; Teller v. United
States, 113 Fed. 279, holding occupant of mineral claim, who has
applied for patent before purchase price is paid, and before he re-
ceives certificate, has no right to cut timber on such claim with
intent to remove same, and license from him to so cut timber gives
no protection to licensee as against government; Olive Land, etc.,
Co. V. Olmstead, 103 Fed. 576, holding one acquiring equitable title
to land by selecting same, under forest reserve act, in lieu of land
which he held by patent and surrendered to government may,
prior to issuance to him of patent therefor, maintain suit in equity
to enjoin defendant from sinking oil wells thereon.
1075 Notes on U. S. Reports. 128 U. S. 466-163
Distinguished in Hyde v. Bishop Iron Co., 177 TJ. S. 288, 44 L.
774, 20 Sup. Ct. 594, holding application to enter 160 acres of
land by person who has made contract to divide quarter thereof
when obtained, with another person in violation of Rev. Stat.,
§ 2262, cannot be sustained as to any part of claim.
Syl. 6 (XI, 653). When land entry may be canceled.
Approved in Hawley v. Diller, 178 U. S. 490, 44 L. 1162, 20 Sup.
Ct 991, holding decision of secretary of interior reversing de-
cision of commissioner of general land office, and canceling entry
under timber and stone act Is not void because attorney-general
did not join In consideration of matter; Black v. Jackson, 177 U. S.
357, 44 L. 804, 20 Sup. Ct. 651, holding mandatory injunction to
establish right to possession of land claimed as homestead, under
United States Statutes, cannot be granted by Oklahoma court,
under Okla. Stat 1893, { 3882; Cosmos Exploration Co. v. Gray
Eagle Oil Co., 112 Fed. 12, affirming 104 Fed. 44, holding claim-
ant of lieu land, under forest reserve act of 1897, on affidavit
stating Its non mineral character, that It was nonmlneral in char-
acter, free from mining claims and was entered for agricultural
purposes, will not be granted equitable relief against oil placer
location made prior thereto, under which development was prose-
cuted and land was valueless for agriculture; James v. Ger-
mania Iron Co., 107 Fed. 602, holding equitable title to land ac-
quired by lawful entry cannot be affected by subsequent decisions
of land department or subsequent rules or modification of rules
of practice therein; Wilbur v. C. R. & M. R. Ry. Co., 116 Iowa,
67, 89 N. W. 102, holding where one entered land as homestead
his possession, after title passed by government to railroad and
entry canceled on ex parte hearing, will be held adverse where
he has fenced and cultivated land; Murray v. Montana, etc.,
Mfg. Co., 25 Mont 21, 63 Pac. 720, holding where plaintiff brings
ejectment to recover mining claim and defendant offers evidence
of superior claim and that plaintiff wrongfully obtained patent
thereto, and holds property in trust for defendant it is not error
to refuse to strike out such evidence for Insufficiency; Bash v.
Cascade Min. Co., 29 Wash. 54, 69 Pac. 404, holding where vendor,
under contract to deliver good deed In fee simple to mining claim,
had paid price and held receiver's certificate therefor and pur-
chaser worked claim and made payments, he could not rescind
because of failure of vendor to produce patent. See 75 Am. St Rep.
881, note.
Distinguished in Clark v. Herington, 186 U. S. 210, 46 L. 1131,
22 Sup. Ct. 874, holding recovery of damages for breach of war-
ranty in conveyance by grantee of railroad of lands selected by
It as indemnity lands which were open only to pre-emption and
homestead entry cannot be defeated by contention that land de-
128 U. S. 404-489 Notes on U. S. Reports. 107G
partment which had canceled selection and patented land to an-
other could not cancel selections because no notice given to rail-
road's grantees.
128 U. S. 464-471, 32 L. 488. HUNT v. BLACKBURN.
Syl. 4 (XI, 654). Clients may waive privileged communication.
Approved In Burgess v. Sims Drug Co., 114 Iowa, 280, 86 N.
W. 309, 89 Am. St Rep. 362, holding privilege of patient, under
Code, S 4608, not waived by his testimony on cross-examination as
to communication made to attending physician, nor by fact that
physician was called at former trial to testify to confidential com-
munications made while a patient
128 0. S. 471--474. Not cited.
128 U. S. 474r-187, 32 L. 496, THE GAZELLE AND CARGO.
SyL 6 (XI, 665). Recovery of loss of freight for breach of charter.
Approved In Mencke ▼. Cargo of Java Sugar, 187 U. S. 255,
^23 Sup. Ct 88, 47 L. 166, holding cost of lightering cargo to berth
designated by assigns of charterer, which vessel was prevented
from reaching without removing masts, not deductible from freight
under charter requiring discharge always afloat at safe port or so
near port of discharge as she may safely get and necessary
lighterage expense to be chargeable to receivers of goods; M'Near
V. Leblond, 123 Fed. 389, holding where charterer wrongfuUy re-
fused to accept vessel, and she was rechartered, damages are dif-
ference between what she would have received and amount actu-
ally received under second charter; The Eliza Lines, 114 Fed. 313,
holding where ship abandoned at sea is brought to port by salvors,
but by action of cargo-owners resumption of voyage prevented,
shipowners may recover estimated net freight less net amount
ship earned or should have earned during time it would have
talcen her to complete voyage; Johnson v. Bibb Lumber Co., 140
Cal. 102, 73 Pac. 732, holding where employer of vessel in viola-
tion of contract varied voyage from port designated to intermedi-
ate port owner of vessel, not being in default is prima facie entitled
to recover agreed compensation to designated port.
Syl. 7 (XI, 655). Variance not available in admiralty.
Approved in Davis v. Adams, 102 Fed. 524, holding in libel in
personam by seaman to recover damages for alleged forcible de-
tention on vessel, where he was induced to go on false pretenses,
where evidence showed he went on board under shipping articles
voluntarily signed, but was wrongfully forced by master to leave
vessel at distant port libel should have been amended to state
cause of action as disclosed by evidence.
128 U. S. 488, 489. Not cited.
1077 Notes on U. S. Reports. X28 U. S. 48&-525
128 U. S. 48»-^503, 32 L. 491, DENNY v. BENNBTT.
Syl. 5 (XI, 657). State cannot release debt due nonresident
Approved in Hanover Nat. Bank v. Moyses, 186 U. S. 188, 46 L.
1119, 22 Sup. Ct 860, holding constitutional requirement as to uni-
form laws not violated by bankruptcy act 1898, § 6, providing
that bankrupts may be allowed exemptions prescribed by State law
In force at time of filing petition in bankruptcy; Swift v. Winches-
ter, 96 Me. 483, 52 Atl. 1018, 90 Am. St. Rep. 416, holding discharge
in insolvency is void as against nonresident creditors, who have
not made themselves voluntary and consenting parties to proceed-
ing, by proving their claims, accepting dividends or otherwise. See
94 Am. St Rep. 557, note.
128 U. 8. 503-505, 32 L. 507, DANVILLE v. BROWN.
Syl. 1 (XI, 657). Supersedeas — Exclusion of Sunday from time.
Approved in New River Mineral Co. v. Seeley, 117 Fed. 982,
holding where order granted appeal from order dissolving injunction
and recited that supersedeas was granted to order appealed from
on plaintiff entering into bond with approved security, on such
bond being given, supersedeas continued injunction In force during
api>eaL
128 U. S. 506-510. Not cited.
128 U. S. 510-514, 32 L. 533, DUBLIN TOWNSHIP v. MILFORD
INST.
Syl. 1 (XI, 658). Certificate bringing up whole case.
Approved in Felsenheld v. United States, 186 U.S. 134, 46 L. 1090,
22 Sup. Ct. 743, holding questions which may be certified by
Circuit Court of Appeals to Supreme Court, under Judiciary act of
1891, must present distinct proposition of law, and not require latter
court to search entire record.
128 U. S. 514-525, 32 L. 526, MENENDEZ v. HOLT.
Syl. 2 (XI, 658). Trademark — Protection of word not denoting
quality.
Approved In Kyle v. Perfection, etc., Co., 127 Ala. 49, 28 So.
546, holding words "Kyle's Perfection" or "Improved Perfection
Mattress " infringes words " Perfection Mattress." See 85 Am. St
Rep. 90, 95, note.
Syl. 3 (XI, 659). Use of infringer's name with infringed brand.
Approved in Shaver v. Heller, etc., Co., 108 Fed. 833, enjoining
use of words "American Wash Blue" by merchants where certain
manufacturer had applied It to his articles until they became
well known to trade and public by those names, though merchant
added his name to label.
128 U. S. 514-525
I U. S. Reports.
SyL 4 (XI, 650). Trndemarb — Mere CBsnal nse not protected.
Approved In Burt v. Tucker. ITS Mass. 500. 58 N. E. 1112, hold-
ing wbere shoe manuracturer used word " Knlfkerlwcker " largely
Id wholesale and retail shoe bUBiness on eboes manufactured by
him, for two years, but not to designate any particular style, he
acquired trfldemark Id word.
SyL e (XI, 059). Trademark — Delay not bar to Injunction.
Approved In French Republic v. Saratoga Vichy Co., 191 D. S,
439, holding. In absence oC actual fraud, where articles differ In
many respects, use of name accompaDled by descriptive word
equally prominent, which differentiates It from original name on
dissimilar label, will not be restrained after long-continued use
without objection: Sailehuer v. Eisner & Mendelson Co^ 179 U.
8. 39, 45 L. Te. 21 Sup. Ct 15. holding right of action for fraudu-
lent use of labels In this country is not defeated on ground of
laches by failure for many years to assert tt when, during that
time, owner was making repeated, persistent, and for long time,
unsuccessful eftorta In own country to establish his rights;
American St. Car Advertising Co, v. Jones, 122 Fed. 810, holding
where defendants paid royalties, under parol license, until ISSl.
and in 1895 patentee assigned patent to complainant, who had
no knowledge of license until 190O, when patentee assigned to
him claim for past royalties, suit for accounting for royal-
ties not barred where patentee had died, and complainant could
uot show why suit not brought by him sooner; Blssell Chilled
Plow Works V. T. M. Blssell Plow Co., 121 Fed. 3T5. applying
principle In suit for Infringement of word " Blasetl " in plows;
Gannett v. Ruppert, 119 Fed. 224, holding periodical published In
Maine, under name of " Comfort," and circulated chiefly In county
districts not Infringed by New York periodical called " Home
Comfort," treating of care and hygiene of Infanta; Ide v. Tcor-
llcht, etc.. Co., 115 Fed. 148, holding mere delay In bringing suit
[or infringement unaccompanied by such deceitful acts or silence
of patentee and by such circumstances as amount to equitable
estoppel do not warrant application of laches to suit Qled within
time Oied by statute for commencement of analogous action at
law; Church, etc., Co. v. Rubs, 99 Fed. 279, holding trademark used
by owner on packages of baking soda and saleratus manufac-
tured by it is infringed by use thereof by another on packages of
baking powder, articles being of same class; Old Times Distillery
Co. V. Casey, 104 Ky. 620, 47 S. W. All, holding where plaintiff
and defendant both have used same trademark for ten years,
and defendant with eipeose and labor has built up trade tor Its
goods with plaintlfTs knowledge, latter will be denied injunction
to protect alleged ownership, without regard to rightful ownership;
Bume T. Partridge. 61 N. J. Eq. 437, 48 AU. 771, holding where
fifteen years after obtaining judgment creditor files bill to set
10T9 Notes oa U. S. Reports. 128 C. S. 525-557
BBlde conveyaDce made pending suit La wblcli Judgment waa ob-
tained, delay Is no bar to right to Eet aside conTeyance.
128 U, S. 525. 32 U 529. RYDER v. HOLT.
SyL 1 (XI, 660). Jurisdiction — Infringement of trademark.
Approved In Warner v. Searle, etc., Co., 191 V. S. 206, upholding
Circuit Court's Jurisdiction over suit tor infringement of trade-
mark alleged Imllation in foreign commerce.
128 U. S. 526-M4, 32 L. 519, GERMAN BANK t. FKANKLIN
CODNTT.
Syl. 1 (XI, 660). Aid bonds Issued after breach of condlUon.
Approved in West Virginia, etc., R. R. v. Harrisou County Conrt,
47 W. Va. 286. 34 S. a 791. reaffirming rule.
Syl. 2 (XI. (161). Coaditlone of aid bonds as part of autbority.
Approved In Edwards v. Bates County, 117 Fed. 535. holding
where statute authorizing townships to subscribe for stock of rail'
roads requires proposition voted on to state termx and conditions
on which proposition voted on shall 1>e made, condition requiring
company to construct Us road through township and to erect sta-
tion in certain town before receiving aid bonds must have been
complied with to render bonds rnlld.
Distinguished In Wetzell v. City of Paducah, 117 Fed. 054, hold-
ing where city officers are given such powers by charter that au-
thority must be Inferred therefrom to determine whether necessary
conditions precedent exist to autborlz.e issuance of bonds, recitals
by such officers In bonds that conditions have been performed
bind city in favor of bona flde purchaser.
8yl. 4 (XI. 661). Courts — State decision on prior bond Issues.
Approved in I,oeb v. Trustees of Columbia Township. 179 D. 8.
493, 45 L. 201, 21 Sup. Ct. 182. upholding Ohio act April 27, 1893.
relative to widening of Williams avenue In Columbia township.
(XI, 660). Miscellaneous.
Cited in In re Niagara Contracting Co., 127 Fed. TS4. holding
objection to Jurisdiction of court to adjudge corporation bankrupt
may be taken afier adjudication by sppticatloo to set It aside where
want of Jurisdiction did not appear from pleadings.
128 U. S. 544-B57, 32 L. 508. CHATEAUGAT IRON CO., PETI-
TIONER.
Syl. 1 (XI, 661). Bin of esceptloos — Illness of Judge.
Approved in Western Dredging, etc., Co. v. Heldmaler, 118 Fed.
182. 183, 185, holding where cause tried by Judge of another dis-
trict, especially assigned, and on expiration of time allowed after
term for settling bill of exceptions trial Judge was absent and
Judge of district signed bill, and It was afterward suppressed by
Circuit Court of Appeals, trial Judge could at subsequent term
k
128 U. S. 557-583 Notes on U. S. Reports. lOSQ
sign It nunc pro tunc; In re Chateaugay, etc., Co., 106 Fed. 844, hold-
ing where issue is tried by jury under bankruptcy act 1808, { 19a,
no statutory provision necessary to entitle party to have rulings
made part of record by bill of exceptions; Merchants' Ins. Ck). v.
Bucl^ner, 98 Fed. 224, holding where motion .for new trial is duly
filed but not acted on at trial term, but court stays execution, bill
of exceptions may be settled and filed at succeeding term at which
motion is disposed of; Johnson v. Gebhauer, 159 Ind. 276, 64 N. B.
857, holding void Acts 1901, p. 511, providing that where attempt
made to malve evidence part of record on appeal by filing bill of
exceptions in accordance with Acts 1899, p. 384 (subsequently held
void), court might extend time for filing bill which should become
part of record as though filed in time.
Syl. 2 (XI, 662). State practice does not apply to Federal appeals.
Approved in Koeuring v. Wilder, 126 Fed. 474, holding where,
during term at which judgment was entered, court entered order
directing verdict for defendant and allowing such time as counsel
should want to prepare bill of exceptions, such order was valid
and extended time for preparing bill to da^e beyond term; Adams
V. Shirl^, 121 Fed. 824, holding bill of exceptions cannot be amended
at term subsequent to that at which it was filed in order to correct
omission due to party's own neglect or oversight; Menge v. War-
rlner, 120 Fed. 817, holding question of finality of Judgment for
purposes of review in Federal courts not aitected by State pro-
cedure; Western Tel. Co. v. Burgess, 108 Fed. 33, holding State
statute, requiring Jury on its retirement to take with them written
instructions, is not controlling in Circuit Court sitting in State;
City of Manning v. German Ins. Co., 107 Fed. 57, holding, after
terra. Federal court cannot vacate judgment and grant new trial
irrespective of State statute; Tullis v. Lake Erie & W. R. R. Co., 105
Fed. 557. holding where motion for new trial was filed and disposed
of in accordance with rule of court, it is immaterial that require-
ments of State practice were not observed; James P. WItherow Co.
V. De Bardeleben, etc., Co., 99 Fed. 674, holding State statute pro-
viding for appeals frora rulings on motion for new trial does not
affect Federal rule that such ruling is discretionary and not
reviewable.
128 U. S. 557-578. Not cited.
128 U. S. 578-583, 32 L. 544, WALSTON v. NEVIN.
Syl. 2 (XI, GG4). Street assessments — Lien on abutting property.
Approved in Brown v. Drain, 1*87 U. S. 635, 23 Sup. Ct. 842, 47 L,
343, reaffirming rule; King v. PorUand, 184 U. S. 70, 46 L. 436, 22
Sup. Ct. 293, upholding assessment for street improvements under
city charter, providing for assessment for full cost of improvement
on abutting owners and of proportionate share of cost of Improv-
1081 Notes on U. S! Reports. 128 U. S. 583-G9C
log street Intersections, where cost of such improvements Is ap-
portioned according to benefits, and clmrter gives hearing and notice
upon question of benefits; French v. Barber Asphalt Paving Co., 181
TJ. S. 341, 45 L. 888, 21 Sup. Ct 631, upholding apportionment of en-
tire cost of street pavement uoon abutting lots according to their
frontage, without any preliminary hearing as to benefits, affirming
158 Mo. 553, 554, 58 S. W. 940; American Sugar Refining Ck). v.
Louisiana, 179 U. S. 94, 45 L. 104, 21 Sup. Gt. 45, holding sugar
refiner not denied equal protection of laws by La. Const. 1879,
art 206, imposing license tax on manufacturers engaged in same
business but exempting from tax those who refine products of their
own plantation; Mexican Nat. R. R. Co. v. Jackson, 118 Fed. 552.
upholding Laws Tex. 1897, Spec. Sess., p. 14, defining liability of
persons operating railroads, defining who are fellow servants, and
prohibiting contracts between employer and employee limiting
employer's liability for death of or injury to servant; Hawkins v.
Roberts, 122 Ala. 148, 27 So. 332, upholding act February 18, 1899, es-
tablishing board of revenue for Jefferson county and abolishing
court of county commissioners; Hadley v. Dague, 130 Cal. 221, 62
Pac. 505, upholding Vrooman act of 1899, providing for apportion-
ment of expense of street improvement according to frontage; State
V. Moore, 2 Pennew. (Del.) 321, 46 Atl. 675, upholding prosecution by
Information and trial by court without jury; Barfleld v. Gleason,
111 Ky. 515, 516, 63 S. W. 969, upholding statute providing for con-
struction of streets at cost of abutting owners though contract for
such construction must be approved by board of public works and
not by council; State v. Whitehouse, 95 Me. 185, 49 Atl. 871, up-
holding Rev. Stat, chap. 67, § 31, punishing embezzlement by
guardian of ward's property; Andrus v. Insurance Assn., 168 Mo.
163, 67 S. W. 585, holding practice of admitting proof of waiver
of terms of insurance policy without special plea of waiver does
not deny insurance companies equal protection; Webster v. City of
Fargo, 9 N. Dak. 211, 82 N. W. 733, upholding Pol. Code 1895, art.
17, chap. 28, providing that entire cost of paving city streets shall
be charged against abutting owners in proportion to frontage; King
▼. Portland, 38 Or. 424, 63 Pac. 5. 8, upholding Portland charter
provisions relating to street improvements.
Distinguished in Adams v. Shelbyvllle, 154 Ind. 471, 57 N. E. 116,
holding Imposition of assessments for local Improvements per front
foot irrespective of question of accruing benefits is void.
128 U. S. 583-585. Not cited.
128 U. S. 586-590, 32 L. 543, METCALF v. WATERTOWN.
Syl. 1 (XI, 605). Examination of lower court's jurisdiction
sua sponte.
Approved in Defiance Water Co. v. Defiance, 191 U. S. 194,
reaffirming rule; Great Southern Fireproof Hotel Co. v. Jonea^
128 U. S. 58G-590 Notes on U. S. Rep<Nlg. 1082
177 U. S. 454, 44 L. 844, 20 Sup. Ct. 692, holding limited partnership
association created under Pa. Laws 1874, p. 271, Is not citizen of
that State within meaning of Constitution extending Judicial powers
of United States to controversies between citizens of difTerent
States; Florida Cent., etc., R. R. v. BeU, 176 U. S. 328, 330, 44 L. 490,
20 Sup. Ct 402, holding plaintiff, whose statement of his own
claim does not disclose Federal question, cannot create Jurisdiction
in Circuit Court by anticipating defendant's claim, and bj alleg-
ing that defendant will set up defense under same Federal law;
Gastonia Cotton Mfg. Co. t. Wells County, 128 Fed. 373, holding
where charter was approved by governor under law providing that
it should go into operation on terms and conditions specified in
charter, and charter provided that corporation could do business
as soon as $2,000 of capital stock subscribed and paid for, where
subscribed for but not paid for, corporation did not acquire ex-
istence; Central Grain & S. Co. v. Board of Trade, 125 Fed. 466,
holding Federal court's Jurisdiction over subject-matter must af-
firmatively appear on record; Peabody, etc., Min. Co. ▼. Gold Hill
Min. Co., Ill Fed. 822, holding complainant cannot invoke Federal
Jurisdiction by setting forth contention which will be made by
defendant in answering bill upon which Federal question will arise;
Whitworth V. Illinois Cent. R. R. Co., 107 Fed. 560, holding where
after remand of removed cause complaint amended, right of removal
waived where petition not filed until two years after amendment;
Winters v. Drake, 102 Fed. 546, holding plaintiff cannot prevent
removal of suit against Federal receiver by omitting to state in
pleadings by what court defendant was appointed receiver; In re
Columbia Real Estate Co.. 101 Fed. 970, helding where petition is
filed to set aside adjudication of bankruptcy on ground of want of
Jurisdiction in court to make It, though petitioner may be stranger
to proceedings, it Is discretionary with court to allow him to bo
heard as amicus curice; Wahl v. Franz, 100 Fed. 682, holding pro-
ceeding for probate of will not suit of civil nature at law or in
equity within Judiciary act 1888, 88 1, 2; dissenting opinion in
Giles V. Harris, 189 U. S. 500, 23 Sup. Ct 645, 47 L. 917, majority
holding Supreme Court's Jurisdiction to consider whole case on
direct appeal from Circuit Court, taken under Judiciary act 1891,
chap. 517, 8 5, in case in which State Constitution is claimed to
violate Federal Constitution, cannot be narrowed to review of
Circuit Court's jurisdiction by certificate of circuit Judge; dissenting
opinion In Glbbs v. Gibbs, 26 Utah, 428, 73 Pac. 658, majority
holding District Court of county in which plaintiff resided had Juris-
diction of subject-matter of action for divorce for adultery com-
mitted in another county.
Syl. 4 (XI, 667). Federal Jurisdiction in assigned causes.
Approved in Walte v. Santa Cruz, 184 U. S. 325, 46 L. 667, 22
Sup. Ct 335, denying Federal Jurisdiction over suit by transferee
1083 Notes on U. S. Roports, 128 U. S. 590-5BT
or bonds nnder act March 3. 1875. chap. 137, where transrers made
to him for collectioD only and Jurlsdlctlona] amount made by nnlt-
iDg In his hands bonds of owners who separately bad less than
JurisdlcUonaJ amount; City of Enu Claire t. Payson. 100 Fed. 078,
holding where Wisconsin city granted water-works franchise to
nonresidents and contracted with grantees for hydrant rentals, and
grantees assigned rights to Wisconsin corporation which constructed
works and furnlebed hydrants, and corporation pledge rentals to
secure bonds issued under trust deed to nonresident, Federal
coui-C had no Jurisdiction over suit by trustee to collect rentals
due company.
SyL 6 (XI, GC7). Declaration must show Federal question.
Approved In Banker's, etc., Co. v. Minnesota, etc.. Ity., 192 O. S.
384, 24 Sup. CL 329. holding In action by citizen of one State against
citizen of another for damages for loss of registered mall package,
where plaintiff relied on general law of negligence, fact that suit
involred relations of defendant to government did not put in
controversy construction of Federal Constitution or laws so as to
give appeal from decision of Circuit Court of Appeals; Mexican
Central Ry. v. Duthle. 189 U. S. 77. 23 Snp. Ct 610, 47 L. 717. hold-
ing Circuit Court may permit amendment of petition after verdict
and Judgment thereon, with no further proceedings taken, by in-
serting words " and Is citizen of said State " after allegation therein
that "plaintiff resides In El Paso, State of Texas;" Vlcksburg
Water- Works Co. v. Vlcksburg, 185 U- S. 68, 40 L. 810, 22 Sup. Ct.
56C, upholding Federal Jurisdiction over bill alleging that contract
with water company for city water supply Is Impaired by ordinance
directing that water company be notified that city denies liability
under contract and by subsequent action of city in holding election
to anthorize bond issue to erect municipal water-works.
128 U. S. 590-597, 32 L. 563, WARE v. ALLEN.
SyL 1 (XI, GG7). Written agreement orally conditioned.
Approved in Farmer v. Marvin, 63 Kan. 254, G5 I'ac. 222, holding
when promissory note of maker without consideration Is placed In
hands of third party with written Instructions to deliver It to payee
upon happening of certain contingency, and In event of aucb con-
tingency not happening, then upon giving of indemnity, agency of
third party to deliver note ceased on maker's death; Southern Adv.
Co. V. Metropole Co,, 91 Md. 68. 46 Atl. 515, holding where real
agreement for advertising at certain rates was by parol, at request
of plaintiff's agent defendant signed written agreement for greater
extent of advertising and much larger aum, agent telling him be
would tbereby be enabled to Induce others to pay rates mentioned in
writing, and writing contained stipulation that verbal conditions
made by agent would not be recognized, parol evidence of such facts
is admissible; Reiner v. Crawford, 23 Wash. S71, 63 Pac. 517, hold-
128 U. 8. 596-604 Notes on U. S. Reports. 10^
ing oral evidence to show that contract for sale of stock was
delivered, to take effect only on condition th&{ stock bad not been
sold by certain agent, is admissible.
128 U. S. 598-004. 32 L. 635, GOODYEAR CO. v. GOODYEAR
RUBBER CO.
Syl. 1 (XI, 667). Trademarks — " Goodyear Rubber."
Approved In Allen B. Wrisley Co. v. Iowa Soap Co., 122 Fed. 797;
holding term ** Old Country " cannot be appropriated as trademark
Shaver v. Heller, etc., Co., 108 Fed. 832. holding where manufacturer
had applied to its articles name ''American Wash Blue'* until they
became well know to trade and public by these names, use of name
by merchant as applied to goods of other manufacturers would be
enjoined; Brennan v. Emery, etc., Co., 99 Fed. 976, holding shoe
trademark, consisting of words "steel shod," in connection with
symbol, not Infringed by words " steel clad " alone; Fuller y. Huff,
99 Fed. 439, holding one dealing in prepared foods in name of
*' Health Food Company '* cannot enjoin use by another, dealing in
similar products, of name of '* Sanitarium Health Food Company;"
Industrial, etc.. Deposit Co. v. Central, etc., Deposit Co., 112 Ky.
941, 66 S. W. 1033, holding corporation incorporated as " Industrial
Mutual Deposit Company " not entitled to enjoin corporation sub-
sequently incorporated as "Central Mutual Deposit Company,**
from using words ** Mutual Deposit Company'* as part of its name;
Watkins Medical Co. v. Sands, 83 Minn. 330, 86 N. W. 342, .holding
words " Vegetable Anodyne Liniment " cannot be utilized as trade-
mark; Armlngton v. Palmer, 21 R. I. 116, 42 Atl. 311, holding where
persons who purchased property of A. & S. E. Co., a corporation,
formed new corporation with name of A. & S. Co., use of such
name will be enjoined at suit of minority stockholders in former
corporation; dissenting opinion in International, etc., Assn. v. Young
Women's Christian Assn., 194 111. 202, 62 N. B. 554, majority en-
Joining use of name "International Committee of Young Women's
Christian Association " at instance of Young Women's Christian
Association. See* notes, 85 Am. St. Rep. 96, 107, 116.
Syl. 2 (XI, 668). Name not subject to appropriation not protected.
Approved in Daviess County, etc., Co. v. MartinonI, 117 Fed. 188,
holding action for unfair competition in that defendant sold
whisky labeled " Kentucliy Club Bourbon," while complainant had
previously used label " Kentucky Club," cannot be maintained
where no intent to palm off goods as complainant's, label being
dissimilar; American Washboard Co. v. Saginaw Mfg. Co.. 103 Fed.
284, denying relief where complainant alleged he was manufacturer
of washboard having rubbing face made of aluminum, and upon
which it used word " aluminum " as tradename, that It had mo-
nopoly of all aluminum produced and that defendant placed wash-
board on market on which it used word " aluminum;" Hopkins
1085 Notes on U. S. Reports. 128 U. S. G05-C07
Amusement Co. v. Frobman, 202 111. 544, 67 N. E. 393, enjoining
production of play entitled *' Sherlock Holmes, Detective " at suit
of owner of rights in play '* Sherlocls Holmes;*' dissenting opinion
In Shaver v. Heller, etc., Co., 108 Fed. 839, majority holding where
manufacturer had applied to its articles name "American Wash
Blue," until they became well known to trade and public by these
names, use of name by merchant, as applied to goods of other
manufacturers, would be enjoined.
Distinguished in Continental Ins. Co. v. Continental Fire Assn.,
101 Fed. 256, holding foreign corporation doing business in State
only by license cannot question right of domestic corporation to do
business therein under name by which it was chartered on ground
that such name is similar to its own, and that it has an exclusive
right to its use.
128 U. S. 605-616, 32 L. 538, MARSH v. NICHOLS, ETC., CO.
Syl. 4 (XI, 669). Patent ineffective until signed.
Approved in D. M. Steward Mfg. Co. v. Steward, 109 Tenn. 302,
70 S. W. 812, holding inventor cannot maintain suit for use, manu-
facture or sale of invention until patent issues.
128 U. S. 617-667, 32 L. 647, CALLAGHAN v. MYERS.
Syl. 1 (XI, (569). Copyright of law reports by reporter.
Approved In Dlelman v. White, 102 Fed. 894, holding where artist
commissioned to furnish and deliver mosaic panels for congres-
sional library copyrighted cartoons from which panels were made
and took photographs of mosaics after they were in place, he cannot
enjoin publication of photographs of mosaic.
SyL 4 (XI, 670). Copyright — Clerk's certificate of deposit of
book as evidence.
Distinguished in Bleistein y. Donaldson Lith. Co., 98 Fed. 612,
holding engravings of ballet dancers or fancy bicycle riding, de-
signed for use as show bills, not entitled to copyright.
SyL 7 (XI, 670). Copyright — Delivery of reports to secretary
of State as publication.
Approved in Board of Trade v. Hadden Krull Co., 109 Fed. 700,
holding furnishing by board of trade of market quotations made
upon transactions of its exchange, to customers for their exclusive
use, either by means of ticker or by placing them on blackboard in
customer's office, is not publication.
Syl. 16 (XI, 6T1). Copyright — Credit for salaries.
Approved In Kansas City Hay Press Co. v. Devol, 127 Fed. 369,
holding, in computing profits of infringement by partnership, de-
fendants not entitled to credit for value of their own services or
with sums paid them by firm for work done in manufacture of
infringing article, as part of cost of manufacture.
128 U. 8. 667-678 Notes on U. • 8. Reports. 10S6
SyL 19 (XI, 671). Equity — Master's conclusion presumed correct
Approved in Ferguson Constructing Go. t. Manhattan Trust Co.,
118 Fed. 792, reaffirming rule; The Gertrude, 112 Fed« 448, holding
findings of commissioner as to value of vessel lost In collision will
not be set aside where he acted within bounds of reasonable judg-
ment and upon conflicting testimony; Fidelity, etc, Go. v. St
Matthews Sav. Banls, 104 Fed. 860, holding where case involving
long and complicated accounts and taldng of testimony of many
witnesses is by consent referred to special master to hear and
determine all issues of law and fact, findings will not be set aside
unless there is clear error, misconduct or fraud; Johnson v. Gallegos,
10 N. Mex. 4, 60 Pac. 72, holding court may, of own motion, make
additional and supplemental findings to those of master, if such
additional findings are based on evidence, in order to clear up any
matter; dissenting opinion in Ghauncey v. Dylse Bros., 119 Fed.
21, majority holding where after execution of mortgage agent of
mortgagees retained money, and material was furnished by one
materialman, on his representation that there was still $1,650 left
and that he wbuld see that such material was paid for out of such
fund, claim of materialman was prior to that of mortgagees.
Syl. 20 (XI, 672). Copyright — Profits from sale of book as whole.
Approved in Social Reg. Assn. v. Murphy, 128 Fed. 121, holding
injunction against infringing publication will be extended to all
portions in which infringing and noninfringing matter has been
so blended that its separation is impracticable, but not to such dis-
tinct parts as do 'not infringe.
Distinguished in Kansas City Hay Press Go. v. Devol, 127 Fed.
365, holding where patent infringed is for improved part only of
machine, other parts being open to defendant's use, burden is on
complainant to separate his damages and defendant's profits be-
tween patented and unpatented features.
128 U. S. 667-673, 32 L. 576, KENNEDY v. HAZELTON.
Syl. 1 (XI, 672). Specific performance — Property not In ex-
istence.
Approved in Standard Scale, etc.. Go. v. McDonald, 127 Fed. 712,
holding while application pending in patent office, applicant cannot
enjoin another from using invention; Hildreth v. Thibodeau, 117
Fed. 148, denying specific performance of contract conveying rights
in machine made by defendant while in complainant's employ, by
requiring defendant to assign application for patent, where com-
plainant claims invention is his own; Farson v. Fogg, 205 111. 345,
68 Atl. 761, holding bill for specific performance will not be re-
tained for purpose of decreeing damages for breach of contract
where complainant, at time of filing bill, knew that defendant had
no power to make contract and that it could not be enforced.
1087
1 U. S. Reports. 128 D. S. 673-TOO
Distinguished In Marjntn v. Hall, 119 Fed. 187, granting a
log and InjuncttLiir wbere eomplalnant. Inventor of water paint,
loduced to dlHcIoBe Invention to derendant on latter'a promlae to
keep It secret and to purchaae large quantities, but latter procured
patent Id own name.
Syl. 2 (Xr, 672). Patent Isaiied to one not inventor la void.
Approved In Fuller v. Schutz, 88 Minn. 375. 93 N. W. 119, reafflrm-
Ing rule-
128 U. S. 673-086. 32 lu 571, UNITED STATES v. IHON, ETC.,
MIN. CO.
Syl. 3 (XI, 673). Mines — " Placer claim " and " Veiaa or lodee,"
defined.
Approved In Nortbem Pac. Rj. v. Soderberg. 188 U. 8, 532, 23 Sup.
Ct. 3GT, 47 L. 582. holding lands valuable chiefly for granite qnarrles
are " mineral lands," within meaning of exception of Buch lands tn
Northern Pnclflc grant of July 2, 1864.
128 D. S. 686-691, 32 L. B69, STACHBI.BERO v. PONCE.
Syl. 1 (XI, 674). Trademarks — Adoption of name previously
See 85 Am. St. Bcp. 88, note.
128 U. 8. 691-700, 32 L. 567, CRAGIN *. POWBLL.
Syl. 2 IXI, 674). Deeds — Description according to official plaL
Approved In Brown v. MUllman, 110 Mich. 612, 78 N. W. 788,
holding where creek properly accounted for In field notes it controls
coursea and distances.
Distinguished In Canavan v. Dugan, etc., 10 N. Uex. 320, 62 Pac.
973, holding where monuments actually established by government
surveyor contradict field notes and official plat of survey, former
control latter and determine the true boundary.
Syl. 3 (XI, 675). Land department's control over surveys.
Approved In Kirwan v. Murphy. 109 Fed. 35o, holding where
government surveyed and platted land at)out lake and then pat-
ented land according to plats which showed tracts bounded by
lake, and made no attempt to correct survey uutil complainant's
paid full price, government cannot correct survey and revoke
grants; Fredericks v. Zumwalt, 134 Cal. 47. 66 Pac. 40, holding,
under swamp land act 1850, S 3, California acquired no title to
a forty-acre tract, less than one.third of which was marked as
" swamp " on government plat, and all of which was In fact fit for
cultivation; Schloaser v. Hemphill, 118 Iowa, 457, 90 N. W. 843,
holding wbere there is no water to be meandered, meander line
becomes boundary beyond which plalntlfTs title did not extend;
Brown v. Parker, 127 Mich. 304. 86 N. W. 990, holding where
swampy land adjacent to Lake Erie was surveyed by Federal gov-
i
121) U. S. l-3iS Notes on U. 8. Reports. 1088
eminent, bounded by meander line of Take, snch survey Is con-
elusive that land is not part of bed of lake; Warner Stock Go. v.
Galderwood, 36 Or. 231, 59 Pac. 116, holding purchaser under timber
culture entries after second survey reserving upland betvreen first
survey and margin of nonnavigable lake, is estopped to claim be-
yond boundary under which he purchased.
CXXIX UNITED STATES.
129 U. S. 1-26. Not cited.
129 U. S. 26-36, 32 L. 685, MINNEAPOLIS, ETC., BY. T. BEGK-
WITH.
Syl. 1 (XI, 677). Gorporations are persons.
Approved in Hawley v. Hurd, etc, L. Go., 72 Vt 125, 47 AtL 402,
upholding Vt Stat. 1306, exempting from attachment by trustee
process negotiable paper transferred before due to bank within this
State.
Syl. 2 (XI, 678). Fourteenth Amendment does not limit police
powers.
Approved in Parks v. State, 159 Ind. 219, 64 N. B. 865, upholding
Burns* Be v. Stat. 1901, §§ 731S-7323e, regulating practice of med-
icine; Gano v. Minneapolis & St L. B. B. Go., 114 Iowa, 726, 87
N. W. 719, 89 Am. St Bep. 403, upholding Code, ft 2007, providing
that where railroad takes land by eminent domain it shall pay
landowner reasonable attorney's fees; Love v. Judge of Becorder*s
Court, 128 Mich. 551, 87 N. W. 788, upholding Detroit ordinance
forbidding making of public address in any public place within
half-mile circle of city hall without first obtaining permission from
mayor; Detroit etc.. By. v. Commissioner, 127 Mich. 229, 86 N. W.
840, holding, under Acts 1893, No. 171, § 5, where railroad extends
lines across existing street-car line, railroad commissioner may
require street-car company to pay portion of expense of construct-
ing and maintaining necessary safety appliances; People v. Lochner,
177 N. Y. 149, 69 N. E. 374. upholding Laws 1897, p. 485, chap.
415, art 8, § 110, fixing hours of labor of bakery employees.
Syl. 3 (XI, 679). Penalizing raihroad for stock killed — Equal
protection.
Approved in Florida C. & P. B. B. Co. v. Beynolds, 183 U. S. 478,
46 L. 286, 22 Sup. Ct 179, upholding Fla. Laws 1885, chap. 3558,
requiring comptroller to assess taxes for 1879, 1880 and 1881, upon
such railroad property as had escaped taxation for such years,
without providing for assessment of taxes for those years on other
property; Clark v. Kansas City, 176 U. S. 119, 44 L. 397, 20 Sup.
1089 Notes on U. S. Keports. 129 U. S. 30-44
Ct 286, holding discrimination between individuais and corporations
in respect to annexation to city of lands held for agriculture not
void, so as to defeat annexation of lands of corporation not held for
agricultural purposes; State v. Montgomery, 94 Me; 204, 205, 47
Atl. 168, holding void hawkers and peddlers act of 1893, relative to
licenses; Callahan v. St. Louis, etc., Ry., 170 Mo. 494, 71 S. W.
214, 94 Am. St. Rep. 760, holding under fellow-servant law (Rev.
Stat. 1899; § 2873), member of railroad section gang who is sent to
warn passers-by of danger incident to throwing by its other mem-
bers of ties from high bridge over street, is included in that act;
Craven v. Bldomingdale, 171 N. Y.. 447, 64 N. B. 171, holding master
not liable for punitive damages for servant's wrongful act unless
master implicated in servant's malicious or wanton acts or author-
ized or ratified them; International, etc., Ry. v. Richmond, 28 Tex.
Civ. 516, 67 S. W. 1031, holding where by agreement with land-
owner opening' in railroad fence left open for his convenience, at
point where it is not way of necessity, fence is not such as is nec-
essary to relieve from liability for killing stock of third person
entering track from landowner's premises through opening.
129 U. S. 86-44, 32 L. 589, SHREVEPORT v. COLE.
Syl. 1 (XI, 680). Federal question — Recovery of balance on
contract
Approved in Defiance Water Co. v. Defiance, 191 U. S. 191, hold-
ing fact that city council passed resolution providing for payment
of pending bill of water company claiming franchise, with saving
clause against city being estopped from denying existence of con-
tract right, does not give Circuit Court jurisdiction to maintain
injunction against appropriation of water fund to payment of any
indebtedness other than complainant's; Los Angeles City Water Co.
V. City of Los Angeles, 103 Fed. 716, upholding Federal Jurisdiction
over suit by water company to enjoin enforcement of municipal ordi-
nance fixing water rates on ground of impairment of contract obliga-
tions, though contract as set out in bill expired by its terms prior to
passage of ordinance where it is alleged to be still in force.
Syl. 2 (XI, 680). Presumed that State courts respect Federal law.
Approved in Defiance Water Co. v. Defiance, 191 U. S. 194, hold-
ing fact that city council passed resolution providing for payment of
pending bill of water company claiming franchise, with saving
clause against city being estopped from denying existence of con-
tract right, does not give Circuit Court Jurisdiction to maintain
injunction against appropriation of water fund to payment of any
indebtedness other than complainant's.
Syl. 4 (XI, 680). Constitutions operate prospectively only.
Approved in Seabord Steel Casting Co. v. William R. Trigg Co.,
124 Fed. 78, holding, under amendment of February 5, 1903, to bank-
Vol. 11 — 69
129 U. S. 45-65 Notes on U. S. Reports. 1090
ruptcy act, chap. 541, f 3, subd. 4, appointment of receiver prior to
passage of amendatory act will not support petition in involontary
bankruptcy filed Sitter that date though receivership still continues;
Barton Nat. Bank v. Atkins, 72 Vt 38, 47 Ati. 178, holding Acts
1886, No. 70, which impliedly repealed Vermont Investment &
Guarantee Ck>mpany's charter, section 9 providing that stockhold-
ers should be liable for indebtedness of corporation beyond th^
stock to amount equal to par value was prospective only.
Syl. 7 (X, 680). Dismissal where Jurisdiction does not appear.
Approved in Pumell v. Page, 128 Fed. 497, holding, under 25
Stat. 434, Circuit Court has no Jurisdiction of suit to restrain en-
forcement of personal State tax, amounting only to $80, though
tax constituted cloud on complainant's title to realty, value of
which exceeded $2,000.
129 U. S. 45-47, 32 L. 607, NEW ORLEANS v. LOUISIANA CON-
STRUCTION CO.
Syl. 1 (XI, 680). Law and equity — State practice.
Approved in Gravenberg v. Laws, 100 Fed. 5, holding in action
at law to recover fixed sum due under contract and seeking se-
questration of defendant's property, persons claiming labor liens
against such property cannot intervene Jointly to enforce such
liens and to have priority determined, when such determination
involves trial of numerous issues of fact
129 U. S. 47-52. Not cited.
129 U. S. 52-57, 32 L. 640, BALDWIN v. KANSAS.
Syl. 2 (XI, 681). Courts — Refusal of State court to consider
question.
Approved in JacobI v. Alabama, 187 U. S. 136, 23 Sup. Ct 49, 47
L. 108, holding claim that admission in evidence of previous tes-
timony of absent witness violated Fourteenth Amendment will
not be considered on error where it was set up by assignment
of error in highest State court which did not consider it because
it was not set up in trial court; Eastern Bldg. & Loan Assn. v.
Welling, 181 U. S. 49, 45 L. 741, 21 Sup. Ct 532, holding Federal
question must be raised in State court
(XI, 681). Miscellaneous.
Cited in Bolln v. Nebraska, 176 U. S. 86, 44 L. 383, 20 Sup. Ct
288, holding proceeding by information for felony is due process
of law.
129 U. S. 58-65, 32 L. 619, WALLACE v. JOHNSTONE.
Syl. 1 (XI, 681). Agreement to reconvey — Deed as mortgage.
Approved in Northern Cent. Ry. v. Hering, 93 Md. 174, 48 Aa
462, holding where purpose of mortgage is to secure payment of
annuity and there exists under it no right on part of mortgagee
1U91 Notes on U. S. ReporU. 129 U. S. 65-101
to demand payment at any time of obligation on part of mortgagor
to pay same, mortgage conferring power to foreclose only on de-
fault in payment of annual sums, mortgagor cannot redeem* by
payment of a principal sum; Spaulding v. Brown, 36 Or. 167, 59
Pac. 188, holding where absolute bill of sale given for loan and
vendee gave debtor option to purchase stock within limited time,
and debtor surrendered option before its expiration, for valuable
consideration, and vendee sold stock at retail, transaction was con-
ditional sale and not mortgage; Trlpler v. Campbell, 22 R. I. 266,
47 AtL 386, conptruing absolute deed as mortgage.
129 U. S. 65-70. 32 L. 621, NOBLE v. HAMMOND.
Syl. 1 (XI, 682). Bankruptcy — Fraud precluding discharge.
Approved in Knott v. Putnam, 107 Fed. 910, holding debt for
proceeds of cotton purchased and resold by bankrupt as broker
on orders from customers is one from which he is released by
discharge, and arrest upon State execution issued upon such debt
will be enjoined pending determination of application for dis-
charge; Gee V. Gee, 84 Minn. 387, 87 N. W. 1117, holding exception
of discharge in bankruptcy act from Judgment for debt for fraud
in a fiduciary capacity does not apply to misappropriation by
partner while engaged in conduct of partnership business.
129 U. S. 70-86. Not cited.
129 U. S. 8^-101, 32 L. 630, ARROWSMITH v. GLEASON.
Syl. 2, 3 (XI, 683). Following State decisions.
Approved in Security Trust Co. v. Dent, 104 Fed. 386, holdtng
Minnesota statutes, providing that claims not presented to adminis-
trator within certain time are barred, do not deprive Federal
court of Jurisdiction of suit by nonresident creditor against ad-
ministrator; dissenting opinion in Wahl v. Franz, 100 Fed. 698,
majority holding, under Arkansas statute providing that on pro-
bate appeal cause shall be tried de novo, proceeding on appeal
la not suit of civil nature at law or in equity within Judiciary act
1888, §§ 1, 2.
Syl. 4 (XI, 683). Equitable relief — Following State decisions.
Approved in Lombard v. La Dow, 126 Fed. 126, holding pur-
chaser at guardian's sale who Joins in mortgage covering entire
property executed prior to guardian's sale, though having at that
time no interest therein, is not bona fide purchaser who can take
title as against minor; National Surety Co. v. State Bank, 120
Fed. 598, 600, 602, upholding Federal court's Jurisdiction to en-
join plaintiff in unconscionable State Judgment from using it to
extort money from a defendant who ought not to pay it; Hale v.
Tyler, 115 Fed. 838, holding Federal court may at suit of creditor
set aside decedent's fraudulent conveyance, notwithstanding pend-
ency of State probate proceedings, where State court has not taken
129 U. S. 101-128 Notes on U. S. Reports. 1002
possession of realty by order to sell or otherwise; Hendryx t.
Perlsins, 114 Fed. 807, holding decree entered on bill to impeach
prior decree for fraud, vacating prior decree and restoring parties
to former situation, is appealable; Phelps v. Mutual Reserve, etc.,
Assn., 112 Fed. 405, holding Federal court cannot enjoin receiver
appointed by State court of concurrent Jurisdiction from acting
under his appointment where no priority of Jurisdiction by Fed-
eral court is claimed, on ground that State court was without
Jurisdiction to make appointment; Curtis v. Schell, 129 Cal. 2X8,
79 Am. St Rep. 114. 61 Pac. 964, upholding equitable relief where
probate orders, authorizing family allowance and directing sale
of realty, procured by fraud, have become finaL
Distinguished in Bvans v. Gorman, 115 Fed. 402, holding Federal
court cannot enjoin sale of estate lands ordered by Arkansas Pro-
bate Court to pay Judgment against estate.
129 U. S. 101-104. Not cited.
129 U. S. 104^114, 32 L. 616. FARNSWORTH v. MONTANA,
Syl. 3 (XI, 684). Supreme Court — Criminal appeal from Ter-
ritory.
Approved in Sinclair v. District of Columbia, 192 U. S. 19, 24
Sup. Ct 213, holding Supreme Court has no Jurisdiction to review
on error Judgment of Circuit Court of Appeals of District of Co-
lumbia in criminal case.
(XI, 684). MisceUaneous.
Cited in dissenting opinion in State v. Thayer, 158 Mo. 54, 58
S. W. 14, majorfty holding appeal lies for defendant from convic-
tion in Criminal Court of Jackson county of misdemeanor on in-
formation.
129 U. S. 114-128, 32 L. 623, DENT v. WEST VIRGINIA.
Syl. 1 (XI, 684). Due process — Laws uniform in operation.
Approved in Cargill Co. v. Minnesota ex rel. R. R. & W. Com.,
180 U. S. 467, 45 L. 626, 21 Sup. Ct. 429, upholding Mich. Gen.
Laws 1895, chap. 148, p. 313, classifying elevators on railroad
right of way or depot grounds and requiring license for such ele-
vators, though no license required for elevators differently situated;
Sutton V. Hancock, 118 Ga. 443, 45 S. E. 507, upholding Civ. Code,
§ 3283, making Judgment In probate conclusive after lapse of cer-
tain number of years; Parks v. State, 159 Ind. 217, 227, 64 N. E.
865, 868, upholding Burns' Rev. Stat 1901, §§ 7318-7323e, mak-
ing it unlawful for any unlicensed person to open office for prac
tice of medlcihe, or to announce to j^ubllc a readiness to so practice,
or to attempt to treat diseases, and regarding use of words
" doctor " and '* professor " as practicing medicine; State v. Bo-
hemler, 96 Md. 260, 52 Ati. 645, upholding act 1895, chap. 170,
regulating practice of medicine; Scholle v. State, 90 Md. 740, 46
10B8 Notes on C. S. KeportH. 129 D. S. 114-128
Atl. 327, upholdiDg Code, eupp. art. 43. !S 3SM13, providing for
licensiDK of physidnna. but exempting army, naTf or marine
bospital Gurgeonij and pbyaiclaus from other States In actual coH'
Bultatlon. and persons temporarily practlclDg undi-r Bupervlslon of
actual medical preceptor; Detroit, etc, Ry. v. Commissioner. 127
Mich. 229. 86 N. W. 840. holding, under act 1893. No. 171. f 5,
ntiere railroad extends road across existing street-car line, rail-
road conjmlBslooer may require street-car company to pay portion
of expense of constructing and maintaining neceaaary safety ap-
pliances; Oblo V. Hogan, 63 Otiio St. 210, 58 N. B. 573, upholding
Rev. Stat,, ! 6085 (tramp law), punishing threatening to do Injury
to person of another by tramp; State Board of Health v. Roy. 22
R. I. 544, 4S AtL 603, upholding Gen. Laws. chap. 165. S 5. em-
powering State board of health to refuse to Issue certificate or to
revoke certificate of physician guilty of gross unprofessioual
character.
Syl. 2 (XI. ftSCK Acts requiring ptyslclan'B certlOcatea.
Approved In llutz v. Michigan, 188 U, S. 506, 510, 23 Sup. Ct
391, 47 L. 565, 567. afflrmlng 127 Mich. 89, 86 N. W. 397, uphold-
ing Pub. Acts 1890, No. 237, prorldlng for regulation, licensing and
registration of physicians and surgeons; Bolln v. Nebraska, 17il
U. 8. 86, 44 L. 383, 20 Sup. Ct 288. upholding proceeding by
Information for felony; Bragg t. State. 134 Ala. 182, 32 So. 773,
upholding statutes regulating practice of medlciue: Parks r. State,
159 Ind. 221, 222, 64 N. E. 866, upholding Bums' Rev. Stat. 1901,
II 7318-73236, making It unlawful for any unlicensed person to
open an office for practice of medicine, or to announce to public
readiness to so practice or to attempt to treat diseases, and re-
garding use of words " doctor " and " professor " as practicing
medicine; Iowa v. Balr, 112 Iowa, 407, 84 N. W. 532. upholding
Code, i 2579, requiring that examination before Slate board of
medical examiners, a certificate of graduation from a medical school
or a showing that physician has been In practice In State for five
consecutive years, three of which shall have been In one locality,
shall be required to show quallQcatlou to practice medicine; State
T. Wilcox. 64 Kan. 701. 68 Pac. 635, and Meffert v. Medical Board,
66 Kan. 714. 72 Pac. 248. both upholding I.awa 1901. chap. 254,
creating State board of medical examination and replntrntlon;
State V. Bohemler, 96 Me. 258, 52 Atl. 644. upholding act ISUj,
chap. 170, regulating practice of medicine, though It exempts from
Ita operation physlcinn called from another State to treat par-
ticular case; Scholle v. State, 90 Md. 744, 46 Atl. 328, upholding
Code, supp. art 43, Ei 39-63. providing for licensing of physicians
by board of medical examiners, but exempting commlsaioued sur-
geons In army, navy and marine hospital service, and physicians
In actual couaultatlon from other States, and persons temporarily
practicing under supervision of actnal medical preceptor; Stata
129 U. S. 128-151 Notes on U. S. Reports. lOM
V. Knowles, 90 Md. 657, 45 AtL 879, upholding act 1896, chap. 378,
requiring dentists to obtain certificate of proficiency from State
board of dental examiners; State v. Zeno, 79 Minn. 84, 79 Am. St
Rep. 424, 81 N. W. 749, upholding Laws 1897, chap. 186, prohib-
iting person from following occupation of barber without first
obtaining certificate of registration; Ex parte Lucas. 160 Mo. 233,
61 S. W. 222, upholding Acts 1899, p. 44, regulating occupation
of barbers; State t. Gravett, 65 Ohio St 309, 62 N. B. 326, hold-
ing 94 Ohio Laws, p. 197, discriminating against osteopathists by
requiring them to hold diploma from college requiring four years
of study as condition to their obtaining limited certificates, while
not requiring such time of study from those contemplating regular
practice as condition to their obtaining unlimited certificates, is
void; In re Registration of Campbell, 197 Pa. St 587, 47 AtL 861, up-
holding act May 18, 1893. relating to registration of physicians;
State Board of Health v. Roy, 22 R. I. 540, 48 Atl. 803, holding
charge that physician obtained certificate from State board of
health by fraudulent use of diploma issued to different person is
charge of *' grossly unprofessional conduct of character likely to
deceive or defraud the public" within Gen. Laws, chap. 165, f 5;
State V. Currens, 111 Wis. 436, 437, 87 N. W. 563, upholding Laws
1901, chap. 306, malting both diploma from medical college, requiring
three courses of not less than six months each, and an examina-
tion by State board, prerequisites to license, and providing that
students now matriculated in any medical college shall be entitled
to license without examination on presentation of diploma. See
78 Am. St Rep. 259, note.
129 U. S. 128-141, 32 L. 612, INMAN v. SOUTH CAROLINA RT.
Syl. 3 (XI, 686). Carriers having benefit of insurance.
Approved in In re Lalieland Transp. Co., 103 Fed. 334, 335, hold-
ing where in limitation of liability proceedings arising out of col-
lision resulting in loss of second vessel, such vessel, though equally
in fault was awarded exemption from liability to cargo-owners,
her owners cannot be subrogated to claims of cargo-owners against
insurer of cargo under benefit of insurance clause in bill of lading;
Kennedy Bros. v. State Ins. Co., 119 Iowa, 33, 91 N. W. 832, hold-
ing where insured property is destroyed by negligence of another
than insured, recovery from tort-feasor extinguishes liability of
insurer.
129 U. S. 141-151, 32 L. 637, STOUTENBURGH v. HENNICK.
Syl. 3 (XI, 687). Commerce — Licensing drummers from other
States.
Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190
U. S. 162, 23 Sup. Ct 818, 47 L. 999, holding telegraph company,
though engaged in interstate commerce, may be compelled by
municipality to pay reasonable license fee for enforcement of
1096 NoteB on U. S, Reporta. 12a U. 8. 141-151
local KorerDment aiiperrlalon ot its poles and wires; Caldwell
V. North Carolina, 187 V. 8. 62T. 23 Sup. Ct. 231, 47 L. 339, liold-
Ing void ordinance under whicli license fee may be required
from agent of nonresident portrait company who receives from
company pictures and frames to flU orders prcYiously obtained,
and after breaking bulfc and placing pictures In frames delivers
them to purchasers; Hanley v. Kansas City Southern Ry, Co.. 187
n. 8. 619, 23 Sup. Ct. 215, 47 L. 335, holding Arkansas railroad
commission cannot fli rates for continuous transportation of goods
between two points within State, where large part of route Is
outside of State; Stockard v. Morgan. 185 U. S. 34, 48 L. 793,
22 Sup. Ct. 579, holding void Tenn. statute, imposing privilege tas
on merchandise brokers whose business Is exclusively conflned
to aollcltlng orders from wholesalers and jobbers within State
laa agents for nonresidents for goods shipped by such nonresident
principals to Jobbers and dealers; United States t. Whelpley, 125
Fed. 017. holding act March 2, 1895, chap. 191, prohibiting any
person who shall cause to be brought within United States from
abroad, etc., any lottery ticlcet, docs not prohibit transportation
of lottery tickets from a State to District of Columbia; Lowry
V. Tile, etc., Assn., 106 Fed 43, holding Tile. Mantel & Grate Associa-
tion of California, uniting all dealers In tiles and maotela around San
Francisco, violates sections 1 and 2 of anti-trust net of 1S90; Stone v.
State, 117 Ga. 29G. 43 S. E. 742. holding one, who as representative
Of nonresident principal, takes orders on such principal for pur-
chase of goods, and who when goods shipped receives them, breaks
original package and distributes them among customers, la en-
gaged In interstate commerce; State v. Hlckox, 64 Kan. 654, 68
Pac. 37, holding State law placing restrictions on solicitation of
orders by nonresident salesman for liquors to be Imported into
State from another State where such orders are subject to ap-
proval by merchant Is burden on interstate commerce; In re
■Wilson. 10 N. Mes. 35, 60 Pac. 75, holding S ess. Laws 1899. p. 101,
Imposing license fee on sales of coal oil In Territory In original
packages by Importer, void; Adklns v. Richmond. 98 Va. 97, 34
S. B. 069, holding resident soliciting orders for sale of goods by
sample solely for nonresident owners, and who forwards such
orders and receives commission for sales negotiated by him. Is
broker engaged In Interstate commerce; dissenting opinion in Dooley
V. United States. 183 U. S. 172, 40 L. 137. 22 Sup. CL 71, and dla-
sentlng opinion In Dowiies v. Bidwell, 182 D. 3. 355, 45 L. 1132. 21
Sup. Ct. 813, majorities upholding Imposition of duties on Imports
from Porto Rico by Foraker act of 1900, temporarily providing
cItH government and revenues for Porto Rico; Eager Co. v. Burke,
74 Conn. 538, 51 Atl. 545. arguendo. See 96 Am. St. Rep. 849, note.
Limited In Racine Iron Co. v. McCommons, 111 Ga. 540. 36 S. B.
8GT, holdlug States may, to raise revenue, impose license tax on
persons who, as traveling agents for principals residing In other
i
120 U. 8. 151-202 Notes on U. S. Reports. 1006
States, make executory contracts for sale of goods and who, when
goods shipped, break original packages and distribute goods among
customers.
120 U. S. 151-170, 82 L. 645, BATB REFRI6. CO. v. HAMMOND.
Syl. 1 (XI, 688). Bxpiration of patent taken out after foreign.
Approved in Hobbs v. Beach, 180 U. S. 308, 45 L. 504, 21 Sup.
