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

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NOTES 



^KITED STATES SUPREME COURT REPORTS 

SUPPLEMENTARY TO 

ROSE'S NOTES ON UNITED STATES REPORTS 

SHOWmO THt PltSsmilT AUTHORTTY OF EACH 
CASK A8 DtBGLOABD BY TBS 

CITATIONS 



Horn rtDsiui, and btat* rttom rmt vvBucATton of 

JUTD CVCLUmNO Jin.V 1, ia>l. Wrrri PARALLBt. RSFERENCSa lO 
flTATft RXPORT8 AKD THE REPORTER BYJiTElf 



BY 
CHAS, L. THOMPSON 



or 781 sAir rftjufciscxi iulr 



SITPPLEMENT THRKE 



BANCROFT-WHITNEY CO. 

L*w PmuaHKiu and Booksellers 

BAN FRAJ^CISCO. CALIFORNIA 

19 5 



Copyright, 1W5, 

BY 

BANCROFT- WHITNEY COMPANY 



THE CITATIONS IN THIS BOOK 

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

U. S 192 Mo. App 101 

Law Ed 47 Mont 28 

Fed. Rep 128 Neb 64 

Ala 137 Nev 26 

Ariz. * 3 N. H. 71 

Ark, 70 N. J. Eq 64 

Cal. 142 N. J. Law 68 

Colo 30 N. M 10 

Colo. App 16 N. Y 177 

Conn 75 N. C 133 

Dak. 6 N.D 11 

Del 3 Pennewell. Ohio 69 

FU. ^ 42 Ore 42 

Ga 118 Pa. St 207 

Idaho 7 R. 1 24 

ill 207 S. C 60 

Ind 160 S. D 15 

Ind. App 31 Tenn 109 

Iowa 120 Tex 90 

Kan 60 Tex. Or 43 

Kan. App 10 Tex. Civ * 31 

Kt 112 Utah 20 

U 110 Vt 75 

Md 97 Va 101 

Mi' 98 Wash 32 

MflM 183 W. Va 53 

Mich 130 Wis 118 

Afinn. 89 Wyo 10 

Mi>ia 81 Am. St. Rep 96 

Mo 177 L. R. A 59 

with dnplicate references to the Reporter System. 

289877 



CXXXVI UNITED STATES. 



■ Port 



198 U. 8. l-ea 34 L. 478, LATE CORPORATION, ETC. v. UNITED 
STATES. 
BfL I IXI, 1003). Power of Congress over Territories. 
Approved Id Downes v. Bldwell. 1S2 U. S, 2GS, 45 L. 1009, 21 Sup. 
CL Tn>, T88. 793, holding imposition of duties upon imports from 
Porto Blco by act of Confess Itnown as Forakcr act (31 Stat, at 
terge^ 77. chap. 191) was constitutional: Kansas City, etc.* Ry. v. 
rd of R. R. Comrs., 106 Fed. 350, holding State has no power 
to regulate charges of railroad company for tarrying goods be* 
tv«c!Q two points In same State where road ts largely through an- 
olli«r State; Goetze v. United States, 103 Fed. 84, 85, holding ces- 
tlOD of Porto Rico to United States did cot change stattjs of in- 
faal^Umnts. but only vested title In the soil; dissenting opinion Jd 
Downes v. Bidwell, 182 U. S. 364. 45 I^ 1136. 21 Sup. Ct. 817, 
mijorlty holding Porto Rico by treaty of cession hecame territory 
appurteniint to United States, but not a part thereof within revenue 
claui»e of Constitution. 

Syt 11 (XI, 1004). Prerogative of parens patrlfle. 
Aniroved In Hoadly v. Chase, 126 Fed, 820, holding Federal 
eoorts have no jurisdiction to exercise functions of parens patriic 
for dttermlnatlon of rights to custody of insane person. 
<3a, 1003J. Miscellaneous. 