Ct. 415, holding patent for invention does not expire at same time
with foreign patent for same invention by force of Rev. Stat,
§ 4887, unless foreign patent was obtained by American patentee
or with his consent; John R. Williams Go. v. Miller, etc.* Mfg. Ck>.,
115 Fed. 526, holding fact that applicant for patent assigned right
thereto to another before obtaining foreign patent, which was
issued before one In this country, does not prevent latter from
being limited to term of foreign patent under Rev. Stat., f 4887;
Sproull V. Pratt & Whitney Co., 101 Fed. 265, holding, under con-
tract by which licensee agreed to manufacture and to pay royalties
under number of patents relating to same art and expiring at
different times, licensee not required to pay same royalty after all
patents but one have expired, where only small portion of goods
thereafter manufactured were covered by remaining patent
(XI, 688). Miscellaneous.
Cited in Mackey v. Miller, 126 Fed. 162, holding using deadly
weapon in resisting Indian agent who was making search for
liquors on reservation does not fall within Rev. Stat., § 5447.
129 U. S. 170-181. Not cited.
129 U. S. 182-193, 32 L. 642, PROBST v. PRESBYTERIAN
CHURCH.
Syl. 2 (XI, 690). Adverse possession bars ejectment
See 95 Am. St Rep. 672, note.
129 U. S. 193-202, 32 L. 658, GALIGHER v. JONES.
Syl. 4 (XI, 690). Damages — Broker selling without orders.
Approved in In re Swift, 112 Fed. 317, holding broker purchas-
ing stock for customer on margin is bound to deliver stock pur-
chased on demand and payment of amount due thereon, and he is
entitled to claim payment on tender of stock after reasonable
notice to purchaser.
Syl. 6 (XI, G91). Damages for conversion of stock.
Approved In In re Swiftf 114 Fed. 949, reaffirming rule; Hoyt v.
Fuller. 104 Fod. 103, holding In action for special damages for loss
of sale of personalty at highest market value during its detention,
ilofendant may show that within thirty days after property re-
turned to plaintiff and while he held It, and before commencement
of net ion. its market value was as high, and its sale as feasible,
as during detention.
1097 Notes on U. 8. Reports. 129 U. S. 202-222
129 U. S. 202-206. Not cited.
129 U. S. 206-216, 32 L. 656, FARMERS' LOAN. ETC., CO. v.
PETITIONER.
Syl. 1 (XI, 691). Appealability of decrees after rendition of final.
Approved in City of Eau Claire v. Payson, 107 Fed. 557, holding
order requiring city to pay sum to receiver on account of disputed
claim against city, which makes no provision for return of money
in any case, is final appealable decree, though it leaves question
city's ultimate liability for future determination.
Syl. 2 (XI, 691). Appealability of order authorizing lien after fore-
closure.
Approved in In re Michigan Cent. R. R. Co., 124 Fed. 731, hold-
ing decree against party to proceeding for costs to be paid to clerk
for services rendered, and awarding execution therefor, is final and
appealable; Bibber- White Co. v. White River, etc., R. R. Co., 115
Fed. 788, holding order authorizing railroad receiver to issue cer-
tificates and providing that they shall be prior in lien to mortgage
indebtedness or to certificates previously issued is final and appeal-
able; Kemp V. National Bank of The Republic, 109 Fed. 50, holding
decree determining invalidity of trust deed is final and appealable
as to trustee and beneficiary, though it is interlocutory only as to
other matters involved in suit, in which such parties have no In-
terest; Tormanses v. Melsing, 106 Fed. 786, holding, under Alaska
Code, § 504, order of District Court by which placer claim, together
with personalty not Involved in litigation, is taken from one who
is in actual possession thereof, claiming ownership, and turned
over to receiver with instructions to work claim, fs final and ap-
pealable; Central Trust Co. v. Western North Carolina R. R. Co.,
112 Fed. 476, arguendo.
Syl. 3 (XI, 692). Courts — Discretionary authority.
Approved in Ross v. Saunders, 105 Fed. 917, holding bankrupt
whose application to have composition confirmed was not formally
opposed by creditors cannot appeal from refusal.
129 U. S. 217-222, 32 L. 695, KIMMISH v. BALL.
Syl. 1 (XI, 692). Commerce — Texas fever regulation.
Approved in Smith v. St. Louis & Southwestern R. R. Co., 181
U. S. 256, 258, 45 L. 850, 851, 21 Sup. Ct. 606, upholding Tex. Rev.
Stat 1895, art. 5043c, whereby importation of all cattle from Louisi-
ana until fifteenth of following November is prohibited, because
live stock commission had reason to believe that anthrax had or was
liable to break out in that State.
Syl. 3 (XI, 692). Iowa cattle law — Privileges and immunities.
Approved in Reid v. Colorado, 187 U. S. 153, 23 Sup. Ct. 98, 47 L.
116, upholding Colo. Sess. Laws 1885, p. 335, for protection of do-
129 U. S. 22a-262 Notes on U. S. Reports. 1098
mestic cattle against communication of disease by cattle from other
States, affirming 29 Ck)lo. 943, 68 Pac. 231, 93 Am. St. Rep. 76;
State y. Rasmussen, 7 Idaho, 9, 59 Pac. 935, upholding act of March
13, 1809, establishing quarantine against diseased sheep. See notes,
93 Am. St Rep. 88; 78 Am. St Rep. 269.
129 U. S. 223-233, 32 L. 682, NATIONAL, ETC., BANK ▼. BUTLBR.
Syl. 5 iXI, 693). Objections first raised on appeal.
Approved in Atchison, etc., Ry. Co. v. Phipps, 125 Fed. 485,
holding irregularity in form of verdict cannot be frst urged on
appeal.
129 U. S. 233-238. 32 L. 686, ROBERTSON v. PERKINS.
Syl. 4 (XI, 693). Introduction of evidence after refusal to direct
verdict
Approved in M'Crea v. Parsons, 112 Fed. 919; Barabasz v. Kabat,
91 Md. 60, 46 Atl. 339, and Bopp v. New York, etc., Transp. CJo.. 177
N. Y. 36, 69 N. B. 123, all reaffirming rule.
Syl. 5 (XI, 693). Crop ends of steel rails dutiable as steel.
Approved in Meier v. United States, 128 Fed. 473, holding "flit-
ters" made from sheets of copper and zinc and reduced to fine
condition for use in same manner as bronze powder are free of duty
under 30 Stat 197.
129 U. S. 238-248, 32 L. 664, BROWN v, SUTTON.
Syl. 1 (XI, G94). Specific performance of agreement to convey
after death.
Approved in 'Whitney v. Hay, 181 U. S. 90, 45 L. 764, 21 Sup.
Ct 542, upliolding decree declaring trust in land conveyed in viola-
tion of oral contract under which, in consideration of support of
grantor, title should be conveyed by will or otherwise to promisee,
and which has been partially performed by delivery of possession
of premises and by furnishing support to owners,
129 U. S. 240-252. Not cited.
129 U. S. 252-262, 32 L. 669, CARR v. HAMILTON.
Syl. 2 (XI, 694). Policy-holders as creditors of bankrupt insurers.
Approved in In re Swift 112 Fed. 323, holding where filing of
petition in banliruptcy itself operates as breach of executory con-
tract because equivalent to refusal to perform, other party may
prove his claim for damages as one existing at time of filing of
petition.
Syl. 3 (XI, 694). Set-off of money borrowed from insurer.
Approved In Hutchinson v. Le Roy, 113 Fed. 204, holding where
pledgee of stock repledged it to bank without knowledge of debtor
to secure debt of his own, and he was afterward adjudged bankrupt,
and his trustee had In his hands funds exceeding proceeds of cer-
lUlK)
Notes on U. S. Kejiorta. 129 U. S. 263-200
tlDcate, original pledgor could recover from trustee proceeds of
bl8 stock lesB amount of bis debt to bankrupt; Neely v. National
Bank. 25 Tex. Civ. 516. 61 S, W. 501, holding bank wben gamlsbed
by creditors of one oC Its depoaitore who bas become Insolvent, and
whose notes It bolds. mar. as against garnishing creditors, set otT
deposit against notes, though notes not yet due; Troup v. Mechanics'
Nat. Bank, 24 R. I. 381. 53 AU. 124, arguendo.
Distinguished in In re Meyer, 106 Fed. 831, holding creditor not
entitled to set off in full amount of accommodation notes given to
bankrupt against sum due bankrupt from such creditor.
129 U. S. 263-290, 32 L. 715, MOBLBY MACHINE CO. T. LAN-
CASTER.
Syl, 1 (XI, 695). Patents — Infringement by Improved machine.
Approved In Hobbs v. Beach, 180 U. S. 401, 45 L. 595, 21 Sup,
Gt. 416. holding Horton patent for machine for applying stays to
box corners Infriuges Beach reissue No. 11.167; Wilson v. Townby
Shingle Co.. 125 Fed. 495, holding Sears' patent No. 335,635, for
ehlngle-edglng machine, not Infringed lu view of prior art; Fay
V, Mason, 120 Fed. 510, upholding Fay reissue No. 11.6S4, for
collar- ironing machine; Durfee v. Bawo, 118 Fed. 858, holding
Harrington patent No. 485.542, for Improvement In tubular bells,
valid, but limited by prior art; Crown Cork, etc., Co. v. Aluminum,
etc., Co., 108 Fed. 807, 868. holding Painter reissue No. 11.685, for
bottle-stopper, valid and Infringed by Hall patent; Moore v. Eg-
gers, 107 Fed. 497, balding Moore patent No. 524,502. for apparatus
for digging trenches, valid, but limited by prior art; Eldred T.
KesBler, lOB Fed. 517, holding Chambers' patent No. 492,913, for
electric cigar lighter, claims 1, 7, 10, limited to specific improve-
ments shown and not Infringed; Thorn son- Houston Electric Co.
V. Lorain Steel Co.. 103 Fed. &i5, holding Knight patent No. 428,109,
for electric motor regulator, valid and Infringed by Harris patent
No. 587,733.
Syl. 3 (XI, 805). Patents — Liberal construction of pioneer In-
vention.
Approved In Otla Elev, Co. v. Portland Co., 127 Fed. 563, hold-
ing Bassett pateut No. 453.055. for elevator-controlling mechanism,
void for double patenting, affirming 119 Fed. 031; Samson Consol.
Store Service Co. v. Hillman, 123 Fed. 423. holding McCarty patent
No. 465,967, for store apparatus for carrying cash and packages.
valid and infringed by Glpe patent; Galsman v. Gallert, 105 Fed. 958.
upholding Galsman patent No. 542,300, tor Improvement In waist
belts; Ford v. Bancroft, 98 Fed. 312, holding Morris patent No.
401,050, for machine for making woven cane work, not entitled to
broad construction; Leln v. Meyers. 97 Fed, 608, upholding Lein
patent No. 615,073, for mattress frame.
i
129 U. S. 291-^29 Notes on U. S. ReportB. 1100
Syl. 4 (XI, 696). Patents — Known equivalents.
Approved in Lourie v. H. A. Mel drum Co., 124 Fed. 764, hold-
ing steel patent No. 652,407, for garment fastener for attachment
to corset, valid and infringed; Simplex Ry., etc., Co. v. Wands,
115 Fed. 521, holding parol evidence is admissible to show state
of art and as bearing on manner in which doctrine of equivalents
should be applied; Crown Cork, etc., Co. v. Aluminum, etc., Co.,
108 Fed. 867, 86a holding Painter reissue No. 11,685, for bottle-
stopper, valid and infringed by Hall patent
129 U. S. 291-294, 32 L. 688, ELY v. NEW MEXICO, ETC., RY.
Syl. 2 (XI, 697). Quieting title by owner out of possession.
Approved in Fulkeson v. Chisna Mln., etc., Imp. Co., 122 Fed.
785, holding, under Alaska Code, | 475, one in possession of niinlng
claim in Alaska, under valid location, has such title as will sup-
port action to quiet title against an adverse claimant
Syl. 3 (XI, 697). Quieting title — Sufficiency of complaint
Approved in Tonopah Fract Mln. Co. v. Douglass, 123 Fed. 941,
holding, under Nev. statute, bill by adverse claimant In possession
in nature of bill to quiet title, alleging that land is part of mining
claim of which plaintiff is owner and in possession, and that it is
claimed by defendant as part of overlapping claim subsequently
located, need not allege probative facts; Schlageter v. Gude, 30
Colo. 313, 70 Pac. 429, upholding complaint in suit to quiet title
which substantially alleges that plaintiff is owner and in posses-
sion of premises and that defendant claims interest or estate
therein adverse to plaintiff which is without any right or founda-
tion; Watson V. Glover, 21 Wash. 681, 59 Pac. 517, upholding com-
plaint, under Ball. Code, § 5521, alleging that plaintiff is in pos-
session described as trustee of certain defendants, for use and
benefit of them, that defendants claim they are entitled to premises
and that deed of trust given by them for benefit of creditors did
not convey premises in controversy.
129 U. S. 294^05. Not cited.
129 U. S. 305-315, 32 L. 673, UNION PACIFIC RY. CO. v. Mo
ALPINE.
Syl. 4 (XI, 698). Consolidation of corporations — Contract to
convey.
See notes, 89 Am. St Rep. 639, 643.
129 U. S. 315-329, 32 L. 690. MORRIS v. OILMAN.
Syl. 1 (XI, 698). Dismissal where record shows want of Juris-
diction.
Approved in Defiance Water Co. v. Defiance, 191 U. S. 195, hold-
ing where action of which lower court had no jurisdiction was
dismissed for want of jurisdiction decree will be reversed at cost
noi Notes on D. S. Eeporta. 129 V. S. 315-a2U
of appellant and retDanded with Instructloni to dismiss for want
ot Jurisdiction; ExcelaEor Wooden Pipe Co. v. Paclflc Bridge Co..
185 U. S. ass. 48 L. 014, 22 Sup. Ot. GS3, upholding Circuit Cniirfa
jurisdiction orer suit by licensee against patentee and tlilrd per-
son in which hill sets up title under license, and alleges ratldlty
of patent and Infringement, though answer raises no Issue as to
validity of patent or Infrmgement, and admits license, but pleads
abandonment, forfeiture and revoentlon; Great Southern Fire Proof
Hotel Co. V. Jones, 17" U. S. 434, 44 L. 844. 20 Sup. Ct (i92.
holding limited partnership association, created under Pa. Laws
1874, p. 271. Is not citizen of State within meaning of Constitution
extending Federal judicial powers to oontroTerslea between diverse
clOzens; Huntington v. Laidley. 176 V. S.. 078, 44 L. C35. 20 Sup.
Ct, 529, holding direct appeal from Circuit Court to the Supreme
Court on ground that Circuit Court's jurisdiction Is in Issue may
be sustained when final decree dismissing bill and order allowing
appeal therefrom, as ft'ell as court's certificate, show that only
question aa which decree was based was that of Jurisdiction.
Syl, 2 (XI, 699). Failure to deny Circuit Court's Jurisdiction.
Approved In Defiance Water Co. v. Defiance, 191 U. S. l&t.
holding where action of which lower court did not have Jurisdic-
tion was dlmlBsed, but not for want of Jurisdiction, decree will
be reversed at cost of appellant and remanded with instructions
to dismiss for want of Jurisdiction; Purnell v. Page, 128 Fed. 497,
holding, under 25 Stat. 434, Circuit Court has uo Jurisdiction of
suit to restrain enforcement of personal State tas amounting only
to (SO, though tai constituted cloud on complainant's title to realty,
value of which exceeded ?2.000; Adams v. Shirk, 117 Fed. 804,
holding, under 18 Stat. 472. plaintiff's allegation that he Is citizen
of certain State other than that of which defendant la citizen la
not overcome by simple denial In plea In abatement that plaintiff
is citizen of such State, but defendant has burden of showing
that there Is not diversity of citizenship; Paclflc Mut. Life Ins.
Co. V. Tompkins, 101 Fed. 542, holding objection, that action Is
brought In district in which neither plaintiff nor defendant resides
Ib not waived by defendant by attending at taking of depositions
by plaintiff, before Issues are made up. nor by falling to file plea
In abatement; dissenting opinion In GIt>bs v. Glbbs, 28 Utah. 420,
73 Pac. 657, majority holding, under Rev. Stat. 18G8, i 120S, Dis-
trict Court ot county In which plaintiff resides has jurisdiction of
subject-matter of action for divorce for adultery committed in
another county, and defendant's appearance and failure to object
that action should be tried In county where alleged adultery was
committed Is waiver of jurisdiction.
Syl. a (XL C99). Courts — Object of change of domicile Imma-
terial.
Approved In Reavls t. Reavis. 101 Fed. 22, holding motion t
i
129 U. S. 320-345 Notes on V. S. Reports. 1102
dismiss based on denial of Jurisdictional averment in answer and
upon evidence subsequently taken on merits not waived by other
defenses set up in answer.
Syl. 4 (XI, 691). Courts — Change of. domicile must be permanent
Approved in In re Gameau, 127 Fed. 679, holding removal from
one district to another for express purpose of filing petition in
bankruptcy therein, and with intention of leaving district as soon
as he obtained discharge, does not make him resident so as to
confer Jurisdiction on court; Collins v. City of Ashland, 112 Fed.
178, holding where defendant had home in Ohio, but removed
across river into Kentucky so as to be nearer work in winter, in-
tending to return in spring, but did not in fact return in spring
after action commenced, but gave satisfactory reasons for not
doing so, and voted in Ohio, there was no change of domicile;
In re Filer, 108 Fed. 211, holding where domicile of alleged bank-
rupt has been for several years within district where petition is
filed and family continues to reside there, fact that more than
three months before filing of petition he absconded to avoid ar-
rest does not defeat Jurisdiction; In re Williams, 99 Fed. 546, up-
holding Bankruptcy Court's Jurisdiction over voluntary petition
for adjudication in bankruptcy filed by debtor who had his domi-
cile within district for precedinfef six months, though during greater
portion of time he had^ resided abroad.
(XI, 69K). Miscellaneous.
Cited in Randall v. New England Order of Protection, 118 Fed.
784, holding where petition for removal filed February 13th al-
leged that defendant was required to appear within forty-two days
from December 3d, but that time to plead was regulated by court
rule, and that defendant's time did not expire until February 14th,
motion to remand on ground that time to plead had under rules
expired, but failing to set up State rules, will be denied.
129 U. S. 329-345, 32 L. 677, WHITE v. COTZHAUSEN.
Syl. 1 (XI, 699). Remedial assignment act liberally construed.
Approved in People v. Mercantile, etc., Co., 166 N. Y. 421, 60
N. E. 26, holding written transfers by which debtors convey sub-
stantially all their property to pay or secure debts, property being
at once delivered, and debtors thereupon at once cease to do busi-
ness, constitute assignment for creditors within policy insuring
against Insolvency of debtors making general assignment.
Syl. 2 (XI, 700). Insolvency — Transfer to certain creditors.
Approved in United States Rubber Co. v. American Oak Leather
Cq , 181 U. S. 451, 452, 45 L. 947. 21 Sup. Ct 677, holding prefer-
ences by confessed Judgments and assignments which are con-
structively, but not actually fraudulent against other creditors,
though set aside in suit by other creditors, do not preclude those
1103 Notes on U. S. Reports 129 U. S. 346-366
taking invalid preferences from sharing with unsecured creditors
pro rata; Harbaugh v. Costello, 184 III. 117, 75 Am. St Rep. 150,
56 N. E. 365, holding provision of national bankruptcy act that
filing of petitions shall be postponed for stated time does not pre-
vent act from becoming operative from date of passage, so as to
supersede State insolvency law from that date.
129 U. S. 340-355, 32 L. 706. PINKERTON v. LEDOUX.
Syl. 1 (XI, 701). Public lands — Necessity for congressional con-
firmation.
Approved in United States v. Cameron, 3 Ariz. 102, 21 Pac. 177,
holding report of surveyor-general upon Mexican grant is not com-
petent evidence for any purpose; Lockhart v. Leeds, 10 N. Mex.
600, 63 Pac. 53, holding, under Comp. Laws, | 4010, suit to quiet
title cannot be maintained by owner of interest in unconfirmed
grant.
129 U. S. 355-366, 32 L. 712, WALWORTH v. HARRIS.
Syl. 1 (XI, 702). Law governing mortgage on crop in another
State.
Approved in The Robert Dollar, 115 Fed. 222, holding 1 Hill's
Wash. Code, | 1678, making every master, consignee or person
having charge of construction or equipment of any vessel an agent
of owner for purpose of contracting debts on credit of vessel, ap-
plies to foreign vessels obtaining supplies in ports of the State.
Syl. 3 (XI, 702). State may regulate property transfers.
Approved in Eldman v. Martinez, 184 U. S. 582, 46 L. 701, 22
Sup. Ct. 577, holding American securities passing partly under will
executed abroad by nonresident alien, and partly under interstate
laws of Spain, not subject to inheritance tax imposed by war rev-
enue act of 1808, I 29; The Energia, 124 Fed. 846, holding admir-
alty will enforce against foreign vessel Ball. Wash. Code, §§ 5953,
5954, giving lien on all vessels for nonperformace of charter to
carry cargoes to or from ports of State; The Iris, 1(X) Fed. 106,
holding where vessel is sold and, after part payment of purchase
price, is delivered to purchaser under agreement by which he is
authorized to make alterations and repairs at his own expense,
purchaser is equftable owner and may charge vessel with liens
under Pub. Stat Mass., chap. 192, § 14, giving lien to one furnish-
ing labor or materials for repair of vessel under contract with
owner; Wall v. Norfolk, etc., R. R., 52 W. Va. 494. 44 S. E. 298,
94 Am. St. Rep. 956, holding where cars of one road are, under
agreement, received at connecting points by other and hauled over
its line to destination and there reloaded with other freight by
receiving company and returned to road of owner of cars, such
cars cannot be attached against owner so as to defeat rights of
company entitled to use of cars.
120 U. S. 36G-381 Notes on U. S. Report!. IIM
129 U. 8. 366-^72, 32 L. 697, HARRIS T. BARBER.
Syl. 1 (XI, 702). Certiorari as writ of error.
Approved in Barget y. Robinson, 123 Fed. 266, holding where
application to Supreme Court for certiorari to Circuit Court of
Appeals, presenting identical issues which were determined by
that court, has been summarily denied. Circuit Court of Appeals
cannot grant rehearing.
SyL 2 (XI, 702). Certiorari is discretionary.
Approved in State v. Ouinotte, 156 Mo. 528, 57 S. W. 286, hold-
ing, though Rev. Stat 1889, i 278, authorizes appeal to Circuit
Court from order of Probate Court revoking letters of administra-
tion, certiorari to Supreme Court also lies to review such order.
Syl. 3 (XI, 702). Appeal — Jurisdictional amount
Approved in Battle v. Atkinson, 191 U. S. 659, affirming 115
Fed. 389, holding, under Arkansas action for unlawful detainer,
amount in controversy depends on rental value for the limited
time.
129 U. S. 372-381, 32 L. 725, BANK OF FT. MADISON v. ALDEN.
SyL 2 (XI, 703). Corporations — Payment for stock in property.
Approved in Taylor v. Cummings, 127 Fed. 109, holding where
members of firm organised corporation to ccmtinue firm's busi-
ness and adopted bookkeeper's valuation of assets, fact that by
reason of errors in bookkeeper's statements, there was material
overvaluation, did not render stockholders, receiving stock for
their interest In firm as fully paid, liable to creditors for differ-
ence; Cunningham v. Holley Mason, etc., <Ik>., 121 Fed. 721, hold-
ing where fully paid-up stock issued to incorporators in payment
for property transferred, one of incorporators who participated
in agreement and who afterward became creditor cannot assert
its Invalidity for purpose of holding other stockholders for un-
paid subscriptions; State Trust Co. v. Turner, 111 Iowa, 672, 82
N. W. 1032, holding where payee takes corporation's note with
knowledge that its stock was exchanged for property at excessive
valuation, his assignee after maturity who has secured Judgment
on note against corporation cannot recover of stockholder because
he has not paid full value for stock; John R. Proctor Land Co.
V. Cooke, 103 Ky. 104. 44 S. W. 393, holding stockholder in insolv-
ent corporation who has paid his stock subscription in full by
transfer of tract of land in good faith, at agreed value for use
of company's business, not liable to creditor of corporation who
had knowledge and consented to transaction, on ground that land
proved to be of less value than agreed upon; Berry v. Rood, 168
Mo. 334, 67 S. W. 649, holding creditor who knows that corpora-
tion has accepted property of less value than face of stock in full
payment of its stock and so knowing loans money to corporation
1106 Notes on U. S. Reports 129 U. S. 381-463
cannot call on stockholder to contribute toward payment of debt;
Richardson v. Mining Co., 23 Utah, 386, 65 Pac. 79, holding where
mining property was transferred in payment of stoclt and $10,000
worth of ore extracted, and stockholders paid $50,000 in volun-
tary assessments, subscriptions cannot be said to remain unpaid.
129 U. S. 381-386. Not cited.
129 U. S. 387-390, 32 L. 728, RUOKMAN T. CORY.
SyL 2 (XI, 704). Adverse possession — Delay in securing legal
title.
Approved in Brainard v. Buck, 184 U. S. 109, 46 L. 455, 22 Sup.
Ct. 462, holding delay in commencing suit to establish resulting
trust not laches, where facts first learned shortly before death of
resulting trustee, and after death of latter's wife, who was com-
plainant's sister and who conveyed premises to him and was by
him permitted to. remain thereon till her death, and complainant
had no reason to doubt his title till ejectment brought against
him; Nutter v. Brown, 51 W. Va. 603, 42 S. B. 663, applying prin-
ciple of laches in suit to reform deed.
Syl. 4 (XI, 704). No reversal for harmless error.
Approved in In re De Gottardi, 114 Fed. 342, 343, holding on
review of decision of referee in bankruptcy court must determine
issues de novo upon competent evidence in record or he may re-
commit case for further hearing.
129 U. S. 391-396, 32 L. 730, EASTERN R. R. CO. T. UNITED
STATES.
Syl. 1 (XI, 704). Compensation for carrying mail — Receipt of
new rate.
Approved in Boston Ins. Co. v. Chicago, etc., Ry. Co., 118 Iowa,
429, 92 N. W. 91, holding railroad not liable to addressee of mail
carried on its train and lost by negligence of its servants.
129 U. S. 3^7-463, 32 L. 788, LIVERPOOL STEAM CO. T. PHBNIX
INS. CO.
Syl. 2 (XI, 705). O'^'ner canying for hire as carrier.
See 88 Am. St. Rep. 95, note.
Syl. 4 (XI, 705). Exception of perils no excuse for negligence.
Approved in The Manitoba, 104 Fed. 154, holding, under Barter
act, I 3, negligence in care of ports not excused because shipowner
is himself answerable by that section for due diligence in fitness of
cargo's compartment.
Syl. 5 (XI, 705). Carrier cannot stipulate against negligence.
Approved in Knott v. Botany Worsted Mills, 179 U. S. 71, 45 L.
93, 21 Sup. Ct 31, holding damage to wool by drainage from sugar
when it results from fact that for short time vessel was trimbied
Vol. II — 70
p
1L1) U. S. 3ft7-4U3 Notes oo D. S. Reporti. HOU
by heuJ nfter dlecliarglDg part of curgo, until she was usain
trimiui'd by stern at another port, arises from Degllgence In load-
ing or eton-uge makiug vessel liable under Harter act, ctaap. lOG,
i 1. notwithstanding stipulation to contrary In bill of lading; Bal'
timore & Ohio, etc., Hj. v. Volfft, ITU U. 8. 505. 44 L. 565. 20 Sup,
Ct. 387, holding express mesBenger occupying exprees car not
passenger within rule avoiding contract limiting liability of car-
rier to paesecger for negilgence; Saunders v. Southern Ry., 12S
Fed. 10, applying rule to contract releasing carrier from liability
for loss of baggage of theatrical troupe where contract was signed
b.r agent; The Tjomo, 115 Fed. 921, holcling stipulation exempdng
caiTier from liability for occlilpnt to cattle from whatever cause
arising and that shippers aci^epted fittings and fastenings am sat-
isfactory does not relieve carrier under Harter act: Cunard SS. Co,
T. Kelley. 115 Fed. 6S5, GS6. holding clause in bill of lading, ei-
euiptlng shipowner from liability for loss of goods while on quay,
or lOBB by thieves, does not apply to cases where loss occurs throngti
currier's, negligence so as to make It void under Harter act, S 1; Dun-
can V. Maine Cent. B. R, Co., 113 Fed, 511, holding one riding on
pass given without consideration and after assent to conditions
that he should assume all risk of accident cannot recover for
Injuries from negligence of railroad's servants, though giving
of pass was breach of Interstate commerce law; Parker v. Railroad.
133 N. C. 339, 45 S. B. 659, holding carrier cannot by insertlog
in bill of lading " subject to delay " contract against damages
caused by its negligence; Gardner v. Southern R. R., 127 N, C.
296, 37 8. E. 329, holding common carrier can make valid agree-
ment filing value of shipments In case of loss by Its negligence.
If such agreement be reasonable or based on valuable consideration.
Syl. 6 (XI. 707). State decisions as to carrier's liability.
Approved In The Barnstable, 181 U. S. 470, 45 L. 958, 21 Sup.
Ct. 087, holding liability for damage caused by negligence of
officers and crew of vessel, wtio are appointed and paid by cbar-
terera. Is not, as between charterers and owners. Imposed on own-
era by charter party requiring owners to pay insurance on vessel;
Gilbert v. American Surety Co.. 121 Fed. 502. holding State de-
cision as to effect of invalidity of contract on rights of parties
to suit not binding on Federal court; Independent School Dist
T, Rew, 111 Fed. 11, holding Federal court not bound to follow
State decisions In determining validity of municipal bonds hs
against bona fide purchasers; Lite Ins. Clearing Co. v. O'Neill.
106 Fed. 801, holding, under Pa. poor law, making chil-
dren of every poor person liable for support of such person, aduit
son has no Insurable Interest in father's lite except for purpose
of relmliursing himself for payments actually made or to be made
for father's relief; Jennings v. Smith, 09 Fed. 191, upholding con-
tract signed by shipper, providing that in consideration of lower
1107 Notes on U. S. Reports. 129 U. S. 397-463
freight rate, his recovery, in case of damage, shall be limited to
$100 for each horse shipped. See 88 Am. St. Rep. 127, note.
SyL 7 (XI, 7C)»>. Maritime law in effect only as adopted.
Approved in dissenting opinion in Workman v. Mayor, etc.,
of New Yorls, 179 U. S. 586, 45 L. 330, 21 Sup. Ct 226, ma-
Jorlty holding city liable by maritime law for negligence of its
servants in charge of fireboat while hastening to fire, in conse-
quence of which boat collides with and injures another vessel.
Syl. 9 (XI, 708). Foreign laws must be pleaded and proved.
Approved in Nashua Sav. Bank v. Anglo-American Co., 189 U.
S. 228, 23 Sup. Ct 517, 47 L. 785, holding copies of English acts
sufficiently authenticated when produced by English attorney, in
connection with his testimony that copies were printed by her
majesty's printer, as such receivable in evidence without further
proof; The Matterhorn, 128 Fed. 864, applying principle in suit
by seaman against ship for damages for neglect of master to fur-
nish proper care and medical attendance after Injury caused by
master's assault; Hudson River, etc., Co. v. H. H. Warner & Co.,
99 Fed. 189, holding finding of referee as to foreign law is finding
of fact not subject to review. See 94 Am. St Rep. 535, note.
Syl. 10 (XI, 708). Lex loci contractus governs contract interpre-
tation.
Approved in Pittman v. Pacific Express Co., 24 Tex. Civ. 698,
59 S. W. 951, reaffirming rule; Pinney v. Neilson, 183 U. S. 148,
46 L. 127, 22 Sup. Ct 54, holding California stockholders in Colo-
rado corporation whose charter specified that one purpose of in-
corporation was to do business in California are personally liable
under Cal. Civ. Code, § 322; Hieronymus v. New York Nat Build-
ing, etc., Assn., 101 Fed. 14, holding where loan is made by cor-
poration of one State to resident of another, to be paid to borrower
in own State and secured by mortgage on real estate there situ-
ated, usuriousness of contract is determined by laws of State of
lender, where repayment is to be made there; Gray v. Telegraph
Co., 108 Tenn. 46, 91 Am. St Rep. 710, 64 S. W. 1065, holding one
sending telegram from another State to be delivered in this State
may recover of telegraph company, for failure to deliver promptly,
damages for mental distress; Western Union Tel. Co. v. Cooper,
29 Tex. Civ. 594, 69 S. W. 428, holding where telegram was de-
livered in Texas for transmission to another Texas point, via
Indian Territory, and negligence occurred in such Territory, law
of Texas determined liability; Bartlett v. Collins, 109 Wis. 482,
85 N. W. 704, holding contract made in this State between resi-
dents thereof by which one employed other, a broker, to sell wheat
for him in Chicago, is governed by law of this State; dissenting opin-
ion In Keene Five Cent Sav. Bank v. Reid, 123 Fed. 228, majority
holding provision in mortgage that if sum secured or any part thereof.
129 U. S. 465-178 Notes on U. S. Reports. 1108
m
or any interest thereon is not paid when due or if taxes are not
paid then whole of principal and interest shall become due is not
self-operative. See 78 Am. St Rep. 751, note.
Syl. 11 (XI, 709). Law governing contract of affreightment.
Approved in The Kensington, 183 U. S. 269, 46 L. 193, 22 Sup.
Ct 104, holding restrictions of liability of steamship company
for its own negligence to passenger will not be uph^d, though
ticket issued and accepted in foreign country and contained con-
dition making it subject to law thereof, which sustains such stipu-
lations; Workman v. Mayor, etc., of New York, 179 U. S. 562, 45
L. 321, 21 Sup. Ct. 215, holding maritime law governs in determin-
ing liability of city for injury to another vessel by city's fireboat
in custody of its fire department which is negligently handled
while hastening to fire; Rundell v. La Campagnie Generale Trans-
atlantique, 100 Fed. 662, holding suit in admiralty in United States
courts to recovOT damages for death of person on high seas, which
was caused by negligence, cannot be maintained; The New Eng-
land, 110 Fed. 416, holding provision in ticket issued by English
steamship to passenger in United States, for passage from Ameri-
can to English port, that contract shall be governed by BngUsb
law, does not validate exemption of company from liability for
servant's negligence. See 88 Am. St. Rep. 125, note.
SyL 18 (XI, 709). Subrogation of Insurer on payment of loss.
Approved in The L. E., etc., R. R. y. Falk, 62 Ohio St 306, 5G
N. E. 1023, holding in action by owner against railroad for loss
of property by fire, insurer paying owner for. loss should inter-
vene for purpose of being subrogated to rights of owner to extent
of payment
Syl. 14 (XI, 709). Effect of stipulation as to carrier's benefit of
insurance.
Approved in In re Lakeland Transp. Co., 103 Fed. 334, holding
where in suit for limitation of liability arising out of collision
resulting in total loss of second vessel, such vessel, though equally
at fault, was awarded exemption from liability to cargo>owners,
such owners not subrogated to rights against insurers of cargo
under benefit of Insurance clause in bill of lading.
129 U. S. 4G5-470, 32 L. 732, ALLEN v. SMITH.
Syl. 2 (XI, 710). Waiver of limitations.
Approved in Hanchett v. Blair, 10 Fed. 825, holding where cor-
poration which has given mortgage does not plead limitations in
foreclosure, it cannot be pleaded by one to whom corporation has
contracted to sell the property but who has not been vested with
either full equitable title or possession under his contract
129 U. S. 470-47a Not cited.
1109 Notes on U. S. Reports. 129 U. S. 479-506
129 U. S. 479-493, 32 L. 774, NORTON y. BROWNSVILLE.
Syl. 2 (XI, 710). Constitutional proTision keeping previous laws
in force.
Approved in Wilkes County Comrs. v. Coler, 180 U. S. 531, 45
L. 655, 21 Sup. Ct. 467, holding rights of holders of county bonds
are determinable in Federal court by law of State as it was de-
clared by State court to be at time bonds were made and put upon
market; Cooper Hospital v. Camden, 68 N. J. L. 702, 54 Atl. 423,
holding charter of Cooper Hospital was not contract between
State and corporation providing for exemption of property from
taxation.
129 U. S. 49a-505, 32 L. 780, BROWNSVILLE v. LOAGUB.
Syl. 1 (XI, 711). Conclusiveness of judgment on bonds.
Approved in Ward v. Joslln, 186 U. S. 152, 46 L. 1099, 22 Sup. Ct
811, holding judgment against corporation is not so conclusive on
stockholder, in action to enforce his liability for corporate obliga-
tion under Kansas laws, as to prevent his showing that because
such corporate obligation was ultra vires he was not liable under
such laws; Grand County v. People, 16 Colo. App. 225, 64 Pac. 678,
holding in mandamus to compel county commissioners to pay judg-
ment against county, where petitioner shows that judgment was
rendered upon warrants, petition must show failure of board to
levy tax it was required by law to levy to pay such warrants;
Bradstreet Co. v. Jackson, 81 Miss. 236, 32 So. 999, holding where
city. levied under Code 1892, | 2972, privilege tax on commercial
agencies while law imposing State privilege tax on them was in
force, it cannot collect such tax by suit after repeal of law; dis-
senting opinion in Deposit Bank v. Frankfort, 191 U. S. 523,
majority holding where Federal court has denied validity of State
law under which taxes were levied because of contract exempt-
ing from all taxation, question is res adjudicata as to right to
levy taxes under such law in any other year.
Distinguished in State v. Mayor, etc., of City of Bristol, 109 Tenn.
319, 70 S. W. 1032, holding city cannot have reviewed validity of
bonds as defense to mandamus to compel levy of tax to pay judg-
ments rendered on interest coupons from bonds in favor of bona
fide purchasers acquiring title after bonds held valid.
129 U. S. 505, 506, 32 L. 784, NORTON v. BROWNSVILLE.
Syl. 1 (XI, 712). Appeal — Record filed after citation returnable.
Approved in Chamberlain Transp. Co. v. South Pier Coal Co.,
126 Fed. 167, holding order granting leave to file petition for appeal
and an assignment of errors, and subsequent approval of appeal
bond, reciting allowance of appeal, is sufficient to show that appeal
was allowed when petition therefor was filed.
129 U. 8. G0&-530 Notes on U. S. Reports. 1110
129 U. S. 506^12, 32 L. 771, McKBNNA T. SIMPSON.
Syl. 2 (XI, 712). Bankruptcy — State suit ^ Fraudulent con-
veyance.
Approved in In re.Rusch, 116 Fed. 272, holding Circuit Ck>urt of
Appeals cannot, under bankruptcy act 1898, | 24b, revise plenary
suits by trustee against third parties which might have been main-
tained in State court, but which, by consent of defendant, have
been brought and determined .in Bankruptcy Court; Mueller y.
Bruss, 112 Wis. 409, 88 N. W. 230, upholding jurisdiction of action
by banlu*uptcy trustee to set aside, as fraudulent, conveyances made
by bankrupt which are not void under said act but which were
made in fraud of creditors and are, therefore, void under Stat
1898, I 2320; Binder v. McDonald, 106 Wis. 337, 82 N. W. 157, hold-
ing Rev. Stat Wis., | 1694, providing that if insolvent make rolun-
tary assignment within ten days after attachment, attachment
shall be dissolved, was not superseded by bankruptcy act 1898.
Syl. 3 (XI, 712). State decision in suit by bankrupt's assignee.
Distinguished in In re Macon, etc., Co., 112 Fed. 333, holding
appointment of receiver by State court to administer assets under
State law after passage of bankruptcy act Is nullity, and may be so
held in any court
Syl. 5 (XI, 712). Fraudulent conveyance as Federal question.
Approved in Gableman y. Peoria, etc, R. R. Co., 179 U. S. 340,
45 L. 223, 21 Sup. Ct 173, holding Federal court receiver cannot
remove cause to Federal court where appointment made under
l^eneral equity powers of courts of chancery; Avery v. Popper, 179
U. S. 313, 45 L. 206, 21 Sup. Ct 97, holding question whether right
of selection, recognized as between mortgagor and mortgagee, is
also applicable as between purchaser on Federal execution, and
mortgage is not Federal question.
129 U. S. 512-530, 32 L. 764, KIMBERLY v. ARMS.
Syl. 1 (XI, 712). Equity — Master's finding merely advisory.
Approved in Rust v. Electric L. Co., 124 Ala. 207, 27 So. 268,
holding order confirming report of master In foreclosure proceed-
ings which omits after acquired property covered by mortgage is
only interlocutory, and does not limit power of court to thereafter,
by final decree, subject the after acquired property to mortgage
debt; Johnson v. Gallegos, 10 N. Mex. 4, 60 Pac. 72, holding court
may, of own motion, make additional and supplemental findings
to those made by master, if such additional findings are based
on evidence, in order to clear up matter necessary for determina-
tion of cause; Commonwealth v. Archibald, 195 Pa. St 319, 46 AtL 6,
holding court may appoint master to execute decree for account
SyL 2 (XI, 713). Reference must be by consent
Approved in Garinger v. Palmer, 126 Fed. 911, applying rule in
action to set aside conveyances for fraud; De Baca y. Pueblo of
1111 Notes on U. S. Reports. 129 U. S. 512^530
Santo Domingo, 10 N. Mex. 39, 60 Pac. 73, upholding finding of
fact made by Judge.
SyL 3 (XI, 713). Master's findings binding on consent reference.
Approved in Schwartz v. Duss, 103 Fed. 565, reaffirming rule;
Big Creek, etc.. Iron Co. v. American Loan, etc., Co., 127 Fed.
633, applying rule in suit to foreclose mortgage of corporation where
fraud on preferred stockholders set up in defense; Manhattan Life
Ins. Co. V. Wright, 126 Fed. 88, applying rule to findings of trial
court in suit on life insurance policy; Western Union Tel. Co. v.
American Bell Tel. Co., 125 Fed. 343, reversing 105 Fed. 686, apply-
ing rule in suit for royalties on patent under contract; Gregg v.
Metropolitan Trust Co., 124 Fed. 723, applying rule in suit to de-
termine priorities between mortgage of railroad and current oper-
ating expenses la gross earnings of road; Moore v. Moore, 121
Fed. 738, upholding findings of trial court in partition suit; Fergu-
son Contracting Co. v. Manhattan Trust Co., 118 Fed. 792, apply-
ing rule in suit to enforce lien for work done on railroad; Sanders
V. Village of Riverside, 118 Fed. 723, applying rule in ejectment
suit against village claiming land as public park; Murphy v. South-
em Ry. Co., 115 Fed. 259, affirming 99 Fed. 469, upholding finding
by master as to question of boundaries based on examination of
deeds and upon confiicting oral testimony; Stearns-Roger Mfg. Co.
V. Brown, 114 Fed. 943, holding order granting temporary injunc-
tion In infringement suit Is presumptively correct on appeal; Kin-
loch Tel. Co. V. Western Electric Co., 113 Fed. 666, upholding find-
ings of court in suit for infringement of Seely patent No. 330,067,
for improvement in multiple switchboard; John Hancock Mut
Life Ins. Co. v. Houpt, 113 Fed. 575, applying rule in suit to cancel
life insurance policy for misrepresentation in application; The
Gertrude, 112 Fed. 448, upholding finding of commissioner as to
value of vessel lost in collision; Thallman v. Thomas, 111 Fed. 283,
upholding chancellor's decree based on confiicting evidence in suit
to determine boundaries of mining claim; James v. Germania Iron
Co., 107 Fed. 602, holding erroneous decision of secretary of Interior
that prior entry of certain land was superior to entry made after
notification of local land officers that land was open to settlement;
The Anaces, 106 Fed. 743, holding findings of Admiralty Court in
suit for injuries to stevedore, sustained while stowing cotton In
hold of ship, are presumptively correct; National Hollow, etc., Co.
V. Interchangeable, etc., Co., 106 Fed. 717, construing claims to
patent for brake beam; M*Namara v. Home Land, etc., Co., 105
Fed. 204, applying rule in suit for specific performance of contract
to sell and deliver cattle; reversed in 111 Fed. 822; Fidelity, etc., Co.
V. St Matthew's Sav. Bank, 104 Fed. 861, applying rule In ac-
tion on employer's indemnity bond; North American Exploration
Co. T. Adams, 104 Fed. 408, applying rule in suit to enjoin dl-
129 U. S. 530-n589 Notes on U. 8. Reports. U12
version of waters from stream and used to operate mill; Beld-
ing V. Hebard, 103 Fed. 541, applying rule in boundary suit as
to finding of State boundary line; Singleton v. Felton, 101 Fed.
527; applying rule In action for damages against railroad for
killing alleged trespasser riding on construction train; Murphy
V. Patterson, 24 Mont 580, 63 Pac. 377, holding where reference
provided that referee should take testimony and state complete
account between parties, but did not authorize him to hear and
determine issues, his findings have not force of special verdict;
dissenting opinion in Chauncey v. Dyke Bros., 119 Fed. 21, de-
termining priorities between mortgage Hen and lien for labor and
materials for improvements; dissenting opinion in Wells, Fargo
& Co. V. Walker, 9 N. Mex. 202, 50 Pac. 924, majority holding in
suit on note, referred by consent to master, his findings of fact,
which were sustained by evidence, were conclusive.
Distinguished in The Columbian, 100 Fed. 995, holding Circuit
Court of Appeals not bound by finding of fact made by lower
court in admiralty; Home Land, etc, Co. v. M'Namara, 111 Fed. 827,
arguendo.
129 U. S. 530-541. 82 L. 738. PETERS T. ACTIVE MFG. CO.
Syl. 1 (XI, 715). Patents — Anticipation.
Approved in United States Mineral Wool Co. v. Manville Cover-
ing Co., 125 Fed. 772, holding void Rockwell patents Nos. 447,360
and 452,733, for process for manufacturing mineral wool; Plumb
v. New York, etc., R. R. Co., 97 Fed. 647, holding void McKenna
patent No. 348,289, for air-brake attachment
129 U. S. 541-557. Not cited.
129 U. S. 557-579, 32 L. 752, CITY NAT. BANK OF FT. WORTH
V. HUNTER.
Syl. 4 (XI, 715). Appeal — Nonjoinder where decree severable.
Distinguished in Grand Island, etc., R. R. Co. v. Sweeney, 103 Fed.
345, 346, holding whenever several parties are made defendants
to suit, and decree as to any one of them is so separate and dis-
tinct ias not to affect rights of other parties to suit, such party may
prosecute his appeal without Joining others whose rights are not
so affected.
129 U. S. 579^89, 32 L. 734, UNITED STATES v. MARSHALL
MIN. CO.
Syl. 1 (XI, 716). Submission to land department's decision as
bar.
Approved in Lawrence v. Potter, 22 Wash. 47. 60 Pac. 152, hold-
ing though action of register of land otfice in deciding contract is
irregular under Rev. Stat. § 2297, contestant complaining thereof
1113 Notes on U. 8. Reports. 129 U. 8. 590-643
cannot raise objection in courts when he failed to raise point before
land office or secretary of interior.
129 U. S. 590-eOl, 32 L. 827, SHOTWELL v. MOORE.
Syl. 1 (XI, 716). Change of deposit to evade tax laws.
Approved In Hibernia, etc., Soc. v. San Francisco, 139 Gal. 208;
72 Pac. 921, holding Rev. Stat. U. S., S 3701, exempting government
obligations from local taxation, does not exempt orders on Federal
treasury, payable on demand, for interest due on bonds; In re Peo-
ple's Bank of Vermont, 203 111. 303, 67 N. B. 778, holding money
invested by bank In United States bonds for purpose of evading
taxation, bonds being left on special deposit with distant bank,
and sold soon after first of April, may be assessed for taxation;
Rawson v. Burlington, 111 Iowa, 78, 82 N. W. 428, holding con-
veyance to cousin of grantor's divorced wife a mere artifice, and
did not exempt grantor's adjoining property from street assessment;
State V. Franklin County Sav. Bank, 74 Vt 262, 52 Ati. 1072, hold-
ing savings bank authorized by charter to receive commercial
deposits, and that these are included In term "deposits," aa used
in Vt Stat., 583, 584, a^ basis of taxation.
129 U. S. 601-641, 32 L. 805, GOODWIN v. FOX.
Syl. 1 (XI, 717). Exceptions to proceedings must be taken before
master.
Approved in Gorham Mfg. Co. v. Bmery-Blrd-Thayer Dry Goods
Co., 104 Fed. 245, holding ruling by trial court upon objections to
evidence in equity must be obtained or refused, and proceedings
must appear in record, to warrant review on appeal.
Syl. 2 (XI, 717). State laws as to competency of witnesses
binding.
Approved In Slavens v. Northern Pacific R. R. Co., 97 Fed. 262,
holding in action by wife of section hand against railroad to re-
cover for husband's death where evidence showed he was remov-
ing landslide blocking passage of train, conductor may testify as to
conversation as to decedent's knowledge of danger of another
landslide.
129 U. S. 642, 643, 32 L. 802, INSURANCE CO. OF NORTH
AMERICA V. GUARDIOLA.
Syl. 1 (XI, 717). Evidence — Letters from agent to principal.
Distinguished in Callihan v. Washington Water Power Co., 27
Wash. 161, 91 Am. St Rep. 833, 67 Pac. 701, holding in acUon for
injuries to woman found in street and claiming to have been injured
by falling off car on which she was passenger, conductor's trip slip
showing all passengers paid cash admissible where she claimed
she had transfer.
129 U. S. 64a-682 Notes on U. S. Reports. 1114
129 U. 8. 643-663, 32 L. 819, WOODSTOCK IRON CO. Y. RICH-
MOND, ETC.. EXTENSION CO.
Syl. 2 (XI, 717). Contracts against public policy.
Approved -in Reed y. Johnson, 27 Wash. 53, 67 Pac 385, holding
contract by one in behalf of himself and as agent for rallro&d
officers, agreeing with owner of land to locate railroad and depot
on land in consideration of conveyance of one-half land to such
P4 rson wlio was to sell same and divide proceeds with officers. Is
void; dissenting opinion in Hanover Nat Bank v. First Nat Bank,
109 Fed. 435, majority holding where national bank discounted
note of president of another national bank, and paid proceeds to
bank, bank liable on note though loan made by president to evade
Federal statutes.
129 U. S. 663-677. Not cited.
129 U. S. 677-682, 82 L. 800, CHAPMAN v. BARNEY.
Syl. 1 (XI, 718). Appeal — Amendment to assumpsit declaration
discretionary.
Approved in Berliner Gramophone Co. v. Seaman, 113 Fed. 754«
reaffirming rule; Lange v. Union Pac. R. R., 126 Fed. 341, apply-
ing rule In action by servant against master for personal injuries;
Laflin V. Shackleford, 98 Fed. 373, applying principle in suit for
attorney's fees; Neher v. Armljo, 9 N. Mex. 333, 54 Pac. 238, hold-
ing appellate court may permit amendment of writ of error by
striking out parties defendant in error.
Syl. 4 (XI, 719). Examination of Circuit Court's jurisdiction
sua sponte.
Approved in dissenting opinion in Giles v. Harris, 189 XJ. S. 501,
23 Sup. Ct. 645, 47 L. 917, majority holding absence of averments
in bill in Circuit Court showing Jurisdictional amount was In dis-
pute not available on appeal to Supreme Court, which raises juris-
diction of lower court on another ground where no objection to
omission of such allegations made below.
Syl. 5 (XI, 719). Jurisdictional facts must affirmatively appear.
Approved in Great Southern Fireproof Hotel Co. v. Jones, 177
U. S. 454, 44 L. 844, 20 Sup. Ct 692, holding citizenship of indi-
vidual members of limited partnership association created by laws
of Pennsylvania must be alleged in suit in Federal court by as-
sociation, where jurisdiction depends on diversity of citizenship;
Boatner v. American Exp. Co., 122 Fed. 718, holding, under Ky.
Code Civ. Proc, S 25, permitting one or more mutually interested
parties to sue or defend, treasurer of joint-stock company, defend-
ant, may enter appearance as such treasurer, and remove action
where diverse citizenship exists between him and plaintiiZ.
1115 Notes on U. S. Reports. 129 U. S. 68^-700
SyL 6 (XI, 719). Courts — Nonincorporated body not citizen.
Approved in Great Southern Fireproof Hotel Co. v. Jones, 177
U. S. 454, 44 L. 844, 20 Sup. Ct. 692, holding limited partnership
association created under Pa. Laws 1874, not a citizen within Fed-
eral Constitution extending Judicial power to controversies involv-
ing divers citizens; Ralya Market Co. v. Armour & Co., 102 Fed.
533, 535, 536, holding action against firm by partnership name
brought under State statute cannot be removed to Federal court
on ground of diverse citizenship for reason that citizenship essen-
tial to Jurisdiction cannot be predicated of partnership; State v. .
United States Bxp. Co., 81 Minn. 90, 83 N. W. 466, holding partner-
ship doing business as carrier not subject to State visitorial powers.
Distinguished in Sanitas Nut Food Co. v. Force Food Co., 124
Fed. 303, holding limited partnership organized under State statute
giving it legal entity, with right to sue and be sued in association
name, may sue in such name in Federal court for infringement
of patent.
129 U. S. 683-688, 32 L. 803, BBNB v. JEAUTBT.
Syl. 1 (XI, 720). Patents — Specification must be definite.
Approved In Wolff v. Du Pont De Nemours, etc., Co., 122 Fed.
958, holding Von Freeden patent No. 429,516, for process for making
smokeless powder, void; De Lamar v. De Lamar Min. Co., 117 Fed.
248, holding Waldstein patent No. 607,719, for process for extract-*
ing precious metals from cyanide solutions, void for anticipation
and lack of invention.
129 U. S. 688-700, 32 L. 760, SCHRAEDER MIN. CO. v. PACKER.
Syl. 2 (XI, 720). Consent to erroneous boundary line.
Approved in Idaho Land Co. v. Parsons, 3 Idaho, 453, 31 Pac.
792, holding where coterminous owners of land establish boundary
line and take possession to line so agreed upon, and one of them
erects improvements thereon, and holds possession for eight years
without objection, line is binding.
OXXX UNITED STATES.
130 U. S. 1-39, 82 L. 837. OREGON. ETC.. NAV. CO. v. OREGON-
IAN RY.
Syl. 1 (XI. 721). Corporations have only granted powers.
Approved In Cumberland TeL, etc.. Co. v. Bvansville, 127 Fed. 190,
holding Indiana statute authorizing formation of telephone com-
panies does not authorize company to sell all its property and fran-
chises; Bancroft t. Bloede. 106 Fed. 399. upholding issuance of
paid-up stoclc in exchange for property; First Nat. Bank v. Ameri-
can Nat Bank. 173 Mo. 159. 72 8. W. 1061, holding national bank
may plead ultra vires bb to any contract it may have made wh^i
sued thereon by other party thereto, wheth^ such contract be
executed or not; Spokane v. Amsterdamsch, etc., 22 Wash. 179, 60
Pac. 143, holding though corporation may not have complied with
statutory requirement that all its stock must have been sub-
scribed before it can do business, yet where it has done business,
question cannot be raised to injury of other parties.
Syl. 3 (XI, 722). Powers of foreign corporations.
Approved in Seattle Gas, etc., Electric Co. v. Citizens' Light,
etc.. Power Co., 123 Fed. 592, holding New Jersey corporation,
organized under general corporation act. and not under gas act,
cannot engage in gas business in another State; State v. Southern
Pac. Co.. 52 La. Ann. 1826. 28 So. 374. holding raUroad not au-
thorized to receive warehouseman's license; Rio Grande W. Ry. v.
Power Co., 23 Utah, 39, 63 Pac. 999, holding foreign mining corpo-
ration failing to comply with laws cannot engage in business of
mining or acquire water rights in this State; Telluride Power, etc.,
Co. V. Rio Grande, etc., Ry. Co., 187 U. S. 583, 23 Sup. Ct 183. 47
L. 313. arguendo.
Syl. 7 (XI, 722). Corporate articles strictly construed.
Approved in Fritze v. Equitable, etc., Soc, 186 111. 197, 57 N. E.
877, holding under Laws 1879, p. 83, loan association cannot amend
its by-laws; State v. Anderson, 31 Ind. App. 43, 67 N. E. 211, hold-
ing provisions in articles of incorporation that corporation shall
always be managed by certain named board of directors, and that
certain named persons shall hold office so long as they remain
shareholders, void.
[1116]
lllY Notes on U. S. Reports. 130 U. S. 39-79
Syl. 12 (XI, 723). Performance under void lease.
Approveid in Kansas City v. O'Connor, 82 Mo. App. 661, holding
where ultra vires street sprinkling contract has been performed by
both sides, courts will not disturb condition of parties.
130 U. S. 39-50. Not cited.
130 U. S. 50-56, 32 L. 846, BALLARD v. SEARLS.
Syl. 1 (XI, 724). Appeal — Remand to file supplemental bill.
Approved in Greene v. United Shoe Machinery Co., 124 Fed. 962,
holding on appeal from interlocutory decree for injunction and
accounting in patent suit. Circuit Court of Appeals cannot remand
with leave to reopen case for further proceedings without first re-
versing; Ward V. Joslin, 105 Fed. 231, holding Judgment will not be
reversed because of motion for new trial offering further proof on
material matter, where record does not show that motion was
acted upon by trial court or brought to its attention.
130 U. S. 56-69. Not cited.
130 U. S. 69-79, 32 L. 854, ARKANSAS CATTLE CO. T. MANN.
Syl. 1 (XI, 725). New trial — Remission of damages.
Approved in Creve Coeur Lake Ice Co. v. Famm, 90 Mo. App.
201, reafllrming rule; Tamblyn v. Johnston, 126 Fed. 276, holding
Circuit Court of Appeals cannot reverse on writ of error, where
no error of law appears on face of record, merely because damages
are too large; Chicago Title, etc., Co. v. 0*Marr, 25 Mont 247, 254,
64 Pac. 508, 511, holding in action for conversion, where verdict is
excessive, court may permit plaintiff to remit excess instead of
granting new trial.
Syl. 3 (XI, 725). Retention by vendor to secure purchase price.
Approved in dissenting opinion in American Press Assn. v. Daily
Story Pub. Co., 120 Fed. 771, majority holding owner of copy-
righted production does not lose exclusive property therein because
licensee authorized to publish article on express condition that
he print usual copyright notice omits to do so.
Syl. 4 (XI, 725). Orders as to new trial not appealable.
Approved in dissenting opinion in Bucki, etc., Co. v. Atlantic
Lumber Co., 116 Fed. 9, majority upholding bill for relief in equity
by reduction of afnount of Judgment at law.
Syl. 7 (XI, 726). Damages for conversion.
Approved in New Dunderberg Min. Co. v. Old, 97 ^ed. 154, hold-
ing defendant whose lessee mined ore owned by plaintiff upon
which defendant received royalties, exact amount of which shown
by his books, though unknown to plaintiff, must pay interest on
such amount; Toplitz v. Bauer, 161 N..Y. 336, 55 N. E. 1062, hold-
ing where pledgee wrongfully converted life policy by surrender-
190 U. S. 80-142 Notes on U. S. Reports. 1318
ing it to company and applying proceeds to payment of debt, at
time when assured was dying, measure of damages is face yalue of
policy less premiums accruing up to assured's death, and amount
of debt
180 U. S. 80-103. Not cited.
180 U. S. 104-116, 32 L. 872, RICHARDSON v. GREEN.
SyL 5 <XI, 727). Appeal in open court — Citation.
Approved in Berliner Gramophone Co. v. Seaman, 108 Fed. 716,
717, holding mere fact that citation on appeal is not issued until
after time limited for taking appeal has expired does not defeat
jurisdiction.
SyL 8 (XI, 727). Bond curing failure to include appellees in
order.
Approved in Edgele v. Felder, 99 Fed. 328, arguendo.
180 U. S. 117-122. Not cited.
180 U. S. 12^142, 82 L. 878, MOORB y. CRAWFORD.
Syl. 1 (XI, 728). Fraud in equity defined.
Approved in dissenting opinion in Mulcahey t. Dow, 131 Cal. 79,
63 Pac. 160, majority holding failure of widow of decedent to
whom estate was distributed, to inform relatives of husband living
in other States of husband's death, is immaterial upon charge
of fraud.