Cited In Troutmnn v. De Boissiere, GO Kan, 8, 10, 71 Pac, 287, 288. 
Hog pun»0Pt^ng *«> convey lands to trustees In perpetual trust 
provide home for maintenance of children of certain class (a 
void «« against perpetuiUes: WlHls v. Aivey, 30 Tex. Civ. 09, 69 
S. W. 10Q7, holding where testatrix bequeathed property in trust 
tile trust would not fall on account of Inaanity of trustee, but 
rcmrt would appoint proper trustee. 

im a 8L mSB, 34 L. 447, RYAN v, UNITED STATES. 
SyL T P^I* 1005), Estoppel — Warranty deed, 

in Hollyhurton v, Slagle. 132 N. C. 950, 44 a E. 056, 

llDf where husband gave deed of warranty to wife to defraud 

and he subsequently acquired the property through pur- 

tt hU bankruptcy sale, he was estopped from claiming title 

til* wife. 

[1] 




SyL T (% 

iMlDf Wll( 



136 U. S. 89-104 Notes on U. S. Reports. 2 

136 U. S. 89-104, 34 L. 379, KNEELAND v. AMERICAN LOAN CO. 

Syl. 1 (XI, 1006). Rights of foreclosure purchaser. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 218, hold- 
ing where mortgage which covers property and pledges income gives 
mortgagee lien on corpus, mortgage may be enforced on default, but 
income must be impounded by proper proceedings; Mercantile 
Trust, etc., Co. v. Roanoke & S. Ry. Co., 109 Fed. 8. holding where 
railroad company furnished ties and rails for spur track owned 
by another road under agreement, such track did not become party 
of realty, and passed by prior mortgage covering after acquired 
property; New York Security, etc., Co. v. Louisville, etc., R. R. 
Co., 102 Fed. 388, 389, 390, holding where receivers have been 
appointed on application, of complainant to take charge of rail- 
road formed by consolidation of several roads and have Incurred 
preferential Indebtedness, complainant, on foreclosure of all mort- 
gages, is not entitled to have preferential debt apportioned which 
would displace some of the liens in favor of his own; Montgomery 
V. City Council, 99 Fed. 832, holding where purchaser at foreclosure 
sale paid certain taxes which mortgagee and mortgagor claimed 
were not charges against property he could not require court to 
determine validity of tax and require city to refund if invalid. 

Syl. 2 (XI, 1006). Appointment of receiver. 

Approved in Lackawanna, etc., Co. v. Farmers* Loan, etc., Co., 
170 U. S. 316, 44 L. 484, 20 Sup. Ct 370, holding claim for purchase 
of rails to make railroad safe will not be deemed current debt 
which may be paid out of current receipts in preference to mort- 
gage, if repairs amounted to construction of new road; Southern 
Ry. V. Carnegie Steel Co., 176 U. S. 282, 44 L. 470, 20 Sup. Ct. 357. 
holding right to assert claim against property of railroad In prefer- 
ence to mortgage is not afifected by sale of the property held by 
receiver when the rights of claimant are reserved; Southern Ry. 
Co. V. Ensign Mfg. Co., 117 Fed. 420, holding one furnishing car 
wheels to railroad company with knowledge that they are to be 
used in repairing leased road has no preference over mortgages 
which do not include leased road and where receiver did not 
operate the same; Bibber- White Co. v. White River, etc., II. R. 
Co., 115 Fed. 790, holding receiver has no power to issue certificates 
for purpo.se of completing railroad and to make same first lien 
on road without giving bondholders opportunity to be heard; Con- 
tracting, etc., Co. V. Continental, etc., Co.. 108 Fed. 4, holding 
money borrowed to pay interest on matured railroad mortgajje 
coupons will not give lender preference over mortgage; Farmers', 
etc.. Trust Co. v. American Water- Works Co., 107 Fed. 20, 31, 
nolding one who furnishes material or labor in face of recorded 
mortgage for permanent improvements Is not entitled to priority 
over prior mortgage; Jack v. Williams, 106 Fed. 262, holding deed 




I Wt^V^^T 



on U. S. Reports. 