!Syl. 3 (XI, 728). Holder of title acquired inequitably as trustee.
Approved in Kent v. Dean, 128 Ala. 610, 30 So. 546, holding
where two persons purchase separate tracts from same vendor, and
mutually agree that one of such purchasers shall bid in land at
subsequent judicial sale and th^n make conveyance to other pur-
chaser, failure to make such conveyance entitles other party to
equitable relief to enforce trust; Michigan Trust Co. v. Probasco,
29 Ind. App. 121, 63 N. E. 259, holding where real estate purchased
by husband and wife jointly, each furnishing portion of purchase
money, and title was taken in wife's name to avoid guardianship,
husband being of unsound mind, equity will enforce trust in funds
so invested Irrespective of fraud.
Syl. 9 (XI, 728). Parol evidence contradicting deed.
Approved in American Bell Tel. Co. v. National Tel. Mfg. Ck).,
109 Fed. 1010, holding evidence insufllcient to sustain burden of
proof to establish fact that statements in Berliner application for
patent No. 463,569, for combined telephone and telegraph, was
issued, were made through clerical mistake, which authorized
their being stricken out by amendment.
1119 Notes on U. S. Reports. 130 U. S. 142-177
Syl. 13 (XI, 729). No reversal for yarijince where amended bill
sufficient.
Approved in Burt v. Gotzian & Co., 102 Fed. 945, holding specifica-
tion of error that court erred in admitting any testimony under
bill merely challenges sufficiency of facts stated in bill to con-
stitute cause of action, and where ultimate facts pleaded are
proved, it 'does not reach objection that there was variance be-
tween pleading and proof; Savings & Loan Society v. Davidson,
97 Fed. 703, holding where facts alleged in bill and shown by proof
establish trust or existence between parties of fiduciary relations
entitling complainant to relief prayed for, he is not debarred
from such relief solely because he did not aver, as legal conclu-
sion, existence of trust relation arising from such facts, but alleged
express trust
Syl. 15 (XI, 729). Specific performance- — Allegation where ten-
der useless.
Approved in Blanton v. Kentucky Distillers & Warehouse Co., 120
Fed. 348, holding where contract for sale of property consisting
of both personalty and realty provided that purchaser should
divide consideration between the two deeds to be made, and should
famish vendor with forms for such deeds, which it refused to
do on demand, vendor not bound to tender deed as condition pre-
cedent to commencement of suit
130 U. S. 142-152, 32 L. 885, BULLITT COUNTY v. WASHEJR.
Syl. 2 (XI, 729). Order allowing amendment of pleadings not ap-
pealable.
Approved in Henderson v. Ries, 108 Fed. 713, reaffirming rule;
Laflin V. Shaclileford, 98 Fed. 373, holding allowance of amend-
ment of bill of particulars is discretionary.
180 U. S. 152-167, 32 L. 888. RUDE v. WESTCOTT.
(X, 729). Miscellaneous.
Cited in The Carbonero, 106 Fed. 336, holding in suit to charge
tug with liability for loss of tow, evidence was such as to estab-
lish gross fault on part of tug, but on issue as to whether loss
was due to such fault evidence was insufficient
130 U. S. 167-177, 32 L. 895, SMITH v. ADAMS.
Syl. 2 (XI, 730). When " case in controversy " arises.
Approved in Territory of Oltlahoma v. Neville, 181 U. S. 615,
45 L. 1029, 21 Sup. Ct 923, reaffirming rule; dissenting opinion
In Matter of Davies, 168 N. Y. 114, 61 N. E. 120, majority uphold-
ing anti-monopoly act as not imposing nonjudicial functions on
supreme Judges by provisions requiring any Justice on applica-
tion of attorney-general to grant order for examination before
130 U. S. 177-189 Notes OD U. S. Reports. 1120
Justice or referee appoii^ted by him whose testimony is by attor-
ney-general deemed material and necessary to prepare complaint
for trial.
Syl. 3 (XI, 730). " Matter in dispute " means subject of litigation.
Approved in Butters v. Carney, 127 Fed. 623, holding in eject-
ment to recover possession of land, including mill site, amount
in controversy is not value of defendant's claim, but value of
whole property which plaintiff claimed as described in his com-
plaint; Hutchinson v. Otis, etc., Co., 123 Fed. 19, holding no appeal
lies to Supreme Court from Circuit Court of Appeals under bank-
ruptcy act 1898, I 24a; Co well v. City Water Supply Co., 121 Fed.
55, 57, holding in suit by alleged owner of one-three hundred and
twenty-fifths of certain realty to cancel mortgages thereon for
$475,000, amount in dispute is value of one-three hundred and
twenty-fifth of property; King v. Southern Ry. Co., 119 Fed. 1016.
holding in action to recover piece of land on which railroad had
located its depot, value of land to railroad according to its pres-
ent situation and use is amount involved; Battle v. Atkinson, 115
Fed. 387, holding, under Arkansas statute relating to unlawful
detainer, amount in controversy depends on rental value for lim-
ited time; State v. Frost, 113 Wis. 643. 89 N. W. 918, granting
removal of suit to enjoin receiver from destroying railroad to sell
materials, when right asserted by State to have it continued
as public highway exceeds in value $2,000.
Syl. 6 (XI, 731). Reversal and remand not final judgment.
Approved in Wabash R. R. Co. v. Tourvllle, 179 U. S. 326. 45
L. 213, 21 Sup. Ct. 114, holding Judgment of State court cannot
be garnisbeed in another State.
130 U. S. 177-189, 32 L. 899, LYON v. ALLEY.
Syl. 1 (XI, 731). Judicial sale statutes are mandatory.
Approved in Campbellsville Lumber Co. v. Hubbert, 112 Fed.
725, holding, under Ky. act February 27, 1882, authorizing court
in wliich Judgment on Taylor county bonds is recovered to assess
and collect tnx to pay such judgment, and providing that bonds
issued thereunder shall on their face stipulate that holders shall
be entitled to remedies for collection in such act provided, hold-
ers of bonds only as contain such stipulation are entitled to such
extraordinary remedy.
Distinguished in National Nickel Co. v. Nevada Niqkel Co., 106
Fed. 114, holding fact that Federal foreclosure decree in directing
manner of sale and order of sale subsequently issued thereon
followed State statute and did not conform to 27 Stat. 751, as
to notice of sale, did not render sale made thereon void.
Syl. 4 (XI, 731). Illegal tax sale is cloud on title.
Approved in Chamberlain v. Baker, 28 Tex. Civ. 500, 67 S. W.
533, holding sale of plaintiff's land on execution against another
1121 Notes on U. S. Reports. 130 U. S. 180-226
will not be enjoined as casting cloud on title, when purchaser and
not owner would be the one to resort to evidence extrinsic of the
conveyances to show title in himself if sale were completed.
130 U. S. 189-200, 32 L. 915, WILLIAMSON v. STATE OF NEW
JERSEY.
Syl. 2 (XI, 731). Grant of taxing power not contract — Repeal-
able.
Approved in Joesting v. Baltimore, 97 Md. 592, 55 Atl. 457, hold-
ing act 1868, chap. 98, annexing adjacent territory to Baltimore,
and providing that the existing tax rate should not be increased
until streets constructed In said territory was not contract; Brad-
street Co. v. Jaclison, 81 Miss. 236, 32 So. 999, holding where city
levied, under Code 1892, § 2972, a privilege tax on commercial
agencies while law imposing State privilege tax on them was in
force, it cannot collect such tax by suit after repeal of law.
130 U. S. 201-209, 32 L. 923, THE ALASKA.
Syl. 3 (XI, 732). Admiralty Jurisdiction over suit for negligent
death.
Approved in Rundell v. La Ck)mpagnle Generale Transatlantique,
100 Fed. 659, holding admiralty suit cannot be maintained in United
States court for damages for death of person on high seas which
was caused by negligence; dissenting opinion in Workman v. Mayor,
etc., of New York, 179 U. S. 587, 45 L. 330, 21 Sup. Ct 225, ma-
jority holding city liable by maritime law for negligence of servants
in charge of fireboat while hastening to fire in consequence of
which boat collides with and injures another vessel.
Distinguished in Lindstrom v. International Nav. Co., 117 Fed.
172, holding steamship company operating American vessel regis-
tered in New York port is liable to administrator for death of
passenger whom it negligently permits to be washed overboard
and drowned in high seas, under N. Y. Code Civ. Proc., § 1902.
130 U. S. 210-226, 32 L. 908, BALTIMORE, ETC., R. R. V.
HOPKINS.
Syl. 2 (XI, 732). Courts — When validity of statute questioned.
Approved in United States v. Ware, 189 U. S. 508, 23 Sup. Ct.
853, 47 L. 922, reaffirming rule; Mutual Life Ins. Co. v. McGrew,
188 U. S. 308, 23 Sup. Ct. 378, 47 L. 484, holding State decision
not reviewable by Supreme Court on ground of denial of credit to
Hawaiian Judgment where Judgment of trial court was rendered
prior to act of April 30, 1900, providing government for Hawaii,
and such contention was not brought to attention of highest State
court in any form; Johnson v. New York Life Ins. Co., 187 U. S.
496, 23 Sup. Ct. 196, 47 L. 275, holding State decision merely con-
Vol. 11 — 71
130 U. S. 227-232 Notes on U. 8. Reports. 112S
stming statute of another State as inapplicable to case before it
does not deny validity of such statute so as to be reviewable by
Supreme Court; Kennard v. Nebraslia, 186 U. S. 308, 46 L. 1177,
22 Sup. Gt. 881, holding State decision that Pawnee reservation
lands are public lands within meaning of enabling act of April
19, 1864, S 12, does not question validity of that section no as to
permit review by Supreme Court; Sweringen v. St. Louis, 185
U. S. 44, 46 L. 799, 22 Sup. Ct. 570, holding State court decision
that courses alleged and distances set forth in government patent
do' not as matter of fact bring eastern boundary of land to waters
of Mississippi raises no Federal question.
130 U. S. 227-229. Not cited.
130 U. S. 230-232, 32 L. 914, STEVENS T. NICHOLS.
Syl. 1 (XI, 734). Courts — Citizenship must be affirmatively
alleged.
Approved In Great Southern Fire Proof Hotel Co. y. Jones, 177
U. S. 454, 44 L. 844, 20 Sup. Ct 692, holding limited partnership
created under Pa. Laws 1874, not being a citizen, citizenship of
partners must be alleged in order to give Federal court jurisdic-
tion; Col bum V. Hill, 101 Fed. 607, holding creditor's suit, pur-
pose of which is to obtain administration of property of insolvent
corporation and incidentally to exclude certain defendants from
participating in distribution of such property on ground of in-
validity of contract made by corporation, on which their rights
as creditors depend, is indivisible.
Syl. 2 (XI, 734). Diverse citizenship at commencement and re-
moval.
Approved in Kinney v. Columbia Sav., etc., Assn., 191 U. S.
81, holding where removal petition contains general averment of
diverse citizenship, with specific and full averment of defendant's
citizenship and requisite diverse citizenship of plaintiff may also
be inferred from record. Circuit Court may, before action on mer-
its, permit amendment of petition by addition of specific averments
of plaintiff's citizenship; Dalton v. Germania Ins. Co., 118 Fed.
037, holding insufficient removal petition alleging that plaintiff is
now and was at time of filing complaint a citizen and resident of
Iowa, and that defendant is corporation, organized, incorporated
and existing under New York: laws, and is citizen and resident of
said State and never has been and is not now a citizen or resident
of Iowa; Green v. Heaston, 154 Ind. 130, 56 N. E. 88, holding
petition for removal alleging diversity of residence at time of filing
of complaint, instead of alleging diverse citizenship at time of com-
mencement of action, and also when petition filed, Ib insufficient
where citizenship not shown by pleadings.
1123 Notes on U. S. Reports. 130 U. 8. 232-256
130 U. S. 232-237, 32 L. 920, BUXTON v. TRAVEB.
Syl. 1 (XI, 735). Lands not public till surveyed.
Approved in Holmes v. United States, 118 Fed. 998, 999, hold-
ing bona fide settler on unsurveyed lands, though his lands had
been withdrawn as being within railroad grant, and had never
been fornHiUy restored to public domain, has made valid settle-
ment within president's proclamation of Pecember 20, 1892, set-
ting apart lands in California as forest reservation; Wittenbrock
V. Wheadon, 128 Cal. 152, 79 Am. St. Rep. 34, 60 Pac. 664, hold-
ing pre-emptor, prior to payment of purchase money, acquires no
vested estate in land merely by virtue of declaratory statement;
Rio Grande N. Ry. v. Power Co., 23 Utah, 41, 63 Pac. 1000, hold-
ing one settling on unsurveyed land who in good faith complies
with statutory requirements is entitled, as against subsequent
settlers, to pre-empt land, but acquires no right thereto by pur-
chasing claim of prior settler, unless by actual entry at proper
office he had acquired some right thereto.
Syl. 2 (XI, 735). Settler before survey has no inheritable interest.
Approved in Emblen v. Lincoln Land Co., 184 U. S. 664, 46 L.
738, 22 Sup. Ct. 524, holding contestant of pre-emption entry who
has neither made entry on land nor perfected right to do so, has
no vested right or interest therein of which he is deprived without
due process of law by act of December 29, 1894, enacted during
pendency of contest, confirming title of original entryman; King
V. McAndrews, 111 Fed. 872, holding Dak. act of March 7, 1885,
including portion of Indian reservation in city of C^hamberlain,
did not withdraw this land from homestead or prcremption entry,
because it was not part of public lands and not subject to public
land laws; WagstafiP v. Collins, 97 Fed. 9, holding homesteader
acquires no vested rights in land as against government prior to
time when under law he becomes entitled to patent, which de-
prives Congress of power to vest title to such lands in another.
130 U. S. 238-256, 32 L. 926, BOTILLER v. DOMINGUEZ.
Syl. 2 (XI, 736). Confirmation of Spanish claims in California.
Approved in Barker v. Harvey, 181 U. S. 487, 45 L. 967, 21 Sup.
Ct. 692, holding mission Indians claiming right of permanent oc-
cupancy of land in California, under Mexican grant, are within
9 Stat. 631, chap. 41, § 8, requiring every person claiming lands
in California by virtue of right or title derived from Spanish or
Mexican government to present same to commissioners for confir-
mation; Mitchell V. Furman, 180 U. S. 435, 436, 45 L. 611, 612,
21 Sup. Ct. 443, holding act of May 23, 1828, confirming Spanish
land claims in Florida recommended for confirmation to extent
of league square on condition that full and final release of all
130 U. S. 25G-266 Notes on U. 8. Reports. 1124
claims to residue be filed was application to all claims whether
perfect or imperfect; United States v. Cameron, 3 Arts. 103, 21
Pac. 177, holding 16 Stat 304 did not confer upon surveyor-gen-
eral or secretary of interior power to reserve from sale lands
claimed to be valid Mexican grant
(XI, 735). Miscellaneous.
Cited in Page v. Pierce Co., 25 Wash. 10, 64 Pac. 803, arguendo.
130 U. S. 256-262, 32 L. 906, PARLEY, ETC.. JkHN. CO. v. KERR.
SyL 1 (XI, 736). Mines — Possession of part as possession of all.
Approved in Tonopah Fract Min. Co. v. Douglass, 123 Fed. 941,
upholding sufllciency of bill in nature of bill to quiet title, which
alleges in general terms that land is part of mining claim of
which plaintiff is owner and in possession and that it is claimed
by defendant as part of overlapping claim subsequently located,,
without setting out probative facts in support of plaintiff's title;
Fulkerson v. Chisna Min., etc.. Imp. Ck)., 122 Fed. 785, holding,
under Alaska Code, | 475, one in possession of mining claim in
Alaska under valid location has such title as will support action
to quiet title against adverse claimant; Northmore v. Simmons,
97 Fed. 388, holding, under Rev. Stat, | 2324, mining district
has power to make regulation requiring prescribed amount of
work to be done within ninety days after location is made, and
making claim subject to relocation in default of such work, not-
withstanding the ninety days may expire before first day of January
succeeding date of location.
Distinguished in dissenting opinion in Northmore v. Simmons,
97 Fed. 393, majority holding, under Rev. Stat, § 2324, mining
district may make regulation requiring prescribed amount of work
to be done ninety days after location is made, and making claim
subject to relocation in default of such work, notwithstanding
the ninety days may expire before the first day of January suc-
•ceeding date of location.
130 U. S. 263-266, 32 L. 968, UNITED STATES v. INSLEY.
Syl. 2 (XI, 736). Limitations do not run against government
Approved in Pond v. United States, 111 Fed. 995, 996, holding
Colo. Code Civ. Proc, § 1502, providing that no recovery can be
had in pending action on death of defendant where claim not pre-
sented for allowance or rejection, not applicable to suit by govern-
ment on bond of oflScer; Young v. Charnqulst, 114 Iowa, 122, 86
N. W. 207, holding where land lying more than six and less than
fifteen miles from land grant railroad is certified by government
to State for such road as indemnity lands, title by adverse posses-
sion cannot be acquired until certificate issued.
1125 Notes on U. 8. Reports. 130 U. S. 267-301
130 U. S. 267-280, 32 L. 959, MANHATTAN BANK v. WALKER.
Syl. 2 (XI, 737). Baiik'« receipt for securities to principal as
bailment.
Approved in Bills v. Schliep, 127 Fed. 107, holding in action by
bankruptcy trustee of shipper of fruit for defendant's assignors
to factors for sale, evidence established that bankrupt was mere
agent of assignors to forward goods to factors; Hunter v. Bobbins,
117 Fed. 923, upholding equity jurisdiction over suit for account-
ing by former corporation treasurer, and also to charge bank as
trustee in respect to funds of corporation which it is alleged to
have held on deposit with knowledge of their ownership and to
have fraudulently permitted its codefendant to withdraw and
convert
130 U. S. 280-283. Not cited.
130 U. S. 284-291, 32 L. 932, DAVIES v. MILLER.
Syl. 3 (XI, 738). Time for notice of dissatisfaction with collect-
or's decision.
Approved in In re Bailey, 112 Fed. 414, holding, under customs
act of June 10, 1890, § 14, protest filed before ascertainment and
liquidation of duties cannot be considered; United States v. Legg,
105 Fed. 932, holding, under Rev. Stat., § 2785, entry will be con-
sidered to have been at time importer presents himself to collector
with papers and money for duties and offers, to, make entry and
pay duties, though collector refused to receive or ^le papers for
purpose of determining whether goods were subject to duty.
130 U. S. 291-301, 32 L. 964, HAMMER v. GARFIELD MIN. CO.
Syl. 7 (XI, 739). Mines — Reference to natural monuments.
Approved in Lindsley v. Union Silver Star Min. Co., 115 Fed.
48, holding judgment dismissing action on plaintiff's declining to
amei^d after sustaining of demurrer to complaint on ground that
it did not state sufllcient facts to constitute cause of action may
be pleaded in bar; Eaton v. Norris, 131 Cal. 565, 63 Pac. 857, hold-
ing mining location sufiiciently marked on ground where locator
located two quartz claims, each marked at corners by four oak
stakes, two of stakes being on dividing line in center of which
was blazed tree upon each side of which ledge was uncovered
and tree notices described each claim by courses and distances
from tree and from stake to stake.
Syl. 8 (XI, 739). Reference to other mine in location notice.
Approved in M'Intosh v. Price, 121 Fed. 720, holding locator
of placer claim sufficiently complied with law as to markings
when he designated boundaries by reference to corner of prior
claim where he placed substantial stake, and by placing at each
of other comers and in center of each end line stakes so that
130 U. 8. 301-320 Notes on U. S. Reports. 1126
boundaries could be readily traced; Buffalo Zinc, etc., Co. v. Crimp,
70 Ark. 537, 69 S. W. 576, 91 Am. St Bep. 95, holding where no-
tice of location of mining claim describes It as " beginning at
N. W. corner of Ed. William's 1/16. at black oak post," etc., it
will be presumed that place of beginning is well-known natural
object
Syl. 11 (XI, 739). Mines — Burden of proving forfeiture.
Approved in McCulloch v. Murphy, 125 Fed. 150; Walton v. Wild
Goose Mining, etc., Trading Co., 123 Fed. 219; Buffalo Zinc, etc.,
Co. V. Crimp, 70 Ark. 540. 91 Am. St. Rep. 98, 69 S. W. 577; Cal-
lahan V. James, 141 Cal. 294, 74 Pac. 854, and Crown Pt. Min. Co.
V. Crlsmon, 39 Or. 369, 65 Pac. 89, all reaffirming rule; McCarthy
V. Phelan. 132 Cal. 406, 64 Pac. 571, holding action of trial court
granting new trial in action to quiet title on ground that notice
of location was void for failure to contain sufficient description
Is not reviewable on appeal; Beals v. Cone, 27 Colo. 501, 502, 62
Pac. 958, 959, holding, under Rev. Stat., S 2324, failure to do an-
nual assessment work does not of itself work forfeiture, and is
necessary only to protect rights of locators against parties see-
ing to imitate title to claim; Power v. Sla, 24 Mont 252, 61 Pac.
471, holding it is not sufficient for defendants claiming und^ re-
location after alleged forfeiture by plaintiffs to allege as such for-
feiture that plaintiffs failed during certain years to perform $100
worth of work on claim, but they must negative expenditure of
that amount in improvements. See 87 Am. St. Rep. 413, 414, note.
130 U. S. 301-320, 32 L. 946, AMY v. WATERTOWN.
Syl. 1 (XI, 739). State practice binding on Federal courts.
Approved in Roberts v. Langenbach, 119 Fed. 352; holding where
Jurisdictional allegation in plaintiff's pleading in action at law
In Federal court is denied by answer and State practice requires mat-
ters in abatement to be pleaded by answer, issue of fact is Joined
which is to be tried with other issues; Files v. Davis, 118 Fed.
467, holding action on attachment bond executed in suit pending
In Federal court presents Federal question, where requisite amount
is involved, regardless of citizenship.
Syl. 2 (XI, 740). Motion to set aside Judgment at subsequent
term.
Approved in Empire, etc., Co. v. Propeller, etc., Co., 108 Fed.
904, holding where Federal court set aside its order remanding
cause, and meanwhile plaintiff had filed copy of first order with
State court which rendered Judgment which was affirmed by State
Supreme Court, motion by plaintiff in Federal court to strike case
from docket would not be passed on until defendant had oppor-
tunity to remove State Judgment to Supreme Court for review.
1127 Notes on U. S. Reports. 130 U. S. 320-395
•
130 U. S. 320-^27. 32 L. 953, AMY v. WATERTOWN.
Syl. 2 (XI, 741). Limitations — Evasion of process as fraud.
Approved in Thayer v. Kansas Loan & Trust Co., 100 Fed. 904,
liolding, under Kans. Stat 1897, action for recovery of money
paid for purchase of notes and mortgages on ground of false rep-
resentations as to value of security and solvency of mortgagors
is barred two years after purchase, in absence of proof that fraud
could not have been discovered within that time; Mereness v.
First Nat Bank, 112 Iowa, 15, 83 N. W. 713, holding where ad-
ministrator demanded of bank sum claimed by him to be due his
intestate on lost certificate of deposit, and cashier told him it did
not appear from bank's books that it was indebted to intestate,
such statement, though knowingly false, was not such fraud as to
toll limitations as to certificate.
130 U. S. 327-343. Not citedw
180 U. S. 343^-353, 32 L. 973, GON-SHAY-EE, PETITIONER.
Syl. 2 (XI, 742). Grimes of Indians in Territory.
Approved in United States v. Gaptain Jack, 3 Ariz. 140, reaffirm-
ing rule; Good Shot v. United States, 104 Fed. 258, holding murder
of one Indian by another is punishable with death.
130 U. S. 354-595, 32 L. 934, REYN£>S v. DUMONT.
Syl. 5 (XI, 743). Banks — General lien from usage.
Approved in Joyce v. Auten, 179 U. S. 597, 45 L. 335, 21 Sup,
Gt.229, holding bank holding negotiable paper for collection does
not lose its lien thereon for debts due it from depositor because
depositor makes assignment for creditors and goes into hands
of receiver; In re Davis, 119 Fed. 956, holding where insolvent
firm sold its stock and by its direction purchaser deposited price
in bank, taking receipt therefor, showing that money was to be
prorated among firm's creditors, on firm's bankruptcy, bank could
not apply fund on notes of firm held by it
Syl. 9 (XI, 743). Legal remedy first urged on equity appeal.
Approved in Williamson v. Monroe, 101 Fed. 329, reaffirming
rule; Beyer v. Le Fevre, 186 U. S. 118, 46 L. 1082, 22 Sup. Ct
767, holding objection of want of jurisdiction of District of Co-
lumbia Supreme Court sitting in equity to set aside will will be
regarded as waived where parties agreed to submit certain issues
to jury and stipulated for return of testimony there taken to
equity court for consideration of Judge thereof; Detroit v. Detroit
Citizens' Street R. R. Co., 184 U. S. 381, 46 L. 605, 22 Sup. Ct
415, holding defense that complaint in bill to restrain enforcement
of ordinance reducing street-car fares as impairing contract obli-
gations has adequate remedy at law will not be recognized when
first raised in Supreme Court; Altoona Elec., etc., Co. v. Kittan-
130 U. S. 390^12 Notes on U. S. Reports. 1128
uing, etc., Ry., 12G Fed. 5G1, holding defendant by answering to
merits and going to hearing without objection waives right to
object that suit is not cognizable in equity, where subject-matter
is within general equitable Jurisdiction; Highland Boy Gold Min.
Co. v. Stricl^ley, IIG Fed. 854, holding decree in equity cannot be
reviewed by writ of error; Bliss v. Reed, 113 Fed. ©47, applying
rule in suit for infringement of patent; Citizens' Bank, etc., Co. v.
Union Min., etc., Co., 106 Fed. 99, holding in creditor's suit against
corporation where defendant has answered admitting its insolv-
ency and that it is Justly indebted to complainants in sums al-
leged in bill, and receiver has been appointed for its property,
intervening stockholder cannot thereafter object to equity Jurisdic-
tion because complainants are merely contract creditors; New York,
etc.. Land Co. v. Gulf, etc., R. R. Co., 100 Fed. 830, holding ob-
jection that equity court has no Jurisdiction by reason of adequacy
of legal remedy which was raised in pleadings, but not otherwise
brought before trial court, cannot be urged on appeal; Green v.
Turner, 98 Fed. 760, holding provision of Federal statute prohib-
iting resort to equity whiere adequate remedy at law exists may
be waived by complainant suing in equity and defendant answer-
ing to merits.
130 U. S. 396-412, 32 L. 979, GIBBS v. BALTIMORE GAS CO.
Syl. 4 (XI, 745). Contract disabling performance of public duty.
Approved In Charleston Nat Gas Co. v. Lowe, 52 W. Va. 671,
44 S. E. 413, holding gas company occupying city streets for its
lines must furnish gas to every inhabitant of city who applies
therefor and complies with regulations prescribed by city ordi-
nances or fixed by contract between council and company. See
74 Am. St. Rep. 268, note.
Distinguished in Wittenberg v. Mollyneaux, 60 Nebr. 587, 83 N.
W. 843, holding covenant in deed for exchange of hotel properties
by which grantee in one deed agrees that for period named he
wUl not use property acquired by him for hotel purposes is not
void as against public policy.
Syl. 5 (XI, 746). Validity of reasonable contract in restraint of
trade.
Approved in National Enameling & Stamping Co. v. Haberman,
120 Fed. 418, holding restrictive covenant made by one capable
of contracting which is unlimited as to time, in area covers en-
tire United States, is ancillary to main lawful contract, and
valid; Harrison v. Glucose Sugar, etc., Co., 116 Fed. 308, uphold-
ing covenant by employee in contract by which he is employed
for five years, that he will not during such term engage in or
become interested in specified business in competition with his
employer at any place within radius of 1,500 miles from employ-
er's place of business; Lanzit v. Sefton Mfg. Co., 184 IlL 330^ 75
1129 Notes on U. S. Reports. 130 U. S. 412-416
Am. St Rep. 173, 50 N. B. 394, holding contract made by person
engaged In particular business, based on valuable consideration,
whereby he agrees not to engage in such business within State
where contract Is made and where he is so engaged at time of
entering into contract is void; dissenting opinion in Mallinckrodt
Chem. Works v. Nemnich, 83 Mo. App. 27, majority upholding con-
tract of sale of secret process for manufacture or composition of
drugs, of other matter or of machinery used in trade, which re-
stricts vendor from using same or imparting knowledge to others
or selling same article.
Distinguished in Brightman v. Bates, 175 Mass. 109, 55 N. E.
810, upholding agreement to form syndicate to gain control of
company, members subscribing for certain amount of stock at
stated price and agreeing after purchase to enter into pooling con-
tract whereby all syndicate stock shall be voted by committee
at each annual meeting for three years.
Syl. 6 (XI, 746). Contracts — Malum in se and malum pro-
hibitum.
Approved in Cumberland Tel., etc., Co. v. Evansville, 127 Fed.
197, holding, under Indiana statute, authorizing formation of tele-
phone corporations, sale by one corporation of all its property
and franchises is void and not validated by its regulation by city
which granted such company right to use streets; Lanzit v. Sef-
ton- Mfg. Co., 184 111. 330, 75 Am. St. Rep. 174, 56 N. E. 394, hold-
ing contract made by person engaged in particular business, based
on valuable consideration, whereby he agrees not to engage in
such business within State where contract is made and where he
is 80 engaged at time of entering into contract is void; dissenting
opinion In Hanover Nat Bank v. First Nat Bank, 109 Fed. 435,
majority holding where loan by national bank was made to an-
other national bank's president and proceeds paid to bank, so as
to evade Federal statutes, bank liable for loan.
130 U. S. 412-416, 32 L. 995, ROBERTSON v. SALOMON.
Syl. 2 (XI, 747). Tariff — Commercial designation of terms.
Approved in Chew HIng Lung v. Wise, 176 U. S. 161, 44 L. 414,
20 Sup. Ct 323, holding tapioca flour entitled to free entry under
tariff act of 1890, par. 730, as tapioca; Nordlinger v. United States,
127 Fed. 685, holding canary seed is dutiable, under tariff act of
1897, chap. 11, § 1, covering seeds of all kinds not specially enu-
merated; Hempstead v. Thomas, 122 Fed. 540, holding Tungsten
ores are free from duty under tariff act 1897, § 614; Nordlinger v.
United States, 115 Fed. 830, 833, holding leghorn citron is classi-
fied dried fruit under tariff act of 1883, par. 704, and entitled to
free entry; Wieland v. Collector of Port of San Francisco, 104
Fed. 544, holding small fish packed in oil in quarter tins are duti-
130 U. S. 416^72 Notes on U. S. Reports. U30
able as sardines in oll» though they are not in fact sardines but
sprats.
130 U. S. 416-426, 32 L. 991, FRIEDLANDBB v. TEXAS, ETC., BY.
Syl. 1 (XI, 747). Carrier's liability on bill issued without receipt
of goods.
Approved In Planters* Fertilizer Mfg. Ga ▼. Elder, 101 Fed.
1003, holding where bill of lading for phosphate specified quantity,
but contained further statement, " weight unknown," burden rests
on shipowners to account for discrepancy between quantity sped-
fled and that delivered.
130 U. S. 426-434, 32 L. 970. SHEPHERD v. BALTIMORE, ETC.,
R. R. CO.
Syl. 2 (XI, 748). Recovery for temporary injury by street ob-
struction.
Approved in Lund v. St Paul, etc., Ry., 31 Wash. 293, 71 Pac.
1034, holding where railroad authorized to close street for purpose
of building new bridge across stream it is not liable for long delay
in keeping street closed where delay caused by failure to d^ver
steel for bridge.
130 U. S. 43&-439, 32 L. 989, ANDES v. SLAUSON.
Syl. 1 (XI, 749). Review of Circuit Court decisions regulated bj
Federal law.
Approved in Menge v. Warriner, 120 Fed. 817, holding question
of finality of judgment for puri)08es of review not affected by State
procedure.
130 U. S. 439-452, 32 L. 997. BADEAU V. UNITED STATES.
Syl. 3 (XI, 750). No recovery of salary paid to de facto ot^cer.
Distinguished in Ada County v. Gess, 4 Idaho, 616, 43 Pac. 72,
holding money paid county of&cer in violation of Constitution may
be recovered in suit at law.
130 U. S. 452-455, 32 L. 1029, UNITED STATES v. CUMMING.
Syl. 1 (XI, 750). Special act permitting suit against government
Distinguished in Watts v. United States, 123 Fed. 114, holding,
under special act (32 Stat 242, chap. 887), authorizing claims of
owners of British vessel sunk by cruiser to be submitted to Dis-
trict Court, judgment could be rendered against United States for
amount of loss on finding that collision resulted solely from vio-
lation of navigation rules by cruiser.
130 U. S. 456-472, 32 L. 1011, HURLBUT v. SCHILLINGER.
Syl. 3 (XI, 750). Patents — Recovery of entire profit for in-
fringement.
Approved in Piaget Novelty Co. v. Headley, 123 Fed. 898, Wales
V. Waterbury Mfg. Co., 101 Fed. 130, and Coddington v. Propfe,
112 Fed. 1018, all reaffirming rule.
1131 Wotes on U. S. Reports. 130 U. S. 472-520
(XI, 750). Miscellaneous.
Cited in Carnegie Steel Co. v. Cambria Iron Co., 185 U. 8. 436,
46 L. 985, 22 Sup. Ct. 711, holding disclaimer of statements in
specifications of patent may be entered in Infringement suit when
such statements, if retained, might be construed as having the
effect of illegally broadening claim.
130 U. S. 472-482. 32 L. 1025, WILSON v. EDMONDS.
Syl. 1 (XI, 750). One lending money not partner.
Approved in Hazell v. Clark, 80 Mo. App. 84, holding receiving
part of profits of partnership in lieu of interest on loan does not
make lender partner.
130 U. S. 482-493, 32 L. 985, CENTRAL TRUST CO. v. SEASON-
GOOD.
Syl. 1 (XI, 751). Questions reviewable on appeal of " this cause.*'
Approved in Coltrane v. Templeton, 106 Fed. 378, holdhig order
entered on intervening petition of stockholders appointing resident
coreceiver to act with receivers previously appointed on application
of plaintiff in taking charge of property within district, is not
final appealable order.
Syl. 2 (XI, 751). Federal collateral attack on State Judgment.
Approved in Archer v. Baltimore Bldg. & Loan Assn., 179 U.
8. 679, 45 L. 383, 21 Sup. Ct 917, reafiirming rule; United States
y. Eisenbeis, 112 Fed. 196, holding when final State Judgment is
offered in evidence in Federal court, its validity Cannot be ques-
tioned for errors not affecting Jurisdiction of court rendering it
130 U. S. 493-505, 32 L. 1001, HASSALL v. WILCOX.
SyL 1 (XI, 751). Federal contest of priority of State Judgment
lien.
Approved in Guardian Trust, etc., Co. v. Greensboro, etc., Co.,
115 Fed. 189, holding, under N. C. Code, | 1255, Judgment against
water company in favor of owner whose property is burned by
failure of company to furnish water for fire purposes as provided
for by city contract is prior to mortgage given by company. See
94 Am. St. Rep. 551, note.
130 U. S. 505-520, 32 L. 1005, KILBOURN v. SUNDERLAND.
Syl. 2 (XI, 752). Time to object as to adequacy of law remedy.
Approved in Williamson v. Monroe, 101 Fed. 329, reaffirming
rule; Detroit v. Detroit Citizens' Street R. R. Ca, 184 U. S. 381, 46
L. 605, 22 Sup. Ct. 416, holding defense that complainant, in bill
to restrain enforcement of ordinance reducing street-car fares as
impairing contract obligations, has adequate remedy at law, not
recognizable on appeal, if no such objection taken in lower appellate
court; Altoona Elec., etc., Co. v. Kittanning, etc., Ry., 126 Fed.
661, applying rule in suit for specific performance of contract to
130 U. S. 520-527 Notes on U. S. Reports. 1132
deliver stock In payment for work which gave such stock Its only
value; United States v. Southern Pac. R. R. Co., 117 Fed. 553,
applying rule In suit for adjustment of land grant; Bliss ▼. Reod,
113 Fed. 947, applying rule in suit for infringement of patent;
New York, etc.. Land Co. v. Gulf, etc., R. R. Co., 100 Fed. 830.
holding objection to equitable Jurisdiction by reason of existence
of adequate legal remedy, which was raised in pleadings but not
otherwise brought before trial court, cannot be urged on appeal;
Green v. Turner, 98 Fed. 760, holding provision of statute prohibit-
ing resort to equity when adequate remedy exists at law waived by
complainant suing In equity and defendant answering to m^lts.
Syl. 3 (XI, 753). Equity — EfBcacy of legal remedy.
Approved in Twin City Power Co. v. Barrett, 126 Fed. 306, up-
holding bill asking appointment of receiver to complete purchase
under options transferred to defendant; Jones v. Mutual Fld^ty
Co.» 123 Fed. 520, upholding bill praying accounting by corporation,
distribution of assets among creditors, and appointment of receiver;
Empire State-Idaho, etc., Co. v. Bunker Hill, etc., Co., 121 Fed.
978, upholding bill to quiet title where defendant owned number
of mining claims located on same lode as claim of complainant
under which It claimed extralateral rights in such lode adverse to
those of complainant, and under one of which it extracted ore;
Schmidt V. West, 104 Fed. 274, upholding equity Jurisdiction over
suit for cancellation of forged note brought by purported maker
against paye^ who is alleged to be asserting validity of such note,
and attempting to negotiate same, where, under statute, note will
not be barred for more than eleven years; Hale v. Allinson, 102 Fed.
794, denying equity Jurisdiction of suit by receiver of insolvent
corporation against numerous stockholders to recover additional
liability imposed by statute on ground of multiplicity of suits,
where amount of assessment has been previously adjudicated in
general suit; Wall v. Cox, 101 Fed. 412, holding bankruptcy trustee
seeking to set aside and annul bill of sale and transfer of property
previously made by bankrupt, and alleged to have been fraudulent
under bankruptcy law and as against creditors, may proceed in
equity; South Portland L. Co. v. Munpor, 3G Or. 473, 60 Pac. 9,
holding equitable cross-complaint in ejectment action whereby de-
fendant claims title to land in controversy, and alleges that one of
deeds through which he claims is insufficient to convey legal title
owing to certain formalities resulting from mutual mistake, and
praying for its revocation, states ground for equitable relief.
130 U. S. 520-527, 32 L. 1035, STILWELL MFG. CO. v. PHELPS.
Syl. 1 (XI, 754). Sales — Cost of making machine conforming
to contract.
Approved in North Chicago St. Ry. Co. v. Burnham, 102 Fed. 673,
holding, under seller's contract to build motor from model furnished
113S Notes oa O. S. Reports. 130 U. S. 52T-o5S
him, without warranty tbat it shall be adapted to work for which
It is Intended. If motor does not cooform to model bat Is accepted
by vendee, latter can recover only cost of making changes neces-
sary to meet requirements of contract.
Syl, 2 (XI. 754). Qualification of witness as preliminary ques-
llon — Conclusiveness.
Approved in Kenney v. Meddaugh, 118 Fed. 220, applylug rule in
holding railroad used due care in providing locomotive fireman
with reasonably safe place to work in where injured by mall crane;
Bradford Glycerme Co. v. Klzer, 113 Fed. 890, applying rule lu
action for damages for injuries through explosion of uitro-glyc-
erlne used by oil well shooter; Missouri, etc., R. R. v. Fox, GO Nebr.
519, 83 N. W. 750, holding yardmaster having charge of switch-
men and brakeman, and who has been switchman and handled
cars, and is acquainted with mode of construction, may testify
as expert respecting manner of coustructiou of cars In controversy
and give opinion as to what is proper and Improper construction;
Sloan V. Balrd, 1C2 N. T. 333. 56 N. B. 754, holding. In action tor
seller's refusal to complete contract to sell certain property, dam-
ages are difference between amount which plaintiff agreed to pay
and value of property; Ruckman v. Imbler Lumber Co., 42 Or. 234,
70 Pac. 812. holding where witness testifled he did not know value
of use of engine and boiler of size of that for use of which action
was brought, but tbat be did know value of use of engines and
boilers of less capacity, be was not disqualified by answer that
he did not know value of engine and boiler in qneslion. from
expressing opinion based on knowledge of use of smaller engines:
Farmers' Bank v. Woodell, 38 Or. 300, CI Pac. 839, applying rule In
determining competency of witness testifying , that he cultivated
sugar beets in 1898, observed their growth In 1899, to testify as to
when they should be thinned and how many toiiR could be raised
per acre; dissenting opinion in Southern Pac. Co, v. Amett, 111
Fed. 859, majority holding, in action for damages to cattle shipped
by rail, evidence of vnqueros as to condition of cattle and that
cattle shipped from warm to colder climate would lie down In
cars and be unable to get up was competent, though witnesses had
not shipped cattle by rail.
130 D. S. 527-558, 32 L. 1017, BUTLER v, BOSTON SS. CO,
Syl. 1 (XI, 754). Shipping — Limited liability act applies to
injuries.
Approved In The Longfellow, 104 Fed. 3C3, reaflirmlng rule;
The Albert Dumois, 177 U. S. 259, 44 L. 7fl2, 20 Sup. CL 803, hold-
ing valid claims may be asserted under limited liability act for
damages on account of loss of life of passengers In collision, though
local law gives no Hen on vessel; The Onoko. 107 Fed. 988, hoiaing.
under Illtnole or Wlaconsin statutes, suit in rem for wrongful
i
130 U. S. 559-^505 Notes on U. S. Reports. 1134
death of persoD killed as result of collision, cannot be maintained in
admiralty against vessel charged with being in fault for collision.
Syl. 4 (XI, 755). Act of 1871 does not supersede limitation of
liability.
Approved in Workman v. Mayor, etc., of New York, 179 U. S.
662, 45 L. 321, 21 Sup. Ct 215, holding city liable, by maritime
law, for negligence of servants In charge of fireboat, while hasten-
ing to put out fire, in consequence of which boat collides with and
injures another vessel.
Syl. 5 (XI, 755). Limitation of liability — Officer in charge not
licensed pilot
Approved in The George W. Roby, 111 Fed. 614, holding vessel-
owner not deprived of right to limitation of liability for damages
caused by collision, for misconduct of officers or crew, to which he
was not privy.
Syl. 8 (XI, 755). Admiralty — Negligent death on high seas.
Approved in Rundell v. La Gompagnie Generale ^ransatlantique,
100 Fed. 659, reaffirming rule.
Syl. 9 (XI, 756). Limited liability act coextensive with admiralty.
Approved in Oregon R. R. & N. Co. v. Balfour, 179 U. S. 56, 45
L. 84, 21 Sup. Ct. 29, holding proceedings under limited liability
act are admiralty cases within judiciary act of 1891, | 6, making
Judgments of Circuit Court of Appeals final.
Syl. 11 (XI, 756). Limits of admiralty Jurisdiction are Judicial
questions.
Approved in dissenting opinion in Workman v. Mayor, etc., of
New York, 179 U. S. 586, 45 L. 330, 21 Sup. Ct. 225, majority
holding city liable by maritime law for negligence of servants in
charge of fireboat while hastening to fire, in consequence of which
boat collides with and injures another vessel.
130 U. S. 559-565, 32 L. 1045, HULING v. KAW VALLEY RY.
Syl. 2 (XI, 756). Publication of notice of condemnation proceed-
ings— Due process.
Approved in Turpin v. Lemon, 187 U. S. 58, 23 Sup. Ct 23, 47
L. 74, holding bill to set aside tax sale which does not charge
that statutory procedure was not strictly pursued, but relies on
failure of sheriff's return of sale to set forth compliance with
such procedure on ground of lack of due process cannot be main-
tained; Johnson v. Hunter, 127 Fed. 223, upholding Acts Ark. 1805.
p. 88, No. 71, relative to proceedings to collect taxes on property
owned by nonresidents; Appleton v. Newton, 178 Mass. 281, 59 N. E.
649, upholding Stat. 1872, chap. 344, authorizing city of Newton to
acquire land for water-works, and requiring instrument reciting
taking to be filed in registry of deeds, and allowing owner three
1135 Notes OB U. S. Reports. 130 U. S. 565-611
years in which to enforce claim for damages; Tyler v. Court of
Registration, 175 Mass. 76, 104, 55 N. E. 814, 825, upholding Stat.
1898, chap. 562 (registration act), providing for cutting off adverse
interests in land of unknown claimants by publication of notice to
" whom it may concern."
Distinguished in Railroad Co. v. Kansas City, etc., Ry. Co., 9
Kan. App. 284, 60 Pac. 541, 542, holding where one railroad attempts
by condemnation to obtain for Its right of way the property of
another railroad, and in so doing conceals its real purpose and object
by failing to describe in its petition or notice the particular tract
it intends to condemn, proceedings are void.
130 U. S. 565-572, 32 L. 1043, UNION TRUST CO. ▼. SOUTHERN
NAV. CO.
Syl. 1 (XI, 757). Lis pendens.
Approved in United States v. Chicago, etc., Ry. Co., 116 Fed. 973,
holding suit not lis pendens where no subpoena served.
130 U. 8. 572-580. Not cited.
130 U. S. 581-611, 32 L. 1068, THE CHINESE EXCLUSION CASE.
Syl. 1 (XI, 757). White witness necessary to prove Chinaman's
residence.
Approved in Li Sing v. United States, 180 U. S. 494, 45 L. 638,
21 Sup. Ct 453, upholding 28 Stat 7, chap. 14, excluding Chinese
as witnesses to prove fact that Chinaman, claiming right as mer-
chant, to re-enter United States; United States v. Lee Huen, 118
Fed. 464, holding mere fact that witness for defendant in deporta-
tion proceedings is himself a Chinese does not render him an
interested witness within rule which permits interest to be con-
sidered as discrediting circumstance.
SyL 2 (XI, 757). Repeal or modification of treaties.
Approved in Lone Wolf v. Hitchcock, 187 U. S. 566, 23 Sup. Ct.
221, 47 L. 306, holding Comanche treaty of 1867 does not preclude
enactment of 31 Stat 677, chap. 813, providing for allotments to
Indians in severalty out of lands held in common within reserva-
tion; The Kestor, 110 Fed. 448, holding 30 Stat 755, § 24, prohibit-
ing prepayment of wages of seaman, applies to prepayment on
American soil or in American waters of wages of seamen, who are
British subjects shipping in American ports on British merchant
vessels; EIx parte Ortiz, 100 Fed. 959, holding, until ratification of
treaty of peace, military tribunal in Porto Rica had Jurisdiction to
try offenses committed by civilians.
(^I, 757). Miscellaneous.
Cited in In re Sing Tuck, 126 Fed. 388, holding Congress has
power to commit to immigration commissioner right to determine
facts on which citizenship depends.
130 IT. 8. 611-942 Notes on U. S. Reports. 1136
130 U. 8. 611-623, 32 L. 1031. NEW YORK, ETC., BUN. CO. T.
ERASER.
8yL 4 (XI, 759). Ore milled determines rental yalne of mill.
Approved in Bien & Go. v. Hess, 102 Fed. 440, holding where
tenant of premises used for manufacturing purposes claims dam-
ages for diminution in rental value by lessor's breach of cov^iant
to keep premises in repair, evidence tending to show amount ex-
pended in l^eeping plant running overtime to turn out normal
quantity of work is admissible.
SyL 7 (XI, 759). Sales — Deduction of damages for delay.
Approved in Wood v. Joliet, etc., Co., Ill Fed. 465, applying
rule in action for breach of contract to complete gasholder by
certain date; Bien & Co. v. Hess, 102 Fed. 441, 442, holding where
tenant of premises used for manufacturing purposes claims dam-
ages for diminution in rental value by lessor's breach of covenant
to keep premises in repair, evidence tending to show amount ex-
pended in keeping plant running overtime to turn out normal
quantity of work is admissible; Manufacturing Co. v. Creamery,
Co., 120 Iowa, 587, 95 N. W. 189, holding damages arising out of
fact that patrons of creamery delivered milk to others because of
plaintiff's failure to furnish machinery bought of him in time for
opening of creamery at date expected cannot be recovered.
130 U. S. 623-625, 32 L. 1053, REDFIELD v. PARKS.
Syl. 1 (XI, 760). Transcript must set forth pleadings.
Approved in Teller v. United States, 111 Fed. 121, holding where
moving party files no praecipe it is duty of clerk of trial court to see
that transcript is true copy of papers and proceedings necessary
to hearing.
Syl. 3 (XI, 7G0)i Appellant must present proper record.
Approved in West v. East Coast Cedar Co., 113 Fed. 742, holdhig
action of Circuit Court in directing incorporation in transcript of
testimony which it has excluded as incompetent and which is not
in bill of exceptions is harmless error.
130 U. 8. 626-629. 32 L. 1057, PETERS v. ACTIVE MFG. CO.
Syl. 1 (XI, 760). Patents — Novelty.
Approved in Ballou v. Potter, 110 Fed. 971, holding void Ballon
patent No. 380,380, for process for making safety pins.
130 U. S. 630-637. Not cited.
130 U. S. 637-642, 32 U 1051, PICARD v. TENNESSEE!, ETC.,
R. R.
Syl. 2 (XI, 761). Tax exemption must be clear — Not assignable.
Approved in Bancroft v. Wicomico County Comrs., 121 Fed. 878,
881, holding Md. Code, art. 23, §§ 187, 188, providing that purchaser
at foreclosure of railroad mortgage shall be authcNrized to form
1137 Notea on D. S. Reports. 130 V. a. B43-Ma
corporation poeseaalng all powers, Immunltlca and franchises of
old corporation, pasBes to succeeding corporation tai exemption;
Matthews v. Board of Corporation Cooira., 97 Fed. 403, holding
special railroad charter provision authorizing directors to fii rales
does not give same right to purchasers at foreclosure aale; Chi-
cago Union Traction Co. v. Chicago, 199 Hi. 534. 65 N. E. 465, hold-
ing Rev. Code Chicago 1897, f 1723, fixing rates of street-car fares,
applies where corporation has aubsequeutly become owner or leasee
of or Is operating two or more lines of street railway wtthln
Chicago which Join, connect, cross or come within 200 feet of each
other, notwithstanding such lines formerly operated by separate
companies; Sublette v. St. Louis, etc., Hy. Co., 06 Mo. App. 124.
69 S. W. 748, holding esemptlon or Immunity granted to North
Missouri railroad by Laws 18C5. p. 89. | 3, concerning actions for
stock killing, does not pass by transfer of company's property;
dissenting opinion In Denison, etc., Ry. v. St. Ijonls. etc., Ry.. 30
Tei. Civ. 482. 96 Tex. 249, 72 S. W. 205, majority holding where elty
has granted right of way to railroad whose rights have vested In
another railroad by purchase at foreclosure, local street railroad
that bas obtained subsequent grant of riglit of way along sanie
street cannot restrain purchasing railroad from completing track
on ground of forfeiture.
130 U. S. 643-649, 32 L. 1054, ANDBUS v. 6T. LOUIS, ETC.,
REFINING CO.
Syl. 1 (XI. 761). Fraud — Neglect to obtain Information.
Approved in New York Cent., etc., R. R. Co. v. Dlfendaffer, 125
Fed. 896, liolding fact that Pullman porter failed to read contract
be was required to sign, and wbich contained assumption of Hsk
from railroad travel, not ground for avoidance of contract; Brown
V. Clow. 158 Ind. 419. 62 N. E. 1012. holding mere failure of corpo-
ration to publish reports required by Burns' Rev. Stat. 1901. | 5071.
does not render directors liable under section 5073, to creditor of
corporation, unless creditor Is deceived and misled by failure to
make report
Syl. 2 (XI. 761). Covenant for quiet possession merges prior
representations.
Approved in Watson v. Heyn, 62 Nebr. 195, 86 N. W. 1065, hold-
ing where preihises conveyed by warranty deed were In posaea-
alon of third party under oral agreement of sale with previous
holder of title, and by subsequent litigation with vendee'a grantee
specific enforcement decreed, limitations did not begin on action on
warranty till rendition of decree.
Syl. 4 (XI, 761). False representations relating to collateral
matters.
Approved In Blancont v. Smith, 3 Ariz. 326, 28 Pac. 881, reafflrm-
Idc rule.
Vol. n — 72
i
130 U. S. (M1MS74 Notes on U. S. Reportt. 1138
130 U. S. 640-653, 32 L. 1058. DUNLAP T. NORTHEASTERN B. B.
SyL 1 (XI, 762). Negligence — Direction of verdict
Approved In Alaska SS. Co. v. Collins, 127 Fed. 940, holdhig In
action for injuries to plalntilTs wharf, which was struck by defend-
ant's vessel, question whether wharf fell by reason of negligence
of operatives of vessel is for Jury; Bryce v. Soutiiem Ry. Co., 122
Fed. 713, applying rule in action by passenger for injuries caused
by derailment of train; Neininger v. Cowan, 101 Fed. 790, uphold-
ing direction of verdict for defendant in action for injuries at
railroad crossing in city where plaintiff was familiar with crossing
and failed to look and listen when he observed absence of usual
watchman; Coley v. North Carolina R. R., 129 N. C. 414, 40 S. B.
198, holding whether engineer is guilty of contributory negligosce
in using drain pipe as grab-iron, in trying to get upon engine, is
for Jury; Galveston, etc., Ry. v. Adams, 94 Tex. 106, 58 S. W. 832,
holding question of servant's negligence in disobeying master's
regulations is for Jury.
130 U. S. 653. 654. Not cited.
130 U. S. 655-661, 32 L. 1041, DISTRICT OF COLUMBIA ▼.
CORNELL.
Syl. 1 (XI, 762). Cancellation of note by maker before maturity.
Approved in Salley v. Terrill, 95 Me. 556, 557, 50 Ati. 897, 898,
holding where employee whose duty It was to draw orders on
defendant for moneys due other employees drew order payable to
A., which was never delivered nor intended to be delivered to A.,
but which A. stole and negotiated to plaintiff, defendant was not
liable.
Syl. 3 (XI, 763). Municipal certificates not negotiable instruments.
Approved in Fidelity Trust Co. v. Palmer, 22 Wash. 475, 79 Am.
St. Rep. 954, 61 Pac. 159, holding where city warrant Indorsed In
blank is sold to bona fide purchaser by its apparent owner, to
whom it has been temporarily intrusted by its real owner, purchaser
acquires title thereto.
130 U. S. 662-674, 32 L. 1060, LAKE COUNTY v. ROLLINS.
Syl. 1 (XI, 763). Intent governs statutory construction.
Approved in White v. United States, 191 U. S. 551, holding navy
personnel act of March 3, 1899, crediting officers appointed from
civil life with five years service on date of appointment for purpose
of computing pay, does not apply to officers who have reached
maximum paV before passage of act; Whitman v. Oxford Nat. Bank,
176 U. S. 503, 44 L. 590, 20 Sup. Ct. 478, holding words ** shaU be
secured" in Kan. Const., art. 12, § 2, declaring stockholder's lia-
bility, make section self -executing; Middletown Nat. Bank v. Toledo,
etc., Ry., 127 Fed. 87, holding where Circuit Court of Appeals by
reason of confiicting decisions cannot determine question, it maj
1139 Notes on U. S. Reports. 130 U. S. 674r^84
be certified to Supreme Court; Southern Ry. t. Machinists', etc..
Union, 111 Fed. 57, holding, under Tenn. Acts 1875, chap. 93, pro-
hibiting enticement of employees, it is unlawful for labor union
whose members are on strike to entice apprentices under conti"act
for term of years; In re Oliver, 109 Fed. 788, holding where creditor
having reason to believe debtor insolvent receives a payment
within four months of filing of petition on which debtor is ad-
Judged bankrupt, creditor cannot retain balance; Iowa v. Santee,
111 Iowa, 7. 82 N. W. 447, holding void CJode, § 2508, prohibiting
use of petroleum products for illumination which emit combustible
vapor at lower temperature than 105 degrees Fahrenheit, except
when used in Welsback ' incandescent lamp; dissenting opinion in
Fee V. Durham, 121 Fed. 471, majority holding where locator's em-
ployees quit work on Saturday, December 30tn, having tools
on claim and resumed work on Monday, January 1st, continued
work till $500 had been done, but on Saturday less than $100
worth had been done, one locating claim on Sunday night, between
twelve and one o'clock, was trespasser; dissenting opinion in
Chauncey v. Dyke Bros., 119 Fed. 16, 17, majority holding, under
Ark. Acts 1895, p. 217, § 3, relative to mechanic's liens, such liens
are superior to mortgage given to pay for improvements resulting
in such lien as to part of proceeds not used to pay for such Improve-
ments.
Syl. 2 (XI, 763). Wisdom of consti^tional restrictions not Judicial
question.
Approved in Dewey v. United States, 178 U. S. 521, 44 L. 1174,
20 Sup. Gt. 985, holding, in determining whether enemy's vessels
were superior or inferior force, for purpose of fixing bounty, land
batteries, mines and torpedoes supporting vessels but not con-
trolled by those in charge of enemy's vessels are excluded.
Syl. 3 (XI, 764). Constitutional limitation on debt-contracting
];K>wer8.
Approved in Coffin v. Board of Comrs., 114 Fed. 525, applying
rule in action on refunding bonds issued tq cancel county warrants;
Chicago V. Galpin, 183 111. 406, 55 N. B. 733, holding Const. 1870,
art 9, S 12, prohibiting city from becoming indebted to amount
exceeding 5 per cent, of taxable property, precludes It from con-
tracting for maintenance of definite number of streets lamps at cer-
tain price per lamp, to be paid for monthly after debt limit reached;
State V. Helena, 24 Mont. 535, 63 Pac. 105, holding where consti-
tutional city debt limit exceeded, water company could not recover
for water furnished for municipal purposes under ordinance provid-
ing for monthly payments and ordering tax levy for such purpose.
130 U. S. 674-684, 32 L. 1065, LAKE COUNTY v. GRAHAM.
Syl. 2 (XI, 766). Municipal bonds — Knowledge of restrictions
on powers.
Approved in Fairfield v. Rural, etc., Dist., Ill Fed. 461, holdiug.
130 U. S. 674-684 Notes on U. S. Reports. 1140
under Iowa Const., art. 11, | 3, placing limit on municipal debts,
purchaser of bonds not entitled to rely solely on recital therein
that debt thereby created does not exceed limit; G^eer ▼. School
Dist No. 11, 97 Fed. 734, holding where statute does not authorize
officers to determine whether proposed issue exceeds legal limit,
and there is no recital in bonds that bonds do not exceed limit,
and each bond in connection with assessment-roll shows excess of
limit, general recital of compliance with law does not estop
municipality from showing that bonds exceed legal limit; Lake
County v. Linn, 29 Colo. 455, 68 Pac. 841, holding where, in action
on county bonds, defense was that bonds exceeded debt limit,
evidence of what county records show as to indebtedness is admissi-
ble; National Life Ins. Ca ▼. Mead, 13 S. Dak. 46, 79 Aul St Rep.
880, 82 N. W. 79, holding . certificates signed by city officials stat-
ing steps had preliminary to issuance of bonds and as to financial
condition of city and used by person negotiating bonds are in-
admissible to predicate estoppel that bonds exceed limit; dissenting
opinion in Board of Comrs. t. Keene, etc.. Bank, 108 Fed. 517.
majority upholding refunding bonds issued in excess of constitu-
tional limit
Distinguished in Independent School Dist v. Rew, 111 Fed. 9.
holding municipality is estopped by recitals of issuance in con-
formity with statute to deny excess of debt limitation, though there
is no express recital to that effect
Syl. 3 (XI, 766). Estoppel by recitals — Want of power.
Approved In Waite v. Santa Cruz, 184 U. S. 318, 46 L. 564, 22
Sup. Ct. 333, holding recitals in refunding bonds that statute au-
thorizing them has been complied with estop city from denying
validity of original debt for which they were issued; Brattleboro
Sav. Bank v. Board of Trustees, 98 Fed. 533, holding act author-
izing township trustees to issue refunding bonds and providing
that bonds shall contain recital that they are issued in conformity
with act confers on trustee power to recite that valid indebtedness
of township is such as to authorize their issuance under the act:
Kelly V. Cole, 63 Kan. 393, 65 Pac. 675, holding unearned interest
coupons attached to municipal bonds are not " bonded indebted-
ness actually existing," within Laws 1901, chap. 288, § 1; National
Life Ins. Co. v. Mead, 13 S. Dak. 45, 48, 79 Am. St Rep. 880. 882, 82
N. W. 79, 80, holding certificates signed by city officers stating steps
had preliminary to Issuance of bonds and as to financial condition
of city, and used by person negotiating bonds, are inadmissible
to predicate estoppel that bonds exceed limit; dissenting opinion
in City of Pierre v. Dunscomb, 106 Fed. 620, majority holding
municipality estopped, as against bona fide purchaser, by certificate
on face of bonds that they have been issued pursuant to legislative
authority to refund valid debt; dissenting opinion in Wilson v.
Board of Education, 12 S. Dak^ 559, 81 N. W. 958, majority hold-
1141 Notes on U. S. Reports. 130 U. S. 684-704
ing board of education cannot, as against bona fide purchaser of
its bonds, allege failure to comply with constitutional provision as
to provision for payment of annual interest and premium where
bonds contain recital of compliance with conditions precedent.
Distinguished in City of Pierre v. Dunscomb, 106 Fed. 617, hold-
ing municipality estopped, as against bona fide purchaser, by cer-
tificate on face of bonds that they have been issued pursuant to
legislative authority to refund valid debt
Syl. 4 (XI, 767). Bonds — Knowledge of amount of assessments.
Approved in Burlington, etc., Bank v. Clinton, 111 Fed. 444, hold-
ing where street improvement bonds issued under Iowa statute,
23 Gen. Assem., chap. 14, § 6, were all sold to same purchaser, in
themselves exceeded debt limit, purchaser is chargeable with notice
of such fact.
130 U. S. 684-693, 32 L. 1077, JONES v. VAN DOREN.
SyL 1 (XI, 767). EJquity pleading — Amendment discretionary.
Approved in Brainard v. Buck, 184 U. S. 104, 46 L. 453. 22 Sup. Ct.
461, permitting amendment of bill seeking to establish resulting
trust
130 U. S. 693-609, 32 L. 1060. MICHIGAN INS. BANK v. ELDRED.
Syl. 2 (XI, 768). Limitation statutes affect remedy — Courts.
Approved in Hale v. Coffin, 120 Fed. 474, holding Me. Rev. Stat.,
chap. 87. providing that where claim against estate q( decedent is
not filed in probate office as therein provided, claimant may have
remedy against heirs or devisees of estate within onp year after it
becomes due, may be asserted in Federal court; Brunswick, etc.,
Co. V. National Bank, 99 Fed. 636, holding Ga. Code 1882, § 2916,
providing limitation of twenty years for enforcement of statutory
rights, and not Maryland limitation statute, governs action in
Maryland to enforce liability of stockholder in Georgia corpora-
tion created by charter.
130 U. S. 699-704, 32 L. 1083, HILL v. HARDING.
Syl. 1 (XI, 769). Stay in State court pending bankruptcy.
Approved in Rosenthal v. Nove, 175 Mass. 563, 78 Am. St. Rep.
516, 56 N. E. 886, holding bankruptcy act 1898, chap. 541, § 11,
effects peremptory stay in pending suit on claim from which dis-
charge would be a release, only until adjudication in bankruptcy is
made.
Syl. 2 (XI, 769). Judgment on levy notwithstanding bankruptcy
discharge.
Approved in Metcalf v. Barker, 187 U. S. 173, 23 Sup. Ct. 70, 47
L. 126, holding judgment creditors of bankrupt, by commencing
judgment-creditor's action more than four months prior to petition
in bankruptcy, acquire lien on property of bankrupt, though judg-
130 U. S. 69^704 Notes on U. S. Reports. 1142
ment enforcing lien is recovered less than four months prior to
filing of petition; Wakeman t. Throckmorton, 74 Conn. 619, 51 Atl.
556, holding where property subject to attachment lien, which is
more than four months old, be sold by order of Bankruptcy Court,
attaching creditor can claim before that court benefit of subroga-
tion as respects proceeds of sale; Dry Goods Co. t. Nelson, 10 N.
Dak. 583, 88 N. W. 704, holding unless lien of attachment of per-
sonalty of bankrupt is one which is itself declared void by bank-
ruptcy act, it may be enforced through modified form of Judgment,
as against property on which lien exists; Elsbru v. Burt, 24 R. L 324,
53 AtL 61, holding stockholder's liability, under Gen. Laws, chap.
180, not released by discharge of corporation in bankruptcy.
SyL 3 (XI, 769). State Judgment against bankruptcy — Stay —
Sureties.
Approved in In re Marshall Paper Co., 102 Fed. 874, 875, hold-
ing, under bankruptcy act 1898, § 14b, refusal, but applicant is en-
titled to discharge as matter of right, unless he is found guilty of
some one of the prescribed offenses; Train v. Marshall Paper Co.,
180 Mass. 516, 62 N. E. 967, holding Judgment against conmration
after its discharge in bankruptcy, imposing no liability on corpo-
ration, does not satisfy Pub. Stats., chap. 106, | 62, that Judgment
must be recovered against corporation as condition precedent to
stockholder's UablUty; Pinkard v. WiUls. 24 Tex. Civ. 71, 57 S. W.
893, holding where property was levied on prior to institution of
bankruptcy proceedings against statutory claimant thereof, his
subsequent discharge in bankruptcy does not release sureties on
his claimant's bond by virtue of which he took property from under
execution.
Distinguished in Marx v. Hart, 166 Mo. 518, 66 S. W. 265, hold-
ing discharge in bankruptcy of attachment defendant after final
Judgment against garnishee and appeal taken and supersedeas bond
filed does not discharge garnishee or divest court of jurisdiction
to enforce rights which have accrued to attachment plaintiff in
garnishment proceedings.
CXXXI UNITED STATES.
131 U. S. 1-20, 33 L. 90, UNITED STATED ▼. JONES.
SyL 1 (XI, 770). Suits against United States deiined.
Approved in Bigby v. United States, 188 U. S. 406, 33 Sup. Ot
470, 47 L. 523, holding Federal court without jurisdiction under
Tucker act, March 3, 1887, of suit against United States for injury
received in elevator in public building; United States v. Lynah, 188
U. S. 478, 23 Sup. Ct. 360, 47 L. 551, holding Circuit Court has juris-
diction of suit against United States for destruction of rice plan-
tation from government improvement of Savannah river; Dooley ▼•
United States, 182 U. S. 227, 45 L. 1079, 21 Sup. Ct 764, upholding,
under Tucker act (24 Stat at Large, 505), action to recover duties
illegally exacted and paid under protest upon Porto Rican goods
imported into New York.
131 U. S. 22-30, 33 L. 110, KENNON ▼. GILMER.
SyL 4 (XI, 771). Physical suffering as element of damage
Approved in Western Union Tel. Co. v. Sklar, 126 Fed. 297, hold-
ing demurrable complaint under Tenn. Code, i 1838, for delay in
delivering message, not alleging willfulness of servants or pecu-
niary damages; Denver, etc., R. R. Co. v. Roller, 100 Fed. 750,
holding passenger may recover for injury to health caused by
fright In train caused by wreck; Lewis v. Telegraph Co., 57 S. C.
330, 35 S. E. 558, sustaining instruction in suit against telegraph
company for nondelivery of message, that damages cannot be re-
covered for mental suffering without physical injury; Connelly v.
Western Union Tel. Co., 100 Va. 54, 93 Am. St Rep. 921, 40 S. E.
619, holding Va. Code, SS 1292, 2900, nor Acts 1899-1900, giving
action for failure to deliver message, do not authorize recovery for
mental damages without physical injury.
Distinguished in Craven v. Bloomingdale, 171 N. Y. 448, 64 N. E.
171, holding erroneous, in action against master for illegal arrest
by servant instruction that jury might award punitive damages
without instructing that master must adopt servant's willful act
Syl. 5 (XI, 771). Remitting excess damages without new trial.
Approved in Chicago Title, etc., Co. v. 0*Marr, 25 Mont 245, 250, 64
Pac. 507, 509, sustaining trial court's order allowing verdict in
conversion suit to stand after plaintiff had remitted excessive dam-
ages under option given by court.
[1143]
131 U. S. 31-99 Notes on U. 8. Reports. 1144
Syl. 6 (XI, 771). Appellate court should order new trUL
Approved In dissenting opinion in L. Buckl, etc., Co. v. Atlantic
Lumber Co., 116 Fed. 9, 10, 11, majority allowing bill In equity
to reduce judgment at law where court mistal^enly stated defend-
ant's set-oir at $580 instead of $4,550.
131 U. S. 31-00. Not cited.
131 U. S. 60-^, 33 L. 87, PALMER v. ARTHUR.
(XI, 774). Miscellaneous.
Cited in O'Connell v. Mason, 127 Fed. 437, dismissing as frivol-
ous, under act July 20, 1892, Massachusetts, complaint not stating
cause of action.
131 U. S. 65, 66, 33 L. 86, SPALDING V. MANASSB.
Syl. 1 (XI, 774). Where jury waived, declaration only reviewed.
Approved in City of Defiance v. Schmidt, 123 Fed. 3, holding, in
absence of stipulation waiving jury, rulings of Circuit Court during
trial without jury cannot be reviewed in appellate court.
131 U. S. 66-75. Not cited.
131 U. S. 75-88, 33 L. 63, DOUGLASS v. LEWIS.
Syl. 2 (XI, 775). Covenants construed against party using them.
Approved in Miller v. Bayless, 101 Mo. App. 493. 74 S. W. 649,
holding warranty against demands of grantors, heirs and those
through whom they claimed relieved grantor from claims outside
chain of title.
131 U. S. 88-99, 33 L. 67, FOWL© v. PARK.
Syl. 1 (XI, 775). When contract in restraint of trade.
Approved in State v. Central Ry. Co., 109 Ga. 725, 35 S. E. 39,
holding purchase of two Georgia roads by another, not tending
to encourage monopoly nor defeat competition in general, did not
violate Ga. Civ. Code, i 5800; Garst v. Harris, 177 Mass. 74,
58 N. E. 174, upholding contract whereby manufacturer of secret
patent medicine required purchaser not to sell same below certain
price.
Syl. 2 (XI, 776). Restraint of trade question of reasonableness.
Approved In National Phonograph Co. v. Schlegel, 128 Fed. 735,
holding exclusive licensee for sale of patented article may bind
purchaser not to resell below certain price; Harrison v. Glucose
Sugar, etc., Co., 116 Fed. 309, upholding contract whereby employee
of sugar refining company agreed to abstain from competing with
employer within radius of 1,500 miles of Chicago, latter's head-
quarters; Garst V. Hall Co., 179 Mass. 591, 61 N. E. 220, holding
where lumber company agreed to furnish lumber for house and fur-
nished enough for floor, sills and studding, three days prior to mort-
gage, mechanic's lien prevailed; Park, etc., Co. v. National Druggists'
1145 Notes on U. S. Reports. . 131 U. S. 100-191
Assn., 175 N. Y. 15, 96 Am. St Rep. , 67 N. E. 141, upholding
agreement between manufacturers of medicines and wholesale deal-
ers* association to sell goods at uniform price for certain quan-
tities to those who would maintain prices; dissenting opinion in
Mallinckrodt Chem. Works v. Nemnich, 83 Mo. App. 27, majority
holding unenforceable contract whereby defendant employee of
chemical works agreed not to manufacture certain medicine within
United States for six years.
Syl. 4 (XI, 776). Breach of trust disclosing secret receipt.
Approved in Westervelt v. National Paper, etc., Co., 154 Ind.
678, 57 N. E. 554, enjoining employee and others from divulging
trade secret by manufacturing plaintiff's paper-bag making machine.
131 U. S. 100-123, 33 L. 60, MUTUAL ACCIDENT ASSOCIATION
V. BARRY.
Syl. 4 (XI, 777). Meaning of " accident " in accident policy.
Approved in Dezell v. Fidelity, etc., Co., 176 Mo. 289, 75 S. W.
1105, holding no recovery on insurance policy of deceased who
died from overdose of morphine, where notice not given as required,
^he liability otherwise being established; Insurance Co. y. Hunter,
30 Tex. Civ. 492, 70 S. W. 799, holding recovery may be had on
accident policy where injury produced rheumatism which pro-
duced death; Horsfall v. Pacific Mut. L. I. Co., 32 Wash. 135, 72
Pac. 1029, holding death from overlifting from which deceased's
skin turned bluish grey fulfilled policy covering accidental death
where visible marks appeared on body.
131 U. S. 123-151, 33 L. 76, THOMPSON v. HUBBARD.
Syl. 4 (XI, 778). Copyright rights wholly statutory.
Approved in Mifliin v. R. H. White Co., 190 U. S. 264, 23 Sup. Ct
771, 47 L. 1043, holding copyright of book by author supplants
copyright protection afforded magazine publishers by 4 Stat, at
Large, 436; Mifliin v. Dutton, 107 Fed. 710, holding author's copy-
right vitiated by allowing publishment in magazine of part thereof
before copyright of book and rest thereafter appearing as copy-
righted by publisher.
131 U. S. 151-161. Not cited.
131 U. S. 162-175, 33 L. 146, COLER ▼. CLEBURNE.
Syl. 1 (XI, 779). Municipal bonds requiring mayor's signature.
Distinguished in Waite v. Santa Cruz, 184 U. S. 322, 46 L. 566,
22 Sup. Ct. 334, upholding bonds signed by outgoing mayor after
successor had qualified, but before old administration had ceased
to hold dneetlngs.
131 U. S. 176-191, 33 L. 118, NIEKEN, PETITIONEE.
Syl. 2 (XI, 780). Unlawful cohabitation continuous offense.
See notes, 92 Am. St Rep. 131, 136, 147.
131 U. S. 191-240 Notes on U. 8. Report*. 1146
Syl. 7 (XI, 781). Grimes — Habeas corpus reviews where no
jurisdiction.
Approved in Maclsey v. Miller, 126 Fed. 163, holding habeas
corpus proper proceeding for discharge of person convicted for
resisting Indian agent in liquor search, under Rev. Stat., } 5447,
against resisting revenue officers; Ritchie v. Sayers, 100 Fed. 532,
533, holding Circuit Court may entertain bill attacking tax deed
in pursuance of decree where bond required by Code W. Va. 1868,
chap. 106, in realty sales not given; Mortgage Co. v. Mullen. 8
Kan. App. 710, 54 Pac. 923, holding decree of sale by Probate
Court of property patented after debts were contracted may be
attacked collaterally. <See 87 Am. St Rep. 173, note.
Syl. 10 (XI, 782). Conviction of crime bars incidents.
See note, 92 Am. St Rep. 110.
131 U. S. 191-200, 33 L. 99. NEW ORLEANS V. GAINES,
(XI, 782). Miscellaneous.
Cited in American, etc., Co. v. Home, etc., Co., 115 Fed. 182,
holding guarantor of wafer company*s bonds, having paid interest
thereon, may restrain cit^ from annulling franchises which would
decrease value of property; Beach v. Osborne, 74 Conn. 417, 60 Atl.
1023, holding purchaser of premises on which mortgages were
recorded prior to sale cannot recover for house built in reliance
on vendor's statement of no incumbrance.
131 U. S. 221-227, 33 L. 123, PARKER, PETITIONER.
Syl. 4 (XI, 783). Mandamus to compel acceptance of jurisdiction.
Approved in Raleigh v. First Judicial Dist. Court, 24 Mont 313,
61 Pac. 994. awarding mandamus to compel District Court to take
Jurisdiction of second contest of will erroneously struck from
files because first contest dismissed.
Syl. 5 (XI, 784). Mandamus after personnel of court changed.
Approved in Murphy v. Utter, 186 U. S. 102, 46 L. 1075, 22 Sup.
Ct. 779, holding petition for mandamus to compel Arizona loan
commissioners to issue refunding bonds for county bonds is pro-
ceeding taken, protecting against repeal.
(XI, 783). Miscellaneous.
Cited in dissenting opinion in Crooks v. Fourth Dist. Court, 21
Utah, 108. 59 Pac. 532, majority holding, under Utah Const, art
8, § 9, District Court's decision on appeal from Judgment of Justice
of peace is final and not open to review by Supreme Court
131 U. S. 227-240, 33 L. 136, STICKNEY v. STICKNEY.
Syl. 4 (XI, 784). Husband presumed trustee of wife's property.
Approved in In re Neiman, 109 Fed. 116, holding, under Wiscon-
sin statutes, husband receiving wife's marriage portion on marriage
prior to bankruptcy, using same in business, presumed to hold in
IHT Notes on D. S. Reporls, 131 U. S. 240^245
trust for wife; Adone v. Spencer. 62 N. J. Eq. 788. 90 Am. St Rep.
400, and note, 49 Atl. 13. holding, nnder Tesas Btatutee, husband's
conveyance of land to wife to secnre money from her separate
estate used by him In business constitutes valid mortgage. See
Tiotes, 90 Am. St Rep. 540. 642, 554.
131 U. S. 240-245, 33 L. 144, CREHORE v. OHIO, ETC., RT.
Syt. 1 (XI. 785). Petition and bond ousts State Jurisdiction.
Approved in In re Tunc, 115 Fed. 017, holding State court Juris-
diction depending on attachment lien terminated by adjudication
of bankruptcy which annulled such Hen; In re Macon Sash, etc..
Co.. 112 Fed. Sa2. holding appointment of receiver, under State
Insolvency law, after passage of bankruptcy act of 1898, Is void
and may be attacked In any court: Hadfield v. Northwestern Life
Assur. Co., 105 Fed. 532, holding removal petition and bond regular
except In naming District Instead of Circuit Court as appellate
tribunal accomplishes removal and divests State court of Juris-
diction.
Syl. 4 {XI, 78C). Petition must show right to remove.
Approved In Colorado P. & I. Co. v. Four Mile Ry. Co., 29 Colo.
93, e6 Pac. 903, sustaining trial court's denial of petition for re-
moval of condemnation proceedings where defendants were a do-
mestic and a foreign corporation, controversy being Inseparable;
Green v. Ileaston,, 154 Ind. 128, 50 N. E. 88, holding Insufficient
removal petition alleging diverse residence when complaint filed
Instead of diverse citizenship when action commenced: Beach v.
Southern Ry. Co., 131 N. C. 339. 42 8. E. 850, holding foreign cor-
poration complying with N. C. Laws 1800, chap. 02, not entitled
to remove cause for local prejudice.
Syl. 7 {XI, 787). Circuit Court cannot allow amendment of
petition.
Approved In Dalton v. Milwaukee Mechanics' Ins. Co., 118 Fed.
881, 883, holding Insufficient removal petition averring that de-
fendant Is citizen and resident of State uanied, not stating In-
corporation therein, and Circuit Court cannot amend: Murphy v.
Payette Alluvial Gold Co., 98 Fed. 322, holdlug docketing of cause
In Circuit Court on petition detective for failure to state diverse
citizenship between defendant and plaintlfTs assignors not divest-
ing State court: Springs v, Southern Ry„ 130 N. C. 109. 41 S. B.
1(H, holding removal petition defective for alleging corporation
defendant Incorporated Id another State without denying reincor-
poration as domestic corporation not amendable by appellate court
DtstlngulBbed In Kinney v. Columbia Say., etc., Assn., 191 U.
S. 81, 24 Sup. Ct 32, allowing amendment under Rev. Stat, H 048,
9I>4,' of petition to show plalntltTs citizenship, where petition al-
leged diverse citizenship, where deed showed plaintiff's nonresi-
dent with defendant; Hodge t. Chicago, etc., By. Co., 121 Fed.
131 U. 8. 246-287 Notes on U. S. Reports. 1148
51, allowing amendment of removal bond, otherwise regular, but
doslgnoting wrong division of district to which removal was sought
(XI, 785). Miscellaneous.
Cited in Ashe v. Union Cent. Life Ins. Co., 115 Fed. 235, hold-
ing no notice to plaintiff necessary of application for removal
where ground is diverse citizenship alone.
131 U. S. 246-257. Not cited.
131 U. S. 258-267, 33 L. 128, BACON v. NORTHWESTERN L.
INS. CO.
Syl. 3 (XI, 788). Supreme Court following State construction.
Approved in McCardia v. Billings, 10 N. Dak. 380, 87. N. W.
1011, holding foreclosure not vitiated by mistal^e of date of mort-
gage in notice of sale required in foreclosure under power of sale
in mortgage.
131 U. S. 267-280, 33 L. 150, SAVIN, PETITIONER.
SyL 2 (XI, 788). Federal courts may punish summarily.
Approved in In re Perkins, 100 Fed. 953, holding United States
commissioner has no power, under Rev. Stat, | 725, to punish
deputy marshal for contempt
Svl. 1 (XI, 788). Federal court punishing contempt though
indictable.
Approved in Ex parte O'Neal 125 Fed. 069, 'holding errors of
Federal District Court in contempt proceedings, where court had
Jurisdiction to punish, not reviewed by Circuit Court on habeas
corpus; Ex parte Strieker, 109 Fed. 148, discharging on habeas
corpus petitioner imprisoned without hearing for contempt com-
mitted In court*s absence; Fisher v. McDaniel, 9 Wyo. 472. 87 Am.
St Rep. 975, 64 Pac. 1058, 1059, 1061, holding attempt to bribe
witness, occurring in hallway or on outside of courthouse, con-
stitutes contempt In courts presence punishable as such, though
punishable criminally also.
Distinguished in Ex parte McLeod, 120 Fed. 138, 139, 141, hold-
ing assault upon commissioner for discharging official duty con-
tempt of court, which will not be punished where defendant has
been prosecuted criminally therefor in State court.
131 U. S. 280-287, 33 L. 154, CUDDY, PETITIONER.
Syl. 1 (XI, 789). Attempt to influence prospective juror contempi.
Approved in Fisher v. McDaniel, 9 Wyo. 475, 87 Am. St. Rep.
978, 64 Pac. 1058, holding attempt to bribe witness in hallway of
courthouse, though indictable offense by Rev. Stat, § 5088, also
punishable as contempt in presence of court; dissenting opinion
in Ex parte Duncan, 42 Tex. Cr. 678, 62 S. W. 765, majority hold-
ing refusal by attorney to serve on examination board stating he
could pay fine or go to Jail not contempt
114»
Not
1 D. B. Reports. 131 U. S. 287-330
Syl. B (XI, 730). Federal court juclgment presumed eorreft.
Approved in Johneon v. Hunter, 127 Fed. 22T, holding, under
Ark. Acts 1895, p. 88, No. 7, authorizing proceeding In Su-
perior Court to foreclose Iten against nonresident, decree of such
court not collaterally attackable; Ek parte O'Neal, 125 Fed. 0G8,
9G0, holding errors of District Court In con tern jit proceedings.
where court had power to punish assault upon trustee, not re-
viewed by Circuit Court on habeas corpus; Ritchie v. Sayera, 100
Fed. 533. holding decree of sale for taxes may be collaterally at-
tacked where no bond was given as required by Code W. Va. 18C8.
chap. IOC.
(XI, 78!)). MIscellQDcoua.
Cited In Mortgage Co. v. MuUeo. 8 Kan. App. 710. 54 Pnc. 923,
holding void sale of property pursuant to decree of Probate Court
where debts were incurred before patent to land was issued.
131 U. S. 287-293, 33 L. 125, SEGRIST v. CBABTBBK.
Syl. 4 (XI, 700). Conditional payment notes, prima fade payment.
Distinguished In Llpplncott v. Rich, 22 Utah, 203. 61 Pac. 527,
holding conditional sale reserving title valid tn Utah against third
parties, and nonnegotlable notes given by vendee need not be re-
lumed before replevin brought.
131 U. S. 29a-319. 33 U 163, VEACH v. RICE.
Syl. 1 (XI, 791). Georgia courts of ordinary not attackable col-
laterally.
Approved In Overby v, Gordon, 177 U. S. 220, 44 L. 744, 20 Sup.
Ct. 006, liolding adjudication of fact of domicile of deceased made
in grants of ad ml n Is Era tl on made without contest In proceeding in
rem not binding outside Jurisdiction.
Syl. 6 (XI. 791). Administrator's bond— Sureties bound on.
Distinguished In Smith v. Packard. 98 Fed. 709, holding not re-
versible error to eit-lude evidence of diminished value of property
lu action in forthcoming bond in attachment bond, where plaintiffs
not connected witli decrease,
(XI, 791). Miscellaneous.
Cited In King v. Ross, 21 R. I, 417. 45 Atl. 147, holding Probate
Court's decree declaring plaintiffs were and defendant was not next
of kin prevented subsequent litigation of question In suit to quiet
tiUe.
131 U. S. 319-336, 33 L. 184, HAWKINS v. GLENN.
Syl. 3 (XI, 792). Creditors enforcing payihent of subscription.
Approved In Nashua Sav. Bank v. Anglo-American, etc., Co., 108
Fed. 707, holding assumpsit proper action In United States to
enforce sto<.'k holder's liability lu corporation organized under Eng-
lish companies act, making such Uahlllty a debt.
131 U. S. 319-^6 Notes on U. S. Reports. llaO
Syl. 4 (XI, 793). Judgment a^rainst corporation binds stock-
holder.
Approved in Hancock Nat. Bank ▼. Famum, 1T6 tJ. S. 644. 44
Lu 621. 20 Sup. Ct 508. holding judgment against corporation
binding on stockholders by State law will be enforced to same
extent in courts of another State; Ball v. Warrington, 108 Fed.
473, holding in suit in Pennsylvania against stockholder In Kansas
bank question of fraud proper defense, since in Kansas judgment
against corporation binds a stockholder only, if not fraudulent; James
V. Central Trust Co., 08 Fed. 403, holding stockholder represented
by railroad in foreclosure suit against it in absence of collusion
and bound by decree and sale of property thereunder; Fish v.
Smith, 73 Conn. 382, 47 Atl. 713, holding Connecticut shareholder
party to suit against Minnesota corporation in which receiver ap-
pointed and cannot question appointment when sued for subscrip-
tion; Calloway v. Glenn, Trustee, 105 Ky. 653, 49 S. W. 442, hold-
ing Virginia decree against insolvent corporation, ascertaining debts
and making calls for subscriptions binds stockholders in Kentucky;
Childs V. Cleaves, 95 Me. 508, 50 Atl. 717, holding Maine stockholder
in Minnesota bank bound by decree in Minnesota against bank ap-
pointing receiver and liable to such receiver on double liability;
Howarth v. Lombard, 175 Mass. 577, 56 N. E. 891, holding, under
Hiirs Wash. Code, } 1511, making bank stockholders liable to
creditors, such liability is substantive right enforceable in Massa-
chusetts against stockholder; Johnson v. Stebbins, etc.. Realty Co..
177 Mo. 601. 602. 76 S. W. 1026. 1027, holding corporation presi-
dent to whom corporation conveyed land cannot question validity
of judgment against corporation in subsequent suit to vacate deed;
Commonwealth, etc., Ins. Co. v. Haj'den. 60 Nebr. 638, 640, 83 N.
W. 923, 924, holding decree against Massachusetts insurance com-
pany binding on shareholder in Nebraska; Bank Comrs. v. Associa-
tion, 70 N. H. 560, 85 Am. St Rep. G50, 49 Atl. 126, holding where cor-
poration deposits fund in foreign State for operation therein and
becomes insolvent, creditor therein receiving same can participate
later only for unpaid balance.
Distinguished in Talbot J. Taylor, etc., Co. v. Southern Pac. Co..
122 Fed. 154, holding corporation does not represent stockholder
In suit to enjoin voting of stock owned by stockholder at dJrector's
election; PfafiC v. Gruen, 92 Mo. App. 583, holding judgment against
corporation to enforce assessment only prima facie evidence against
nonresident stockholders not parties.
Syl. 5 (XI, 793). Stockholder deemed privy to proceedings.
Approved In Hale v. Allinson, 106 Fed. 259, holding equity has
no jurisdiction of receiver's suit against numerous stockholders
on statutory liability on sole ground of reducing number of ac-
tions; Tompkins v. Blakey, 70 N. H. 587, 49 Atl. 113, holding as-
1151 Notes on V. S. Reports. 131 n. S. 319-336
seasment helfl valid by Iowa courts blniJfl New Hampshlrs stoch-
bolder when sued by Iowa receiver to collect such assessmeat
Syl. 8 (XI. 704), Decree requiring corporation to levy aaaesaiiieDtB.
Approved In In re Miller, etc.. Co., Ill Fed. 518, holding, under
bankruptcy act JS98, i 2, court of banltniptey has power to order
assessment on stockholders of Insolvent corporation; Straw, etc.,
Mfg. Co. V. Kllboume, etc, Co., 80 Minn. 134. 83 N. W. 38, hold-
ing, under Minn. Laws 1889, chap, 272, authorizing district
to ascertain liabilities aud assets of assigning corporations, and
If necessary levy assessments such acta bind Btoekholders; Hawk-
ins V. Donneuberg. 40 Or. 104. 66 Pac. 693, holding creditors of
corporation cannot enforce stockholder's subscription liability after
corporation's right barred.
8yl. 9 (XI. 795>. Statute limitation runs from refusal.
Approved In McDonald v. Thompson, 184 U. S. 70, 48 L. 440,
22 Sup. CL 299, holding objection that statute does not bnr cred-
itor's right to sue shareholders cannot be raised in puit, under
section 5234, Reev. Stat., where demurrer to bill sustained; Dewecse
T. Smith, lOU Fed. 441. holding statute does not commence to run
against bank stockholder's liability, under Rev. Stat., i 5151, un-
til comptroller has declared liability to be due; Deweeae v. Smith,
87 Fed. 318, holding statute does not begin to run against stock-
hold er'a Individual liability until com pt roller haa determined ne-
cessity and amount of assessment; Cooper v. Security Co., 127 N,
C. 222, 37 S. E. 217, holding creditor exhausting remedy at law
may proceed against stockholder to enforce individual liability
without Joining other stockholders until statute run,
Syl. 10 (XI, 796), Statute mns from call.
Approved in Hale v. Cusbman, 96 Me. 151. 51 Atl. 875. holding
stockholder's liability in Minnesota corporation accrues when Ju-
dicially determined after Insolvency and statute runs from appoint-
ment of receiver when latter sues In Maine. See 96 Am. St Rep.
984, note.
Distinguished In West v. ^opeka Sbv. Bank, 66 Kan. 533, 72
Pac. 155, holding w^hen private corporation becomes Insolvent and
auspenda stockholders' Individual liability accrues and statute be-
gins without call.
SyL 11 (XI. 7061. Name on booka is owner.
Approved in Kankin v. Fidelity Trust Co.. 189 U, 8, 246, 23
Sup. Gt. f)55, 47 L. 794, holdlug pledgee of bank stock held as
collateral not liable for assessmeuts where not estopped by con-
duct to deny manner of bedding; GJesen v. Loudon & Northweat
American Mong. Co., 102 Fed. 589, holding defendant liable aa
Btockbolder where name remained on booka of EugHsh corporation,
though be had assigned shares, lu violation of English laws
i
131 U. S. 330-352 Notes on U. 8. Reports. 1152
(XI, 791). Miscellaneous.
Cited in Hale v. Coffin, 114 Fed. 570, holding recelyer appointed
after corporation's property administered in previous suit, though
without power in Minnesota, may sue stockholders in Massachu-
setts; Hale V. Tyler, 104 Fed. 761, holding special receiver appointed
by Minnesota court can maintain ancillary suits in another juris-
diction to enforce statutory liability of Massachusetts stockhold-
ers in Minnesota corporation; Glesen v. Liondon &, Northwest Ameri-
can Mortg. Co., 102 Fed. 587, holding, according to English law,
that defendant whose name appears as stockholder on English cor-
I)oration's books liable, though having assigfned shares; Childs v.
Cleaves, d5 Me. 513, 50 AtL 719, holding Minnesota receiver may
maintain suit in Maine against stockholder in Minnesota corpo-
ration to enforce individual liability; Hale v. Alllnson, 188 U. S.
(J9, 23 Sup. Ct 249, 47 L. 389, holding receiver appointed by court
of equity cannot maintain suit in equity in foreign jurisdiction
to enforce stockholder's statutory liability.
131 U. S. 336-352, 33 L. 172, BMBREY v. JEMISON.
Syl. 1 (XI, 796). Contract for futures void.
Approved in Metropolitan Nat. Bank v. Jansen, 108 Fed. 574,
holding invalid contract for sale of grain in future where findings
showed no grain was intended to be or was delivered; Pondei v.
Jerome Hill Cotton Co., 100 Fed. 376, holding valid contract for
purchase of cotton for future delivery where seller Intended to
and did deliver cotton on time named; Hill v. Levy, 98 Fed. 97,
holding valid contract for sale of goods with future delivery where
defendant did not sustain burden of proving no intent to actually
deliver goods; Kuhl v. M. Gaily, etc., Press Co., 123 Ala. 457, 458,
26 So. 536, 537, holding void, under Ala. Code, } 2163, invalidating
gambling contracts, sale of slot machines, placing some as induce-
ment and rewarding conviction for tampering therewith.
Distinguished in Connolly v. Union Sewer Pipe Co., 184 U. S.
548, 46 L. 685, 22 Sup. Ct. 435, holding violation of Sherman anti-
trust act by forming pipe combination in restraint of trade does
not preclude recovery of purchase price of goods.
Syl. 2 (XI, 797). Gambling under guise of legitimate trade.
Approved in Harden v. Phillips, 103 Fed. 196, holding bill of
sale as security for loan for use in dealing in differences, vendee
to share profits, invalid as to vendor's trustee in bankruptcy.
Syl. 3 (XI, 797). Intent determines whether contract is wager.
Approved in Morris v. Telegraph Co., 94 Me. 428, 47 Atl. 927,
holding void contract between stock broker and customer not con-
templating delivery of or payment for stock, hence nondelivery
of message concerning same not basis of damages- Donovan v.
Dalber, 124 Mich. 54, 82 N. W. 849, upholding, under Mich. Comp.
Laws 1897, | 11373, contraot for sale of wheat which defendant
1153 Notes on U. S. Reports. 131 U. S. 352-390
did not have where both intended delivery; Appleton v. Maxwell,
10 N. Mex. 759, 65 Pac. 161, holding money advanced Id gambling
game for use therein cannot be recovered by lender; Waite v.
Frank, 14 S. Dak. 632, 86 N. W. 646, holding invalid note and
mortgage given to plaintiff for credit to be used by defendant in
purchasing commodities where plaintiff knew defendant could not
pay.
SyL 4 (XI, 797). Broker in wager contract cannot recover.
Approved in Reed v. Johnson. 27 Wash. 54, 67 Pac. 386. holding
invalid contract to convey bond to defendant for latter's promise
to secure erection of station by railroad company where officers
were to receive proportion of proceeds.
Syl. 6 (XI, 797). Payee cannot sue on wager note.
Approved in dissenting opinion in Harcrow v. Gardiner, 69 Ark.
19, 64 S. W. 883, majority holding enforceable note executed in
payment of land conveyed by payee in fraud of creditors.
Syl. 9 (XI, 797). Virginia Statute of Limitations construed.
Approved in Griffin v. Woolford, 100 Va. 479, 41 S. E. 951, hold-
ing, under Va. Code, S 2933, right of action on notes barred
by statute where defendant was nonresident when action accrued
and remained so during period; Fisher v. Hartjey, 48 W. Va.
341, 342, 37 S. E. 579, holding action of debt barred by West Virghiia
Statute of Limitations, under Code, chap. 104, where defendant
was nonresident when right accrued.
131 U. S. 352-371, 33 L. 178, MELLEN v. MOLINB IRON WORKS.
Syl. 5 (XI, 798). Equity decree not collaterally assailable.
Approved in Clark y. Brown, 119 Fed. 132, upholding order ap-
pointing receiver where bill alleged complainant's joint ownership
of flax crop, and defendant removing same beyond jurisdiction;
St Lawrence Co. v. Holt, 51 W. Va. 365, 41 S. E. 356, holding de-
cree dismissing injunction staying sale on ground of alleged title
in another finally adjudicates lack of title in such other.
Syl. 8 (XI, 799). Purchaser at judicial sale as party.
Approved In Jellenlk v. Huron CJopper Mining Co., 177 U. S. 10,
44 L. 650, 20 Sup. Ct. 562, holding copper mine stock personalty
by Michigan law, within act March 3, 1875, authorizing order to
bring in nonresident defendants in suit to remove lien.
131 U. 6, 371-390. 33 L. 157, PITTSBURG, ETC., RY. v. KEOKUK,
ETC., BRIDGE CO.
Syl. 1 (XI, 799). Directors must dissent within reasonable time.
Approved in Fidelity & Deposit Co. v. Courtney, 186 U. S. 356,
46 L. 1197, 22 Sup. Ct 837, holding erroneous exclusion in action
bank president's bond, certificate of cashier given to surety com-
pany in course of business stating that president's services were
Vol. 11 — 73
131 U. S. 3U0-425 Notes on U. 8. Reports. 1154
satisfactory; Egbert v. Sun Co., 126 Fed. 571, holding binding on
company contract of service made between plaintiff and president
where company paid for services and made no inquiry concerning
terms of contract; Central Trust Co. v. Washington County R. R.
Co., 124 Fed. 810. holding where no objection made to bond issue
for construction, none could bo made in suit to foreclose mort-
gage, that cost did not equal bonds: Alaska, etc., Chicago Commer-
cial Co. V. Sohne, 123 Fed. 860, holding binding sale of land
made by secretary of coloration where proceeds applied to cor-
pomte uses and no action by directors to disaffirm: Alexander v.
Culbortson, etc., W. Power Co.. 61 Nebr. 335, 85 N. W. 283, holding
erroneous instruction to find for defendant in suit on lease exe-
cuted by president unless defendant held latter ont as having
authority to execute lease.
Syl. 2 (XI, 800). Corporation receiving benefit presumed to
ratify. .
Approved in Hartford, etc.. Co. v. Plymer, 120 Fed. 629, holding
corporation ratifying sale of boat by agent made through sub-
agent ratifies employment of such subagent.
Syl. 5 (XI. 801). Why ultra vires contract not binding.
Approved in First Nat Bank v. American Nat. Bank, 173 Mo.
159. 160, 72 S. .W. 1061, holding, under Rev. Stat.. $ 5136. national
bank has no power to guarantee payment of customer's draft and
may plead ultra vires; Derry Council v. State Council, 197 Pa.
fit. 418, 47 Atl. 209, upholding per capita tax levied outside State
on members of order of mechanics incorporated in Pennsylvania.
Syl. 7 (XI. 801). Incidental powers deemed granted.
Approved in Cumberland Tel., etc., Co. v. Evansville, 127 Fed.
193, holding Ind. Rev. Stat. 1901, § 5517, authorizing formation of
telephone companies with power to hold and convey necessary
realty not authorizing to dispose of whole property; Richmond
Guano Co. v. Farmers', etc.. Ginnery, 119 Fed. 711, holding void
notes of corporation empowered to build, and operate cottonseed-
oil mill and sell product, for fertilizer bought from other corpora-
tion to sell.
Syl. 11 fXI, 801). Execution cannot validate ultra vires contract
Approved In Tennessee Ice Co. v. Raine, 107 Tenn. 159. 64 S.
W. 31. apholding plaintiff's right to recover proceeds of beer fur-
nished Ice company on ultra vires contract
131 U. S. 30(M05. Not cited.
131 U. S. 405-425, 33 L. 193, FR EEL AND v. WILLI AM3w
Syl. 1 (XI. 803). Tort judgment not contract
Approved In Evans-Snider-Buel Co. v. M'Fadden, 105 Fed. 301*
upholding 29 Stat 510, chap. 136, requiring recording of mort-
ga^os of personalty of nonresident in Indian Territory, where
property situated therein; P'erry v. Campbell, 110 Iowa, 300, 81 N.
1155 Notes on U. S. Reports. 131 U. S. xil-cll
W. 608, holding judgment restraining Inheritance tax not contract,
hence reversible on appeal where curative statute made them
taxable.
(XI, 803). Miscellaneous.
Cited In McFadden y. Eyans-Snid^-Buel Ck>., 185 U. S. 514, 46
L. 1019. 22 Sup. Ct. 761, upholding act February 3, 1897, validating
recorded mortgage of personalty of nonresidents of Indian Terri-
tory as against Judgment creditor with knowledge i)t mortgage.
131 U. S. xli. Appendix.
(XI, 804). Miscellaneous.
Cited in Missouri v. Illinois, 180 U. S. 233, 45 L. 509, 21 Sup.
Ct 341, holding Supreme Court has jurisdiction of suit by State
of Missouri against Illinois to prevent proposed transportation of
Chicago sewage into Mississippi.
131 U. S. xviii. Appendix.
(XX, 804). Miscellaneous.
Cited in Adams v. Yazoo, etc., R. R., 77 Miss. 308, 24 So. 319,
holding Supreme Court filing summary of reasons for reversing
judgment may in opinion state additional reasons.
131 U. S. xcviii, 19 L. 757. DOWNING v. McCARTNEY.
Syl. 1 (XI, 806). Appeal by one defendant dismissed.
Approved in Loveless v. Ransom, 107 Fed. 627, dismissing writ
of error from judgment in action of debt on lease bond where one
surety only brought error.
131 U. S. cxliv, cxlv, 23 L. 961, GBRMANICA NAT. BANK v.
CASE.
Syl. 1 (XI, 807). National bank stockholders liable.
Approved in Deweese v. Smith, 106 Fed. 446, upholding comp-
troller's power to make successive assessments on stockholders
when necessary to pay debts of bank; Studebaker v. Perry, 102
Fed. 949, holding, under Rev. Stat., } 5151, comptroller has power
to order successive assessments upon national bank stockholders,
aggregating stockholder's full liability.
Syl. 2 (XI, 807). Amount in dispute determined.
Approved in Studebaker v. Perry, 184 U. S. 265, 45 L. 532, 22
Sup. Ct 466, holding comptroller authorized by Rev. Stat., $ 5234,
to levy second assessment on stockholders where both do not exceed
par value of stock.
131 U. S. cl, cli, 24 L. 925, JONES v. GROVER, ETC., MACH.
CO.
Syl. 3 (XI, 808). Exceptions must be filed during term.
Approved in Merchants' Ins. Co. v. Buckner, 98 Fed. 224, hold-
ing bill of exceptions may be settled at succeeding term where
motion for new trial filed in current term and court orders stay
132 U. S. 1-13 Notes on U. S. Reports. 1150
of execution; Johnson y. Gebhauer, 159 Ind. 27C, d4 N. E. 857,
holding unconstitutional Ind. Acts 1001, p. 511, allowing court
In certain cases to extend time for filing bill of exceptions.
131 U. S. clx, 25 L. 520, DUMOXT v. DBS MOINES, ETC., R. R.
Syl. 1 (XI, 808). Laches defeating review for new evidence.
Approved in Reynolds ▼. Florida, etc., Rj^ 42 Fla. 457, 28 Sa
809, holding insufficient bill of review for newly discovered evi-
dence which showed no Inquiry Into facts constituting such evidence.
131 U. 8. clxv. clxvi, 24 L. 1109, HUNT v. HUNT.
Syl. 1 (XI, 809). Marriage contract not within obligation dause.
Approved in dissenting opinion in Livingston ▼. Livingston, 173
N. Y. 389, 60 N. B. 127, 93 Am. St Rep. 006, majority holding
unconstitutional N. Y. Laws 1900, chap. 742, permitting court
to modify direction of judgment requiring defendant to support
plaintiff and children.
131 U. S. clxxiidxxiv, 25 L. 694, KNICKERBOCKER LIFE INS.
CO. V. SCHNEIDER.
SyL 1 (XI, 809). Pleading on insurance policy.
Approved in Hennessy v. Metropolitan Life Ins. Co., 74 Conn.
703, 52 Atl. 491, holding erroneous, under rules of court, | 162,
excluding specific denial in action on insurance policy where gen-
eral denial denied all complaint but insurance and death.
OXXXII UNITED STATES.
132 U. S. 1-13, 33 L. 231, METROPOLITAN R. R. CO. V. DISTRICT
OP COLUMBIA.
Syl. 1 (XI, 813). District of Columbia as a State.
Approved in United States v. Whelpley, 125 Fed. 619, holding
act March 2, 1895, prohibiting carriage of lottery tickets from one
State to another, inapplicable to carriage into District of Columbia.
Syl. 2 (XI, 813). District Columbia, a municipal corporation.
Approved in District of Columbia v. Camden Iron Works, 181
U. S. 458, 45 L. 952, 21 Sup. Ct 682, holding binding on District of
Columbia as specialty contract executed by commissioners for cor-
poration under own signatures and seals.
Syl. 5 (XI, 813). Breach of statutory duty in Statute of Limita-
tions.
Approved in Aldrich v. McClalne, 106 Fed. 792, holding Washing-
ton national bank stockholder's individual liability under Rev. Stat,
S 5151, is contractual, and governed by three-year statute (Ball
Codes, I 4800).
1157 Notes on U. S. Reports. 132 U. S. 14-34
132 U. S. 14-17. 33 L. 249, KNOX COUNTY v. HARSHMAN.
Syl. 1 (XI, 813). Appeal from injunctive decree unaffectlng
Injunction.
Approved in New River Mineral Co. v. Seeley, 117 Fed. 982,
holding injunction continued in force during appeal where order
granted appeal from order dissolving injunction reciting, plaintiffs
filing supersedeas bond.
132 U. S. 17-27, 33 L. 236, ROBERTSON v. FRANK BROS. CO.
Syl. 3 (XI, 814). Payment to avoid illegal penalty, voluntary.
Distinguished in Newburyport Water Co. v. City of Newburyport,
103 Fed. 596, holding Stat. Mass., 1894, chap. 474, obliging city*
to purchase private water-works if owners desired to sell, or oper-
ate city water- works, did not constitute duress on plaintiff; Manning
V. Poling, 114 Iowa, 24, 83 N. W. 896, holding purchaser at fore-
closure sale cannot recover money paid clerk as redemption money
where land was sold tb judgment lienor and money voluntarily
paid.
SyL 4 (XI, 814). Customs appraisement conclusive.
Approved in United States v. Beebe, 117 Fed. 679, holding review-
able, under customs administrative act 1890, secretary of treasury's
order for reliquidation of entry on basis of exchange value of for-
eign coin.
(XI, 814). Miscellaneous.
See note, 94 Am. St. Rep. 412.
132 U. S. 27-34, 33 L. 249, JACKSON v. ALLEN.
Syl. 1 (XI, 814). Remanding cause where citizenship not shown.
Approved in Kinney v. Columbia Saving, etc., Assn., 191 U. S.
81, 24 Sup. Ct. 32, allowing amendment under Rev. Stat, §§ 948,
964, of petition after filing, to allow statement of plaintiff's citizen-
ship, diverse citizenship being alleged and defendant's shown;
Hodge V. Chicago, etc., Ry. Co., 121 Fed. 51, holding incorrect desig-
nation of division of district, to which removal prayed, immaterial
and amendable on leave of court; Dalton v. Germania Ins. Co., 118
Fed. 937. holding averment that defendant is corporation organized
under New York laws refers only to time of petition, not to time suit
brought, hence insufiicient; Dalton v. Milwaukee Mechanics' Ins.
Co., 118 Fed. 883, 884, holding insufficient averment in petition that
defendant is corporation and "citizen and resident" of designated
State, not sufficiently setting forth incorporation therein; Murpliy
V. Payette Alluvial Gold Co., 98 Fed. 322, holding petition to re-
move by assignee of claims aggregating more than $2,000 must
show diverse citizenship between defendant and plaintiff's as-
signors; Green v. Heaston, 154 Ind. 128, 130, 56 N. E. 88, holding
insufficient petition alleging diverse residence at time complaint
filed instead of diverse citizenship when action commenced and
petition brought; Springs ▼. Southern By., 130 N. C. 199, 41 S. E.
1S2 U. 8. :U~7S Notes on U. 8. Bcporti. lUS
106^ boldliiff Inraffldent petitknier't ttateBwnt of rtilMnriilp It
anotlier Static altogatloii of Inoorpoimtkni fbaw and aoaeltiMMili
in load State noccatiry.
1S2 U. 8. 94r9S, njj.Z40, OAHPBBLL T. WADB.
87L 2 (XI, 81S). OccQpatloii firea no reatad tigbL
Approred In King t. McAndrewa» 111 Fed. 872, holdlnc act aC
DakoU Jeflalatnra Indnding reaenration landa In citj of Gbanbv-
lain doea not wittukmw from aettlonent, not beln^ put oC paUk
Unda; United 8tatea r.s^^dmea, 105 Fed. 44, holding prorUkMa a(
prealdenfa proclamation Njveating foreat rcaerratlim, efTcapttaf
therefrom landa npon whw^^ld aettlemmt made, not Inrtadhg
landa witfadrawn from aettl<miM» jj^taff t. Go111iis» 07 Fed. %
holding compialnanfa anceator, honieMi|(^ettler, withdrawUig ha-
fore final proof prednded claim agalnat bai^UfiPw^baaaiB tarn
railroad whoae frant corered aame. /^^^^^^^
87L 8 (XI, 8110. No title nntn piellmlnaijr atap^^^^^ted.
Diatingnlahed In 8tate t. Brldgea, 28 Wadi. 68b ilil^^^>^ ^
Rep. 016, 60 Pac 61, holding tide land pnrdiaaar payl^N^H|^
of pnrchaae price and performing preUmlnailaa «nda?^^B|f'-
Lawa 1806, haa reated right not repealahle I7 aabaaqoaaS^^Bt
182 U. & 80-60, 88 L. 261, BRUSH T. OONBIT. ^B
87L 2 (XI, 816). Blectric lamp ImptoTement antlelpated. 1
Approved In United Statea Mineral Wool Oa ▼• MmnTlIle Oor-
erlng Ck>., 125 Fed. 772, holding Rockwell patent No. 447,800, tat
manufacturing mineral wool, void tar anticipation hy open nae of
process by others.
182 U. S. 60-08, 83 L. 242, DENT ▼. FERGUSON.
Syl. 7 (XI, 816). Ck>ntract or independent consideration conatmed
alone.
Approved in Washington Irr. Co. v. Kmtz, 110 Fed. 288, holding
enforceable contract for water rights for 320 acres, consideration
being half-section of land including 160 acres given plaintiff for
nominal services rendered.
(XI, 816). Miscellaneous.
CUted in dissenting opinion in Brown v. Newell, 64 8. C 81, 41
8. B. 864, majority upholding mortgage assigned by mortgagee
before execution, purporting to be executed on same day as prior
mortgage in satisfaction thereof, though executed year later.
132 U. S. 68-75, 33 L. 256, THOMPSON v. WHITE WATER,
ETC., R. R.
Syl. 2 (XI, 817). Mortgage of after acquired railroads
Approved in Illinois Trust, etc.. Bank v. Doud, 105 Fed. 130,
holding money advanced to pay intereat on prior mortgage, and fo
U59 Notes on U. S. Reporto. 132 U. 8. 75-90
construction of addition to electric plant, furnishes no preferred
claim.
Syl. 3 (XI, 817). Mortgage prior to contractor's lien.
Approved in Atlantic Trust Co. v. Dana, 128 Fed. 229, holding
claims against receiver for permanent improvements ordered by
court, engines and wells, not preferred to mortgage lien on income;
Illinois Trust, etc.. Bank v. Doud, 105 Fed. 149, holding claim for
money advanced to pay interest on prior mortgage, and for con-
struction of addition to electric plant, not preferred to mortgage.
132 U. S. 75-84, 33 L. 267, PENNSYLVANIA R. R. v. MILLER.
Syl. 2 (XI, 818). State making corporation compensation for
land.
Approved In Ellzabethtown L., etc., R. R. v. Gatlettsburg, etc.,
Ca, 110 Ky. 187, 61 S. W. 48, sustaining admission of evidence. In
suit for condemnation of land, showing injury to remainder of
property from construction of road.
Distinguished in Tecumseh Mills v. L., etc., N. R. R. Co., 108
Ey. 577, 57 S. W. 10, upholding, under Ky. Ck>nst, $ 196, contract
whereby Kentuclsy carrier exempted itself from liability for loss by
fire to goods shipped from Tennessee to Massachusetts.
Syl. 3 (XI, 818). Charter taken subject to change.
Approved in Louisville & N. R. R. Co. ▼. Kentucky, 183 U. S.
517, 46 L. 306, 22 Slip. Ct 101, upholding Ky. Const., $ 218, and
Gen. Stat. 1894, § 820, prohibiting higher rates for shorter than for
longer haul, except by permission of commission after investiga-
tion. See 90 Am. St Rep. 253, note.
132 U. S. 84r-90, 33 L. 272, ARON v. MANHATTAN RY.
Syl. 3 (XI, 819). Patent rests on novelty, not utility.
Approved In Thomson-Houston, etc., Co. ▼. Lorain Steel Co., 107
Fed. 716, holding void for anticipation Knight patent 428,169, for
electro motor regulator, consisting of Interlocking mechanism con-
necting the two levers in separate lever motors; Plumb v. New
York, etc., R. R. Co., 97 Fed. 647, holding void for lack of novelty
McKenna patent 348,289, for air-brake attachment, consisting cf
short, flexible tube, with coupling on one end and stop-cock on
other.
SyL 4 (XI, 819). Changing old device not invention.
Approved in Doig v. Morgan Mach. Co., 122 Fed. 463, holding
void for lack of novelty Smith and Doig patent 342,268, for box-
nailing machine; Johnson v. Toledo Traction Co., 119 Fed. 893,
holding void, as mere adaptation, Moxham patent 540,796, for im-
IHTOvement of switch structure, using molten zinc to keep plate
In pocket; Johnson v. Chisholm, 115 Fed. 632, holding void for lack
of patentable novelty Scott and Chisholm patent No. 500,299, for
i:i2 U. S. 91-117 Notes on U. 8. ReporU. 1160
poa-hulling machine; dissenting opinion in Justi ▼. Clark, 108 Fed.
(.01). majority Ijoiding patentable Hm-lbut reissue No. 11,696, for
improved dental spittoon, consisting of outer and inner bowl,
inner forming sheet of water from jet
1:J2 U. S. 91-08, 33 L. 275, KEYSTONE. ETC.. IRON CO. v.
MAKTON.
Syl. 1 (XI, 820). Decree enjoining removing minerals not final.
Approved in Siegel v. Swarts, 187 U. S. 638, 23 Sup. Ct 846, 47
L. 344, reaffirming rule; Parmele v. Schroeder, 61 Nebr. 560, 85
N. W. 504. holding foreclosure decree not final where it adjudged
that, if insufficient, deficiency judgment should be entered; Sling-
luff V. Gainer, 49 W. Va. 11, 37 S. E. 773, holding insuflicient, after
final decree, petition alleging service on wrong person, not affect-
ing pleadings In cause.
132 U. S. 98-103. 33 L. 265, DAY v. FAIR HAVEN RY.
Syl. 2 (XI, 821). Claim not enlarged beyond fair interpretation.
Approved in American Bell Tel. Co. v. National Tel. Mfg. Co.,
109 Fed. 997, holding void Berliner patent 463,569, for combined
telegraph and telephone, whose claims Include transmitters pre-
viously patented by Bell.
132 U. S. 103-106. Not cited.
132 U. S. 107-117, 33 L. 261, SCOTLAND COUNTY v. HILL.
Syl. 0 (XI, 822). Indorsee takes bona fide purchaser's rights.
Approved in Uondot v. Rogers Tp., 99 Fed. 213, holding assignee
of bona tide purchaser of negotiable bonds before maturity takes
assignor's rights.
Syl. 7 (XI, 822). Place of performance determines interest
Ap])rove(l in Bedford v. Eastern Bkig. & Loan Assn. of Syracuse,
181 U. S. 24*^. 45 L. 845, 21 Sup. Ct. 602, holding contract of foreign
loan association, not usurious In home State where payable, valid
in State where mortgaged land lies; United States Sav., etc., Soc.
V. Harris, 113 Fed. 31, holding Minnesota laws govern loan of
Minnesota loan association to Kentucky citizen, secured by mort-
gage on Kentucky realty, by-laws so providing; M'lllwaine v. Elling-
ton, 111 Fed. 584, holding bond of borrowing stockholder in loan
association, dated and made payable at home office, salable there,
though security situated elsewhere; Board of Comrs. v. Geer, 108
Fed. 482. holding Mills' Anno. Stat. Colo., § 2252, giving creditors
interest on bonds, bills, notes and written instruments, applies to
interest coupons from municipal bonds; Hughes County v. Liv-
ingston, 104 Fed. 322, sustaining allowance of interest on bond
coupons from maturity until entry of judgment at New York rate,
bonds being payable there. See 91 Am. St Rep. 740, note.
1101 Notes on U. S. Reports. 132 U. S. 118-140
Syl. 8 (XI, 822). Interest on judgment, place of rendition.
See note, 91 Am. St. Rep. 738.
132 U. S. 118-124. Not cited.
132 U. S. 125-131, 33 L. 279, SMITH v. BOLLES.
Syl. 1 (XI, 823). Damages for misrepresentations plaintiff's loss.
Approved in Hindman v. First Nat. Banls, 112 Fed. 936, 937,
holding damages in deceit for inducing purchase of corporation
stocli difference between price paid and intrinsic value of stock;
Banli V. Williams, 62 Kan. 434, 63 Pac. 745, holding bank: may
recover counsel fees and expenses incurred in good faith in defend-
ing against draft obtained from it by fraud; Shaw v. Gilbert, 111
Wis. 191, 86 N. W. 196, holding damages recoverable for deceit for
inducing sale of goods to insolvent corporation consists in amount
lost when should have been collected, not at time of assignment.
Syl. 3 (XI, 823). Damages for deceit, not unrealized profits.
Approved in Sigafus v. Porter, 179 U. S. 122, 125, 45 L. 116, 118,
21 Sup. Ct 35, 36, 37, holding damages In deceit for sale of gold
mine difference between value of mine at sale and price paid with
interest and necessary outlays from defendant's acts; Nashua Sav.
Banli V. Burlington Electric Lighting Co., 100 Fed. 674, holding
damages in tort for false representations In sale of land and boilers
thereon measured by difference between purchase price and nec-:>s-
sary expenses and fair value; New Dunderberg Min. Co. v. Old, 97
Fed. 154, holding, under Colorado statutes, interest recoverable as
damages In action for c'onversion of ore.
Distinguished in Simon v. Goodyear Metallic Rubber Shoe Co.,
105 Fed. 579, holding no recovery for false representations in pro-
curing contract for rubber waste where plaintiff, after learning of
fraud, waived same by continuing performance.
132 U. S. 131-140, 33 L. 287, CROSS v. NORTH CAROLINA,
Syl. 1 (XI, 824). National bank officers punishable in State.
See note, 92 Am. St Rep. 96.
Syl. 4 (XI, 824). State and nation punishing same act.
Approved in Easton v. Iowa, 188 U. S. 238, 23 Sup. Ct 293, 47
L. 460, holding invalid Iowa Code, §§ 1884, 1885, so far as prohibiting,
on penalty, national banlics from receiving deposits when insolvent;
United States v. Morris, 125 Fed. 324, holding conspiracy to pre-
vent negro citizens from leasing and cultivating land punishable
under Rev. Stat, § 5508; Ex parte Young, 36 Or. 250, 78 Am. St
Rep. 774, 59 Pac. 708, upholding Hill's Anno. Laws Oreg., § 1952,
forbidding persons from inducing seamen to desert vessels within
State Jurisdiction; Greenville v. Kemmis, 58 S. C. 434. 36 S. E. 729,
upholding Greenville ordinance, imposing fine for permitting house
to be used for gaming with cards, where S. C. Crim. Stat, S 391,
made same penal offense.
132 U. 8. 190-192 Notes on U. S. Reports. IIM
State court that constitutionality of State law was questioned on
arpTiiment insufllcient to confer Federal jurisdiction.
Syl. 4 (XI. 829). Preamble not part of statute.
Approved in Cornell v. Coyne, 192 U. S. 430. 24 Sup. Ct. 380,
holding tilled cheese, for export, not exempted from manufacturer's
tax by provision of act June 0, 1890, that such tax should be
represented by coupon stamps; Patterson v. Bark Eudora. 190 U. S.