136 U. S. 80-104 



t T^^^^^ -«^^^ Stockholders thereof of all property 

tttW»; \UVt\o\a T:r\^»^ ^*» Bank v, Doud. 105 Fed. l-KX 112, hold- 
ing d&Vtn ot exe^i^*^*^^ ^^ Uioiiey loaned to pay Interest ou prior 
uorti^^ \» \»ter\or ^** Mortgage upon receivership lo foreclosure; 
W\ilkTow l.xim\>er Co. ^' Glasgow luv, Co,, 101 Fed, 867, holding 
ftVpoftnUnent of receiver for property npon whjfb buildings are 
%^|gi^ ^r^seled. does not relieve contractor from necessity of complying 
wltSi »iatiatory requirement In order to entitle hi in to mechanic's 
1l«a; limrjland Steel Co. v. Gettysburg, etc., Ry, Co.. 00 Fed. 151, 
laSL 188, tioldlDg debt created In rebuilding power-house is not 
P fftoF t id to prior mortgage covering all the property; Merrmm 
T* Victory Mln. Co., 37 Or. 332. m Pac. 900, holding right of court 
mpgoinUug receiver to give priority to unsecured debts over first 
taoniCiC^ bonds applies only to railroads. 

SyL 3 iXl, 1007). Priority of lailroad creditors. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 227, 220. 

iuajiro cements made on property cannot be paid for out of 

iccmlng after mortgagee to whom Income was pledged 

tea ia0elt«Hl bis right thereto; Soutbern Ry. Co. v. Ensign Mfg. 

Co., 117 F^X i22. boldlng necessity of supplies, that person re- 

ISftl upon ciiort for protection, and that debt was contracted within 

•hstt dcti? before aji point me nt must be 8bown to give priority there- 

»fm QfwwT mortgage; Illinois Trust, etc.. Bank v. Dtmd, 105 Fat 
142* 141, holding current expenses Incurretl lo operating railroad 
1^ receiver for rectsonuble time before appointment may be al- 
lonfd In preferenct? to prior mortgage bonds; International Trust 
Co. r, L*nlted Coal Co.. 27 Colo. 25(j, GO Pac. (125, holding receiver 
of orditiarj Injuilvent corporation has no authority to make In- 
4clili«lo*^ft for carrying on business Uen on property superior to 
tbst of prior Uenhotdcrs. 
9jL 4 (XU 1007), riecelvers — Operating expenses. 

oTer! In *?<>«them Ry. v. Carnegie Steel Co., 17G U, S, 284, 44 

20 Sup. Cl 3ii8, holding debt for rails bought by receiver 

Denied Iw ofverate railroad Is current debt and has preference over 

mort£Mg9> dfbt; Royal Tni?t Co. v. Wasihburti, B. & I. R. R. Co.. 

dD Fed. IX boldlng seller of rails to railroad reserving Hen 

fiiffoo dunot enforce It agnlntft receiver's certificates for maio- 

fSlolBif roatd; PldeUiy Insurance, etc., Co. v. Norfolk, etc.. R. R. 

Cia^ tif Fed. *IOn. boldlng Judgment against railroad after It bas 

l^wm plJiciNl l« h»nd« of receiver Is not entitled to priority over 

titim of mortfTiigc from enrwlnf^s of recelverRbip; Van Frank v, 

Uimdmn Pac. Ry- ^' ^*<^* A pp. 4(»9, 471, holding trathc babinces 

4ut fram one railroad to another are preferred to mortgage; Spelser 

r, IfercbJioUi' ExcU. Bank, 11<» Wis. 520, 86 N, W, 248. holding re- 




136 U. S. 104-114 Notes on U. S. Reports. 4 

celver appointed In sequestration proceedings was entitled to ex- 
penses incurred in defending property. 

Distinguished in Van Franlc v. Missouri Pac. Ry., 89 Mo. App. 
475, holding unsecured creditors of railroad must have recourse 
against earnings of the road and bondholders against the property. 

Syl. 5 (XI. 1009). Priority of lienholders. 