173. 23 Sup. Ct 822, 47 L. 1005. holding seamen shipping on foreign
vessel within protection of act December 21. 1898, entitled "Act to
amend Laws relating to American Seamen;'* United States v. Mc-
Crory, 119 Fed. 804. holding, under act June 27, 1898. amending
act March 3, 1887, taking away jurisdiction of letter carriers* suits
for extra pay — excepting pending suits — plaintiff*^ case prop-
erly restored; Chicago Union Traction Co. v. Chicago, 199 IlL 535,
05 N. E. 400, holding railway leasing lines in Chicago, whose charter
enabled city to regulate rates, bound by city ordinance fixing rates;
City of Mlddlesboro v.' New South Brewing, etc.. Ice Co., 108 Ky.
355, 50 S. W. 428, holding Ky. Stat., { 3490, empowering fourth
class cities, by ordinance, to exempt manufacturing establishments
from taxation. Inapplicable to existing establishments; Louisi-
ana, etc., R. R. Co. V. State Board of Appraisers, 108 La. 19, 32 So
180, holding words " substantially complete,'* in La. Const, art 230,
applies to road whose roadbed 80 per cent completed, to prevent
tax exemption; Territory v. Building & L. Assn., 10 N. Mex. 343,
02 Pac. 1100, holding shares of stock and mortgages to secure cor-
porate loans taxable in New Mexico under Comp. Laws 1807,
§§ 4018, 4019; dissenting opinion in Citizens* Bank v. Parker. 102
U. S. 87, 24 Sup. Ct 18G, majority holding La. act January .30,
1830, exempting bank's capital from taxation, prevents imposition
of license tax for carrying on business.
132 U. S. 100, 101. 33 L. 308, YAZOO. ETC., R. R. CO. v. BOARD OF
COMMISSIONERS.
Syl. 2 (XI, 828). Exemption never presumed.
Approved in Territory v. Building & L. Assn., 10 N. Mex. 343. 62
Pac. ll(K), holding shares of stock and mortgages to secure cor-
porate loans taxable in New Mexico under Comp. Laws 1S07.
§§ 4018. 4019.
132 U. S. 191, 102, 33 L. 300, MISSOURI PAC. RY. v. CHICAGO.
Syl. 2 (XI, 820). Federal practice independent of State.
Approved in City of Manning v. German Ins. Co., 107 Fed. 57,
holding Rev, Stat, § 014, did not conform Federal court to Stato
court practice as to new trials, and reversing order for new trial
wliere plaintiff unduly delayed: Louisville, etc., R. R. Co. v. White,
100 Fed. 243, holding rule of Federal court that ruling on motion
for new trial not reviewable on error unaffected by contrary State
statute (Ala. Code 1800, § 434).
1165 Notes on U. S. Reports. 132 U. S. 192-214
182 U. S. 192-195, 33 L. 309, RAIMOND v. TERREBONNE PARISH.
Syl. 1 (XI, 829). Statement of facts present question of law.
Approved In Wilson v. Merchants* Loan & T. Co., 183 U. S. 128,
4C L. IIG, 22 Sup. Ct. 58, holding agreed statement of facts not
equivalent to special finding within Rev. Stat., §§ G49, 700, allow-
ing exception to bring up question for review; Powers v. United
States, 119 Fed. 5GG, reversing judgment where special findings of
court. Jury being waived, contained only probative facts, leaving
ultimate facts to Inference; Corliss v. Pulaski County, IIG Fed.
291, holding special finding should declare all ultimate facts de-
termining the issues and essential to support Judgment; Olcott v.
Bnnls-Calvert, etc., Co., 114 Fed. 910, holding Circuit Court will
not review decision for plaintiff by court without Jury, where find-
ing of fact referred to another case with no specific finding.
132 U. S. 195-200. Not cited.
132 U. S. 201-20G, 33 L. 322, ROYER v. ROTH.
Syl. 1 (XI, 830). Patent void for want of novelty.
Approved in Campbell Printing, etc., Co. v. Duplex Printing,
etc., Co., 101 Fed. 204, holding Stonemetz patent 370,053, for Web-
printing machine, not infringed by <5ox patent 478,503.
Distinguished in American Well Works v. F. C. Austin Mfg. Co.,
98 Fed. 993, holding patentable and Infringed, Chapman patent
382,689, for apparatus for sinking wells, consisting of pipe held by
rolling clamp with sharp edges.
132 U. S. 207-210. Not cited.
182 U. S. ^10-214, 33 L. 345, CHANUTE CITY v. TRADER.
Syl. 2 (XI, 831). Motion to afllrm — When entertained.
Approved in Equitable Life Assur. Society v. Brown, 187 U. S.
311, 314, 23 Sup. Ct. 124, 47 L. 192, 193. dismissing motion on writ
of error to Supreme Court of Hawaii, where no Inherently Federal
question Involved; Blythe v. Hinckley, 180 U. S. 338, 45 L. 5G1. 21
Sup. Ct 392, holding Judgment afllrmed on writ of error to Supreme
Court where assignments are frivolous and only to secure delay.
Syl. 3 (XI, 831). Mandamus to compel tax levy like Judgment.
Approved In Kinney v. Eastern Trust, etc.. Banking Co., 123
Fed. 300, holding bondholders obtaining Judgment against city on
municipal bonds entitled to mandamus to collect same, and tax-
payer cannot relitigate validity of bonds; Thompson v. Perris Irr.
Dist, 116 Fed. 770, holding mandamus proper remedy in Circuit
Court to collect Judgment obtained therein against California irri-
gation district; Mayor, etc., of Helena v. United States, 104 Fed.
117, holding city which has levied taxes to pay Judgment may be
compelled by mandamus to apply funds thereon.
I'i-i V. S. :2l5-252 Notes on D. S. Reports.
lieu
132 n. S. 215, 216, 33 L. 344, OREGON IMPROVEMENT CO. ».
EXCELSIOR COAL CO.
Sjl. 1 (XI, 831). Original relev&nt Id retsaae Infringement suit
Approved In United Blue Flame Oil Stove Co. v. Geazler. 119 Fed.
169, holding BlacUford reissue patent 11,592, tar vapor burner, con-
fined to structure claimed and not Infringed.
132 U. a. 216-219, Not cited.
132 U. S. 220-239. 33 L. 310, VANE v. NEWCOMBH.
S;L 1 (XI, 831). Contractor erecting telegraph line not employee.
Approved tii Latta r. Lonsdale. lOT Fed. 585. holuiug attorney for
railroad, puld yearly salary, not entitled to preference within eX'
ceptlon of Sandf. & H. Dig. Ark., i 1425, favoring employees of In-
solvent corporations; Kansas City v. McDonald. 80 Mo. App. 448,
holding subcontractor, hulldlng sewer, not within provisions of
Kansas City charter, nor contractor's guarantee for payment for all
labor; Farmer v. St, Croix Power Co.. 117 Wis. 88, 93 N. W. 834,
holding oue contracting with subcontractor to haul cement for
structure, being subcontractor of subcontractor, not entitled to Ilea
of Rev. Slat Wis. 1898, i 28C3.
8yl. 4 (SI, 832). Statutes " pari materia," showing legislative
Intent
Approved In Daniel v. SImms, 49 W. Ta, 637. 39 S. B. 095. hold-
ing ballot under W, Va. Code, chap. 3, G 34, consists of one column
of ballot sbeet, including names for which voter wishes to vole.
132 D. S. 239-252. 33 L. 327. REDFIELD v. PARKS.
Syl. 1 (XI. 823). United Slates not barred by laches.
Approved In In re Stoever, 127 Fed. 307, holding bankruptcy act
1898, chap. 541. t 57, providing that claims against bankrupt's es-
tates not provable after one year, not binding on United States.
See 76 Am. St. Rep. 4S0, note.
Syl. 2 (XI, 832). Ejectment must rest on legal UUe.
Approved In M'Manus v. Cbollar, 128 Fed, 903, holding equitable
defense not maintainable In Federal court In Texas, in action of
trespass to try title to land. See 76 Am. St Rep. 481. note.
Syl. 3 (XI, 832). Ejectment — Statute runs from patent Issue.
Approved In Joplln v. Chachere et al., 107 La. 528. 32 So. 215,
holding tax sale oF lands confirmed by commissioners and by act
of Congress starts prescription, though defective. See notes, 38
Am. St Rep. 727. 72S.
Distinguished In Horst v. Shea. 23 Mont 307, 59 Pac. 368, hold-
ing Mont Code Civ, Proc. 1895, i 494, limiting actions for recover-
ing mining claims, lode claims excepted, to one year, Inapplicable
to realty patented as placer ground.
1167 Notes on U. S. Reports. 132 U. S. 252-295
Syl. 5 (XI, 833). Void tax deed not starting statute.
Approved in Alexander y. Gordon, 101 Fed. 97, holding Sandf . & H.
Dig. Ark. 1894, § 4819, limiting actions to recover lands sold for
taxes to two years, inapplicable where proceedings on sale void on
face; Carey v. Cagney, 109 La. 81, 83, 33 So. 90, 91, holding void,
title on tax sale on bid less than amount for which land adjudicated
to State, plus 20 per cent and costs of sale.
132 U. S. 252-259, 33 L. 353, PICKHARDT v. MERRITT.
Syl. 3 (XI, 833). Similar subsequently known dyes dutiable.
Approved in Farbenfabriken of Elberfeld Co. v. United States,
99 Fed. 554, holding "artificial alizarin" limited to dyestuffs de-
rived from anthracin, and alizarin blacks and browns not so
derived dutiable as coal-tar dyes, not provided .for; United States
V. Dana, 99 Fed. 434, holding ferrochrome, a product of chromic
ore, dutiable under paragraph 110, tariff act 1894, being similar to
ferromanganese covered thereby.
132 U. S. 2(K)-267. Not cited.
132 U. S. 267-271, 33 L. 352, YOUNG v. PARKER'S ADMR.
Syl. 2 (XI, 835). Defective petition — State retains Jurisdiction.
Approved In Weldon v. Fritzlen, 128 Fed. 614, holding action by
mortgagee against mortgagor and creditor indivisible, and nonresi-
dent creditor cannot remove same for local prejudice.
132 U. S. 271-282, 33 L. 346, UNITED STATES v. BARLOW.
Syl. 3 (XI, 835). Recovering extra allowance made on mistake.
Approved in Alexander v. Southern Home B. & L. Assn., 120 Fed.
966, holding statement of loan association to stockholder that lat-
ter's loan was fully made, not binding when recalled immediately.
132 U. S. 282-295, 33 L. 317, FRITTS v. PALMER.
Syl. 1 (XI, 836). State conditioning foreign corporation operative
therein.
Approved in Blodgett v. Lanyon Zinc Co., 120 Fed. 896, 900, hold-
ing, in absence of statutory prohibition. New Jersejr corporation
may acquire realty in Kansas.
Distinguished in Chattanooga Building, etc., Assn. v. Denson,
189 U. S. 415, 416, 23 Sup. Ct. 633. 47 L. 874, holding Ala. Code 1896,
§§ 1316, 1318, requiring foreign coioorations to appoint agent and
establish office, applies to loan by T( nnessee association to Alabama
citizen.
Syl. 3 (XI, 836). Personal liability sole penalty foreign corpora-
tion.
Approved in Tolerton, etc., Co. v. Barck, 84 Minn. 500, 88 N. W.
ao, holding Minn. Laws 1895, chap. 332, requiring foreign corpo-
rations to appoint agent for service, not condition precedent but
132 U. S. 205-312 Notes on U. S. Reports. U68
provision for Jurisdiction; Chicago Mill, etc., Co. v. Sims, 101 Mo.
App. 5TD, 74 S. W. 131. holding Mo. Rev. Stat 1890. $ 1024, requir-
ing resident agent of foreign corporation for service therein, penal-
izing violation, not vitiating contracts of noncomplying corporation.
Syl. 4 (XI, 837). Deed to unempowered corporation voidable by
State.
Approved in Scott v. Deweese, 181 U. S. 211, 45 L. 827, 21 Sup.
Ct. 588, holding person holding national bank stock certificates
cannot escape liability on ground that Increased stock was illegally
issued before amount paid in; Sanders v. Thornton, 97 Fed. 864,
holding one holding lands in trust for Indian citizen of United
States cannot recover such lands, government alone being able to
question cestui's right; Hagerstown Mfg. Co. v. Keedy, 91 Md. 439,
46 Atl. 967, hqldlng trustee in trust deed of benefit association for its
policy-holders, cannot question purchase of town lots by such assocl-
atioDw
(XI. 836). Miscellaneous.
Cited in Miller v. Williams, 27 Colo. 38, 42, 59 Pac. 741, 743,
holding corporation holding under trust deed executed before bot
delivered after corporation became domestic acquires better rlgnt
than assignee of equity of redemption; Miller v. Hall, 14 Colo. App.
371. 60 Pac. 195, holding pendency of action to quiet title by grantee
of equity of redemption cannot be pleaded in abatement since
grantee could not maintain suit
132 U. S. 205 304, 33 L. 334, CLEVELAND v. KING.
Syl. 1 (XI, 838). Municipality liable for nonrepair of streets.
Approved in Snook v. City of Anaconda, 26 Mont. 137, 66 Pac,
758, holding city organized under Mont. Comp. Stat. 1887. charged
with control of streets, responsible for injury from unsafe street
where bridge washed away; dissenting opinion in Workman v.
Mayor, etc.. of New York. 179 U. S. 583. 45 L. 329, 21 Sup. Ct. 224,
holding city liable by maritime law for negligence of servants in
charge of fireboat on way to fire, causing collision.
Distinguished in Faust v. City of Cleveland. 121 Fed. 814, hold-
ing Rev. Stat. Ohio 1892, § 2G40, conferring upon city councils con-
trol of streets, inapplicable to bind city for injury to vessel in
navigable stream.
132 U. S. 304-^12, 33 L. 341, CONTINENTAL LIFE INS. CO. v.
CHAMBERLAIN.
Syl. 1 (XI. 838). Solicitor accepting application, insurer's agent
only.
Approved in McMaster v. New York Life Ins. Co., 183 U. S. 38,
46 L. 72, 22 Sup. Ct. 15, holding insured may recover on policy
where agent, after assuring plaintifiP that policy embodied agree-
ment, inserted provision contrary thereto; Carrol ton Furniture Mfg.
1169 Notes on U. S. Reports. 132 U. S. 313-^17
Go. ▼. American Credit Indem. Co., 115 Fed. 80, 81, holding incorrect
answer to question of insured*s earnings, given In application,
no cause of forfeiture where answer, as given, induced by agent's
representation; Grabbs v. Farmers* etc., Ins. Co., 125 N. C. 397,
34 S. E. 506, holding fire policy conditioned on proper statement of
insured's interest not forfeited by noncompliance therewith where
insurer's agent knew facts before issuing policy; dissenting opinion
in McMaster v. New York Life Ins. Co., 99 Fed. 872, majority hold-
ing inadmissible to vary terms of policy prior to contemporaneous
agreement of agent to show interpolation of clause not agreed, such
not binding insured; reversed in 183 U. S. 38.
Syl. 3 (XI, 839). Insurer estopped by agent's construction.
Approved in Carrollton Furniture Mfg. Co. v. American Credit
I. Co., 124 Fed. 30, 31, holding company estopped to forfeit policy
for incorrect statement in application of insured's sales and losses
statement as made being induced by company's agent; Fidelity,
etc., Co. V. Phoenix Mfg. Co., 100 Fed. 608, holding company bound
by interpretation of policy as covering all business in which in-
sured was engaged, hence indemnity against injuries received by
carpenters.
Distinguished in Mutual Reserve Fund Life Assn. v. Simmons,
107 Fed. 419, holding policy never attached where policy required
payment of premium In full, but agent delivered policy, taking
insured's note for two- thirds of premium.
132 U. S. 313-317, 33 L. 382. ROEMBR v. PEDDIB.
Syl. 1 (XI, 839). Patentee bound by limitations after rejection.
Approved in Hale v. World Mfg. Co., 127 Fed. 967, holding steril-
izing chamber of Hale patent 634,556, for water still, limits patent
which is not Infringed by still without chamber; Ajax Forge Co. y.
Pettibone, MuUiken & Co., 125 Fed. 753, holding prior Calvert
patent 651,413, for adjustable switch-rod, as limited by amendment
of claim in patent office, not infringed by Storrs patent 625,961;
Lepper v. Randall, 105 Fed. 977, holding patent 624,839. for ham-
boiling apparatus, limited to device whereby corners of sack held
by lacing, and not infringed by device employing buckles; Campbell
Printing, etc., Co. v. Duplex Printing, etc., Co., 101 Fed. 295, hold-
ing Stonemetz patent 376,053, for web-printing machine, as confined
by amendment in patent office, not infringed by machine following
Cox patent 478,503; National, etc., Co. v. Interchangeable Brake
Beam Co., 99 Fed. 762, holding Hein patent 361,009, for railway
brake beam, as limited by amendment in patent office, not in-
fringed; Anthony v. Gennert, 99 Fed. 100, holding Green patent
362,211, for photographic shutter, adapted for use in cameras with
small-sized front boards, by virtue of folding, limited to such
method.
Vol II — 74
132 U. S. 3ia-366 Notes on U. 8. Reports. 1170
Distinguished In National Hollow, etc., Co. v. InterchanflreMble,
etc.. Co.. 10(5 Fed. 714. holding patentee acquiescing in rejection of
claim, on examiner's representation that same infringes prior patent,
not estopped from securing same by amendment. '
132 U. S. 318-333. 33 L. 384. CLEVELAND v. RICHARDSON.
Syl. 1 (XI. 840). Fraud in law. misleading other party.
Approved in Wilson v. Stevens, 129 Ala. 637, 29 So. 680, uphold-
ing transfer by insolvent corporation to director of assets in pay-
ment of corporate debt where no fraud present; dissenting opinion
in Rauh v. Waterman, 29 Ind. App. 360. 63 N. B. 47, holding misrep-
resentation by vendee of whiskey that sale was to be on time
instead of for cash on delivery warranted rescission by principaL
132 U. S. 334-^7. Not cited.
132 U. S. 337-340, 33 L. 377. BACHBRACK v. NORTON.
Syl. 1 (XI, 841). Action on marshaFs bond Federal question.
Approved in Howard v. United States, 184 U. S. 681, 46 L. 758,
22 Sup. Ct. 546, holding Circuit Court has Jurisdiction of suit on
bond of clerk of Federal court without diversity of citizenship
where suit depends on effect of bonds; Files v. Davis, 118 Fed.
4('><t. holding suit on attachment bond executed in suit pending in
Feileral court cognizable in same court regardless of citizenship.
132 U. S. 340-356, 33 L. 356, YOUNG y. CLARENDON TP.
Syl. 4 (XI, 842). Delivery to treasurer not in escrow.
Approved in Moller v. Galveston. 23 Tex. Cfiv. 700. 57 S. W. 1119,
holding city bonds legally executed, certified by attorney-general,
and registered by comptroller are issued, though not sold; West
Vlrjjinia, etc.. R. R. v. Harrison Co. Ct, 47 W. Va. 286. 34 S. E.
71)1. holding bonds delivered In escrow to railroad prior to com-
pletiou of roadbed as required as condition precedent In proposal
issued before election not available before such completion.
132 U. S. 357-^60, 33 L. 3G3, HASTINGS, ETC., R. R. v. WHITNEY.
Syl. 1 (XI, 842). Public lands withdrawn by certification.
Approved in Tarpey v. Madsen, 178 U. S. 224, 226, 44 L. 1046,
1047, 20 Sup. Ct. 852. 853. holding mere occupancy of settler in-
sutticlent to protect claim against land grant to railroad; Teller
V. United States, 117 Fed. 581, holding in suit for ties cut payment
of price of land vested equitable title relating back to time of
application, hence Including ties subsequently cut; James v. Ger-
mania Iron Co., 107 Fed. 003, holding entrj' of land by settler with
half-breed scrip segregated tract from public domain precluding
another's legal entry before entry canceled.
Distinguished In Oregon, etc., R. R. v. United States, 190 U. S.
191, 23 Sup. Ct G75, 47 L. 1014, holding settlement, under Or.
1171 Notes on U. S. Reports. 132 U. S. 367-406
donation act 1850, abandoned before compliance, does not reserve
land from grant to Oregon Central as lieu lands; M*Cune v. Essig,
118 Fed. 278, holding patent issued to widow of homesteader, upon
her final proof, gives her an absolute interest excluding children;
Teller v. United States. 113 Fed. 279, holding exclusive right to
occupy and work mineral claim does not exclude such land from
Rev. Stat, § 2461, prohibiting cutting of timber on public domain;
Springer v. Clopath, 26 Nev. 195, 65 Pac. 806, holding occupancy
of land when act of June 16, 1880, listed lands to State as from
unappropriated land did not render listing invalid.
Syl. 2 (XI, 843). Land department decisions entitled to respect.
Approved in Lavagnino v. Uhlig, 26 Utah, 18, 71 Pac. 1049, hold-
ing void, under Rev. Stat, § 452, prohibiting land office employees
from purchasing public lands, location of mining claim by deputy
mining surveyor.
Syl. 3 (XI, 843). Homestead entry excepts land from railroad
grant
Approved in Murray v. Polglase, 23 Mont 419, 420, 59 Pac. 443,
holding entryman on mining claim, receiving receiver's receipt
entitling him to patent, must do representation work where re-
ceipts obtained by fraud; Oregon Short Line Co. v. Fisher, 26 Utah,
185, 72 Pac. 933, holding congressional grant of railroad right of
way does not include land subject to existing uncanceled homestead
entry.
Distinguished in Hamilton v. Spokane, etc., R. R. Co., 3 Idaho,
171, 28 Pac. 410, holding railway not liable for grading right of
way where grant preceded date of homestead entry under which
plaintiff claims.
132 U. S. 367-379. Not cited.
132 U. S. 379-393, 33 L. 367. BRADLEY v. CLAFLIN.
Syl. 2 (XI, 845). Husband's fraudulent conveyance not merging
wife's mortgage.
Approved in M' Daniel v. Stroud, 106 Fed. 490, holding where
note of partner substituted for firm note secured by partnership
mortgage and latter note assigned to partner, mortgage remained
lien on property.
132 U. S. 394-406, 33 L. 378, AYERS v. WATSON.
Syl. 1 (XI, 845). Calling witness' attention to impeaching tes-
timony.
Approved in Clary v. Hardeeville Brick Co., 100 Fed. 918, hold-
ing court may permit defendant having recalled plaintiff's witness
to interrogate same to show prior contradictory statements indi-
cating bias of witness.
132 U. S. 400-172 Notes on U. 8. Reports. 1172
Syl. 2 (XI, 845). Testimony before death not impeaching de-
|)08ltion.
Approved in Ely-Wnllcer Dry Goods Co. v. Mansur, 87 Mo. App.
118, liolding contradictory statement made before deposition where
nttcntioii of witness subsequently deceased^ not called thereto, not
admissible.
132 U. S. 400-415. 33 L. 3d3, HUME v. UNITED STATES.
Syl. 1 (XI, 845). Damages recoverable for breach unreasonable
contract.
See note, 81 Am. St. Rep. 6G1.
Syl. 5 (XI, 845). Persons dealing with public officers.
Approved in Kerwan v. Murphy, 189 U. S. 54, 23 Sup. Ct 003, 47
L. 705, holding courts cannot enjoin survey executed by land de-
partment on claimant's assertion of ownership of land included
therein.
132 U. S. 415-144, 3^ L. 411, GREENE v. TAYLOR.
(XI, 840). Miscellaneous.
Cited in Leatbem, etc., Lumber Co. t. Nalty, 109 La. 330, 33
So. 359, holding, under La. bankrupt act 1807, bankrupt's prop*
erty remained in him until assignee had qualified and judge
or register had conveyed under hand.
132 U. S. 445-454, 33 L. 422, McGILLIN v. BENNETT.
Syl. 1 ( XI. 840). Party offering evidence cannot question admis-
sibility.
Approved in State v. Mortensen, 20 Utah, 351, 73 Pac, 575.
holding defense in homicide cannot allege testimony elicited by
themselves as ground for new trial.
Syl. 3 (XI, 840). Payment in lieu of deed.
Approved in Barrett v. Twin City Power Co., 118 Fed. 809,
holding, under contract whereby plaintiff transferred property to
corporation for bonds to be delivered on certain time, order for
bonds when issued insufficient.
132 U. S. 454-404. Not cited.
132 U. S. 404-^72, 33 L. 420. PENNIB v. REIS.
Syl. 3 (XI, 847). No vested right in salary pension.
Approved in Kavanaugh v. Board of Police Comrs., 134 Cal.
53, 60 Pac. 37, holding right of widow to $1,000, under Stat 1891,
p. 287, § 7, on death of hutsband, member of police force serving
ten years, not defeated by new charter; Clarke v. Police Life, etc.,
Bd., 127 Cal. 552. 59 Pac. 995, holding policeman resigning before
passage of act 1889, § 3, for pensioning officers serving over twenty
years not entitled to such pension.
1173 Notes on U. S. Reports. 132 U. S. 472-400
(XI, 847). Miscellaneous.
Cited In Matter of Mahon v. Board of Education, 171 N. Y. 265,
63 N. E. 1108, 89 Am. St. Rep. 812, holding unconsUtutional N. Y.
Laws 1900, chap. 725, empowering board of education to retire
teachers on half-pay annuity, amounting to gratuity.
132 U. S. 472-478, 33 L. 409, WESTERN UNION TEL. CO. V. ALA-
BAMA BOARD OF ASSESSMENT.
Syl. 2 (XI, 847). State cannot tax interstate messages.
Approved in Kehrer v. Stewart, 117 Ga. 976, 44 S. E. 857, up-
holding tax imposed on agents of pacliing-bouses operating in State
as to agent representing local house, though he also represent
interstate packer; State v. United States Fidelity Co., 93 Md.
316, 317, 48 Atl. 919, upholding Code, art. 81, $ 146, providing for
franchise tax on gross receipts of guaranty companies incorpo-
rated in State and operating therein as applying to receipts within
State; In re Wilson, 10 N. Mex. 36, 60 Pac. 75, holding uncon-
stitutional Sess. Laws 1899, p. 101, so far as imposing license fee
on coal oil sold in Territory by Importer in original packages.
Distinguished in Cumb. & Pa. R. R. v. State, 92 Md. 685, 48 Atl.
508, upholding Maryland taxation of Maryland railroad extending
beyond State based upon proportion of entire gross receipts earned
in Maryland.
132 U. S. 478-486, 33 L. 400, RIO GRANDE R. R. v. GOMILA.
Syl. 2 (XI, 848). Property in Federal court's custody.
Approved in Hale v. Tyler, 115 Fed. 835, upholding Federal
equity jurisdiction, diverse citizenship appearing, to set aside con-
veyance of realty by deceased, though State court also have juris-
diction; In re Gerdes, 102 Fed. 320, holding jurisdiction of State
court over foreclosure suit where decree rendered before bank-
ruptcy proceedings begun not ousted by Bankruptcy Court See 82
Am. St. Rep. 588, note.
Syl. 3 (XI, 849). Federal court cannot surrender property seized.
Approved in Hale v. Tyler, 115 Fed. 838, upholding Federal
equity jurisdiction, where diverse citizenship exists, to set aside
fraudulent conveyance by deceased, though State court also have
jurisdiction; Phelps v. Mutual Reserve, etc., Assn., 112 Fed. 458,
holding plea in State court, after return nulla bona, for appointment
of receiver to collect sums owing plaintiff on policies not new
pleading requiring service.
132 U. S. 487-490, 33 L. 421, DRAVO v. FABEL.
Syl. 1 (XI, 849). Sworn answer responsive to bill, evidence.
Approved in Jacobs v. Van Sickle, 127 Fed. 09, 70, holding In
suit to set aside conveyance by partner of partnership property
answer of partner under oath responsive to bill evidence against
trustee.
182 U. 8. 491-524 Notes on U. S. Reports. 1174
8yL 2 (XI, 840). Federal practice, examination of witnesses in-
dependent
Approved In Calivada Ck>loni£atlon Ck>. t. Hays, 119 Fed. 207,
holding Pennsylvania act permitting party to be called and ex-
amined as on cross-examination Inapplicable in Federal equity
practice where witness is witness of party calling
8yL 4 (XI, 849). Appellate court not disturbing findings below.
Approved In Shappirio v. Goldberg, 192 U. S. 240, 24 Sup. Ct
200, holding amount in dispute gives Federal jurisdiction where
bin prays conveyance of land of slight value or In alternative
16,000 as purchase price; Schwartz v. Duss, 103 Fed. 565, holding
Circuit Ck>urt of Appeals will not review findings of fact made by
master and confirmed by Circuit Court appointing, no error ai^
pearing on face.
132 U. 8. 491-508. Not cited.
132 U. 8. 50^-518, 83 L. 433, IDAHO, ETC., IMPROVEMENT CO.
V. BRADBURY.
8yL 6 (XI, 851). Facts considered on review from territory.
Approved in United States Trust Co. v. New Mexico, 183 U. 8.
540, 46 L. 319, 22 Sup. Ct 174, holding agreed statement of fact
and evidence certified by territorial Supreme Court as statement of
facts, under, act April 7, 1874, brings nothing to Supreme Court for
review.
SyL 7 (XI, 851). Foreclosing lien in Idaho, equitable action.
Approved in Hooven, etc., Co. v. Featherstone, 111 Fed. 86,
holding suit to enforce mechanic's lien being essentially equitable,
decree therein reviewable by appeal only, reversing Hooven, etc.,
Co. V. Featherstone, 99 Fed. 181, holding suit to enforce mechanic's
lien essentially equitable and triable on equity side of Federal court,
though triable at law In State court
Syl. 8 (XI, 851). Decree foreclosing mechanic's lien reviewable.
Approved in In re Worcester County, 102 Fed. 812, holding party
In doubt as to proper method to obtain review of bankruptcy order
may take appeal and file petition for revision under bankruptcy act
Syl. 9 (XI, 851). Equity may disregard jury's finding.
Approved In Oil Well Supply Co. v. Hall, 128 Fed. 878, holding
where In bankruptcy proceedings Jury waived, and District Court
adopts verdict of jury In Circuit Ck)urt where matter certified, judg-
ment will not be reversed.
132 U. S. 518-524, 33 L. 440, SINGER MFG. CO. v. RAHN.
Syl. 1 (XI. 852). Master's liability for servant's negligence.
Approved In Loomis v. Holllster, 75 Conn. 724, 55 Atl. 564, sus-
taining instruction in substance that master was liable for servant's
1175 Notes on U. S. Reports. 132 U. S. 524-591^
acts in course of employment, but not where on frolic of servant's
own.
132 U. S. 524-531. Not cited.
132 U. S. 531^538, 33 L. 450, PACIFIC EXPRESS CO. v. MALIN.
Syl. 4 (XI, 852). Exceptions signed nunc pro tunc.
Approved in Stemenberg v. Mailbos, 99 Fed. 46, holding bill of
exceptions must contain statement of evidence sufficient to show
applicability or inapplicability of instructions challenged.
132 U. S. 539-553, 33 L. 430, PAUL v. CULLUM.
Syl. 1 (XI, 853). Partners determining shares of gains and losses.
Approved in Cannon v. Brush Elec. Co., 96 Md. 470, 54 Atl. 130,
94 Am. St Rep. 588, holding rights inter sese of stockholders In
consolidated corporation formed from constituents which had no
legal existence governed by charters, not by rules of partnership;
Balier v. Safe Deposit & T. Co., 90 Md. 759, 78 Am. St Rep. 470,
45 Atl. 1031, holding sons in partnership with father, he furnish-
ing capital and they to share net profits, not liable to contribute
on dissolution on father's death; Broadfoot v. Fraser, 73 Vt 314,
50 Atl. 1054, holding equal division of profits presumed where no
evidence, contrary, though one partner contributes most of capital
132 U. S. 554-565. Not cited.
132 U. S. 565-571, 33 L. 438, RIO GRANDE R. R. ^ VINET.
(XI, 853). Miscellaneous.
Cited in Lewis v. Parrish. 115 Fed. 288, holding except when
liable by promise or statute executor not answerable at law, proper
remedy being suit against him in representative capacity; State
V. Fredlocli, 52 W. Va. 241, 43 S. B. 157, 94 Am. St. Rep. 940, hold-
ing court having jurisdiction in personam may restrain party
from prosecuting suit In second county where it would deprive
court of subject-matter.
132 U. S. 571-592, 33 L. 462, GRAVES v. CORBIN.
Syl. 1 (XI, 854). Bill at time of petition determines removal.
Approved in Colburn v. Hill, 101 Fed. 506, holding creditor's suit
to obtain administration of insolvent corporation's property to ex-
clusion of defendant's indivisible and not removable.
Syl. 3 (XI, 854). Separate defenses cannot make separate con-
troversies.
Approved in MacGInniss v. Boston, etc.. Silver Min. Co., 119
Fed. 100, holding where relief sought against one of defendants
is merely incidental to main purpose and applies only to one de-
fendant, suit not thereby made separable; Smedley v. Smedley,
110 Fed. 258, holding indivisible suit against L., plaintiff's parol
grantor, B^ L.'8 subsequent grantee, and H., 'Ets grantee with
i'62 U. 8. 502-003 Notes on U. S. Reporta. 1176
knowledge to enforce gift and cancel deeds; Colbum v. Hill, 101
Fed. 505. holding indivisible and unremovable creditor's suit for
administration of insolvent corporation's property, to exclude de-
fendants therefrom.
Syl. 4 (XI, 855). Judgment after erroneous removal reversed.
Approved in Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S.
454, 44 L. 844, 20 Sup. Ct 0J)2, holding where jurisdiction depends
upon diverse citizenship, In suit against limited partnership associa-
tion, citizenship of each member must be shown; Welden v. Fritzlen,
128 Fed. Oil, holding indivisible foreclosure suit against resident
mortgagor and nonresident creditor, and latter cannot remove for
local prejudice; Colburn v. Hill, 101 Fed. 507, holding indivisible
and unremovable creditor's suit for administration of insolvent
corporation's property incidentally seeking to exclude defendants.
Syl. 5 (XI, 855). Examination of jurisdiction of removed cases.
Approved In Pennsylvania Co. v. Leeman, 160 Ind. 19, 66 N. B.
49, refusing to reverse order denying petition for removal where it
appears that petition not made until after amended complaint filed
after answer.
^XI, 854). Miscellaneous.
Cited in Murphy v. Payette Alluvial Gold Co., 98 Fed. 322, hold-
ing docketing of cause In Circuit Court does not oust State juris-
diction where petition failed to show citizenship of plaintiff's as-
signors.
132 U. S. 592-509. Not cited.
132 U. S. 500-003, 33 L. 474, LOUISVlLLE, ETC., R. R. V.
WANGELIN.
Syl. 1 (XI, 855). Joint tort feasor cannot remove cause.
Approved in Shaffer v. Union Brick Co.. 128 Fed. 98, refusing
to remand where nonresident brick company sued jointly with
employee for latter's wrongful act was not connected with act,
liability being different; Yarnell v. Felton, 104 Fed. 162, 102 Fed.
370, holding insufficient, under act 1887-88, for removal of suits
on diverse citizenship, petition of receiver alone wheu sued jointly
with railroad; Marrs v. Felton, 102 Fed. 778, holding Inseparable
suit against receiver and railroad for Injury due to negligence of
servants.
Syl. 2 (XI, 8561. Separability determined by record at petition.
Approved In Chesapeake & O. R. R. Co. v. Dixon, 179 U. S. 138,
45 L. 125. 21 Sup. Ct. 70, holding joint action against railroad and
fireman and enj^ineer for wrongful death at crossing, and common
citizenship of plaintiff and employees defeats removal; Shaffer v.
Union Brick Co., 128 Fed. 00. refusing to remand where nonresi-
dent brick company and employee sued jointly for injury from
latter's wrongful act, company not being connected with such act;
1177 Notes on U. S. Reports. 132 U. S. 6(MM532
Fogarty v. Southern Pac. Co., 123 Fed. 074, holding complaint
against railroad and employees alleging negligence in maintaining
traclis and in handling cars states Joint action, requiring diverse
citizenship between all defendants and plaintiff; Bryce v. Southern
Ry. Co., 122 Fed. 710. holding where complaint against railroad
and engineer and fireman was insufficient, under Code Civ. Proc,
§ 163, then joinder will not defeat removal; Dougherty v. Yazoo,
etc., R. R. Co., 122 Fed. 210, 211, holding complaint alleging that
palace car was operated jointly by defendants and plaintiff's in-
jury from negligence stated joint action, nonremovable by palace-
car company alone; Union Terminal Ry Co. v. Chicago. B. & Q. R.
R. Co., 119 Fed. 211, holding suit against resident and nonresident
for joint negligence cannot be removed on simple allegation that
local defendant had no interest in suit; Charman v. Lake Erie &
W. R. R. Co., 105 Fed. 451, holding, under Ind. Stat 1894, § 7083..
allowing action against railroad and employee jointly, such action
cannot be severed; Prince v. Illinois Cent. R. R. Co., 98 Fed. 2,
holding separable suit against railroad and employees for negli-
gence, und«r statute imposing liability on company alone, there-
fore may be removable; Winston v. Illinois Cent. R. R., Ill Ky.
959, G5 S. W. 15, holding where Ky. Stat, § 6, makes railroad
and employees Jointly liable for injuries, suit therefor is Joint
and not removable, though employees Joined to prevent
(XI, 855). Miscellaneous.
Cited in Boatner v. American Exp. Co., 122 Fed. 716, holding
Joinder of employees of express company sued on contract liability
for loss of package, where no attempt to show contract, presumed
fraudulent; Swann v. Mutual Reserve, etc., Life Assn., 116 Fed.
234, remanding suit where plaintiff alleged payment of over 2,500
premiums and sued for 1,990, defendant not showing amount so
fixed to prevent removal.
132 U. S. 604-612. Not cited.
132 U. S. 612-614. 33 L. 473, CLEARY v. ELLIS FOUNDRY CO.
Syl. 1 (XI, 857). Judgment affirmed where no writ of error.
Approved in Guarantee Co. of North America v. Pheniz Ins.
Co., 124 Fed. 172, holding appellee not suing out writ of error or
appeal cannot assign cross-errors to give Federal appellate Juris-
diction.
132 U. S. 614-626. Not cited.
132 U. S. 627-632, 33 L. 460, PATRICK v. GRAHAM.
Syl. 1 (XI, 857). Objection to testimony must precede verdict
Approved in Nashua Sav. Bank v. Anglo-American Co., 189 IT.
S. 231, 23 Sup. Ct 519, 47 L. 786, holding where evidence supports
verdict variation in proof not pointed out at time not available;
132 U. S. 032-701 Notes on U. S. Reports. 1178
Plue River Ix)gping. etc., Co. v. United States, 186 U. S. 287, 46
L. 1100. 22 Sup. Ct. 023. Iioldlng objection of no evidence to sup-
port joint action agnlnHt defendant not available for first time
in Supreme Court on writ of error; Dresser v. Canadian Pac. Ry.
Co., 110 Fed. 285, holding unavailing error predicated on refusal
to admit evidence of conversation, where assignment failed to show
sulmtnnce oT evidence rejected; Illinoift Car, etc., Co. v. Linstroth
Wngon Co.. 112 Fed. 730, holding objection that contract copy in
evidHice was not properly stamped not available for first time
on motion for new trial: Davis v. United States, 107 Fed. 757,
holding objection to admission of evidence that same is incompe-
tent not available on writ of error, being too indefinite; Missouri,
etc.. Ry. Co. v. Elliott, 102 Fed. 105, holding admission of hearsay
evidence to prove wages received harmless error where fact proved
by other competent evidence.
132 U. S. 632-043. 33 I^ 455. CLAYTON v. UTAH.
(XI, 858). Miscellaneous.
Cited in Torrez v. County Comrs., 10 N. Mex. 600, 691, 65 Pac
182, holding New Mexico courts have power to declare unconstitu-
tionality of territorial legislative act
132 U. S. 643-601. Not cited.
132 U. S. 602-693, 33 L. 487, MILLER v. TEXAS & PAC. RY. CO.
Syl. 10 (XI, 800); Deed construed as containing general warranty.
Approved in dissenting opinion in Smith v. Ingram, 130 N. C. 114,
40 S. E. 989. majority holding deed with warranty to land in State,
executed by nonresident married woman, not acknowledged as pro-
vided by Code, § 1256, N. C, raises no estoppel and is void.
132 U. S. 693-701, 33 L. 502, HILL v. WOOSTER.
Syl. 3 (XI, 8(50). Newness, form or shape, not patentable.
Approved in Fay v. Mason, 127 Fed. 328, holding Fay reissued
patent 11,064. for machine to iron collars and cuffs, not infringed
by Rickey patent 060.277; Rodiger v. Davids Mfg. Co., 126 Fed.
005, holding void for lack of invention Rodiger patent 649,864, for
inuoilnge holder, consisting of cylindrical cup with two compart-
ments for material and for brush; Leslie v. Tracy, 1(X) Fed. 476,
holding void for lack of invention Tracy and Piatt patent 557^7,
for improved com shredder.
CXXXIII UNITED STATES.
133 U. S. 1-20, 33 L. 555, UNITED STATES v. STOWELL.
Syl. 1 (XI, 862). Statute against revenue fraud not penal.
Approved in Roberts v. Pacific, etc., Co., 104 Fedv 579, holding
where either defendant, one citizen of different State from
plaintiff, other alien, would have right to remove if stied alone,
removal not precluded by their uniting; United States v. Two Hun-
dred and Forty-six and One-half Pounds of Tobacco, 103 Fed.
792, 794, holding, under Rev. Stat, § 3400, bona fide mortgagee al-
lowing mortgaged personalty to remain with cigar manufacturer,
forfeits same by latter*s violating Internal revenue law.
Syl. 3 (XI, 862). Forfeiture comprises distiller's and sympathiz-
er's interests.
Approved in United States v. One Bay Horse, etc., 128 Fed. 208,
holding Rev. Stat, §§ 3450, 3453 (U. S. Comp. Stat 1901, pp. 2277,
2278), providing forfeitures for acts intended to defraud Federal
government of internal revenue on oleomargarine, partially repealo<i
act of August 2, 1886, chap. 840, S 17; United States v. National
•Surety Co., 122 Fed. 909, holding distiller's official or annual bond,
under Rev. Stat, § 3260 (U. S. Comp. Stat. 1901, p. 214), binds
sureties during term unless spirits are entered for deposit in
warehouse; Five Hundred and Eighty-one Diamonds v. United
States, 119 Fed. 561, holding right of vendor to reclaim goods ob-
tained by fraud inapplicable against United States to forfeit the
goods, purchaser attempting to evade customs by smuggling same)
Pilcher V. Faircloth, 135 Ala. 313, 33 So. 546, holding, under U. S. Rev.
Stat., § 3450 (Comp. Stat. 1901, p. 2277) forfeiture takes place upon
commission of act, title relating back at judicial condemnation,
avoiding all intermediate sales.
133 U. S. 21-29, 33 L. 513, CASE v. KELLY
Syl. 6 (XI, 863). Trustee may recover for improvements made.
See 81 Am. St Rep. 189, note.
133 U. S. 30-49, 33 L. 616, RICHARDSON v. GREEN.
Syl. 1 (XI, 863). Stockholder may honestly transact with cor-
poration.
Approved in Wyman v. Bowman, 127 Fed. 276, holding solvent
corporation may lawfully prefer one creditor to others, preference
being made in good faith to continue it as going concern, though
[1179]
133 U. S. 50-64 Notes on U. S. Reports. 1180
liabilities exceed assets; American Exch. Nat. Bank v. Ward, 111
Fed. 789. holding corporation not precluded preferring t>ona fide
creditor because he is also one of its directors, but he must prove
his absolute good faith in equity; Fouche v. Merchants' Nat. Bank,
110 Ga. 841, 30 S. R 2(52, holding corporation creditor may recover
from one alleged to be stockholder therein, it appearing defendant
was in fact stockholder at time when legally liable.
Syl. 2 (XI, 804). Director's bonus stock additional security
fraudulent
Approved in Chick v. Fuller, 114 Fed. 31, majority holding cor-
poration mortgage to bank directors thereof, being large stockhold-
ers, is valid, corporation believed to be solvent concern, but In fact
insolvent.
Syl. 4 (XI, 804). Corporation's capital stock assets payment
debts.
Approved in Great Western, etc., Mfg. Co. v. Harris, 111 Fed.
42, holding assets of insolvent corporation are a trust fund for
payment of debts and cannot be withdrawn by stockholders, with-
out providing for the debts; City-Item, etc.. Printing Co. v. Phoenix
Furniture, etc., Co., 108 La. 206, 32 So. 472, holding unpaid sub-
scriptions to capital stock of limited corporation are as-
sets which the receiver must collect to apply to payment of
debts; Say lor v. Banking Co., 38 Or. 211, 02 Pac. 655, holding cor-
poration president and secretary without directors' authority exe-
cuting note of corporation, subsequent default judgment rendered
thereon, stockholders may attack validity of judgment.
(XI, 8G3). Miscellaneous.
Cited In Central Trust Co. v. California & N. R. R. Co., 110 Fed.
72, holding individual bondholders, in trustee's suit to foreclose
mortgage securing bonds, may intervene to contest validity of
certain of the bonds.
133 U. S. 50-04, 33 L. 524, MASON v. PEWABIC MIN. CO.
Syl. 1 (XI, 8G3). Charter expiring minority shareholders may
sell assets.
Approved in Talbot v. Mason, 125 Fed. 102, holding claimant
denied allowance from fund in court, consenting in open court, with
opposing counsel for smaller sum paid, estopped to prosecute ap-
peal from order disallowing claim; Morris v. Elyton L. Co., 125
Ala. 277, 28 So. 51G, holding unanimous consent being necessary
corporation may not transfer its property in payment for oiLer
corporation stock, nonassenting stockholdor may effectively object;
Stewart v. Pierce, 116 Iowa, 750, 89 N. W. 240, holding court of
equity in winding up corporation affairs, charter having expired,
cannot order sale of another corporation's property, though stock
of latter belongs to former; Phillips v. Providence Steam Engine
no. Notes on U. S. Reports. 133 IT. S. 6&-82
Co., 21 R. I. 306, 43 Atl. 599, holding absence of unfairness or fraud,
minority stockholder cannot object to sale of corporation's business
agreed to by majority, same being no longer profitable.
Syl. 2 (XI, 8G4). Corporation dissolving equity should order
accounting.
Approved in Mumford v. Equador Dev. Co., Ill Fed. 643, hold-
ing majority stockholders of corporation may lawfully make con-
#
tract with the company, but equity will interpose to protect rights
of minority stockholders.
(XI, 863). Miscellaneous.
Cited in Mason v. Pewabic Min. Co., 100 Fed. 340, holding spe-
cial master permifting defendant company to take away its books,
hearing greatly retarded thereby, not matter of bad faith justify-
ing removal eight years thereafter.
133 U. S. 65-67. Not cited.
133 U. S, 67-78, 33 L. 564, SCHRADER v. MANUFACTURERS'
BANK.
Syl. 2 (XI, 866). Liquidation prevents corporate officers making
obligations.
Approved in Moss v. Whitzel, 108 Fed. 580, holding national
bank oflicers have no power to incur liability on part of bank after
it has gone into liquidation which will bind shareholder.
Syl. 4 (XI, 867). Liquidation makes subsequent guaranty judg-
ment void.
Approved in Ward v. Joslin, 186 U. S. 152, 46 L. 1099, 22 Sup.
Ct. 811, holding judgment against corporation under Kansas Con-
stitution does not prevent stockholder showing obligation was ultra
vires and unconstitutional, aflirming 100 Fed. 679; McBryan v. Uni-
versal Elevator Co., 130 Mich. 116, 89 N. W. 684, holding judg-
ment against corporation on note not conclusive against stock-
holders, but latter may show consideration failed, payee taking
back property given therefor.
Distinguished in Ward v. Joslin, 105 Fed. 230, holding, under
Kansas law, corporation having received benefit of contract es-
topped to plead ultra vires act, but judgment against corporation
not conclusive upon individual stockholder.
133 U. S. 78-82, 33 L. 568, STUART v. BOULWARB.
Syl. 3 (XI, 867). Counsel fees to receiver not counsel.
Approved in Welch v? Renshaw, 14 Colo. App. 535, 59 Pac. 970,
holding amount for attorney's fees allowed a receiver, being dis-
cretionary with the court, its actions not disturbed on appeal, dis-
cretion being properly used; Mohr-Weil L. Co. v. Russell, 109 Ga.
585, 34 S. E. 1008, holding though attorney join with party for
allowance of attorney's fee for bringing fund into court, proceed-
133 U. S. 83-138 Notes on U. S. Reports. 1182
Ing regarded in name and right of party; Davis v. Swedish, etc., Nat
Bank, 78 Minn. 413, 80 N. W. 955, holding where attomey*s fee:!
are disallowed in discretion of court, he not being party to pro-
ceedings in court below has no independent right of appeal; First
Nat. Bank v. Oregon Paper Co., 42 Or. 402, 71 Pac. 145, holding
an allowance of counsel fees on behalf of a receiver is made to such
receiver, and not to the counsel.
Syl. 4 (XI, 867). Equity fixes receiver*s compensation.
Approved In Elk Fork, etc.. Gas Co. v. Foster, 99 Fed. 500, hold-
ing cost of receivership, receiver being appointed by court*s own
motion, chargeable against funds in receiver's hands, absence of
fraud or improper conduct of parties; Graham v. Carr. 133 N. C.
450, 45 S. B. 848, holding each creditor of estate must pay his
pro rata share to receiver for administering affairs of insolvent
corporation.
Syl. 5 (XI, 868). Compensation matter of discretion presu.*ned
correct
Approved in West v. East Coast Cedar Co., 113 Fed. 743, holding
the awarding of costs in equity is discretionary with the court
and no appeal lies from its action in the matter; Wilkinson v.
Washington Trust Co., 102 Fed. 31, holding chancellor appointing
receiver as special master to foreclose against water company and
allowing and disallowing certain compensation, said discretion not
reviewable in absence of abuse; In re Scott 99 Fed. 407, holding
receiver in bankruptcy appointed to preserve bankrupt property
in three different towns, referee's allowance of $1.95 per day for
each store for 190 days not unreasonable.
133 U. S. 83-92. Not cited.
133 U. S. 92-106. 33 L. 550, ILLINOIS CENT. R. R. v. BOSWORTH.
Syl. 4 (XI, 8G9). Offender pardoned loses life estate.
Distinguished in Heirs of Ledoux v. Lavedan, 52 La. Ann. 327,
27 So. 203. 204, holding, upon confiscation of property as Incidtmt
of war power, after amnesty, remnant of estate remained sus-
pended, legal title passing to his heirs upon conflscatee*s death.
133 U. S. 107-138, 33 L. 538. COLE v. CUNNINGHAM.
Syl. 1 (XI, 8()0). Jurisdiction or fraud may be questioned.
Approved in Thorniann v. Frame, 170 U. S. 350, 44 L. 503, 20
Sup. Ct. 448. holding absence of recital of domicile, appointment
of administrator In State of decedent's death, there being effects
of estate, not adjudication that decedent died at domicile; American
Mut. Life Ins. Co. v. Mason, 159 lad. IG, 04 N.* E. 525, holding, it
appearing from transcript of foreign State court, that court had
judge, clerk and seal, general jurisdiction presumed, in absence of
contrary proof; Hale v. Harris, 112 Iowa, 375, a3 N. W. 1047, hold-
ing foreign receiver's suit to foreclose mortgage, demurrer to his
1183 Notes on U. S. Reports. 133 U. S. 107-138
capacity should have been overruled, petition alleging assignment
of mortgage to receiver; Coleman v. Howell, 131 N. C. 127, 42 S. E.
556, holding under Code Ga. 1882, § 2608, judgment of Georgia Pro-
bate Court, discharging administrator, was impeachable in North
Carolina for fraud of administrator practiced on court and heirs;
Babcock v. Marshall, 21 Tex. Civ. 150, 50 S. W. 730, holding, under
Const. U. S., art. 4, S 1, foreign Judgment procured by fraud, depriv-
ing defendant of meritorious defense, may be enjoined, same remedy
interposable in foreign State.
Distinguished in In re Flulses, 157 Mo. 130, 57 S. W. 546, holding
Rev. Stat. 1899, § 2356, prohibiting creditor's sending note out of
State in suing for wages of resident of Missouri, repugnant to
Fourteenth Amendment Federal Constitution.
Syl. 2 (XI, 869). State judgments valid as evidence.
Approved in Clarlse v. Clarlie, 178 U. S. 195, 44 L. 1033, 20 Sup. Ct.
876, holding decision by courts of testatrix's domicile that will
converted all her realty into personalty not conclusive that realty
in another State was so subjected; Mechanics', etc., Assn. v.
Fowler, 57 S. C. 121, 35 S. E. 433, holding debtor's confession of
judgment to his son and brother not defrauding creditors, there
being no attempt to get an undue preference.
SyL 3 (XI, 869). State insolvent laws bind foreign creditors.
Approved in Binder v. McDonald, 106 Wis. 336, 82 N. W. 157,
holding Rev. Stat Wis., § 1694a, mailing liens dissolvable, insolvent
debtor malting voluntary assignment within ten days thereafter,
property given to receiver, not superseded by Federal banliruptcy
laws of 1898.
Syl. 5 (XI, 870). Equity one State enjoins resident's suit another.
Approved in Miller v. Riclsey, 127 Fed. 580, holding Nevada court
getting jurisdiction of defendant, suit against him for diverting
water in California stream injuring lower Nevada proprietor, had
jurisdiction to try same; Berliner Gramophone Co. v. Seamap, 113
Fed. 735, holding equity court having jurisdiction, all parties before
It, will retain jurisdiction to grant full relief, and will enjoin
party's further proceedings in any other court; Riverdale, etc.,
Mills V. Alabama, etc., Co., Ill Fed. 432, holding Federal Circuit
Court rendering decree, an appeal pending therefrom, can enjoin
one party prosecuting other In State court upon question affecting
decree; Home Ins. Co. v. Virginia-Carolina Chemical Co., 109 Fed.
691, holding constitutional jury right does not affect power of
equity court to try facts in pending legal action where there are
other substantial equitable matters existing; Margarum v. Moon,
63 N. J. Eq. 588, 53 Atl. 180, holding creditor, being resident and
citizen of debtor's State, enjoinable instituting attachments another
State, to reach his credits, which would be exempt under laws of
home State; dissenting opinion in Evans-Snider-Buel Co. T. M'Fad*
138 U. S. 138-150 Notes on U. S. Reports. U»4
den, 106 Fed. 305, 308, majority holding Congress may pass retro-
active laws to divest or Impair attachment lien acquired und^
Federal statute, at least nntil adjudication settles right to attach.
Syl. G (XI, 870). Voluntary assignment ought to bind everywhere.
Approved in Roberts v. Norcross, 09 N. H. 535, 45 AtL 561, hold-
ing common-law assignment for creditors' benefit, executed in
another State, valid against subsequent attachment in New Hamp-
shire, though trustee has no notice of assignment; Bloomingdale v.
Weil, 29 Wash. G24, G27, 70 Pac. 99, 100, holding rights of local
creditors prevail against property in State covered by foreign vol-
untary assignment for creditors.
(XI, 8G9). Miscellaneous.
Cited in Maxwell v. Dow, 176 U. S. 592, 44 L. 601, 20 Sup. Ct 453,
holding all persons served alike, State statute providing jury of
eight instead of twelve in criminal cases not capital does not
deprive of due process.
133 U. S. 138-152, 33 L. 531, KETSER v. HITZ.
Syl. 5 (XI, 872). Ratifying book transfer fixes transferee's lia-
bility.
Approved in Foote v. Anderson, 123 Fed. 663, holding entry of
person's name bank stock-book as shareholder, without confirm-
atory act on his part, will not charge %is estate after death with
stockholder's liability; Hecht, Liebmann & Co. v. Phenix Woolen
Co., 121 Fed. 189. holding parties permitting issuance of corpora-
tion's stock to them and acquiesce thereto for years are liable as
stockholders, though paying no consideration therefor.
133 U. S. 152-156. 33 L. 586, KNOX COUNTY v. HARSHMAN.
Syl. 1 (XI, 873). Equity annuls legal judgment for fraud.
Approved in National Surety Co. v. State Bank, 120 Fed. 596,
TjOS, 599, holding negligence of State officer will not estop foreign
corporation obtaining equitable relief against unconscionable judg-
ment. State statute compelling his appointment; Travelers', etc.,
Assn. V. Gilbert, 111 Fed. 274, holding State statutes enabling law
courts to set aside judgments for valid reasons apply to Federal
courts in the State having jurisdiction; Holton v. Davis, 108 Fed.
149, holding complainant entitled to equitable relief against judg-
ment on ground of fraud, the proof of allegations being clear, dis-
tinct and certain; Allen v. Allen, 97 Fed. 529, holding judgment
unimpeachable in equity on ground of fraud practiced by successful
party, it appearing that the fraud, if attempted, was unsuccessful;
dissenting opinion in Buckl, etc., Co. v. Atlantic Lumber Co., 116
Fed. 11, majority holding equity court has power to reduce amount
of judgment, based on verdict, without resubmission of case to
jury, on ground trial court's error.
1185 Notes on U. S. Reports. 133 U. S. 156-233
133 U. S. 156-179, 33 L. 673. FARMERS', ETC.. TRUST CO. T.
GALESBURG.
Syl. 6 (XI, 874). Bfanlcipality rescinds contract water contracted
unfurnished.
Approved in St Cloud v. Water, Light, etc., Co., 88 Minn. 334, 92
N. W. 1114, holding equitable action lies to annul franchise, water-
works persistingly failing and refusing to furnish pure water in
accordance with contract terms; Kaukauna, etc., Co. v. Kaukauna,
* 114 Wis. 341, 89 N. W. 546, holding principal purpose of lighting
contract having been defeated, plaintiff conclusively repudiating
one of essential elements, city was justified in abandoning contract.
133 U. S. 180-197. Not citedw
133 U, S. 198-208, 33 L. 604, COMANCHE COUNTY v. LEWIS.
Syl. 2 (XI, 875). Legislative recognition de facto corporation
cures defects.
Approved in Jeff Davis County v. National Bank, 22 Tex. Civ.
160, 54 S. W. 40, holding, under Tex. Rev. Stat 1895, art 764,
parent county being sued for indebtedness. District Court may
determine claim against each of two other counties taken therefrom.
Syl. 6 (XI, 876). Bond recitals estop municipality asserting Ir-
regularities.
Approved in Presidio Co. v. National Bank, 20 Tex. Civ. 514, 44
S. W. 1071, holding action on county bonds for building courthouse,
defense of illegal removal of county seat is collateral, and not
entertainable.
133 U. S. 208-216. Not cited.
133 U. S. 216-233, 33 L. 596, COULAM y. DOULL.
Syl. 1 (XI, 877). Child's provision rebutted by extrinsic evidence.
Approved in Rice v. Rigley, 7 Idaho, 131, 61 Pac. 295, holding
mere preponderance of evidence not sufficient to establish a trust
in land, and specific performance requires contract clearly and
fully proved.
Syl. 4 (XI, 877). Statutory construction not binding Fedtral
court. •
Approved in James v. Appel, 192 U. S. 135, 24 Sup. Ct 223, holding
Ariz. Rev. Stat 1887, par. 837, discharging motion for new trial
not acted upon same term, not unconstitutional assumption of Ju-
dicial function; Rhea v. State, 63 Nebr. 487, 88 N. W. 798* head-
ing rule that in adopting statute judicially construed construction
is adopted not absolute in all cases, amounting to conclusive pre-
sumption; State V. Mortensen, 26 Utah, 349, 73 Pac. 574, holding
rule that adopting State must also adopt the statutory interpreta*
tion of State is not conclusive upon the State adopting.
Vol 11 — 76
133 U. S. 233-273 Note« on U. 8. Report!. 118C
133 U. S. 233-246, 33 L. 589, CHRISTIAN v. ATLANTIC, BTC^
R. R.
Syl. 3 (XI, 877). Pledge requires deliv^y and possession.
Approved in dissenting opinion in South Dal^ota t. North Caro-
lina. 102 U. S. 321, 24 Sup. Ct 277, majority holding, under U. S.
Const, art 3, | 2, Supreme Court has original jurisdiction suit
by South Dakota, as donee of bonds secured by railroad mortgage.
North Carolina issuing same.
Distinguished in South Dakota y. North Carolina, 192 U. S. 34S,
24 Sup. Ct 288, holding, under U. S. Const., art. 3, | 2, Supreme
Court has original jurisdiction, suit by South Dakota, as donee of
bonds secured by railroad mortgage. North Carolina issuing same.
133 U. S. 24G-257. 33 L. 614, GEIGLINGER v. PHILIPPI.
Syl. 5 (XI, 878). Law of place fixes insolvent's property.
See 94 Am. St. Rep. 555, note.
133 U. S. 258-273, 33 L. 642, GEOFROY v. RIGGS.
SyL 3 (XI, 878). Federal treaty power practically unlimited.
Approved in Bahand v. Bize, 105 Fed. 488, holding it is within
*power of United States, by treaty, to remove disabilities of aliens
to inherit estate within the several States.
Syl. 4 (XI, 878). Treaty is supreme law of land.
Approved in Downes v. Bidwell, 182 U. S. 289, 370, 45 Im 1107,
1138, 21 Sup. Ct. 787, 819, holding an alien people not incorporated
into United States by treaty-making power by mere cession, with-
out express or implied approval of Congress; Byrne v. Drain, 127
Cai. 6G7, (50 Pac. 434, holding provisions Los Angeles charter opening
streets were valid when passed, and general law simply suspended
right until amendment Const., art 11, S 6; Blythe v. Hinckley,
127 CaL 435, 436, 59 Pac. 787, 788, holding Cal. Civ. Code, § 671,
enabling citizen or alien to hold and dispose of property, not con-
flicting with treaty of Great Britain nor interfering with treaty-
making power.
Distinguished in Blythe v. Hinckley, 180 U. S. 340, 45 L. 562, 21
Sup. Ct. 393, holding Cal. Civ. Code, § 671, declaring alien capable
of inheriting or taking property, not precluded by U. S. Const,
art 1, § 10.
Syl. 5 (XI, 879). ** States " general jurisprudence denote organized
societies.
Approved in United States v. Whelpley, 125 Fed. 619, holding
act March 2, 1895, chap. 191, 28 Stat 963 (U. S. Comp. Stat. 1901,
p. 3178), prohibiting carrying lottery tickets from one State to an-
other, did not prohibit carrying to District of Columbia,
1187 Notes on U. S. Reports. 133 U. S. 273-2$»
SyL 8 (XI, 879). Treaties are liberally construed.
Approved in Goetze v. United States, 103 Fed. 77, holding treaty
not only law, but contract between two nations, must. If pos-
sible, be so construed to give full force and effect to all its parts.
Syl. 10 (XI, 879). French treaty 1853 provided for reciprocity.
Approved in Bahand v. Bize, 105 Fed. 487, holding treaty of 1853,
between United States and France, permits French subjects to
acquire, by inheritance and otherwise, realty, same as citizens of
United States.
(XI, 878). Miscellaneous.
Cited In Downes v. BldweU, 182 U. S. 262, 45 L. 1096, 21 Sup. Ct.
777, holding provisions Constitution of United States which are
applicable are in force In Porto Rico, whether Island be incorpo-
rated into United States or not.
133 U. S. 273-289, 33 L. 625, UNITED STATES v. MOSBY.
Syl. 1 (XI, 879). Consul may pay fees under protest
Approved in Dooley v. United States, 182 U. S. 230, 46 L. 1081,
21 Sup. Ct. 765, holding Tuclcer act (24 Stat at Large, 505, chap.
359), Circuit Court, as Court of Claims, has Jurisdiction to recover
back duties illegally exacted and protestly paid on Porto Rico Im-
ports to New Yorlc.
Syl. 4 (XI, 879). Interest unretalnable, counsel loaning public
funds.
Approved in Vansant v. State, 96 Md. 130, 53 Atl. 715, holding
cleric occupying fiduciary relation to the State, as to license money
received while in his possession, was liable for Interest thereon
collected by him; Maloy v. County Comrs., 10 N. Mex. 660, 662, 02
Pac. 1111, holding absence of statutes requiring county treasurer
to account for interest on public funds in his possession, county
cannot recover such after officer retires.
133 U. S. 290-295, 33 L. 608, REALS v. ILLINOIS, ETC.. R. R.
Syl. 2 (XI, 880). Sworn answers conclusively prove responsive
facts.
Approved in National Surety Co. v. State Bank, 120 Fed. 599,
holding Federal courts may enjoin enforcement of unconscionable
judgments to which defendants had meritorious defense, same pre-
vented by fraud, accident or mistake.
Syl. 3 (XI, 880). Decree canceling railroad mortgage binds bond-
holders.
Approved in Woods v. Woodson, 100 Fed. 519, holding corpora-
tion bondholders represented by trustee, regarding deed of trust,
are bound by decree canceling same in suit against trustee, though
they v^re not parties thereto; Farmers, etc.. Loan Co. v. Essex, 66
Kan. 109, 71 Pac. 271, holding default judgment upon publication
133 U. 8. 29G-320 Notes on U. 8. Reports. 1188
service against Farmers* Loan & Trust Co., purportlngr to bar lien
of mortgage assigned to Farmers' Loan & Trust Co., trustee, not
binding upon latter; Grant v. Winona, etc., Southwestern Ry. Co..
85 Minn. 430, 89 N. W. 63, heading the terms of the mortgage author-
izing the trustee to represent the bondholders, they are bound by
the deficiency Judgment rendered. 8ee 73 Am. 8t Rep. 168, note.
133 U. 8. 206-299. Not cited.
133 U. S. 299-307. 33 L. 631. STREET v. UNITED STATES.
Syl. 4 (XI, 880). Date terminating Sunday. Monday is included.
Approved in Pressed Steel Co. v. Eastern Ry. Co. of Minnesota.
121 Fed. 619, holding when the last day within which a deed is to
be performed falls on Sunday, that day is excluded, and whole of
next day included. See 78 Am. St Rep. 377, note.
133 U. S. 308-314. 33 L. 611, CORBIN v. GOULD.
Syl. 1 (XI. 881). Term commonly used cannot be appropriated.
See 85 Am. St Rep. 88. 113, note.
133 U. S. 315-^320, 33 L. 635. SMITH v. LYON.
Syl. 1 (XI, 881). Federal court no jurisdiction diverse citizenship
laclLing.
Approved in Dominion Nat Bank v. Olympla Cotton Mills, 128
Fed. 182. holding jurisdiction depending upon diverse citizenship,
answer maker of note not good defense by allegation that one de-
fendant is citizen another State claiming privilege of suit; Fonik
v. Gray, 120 Fed. 163, holding suit on ground diversity of citizen-
ship not removable under judiciary act 1887-88, neither party
being resident of State, unless both parties waive objection to
jurisdiction; Jenkins v. York Cliffs Imp. Co., 110 Fed. 809, holding
one defendant being citizen and resident of State other than dis-
trict of suit, and other than complainant's residence, jurisdiction
on diverse citizenship excluded him; Empire Min. Co. v. Propeller,
etc., Co., 108 Fed. 902, 908, holding, under judiciary act 1887-88.
defendant sued only in district of his residence, unless he waives
the privilege, but removal by defendant conclusively waives privi-
lege; Parkinson v. Barr, 105 Fed. 83, holding, under judiciary act
1887-88, no separable controversy existing, no removal on diversity
of citlzenslilp, ail defendants not nonresidents of State of action:
Stemmler v. M'Nell, 102 Fed. 6G1, holding in suit by plaintiflf
against several d^efendants, between whom no privity exists. Fed-
eral court has jurisdiction if each defendant's controversy exceeds
$2,000; Wahl v. Franz, 100 Fed. 683, holding probate of will in
Probate Court of Arkansas, not being suit of civil nature within
Fe<leral judiciary act 1888, not removable on that point; In »e Reese.
98 B^ed. 986, holding person impnsoned for violation of order not
extending to him, or in excess of court's jurisdiction, is entitled to
1189 Notes on U. S. Reports. 133 U. S. 320-348
discharge by writ habeas corpus; Sowry v. Tile, etc, Assn., 98 Fed.
822, holding defendants, by a general appearance, waive the ob-
jection of a misjoinder because other defendants are not inhab-
itants of the district.
Distinguished in Seybert v. Sharookln, etc., Ry. Co., 110 Fed.
811, holding jurisdiction of Federal court to foreclose mortgage on
property within the district not defeated because one of defendants
not resident of district
Syl. 2 (XI, 882). Federal jurisdicUon restricted Acts 1887-88,
Approved in McDonnell v. Jordan, 178 U. S. 238, 44 L. 1052, 20
Sup. Ct 889, holding removal application will contest to Circuit
Court for " prejudice or local influence," under act August 13, 1888.
comes too late, first made after mistrial Probate Court; Freeman
V. American Surety Co., 116 Fed. 550, holding jurisdiction depend-
ent on diversity of citizenship. Federal court has jurisdiction, plain-
tiff being nonresident and all defendants residents of district where
suit is brought; Pennsylvania Co. v. Leeman, 160 Ind. 21, 66 N. E. 50,
holding 25 Stat. 433, 435, | 3 (U. S. Comp. Stat, 1901, p. 510), and
congressional intent shown by prior legislation, plea in abatement
is an answer, within the statute.
133 U. S. 320-332, 33 L. 618, BUFORD v. HOUTZ.
Syl. 1 (XI, 883). Public lands unindosed unprohibited pastured
free.
Distinguished in United States v. Dastervignes, 118 Fed. 201,
202, holding not only has the government expressly prohibited
pasturing sheep on Stanislaus forest reservation, but long use by
defendants gave them no title.
Syl. 2 (XI, 883). Confinement of stock Inapplicable in Northwest
See 81 Am. St Rep. 447, note.
Syl. 3 (XI, 883). Grazing in Utah under governmental control.
Approved in Kelley v. Rhoads, 188 U. S. 9, 23 Sup. Ct 263, 47
L. 363, holding, under Wyo. Laws, 1805, chap, 61, ^ock of 10,000
sheep being driven from Utah through Wyoming to Nebraska, rate
of nine miles per day, cannot be taxed.
133 U. S. 333-348, 33 L. 637, DAVIS v. REASON.
Syl. 2 (XI, 884). Bigamy and polygamy are criipes,
See 79 Am. St Rep. 379, note.
Syl. 5 (XI, 884). Congressional acts supersede like State layvs.
Approved in Shepherd v. Grimmett 3 Idaho, 405, 31 Pac. 793, hold-
ing statute February 25, 1891 (Idaho), requiring elector's oath, not
ex post facto law, nor nature bill of attainder, but within constitu-
tional power of legislature; Ladd v. Holmes, 40 Or. 188, 66 Pac. 722,
91 Am. St Rep. 474, holding Sess. Laws 1901, p. 327, §24 (Or),
does not discriminate against country districts, deprivhig thcan of
133 U. S. 349^374 Notes on U. S. Reports. 1190
representation in county convention, delegates thereto determinable
by preceding election.
133 U. 8. 34D-359, 33 L. 647, BURT v. BVORY.
SyL 1 (XI, 884). Combination old elements not ioTentloii.
Approved in Neptune Meter CJo. t. National Meter Co., 127 Fed.
568, holding Nash patent for water-meter, being but same principle
as patents to Tabor and Tracy, is Toid for lack of invention; Fay
V. Mason, 127 Fed. 327, holding Fay reissued patent for machines
for ironing edges of collars and cuffs not infringed by Rickey
patent; Rodiger t. Davids Mfg. Ck>., 126 Fed. 064, holding Rodiger's
patent for mucilage holder, being combination of old elements pro-
ducing nothing novel, lacks patentable invention; Griest Mfg. Co.
V. Parsons, 125 Fed. 119, holding Johnston patent for gathering
attachment for sewing machine covers combination of old ele-
ments producing old function, and is, therefore, not patentable;
Drake-Castle Pressed Steel Lug Co. v. Brownell, etc, Co., 123 Fed.
90, holding Drake patent for boiler lug, swagged from sheet metal,
lacks patentable invention, differing only in material from cast-iron
lugs previously used; Eames v. Worcester Polytechnic Institute, 123
Fed. 74, holding Walker patent for twist-drill grinding machine,
covering combination of drill rest with the holding mechanism, in
view of prior art lacks invention; American Saddle Go. v. Sager
Gear Ca, 122 Fed. 648, holding Wheeler patent for bicycle saddle
is void for anticipation, being union of old elements not disclosing
invention; L. B. Waterman Co. v. Forsyth, 121 Fed. 106, holding
Waterman patent for an improvement in fountain pens, while show-
ing an improved method of construction, does not disclose patent-
able invention; United Blue Flame Oil Stove Co. v. Glazier, 119
Fed. 162, holding Blackford reissue patent for vapor burner, If it ex-
hibits invention, is limited by the prior art to specific structure
•claimed.
133 U. S. 360-369, 33 L. 663. PHCENIX CASTER CO. v. SPIEGEL.
Syl. 2 (XI, 886). Patentee modifying claim limited to modifi-
cation.
Approved in AJax Forge Co. v. Pettibone, MuUiken & Co., 125 Fed.
553, holding Calvert patent for an adjustable switch-rod limited
by prior art, and amendment of claims in patent ofllce not infringed
by Strom patent
133 U. S. 370-374. 33 L. 651. COYNE v. UNION PAC. RY.
Syl. 3 (XI, 887). Moving rail injuring not foreman's fault.
Approved In Erie R. R. Co. v. Moore, 113 Fed. 272, 273, holding
brakeman being injured by locomotive, question of defendant's
negligence and of plaintilTs contributory negligence were for the
Jury.
1101
Notes on U, S. Reports.
S V. 1
375^23
133 tJ. S. 375-3T9, 33 L. 656, QUEBEC SS. CO. v. MERCHANT.
SjL 2 (XI, SST). Steamship employees all fellow servants.
Approved in Louisville, etc.. B. R. Co. v. Stuber. 108 Fed. 038,
holding plaintiff, foreman Of water supply, injured in colllsioa wbile
riding on engine to station, not passenger, but fellow serrant of
the engineer; Oiaou v. Oregon Coal & Navigation Co., 104 Fed. 576,
holding uavlgatloD of elilp during the voyage being a common under-
taking, the ship's company are regarded by the maritime law, sama
as common iaw, fellow aen-ants; Brush El. L. Co. v. Wells, 110 Ga.
202, 35 S. B. 369. holding employees are fellow servanta, being
under general control and direction of common master, though
employed In departments of duty; Grattla v. K. C, P. & G. Ry., 153
Mo. 400, 77 Am. St. Rep, 738. 55 S. W. lift holding freight conductor
Blgunlliig engineer to go forward, fellow servant of engineer and
Qreman who waa injured by conductor's signal and engineer's obey-
ing it; SoQeld v. Guggenbelm, etc., Co., 64 N. J. L. 613, 46 AO. 714,
holding test must always be whether Degllgeuce or omission waa Id
the discharge of master's or the servant's duty, if the latter master
not liable.
133 U. a. 380-387, Not cited.
133 0. 8. 387-^23. 33 L. 730, CALIFORNIA INS. CO. v. UNION
COMPRESS CO.
Syl 3 (XI, 888). Compress company may insure In Its name.
Approved In Munich Afisur. Co. r, Dodwell, 128 Fed, 413, holding
charterer of steamship has Insurable loterest in goods In bis posses-
sloD as carrier, to the extent of bis responsibility, and may recover
upon policy, affirming Dodwell, etc., Co, v. Munich Assur. Co., 123
Fed. 842; Seaboard, etc., Hy. v. Main, 132 N. C. 457, 43 S. E. 935,
holding carrier's contract not exempting It from liability for negli-
gence did not violate rule of public policy or commua-law doctrine.
Syl. 6 <XI, 889). Employer's negligence Inexcusable Id flro
exemption.
Approved in Gardner v. Southern R. R„ 127 N. C. 296. 37 8. B.
329. holding eommoa carrier cannot exempt Itself from loss occa-
sioned by its own negligence, even by express Btlpulatlon.
Syl. 7 (XI, 889). Carriers can Insure against servant's oegligeoce.
Approved In Ursula, etc., SS. Go, v. Amslnck, 115 Fed. 246, hold-
ing insurers of goods carried on deck are liable for amount 'jf
policy, though shipowners settled their liability fur less than the
value oC the goods; Missouri, etc.. Ry. v. Carter, 95 Tex, 4T7, 68
S. W. 1G4, holding railroad building side track for sawmill-owner,
in consideration that railroad company be relieved from damages
arising therefrom, contract not void, promoting owner's private
Interest.
133 U. 8. 423-470 Notes on U. S. Reports. 11J2
SyL 8 (XI, 888). Insurance policy not forfeited accepting carrler*8
bills.
Approved In Washburn-Crosby Co. v. William Johnston Co.. 125
Fed. 274, holding bill of lading exempting carrier's liability loss,
*' not happening through negligence *' of carrier, shipper has burden
of proving carrier's fault; Parker v. Railroad, 133 N. C. 339, 45
8. E. 059, holding carrier accepting shipment under contract *' sub-
ject to delay " has burden of showing exercise of due diligence to
avoid delay carrying and delivering goods.
Syl. 9 (XI, 890). Court's instruction may emphasize facta.
Approved in Haun v. Rio Grande, etc, Ry., 22 Utah, 361, 02 Pac.
912, holding a general exception cannot be considered by the ap-
pellate court unless the whole instruction so excepted to is incorrect.
Syl. 11 (XI, 890). Extrinsic evidence may show policy-owner.
Approved in Pittman v. Harris, 24 Tex. Civ. 505, 59 S. W. 1122,
holding insurance policy executed to warehouseman corerlMig hay
belonging to plaintifT destroyed by fire, latter must show ratifica-
tion of warehouseman's act to claim under policy.
183 U. S. 423-433. 33 L. 717. MILLS v. DOW.
Syl. 1 (XI, 890). Recital receipt consideration prima facie evi-
dence.
Approved in Lenz v. Chicago, etc., R. R., Ill Wis. 203, 86 N. W.
009, holding railroad company purchasing another operating road,
deed consideration reciting ** assumption " of grantor's obligations,
includes promise to pay all debts and obligations. See 91 Am. St.
Rep. 724.
SyL 4 (XI, 890). Assignees' contract binds them as principal.
Approved in United States v. Smythe. 120 Fed. 33, holding mint
superintendent liable to government, on his bond for cunency
officially received, and destroyed by ^re through negligence of sub-
ordinate, statute requiring ** safe-fceeplng."
(XI. 890). Miscellaneous.
Cited in Central Trust Co. v. Louisville Trust Co., 100 Fed. 547,
holding court of equity cannot compel indemnitor to comply with
obligation in advance of contingency, upon which he was to become
liable.
133 U. S. 433-470, 33 L. 747. ARMSTRONG v. AMERICAN, ETC.,
BANK.
Syl. 10 (XI, 801). Banli must bear officer's fraud.
Approved in Warren-Scharf Asphalt Pav. Co. v. Commercial
Nat. Banli, 97 Fed. 185, holding agent of corporation, authorized to
indorse checlis In Its behalf for deposit, may bind it by such indorse-
ment though agent forged the check.
1103 Notes on U. S. Reports, 133 U. S. 471-405
Syl. 11 (XI, S91). Bank cannot refuse checks on deposits.
See 75 Am. St. Rep. 59, note.
Syl. 12 (XI, 891). Lender In illegal transaction may recover.
Approved in Searles v. Lum, 89 Mo. App. 240, holding absence
restrictive statute, money loaned to pay gambling debt may be
recovered if not makeshift to cover lender's participation therein.
Syl. 13 (XI, 891). Contract enforceable indirectly connected illegal
transaction.
Approved in Gilbert v. American Surety Co., 121 Fed. 503, hold-
ing contract of sale being completed and seller made agent thereof
for three years, latter cannot thereafter claim them on ground sale
was restraint of trade; Stuart v. Pierce, 116 Iowa, 749, 89 N. W.
239, holding where the several provisions of a contract are separ-
able, a valid provision may be enforced though other provisions
are invalid; Boston Steel, etc., Co. v. Steuer, 183 Mass. 143, 66 N. E.
648, holding though plaintlfT be payee of negotiable security does
not prevent his becoming bona fide purchaser of it, having pur-
chaser's right for value without notice; Gallagher v. Cornelius,
23 Mont. 31, 57 Pac. 449, holding though alderman illegally con-
tracted with city to construct sewer, no defense to contract to
indemnify third person for its construction, though expenses ex-
ceeded stipulated price.
Syl. 15 (XI, 892). Dividend illegally held receiver owes interest.
Approved in Malcomson v. Wappoo Mills, 99 Fed. 635, holding
receiver of insolvent corporation holding funds after instructions
of court may be charged interest for benefit of creditors.
133 U. S. 471-473. 33 L. 725, GAGE v. KAUFMAN.
Syl. 1 (XI, 892). PlaintllTs allegation seized fee simple is suf-
ficient.
Approved In Tonopah Fract MIn. Co. v. Douglass, 123 Fed. 941,
holding allegation in bill by corporation that defendants are citizens
and residents of State of suit, and nonresidents of orator's, suf-
ficient statement within equity rule 20; Blew v. Ritz, 82 Minn. 533,
85 N. W. 549, holding disseisor surrendering or abandoning prem-
ises before suit, rightful owner in possession may maintain tres-
pass for wrongful entry and recover damage.
133 U. S. 473-495, 33 L. 674, DELAWARE COUNTY COMRS. v.
DIBBOLD, ETC., SAFE CO.
Syl. 7 (XI, 893). Assignee suing Indiana binds Federal courts.
Approved In Mexican Cent R. R. Co. v. Eckman, 187 U. S. 433,
23 Sup. Ct 213, 47 L. 247, holding guardian and not ward, being
proper party under State law, may invoke Federal Jurisdiction on.
ground of diverse citizenship.
133 U. 8. 496-^14 Notes on U. 8. Reports. 1194
SyL 8 (XI, 894). Contract assignable no personal confidence
InTolved.
Approved in American Bonding, etc., Go. v. Baltimore, etc, R. R.
Co., 124 Fed. 871, holding Supreme Conrt rule is that a contract is
assignable unless terms or nature thereof evidencing intention of
parties make it otherwise; Colton v. Raymond, 114 Fed. 869, hold-
ing office involving fiduciary duties or agency, the delectus persons,
being essence of relation, not subject to sale or assignment, nor
within New York Statute of Frauds; Tifton T., etc, G. Ry. Co.
V. Bedgood, etc., Co., 116 Ga. 95, 43 S. B. 259, holding contract
rights, coupled with liabilities, or involving relation of personal
confidence, not transferable to third party without other's consent;
Mueller v. Northwestern University, 195 lU. 249, 88 Am. St Rep. 196,
63 N. E. 115, holding parties to contract may in terms prohibit as-
signment, preventing assignee succeeding to any rights under con-
tract by virtue of the assignment; State t. Kent, 98 Mo. App. 287,
71 S. W. 1067, holding provision in contract of employment by city
that claim for wages th^eunder shall not be assignable is valid.
(XI, 893). Miscellaneous.
Cited in Weston v. Ralston, 48 W. Va. 187, 36 S. B. 453, holding
public easement once lawfully established over land for public
highway, by proper dedication and acceptance same is good against
any and all titles.
133 U. S. 496-514, 33 L. 687, WISCONSIN. ETC., R. R. T. PRICE
COUNTY.
Syl. 1 (XI, 894). State cannot tax Federal property.
Approved in United States v. Ricltert, 188 U. S. 439, 23 Sup. Ct.
481, 47 L. 537, holding United States has such interest in prevent-
ing State not taxing lands allotted to Indians in severalty act
February 8, 1887, during period that collection may be restrained;
Hibernia, etc., Soc. v. San Francisco, 139 Cal. 208, 209, 72 Pac
921, holding Rev. Stat. U. S., § 3701 (U. S. Comp. Stat 1901,
p. 2480), exempting stoclLS, bonds, treasury notes, from State of
municipal taxation, did not exempt interest on United States
consols.
Syl. 3 (XI, 894). Purchaser entitled to patent land taxable.
Approved in Stearns v. Minnesota, 179 U. S. 251, 45 L. 177, 21
Sup. Ct. 83, holding State having accepted property as a trustee,
it is not compelled to wealien full accomplishment by subjecting
lands to taxation; Gulf, etc., Ry. Co. v. Claris, 101 Fed. 679, hold-
ing one possessing public land as homestead having receiver's re-
ceipt, under Rev. Stat, $ 2290, may recover damages to land
inflicted by a wrongdoer, having no interest therein; Dry Dock
Co. V. Baltimore, 97 Md. 100, 54 Atl. 624, holding Federal prop-
erty conveyed to petitioner for dry doclc purposes, government using
1105 Notes on U. S. Reports. 133 U. S. -196-814
withont charge, grantee not UiereLiy exempted from tasatioa ground
government agency.
Sjl. 7 (XI, 895). Railroad grant float until location.
Approved In United States v. Oregon, etc., a. R. Co., 176 n. S.
42, 44 L. 304, 20 Sup. CL 205. boldlng grant oC public lands to
N. P. R. R. Co., act of Congress July 2. 1864, was nature of float,
excluding all land disposed of before filing map of definite location.
Syl. 8 (XI, 890). Patent adds nothing after railroad location.
Approved In Oregon, etc., R. R. v. United States. 189 U. S. lia,
23 Sup. Ct. 619, 47 L. 731, holding selection of lands within Indemntty
limits of grant, act July 25, ISOQ. chap. 242. cannot defeat settler's
previous bona fide occupancy, title securttble after survey made;
United States v. Mullan Fuel Co., 118 Fed, 604. holding United
States cannot recover value of timber removed from unsurveyed
land within railroad grant, which would be within odd-numliered
sections, title being parted with; Toltec Ranch Co. v. Bubcock, 24
Utah, 1»4, 00 Pbc. 879, holding, though defendant had not seven
years' possession since issuance of railroad patent, title dating
from location defendant had title agalnet railroad's grantee.
Distinguished In Manley v. Dow. 110 Fed. 250. boldlng patent
issued to State for lands not earned by company's failure to com-
plete road, prior settler under homestead laws has preference over
company's purcliaser.
Sjl. II (XI, 896). Land untasable until secretary approves lo-
cation.
Approved In Clark v. Herrlnston, 186 V. 8. 209, 46 L. 1130, 28
Sup. Ct 874, holding land department's approval of railroad's selec-
tion as Indemnity lands of sections which, under congressional
act. sabject only to homestead, did not vest title in company;
United States v. Chicago, etc., Ry. Co., 116 Fed. 971. holding patent
Issued to railroad for land to which an Individual had acquired prior
right under homestead. United States obligated to uonvey to right-
ful claimant; United States t. Oregon & C. R. R. Co., 101 Fed.
320, holding title to indemnity land remains tn United States sub-
ject to disposition under homestead laws until ascertainment of
primary deficiency and selection approved by secretary; Sullivan v.
Van Kirk L., etc., Co., 124 Ala. 234. 20 So. 928, holding land granted
to Alabama to aid railroad under act Congress June 3, 1856. not being
earned, assessgient of It for taxes against railroad was void;
Chicago, etc., Ry. v. Hemeuway, 117 Iowa, 601, 01 N. W. 012, hold-
ing lands within Indemnity limits of grant, on selection and con-
firmation by secretary, were subject to tax, though not patented;
Altschul V. Clark, 39 Or. 324, 325, 65 Pac. 994. holding selectiou
by road company granted by State did not pass title from gov-
ernment until approved by secretary of interior; Abney v. State,
133 U. S. 514--541 Notes on U. 8. Reports. 1196
20 Tex Civ. 105, 47 S. W. 1045, holding, under statute (act April 9,
1881). granting Confederate land certificates, locator having located
two surveys could not obtain .patent anlil land commissioner
seleote<l one of them. ^■
Uislingulshed in Railway v. Kelly, etc., Co., 52 La. Ann. 1749,
28 So. 215, holding lands granted to railroad within '* indemnity
limits** required selected by grantee "under secretary's direction,"
land so selected legally becomes Immediately subject to State
taxation.
(XI. 894). Miscellaneous.
Cited in McCord v. Hill. Ill Wis. 613, 84 N. W. 33, holding where
facts would give one the land, but secretary's erroneous, legal
application enabled the ottier to succeed, latter holds as constructive
trustee for former.
133 U. 8. 514-523. Not cited.
133 U. S. 523-529. 33 L. 726, BERNARD TP. v. MORRISON.
Syl. 1 (XI, 898). Bond recital estops denying regularity.
Approved in Miller v. Perris Irr. DIst, 99 Fed. 147, 148, holding
recital in negotiable bonds of irrigation district, directors acting
under act March 7, 1887, estops district setting up irregularities
against bona fide purchasers.
133 U. S. 529-533, 33 L. 766, LINCOLN COUNTY v. LUNING.
Syl. 2 (XI, 898). Federal court has Jurisdiction against county.
Approved In Loeb v. Trustees of Columbia Tp., 179 U. S. 486, 45
L. 288, 21 Sup. Ct. 180. holding Federal court follows Interpretation
of highest State court, relative to its Constitution, at time of con-
tract, without regard to subsequent contrary interpretation.
Syl. 4 (XI, 898). Federal bond Jurisdiction valid against State
act.
Approved in dissenting opinion in Wahl v. Franz. 100 Fed. 701,
majority holding will probate Arkansas Probate Court was not
•* suit of civil nature," within Judiciary act 1888, nor removable for
local prejudice, contestant of another State.
Syl. 6 (XI, 899). Until fund provided limitation not pleadable.
Approved in School Dlst No. 5 v. First Nat Bank, 63 Kan. 670,
r»(> Pae. 630, holding there being no fund at any time for payment
of boncis registered with treasurer, district Is estopped setting up
Statute of Limitations.
1;j:5 U. 5>. 534-541, 33 L. 721, FOGG v. BLAIR.
Syl. 1 (XI, 809). Advances not lien on railroad.
Approved in State Trust Co. v. Turner, 111 Iowa, 673, 82 N. W.
1032, lioldiiig coriJoration receiving property at excessive valua-
tion in i)ayment for shares of stock, owner of stock liable to cred-
itors for the excess value.
1197 Notes on U. S. Reports. 133 U. S. 541-552
Syl. 3 (XI, 899). Judgment liens subordinate to prior mortgages.
Approved in Roberts v. Central Trust Co., 128 Fed. 884, holding
order directing railroad treasurer to pay holder sum **out of pro-
ceeds of sale of first bonds sold " does not create lien having priority
over mortgage; Central Trust Co. v. California & N. R. R. Co., 110
Fed. 75, holding claim railroad agrees to pay from proceeds of sale
first bonds sold does not take precedence over subsequent mort-
gage for bonds Issued for construction.
Syl. 4 (XI, 900). Property though trust fund is alienable.
Approved in Coler v. Allen, 114 Fed. 610, holding though corpora-
tion is insolvent while a going concern, it may lawfully execute
mortgage on its property, in good faith; to extend prior indebted-
ness; American Exch. Nat. Bank v. Ward, 111 Fed. 787, holding
insolvency of corporation does hot ipso facto transform its assets
into trust fund for equal benefit of creditors, but trust attaches,
court taking possession.
SyL 5 (XI, 900). Railroad property mortgaged free from detit
Approved in Columbus, S. & H. R. R. Co. Appeals, 109 Fed. 190.
holding agreement of assumption of old company's debts did not
give equitable lien enforceable superior to mortgages, no bonds being
set aside for payment; Burge v. St Louis, etc., R. R., 1(X) Mo. App.
465, 74 S. W. 8, holding railroad company, under Rev. Stat 1899,
§ 1061, extending its line by purchasing another, does not become
responsible for contracts or torts of vendor; Hawkins y. Donner-
berg, 40 Or. 105, 66 Pac. 694, holding corporation creditors cannot
enforce liability of stockholders for unpaid subscriptions after cor-
poration's right to collect has become barred.
133 U. S. 541-^2, 33 L. 761. STURR v. BECK.
SyL 3 (XI, 901). Equitable right p^fected good against world.
Approved in M'Cune v. Essig, 118 Fed. 278, holding patent issued
to widow of homestead settler, she making final proof, conveys
land to her absolutely, no interest therein passing by inheritance to
husband's children.
Syl. 4 (XI, 901). Executive department decisions greatly respected.
Approved in King v. M' Andrews, 104 Fed. 438, holding interpre-
tation given to laws regulating disposal of public lands by land
department, vested with the disposal, is entitled to great respect.
Syl. 5 (XI, 902). Water location unafTects lawful riparian occu-
pancy.
Approved in Lone Tree Ditch Co. v. Cyc. Ditch Co., 15 S. Dak.
522, 91 N. W. 353, holding riparian rights of pre-emptor of public
lands as against parties attach at time of settlement, not date of
final proof. See 81 Am. St Rep. 495, note.
Distinguished in Senior v. Anderson. 138 Cal. 722. 72 Pac. 851.
holding water originally appropriated by one for use on his laud
133 U. S. 553-578 Notes on U. S. Reports. 1198
became appurtenant thereto, and right being divided, several rights
became appurtenant to tracts conveyed.
133 U. S. 553-565, 33 L. 740, SEARL T. SCHOOL DISTRICT LAKE
COUNTY.
Syl. 2 (XI, 903). Eminent domain is inseparable from sovereignty.
Approved in Zehnder v. Barber Asphalt Pav. Co., 106 Fed, 106,
holding special assessments for street improvements, prescribed by
Ky. Stat, §8 2S32-2839, violates Fifth and Fourteenth Amendments
to Federal Constitution.
133 U. S. 566-578, 33 L. 683, ST. LOUIS. ETC.. RY. T. JOHNSTON.
SyL 1 (XI, 903). Indorsed draft for collection confers title.
Approved in Peters Shoe Co. v. Murray, 31 Tex. Civ. 262, 71
S. W. 978, holding bank becoming insolvent after sending draft
and before same was received by plaintifT, latter*s relation to bank's
assignee was that of creditor and debtor only.
SyL 2 (XI, 903). Draft for collection, bank no property.
Approved in Fortiere v. Delgado, etc., Co.. 122 Fed. 606. holding
check drawn against special fund operated as an equitable assign-
ment of so much of the special fund as was necessary for their
payment; Hutchinson v. Le Roy, 113 Fed. 209, holding original
pledgor, not knowing that bankrupt repledged his stock until filing
preferred creditor's claim, was not precluded reaching fund in
trustee; City of Philadelphia v. Eckels, 98 Fed. 487, holding title
to checks and drafts deposited in bank for credit to depositor's
account remains in such depositor until collected. See 86 Am. St.
Rep. 801, note.
Syl. 4 (XI, 904). Insolvent bank guilty fraud receiving deposit.
Approved ij) ilichardson v. New Orleans Coffee Co., 102 Fed.
788, holding money deposited in bank day it closed doors, officers
knowing its insolvency, remains depositor's property, and recover-
able from receiver upon proper showing; Hyland v. Roe, 111 Wis.
365, 87 N. W. 253, holding depositor's petition sufficiently sho-;ved
fraud on part of bank, same asking that receiver return deposit
made when bank was insolvent and known by its president. Sec
86 Am. St. Rep. 794, note.
Syl. 5 (XI, 904). Fraud must be alleged with distinctness.
Approved in Davis v. Butters Lumber Co., 132 N. C. 237, 43 S. E.
652, holding defendant drawing draft, discounted by bank known
by its officers to be insolvent, cannot recover on ground of fraud, his
election being affirmance of the discount; Brainard v. Van D^ke,
71 Vt. 362, 45 Atl. 759, holding party seeking to avoid effect of
alleged accord and satisfaction for fraud, facts and circumstances
constituting fraud must be set forth; University v. Snyder, 100 Vn.
580, 42 S. E. 342, holding though subcontractor be entitled to dis-
affirm contract furnishing material, general contractor being in-
1190 Notes on U. S. Reports. 133 U. S. 571^-610
solvent, falling to repudiate having knowledge constituted a ratifi-
cation.
133 U. S. 579-587. 33 L. 792, GREGORY v. STETSON.
Syl. 2 (XI, 905). Court's adjudication requires party's presence.
Approved In Western Union Tel. Co. v. Pennsylvania R. R. Co.,
120 Fed. 383, holding telegraph company using all property of
another under lease terminable on notice at will of either party,
lessor necessary party in determining contract with a railroad;
Moore v. Jennings, 47 W. Va. 188, 34 S. B. 796, holding where
proper parties are not properly before the court, the decree will be
reversed and cause remanded for further proceedings.
133 U. S. 587-595, 33 L. 784, LOUISVILLE, ETC., RY. T. MISS-
ISSIPPI.
Syl. 1 (XI, 905). Statute constitutional separating negro passen-
gers within State.
Approved in The Roanoke, 187 U. S. 198, 28 Sup. Ct 494, 47 L.
774, holding 2 Ball. Code & Stat. Wash., §§ 5953, 5954, creating pre-
ferred lien on ocean-going vessels owned in other States, Is inter-
ference with exclusive Jurisdiction of admiralty; Chesapeake & O. R.
R. Co. V. Kentucky, 179 U. S. 391. 393, 395, 45 L. 246, 247, 21 Sup. Ct
10?, 103, holding Ky. Stat 1892, $ 1, requiring separate coaches for
white and colored passengers, applies only to transportation within
State and Is binding on Federal Supreme Court; Ohio Valley Ry.
V. Lander, 104 Ky. 445, 454, 47 S. W. 348, 351, holding Ky. act 1892,
(*' Separate Coach Law '*), requiring railroad companies to assign
white and colored passengers to separate coaches, does not violate
Fourteenth Amendment Federal Constitution.
Syl. 2 (XI, 905). Federal courts follow State's constitutional
interpretation.
Approved In Clarksburg, etc., Co. v. Clarksburg, 47 W. Va. 746,
35 S. E. 996, holding highest State court's decision in the construc-
tion of its statutes controls decision of Federal courts, no Federal
question being involved.
133 U. S. 595-610, 33 L. 779, ASPINWALL v. BUTLER.
Syl. 2 (XI, 906). National bank's act binds previous subscriber.
Approved in Scott v. Deweese, 181 U. S. 214, 45 L. 828, 21 Sup. Ct.
589, holding holder stock certificates in national banking associa-
tion cannot escape liability as stockholders :o creditors, under
U. S. Rev. Stat, § 5151, without compliance with act May 1, 18SC;
Bailey v. TiUlnghast 99 Fed. 810, holding couiutroller's certificate
authorizing increase of capital stock of national nank conclusive of
such In favor of public and against the subscribers; Gettysburg
Bank v. Brown, 95 Md. 387, 52 Atl. 976. 93 Am. St Rep. 347, hold-
ing where increase of shares by change of charter is regardiKl
133 U. S. G10-02G Notes on U. S. RoporU. 1200
original stock, sbarebolders not liable to corporation creditors,
stoclL not all being subscribed for.
133 U. S. 610-626, 33 L. 667. KELLER t. ASHFORD.
Syl. 8 (XI, 907). Mortgagee cannot legally enforce grantee's
assumption.
Approved in Johns T. Wilson, 180 U. S. 447, 45 L. 617, 21 Sup. Ct
447, holding grantee by deed assuming mortgage obligation is per-
sonally liable for any deficiency after proceeds of land have l>een
applied, in direct action in mortgagee's name; Central Electric Co.
V. Spnigue Elecitric Co., 120 Fed. 926, holding indirect Interest Id
undertaliing by defendant to pay third person's debts, not sufQcient
privity entitling creditor to maintain action at law thereon; Hud-
son V. Wood, 110 Fed. 769, holding creditors' bill Federal court
against Judgment debtors and their alleged debtor is multifarious
against latter, praying for discovery and uniting equitable and legal
demands; Goodyear Shoe Machinery Co. v. Dancel, 119 Fed^ 695,
holding agreement by assignee to contract In assuming assignor's
obligations does not make him party to contract permitting being
sued at law by other party; New York Security, etc., Ca v. Louis-
ville, etc., R. R. Co., 97 Fed. 232, holding ofTer of exchange railroad
bonds contemplated could not be accepted by holders of outstand-
ing bonds until communicated for acceptancy by act of companies;
Opie V. Pacific Invest. Co., 26 Wash. 513, 67 Pac. 234, holding
surety on note not fiduciary to payee, being obligated to disclose
facts relative to value of such note, or of the security thereof.
Distinguished in Bain v. Atlcins, 181 Mass. 245, 63 N. E. 415
02 Am. St. Rep. 414, holding fund paid master under policy insur-
ing him against liabilities for injuries to employees not a trust fund,
no privity existing between insurer and employee.
Syl. 9 (XI, 907). Mortgagee may equitably enforce grantee's
agreement.
Approved in Johns v. Wilson, 180 U. S. 448, 45 L. 617, 21 Sup.
Ct. 448, holding second foreclosure of mortgage may be had against
vendee, where conveyance was fraudulent and withheld from record,
same not linown at first suit; Barker v. Pullman's Palace Car Co.,
124 Fed. 566, holding; purchasing company agreeing to assume all
obligations of selling company, latter thereupon dissolving, party
to existing contract with selling company may have reformation;
Swift, etc., Co. V. Kortrecht, 112 Fed. 714, holding borrower giving
trust deed to surety on note to lender, lender is subrogated to In-
demnity rights of surety under deed; Fairfield v. Rural, etc., Dlst.,
Ill Fed. 110, holding school district subsequently subdivided under
Iowa statute, no privity of contract existed, and suit in Feder.nl
court must be in equity; Everett v. Independent School Dist., 109
Fed. 701, holding excessive bond issue, indebtedness subsequently
sut>divided Into various districts, stockholder's remedy is in equity,
1201 Notes on U. S. Reports. 133 U. S. 626-670
no privity of contract existing between him and new districts;
Farmers' Loan, etc., Co. v. Penn Plate Glass Co., 103 Fed. 164,
holding acceptance of conveyance of mortgaged property " subject
to the mortgage " can have no greater effect at most than grantee's
express contract to pay mortgage debt; Beacon Lamp Co. v. Trav-
elers* Ins. Co., 61 N. J. Eq. 62, 47 Atl. 581, holding insurance com-
pany contracting to indemnify employees injured by assured*s neg-
ligence. Judgment recovered against assured may be enforced
against insurer in equity, notwithstanding assured's insolvency;
Green v. McDonald, 75 Vt 97, 53 Atl. 333, holding where one, by
contract with debtor, assumes payment of debt, falling as agreed,
debtor may sue him for the amount thereof.
133 U. S. 626-655. 33 L. 706, SHEPHERD v. PEPPER.
SyL 8 (XI, 909). Debtor insolvent creditor may have receiver.
Approved in H. B. Claflln Co. v. Furticlc, 119 Fed. 431, holding
equity Federal court has power on preliminary application, without
notice, to take mortgaged chattels into custody to protect rights
of parties; Cox v. Wall, 99 Fed. 550, holding, where necessary, a
receiver should be appointed to take possession and control of prop-
erty, and sell it, depositing, proceeds in designated depository.
133 U. S. 655-660, 33 L. 770, CULVER v. UTHI.
Syl. 1 (XI, 909). Recorded transcript proves location and delivery.
Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co.,.4P^
Fed. 42, holding court cannot determine rights of parties in land,
title to which remains in United States, contest between the parties
still pending in land department
Syl. 3 (XI, 909). Military warrant inapplicable to swamp land.
Approved in Olive Land, etc., Co. v. Olmstead, 103 Fed. 574,
holding location of oil placer mining claim, no discovery of oil being
made, vests locators with no title against government, nor those
subsequent by claiming from government
133 U. S. 660-670, 33 L. 772, PALMER v. McMAHON.
Syl. 3 (XI, 910). Corporation treated unlike bank not discrimina-
tion.
Approved In German-American Sav. Bank v. Council, etc., 118
Iowa, 86, 91 N. W. 830, holding bank purchasing and holding
nontaxable government bonds as part of its capital stock did not
entitle bank to deduct that amount from assessment of shares.
Syl. 4 (XI, 910). " Moneyed capital " applies to banks.
Approved in Illinois Nat Bank v. Kinsella, 201 III 38, 66 N. E.
340, holding Rev. Stat U. S., S 5219 (U. S. Comp. Stat 1901, p. 8502),
regarding assessing " moneyed capital," means money invested ia
banking institutions other than national banks.
Vol. II — 7G
133 U. S. 670-607 Notes on U. S. Reports. 1202
SyL 6 (XI« 910). Appropriate notice equivalent to dne process.
Approved In Lander v. Mercantile Nat Bank, 186 U. S. 469, 46
L. 12.VI. 22 Sup. Gt 913, holding Ohio Rev. Stat., $ 2808, designating
time and place of meeting of State board of equalization, is suf-
ficient notice to any bank, though business be postponed; Carson
V. Sewer Commissioners of Brockton, 182 U. S. 401, 45 L. 1154, 21
Sup. Ct. 801, holding ordinance imposing annual sewer rental, the
use being optional with taxpayers, who pay only by using, not
depriving of property without due process; Nevada Nat. Bank v.
Dodge, 119 Fed. 63, holding notice required given to bank of assa^-
ments of shares of its stockholders is sufl^cient notice to them in
connection with Pol. Code Cal., | 3609; In re Meggett, 105 Wis.
296, 81 N. W. 421, holding Rev. Stat, § 3479 (Wis.), providing lor
commitment to prison for disobeying order, not depriving of due
process where party could have been heard on Judicial det^mina-
tion.
133 U. S. 070-697, 33 L. 696, PETERS v. BAIN.
SyL 2 (XI, 911). Federal courts adopt State's construction of
fraud.
Approved in Robinson, etc., Co. v. Belt, 187 U. S. 46, 23 Sup. Ct,
18, 47 L. OS. holding validity of assignment for benefit of creditors
regarding preferences given is determinable by State law as in-
terpreted by its highest courts.
Syl. 3 (XI, 911). Virginia trust deed not presumed fraudulent.
Approved In Nappanee Canning Co. v. Reid, etc., Co., 159 Ind.
628, G4 N. E. 875, 1115, holding insolvent private corporation may
prefer its directors, or creditors on whose claims directors are
sureties, though their votes are necessary therefor and creditors losa
thereby; IVters Shoe Co. v. Murray, 31 Tex. Civ. 261, 71 S. W. 97S,
holding where relation between plaintiff and defendant's assignor
was merely that of debtor and creditor, plaintiff had no claim to
money received by defendant as assignee.
Sji. 4 (XI, 911). Debtor may prefer by trust deed.
Approved in Kemp v. National Bank of The Republic, 109 Feil.
50. holding, under Va. Laws 1890, debtor, though insolvent, could
prefer certain creditors, if done In good faith for a valid con-
sideration.
Syl. 14 (XI, 913). Property confusion gives Injured party priority.
Approved in Terre Haute & I. R. R. Co. v. Cox, 102 Fed. 83G,
holdinj; niiiijrllng funds does not destroy the equity entirely, but
converts it into a charge upon entire amount, injured party having
priority over other creditors.
Syl. 15 (XI, 913). National bank receiver follows bank*s money.
Approved in New Farmers' Bank's Trustee v. Cockrell, 106 Ky.
588, 51 S. W. 5, holding fund held by bank as trustee, mingled with
1203 Notes on U. S. Reports. 134 U. S. 1-21
general bank assets, beneficiaries of fund have no Hen upon bank
assets therefor; Bank Comrs. v. Trust Co., 70 N. H. 548, 49 Atl.
120, holding where claimant's money or property misapplied by in-
solvent institution cannot be specifically traced, no trust is created
giving preference over other creditors; Lincoln v. Morrison, 64 Nebr.
832, 90 N. W. 909, holding city having charge upon the whole in any
form in which bank might keep it, charge remained good against
the warrants as part of the whole. See 86 Am. St Rep. 803, note.
Syl. 16 (XI, 914). Directors* creditors prevent receiver's following
property.
Approved in In re Mulligan, 116 Fed. 718, holding bankrupt hav-
ing possession of and selling property of another, latter cannot
trace fund where most of larger sum, Including proceeds, was lost
by broker's speculation.
133 U. S. 697-709, 33 L. 727, BOESCH v. GRAFF.
Syl. 3 (XI, 914). Patent cannot be sold without license.
Approved in Edison Phonograph Co. y. Pike, 116 Fed. 864, hold-
ing licensee contracting not to sell patent less than certain price,
nor to sell without purchaser signed similar agreement, purchaser
acting otherwise knowingly, infringes patent.
Syl. 5 (XI, 905). Master's report is merely advisory.
Approved in Johnson v. Gallegos, 10 N. Mex. 4, 60 Pac. 72, holding
court, of Its own motion, may make additional findings to those of
master, if based upon evidence, and proper determination is thereby
assisted.
CXXXIV UNITED STATES.
134 U. 8. 1-21, 33 L. 842, HANS v. LOUISIANA,
Syl. 1 (XI, 916). Jurisdiction of suit against State.
Approved in Illinois Cent. R. R. Co. v. Adams, 180 U. S. 38, 15
L. 414, 21 Sup. Ct. 255, and Bell v. Mississippi, 177 U. S. 693, 44 L.
945, 20 Sup. Ct 1031, both following rule; Kansas v. Colorado, la^i
U. S. 140, 46 L. 844, 22 Sup. Ct 557. holding right of Colorado to
deprive Kansas of water from Arkansas river is controversy between
States; Missouri v. Illinois, 180 U.' S. 233, 45 L. 509, 21 Sup. Ct.
341, holding construction of public works by public corporation,
which injures health of citizens of another State is basis fur action
in Supreme Court; Smith v. Reeves, 178 U. S. 446, 44 L. 1145, 20
Sup. Ct 923, holding action against State treasurer to compel him
to refund money to taxpayers is action against State; Louisiana v.
Texas, 176 U. 8. 15, 44 L. 353, 20 Sup. Ct 256, holding enforcement
of quarantine laws by health officer to damage of citizens of another
\M U. 8. 22-40 Notes on U. S. ReporU. 120I
State is not controversy between citizens of different States; Mo-
rend Copper CJo. v. Freer, 127 Fed. 203, holding suit by a West Vir-
ginia corporation to restrain the attorney-general from Instituting
suit to forfeit corporation's charter was suit against State; Farmers*
Nat Bank v. Jones, 105 Fed. 464, holding suit against officers of
State to compel them to issue evidence of debt Is action against
States; dissenting opinion in South Daliota v. North Carolina, 192
U. S. 342, 24 Sup. Ct 275. 284-286, majority holding Federal Supreme
Court has original Jurisdiction over suit by South Dakota against
North Carolina to compel payment of bonds issued by latter State.
(XI, 916). Miscellaneous.
Cited in Giles v. Harris, 189 U. S. 488, 23 Sup. Ct 642, 47 L. 912.
holding equity will not compel county board of registrars to enroll
negro on voting list under Ala. Const, art 8; Prout v. Starr, 188
U. S. 543, 23 Sup. Ct 400, 47 L. 587, holding suit against Nebraska
board of transportation for purpose of fixing minimum railroad
rates is not suit against State; Union Trust Co. v. Steams, 119
Fed. 791, holding suit against attorney-general to enjoin him from
Instituting criminal prosecution Is action against State; Salem
Mills Co. y. Lord, 42 Or. 94, 69 Pac. 1037, holding court will not
look beyond nominal parties to see If action Is against State.
134 U. S. 22-31. Not cited.
134 U. S. 31-40, 33 L. 801. BILBNBUCKBR ▼. PLYMOUTH
COUNTY.
Syl. 1 (XI, 917). Application of constitutional amendments.
Approved in Williams v. Hert, 110 Fed. 168, holding Const U. S..
Amd. arts. 5 and G, relating to trials in criminal cases, apply only
to Federal courts; Mischer v. State, 41 Tex. Cr. 221, 53 S. W. 628.
holding act June 18, 1897, Tex., relating to prosecutions for rape,
does not violate Sixth Amendment of Federal Constitution.
Syl. 2 (XI, 917). Jury trials in Federal courts.
Approved in Tlndall v. Nisbet 113 Ga. 1133, 39 S. E. 453, holding
in action against receiver of insolvent debtor for misappropriation
of funds, he is not entitled to Jury trial.
Syl. 3 (XI, 917). Punishment for contempt
Approved in Ex parte Strieker, 109 Fed. 148, holding person sum-
marily adjudged guilty of contempt not committed in presence of
court and imprisoned for nonpayment of fine is deprived of liberty
without due process of law; In re Reese, 107 Fed. 946, holding per-
son not party who interferes with order of court may be punished
as for a contempt; Ripon Knitting Works v. Schreiber, 101 Fed.
813, holding refusal of bankrupt to surrender property to trustoe
under oruer of court is punishable as for contempt; In re Perkins.
100 Fed. 953, holding Rev. Stat, § 725, relating to contempt, applies
only to Circuit and District Courts; State t. Hanaphy, 117 Iowa,
1205 Notes on U. S. Reports. 134 U. S. 41-68
19, 90 N. W. 601, holding sale of intoxicating liquors in Iowa, by
order to manufacturer in Illinois, does not subject salesman who
made the sale to prosecution under Iowa Code, § 23S2, prohibiting
acceptance of order for sale of liquor; State v. Shepherd, 177 Mo.
239, 76 S. W. 90, holding article published in newspaper attacking
Supreme Court of Missouri was scandalous and publisher guilty
of contempt of court; In re Meggett, 105 Wis. 293, 297, 81 N. W. 420,
422, holding action of court in ordering money collected In fore-
closure proceedings in vdolation of injunction refunded cannot be
reviewed on habeas corpus.
134 U. & 41-45, 33 L. 833, McCORMICK, ETC., MACH. CO. v.
WALTHBRS.
Syl. 3 (XI, 918). Jurisdiction — Diverse citizenship.
Approved in Gale v. Southern Bldg., etc., Assn., 117 Fed. 734,
holding bill, under act Congress, March 3, 1875. as amended, relating
to place of trial, foreign corporation may be sued at residence of
plaintiff where service has been made under Code Va. 1887, § 1104;
Bowers v. Atlantic G. & P. Co., 104 Fed. 889, holding act March 3,
1887, providing for Jurisdiction of infringement cases, limited Ju-
risdiction to districts mentioned; Witworth v. Illinois Cent. Ry. Co.,
107 Fed. 560, holding defendant, by appearing and filing petition and
bond for removal of cause to Federal court, submits to Jurisdiction
of State court
134 U. S. 45-47, 33 L. 871, RICHMOND, ETC., R. R. v. THOURON.
Syl. 1 (XI, 91,9). Order remanding cause — Appeal.
Approved in German Nat. Bank v. Specliert, 181 U. S. 407, 408,
409, 45 L. 926, 21 Sup. Ct. 689, holding decision of Circuit Court of
Appeals, reversing decree of Circuit Court, is not appealable under
act of Congress March 3, 1891, chap. 517; Cole v. Garland, 107 Fed.
761, holding, under 24 Stat 553, chap. 373, § 6, relating to appeals
from order remanding cause to State court, writ of error from
Circuit Court, remanding cause to State court, will be dismissed;
Rio Grande W. Ry. v. Power Co., 23 Utah, 33, 63 Pac. 997. hold-
ing State Supreme Court has no power to review order of Federnl
court declining Jurisdiction and remanding cause.
134 U. S. 47-68, 33 L. 805, ORMSBY v. WEBB.
Syl. 5 (XI, 920). Probate of will — Appeal.
Approved in Kenaday v. Sinnott, 179 U. S. 613, 45 L. 343, 21 Sup.
Ct 235, holding Jurisdiction over residue of personalty in hands of
executrix can be exercised by Supreme Court of District of Co-
lumbia, sitting as Orphans' Court, under Md. testamentary act,
January 26, 1899, chap. 101.
134 U. S. 68-110 Notes on U. S. Reports. 12(X;
(XI, 919). Miscellaneous.
Cited in Western Union Tel. Co. v. Morris, 105 Fed. 56, holding
not error to refuse to give instructions in language of counsel,
when substance is in general charge.
134 U. S. 68-84. 33 L. 818, CHENEY v. LIBBY.
Syl. 1 (XI, 920). When time essence of contract.
Approved in Kentucky Distilleries*, etc., Co. v. Warwick Co., lOD
Fed. 282, 284, holding, in contract for sale of distillery property
where quantity of whiskey constituted two-thirds of the value, time
was of essence of contract; Scanuell v. American Soda Fountain Co.,
161 Mo. 621, 61 S. W. 892, holding where defendant objected to
plaintifTs title on several grounds which defects were cured, on sub-
sequent objection that small piece was not included which was
thereupon purchased by plaintiff, he was entitled to specific per
formance for exchange of land; Jewett v. Black, (JO Nebr. 180, Sr
N. W. 377, holding time will be regarded of essence of contract
when so intended by parties.
Syl. 2 (XI, 920). Specific performance.
Approved in Cleaver v. Taylor, 98 Fed. 907, holding under facts
of this case, complainant was entitled to full performance of con-
tract to convey land.
Syl. 7 (XI, 920). Status of coUecting bank.
Approved in White v. Kehlor, 85 Mo. App. 562, holding when
maker of negotiable note pays it to any person other than owner,
he must show person receiving payment was agent of owner.
(XI, 920). Miscellaneous.
Cited in Rickard v. Taylor, 122 Fed. 935, holding when contract
for sale of timber is placed In bank with instructions to deliver
same on payment within specified time, deposit after lapse of time
specified constituted no contract; Blanton v. Kentucky Distilleries
& Warehouse Co., 120 Fed. 349, holding tender of deed by vendor
is not necessary to maintain action for specific performance when
purchaser had notified him that he would not comply with contract;
Burroughs v. Jones, 79 Miss. 219, 30 So. 606, holding payment of
first of four deferred payments and valuable improvements on land
of purchaser will entitle purchaser to specific performance when he
makes last payment shortly after it became due and before for-
feiture declared.
134 U. S. 84-99. Not cited,
134 U. S. 99-110, 33 L. 825, CRENSHAW v. UNITED STATES.
Syl. 1 (XI, 921). Property in office.
Approved in Taylor v. Beckham (No. 1), 178 U. S. 576, 44 L.
1200, 20 Sup. Ct 900, holding decision by State tribunal against
1207 Notes on U. S. Reports. 134 U. S. 110-125
claimant to office of governor does not deprive him of any right
to property within meaning of United States Constitution, Four-
teenth Amendment; Duer v. Dashlell, 91 Md. 667, 47 Atl. 1041,
holding, under various acts of Maryland under which board of school
commissioners were authorized to appoint secretary for two years,
appointment of new board by governor would not continue secre-
tary in office for two years from his appointment by old board;
Gattis V. Griffin, 125 N. C. 336, 34 S. B. 430, holding member of
board of education has property right therein which cannot be
talLen from him by amendment to act; dissenting opinion in Tay-
lor V. Vann, 127 N. C. 249, 37 S. E. 265, majority holding court will
not determine merits of case on appeal from Judgment in action
for office when term of office expires pending appeal; dissenting
opinion in White v. Worth, 126 N. C. 610, 36 S. B. 144, majority
holding, under Laws N. G. 1899, chief inspector was entitled to
salary provided by chapter 19 thereof; dissenting opinion in Abbott
V. Beddingfield, 125 N. G. 278, 34 S. E. 418, majority holding office
of railroad commission was not abolished by Acts 1899, chaps.
164, 506 N. C. See 94 Am. St Rep. 380, note.
(XI, 921). Miscellaneous.
Gited in McConnell v. Arkansas Brick, etc., Co., 70 Ark. 591,
592, 69 S. W. 562, 568, 569, holding suit may be brought against
penitentiary commissioners who have canceled a valid contract
for convict labor; Willey v. St Charles Hotel Co., 52 La. Ann. 1593,
28 So. 187, holding creditor having two funds out of which he
may satisfy his demand may be compelled to exhaust first that
one to which the other creditors have no access.
134 U. S. 110-116, 33 L. 857, GUNTHER v, LIVERPOOL INS. CO.
Syl. 7 (XI, 922). Directing verdict
Approved in Mitchell v. Potomac Ins. Co., 183 U. & 48, 46 L.
77, 22 Sup. Gt 24, holding lighted match is not a fire within mean-
ing of insurance policy excluding liability for damages caused by
explosion; Ragsdale v. Southern R. R. Co., 121 Fed. 927, holding
evidence in action against railroad for burning building on ground
that fire was communicated from locomotive was insufficient to
sustain Judgment; Norwaysz v. Thuringia Ins. Co., 204 111. 344, 68
N. E. 555, holding provisions that insurance policy would be void
if risk was increased or gasoline kept on premises were separate
clauses; Ketterman v. Railroad Co., 48 W. Va. 613, 37 S. B. 686,
holding mere fact that accident happened on railroad is not sufficient
between employer and employee to raise prima facie case of neg-
ligence against company.
134 U, S. 117-125. Not cited.
134 U. 8. 120-176 Notes on U. S. Reports. 12U8
134 U. S. 12G-13G, 83 L. S20, BRTAN ▼. KALES.
Syl. 2 (XI, 023). Bar by laches. •
Approved In Kessler ▼. Emsley & Ck>., 123 Fed. 561, boldlng de-
lay of four years by stockholder In bringing action against corpo-
ration to set aside conveyance is unreasonable.
134 U. S. 136-150, 83 L. 8G3. WIGHT, PETITIONER.
Syl. 1 (XI, 023). Habeas corpus.
Approved in dissenting opinion in Misklmmins ▼. Shaver, 8 Wyo.
401, 58 Pac. 434, majority holding where one causing arrest of
two others for obtaining money under false pretenses refused to
testify on ground that evidence might incriminate him is not guilty
of contempt
SyL 2 (XI, 023). Correcting omissions by clerk.
Approved in Western Dredging, etc.. Go. v. Heldmaier, 116 Fed.
182, holding when at the expiration of time allowed by Judge for
settling bill of exceptions he was absent the bill may be settled
when the Judge again sits in the district; Lynah ▼. United States,
106 Fed. 123, holding Circuit Court has power to supply finding of
fact supported by evidence which was omitted; State ▼. Watkins,
7 Idaho, 38, 30, 50 Pac. 1100, holding court has authority to amend
record where through inadvertence it failed to show defendant
was present at receiving of verdict in felony case; State ▼. Griffin,
4 Idaho, 401, 40 Pac. 61, holding court has powtf to amend its
minutes during term; Johnson v. Gelhauer, 150 Ind. 277, 64 N. E.
857, holding where appellant, under supposed authority of Acts of
1800-1001, withdrew long-hand manuscript from reporter court
would consider other questions on appeal; Ackerman v. Acker-
man, 61 Nebr. 74, 84 N. W. 590, holding court has power to amend
or correct its record at subsequent term; Vance v. Railway, 53
W. Va. 341, 44 S. E. 4G2, holding interlocutory order omitted to
be entered by negligence of clerk may be ordered entered nunc
pro tunc.
(XI. 023). Miscellaneous.
Cited in In re Welty, 123 Fed. 126, holding court had power nunc
pro tunc to insert requirement for hard labor in sentence; Gorham
V. Broad River Tp., 113 Fed. 83, upholding leave to amend petition
for writ of error by changing " defendant " for " plaintiff;" Harris
V. Jennings, 04 Nebr. 82, 89 N. W. 620, holding in deciding motion
for nunc pro tunc order court may act upon any satisfactory
evidence.
134 U. S. 150-160. Not cited.
134 U. S. 160-176, 33 L. 835, MEDLEY. PETITIONER.
Syl. 3 (XI. 920). Punishment of crime — Statute in force.
Approved in In re Jack Davis, 6 Idaho. 770, 771, 50 Pac. 545,
holding act February 18, 1800, and 150 Rev. Stat Idaho, relating to
1209 Notes on U. S. Reports. 134 U. S. 176-198
time, place and manner of inflicting death penalty, are not ap-
plicable to past offenses; Storti v. Case, 180 Mass. 59, 61 N. E.
760, holding Stat 1901. chap. 520, § 1, Mass., relating to custody
of prisoners before execution did not affect prisoner confined at
time of amendment. See 87 Am. St Rep. 201, note.
(XI, 924). Miscellaneous.
Cited in Ex parte Baez, 177 U. S. 389, 44 L. 817, 20 Sup. Ct 677,
holding leave to file writ of habeas corpus will be denied when
restraint will terminate before return.
134 U. S. 176-178. Not cited.
134 U. S. 178-198, 33 L. 872, JEFFERIS v. BAST OMAHA LAND
CO.
Syl. 1 (XI, 926). Rights of riparian owner.
Approved in Ocean City Assn. v. Shriver, 64 N. J.L.557, 46 Atl. 692,
holding if plaintiff was owner of land on line of ordinary high water
it was the owner of land acquired by accretion.
Syl. 5 (XI, 927). Shifting water line as boundary.
Approved In Stockley v. Cissna, 119 Fed. 822, 823-833, holding
sudden cutting off of new channel by Mississippi river by which
thousands of acres of land formerly on eastern bank is left, on
western bank did not change boundary between Tennessee and
Arkansas; Towell v. Etter. 69 Ark. 39. 40. 63 S. W. 54, holding
accretion of suflicient elevation above water passed with convey-
ance of land; Albany Bridge Co. v. The People, 197 111. 204, 04
N. E. 352, holding where island in Mississippi river in IlUnois, but
erroneously surveyed as part of Iowa and patented as in Iowa
land office, which patent was ratified by Congress, the survey
did not operate to change boundaries of town of Illinois, but made
patent legal; Carr v. Moore, 119 Iowa, 157, 93 N. W. 54, holding
as under laws of Iowa title from Federal government to lands
abutting on meandered waters extends only to high-water mark,
the rights of the owner of such land cannot on the drying up of
such water be extended beyond the boundaries fixed by the pat-
ent; East Omaha Land Co. v. Hanson, 117 Iowa, 97, 101, 90 N.
W. TOG, holding an island which springs up in a stream is accre-
tion to soil in bed of river and not to land of riparian owner;
Penker v. Canter, 62 Kan. 368, 63 Pac. 619, holding meandered
lines along shore of navigable river represent border line of stream,
and show water-course and not meander line is boundary; Wid-
decombe v. Chiles, 173 Mo. 205, 73 S. W. 447, 96 Am. St Rep. ,
holding when river worked away certain unpatented land and
built it to defendant's land, plaintiff took no title to the land
thus added to defendant's land by patenting the land half-sect3ou
which originally contained the land worked away; De Long y. Olsen,
i?A U. S. lOS-240 Notes on U. S. Reports. 1210
G3 Nebr. 332. 88 N. W. 514, holding where official plat of emrey
of land shows river as one boundary of lot a subsequent patent
describing it by number and refers to plat, and deeds describing
it by number, pass all accretions to respective dates; Hinckley v.
Peay, 22 Utah. 26. 60 Pac. 1013. holding ownership of patented
lands to meander line of lake carries right to all lands formed by
accretions below such lands to water's edge; Chesapeake, etc..
II. R. Co. V. Walker, 100 Va. 84, 40 S. E. 638, holding, under facts
and acts cited plaintiff acquired fee in property and not mere ease-
ment; Washougal Transp. Co. v. Dalles, etc., Nav. Co., 27 Wash.
407. 68 Pac. 77, holding United States grants of public lands bor-
dering on navigable rivers pass title to ordinary high-water mark
regardless of meander line.
134 U. S. 108-206, 33 L. 887, HILL v. MEMPHIS.
Syl. 2 (XI, 928). Power of municipal corporations.
Approved in Atkin v. Kansas, 191 U. S. 221, holding Kansas
eight-hour law is valid; National Life Ins. Co. v. Mead, 13 S. Dak.
44. 82 N. W. 79, 79 Am. St Rep. 879, holding, under Laws 1890.
chap. 37, art 5, { 1, S. Dak., relating to issuance of city
bonds, city council has power after election authorizing it to issue
bonds to fund city's floating Indebtedness.
134 U. S. 206-229, 33 L. 879, TRACY v. TUPPLY.
Syl. 3 (XI, 928). Modiflcation of statute.
Approved in (Columbia Wire Co. v. Boyce, 104 Fed. 174, holding
act June 0, 1900, relating to appeals to Circuit Court of Appeals,
was valid and repealed act of 1895 (28 Stat 666); Lloyd v. Su-
preme Lodge K. of P., 98 Fed. 71. holding provision in life in-
surance policy making it subject to rules which might thereafter
be enacted is valid, but cannot work forfeiture of policy or dimin-
ish amount recoverable; The People v. Ames, 27 Colo. 129, 60 Pac.
348, holding Colo. Laws 1899, p. 158, relating to boards of
equalization, repealed Laws 1891, p. 294, S 5; Sefton v. Board, etc.,
100 Ind. 358, 66 N. E. 891, holding act March 11th, Acts 1889, p. 433,
chap. 234, and act March 6, 1899, p. 468, chap. 206, Ind., provide
two methods of improving highway; State v. Davis, 129 N. C.
573, 40 S. B. 113, holding Acts 1901, chap. 501, relating to road
laws, repealed Acts 1899, chap. 581.
134 U. S. 230-232. Not cited.
134 U. S. 232-240, 33 L. 892, BELL'S GAP R. R. T. PENNSYL-
VANIA.
Syl. 3 (XI, 929). Construction of Fourteenth Amendment
Approved In Travelers' Ins. Co. v. Connecticut 185 U. S. 372,
46 L. 954, 22 Sup. Ct. 676, holding Conn. Pub. Acts 1897, chap. 153,
S 2, providing for assessment of stock owned by resident stock-
1211 Notes on U. S. Reports. 134 U. S. 232-240
holders In domestic corporations, make no unconstitutional dis-
crimination; Connolly v. Union Sewer Pipe Co., 184 U. S. 502, 568,
46 L. 690, 693. 22 Sup. Ct 440. 443, holding discrimination in favor
of agricultural products in hands of producer made by 111. trust
act June 20, 1893, exempting them from provisions which pro-
hibit recovery of price of article sold by any trust, denies equal
protection of the law; Florida C. & P. R. R. Co. v. Reynolds, 183 U.
a 476, 478, 46 L. 286, 287, 22 Sup. Ct. 178, holding railroads are
not denied equal protection of laws by Fla. Laws 1885, chap. 3558.
requiring comptroller to assess taxes for 1879, 1880 and 1881 upon
property which escaped for those years without providfing for
taxation on other property similarly situated; Cotting v. Godard,
183 U. S. 106, 46 L. 107, 22 Sup. Ct 41, holding stockyard company
is denied equal protection of laws by Kan. act March 3, 1897,
limiting charges to be made by that corporation without limiting
charges of oth.er similar corporations doing smaller business;
American Sugar Refining Co. v. Louisiana, 179 U. S. 94, 45 L. 104,
21 Sup. Ct. 45, holding refiner of sugar is not denied equal protection
of law because La. Const. 1879, art 206, imposes license on per-
sons engaged in such business, but exempts those who refine on
their own plantations; National Bank v. Mayor, etc., of Baltimore,
100 Fed. 32, holding Rev. Stat 5219, providing for taxation of
shares of national bank, was to prevent discrimination against
banks; State v. Travelers' Ins. Co., 73 Conn. 269, 47 Atl. 304,
holding Gen. Stat Conn., { 3916, providing that insurance com-
panies shall pay 1% per cent on market value of their stock
held by nonresidents is not void; State v. Hammond Packing Co.,
110 La. 186, 34 So. 370, holding taxation of persons of other States
doing business in this State is not regulation of commerce: State
V. Bixman, 162 Mo. 39, 62 S. W. 838, holding act May 4, 1899,
Mo., requiring inspection of all beer made in State, but providing
that inspection of all beer for export shall be free, is not discrimi-
nation in favor of all who sell out of State; Knlsely v. Cotterel,
196 Pa. St 635, 46 Atl. 865, holding act May 2, 1899 (Penn.), relat-
ing to tax on retail business, is not in violation of U. S. Const.,
art 9, S 1; State v. Shedroi, 75 Vt 279, 54 Atl. 1082, holding Vt Stat.
4732, providing that peddler without license shall be fined, and
section 4733, exempting soldiers of Civil War who were honorably
discharged, make unjust discrimination.
Syl. 4 (XI, 930). Assessment of property.
Approved in Turpln v. Lemon, 187 U. S. 58, 23 Snp. Ct 23, 47 L.
74, holding, in sales for taxes, all requirements do not have to
be of record; W. C. Peacock & Co. v. Pratt 121 Fed. 777, holding
income tax of Territory of Hawaii (Act No. 20, pp. 31--35, Sess.
Laws 1901), is valid; Mexican Nat R. R. Co. v. Jackson, 118 Fed.
552, holding Laws Tex. 1897, Spec. Sess., p. 14, defining liability
134 U. S. 241-276 Notes on U. S. Reports. 1212
of persons operating railroads, is not unconstitutional, as discrimi-
nating between classes; Peoples' Nat. Bank v. Marye, 107 Fed.
580, holding act Vo. March 6. 1890, providing for taxation of bank
shares, is not invalid under Rev. Stat, i 5219, as to national banks;
State V. Smith, 158 Ind. 557, 558, G3 N. E. 30, holding Acts 1899,
p. 422, § 1 (Ind.), providing for deduction from assessed valuation
of real estate of mortgage is not in violation of Const. U. S.,
amend. 14; Standard Oil Co. v. Spartanburg, 66 S. C. 43. 44 S. E.
379, holding ordinance requiring dealers in oil to pay license of
$250 per year, and exempting dealers handling oil on which license
has been paid, fs unconstitutional; Julien v. Model B. L. etc., Assn.,
116 Wis. 85, 92 N. W. 563, holding Rev. Stat. 1808, S§ 2014. 2015.
giving to certain mortagees priority over other liens filed subse-
quent. Is not void under Const U. S., art 14, § 1.
134 U. S. 241-260, 33 L. 923, DEPINTON v. YOUNG,
Syl. 0 (XI, 932). Adverse possession.
Approved in Hunter v. Eastham, 95 Tex. 653, 69 S. W. 67, hold-
ing recitals in deed that grantor sold all his rights, title and inter-
est in property shows he only sold his interest therein; Power v.
Kltching, 10 N. Dak. 261, 86 N. W. 740, holding, under Laws 1899
N. Dak., chap. 158. relating to adverse possession, claim under
Instrument which constitutes color of title, is sufficient
Syl. 10 (XI, 932). Power coupled with interest
Approved in Garth v. Arnold, 115 Fed. 473, holding, under laws
of Missouri, authorizing sale of interest of minors, power must be
strictly construed; Arnold v. Garth, 106 Fed. 21, holding, under
special act of legislature of Missouri, authorizing sale of land of
minors, the power to sell could not be delegated.
Syl. 11 (XI, 932). Execution sale.
Approved In Nevada Nickel Syndicate v. National Nickel Co..
103 Fed. 300, holding execution sale under act March 3, 1893, S 3.
Is valid after confirmation when all requirements have not been
fulfilkKi; llendryx v. Evans, 120 Iowa, 313, 94 N. W. 854, holding,
under laws of Nebraska, execution sale is not complete until con-
firmed.
134 U. S. 2(50-276, 33 L. 934, HENDERSON BRIDGE CO. v.
McGRATII.
Syl. 1 (XI. 932). Change In contract
Approved in Mobile v. Shea, 127 Fed. 529, holding where construc-
tion of sewer for city was done under written contract, providing
that all disputes should be settled by city engineer, where original
plans are departed from, the decision of engineer is conclusive;
Salt Lake City v. Smith, 104 Fed. 4G6, holding usual stipulation In
contracts with corporations that extra work shall be at price named
In agreement applies to small, extra work as may become necessary
1213 Notes on U. S. Reports. 134 U. S. 276-300'
to completion of structure; Wyandotte, etc., Ry. v. King Bridge
Co., 100 Fed. 206, holding where contractor engaged to construct
bridge between two townships was compelled to do extra work
on account of error in locating abutments by agents of townships,
he was entitled to recover therefor.
134 U. S. 276-290, 33 L. 900, CHICAGO, ETC., RY. v. CHICAGO.
Syl. 1 (XI, 932). Liability of lessee.
Approved in United States Capsule Co. v. Isaacs, 23 Ind. App. 544,
55 N. E. 836, holding, upon consolidation of two corporations, the
new one is liable for debts of consolidated companies to extent
of property turned over; Bertholdt v. Land & Lumber Co.; 91 Mo.
App. 240, holding, upon consolidation of two corporations, the new
corporation must discharge liabilities of the old ones.
(XI, 932). Miscellaneous.
Cited in Haberman v. Kaufer, 00 N. J. Eq. 278, 47 Atl. 51, hold-
ing in action to enforce specific performance of contract for sale
of land in which legatees are defendants, cross-bill filed by defend-
ants denying contract and praying sale of land to pay their legacies
is proper.
134 U. S. 291-296, 33 L. 932, BANIGAN v. BARD.
Syl. 1 (XI, 933). Estoppel of corporation oflBicer.
Approved In Synnott v. Cumberland Bldg., etc., Assn., 117 Fed.
383, holding action of stockholders* meeting, in placing common
stock and Instalment stock on equality, was binding on stockholder
whose proxy wa*s voted at meeting; Hallett v. New England
Roller-Grate Co., 105 Fed. 223, holding nonresident purchaser of
stock in New Hampshire for less than par may recover from cor-
poration amount paid after 'cancellation of his certificate when
he purchased in ignorance of Pub. Stat 1891, chap. 149, { 9. Set»
87 Am. St. Rep. 800, note.
134 U. S. 296-306, 33 L. 905, TOLEDO, ETC., R. R. v. HAMILTON.
Syl. 1 (Xr, 933). Priority of mortgage.
Approved In Guaranty Trust Co. v. Galveston City R. R. Co.,
107 Fed. 324, holding current expenses within reasonable time
before appointment of receiver of insolvent railroad are preferrcMl
to prior mortgage; Illinois Trust, etc., Bank v. Doud, 105 Fed. 140,
holding claim of creditor for money loaned to pay interest upon
prior mortgage debt is inferior to lien of prior mortgage; First
Nat Bank v. Ewing, 103 Fed. 186, holding receiver's certiflcatcH
issued to complete railroad are preferred to prior mortgage; Mary-
land Steel Co. V. Gettysburg, etc., Ry. Co., 99 Fed. 151, holding
debts created in rebuilding property destroyed by fire are not pre-
ferred to prior mortgage; Masterson v. Burnett, 27 Tex. Civ. 375,
66 S. W. 93, holding where deed is executed and mortgage made
lai U. S. aOG-316 Notes on U. S. Reports. 1214
to secure the purchase price as parts of the same transaction, a
prior Judgment against the grantee will not attach to the land.
Syl. 2 (XI, 934). Law part of contract
Approved in King v. Thompson, 110 Fed. 325, holding Rev. Stat
Ohio 1S80, SS 3303-3400, providing that liens for labor and material
shall be preferred to mortgages of railroads, applied to for^gn
corporations, as applied to Judgment for personal injuries.
Syl. 3 (XI, 934). Priority over mortgage.
Approved in Niles Tool Works Co. v. Louisville, etc., Ry. Co.,
112 Fed. 563. holding claim for price of machinery sold to mort-
gagor railroad company and used in construction of leased shops
of second company is not preferred to prior mortgage; St Louis,
etc., Ry. V. Continental Trust Co., Ill Fed. 672, holding debt in-
curred for rental of terminal property under forty-year lease, which
provides for forfeiture for failure to pay rent is not debt of income
and is not preferred claim from net income; Farmers' etc., Trust
Co. V. American Water- Works Co., 107 Fed. 29, 31, holding current
expenses and claims of sureties who have executed bonds to pre-
vent forced sales are preferred claims to bondholders of railroad.
134 U. S. 306-316, 33 L. 896, De WITT v. BERRY.
Syl. 1 (XI, 935). Written contract — Parol evidence.
Approved in Union Selling Co. v. Jones, 128 Fed. 675, holding
contract for sale of binder twine containing *' quantity guaranteed,'*
meant twine was reasonably fit for use designed, and parol evi-
dence is inadmissible to show certain representations as to quality;
Matthias v. Beeche, 111 Fed. 941, holding representations made by
shipowner to charterer, respecting speed of vessel, are superseded
by instrument; Montgomery v. -^tna Life Ins. Co., 97 Fed. 917,
holding when under written contract life insurance agent was
to receive certain commissions as compensation, parol evidence is
not admissible to show guaranty that commissions would be cer-
tain amount.
Syl. 2 (XI, 935). Warranty of quality.
Approved in Morris v. Chesapeake & O. SS. Co., 125 Fed. 67,
holding contract for carriage of cattle on certain specified vessels,
** all sailing " during certain months, imports warranty that they
will all sail during months specified; Dodge v. Dickson Mfg. Co.,
113 Fed. 222, holding after purchaser of motor subject to test
accepted it, he waived right to further test.
(Xl, 935). Miscellaneous.
Cited in Ryan v. Dubuque, 112 Iowa, 287, 83 N, W. 1074, hold-
ing when contract for grading street made provision for cutting
and filling, upon change of grade as provided for in contract, con-
tractor was entitled to additional compensation for cutting and
filling though material for filling was taken from cut; Morlaud v.
1215 Notes on U. S. Reports. 134 U. S. 316-329
Secrest, lOG Ky. 715, 51 S. W. 446, holding buyer cannot have abate-
ment of price on account of breach of verbal representations mad«?
at time of sale, when contract was in writing; Fairbanlis, etc., Co. v.
Rasliett, 98 Mo. App. 69, 71 S. W. 1118, holding, after purchase of
engine, purchaser may recover on warranty and retain engine.
134 U. S. 316-329, 33 L. 918, ARNDT v. GRIGGS.
Syl. 1 (XI, 936). Laws relating to realty.
Approved in Murray v. Quigley, 119 Iowa, 14, 92 N. W. 871, hold-
ing, under Iowa Code 1873, §§ 3273. 3345, providing for actions for
recovery of real property by one having reversionary interest, re-
mainderman suing to quiet title where rights were vested was
bound by limitation prescribed in Code 1873, § 2529; Tyler v. Court
of Registration, 175 Mass. 75, 55 N. E. 814, holding Mass. Stat 1898,
chap. 562, providing for land registration, is constitutional. See 94
Am. St. Rep. 552, note.
Syl. 2 (XI, 936). Service by publication.
Approved in Johnson v. Hunter, 127 Fed. 223, holding Acts Ark.
1895, p. 88, No. 71, authorizing publication of notice for four weeks
in proceedings for collection of taxes, is not unconstitutional;
Connor v. Tennessee Cent Ry. Co., 109 Fed. 936, holding statute
may provide for bringing into court nonresidents having interest
in real property by publication of notice; Ralya Market Co. v.
Armour & Co., 102 Fed. 532, holding service of agent of partnership
does not give court Jurisdiction over individual partners; dissenting
opinion in The Robert W. Parsons. 191 U. S. 45. majority holding
enforcement of lien in rem for repairs in State to which canal-boat
belongs engaged in traffic on Erie canal is in Admiralty Court
Distinguished in Roller v. HoUy, 176 U. S. 403, 405, 44 L. 522, 523,
20 Sup. Ct 411, holding five days' notice to nonresident in another
State of suit to foreclose lien on land is insufficient; dissenting
opinion in Tyler v. Court of Registration, 175 Mass. 104, 55 N. E.
825, majority holding Stat 1898, chap. 562, Mass., relating to pub-
lication of notice in order to cut off adverse interests in land is
valid.
Syl. 3 (XI, 938). Jurisdiction of State court.
Approved in Manley v. Park, 62 Kan. 561, 64 Pac. 31, holding
judgment rendered by court having Jurisdiction of subject-matter
and parties is conclusive as to all matters involved; Cabanne v.
Gtaf, 87 Minn. 513, 92 N. W. 462, 94 Am. St Rep. 725, holding
Laws 1901, chap. 278, Minn., providing for service of summons
by publication without seizure of property, is unconstitutional;
Netzorg v. Green, 26 Tex. Civ. 121, 62 S. W. 790, holding citation
by publication that action was to recover taxes, but which neglected
to state that action was to foreclose tax lien, was Insufficient to
sustain judgment
I n. 8. 330-360 Notes o
U. S
Beiiorts.
134 U. S. 330-332. S3 L. 017. EVANS t. STATE BANK.
S;t. 2 (XI. 93S). Time for appeaL
Approved In CliamberlalD Tranap. Co. v. South Pier Coal Co., VX
Fed. 1C7, holding, itoder rulea 14. subd. 5, aiid 16, subd. 1, rules of
Circuit Cuurt of Aijpeiils, relatlDg to appeals, must be obserred,
otherwise appeul will be dismissed; Berlloger Gramopbone C
Seamon, 108 Fed. 717, holding Interlocutory order by Circuit Court,
refusiui; lo dissolve Injunction, la appealable under section T
March 3, 1801, us amended by act June 6, 1900; Edgell v. Feeder,
09 Fed. 328, holding decree In favor of perBons not parties, but
whose appointment has been authorized by the court, is final decree.
Syl. 3 (XI. 930). Filing record on appeal.
Approved lu Pender v. Brown, 120 Fed. 497, 499. holding app.ffil
Bhould be dismissed, not having been taken Id accordance wrtit
U. S. Comp. Stat, 1001. p. 3432. relating 10 appeals in bankruptcr:
Chow Loy V. United States, 112 Fed. 357, holding, nad«r section !3
of Chinese esclualon act of September 13, 1SS8 (2a Stat, 4T6), relat-
ing to appeals, sucb appeal may be talien by giving oral notice lo
commissioner.
134 U. 8. 332-337, 33 L. 014. MACON COUNTY r. HDIDEKOPER.
Syl. 1 (IX. 930). Tax levy by county.
Approved tn Fort Madison Water Co. r. City of Fort Kfadlson,
110 Fed. 008, holding debt contracted by city under McClain's Code
Iowa, t 041, authorizing city to contract with individual for
GtructloD of water-works, is payable out of general Cund as wdl
us that provided for by section 643.
134 U. 8. 338-350, 33 L. 909. GORMLEY v. CLARK.
Syl. 2 (XI, 940). Decisions alTectiDg land titles.
Approved In Snowden v. Loree, 122 Fed, 400, holding action of
State of Pennsylvania lu laying out town under act 11, 1TS7
(Smith's Laws. p. 414), was a dedication of certain street therein
public; Pickens Tp. v. Post, DO Fed. 002, holding decision of Slate
Supreme Court, declaring statute autborlziug issuance of bonds
unconstitutional, is not conclusive on Federal court when rights of
iunocent purchaser are involved. See 03 Ant. St. Rep. 157, not&
SjL 3 (XI, 940). Stale laws — Federal courts.
Approved In United States Shipbuilding Co. v. Conklln, 126 Fed.
135, holding right given by New Jersey statutes (revision 189II
p. 208. ii OS, 00} to creditors or stockholders of insolvent corporation
for appointment of receiver, may be enforced lu Federal conrCr
Land Title, etc., Co. v. Asphalt Co., 127 Fed. IS. holding section G5,
N. J. corporation act (Laws 1896, p. 208). SDtliorizIng suit bj
creditors against Insolvent corporation, creates right which may
1217
Notes on U. S. Reports. 134 U. S. 3Jl-3i)l
be enforced In Federal court; National Surety Co. t. State Bank,
120 Fed. G03, httldlng. under U. S. Conip. Stat. 1901, p. 5S1. Federal
courts are prohibited from staying proceedings of State court;
HudflOM V. Dood. 119 Fed. T08, liolding Rev. Stat.. | OIS (U. S.
Conip. Slat. 1001, p. GS4), providing Eor enforcement of Federal
jwdgmeut as In State courts, does not embrace remedy In equity
by independent suit; disBenting opinion In Wabl v. Franz, 100 Fed.
701, majority holding proceeding for probate of will Is not cog-
nizable In Circuit Court of United States, or reuiovable tbere from
State court under section 2, judiciary act ISSS.
Syl. 4 {XI, 940). Equity Jurisdiction.
Approved In Jones v. Mutual Fidelity Co., 123 Fed. 519, 520.
holding Delaware statute March 23, 1891, providing for appoint-
ment of receivers of Insolvent corporations, is purely equitable, and
may be enforced In Circuit Court of Dnited States by unsecured
creditors as well as by stockholders and Judgment creditors; Sawyer
T. White, 122 Fed. 227. holding where controversy over validity of
wlb arises between citizens of different States, Federal court has
Jurisdiction wben State statute authorized proceedings in court of
general jurisdiction; Empire State-Idaho, etc., Co. v. Bunker HUl,
etc., Co., 121 Fed. 9T8. holding where defendant owned number ot
mining claims located on some lode as claim of complainant, under
which It claimed cxtralaleral rights In lode, remedy at law was not
adequate so as to exclude jurisdiction of equity to bill to quiet
title; Barrett v. Twin City Power Co., 118 Fed. 8G5, holding action
to obtain appointment of receiver to complete purchase of land
to protect purchaser of bonds was properly brought In court of
equity; Benson v. Keller, 37 Or. 129. 60 Pac. 921, holding creditor
having been fraudulently Induced to transfer to another his debtor's
due bills, may maintain action In equity for surrender thereof;
South Portland L. Co. t. Munger. 36 Or. 473. 60 Pac. 8, boldJng In
action at law to recover posseHsion of land where defendant filed
crosB-complalnt, alleging equitable defense, plaintiff waived right
to Insist that action be tried at law by answering; Rlchl v. Chat-
tanooga, etc., Co.. 105 Tenn. 053. 58 S. W. 048, holding court of
equity, having talien jurisdiction over cause tor purpose of abating
nuisance, may award damages.
134 U. S. 351-361, 33 L. 840, PBNFIBLD t, CHESAPEAKE,
ETC, R. R.
Syl. I (XI, 941). Suits by residents.
Approved in Pacific Mut. Lite Ins. Co. v. Tompkins, 101 Fed.
543, holding plaintiff who moved from West Virginia to Virginia,
and subsequently rented house in West Virginia, commenced nn
action there before actual residence, could not malntalu suit there,
not being resident thereof.
Vol. U — 77
Pl
VS4 U. S. 301-387 Notes on V. S. Reports. 1218
134 U. S. 3G1-372, 33 L. 945, CLOUGH v. CURTIS.
Sjl. 5 (XI, 942). Mandamus by president territorial counciL
Approved in State v. Wilson, 123 Ala. 287, 26 So. 490, holding one
who has paid liquor license and is about to be subjected to addi-
tional license, under statute illegally passed, is entitled to mandamus
to require secretary of State to expunge false entries to correct
illegality of passage.
134 U. S. 372-377, 33 L. 949. IN RE LONEY.
Syl. 1 (XI, 942). Perjury in Federal court
Approved in United States v. Severino, 125 Fed. 951, 952. 954,
holding perjury committed in State court in naturalization proceed-
ings is punishable in State and not Federal court; Peters y. Malin,
111 Fed. 254, holding Sac and Fox tribe of Indians, residing in
Iowa, are not subject to laws of Iowa but to the United Statesi,
in appointment of guardian for minors; In re Fair, 1(X> Fed. 157,
holding private in army who shoots and kills soldier attempting
escape from guard is not triable in State court.
Syl. 3 (XI, 943). Habeas corpus from Federal court
Approved in Minnesota v. Brundage, 180 U. S. 502, 45 L. 641, 21
Sup. Ct. 456, holding writ of habeas corpus to Federal court to
release person imprisoned under Judgment of Municipal Court on
ground that statute was unconstitutional should be denied when
application has not been made first to State court; Davis v. Burlie,
179 U. S. 402, 45 L. 251, 21 Sup. Ct. 211, holding Federal court will
not interfere by habeas corpus with execution of sentence of State
court on ground that State law under which prosecution was had
is invalid; In re Matthews, 122 Fed. 250, holding Federal court
under habeas corpus would not discharge prisoner for shooting
deserter from army under U. S. Comp. Stat 1901, p. 817, Cohn v.
Jones, 100 Fed. G41, holding Federal court may release upon habeas
corpus person imprisoned under State Judgment when court had no
Jurisdiction over his person or of the crime.
134 U. S. 377-380. Not cited.
134 U. S. 381-387, 33 L. 953, POHL v. ANCHOR BREWING CO.
Syl. 1 (XI, 943). Patent
Approved in Hobbs v. Beach, ISO U. S. 398, 45 L. 594, 21 Sup.
Ct. 415, holding Beach reissued patent No. 11,167, for machine for
attaching stays to corners of boxes, was infringed by Horton patent;
Atlas Glass Co. v. Simonds Mfg. Co., 102 Fed. 343, holding WindmcU
patent No. 416,389, for moulds for glass bottles, infringed by
" Powers machines.**
1219 Notes on U. S. Reports.- 134 U. S. 388^17
134 U. S. 388-398, 33 L, 963, HOWE MACH. CO. v. NATIONAL
NEEDLE CO.
Syl. 1 (XI, 944). Patent — Specifications and drawings.
Approved in Lamb Knit Goods Co. v. Lamb Glove & Mitten Co..
120 Fed. 269, holding Lamb patent No. 462,563, for glove constructed
from two knitted blanks, is< valid.
134 U. S. 398-^1, 33 L. 969, GLUM v. FAUT. '
Syl. 1 (XI, 944). Specifications considered in interpreting patent.
Approved in American Bell Tell. Co. v. National Tel. Mfg. Co.,
109 Fed. 997, holding Berliner patent No. 463,569, for combined
telegraph and telephone, is void because Invention claimed is not
the one described in application.
<XI, 945). Miscellaneous.
Cited in Corliss v. Pulaski County, 116 Fed. 291, holding special
finding of facts should declare all ultimate facts, and should not
contain evidence though it may refer to documents in pleadings.
134 U. S. 401-405, 33 L. 960, HAMMOND v. HASTINGS.
Syl. 1 (XI, 945). Enforcement of lien on stock.
Approved In Curtice v. Crawford County Bank, 110 Fed. 832,
holding stockholder in bank may pledge his stock as collateral
security by written assignment and delivery without obtaining
transfer on books; People's Bank v. Exchange Bank, 116 Ga. 827,
94 Am. St. Rep. 144, 43 S. E. 272, holding where bank charter pro-
vides that no assignment of stock shall be valid against it unless
transfer is made on books, bank Is Justified In treating stockholder
as owner of stock issued to him until notice of assignment of stock;
Wright L. Co. v. Hixon, 105 Wis. 157, 80 N. W. 1111, holding lien
of corporation on all shares for debts due It from stockholders
under Rev. Stat. 1878, § 1751, Wis., may be enforced against
assignee of stock claiming to be bona fide purchaser.
(XI, 945). Miscellaneous.
Cited in London, Paris, etc.. Bank v. Aronstein, 117 Fed. 607,
holding, under the laws of California, an executor is entitled to
have shares of stock in corporation transferred to his own name
as executor.
134 U. S. 405-417, 33 L. 955, SCHREYER v. SCOTT.
Syl. 3 (XI, 946). Fraudulent conveyanca
Approved in In re Mullen, 101 Fed. 417, holding bankruptcy act
1898, § 70a, does not prevent creditor of fraudulent grantee from
acquiring right in property superior to that of trustee; Wilson v.
Stevens, 129 Ala. 636, 29 So. 679, holding subsequent creditor con-
not complain of conveyance of property unless such conveyance
was made to defraud creditors, and burden is on creditor to prove
194 U. S. 418-466 Notes on U. S. Reports. 1220
fraud; Ley t. Rorick, 100 Mo. App. 113, 71 S. W. 844, holding stock
purchased by wife with money given her by husband when solvent
was not liable for his debts.
Syl. 4 (XI, 046). Deed by husband to wife.
Approved in Stanton v. Crane, 25 Nev. 122, 58 Pac. 54, holding
where grantee holds equitable title to lands under quitclaim deed,
subsequent conveyance without further payment is not voluntary
conveyance without consideration. See 90 Am. St. Rep. 507, note.
134 U. 8. 418-466. 33 L. 970. CHICAGO, ETC., RY. v. MINNESOTA.
Syl. 1 (XI, 946). State construction of State law.
Approved in Cargill Co. v. Minnesota ex rel. R. R. & N. Comm., 180
U. S. 467, 45 L. 626, 21 Sup. Ct 428. holding Minn. Gen. Laws 18d5,
chap. 148, p. 313. regulating elevators and warehouses, is not for-
bidden by U. S. Const, amend. 14, in case where warehouse is
used exclusively for grain of owner.
Syl. 2 (XI, 946). Changing railroad's charter.
Approved in Cottlng v. Godard, 183 U. S. 85, 46 L. 99, 22 Sup. Ct.
33, 34, holding stockyard company is denied equal protection of
laws of Kansas (act March 3, 1897), which limits amount of charges
to be made by that corporation without limiting charges of others
simllarily situated; Carson v. Brockton, 175 Mass. 245,. 56 N. E. 2,
holding under Stat 1892, chap. 245, § 1. Mass., providing that city
may establish just charges for use of common sewer, a city ordi-
nance authorizing charge for metered and unmetered water is
unconstitutional.
Syl. 3 (XI, 947). Regulating railroad rates.
Approved in Blue v. Beach, 155 Ind. 133, 56 N. E. 94, holding,
under Bums* Rev. Stat. 1894, § 6711, Ind., authorizing State board
of health to adopt rules In relation to public health, a local board
of health has power to refuse unvaccinated child admission to
public school; Railroad Comrs. v. Grand Rapids, etc., Ry. Co., 130
Mich. 251, 89 N. W. 067, holding amendment of 1889 to railroad
law, withdrawing right of bondholders to reorganize in case of fore-
closure, unless they agree to rates fixed by statute, Is not inipalr-
vnent of property rights.
Syl. 4 (XI, 947). Railroad commission's rates.
Approved in Louisville & N. R. R. Co. v. Kentucky, 183 U. S.
511, 4G L. 303, 22 Sup. Ct 99, holding equal protection of the law-
is not denied to railroad company by Ky. Const., § 218, and Ge»i.
Stat. 1894, § 820, which prohibits companies from charging more
for shorter than for longer haul; Jack v. Williams, 113 Fed. 827.
holding where several persons purchased railroad and suit was*
brought to obtain sale of the property, a receiver had authority
under order of court to dismantle road and sell materials; Kansas
City, etc., Ry. v. Board of Railroad Comrs., 1(X> Fed. 358, holding
1221 Notes on U. S. Reports. 134 U. S. 41&-466
State has no power to regulate charges of railroad company be-
tween two points In State where course of transportation for great
distance is through another State; Ahem v. Newton & B. St Ry.
Co., 105 Fed. 703, holding preliminary injunction will not be
granted to restrain enforcement of statute regulating street rail-
road fares at suit of stockholder; Western Union Tel. Co. v. Myatt,
98 Fed. 342, holding where telegraph rates fixed under Spec. Sess.
Laws 1898, chap. 38, Kan., were unreasonable company is entitled
to injunction restraining enforcement of such rates; Pinney v. Prov-
ident L., etc., Co., 106 Wis. 402, 82 N. W. 310, holding Rev. Stat.,
§ 1775b, authorizing service of process on private cori>oration by
leaving copy with registers of deeds is unconstitutionaL
Syl. 5 (XI, 948). Reasonableness of railroad rates.
Approved in Chesapeake & Potomac Tel. Co. v. Manning, 186
U. S. 244, 46 L. 1147, 22 Sup. Ct 884, holding rentals received by
telephone company from private system must be excluded in In-
quiring into reasonableness of rates in District of Columbia under
30 Stat, at Large, 525-538, chap. 540; Chicago, Milwaukee, etc., Ry.
v. Tompkins, 176 U. S. 173, 44 L. 420, 20 Sup. Ct 338, holding rea-
sonableness of railroad rates must be determined by comparison
between gross receipts and costs of doing business; Railway Co.
V. Simonson, 64 Kan. 807, 812, 91 Am. St Rep. 251, 68 Pac. 654,
holding chapter 100, Laws 1893 Kan., making specification of
weights in bills of lading issued by railroad companies for grain,
etc., conclusive evidence of correctness. Is unconstitutional; Louis-
ville & Nashville R. R. Co. v. Commonwealth, 106 Ky. 646, 90 Am.
St. Rep. 242, 51 S. W. 1013, holding under Const, § 218, Ky., relat-
ing to railroad rates, the fact that competition exists at longer
line and not at shorter line will not authorize the carrier to charge
more for the short than for the long haul; Louisville, etc., R. R. Co.
V. M'Chord, 103 Fed. 219, holding Ky. act March 10, 1900, relat-
ing to regulation of railroad rates is unconstitutional; State v.
Johnson, 61 Kan. 816, 849, 60 Pac. 1073, 1083, holding chapter,
28, Laws 1898 Kan., creating court of visitation, to regulate rates
of transportation, is unconstitutional; Janvrin, Petitioner, 174 Mass.
517, 55 N. E. 382, holding Stat 1895, chap. 488, Mass., relating to
water rates in vicinity of Boston, is constitutional. See 90 Am. St
Rep. 242, 248, note.
Syl. 6 (XI, 949). Exorbitant railroad rates.
Approved in Kansas City, etc., Ry. v. Board of Railroad Comrs.,
106 Fed. 357, holding where railroad operates between two points
in same State, but line is largely in another State, State of termini
has no power to regulate rates; Matthews v. Board of Corp. Comrs.,
106 Fed. 8, holding finding by commission appointed to fix rates on
fertilizers, that for four years preceding railroad had earned fair
net profit, was not erroneous; State v. Associated Press, 159 Mo.
i:i4 U. S. 467-494 Notes oo U. S. Reports. 1222
448, CO S. W. 102, holding corporation engaged in gathering general
news has right to contract with whom it chooses and State will
not interfere.
Syl. 7 (XI, 949). Injunction against unreasonaUe railroad rates.
Approved in Teft v. Missouri Pacific R. R. Co., 123 Fed. 795,
holding court will not enjoin enforcement of transportation rates
when controversy Is pending before interstate commerce commis-
sion; Haverhill Gaslight Go. v. Barker, 109 Fed. 696, holding suit
by gas company against gas commission to enjoin proceedings to
enforce rates is not suit against State; Western Union Tel. Co. v.
Myatt, 98 Fed. 357, holding acts of Illegal body denominated court
will be stayed by injunction when attempting to fix telegraph rates
under Spec. Sess. Laws 1898, chap. 38, Kan.
(XI, 946). Miscellaneous.
Cited in San Diego Land, etc., Co. y. Jasper, 110 Fed. 713, hold-
ing reasonableness of water rates, under statute of California, is
primarily in board of supervisors.
134 U. S. 467-482. Not cited.
134 U. S. 483-488, 33 L. 1007. UNITED STATES v. JONES.
Syl. 1 (XI, 950). Compensation of United States commissioner.
Approved in United States v. Nix, 189 U. S. 205, 23 Sup. Ct 498.
47 L. 778, holding, under U. S. Rev. Stat, § 829, providing for pay-
ment of mileage. United States marshal is not entitled to mileage
for distance traveled in excess of usually traveled route; United
States V. Beavers. 125 Fed. 780, holding under Rev. Stat.. § 1014,
which authorized United States commissioner to act as examining
magistrate in criminal case, a commissioner in New York as such
has power to issue subpoenas for witnesses; United States v. Pules-
ton, 106 Fed. 294, holding under act March 3. 1893 (27 Stat. 609).
providing that United States marshal making arrest shall take
prisoner to nearest officer for hearing, upon failure to do so he
forfeits right to mileage; United States v. M'Gourin, 106 Fed. 290.
holding, under act March 3, 1893, requiring magistrate issuing
warrant to attach certified copy of complaint thereto, the warrant
and copy constitute single paper, and he cannot detach copy and
charge separate fee for filing it; M'Gourin v. United States, 102 Fed.
556, 559, holding, under order of court requiring commissioner to
keep docket in which he should enter the proceedings In a cause,
he Is entitled to fifteen cents per folio, counting each separate item.
134 U. S. 488-494, 33 L. 991, IN RE LOUISVILLE UNDER-
WRITERS.
Syl. 1 (XI, 951). Libel in personam.
Approved in Workman v. Mayor, etc., of New York, 179 U. S.
573, 45 L. 325, 21 Sup. Ct. 220, holding exemption of fireboat belong-
12J3 Notes on U. S. Reports. 134 U. S. 494-499
Ing to city from seizure In rem will not relieve city from liability
in personam for injuries to other vessel caused by negligence of
fireboat.
Syl. 2 (XI, 951). Residence of defendant in admiralty.
Approved in In re Magid-Hope Sills Mfg. CJo., 110 Fed. 353, hold-
ing, under banltruptcy act 1898, § 2 (1), court has jurisdiction over
banlirupt in district of principal place of business; Reilly v. Phil-
adelphia & R. Ry. Co., 109 Fed. 350, holding suit In admiralty In
personam against corporation of another State, may be maintained
in any district in which service may be had; Virginia, etc.. Chemical
Co. V. Sundry Ins. Cos., 108 Fed. 453, holding action brought by
Virginia corporation, assignee of insurance policy, against corpo-
ration of another State, is removable into Federal court
Syl. 3 (XI, 952). Service of monition.
Approved in Doe v. Springfield Boiler & Mfg. Co., 104 Fed. 686,
holding broker in San Francisco who was furnished prices by
machinery company of Illinois, and occasionally made sale of article
made by it, was not business agent within meaning Code Civ. Proc.
Cal., § 411.
Syl. 4 (XI, 952). Service on foreign corporation.
Approved in Hawaii v. Mankichi, 190 U. S. 213, 23 Sup. Ct 789,
47 L. 1021, holding criminal proceedings provided foi'by U. S. Const.,
amends. 5, 6, were not substituted on annexation of Hawaii for ex-
isting procedure; Pruppirt v. Elder Dempster Shipping, 122 Fed.
988, holding Court of Admiralty of United States has jurisdiction
of action in personam against owner of foreign vessel to recover for
injuries sustained by American passenger on high seas; Piatt v.
Massachusetts Real Estate Co., 103 Fed. 707, holding compliance by
cori>oration with statute df another State, requiring foreign cor-
poration to appoint attorney upon whom process may be served,
does not make such corporation a citizen of that State.
134 U. S. 494-499, 33 L. 1004, HATHAWAY v. FIRST NAT. BANK.
Syl. 1 (XI, 952). Appeal from Circuit Court
Approved in Dooley v. Pease, 180 U. S. 132, 45 L. 460, 21 Sup.
Ct 331, holding error in findings of United States Circuit Court
cannot be reviewed if there was any evidence upon which to base
findings; Kruger v. Constable, 128 Fed. 909, holding where writs of
error are prosecuted in cases tried to the court waiving jury, pro-
vided for by U. S. Comp. Stat. 1901, p. 525, Court of Appeals is
limited to reviewing rulings on evidence; American Sales Book Co.
V. Bullivant, 117 Fed. 260, holding findings of Circuit Court in
action tried on stipulation are not reviewable if there was any
evidence to support them; King v. Smith, 110 Fed. 96, holding
question whether there was any evidence before Circuit Court hav-
ing tendency to prove facts may be considered on writ of error.
v.w
•-'^^ .*■ "r* ;z. U. S. Hi'ports.
12124
44S.
I1I»NV-
nut i
S>;
A|..
holilii
slun :
by j::-
eiif or. .
Myati.
will l»r
undiM-
(XI.
Cit»Ml
!Dg ri'M
prlninri
134 V. ^
134 IT. ^
Syl. I .
Appro\.
47 I.. 77^.
meiit of I;
for illsi.!'
.-■.:. ::: L >s elwell v. fosdick.
H. '■- i.'tj ■:•? bondholder's trustee.
i -J A-iZ--! Trist Co. V. Dana, 128 Fed. 223, holding
•" vr ;.r :':r^vni::oa intervened In foreclosure suit and
i;zi )t -1— an: to fund due corporation, a decree in
iiaaz: :--? re<h?iver and all parties to suit represented
uuL'^5 - ?*: pies' Ry. Co., 154 Mo. 24G, 55 S. W. 024,
.-ri. .vr.:..:i ';r foreclosure of trust deed of street railway
ii! rf ill toGdhoMers. it was proper to permit them to
.:. C)'Ji P:>?ser::ing error not in record.
. -: M'iriiz. V. Victory Min. Co.. 37 Or. 329, 60 Pac. 998.
•M* "ts 0* '>?cz«el cannot be received on motion to dismiss
....« :bi: one of the appellants has disposed of his
^^T. 33 L 5C*4. HILL v. MERCHANTS' INS. CO.
132). Execution against unpaid stock subscription.
- : ^traw. «:■:.. Mfg. Co. v. Kilbourne, etc., Co., 80 Minn.
• ja. hold:::*, under Laws 1899, chap. 272, Minn., re-
rrmeDi c' stockholders* liabilities, all stockholders are
■xzi of c(:^zz as to amount due.
SSK Ptym^ac of unpaid subscription.
. ^ in EriM T. Nellis, 101 Fed. 926, holding Kan.
:. ISR- routing to liabilities of stockholders, is
States V.
whlrli :r..
inapisirn •
has puwti
ton, loi; 1
proviiliiii^
prisoner !«■
forfoits riu'i! '■■ '
holdinj;. uiwh-r ■
warrant t(» nw-..-
and copy runs '■"•
charge scpnniU' «
556, 5.7.). lioM .
keep doclvct »■' '«•
he is entitleil :.
134 U. S. iss r
WRITI.liJS.
Syl. 1 (XI. l».»
Approved in ^'
573. 45 L. 325. *-' 5
^ retrc^.":-"^.
_;>;33L :::ii. brown \k lake superior iron
--.. A.'«;-'^#oence In receivership.
■jec*' 5-is'i. etc., Co. v. Union Min., etc., Co., 106
i^zini jrevlitor's suit against corporation whose
.--jrt wifr* suit is brought, and defendant has ail-
- an^S rw-eivor has been appointed, intervening
: ob>«*: ^^ jurisdiction. See 72 Am. St. Rep. 31,
Ot.'^*-'"'-^ first made on appeal,
^s ». IVcroit Citizens' Street R. R. Co., 184
li.'.S^i"'- ^"f- -^l^' holding defense that complaiu-
<:iis ^fciiorcement of municipal ordinance, has
-j; Biji -"^ rwognized when enforcement of ordi-
io fjiJii'Iicity of suits; United States v. South-
Ill yv^S. 55:$. holding objection to jurisdiction
tjtfC zt^ remedy at law is adequate must be
1225 Notes on U. S. Reports. 134 U. S. 537-55U
(XI, 053). Miscellaneous.
See 72 Am. St. Rep. 52, note,
134 U. S. 537-547. Not cited.
134 U. S. 547-559, 33 L. 1016, LITTLE v. BOWERS.
Sji. 1 (XI, 955). Involuntary payment of taxes.
Approved in Chesebrough v. United States, 192 U. S. 260, 24 Sup.
Ct. 264, holding written application to commissioner of Internal
revenue to refund sum expended for purchase of revenue stamps
from collector is not an appeal to him from adverse decision by
collector which, under U. S. Comp. Stat 1901, pp. 2088, 2089, is
essential to maintenance of suit; Montgomery v. City Council, 99
Fed. 831, holding purchaser at foreclosure sale, who was entitled
to title from taxes after having paid the same, could not require
court to determine question of exemption of property from taxation.
Syl. 2 (XI, 955). Dismissal of appeal— Tax suit.
Approved in Thorp v. Bonnifleld, 177 U. S. 19, 44 L. 654, 20 Sup.
Ct. 535, holding voluntary payment by Judgment debtor which
leaves balance less than amount necessary to give appellate court
jurisdiction is fatal to right of review; Altoona Elec, etc., Co. v.
Kittanning, etc., Ry., 126 Fed. 561, holding court of equity has
jurisdiction of suit to compel specific performance of contract to
deliver capital stock in payment for work, and jurisdiction is not
lost by sale of stock by defendant; Montgomery v. City Council, 99
Fed. 832, holding city having no interest in suit, except for col-
lection of taxes, upon payment thereof ceased to be party and
could not be brought in again for purpose of litigating validity of
tax; United States Sav. & L. Co. v. Leftwich, 132 Ala. 133, 31 So.
475, holding no substantial dghts being affected by appeal under
the facts of this case, it would be dismissed; Jacksonville Terminal
Co. V. State, 42 Fla. 384, 29 So. 441, holding where, after writ of
review is taken by party from order granting mandamus, the
party for whose benefit writ was granted obtained title to property
in question, appeal will be dismissed; Wedekind v. Bell, 26 Nev.
413, 69 Pac. 614, holding conveyance by plaintiff of all his interest
in subject of action to third person and settlement pending appeal
is settlement of entire controversy, although stipulation is executed
that settlement will not be affected by judgment; Whittaker v.
Deadwood, 12 S. Dak. 614, 82 N. W. 204, holding payment of
street assessment under protest after judgment is not ground for
dismissal of appeal; Fletcher v. Parker, 53 W. Va. 425, 44 S. B.
423, holding in writ of error an order made reciting that it appeared
from a writing filed that the matters have been settled and dismiss-
ing writ of error on motion of plaintiff in error, such order is not
bar against Judgment; State y. Lambert, 52 W. Va. 250, 43 S. E. 177»
134 U. 8. 559-007 Notes on U. 8. Reports. 1226
178, holding If pending writ of error awarding writ of mandamus
commanding clerk of Municipal Court to place name of plaintiff on
ballot, election is held, writ will be dismissed.
134 U. 8. 559-571, 33 L. 1012, MENDENHALL V. HALL.
Syl. 1 (XI, 9oC). Appellate jurisdiction.
Approved in Berliner Gramophone Co. v. 8eaman, 108 Fed. 716,
holding issuance and service of citation on appeal is not jurisdic-
tional and may be issued after time limited for taking appeal.
Syl. 2 (XI, 956). Demurrer and dismissal — Appeal.
Approved in Carmichael v. City Texarkana, 116 Fed. 846, hold-
ing order which retains or dismisses defendants who are charged
Jointly with other defendants is not final decision and not appeal-
able.
SyL 5 (XI, 956). Set-off against mortgage.
Approved in Kirllcks v. Interstate Bldg., etc., Assn.; Thomaa
V. Same, 113 Fed. 290, holding one who has obligated himself to pay
tax for mortgagee who neglects to do so and buys property at tax
sale takes the same subject to mortgage or as trustee for mortgagee.
134 U. S. 572-593, 33 L. 1038, LEE v. SIMPSON.
Syl. 1 (XI, 956). Construction of will.
Approved In Adams v. Cowen, 177 U. S. 477, 44 L. 853, 20 Sup.
Ct 670, holding money advanced to son after making his will
cannot be deducted from share of such son under will reciting that
he had made advances to son, etc.
Syl. 4-6 (XI, 956). Power to execute will.
Approved in Daniel v. Felt, 100 Fed. 729, holding where deed
conveys to married woman title to land in trust for grantee and
children of herself and children with power of sale, a deed executed
by luTself and husband without reference to power conveyed only
interest of grantee.
Syl. 5 (XI, 957). Intent to execute power.
Approved In Guarantee, etc., Co. v. Jones, 103 Tenn. 255, 58 S.
W. 221, holding whore under will father of minor devisees is given
power to dispose of land as he thinks proper, he may borrow money
and secure same by deed of trust or land.
134 U. S. 594-607, 33 L. 1025, HOME IXS. CO. V. NEW YORK.
Syl. 1 (XI, 957). Taxation of Federal bonds.
Approved in Plummer v. Coler, 178 U. S. 117, 44 L. 1001, 20
Sup. Ct. 830, holding impairment of borrowing power of govern-
ment as effect of State statute Imposing tax upon transfer of deced-
ent's property as applied to government bonds is not sufficient to
render such statute unconstitutionaL
1227 Notes on U. S. Reports. 134 U. S. 694-607
Syl. 6 (XI, 958). Taxation within Fourteenth Amendment CJon-
stitution.
Approved In Snyder v. Bettman, 190 U. S. 254, 23 Sup. Ct. 805,
47 L. 1037, holding succession tax imposed, under authority of SO
Stat, at Large, 448, ui)on bequest to municipality for public pur-
poses is not unconstitutional; Florida C. & P. R. R. Co. v. Reynolds,
183 U. S. 477, 478, 46 L. 286, 287, 22 Sup. Ct. 179, holding railroads
are not denied equal protection, the laws of Florida, Laws 1885,
chap. 3558, requiring comptroller to assess taxes for 1879, 1880
and 1881 upon railroads escaping taxation for those years with-
out providing for assessment of other property for those years;
American Sugar Refining Co. v. Louisiana, 179 U. S. 94, 45 L. 105,
21 Sup. Ct. 46, holding refiner of sugar is not denied equal pro-
tection of law because of discrimination made by La. Const li379,
art. 206, Imposing license tax upon manufacturer, but exempting
those who refine their own products; W. C. Peacoclt & Co. v.
Pratt, 121 Fed. 777, holding income tax of Hawii (act No. 20,
pp. 31-35, Sess. Laws 1901) is not invalid as to provisions imi>os-
ing tax on income of corporations; Oakland Sugar Mill Co. v.
Fred W. Wolf Co., 118 Fed. 245, holding, under the construction
placed on Mich, franchise tax ^ct 1891 (Comp. Laws 1897, § 8574),
is applicable to foreign private business corporation doing busi-
ness in this State; Southern Car, etc., Co. v. State, 133 Ala. 629,
32 So. 236, holding foreign corporation purchasing business of
domestic corporation could not do business under license issued
to latter corporation; Banls of California v. San Francisco, 142
Cal. 279, 75 Pac. 834, 836, holding assessment for taxation of cor-
porate franchise of hank is not in violation of U. S. Const., amend.
14; Commissioners of R. R. v. Wabash R. R. Co., 126 Mich. 115,
85 N. W. 466, holding, under act Mich. No. 90, Pub. Act 1891,
providing for fixing passenger rates, it is competent for commis-
sioners to Include amount of interstate fares earned by portion
of road In State; People, etc. v. Knight, 174 N. Y. 481, 67 N. B.
68, holding exemption from taxation of patents issued by govern-
ment does not render void tax on franchise computed on value
of capital stoclt, as provided by tax laws (Laws 1896, p. 856,
chap. 908, § 182, N. Y.); State v. Carter, 129 N. C. 561, 40 S. E. 12.
holding Laws 1899 N. C, chap. 11, § 51, imposing license tax on
business of buying and selling meat from stores, etc., is consti-
tutional; Standard Oil Co. v. Spartanburg, 66 S. O. 43, 44 S. E.
379, holding ordinance requiring dealers in oils to pay license
of $250 per year, and providing that license shall not apply to
dealers handling oil on which license has been paid, is unconsti-
tutional; Copper Co. v. Scherr, 50 W. Va. 551, 552, 40 S. E. 522,
holding sections 86 and 87, chapter 35 of Acts of Legislature 1901,
W. \tL, classifying corporations and imposing greater license on
184 U. 8. 607-045 Notes on U. 8. Reports. 1228
nonresident corporation than on others is constitutional; disseni-
ing opinion in Jackson v. Corporation Commission, 130. N. C. 420,
42 S. E. 135, majority holding, under Pub. Laws N. C. 1901.
chap. 7, §§ 43-50, providing for returns of property for assess-
ment, commissioners may be compelled to perform their duties.
Distinguished in Plummer v. Coler, 178 U. 8. 127, 44 L. 10a5,
20 Sup. Ct 830, holding legacy of United States bonds is not ex-
empted from inheritance tax laws of State by act July 14, 1870,
of Congress.
134 U. 8. 607-614. Not cited.
134 U. S. 614-024, 33 L. 1032, LOUI8VILLB, ETC., R. R. CO. v.
WOODSON.
Syl. 2 (XI, 959). Directing verdict.
Approved in Alaska 88. Co. v. Collins, 127 Fed. 940, holding
in action for injuries to plalntifTs wharf which was struck by de-
fendants vessel question as to how wharf was injured was for
jury; Thomason v. Southern Ry. Co., 113 Fed. 81, holding where
testimony showed Injury occurred while plaintiff attempted to
save his brother from being crushed by turntable, direction to
find for defendant was proper; Hodges v. Kimball, 104 Fed. 750,
holding neglect of brakeman to make coupling of cars with stick
furnished by defendant was contributory negligence, and verdict
for defendant was proper; Neininger v. Cowan, 101 Fed. 790, hold-
ing where plaJntiflT could see track for short distance and did not
stop or listen, verdict for defendant was proper.
134 U. S. 624-632, 33 L. 1080, UNITED STATES v. LACHER.
Syl. 3 (XI, 960). Punctuation of laws.
Approved in Hanley v. United States, 123 Fed. 852, holdiuc:,
under Rev. Stat, § 5480, relating to use of mails to defraud, and
section 1024, defendant convicted of three offenses in six months
can only receive one sentence; Commissioners, etc. v. Ellwood, 103
111. 308. 61 N. E. 1034, holding Hurd's Rev. Stat. 111. 1899, chap. 121,
§ 43, providing for notice in proceedings to lay out street, does
not apply to prior resident landowner who cannot be found; dis-
senting opinion in Ogden City v. Weber Co., 26 Utah, 137, 72 Pac.
436, majority holding, under Rev. Stat. 1898, § 511, subd. 40, pro-
viding for care of county sick and poor, a nonresident sick person
in county is within provisions of act.
134 U. S. 632-645, 33 L. 1074, RICH v. MENTZ TP.
Syl. 2 (XI, 961). Municipal bonds.
Approved in Clarke v. Town of Northampton, 120 Fed. G61.
holding, under Laws N. Y. 1869, chap. 907, § 1, as amended 1871,
providing for issuance of railroaii aid bonds, bonds issued on
petition not showing qualified signers are. void; Clarke v. Town
1229 Notes on U. S. Reports. 134 U. S. 045-710
of Xorthampton, 105 Fed. 313, 314, holding where certain proceed-
ings for Issuance of bonds are Jurisdictional, bonds issued in
pursuance of such void proceedings are invalid, and municipality
may plead invalidity.
134 U. S. 645-G50, 33 L. 1062, GILES v. LITTLK
Syl. 4 (XI, 902). Federal court jurisdiction.
Approved in Bigger v. Ryker, 184 U. S. 696, 22 Sup. Ct. 938,
following rule; Smith v. Indiana, 191 U. S. 148, holding public
officer who has no interest in controversy except to test constitu-
tionality thereof in interest of third person cannot review judg-
ment against him by appeal; Tyler v. Judges of the Court of Reg-
istration, 197 U. S. 408, 45 L. 254, 21 Sup. Ct 207, holding person
having requisite notice cannot question constructive notice pro-
vided for In Mass. Torrens act for land registration.
134 U. S. 650-688, 33 L. 1047, KINGSBURY v. BUCKNER.
Syl. 1 (XI, 962). Bill of review.
Approved in Pittsburg, C, etc., Ry. Co. v. Keokuk, etc.. Bridge
Co., 107 Fed. 785, holding bill of review for newly discovered evi-
dence should be brought in court in which decree was rendered:
Hawkins v. Cleveland, etc., Ry. Co., 99 Fed. 323, holding reversal
of decree for further proceedings leaves case as if no decree had
been entered.
Syl. 5 (XI, 963). Cross-complaint
Approved in Peacock, etc., Co. v. Thaggard, 128 Fed. 1008, hold-
ing where rights of codcfendants in foreclosure suit exist and one
may be compelled to demand affirmative relief to obtain his rights
he may file cross-complaint.
Syl. 8 (XI, 963). Rights of infants.
Approved in Walker v. Redding, 40 Fla. 128, 23 So. 566, hold-
ing decree foreclosing mortgage upon homestead rendered against
executor of last will of owner of homestead, leaving minor chil-
dren to which heirs were not made parties, is not binding on them;
Becker v. Chester, 115 Wis. 149, 91 N. W. 651, holding stipulation
by attorneys of executors, consenting to taxation of costs, affords
no ground for entering judgment in* accordance therewith.
134 U. S. 688-710, 33 L. 1064, LEAVENWORTH v. CHICAGO, ETC.,
RY. CO.
Syl. 2 (XI, 963). Corporations having same directors.
Approved in Metcalf v. American School Furniture Co., 122 Fed.
118, holding where corporation Is given by its charter right to dis-
pose of its property, it has power to accept stock in another corpo-
ration in payment; Dady v. Georgia, etc., Ry., 112 Fed. 844, holding
where officer of corporation is also member of voting trust mer-
135 U. S. 1-09 Notes on U. S. Reports. 1230
ger brought about through his vote Is not void, but burden is on
him to show good faith; Lyman v. Kansas City, etc., R. R. Co.,
101 Fed. 643, holding where stocl^holders of railroad bought in
same at foreclosure sale and elected trustee to operate it with
provision that if interest on bonds then issued was not paid the
bondholders might operate road and giving trustee authority to
modify provision, the modification made was within authority
granted; Ryan v. Williams, 100 Fed. 176, holding fact that pur-
chaser of property from corporation is also stockholder and director
does not render transaction void; United States Steel Corp. v.
Hodge, 64 N. J. Eq. 816, 54 Aa 4, holding at meeting of stock-
holders of corporation owners of shares are under no disability to
vote because they are directors.
CXXXV UNITED STATES.
135 U. S. 1-99, 34 L. 55, IN RE NEAGLE.
Syl. 1 (XI, 965). Habeas corpus — Federal courts.
Approved in Davis v. Burke, 179 U. S. 402, 45 L. 251, 21 Sup. Ct.
211, holding interference with execution of State court by habeas
corpus In Federal court will be refused when question has not
been first raised in State court; In re Laing, 127 Fed. 216, holding
Federal court has jurisdiction on habeas corpus to determine
whether Federal officers indicted by State court for killing prisoner
whom they were trying to arrest at command of United States
marshal was unlawfully restrained of his liberty; Cohn v. Jones.
100 Fed. 041, holding where State court had no jurisdiction over
person or crime, Federal court will release him on habeas corpus;
In re Fair. 100 Fed. 151, holding judgment by military court-mar-
tial is not bar to prosecution by civil authorities.
Syl. 2 (XI, y05). Appeal in habeas corpus.
Approved in Slmonson v. Sinsheimer, 100 Fed. 429, holding ?n
case of petition in involuntary bankruptcy where defense is es-
toppel by conduct in reference to an assignment, jury trial will be
denied, and appellate court may review law and facts.
Syl. 4 (XI, 000). Discharge of duty by judge.
Approved in Laclvcy v. United States, 107 Fed. IIG, holding Rev.
Stat, § 5507, providing for punishment of persons interfering with
election is void.
Syl. 5 (XI, 900). Limitation of habeas corpus.
.\pproved in In re Matthews, 122 Fed. 256, holding Federal
court would not discharge on habeas corpus petitioner who as police
1231 Lelsy v. Hardin. 135 U. S. 100-160
judge shot deserter from army under act June 18, 1898 (30 Stat.
484, chap. 468;) United States v. Fuellhart, 106 Fed. 913, 914, hold-
ing secret service agent has authority to arrest without warrant
person, remote from naaglstrate, who is suspected of making coun-
terfeit coin.
Syl. 8 (XI, 966). Assault on Federal Judge.
Approved In United States v: Eberhart, 127 Fed. 256, holding
placing of handcuffs on person to compel him to execute contract
is not penal offense under Rev. Stat. U. S., § 5508; Lackey v.
United States, 107 Fed. 117, holding Rev. Stat., § 5507, providing
for punishment of every person who attempts to hinder another
from voting, is void.
Syl. 10 (XI, 967). Defending Federal judge.
Approved in Ex parte M*Leod, 120 Fed. 133, 143, holding court
has authority to punish as for a contempt person assaulting United
States commissioner in discharge of his duty; In re Turner, 119
Fed. 234, holding officer of United States army acting under or-
ders of secretary of war is not subject to arrest by State court;
Peters v. Malin, 111 Fed. 254, holding defendant agent of Sac
and Fox tribe of Indians, who had been appointed guardian of
certain minors, had no authority to prevent plaintiff from assist-
ing mother of said .children in removing them from reservation,
the appointment being void; State v. Adler, 67 Ark. 477, 55 S. W.
853, holding where Federal officer is charged in State court with
offense committed in discharge of duty, judgment of United States
court discharging him cannot be attacked in suit by State to
forfeit bail; State v. Boone, 132 N. C. 1109, 44 S. E. 595, holding
Code N. C. 1883, f 1005, relating to carrying concealed weapons,
does not apply to United States mail carrier.
135 U. S. 100-160, 34 L. 128, LEISY v. HARDIN.
Syl. 1 (XI, 967). Commerce power of Congress.
Approved in State v. Hickox, 64 Kan. 657, 658, 68 Pac. 38, fol-
lowing rule; Buttfield v, Stranahan, 192 U. S. 492, 24 Sup. Ct.
354, holding act of March 2, 1807 (29 Stat, at Large, 604, chap. 358),
relating to imiwrtation of tea, is valid; Lottery Case, 188 U. S.
361, 23 Sup. Ct 329, 47 L. 503, holding carriage of lottery tickets
from one State to another by express company Is interstate com-
merce; United States v. Adams Exp. Co., 119 Fed. 242, holding
common carrier which received liquor without the State and de-
livered it to consignee within State C. O. D. Is not engaged In
business of retail liquor dealer; In re Bergen, 115 Fed. 341, 342,
holding Sess. Laws Kan. 1885, chap. 145, § 12, relating to taking
orders for Intoxicating liquors as applied to commercial agents
for liquor-house having place of business In another State, selling
to persons for their own use, is void; State v. Hanaphy, 117 Iowa,
135 U. S. 100-lGO Notes on U. S. Reports. 1232
19, 90 N. W. 002, holding where traveling salesman in Iowa sent
orders to his principal in Illinois for liquors, which were shipped
C. O. D. to buyer, transaction was interstate commeirce; CJom-
monwealth v. Petraiiich, 183 Mass. 219, 66 N. U. 808, holding
Mass. Rev. Laws, chap. 100, § 1, prohibiting sale of intoxicating
liquors without license, is unconstitutional in so far as it excepts
sales of wines manufactured in the State; State v. Intoxicating
Liquors. 94 Me. 339. 341, 47 Atl. 532, holding, under Wilson act,
August 8. 1890, power of State does not attach to interstate com-
merce shipments, while merchandise is in transit, until it arrives
at point of destination; Camp v. State, 42 Tex. Cr. 499. 61 S. W.
401. holding where defendant took orders to erect lightning rods
and equipments were shipped from other States, but after com-
pletoil work before receiving material from consignor, he was not
engaged in interstate commerce; French v. State, 42 Tex. Cr.
224. 58 S. W. 1015, holding agent who received organs from manu-
facturer in another State and sold them from his rig, receiving
payment in cash and notes payable to manufacturer, is not within
Texas occupation tax prohibiting peddling without license; Gale
Mfg. Co. V. Flnkelsteln. 22 Tex. Civ. 242, 54 S. W. 619, holding
where parties in Texas order goods from foreign corporation and
goods are shipped into State with draft attached to bill of lading
suit for purchase price is not affected by Rev. Stat., arts. 745,
740, providing for filing articles of incorporation before suit; La-
sater v. Purcell Mill, etc., Co.. 22 Tex. Civ. 37, 54 S. W. 427, hold-
ing corporation which manufactures goods out of State and ships
thoni into it to commission merchant for sale is engaged in inter-
state commerce within Rev. Stat., art. 745, relative to permits;
Southern Express Co. v. Goldberg, 101 Va. 622, 44 S. E. 894, hold-
ing Va. Code 1887, S 1215, fixing rate of charge to be received by
cMUiimon carriers within State, is unconstitutional; Hathaway v.
McDonald, 27 Wash. 667, 91 Am. St. Rep. 895. 68 Pac. 379, hold-
ing Laws Wash. 1890, chap. 43. § 30, prohibiting sale of renovated
butter, unless so marked. Is not regulation of interstate commerce.
See 79 Am. St. Rep. 633, note.
Syl. 2 (XI, 907). State protection of property.
Approved in Lowry v. Tile Assn., 106 Fed. 44. holding Tile
Mantel & Grate Association of California was an illegal asso*
ciation under anti-trust act of July 2, 1890; Gibbs v. M'Neeley,
lirj Fed. .'08, holding association of manufacturers of shingles
formed for purpose of preventing overproduotion and regulating
priees is not in restraint of commerce within anti-trust law of
ISIM); State v. Smiley, 65 Kan. 248, 249, 69 Pac. 202, holding agree-
ment by all dealers of certain market to buy all their grain at
certain market is in restraint of trade under anti-trust act of
1S07. Kan.; Gale Mfg. Co. v. Finkelstein, 22 Tex. Civ. 242, 54
1233 Leisy v. Hardin. 135 U. S. 100-lGO
S. W. 619, holding where parties order goods from corporation
of another State and bill of lading is attached to draft, suit brought
in State for purchase price is not affected by Rev. Stat., arts.
745, 740, tax relating to suits by foreign corporation.
Syl. 3 (XI, 9C8). State regulation of commerce.
Approved in American Steel, etc., Co. v. Speed, 192 U. S. 520,
24 Sup. Ct. 370, 371, holding State is not precluded from impos-
ing merchant's tax upon nonresident manufacturing corporation
which stores property received from another State in warehouse
and subsequently sells said property; Grossman v. Lurman, 192 U.
S. 196, 24 Sup. Ct 236, holding State cannot prohibit importation
of food for fear it might be adulterated; Atlantic & Pacific Tel.
Co. V. Philadelphia, 190 U. S. 162, 23 Sup. Ct 818, 47 L. 999. hold^
ing telegraph company engaged in interstate commerce may be
compelled to pay municipal license for government supervision
of its poles and wires; Smith v. St Louis & Southwestern R. R.
Co., 181 U. S. 255, 45 L. 850, 21 Sup. Ct 605, holding prohibition
against imi>ortation of cattle from Louisiana, under Tex. Rev.
Stat 1895, art. 5043c, is a valid police power of State; Duluth
Brewing, etc., Co. v. City of Superior, 123 Fed. 358, holding ordi-
nance of city of Superior, November 25, 1895, requiring all dealers
in liquors to procure city license, applies to nonresident manufac-
turer having depot in that city from which sales are made by
agent; Kansas City, etc., Ry. v. Board of Railroad Comrs., 106
Fed. 356, holding State has no power to regulate railroad rates for
goods between two points in State where greater part of distance
is through another State; McKeon v. New York, etc., R. R. Co., 75
Conn. 347, 53 Atl. 657, holding fact that railroad laid tracks in
street in obedience to statute within police power which made
no provision for compensation -cannot relieve company from lia-
bility; Southern Exp. Co. v. State, 114 Ga. 229, 39 S. B. 900, hold-
ing whiskey shipped from one State to citizen of another State
through express company, which shall deliver it upon receipt of
payment, is subject to penal laws of State while in possession of
express company; Meffert v. Medical Board, 66 Kan. 720, 72 Pac.
250, holding State has power to prescribe qualifications of persons
desiring to practice medicine; Corbln v. McConnell, 71 N. H. 351,
352, 52 Atl. 448, holding Pub. Stat., chap. 112, § 19, N. H., making
any person who shall take order for spirituous liquor to be deliv-
ered out of State liable to fine, is in violation of interstate clause
of Constitution; Grossman v. Lurman, 171 N. Y. 332, 63 N. E.
1098, holding Laws N. Y. 1893, chap. 661, § 41, relating to adultera-
tion of food is not violative of Interstate commerce clause of Fed-
eral Constitution; People v. Buffalo Fish Co., 164 N. Y. 104, 79
Am. St Rep. 629, 58 N. E. 37, 38, 40, holding Laws N. Y. 1892.
chap. 488, §§ 110-112, maidng it a misdemeanor to have in the
Vol. II — 78
135 U. S. 161-107 Notes on U. 8. Reports. 1234
possession certain fish during certain period, does not apply to
fish imported from foreign country; dissenting opinion in Austin t.
Tennessee, 179 U. S. 373, 375, 45 L. 237, 238, 21 Sup. Ct 143, 144,
majority holding pacliages containing ten cigarettes which are taken
from loose pile at factory by express company in basinet do not
constitute original pacliages of interstate commerce.
Syl. 5 (XI, 0C9). Articles imported in original packages.
Approved in Cook v. Marshall Co., 119 Iowa, 386, 93 N. W.
373, holding where boxes of cigarettes, each containing ten ciga-
rettes, are given loose to express company for transportation to
another State, each box will not be held an ** original package;"
In re Wilson, 10 N. Mex. 36, 60 Pac. 75, holding section 2 of Acts of
New Mexico, approved March 16, 1809 (Sess. I^aws 1899, p. 101).
as applied to sales of coal oil in original packages by importer,
is void; Saulsbury v. State, 43 Tex. Cr. 93, 95, 63 S. W. 569, 570,
96 Am. St. Rep. , holding where corporation manufactured
buggies and shipped them into State in original packages, con-
taining buggies complete and parts thereof, and when not in stock
the agent of the manufacturer sent orders therefor, he was prop-
erly convicted for peddling without license; dissenting opinion in
Austin V. Tennessee, 179 U. S. 364, 369, 379, 387, 45 L. 234, 236,
240, 243, 21 Sup. Ct 136, 140, 142, 145, 146, 149, majority holding
packages containing ten cigarettes which are taken from loose pile
at factory by express company in basket do not constitute original
packages.
Distinguished in Racine Iron Ca v. McCommons, 111 Ga, 546.
36 S. E. 870, holding United States Constitution does not prevent
State from imposing license tax on traveling agent for principal
residing in another State, who upon receipt of goods breaks original
packages and distributes goods to his customers.
(XI, 9G9). Miscellaneous.
Cited in In re Wolf & Levy, 122 Fed. 130, holding where creditor
sold goods to bankrupt within four months of latter's bankruptcy
and also another Invoice of goods for which payment was not
made transaction is not a preference within bankruptcy act, § 60c.
135 U. S. lGl-167, 34 L. 150, LYNG v. MICHIGAN.
Syl. 1 (XI, 973). Interstate commerce taxed by State.
Approved in State v. Hickox, 64 Kan. 654, 68 Pac. 37, following
rule; American Steel, etc., Co. v. Speed, 192 IT. S. 521, 24 Sup. Ct,
370, 371, holding goods brought from one State to another where
they are hold for sale are not imported within U. S. Const., art. 1,
§ 10. par. 8; Ex parte Green, 114 Fed. 900, holding where person
solicited orders for goods for manufacturer in another State and
the goods are delivered direct to purchaser the solicitor is not
liable for city license tax; Adkins v. Richmond, 98 Va. 95, 34 S.
1235 Notes on U. S. Reports. 135 U. 8. 167-175
B. 968, holding city ordinance requiring resident salesagent for
nonresident principal to pay license for doing business consisting
of negotiating sales by exhibition of samples of goods in another
State is interstate commerce regulation and void; dissenting opin-
ion in Dooley v. United States, 183 U. S. 171, 46 L. 137, 22 Sup.
Ct. 70, majority holding tax imposed on goods imported into Porto
Rico from New York, under 31 Stat, at Large, 77, chap. 191, is
not tax on articles exported from United States; dissenting opinion
in Austin v. Tennessee, 179 U. S. 388, 45 L. 243, 21 Sup. Ct 149,
majority holding prohibition of sale of cigarettes Is within police
l)ower of legislature, provided It does not apply to original pack-
ages or discriminate against cigarettes imported from other States.
See Saulsbury v. State, 96 Am. St. Rep. 849, note.
Syl. 2 (XI, 974). Importation of intoxicants.
Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190
U. S. 163, 23 Sup. Ct 818, 47 L. 999, holding telegraph company
engaged in interstate commerce may be compelled to pay license
for local supervision of poles and wires; Caldwell v. North Carolina,
187 U. S. 627, 23 Sup. Ct 231, 47 L. 339, holding ordinance, under
which license is required from agent of nonresident company who
receives pictures and frames previously ordered, and after plac-
ing pictures in proper frames delivers, them. Is invalid; Minne-
apolis Brewing Co. v. M'Gillivray, 104 Fed. 268, holding S. Dak.
Sess. Laws 1897, chap. 72, regulating sale of liquors, is within police
powers of State; Stone v. State, 117 Ga. 296, 43 S. E. 742, hold-
ing agent who receives goods from manufacturer of another State
who breaks original package and delivers goods is engaged in in-
terstate commerce; In re Wilson, 10 N. Mex. 36, 60 Pac. 75, hold-
ing N. Mex. Sess. Laws 1899, p. 101, § 2, imposing license upon
sale of coal oil, is unconstitutional as applied to sale in original
packages by importer; State v. Zophy, 14 S. Dak. 125, 84 N. W.
393, 86 Am. St Rep. 745, holding S. Dak. Sess. Laws 1897, chap. 72,
imposing tax on parties without State who have wholesale es-
tablishments for sale of liquors within State and exempting manu-
facturers within State, is unconstitutional.
135 U. S. 167-175, 34 L. 84, MACKALL v. MACKALL.
Syl. 3 (XI, 974). Undue influence.
Approved in Meyer v. Jacobs, 123 Fed. 911, holding fact that
daughter exercised great influence over mother, gained by kindness,
is not suflScient to show undue influence where will was made In
favor of daughter to exclusion of another daughter; Klsehman
V. Scott, 166 Mo. 227, 65 S. W. 1034, holding niece of legatee who
had lived with testator for some time and cared for him did not
have the burden of proving absence of undue influence; Campbell
V. Carlisle, 162 Mo. 647, 63 S. W. 705, holding fact that testator
135 U. S. 176-227 Notes on U. S. Reports. 1236
was ninety years old, had no near relatives, and left property
to those with whom he was living and who had been kind to
him, did not show undue influence; Stringfellow v. Hanson, 25
Utah, 491, 71 Pac. 1055, holding no undue influence was shown
under the facts of this case.
135 U. 8. 176-195, 34 L. 88, COMMERCIAL MFG. CO. v. FAIR-
BANK CO.
Syl. 1 (XI, 975). Oleomargarine patent.
Approved in John R. Williams Co. v. Miller, 108 Fed. 967. hold-
ing where interlocutory decree has been rendered sustaining patent
and motion for rehearing because of expiration of British patent
before suit is brought, parties will be allowed to take testimony
in relation thereto.
135 U. S. 195-207. Not cited.
135 U. 8. 207-227, 34 L. 97, TRUST CO. v. GRANT LOCOMOTIVE
W0RK8.
Syl. 3 (XI, 976). Finality of decree.
Approved in Halstead v. Forest Hill Co., 109 Fed. 823, holding
decree or report of master fixing amount and priority of claims
against an insolvent and ordering distribution is final; Kemp v.
National Bank of The Republic, 109 Fed. 50, holding decree de-
termining invalidity of deed of trust is finaL
Syl. 5 (XI, 977). Allowing amendment.
Approved in Henderson v. Ries, 108 Fed. 713, holding where
plaintiflf and defendant entered into copartnership and plaintiff
was to furnish funds to obtain patents and patent was to joint
owners, upon dissolution plaintiff was not entitled to sums ex-
pended by him; dissenting opinion in Hendryx v. Perliins, 114 Fed.
823, majority holding bill to vacate decree for fraud in nature
of bill of review may be filed in judicial discretion of court,
Syl. 6 (XI, 977). Bill of review.
Approved in Chamberlin v. Peoria, etc., Ry. Co., 118 Fed. 33,
following rule; Cocke v. Copenhaver, 126 Fed. 147, holdiug bill of
review, not claiming newly discovered evidence, must be filed
within time for appeal; In re Michigan Cent. R. R. Co., 124 Fed.
730, holding decree against intervener for costs is appealable:
Halstead v. Forest Hill Co., 109 Fed. 823, 824, holding Federal
court cannot entertain petition in nature of bill of review filed
after time for taking an appeal; Copeland v. Bruning, 104 Fed.
171, holding where there is no statute fixing time within which
bill of review may be taken the time prescribed for suing oi:t
an appeal will be followed; First Nat Bank v. Ewing, 103 F^d.
183, holding in action against railroad company in which receiver
1237 Notes on U. S. Reports. 135 U. S. 227-254
has issued certificate, and in which bondholder has intervened^
judgment sustaining validity of certificates is conclusive unless
appealed from; In re Worcester County, 102 Fed. 811, 812, hold-
ing petition for revision of bankruptcy proceedings, under banls-
ruptcy act 1898, § 24b, may be filed at any time within six months
from the ruling.
Distinguished in Hendryx v. Perltins, 114 Fed. 804, holding bill
to impeach prior decree for fraud Is an original bill.
135 U. S. 227-231, 34 L. 122, ST. GERMAIN v. BRUNSWICK.
Syl. 1 (XI, 977). Patent — Application of old process.
Approved in Neptune Meter Co. v. National Meter Co., 127 Fed.
5G7, holding Nash patent No. 433,088, for water-meter, void for want
of invention.
135 U. S. 232-236, 34 L. 153, LODGE v. TWELI/.
Syl. 1 (XI, 977). Decree, when not final.
Approved in East Coast, etc., Co. v. People's Bank, 111 Fed.
449, holding judgment in partition suit ordering sale of land is
final; Ogden City v. Weaver, 108 Fed. 567, holding when action
is tried by stipulation only matters reviewable are rulings made
during trial; Coltrane v. Templeton, 106 Fed. 378, holding order
appointing resident coreceiver to act with receivers previously ap-
pointed entered prior to act June 16, 1900, allowing appeals in such
cases, is not appealable.
(XI, 977). Miscellaneous.
Cited in Popp v. Daisy, etc.. Mining Co., 22 Utah, 462, 63 Pac.
186, holding order appointing receiver pendente lite, under section
3114, Rev. Stat. 1898 Utah, is not final.
135 U. S. 237-239, 34 L. 110, HARTRANFT v. MEYER.
Syl. 1 (XI, 978). Dutiable goods.
Distinguished in Stone v. Heineman, 100 Fed. 940, holding ten-
nis jackets, composed chiefly of wool, are dutiable under para-
graph 370 of tariflf act 1897, and not under 314, covering wearing
apparel, of which cotton is component material of chief value
" not otherwise provided for."
135 U. S. 24(V-244, 34 L. 120, ECKLOFF v. DISTRICT OF CO-
LUMBIA.
(XI, 978). Miscellaneous.
Cited in Husbands v. Falley, 3 Pennew. (Del.) 98, 47 Atl. 1012,
holding Rev. Code Del., p. 328, § 3, limiting amount which might be
raised by tax for building schools, was repealed by 21 Laws,
chap. 67, § 14.
135 U. S. 244^254. Not cited.
135 D. 8. 255-28)1 Notes on U. S. Reports.
135 D. S. 265-262, 24 L. 117, UNITED STATE
Syl. 3 (XI, 979). ConatrucUon of statnte.
Approved In United States v. Wrobleneht,
tnolllng of private seated letter directed to an
cbnrgea against mother of writer la not the
Rot. Stat, | 3893; Mlddleby v. Effler. 118 F
ifhicb shows that defendant wrote anonymoi
acurrllouB, and that It was a State prison c
ondo, WBB Insufflclent to warrant [nstmctlon
to charge that platntllT bad committed crl
United States; United States t. Booker, 98 Fi
dent of national bank cannot be conTlcted, uni
of making false entries In reports hy hank to
Is shown that he signed reports containing fi
by btm.
135 U. S. 263-271, 34 L. 197, IN RE MILLS.
Syl. 4 (XI, 980). Criminal sentence.
Approved tn In re Langan, 123 Fed. 134,
prlsonment" as used In sUtb article of wa
IflOl, p. 966), inclnded hard labor; In re Welt
Ing sentence of defendant convicted of crtm
excess; Haynes v. United States, 101 Fed. 8:
convicted, under statute prescribing punish men
cannot be sentenced to hard labor; People v.
57 N. E. 822, holding person convicted of com
40, Crim Code 111., was properly sentencei
Crlm. Code, Kurd's Stat. 1805. providing th(
limit of sentence.
135 U. S. 271-286, 34 L. 112, UNITED STATl
Syl. 1 (XI, 081). Suit by United States.
Approved in United States v. Butler, 114 Ft
defendant was pBymaaler In army and pay
by clerk and paid by defendant, and clerk set
of money due each workman, defendant was i
Co. V. Itloom. 14 Colo. App. 191. 50 Pac. 419
suit on claim ngalnst county claim must bi
rejected.
Syl. 2 (XI, 931). Recovery of costs by gove
Approved In Pine River Logging, etc.. Co.
U. S. 296, 40 L. 1172, 22 Sup. Ct 927. holdh
of record used on nppeal to Circuit Court of
able costs either under Rev. Stat., I 983, or
of Appeals.
Distinguished in Bice t, Ashland Co., 114
7^
1239 Notes on U. S. Reports. 135 U. S. 286-314
911, holding where county clerk Is authorized to sell land on cer-
tain conditions and he sells for less than amount authorized, and
money was placed in county treasury, county was not liable for
interest until demand by purchaser.
135 U. S. 286-303, 34 L. 155. IRON, ETC., MIN. CO. v. CAMPBELL.
Syl. 4 (XI, 982). Conflicting patents.
Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co., 104
Fed. 44, holding claimant of land who entered under 30 Stat 36,
in lieu of land within forest reserve stating it was free from min-
ing, will not be granted relief against claimant In possession under
oil location who had done assessment worls.
Syl. 5 (XI, 982). Impeachment of patent
Approved in Shoshone Min. Co. v. Rutter, 177 U. S. 513, 44 L.
867, 20 Sup. Ct 729, holding suit brought in support of adverse
claim to mine, under U. S. Rev. Stat., §§ 2325, 2326, is not triable
In Federal court unless construction of mining law is involved;
Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 12, holding
public lands are "vacant and open to settlement" and subject to
selection in lieu of relinquished forest reserve lands covered by
patent under 30 Stat 36, when they are unoccupied by others and
are nonmineraL
Syl. 8 (XI, 982). Contest on application for patent
Approved in Uinta Tunnel Min., etc., Co. v. Creede, etc., Min.
Co., 119 Fed. 168, 170, holding claimant of tunnel site located
across lode claim is not required by sections 2325, 2326, Rev. Stat,
to file adverse claim when application for patents on lode claims
are made to protect his interests in cases in which his interest
in lode is uncertain.
Distinguished in Young v. Goldsteen, 97 Fed. 305, holding, under
act of Congress of May 17, 1884, providing for protecting titles to
land in Alaska, all persons in peacable possession on date of act
are guaranteed right to acquire title thereto.
135 U. 8. 304^^09, 34 L. 208, SOCIETE FRONCIBRE v. MILLIKEN.
Syl. 3 (XI, 983). Delay in bringing suit
Approved in Calivada Colonization Co. v. Hays, 119 Fed. 209,
holding suit by corporation or for cancellation of stock on ground
that issuance was unauthorized cannot be maintained aftef lapse
of six years from time of issuance. See 85 Am. St. Rep. 910, note.
135 U. S. 309-314, 34 L. 210, WILLARD v. WOOD.
Syl. 1 (XI, 983). Foreclosure suit against mortgagor's grantor.
Approved in New York Security, etc., Co. v. Louisville, etc., R. R,
Co., 97 Fed. 232, holding where certain railroad companies con-
solidated agreeing to issue bonds to take up bonds of constituent
I
/
135 U. S. 265-286 Notes on U. 8. Reports. 1240
135 U. a 255-262, 24 L. 117» I7KITED S'^ forced by Indiyidiul
SyL 3 (XI, 979). Ck>n8tractloii of p jopanlei had become In-
Approved in United States v. W^
mailing of private sealed letter dl* . ^erns.
charges against mother of writ ^ V. S. 447, 448» 45 L. 617, 21
Rev. Stat, | 8808; Biiddleby ^ > assumes payment of mortgage
which shows that defendant j; Barker r. Pullman's Palace Car
scurrilous, and that It was ,iere two corporations entered into
endo, was Insufficient to jiv^j all indebtedness against seller.
to charge that plalntUT -^ by creditor; Central Electric Go. t.
United States; United ' . ;,/vd. 926, holding remedy to enforce con-
dent of national ban^ , ^'^tion of third person In Federal court
of making fftlse en' >^; Hudson ▼. Wood, 119 Fed. 769, holding
is shown that he ' /. \^ provides that State procedure shall De
by him. > ; -^^ecntions tn Federal courts, does not include
186U. &a68- .'>*
contract by assign^ee does not make
»yJ-*» .>y^on of
Approve ^^> ^ contract i
]V^irJiich might be prosecuted in State courts;
r^i'^p^nerj Go. v. Dancel, 119 Fed. 695, holding
^tlon 0
,. '^contract so that he may be sued In law by other
PriMMUM' fy<\ 5Urk, 105 Fed. 663, holding where local practice
IMKLf p. C:^*^ '°® ^^ assignee of lessee for rent upon contract
^ ^ j^^^ assignment, such practice will be followed In
^5^Kcklngton, etc., Ry. Go. v. McDevitt, 191 U. S. 115,
^. JJ5-S18, 34 L. 218, NORTHERN PAC. R. R. v. AUSTIN.
s ^ iill. ^^)- Review of action of State court
id'
*\rtd In Jones v. Mosher, 107 Fed. 563, holding right of re-
j!jffh\ch first appears in amended complaint should be exerciseil
^ time allowed to answer, when time is prescribed by local
ear
57
^ fj, S. 319-342. Not cited.
Hj V. S. 342-403, 34 L. 168, YALE LOCK CO. v. BERKSHIRE
BANK.
/ sjl. 1 (XI, 985). Claim of reissue of patent.
Approved In Pfennlnger v. Hubner, 99 Fed. 443, holding where,
jfter having obtained patent on amended application and after
baving seen device successfully operated by defendant, plaintiff
nineteen months later applied for reissue which covered defendant's
device, the reissue was void.
135 U. S. 403-432. 34 L. 222, IN RE BAIZ.
(XI, 080). Miscellaneous.
Cited in Morris v. Linto, 61 Nebr. 539, 85 N. W. 566. holding,
undor Rection G, chapter 73, Comp. Stat 1899, word " consul " means
any person invested with functions of consul-general, etc.
1241 Notes on U. S. Reports. 135 U. S. 432-466
135 U. S. 432-443, 34 L. 231, NEW YORK R. R. v. NATIONAL
BANK.
Syl. 2 (XI, 986). Waiving objections to rulings.
Approved In Haley v. Kilpatrick, 104 Fed. 649, liolding second
appeal brings up only proceedings subsequent to mandate; First
Nat. Bank v. Tyson, 133 Ala. 476, 91 Am. St. Rep. 51, 32 So. 149,
holding erection of pillars of building on sidewalk twenty-two
Inches in front of lot on which building is being erected will be
enjoined when they obstruct light and air; dissenting opinion in
Missouri, etc., Ry. Co. v. Byrne, 100 Fed. 365, majority holding
cause of action for negligence In building cattle yards so that cattle
escaped and were killed may be joined with cause of action for
killing cattle by defendant's engine.
135 U. S. 443-449, 34 L. 219, IN RE LANE.
Syl. 3 (XI, 987). Indictment — Election on charge of rape.
See 87 Am. St. Rep. 186, note.
Syl. 4 (XI, 987). District attorney's signature to indictment
See 87 Am. St. Rep. 185, note.
135 U. S. 44£^-456. Not cited.
135 U. S. 457-466, 34 L. 200, RANDOLPH v. QUIDNICK CO.
Syl. 1 (XI, 987). Equitable aid for speculative purposes.
Approved In dissenting opinion in South Dakota v. North Caro-
lina, 192 U. S. 350, 24 Sup. Ct. 289, majority upholding Supreme
Court's original jurisdiction over suit by one State as donee of
bonds of another State and secured by mortgage of stocks belonging
to that State to compel payment of bonds and to foreclose mortgage.
Syl. 2 (XI, 987). Opposition to transfer to creditors.
Approved in New York Security, etc., Co. v. Louisville, etc., R. R.
Co., 97 Fed. 233, holding where companies consolidated, and con-
solidated company agreed to exchange its bonds for those of the
constituent companies, a delay of nine years by bondholders would
be fatal to compelling exchange.
Syl. 3 (XI, 987). Fraudulent transfers in Federal court
Approved in Robinson v. Belt, 187 U. S. 46, 23 Sup. Ct 18, 47
L. 68, holding assignment for benefit of creditors in Indian Terri-
tory must be deemed valid under the decisions and laws of Ark-
ansas, whose laws were adopted for the Territory (26 Stat, at
Large, 94, § 31); Newton v. Wooley, 105 Fed. 545, holding court
of equity may decree specific performance of contract for sale
of stock in corporation where stock cannot be purchased in market;
Mlnyesheimer v. Dolittle, 60 N. J. Eq. 398, 45 Atl. 612, holding
New Jersey court will not aid judgment creditors to enforce wager-
ing contract, although contracts were made in another State where
they were legal*
135 U. 8. 467-491 Notes on U. 8. Reports. 1242
135 U. 8. 467-477. 34 L. 106, UPSHUR CO. v. RICH.
Sjl. 3 (XI. 088). Removal suit
Approved in Wahl v. Franz, 100 Fed. 704, holding proceedings
for probate of will Is not suit within meaning of sections 1 and 2
of judiciary act of 1888; Ward v. Congress Const. Co., 99 Fed. 603,
holding after decree enjoining building of certain structure, where
third person violates decree, proceedings against him are In nature
of separate suit; dissenting opinion In Bradley v. New Haven, 73
Conn. 654, 48 Atl. 963, majority holding Spec. Laws 1895, p. 578,
as amended by Laws 1897, p. 1180. Laws 1899. p. 175, Conn., relat-
ing to assessment of property In New Haven, is unconstltutlonaL
Syl. 4 (XI, 989). State decisions — Federal courts.
Approved In Union Terminal Ky. Co. v. Chicago, B. & Q. R. R.
Co., 119 Fed. 213. holding petition In State court alleges joint cause
of action against resident and nonresident defendant, cause is not
removable on petition of nonresident unless resident defendant was
joined for fraudulent purpose; dissenting opinion in Wahl v. Franz,
100 Fed. 703, majority holding contest of a will pending on appeal
In State Circuit Court of Arkansas cannot be removed to Federal
court under judiciary act of 1888.
135 U. 8. 478-483. Not cited.
135 U. S. 483-491, 34 L. 272, ANDERSON v. CARKINS.
Syl. 2 (XI, 989). Homestead law.
Approved in Moss v. Dowman, 176 U. S. 418, 44 L. 528, 20 Sup. Ct
431, holding rights of settler in good faith who takes possession
of public land when there is homestead entry on record by another
who has never made any settlement will attach on filing relinquish-
ment of prior entry; Benson v. Files, 70 Ark. 426, 68 S. W. 494,
holding where plaintiff deeded laud to defendant and took mortgage
to secure payment of purchase price, on foreclosure defendant
was not estopped from denying the consideration under Ark. Sandf.
& H. Dig.. § 4573; Mount Carmel Fruit Co. v. Webster. 140 Cal. 184.
185, 73 Pac. 827, holding United States homestead law, prohibiting
sale of land or timber by homestead claimant, does not apply to
conveyance of water flowing from ditch on land and of right of
way made prior to homestead entry.
Syl. 3 (XI, 989). Specific performance denied.
Approved in United States v. Lair, 118 Fed. 100, holding applica-
tion for entry of soldiers additional homestead, under Rev. Stat.,
§ 2306, Is not made under homestead laws, but Is in nature of
bounty to soldier; Milliken & Co. v. Carmichael & Flynt, 134 Ala.
625, 92 Am. St. Rep. 46, 33 So. 10, holding lease of trees on land
which lessee had entered under United States homestead law. being
void as not acknowledged as required by the Code, is only cured
by acknowledgment after final proof; Fleischer v. Fleischer, 11
1248 Notes on U. S. Reports. 135 U. S. 492-500
N. Dak. 231, 91 N. W. 55, holding under facts of this case, in which
the right of defendant to timber-culture entry was involved, a
decree quieting title in plaintiff was proper; Church v. Adams, 37
Or. 363, 61 Pac. 642, holding 20 Stat. 113, § 2, Or., governing timber-
culture claims, does not inhibit claimant from selling claim prior to
final proof.
135 U. 8. 492-500, 34 L. 260, DETROIT v. OSBORN.
Syl. 1 (XI, 990). Municipal liability for torts.
Approved in Denver v. Porter, 126 Fed. 294, holding city Is liable
for negligence of its officers In charge of dumping grounds under
directions of city health department; Blaylock v. Incorporated
Town of Muskogee, 117 Fed. 126, holding, as under chapter 29,
Mansf. Dig., Ark., municipalities were not liable to individuals for
repairs to streets, upon the adoption of this chapter as part of laws
of Indian Territory (chap. 15, Comp. Stat. 1899), the same construc-
tion would be followed; Powers v. Massachusetts Homoeopathic
Hospital, 109 Fed. 297, holding patient in public hospital, under
private management, cannot recover from such corporation for
injuries resulting from negligence of nurse.
SyL 2 (XI, 990). State decisions on municipal liability.
Approved in Coltrane v. Baltimore Building, etc., Assn., 110 Fed.
314, holding, under laws of Maryland since 1878, borrowing share-
holder in building and loan association cannot be required to con-
tribute to losses of association where contract has terminated
before maturity of his stock; In re Hoadley, 101 Fed. 237, hold-
ing rule of New York courts that where property is devised to
beneficiary for life, remainderman has no alienable interest while
life estate is outstanding, will be followed in Federal courts of that
State; Clarksburg, etc., Co. v. Clarksburg, 47 W. Va. 746, 35 S. E.
996, holding, under general laws of West Virginia governing cities
and towns, grant by municipality of privilege of occupying streets
for conveyance of electricity confers valid franchise; dissenting
opinion in Workman v. Mayor, etc., of New York, 179 U. S. 583,
589, 45 L. 329, 331, 21 Sup. Ct 224, 226, majority holding maritime
and not local law governs in determining liability of city for in-
juries to vessel by fireboat owned by city; dissenting opinion in
In re Falconer, 110 Fed. 117, majority holding, under statute of
Arkansas (Sandf. & H. Dig., chap. 78, §§ 3716, 3718), relating to
exempt property of a married man who is a bankrupt, after claim-
ing property worth less than $500 he may amend schedule and
claim money to make up the whole sum.
Distinguished in Workman v. Mayor, etc., of New York, 179
U. S. 557, 45 L. 319, 21 Sup. Ot 214, holding city is liable by mari-
time law for negligence of its servants in charge of fireboat for
collision with another vesseL
135 U. S. 500-549 Notes on U. S. Reports. 1244
135 U. S. 500-507. Not cited.
135 U. S. 507-522, 34 L. 254, WEST v. CAMDEN.
Syl. 1 (XI, 991). Contract against public policy.
Approved in Raymond v. Colton, 104 Fed. 226, holding contract
by which shareholder and officer of joint stock association agreed
to resign bis office and sell his stocls to another shareholder, receiv-
ing in payment goods of the association, is not void between parties
where they are the principal owners of the association; Withers v.
Edmonds, 26 Tex. Civ. 191, 62 S. W. 796. holding agreement between
plaintiff and defendant that plaintiff should secure control of suf-
ficient stock to secure their own re-election and expense should be
shared equally was void; Reed v. Johnson, 27 Wash. 53, 67 Pac.
385, holding contract whereby plaintiffs agreed to convey one-half
interest in certain land to defendant in consideration of efforts to
secure railroad depot was void where certain railroad officers were
to receive one-fourth of the land.
135 U. S. 522-532. Not cited.
135 U. 8. 533-549, 34 L. 262, GLENN v. LIGGETT.
Syl. 2 (XI, 992). Binding effect of decree.
Approved in Hancock Nat. Bank v. Farnum, 176 U. S. 644, 44
L, 621, 20 Sup. Ct. 508, holding judgment against corporation bind-
ing on stockholders must be given same effect in another State;
Howarth v. Lombard, 175 Mass. 577, 56 N. E. 891, holding liability
of stockholders of banking corporation under HilFs Anno. Stat. &
Codes Wash., § 1511, as determined by court, is conclusive on
stockholders on insolvency of bank; Child v. Cleaves, 95 Me. 509. 50
Atl. 717, holding in action in this State by receiver of foreign cor-
poration to enforce liability of defendant nonresident stockholder
In Minnesota bank, defendant is bound by decree appointing re-
ceiver.
Syl. 3 (XI, 993). Stock subscriptions — Statute of Limitations.
Approved in Deweese v. Smith, 106 Fed. 441, holding Statute of
Limitations commences to run In favor of stockholder of insolvent
national bank under section 5151, Rev. Stat, after liability has
been determined by comptroller of currency; Alexander v. Gordon,
101 Fed. 95, holding, under Sandf. & H. Dig. Ark. 1894, § 4841,
providing that second action may be brought within one year after
nonsuit, record in suit to recover land may be introduced to avoid
bar in action of ejectment for same land; De Weese v. Smith, 97
Fed. 318, holding where liability of stockholders of national bank
to assessment on Insolvoney of bank Is conditioned upon sutficiency
of general assets, and receiver is only authorized to proceed against
stockholders after comptroller has determined necessity of assess-
ment. Statute of Limitations commences to run after such deter-
1245 Notes on U. S. Reports. 135 U. S. 550-575
mloation; reversed in 106 Fed. 441; West v. Topeka Sav. Bank, 60
Kan. 533, 72 Pac. 255, holding, when corporation becomes insolvent.
Statute of Limitation commences to run at once upon unpaid sub-
scription, although no calls were made as provided .In subscription;
Hawkins v. Donnerberg, 40 Or. 104, 66 Pac. 693, holding after corpo-
ration's right to collect stockholder's unpaid subscription has be-
come barred, creditor cannot enforce the liability. See 96 Am. St.
Rep. 984, note.
Syl. 5 (XI, 993). Law governing corporation rights.
Approved In Glesen v. London & Northwest American Mortg. Co..
102 Fed. 587, holding defendant, who was an American stockholder
in English corporation, who had not obtained transfer of stock
on books of corporation when he sold his stock as required by the
by-laws, was liable for assessments when corporation went Into
liquidation.
(XI, 992). Miscellaneous.
Cited In Child v. Cleaves, 95 Me. 513, 50 Atl. 719, holding receiver
of Minnesota corporation may enforce stockholder's liability in this
State against resident thereof; Schmltt v. Mahoney, 60 Nebr. 25, 82
N. W. 101, holding, by comity between States, corporations of one
State may sue In court of another unless prohibited by law.
.135 U. S. 550-554. Not cited.
135 U. S. 554-575, 34 L. 235, WASHINGTON, ETC., R. R. CO. v.
McDADE.
Syl. 1 (XI, 994). Master and servant — Liability.
Approved tn Patton v. Texas & P. R. R. Co., 179 U. S. 664, 45
L. 365, 21 Sup. Ct 278, holding where locomotive fireman was
injured by turning of a loose step which he was cleaning and which
was In good condition at beginning of trip and whlcn had not yet
been inspected by regular inspector, no recovery could be had;
King V. Morgan, 109 Fed. 450, holding plaintiff could not recover
for injuries received while he was engaged in tamping dynamite In
a hole in a mine where he had worked for three months and In
other mines for two years; Hodges v. Kimball, 104 Fed. 752, holding
no recovery could be had for death of brakeman when he attempted
to make a coupling without the use of a stick, in violation of rule
of company; New Orleans, etc., R. R. Co. v. Clements, 1(X) Fed.
422, holding where nut was gone from top of brake and when brake-
man attempted to take hold of brake It gave way and he was run
over, he was not guilty of contributory negligence; Empson Pack-
ing Co. V. Vaughn, 27 Colo. 71, 59 Pac. 751, holding evidence showed
that cooker in defendant's cannery was subjected to undue steam
pressure, and that explosion resulting In death of plain tl fit's intestate
was caused by not equipping cooker with safety-valve; .Konold v.
1
13S U. 8. 5M-5T5 Notes <
1 U. S. Reports.
Rio Graade, etc., Ry., 21 Utab, 39S. CO Pac. 102
tbat plalntm did not undertake to incur risks a
IIiacblDer7, but that defendant would malie p
necessary danger should ensue to him. Is erro
Wheel Co. v. Chalkley. D8 Va. 60, 34 S. B. 977,
tiff bad asked his emplojer to repair defect li
ptoyer said tbnt it would be done In sbort
recorer for nu accident wblch occurred twentj
8yL 2 (XI, 005). Assumption of risk.
Approved Id GlenmoDt Lumber Co. t. Roy, '.
employee who was injured by being borne ag:
carriage assumed the risk of his employment; E
T. Miller. 120 Fed. 503. 507. holding young wor
by slipping her fingers Into cogs of gearing I
bad worked more than six months assumed risl
Kenney v. Meddaugh, 118 Fed. 214, holding
will be held to have assumed risk from prozli
crsue; Johnson v. Southern Fac. Co., 117 Fed
man of ordinary Intelligence assumes risk o
vided with different kinds of well-known cou
Sturtevaut Co., 104 Fed. 277. holdlog where e
for more than two years has be<>n to sweep oi
shaft several times a week, was Injured while
no recovery can be had.
Syl. 3 (XI, 095). Liability tor defective mac
Approved in Wt'Stlnghouse, etc.. Mfg. Co. ^
!>3. holding tuiister is not guarantor of safety of
his servants but is bound to furnish applian
Chicago, etc.. Ry. Co. v. Price. 97 Fed. 431, ho
tlons of train collided and caused tank of gaso
over the ground and explosion occurred as i
ing over the ground, a verdict in his favor wll
Syl, 1 (XI. on,")). Negligence is for jury.
Approved In Alaska Slj. Co. v. Collins, i:
In action for Injuries to plaintiff's wharf n
defendant's vessel, question of negligence was
T. Choctaw, etc.. R. R. Co., 121 Fed, 13. he
to use unblocked frogs In railroad freight j
employees are liable to be caught: Northe
Tynan, 119 Fed. 20:!, holding where plalntilfs
while aticnipiliig to eouiiie curs equipped wll
without huviu)' liecn warned of danger, ve;
proper; SIe\icun Cent, Ry. Co. v. Murray, 1<
where plaintiff was engaged In raising span t
loops of track steel around comer of span, pa
1247 Notes on U. S. Reports. l35 U. S. 576-621
the loops and then elevating same by Jack-screws, he did not as-
sume risk of using defective loops and could recover for Injury re-
ceived by being hit by timber which fell from broken loop; Gray v.
Commutator Co., 85 Minn. 471, 89 N. W. 324, holding evidence
showed defendant failed to notify plalntiflf of particular danger of
machinery.
Syl. 5 (XI. 996). Instructions.
Approved in Western Union Tel. Co. v. Morris, 105 Fed. 66, hold-
ing not error to refuse instructions In language of council where
substance is embodied in general charge.
135 U. S. 576-609. Not cited.
135 U. S. 609-621, 34 L. 246, FARRAR v. CHURCHILL.
Syl. 1 (XI, 997). Time for appeal.
Approved in Norcross v. Nave & McCord Mercantile Co., 101 Fed.
797, holding, under bankruptcy act 1898, § 25a, appeal from order of
District Court allowing claim presented by creditor and contested
by another creditor cannot be taken by contesting creditor; dis-
senting opinion in M*Daniel v. Stroud, 106 Fed. 492, majority hold-
ing appeal from order of court in bankruptcy allowing claim
taken in name of other creditors will not be dismissed where
trustee refused to allow use of his name.
Syl. 2 (XI, 997). Assignment of errors.
Approved in Kalamazoo Ry. Supply Co. v. Duff Mfg. Co., 113
Fed. 267, holding, under rules of practice of Supreme and Circuit
Court of Appeals, ruling on evidence Is not reviewable unless
record discloses ruling and exception.
Syl. 5 (XI, 998). Misrepresentations.
Approved in Shappirio v. Goldberg, 192 U. S. 242, 24 Sup. Ct
261, holding misrepresentations are not actionable with reference
to area of real property when purchaser's agent had correct descrip-
tion which he undertook to investigate; Trenchard v. Kell, 127 Fed.
601, holding where plalntiflf purchased timber land, relying entirely
on representations of defendant, he may recover money paid when
representations were fraudulent; Brown v. Smith, 109 Fed. 31,
holding where purchaser of real estate relies on statements of
vendor, but after having examined the property he cannot avoid
contract on ground of fraud; Alger v Keith, 105 Fed. Ill, holding
where purchaser of land was induced to purchase on account of
fraudulent representations to his agents, he may rescind sale when
he learns of fraud; Munkres v. McCaskill, 64 Kan. 521, 526, 68 Pac.
43, holding wher^ agreement for exchange of land provided that
one party should make an investigation before purchasing, his
decision is final unless through fraud of other party he was pre-
vented from making examination.
135 U. 8. 021-CGl Notes on U. S. Reports. 1248
135 U. 8. 621-040, 34 L. 282, RIDDLE v. WHITEHILD.
8yl. 3 (XI, 998). Partnership realty.
Approved in Campbell v. Clark, 101 Fed. 976, holding bill which
alleges formation of partnership, that the defendants had actual
management thereof and that they used firm property to pay their
individual debts states cause of action for settlement of partner-
ship; In re Auerbach*s Estate, 23 Utah, 536, 65 Pac. 490, holding
where will of deceased partner provided that business of firm should
be settled gradually in order to save all parties from loss, a delay
of five years in settlement of business did not justify court in order-
ing sale of deceased*s interest.
Syl. 4 (XI, 938). Statute of Limitations in equity.
Approved in Gibson v. Gibson, 108 Wis. 105, 84 N. W. 23, hold-
ing claim that administrator was trustee and could not invoke
Statute of Limitation to defeat suit by heir to set aside sale is
untenable, since there was no trust precluding running of statute
after surrender of subject of trust pursuant to sale.
Syl. 6 (XI, 999). Partnership — Statute of Limitations.
Approved in Campbell v. Clark, 101 Fed. 975, holding suit for
settlement of partnership is governed by Rev. Stat Tex. 1895,
art. 3356, fixing four years as the limitation for suits for settlement
of partnership accounts; Lendholm v. Bailey, 16 Colo. App. 198, G4
Pac. 589, holding where plalntiflF and defendant dissolved partner-
ship, and plaintiff sent defendant a letter containing statement of
their account which defendant did not answer. Statute of Limita-
tion commenced to run from dale of letter.
135 U. S. 641-CGl, 34 L. 295, CHEROKEE NATION v. SOUTHERN
KAN. RY.
Syl. 1 (XI, 999). Joining causes of action.
Approved in Day v. Bldg, etc., Assn., 53 W. Va. 553, 44 S. E. 780,
holding borrower of building association, in action to cancel loan,
cannot ask to be treated as shareholder with right to call on oflScers
for accounting.
Syl. 4 (XI, 1000). Control over railroads.
Approved in United States v. Rickert. 188 U. S. 439, 23 Sup. Ct
481, 47 L. 537, holding United States may, under 24 Stat, at Largo,
389, chap. 119, maintain suit to restrain collection of taxes on land
allotted to Indians; Williams v. Parker, 188 U. S. 503, 23 Sup. Ct.
442, 47 L. 5G2, holding due process of law is not denied owners of
property damaged by enforcement of restriction on height of build-
ings in Boston, imposed by Mass. act May 23, 1898; Cherokee Nat.
V. Hitchcock, 187 U. S. 305, 23 Sup. Ct. 119, 47 L. 189, holding
Congress, under 30 Stat, at Large, 495, chap. 517, may authorize
secretary of interior to prescribe regulations for leasing of mineral
1249 Notes on U. S. Reports. 135 U. S. 662-721
lands in Indian Territory, notwithstanding 7 Stat, at Large, 478;
Wisconsin, M. & P. R. R. Co. v. Jacobson, 179 U. S. 297, 45 L. 199,
21 Sup. Gt. Gt. 118, holding Minn. Gen. Laws 1895, chap. 91, § 3,
relating to tracli connections and facilities for Interchange of cars
at railroad Intersections, does not constitute unconstitutional regu-
lation of comerce; Western Union TeL Co. v. Pennsylvania R. R.
Go., 120 Fed. 367, holding act July 24, 1866, embodied In Rev. Stat.,
f§ 5263, 5264, authorizing telegraph company to construct lines
over any public domain, does not confer right to condemn right of
way over private property; Muskogee Nat Tel. Co. v. Hall, 118
Fed. 385, holding Congress having provided by 31 Stat. 1083, for
granting franchises for telephone lines in Indian Territory, any
grant previously made by Indian nation In conflict therewith Is
void; Salt Lake City, etc., Co. v. Salt Lake City, 24 Utah, 296, 67
Pac. 793, holding Rev. Stat 1898, § 3597, Utah, providing that In
proceedings to condemn land plaintiff may Improve land pending
suit, Is not taking private property for public use without just
compensation.
Syl. 5 (XI, 1000). Eminent domain.
Approved In Davidson v. Texas, etc., Ry., 29 Tex. Civ. 60, 67
S. W. 1096, holding act Tex. 1899, authorizing railroad company
to take possession of land sought to be condemned before payment
of damages, awarded by filing bond, is constltutlonaL
135 U. S. 662-721, 34 L. 304, McGAHEY v. VIRGINIA.
Syl. 1 (XI, 1000). Federal construction of State statutes.
Approved in Deposit Bank v. Frankfort, 191 U. S. 518, holding
determination by Federal court that State tax law Is unconstitu-
tional Is res judicata, although State court has decided that adjudi-
cation for one year Is not estoppel as to taxes for following year.
Syl. 5 (XI, 1001). Impairment of contract
Approved In Walsh v. Columbus, etc., R. R. Co., 176 U. S. 475,
44 L. 551, 20 Sup. Gt 396, holding contract for perpetual main-
tenance of canals for which lands were granted by act of Congress
May 24, 1828, to Ohio, was not created by acceptance, but obligation
was to maintain canals so long as they are "used" as such;
Parker v. Elmira, etc., R. R., 165 N. Y. 280, 59 N. B. 83, holding,
under laws of New York, a railroad entitled to charge four cents
per mile, which was incorporated into another road charging three
cents per mile, could continue to charge four cents per mile; Davis
V. Supreme Lodge K. of H., 165 N. Y. 170, 58 N. E. 895, holding
section 834, Code of New York, declaring that physician shall not
disclose Information acquired in professional capacity, was not
repealed by Laws 1897, § 1172, providing records of board of health
shall be presumptive evidence, and physician's certificate which was
part of archives was not admissible to prove cause of death;
Vol. 11 — 79
r
135 U. 8. 662-721 Notes on U. S. Reporto. 1230
Mlllhelser, etc., Co. v. Gallege Mills Co., 101 Va. 596, 44 S. B. 766,
holding delivery of warehouse receipt vests title In the goods, irre-
spective of Code 1887, | 1791, Va., which only applies to licensed
warehouses; Danville v. Hatcher, 101 Va. 528, 44 S. E. 725, holding
regulation of sale of Intoxicating liquors is wholly within police
power of State; Farmville v. Walker, 101 Va. 329, 43 S. B. 560.
holding act 1901, chap. 113, Va., establishing dispensary for sale of
intoxicating liquors in certain district. Is valid police regulation;
Kirkman v. Bird, 22 Utah, 113, 61 Pac. 340, holding section 7, p. 99,
Sess. Laws 1899, Utah, exempting married men their earnings for
services rendered within sixty days preceding levy, does not im-
pair obligation of contract entered into prior to its passage. See 05
Am. St Rep. 887, note.
SyL 6 (XI. 1001). Taxation — Production of bonds.
Approved In Oshkosh, etc., Co. v. Oshkosh, 109 Wis. 222, 85 N. W.
381, holding amendment to city charter requiring that in suit
against city a bond approved by city attorney and comptroller
should be given, when not previously required, does not impair
obligation of contract
Syl. 9 (XI, 1001). Shortening Statute of Limitations.
Approved In Oshkosh Water-Works v. Oshkosh, 187 U. S. 439.
23 Sup. Ct 234. 47 L. 251, holding obligation of contract is not
impaired by change in city charter which protects It from suit
upon claim which has not been presented to city council; Saranac
Land, etc., Co. v. Comptroller of New York, 177 U. S. 324, 44 L.
790, 20 Sup. Ct. 645, holding defects in proceedings by which tax
title to land Is acquired will not affect validity of tax title under
N. Y. Laws 1885, chap. 448, after expiration of two years prescribed
therein; Wisconsin Tel. Co. v. Krueger, 115 Wis. 154, 90 N. W.
4G0, holding, under Laws 1901, chap. 319, Wis., authorizing con-
demnation proceedings for construction of telephone lines, and
by section 9, that act shall not apply to pending action, where
telephone pole had been adjudged a nuisance, prior to statute,
condemnation did not entitle company to restrain abatement of
nuisance.
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