Approved in Rhode Island Locomotive Worlts v. Continental 
Trust Co., 108 Fed. 7, holding where intervenor sold twelve loco- 
motives through third party to defendant and toolc its notes for 
payment of balance of purchase price, upon insolvency of defend- 
ant, purchase was not considered current expense; Farmers', etc., 
Trust Co. V. American Water- Worlts Co., 107 Fed. 30, holding 
current expenses for limited time before appointment of receiver 
and claims of surety who have executed bonds to prevent forced 
sale may be preferred in payment; Van Frank v. St. Louis, etc., 
Ry., 89 Mo. App. 499, holding claim for printed matter and sta- 
tionery furnished mortgagor cannot displace the mortgage as 
operating expenses. 

(XI, lOOG). Miscellaneous. 

Cited in Atlantic Trust Co. v. Dana, 128 Fed. 230, holding where 
receiver intervenes in foreclosure and litigates claim of mortgagee 
to fund due the coiT)oratlon a decree in favor of mortgagee is 
binding on all parties by receiver; Louisville & N. R. R. Co. v. 
Memphis Gaslight Co., 125 Fed. 1(X), holding where complainant 
furnished coal to defendant for use in its business and its assets 
were subsequently sold by receiver without any insolvency pro- 
ceedings to pay bonds, in action by complainant to subject prop- 
erty to his debt he must allege date of diversion; First Nat. Hank 
V. Wyman, 16 Colo. App. 472, 66 Pac. 457, holding on insolvency 
of railroad belonging to mine and not operated for public, money 
borrowed to keep road in operation cannot be preferred to mort- 
gage securing bonds; Van Frank v. Brooks, 93 Mo. App. 427, 67 
N. W. (592, holding surveyor who staked out railroad line is entitled 
to lien under Rev. Stat. 1889, § G741, Mo., relating to persons en- 
titled to liens; Pacific Lumber Co. v. Prescott, 40 Or. 384, 67 Pac. 
211, holding where receiver contracts to sell property and buyer 
with approval of court assigns contract to tliird person who agrees 
to perform, latter becomes party to proceedings and is bound by 
order afterward annulling contract. 

130 U. S. 104-114, 34 L. 391, McCALL v. CALIFORNIA. 

Syl. 1 (XI, 1010). State license — Commerce. 

Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. 
S. 1G2, 23 Sup. Ct. 818, 47 L. 999, holding telegraph company en- 
gaged In interstate commerce may be compelled by municipality 
to pay license for local supervision of poles and wires; Stockard 



Notes on U. S. Reports. 



13(3 U. S. 114-lU] 



r. Morgan, 185 U. S. 34, 46 L. 1D3, 22 Sup. Ct 579, bolding tax 

[isifioeed by State upon residents of State who solicit orders from 

|nxstotiit;r8 in State as agents for nonresident principals to be shipped 

Ito the ciastoiners is unconstlttitional ; Norfolk, etc., Ry. Co. v. 

Sims, 191 U. S. 4r>0. holding license tax Imposed Ivy N. C. Laws 

19Q1. ^ 116, I 52, relating to those engaged in sewing maeliine 

Imsloess. Is unconsititutional as applied to sale of single machine 

i^pfied Into Stnte upon order of customer; WHilams v. Fears, 110 

G«. 502, 35 S. E. 700, 702, holding term '' emigrant agent*' in gen- 

tral tax act 1898 means person engaged In hiring hiborers in this 

StAte to be employed beyond limits; State v, HIekox, 64 Kan. 

654« 08 Pac 37. holding State law which places restrictions upon 

taldns orders by nonresident salesman for liquors to be purchased 

ta and imported from another State where orders are subject to 

approTa] of nonresident merchant is burden on interstate com- 

meire; Adklns v. Richmond* 98 Va. 98, 34 S. E, 900. holding city 

ordinance requiring resident salesagent of nou resident principal 

to pajr tax for business consisting of exhibiting samples of goods 

Id another State is regulation of commerce. 

Distlngnished In Williams v. Fears* 179 U. S. 277. 45 L. 180, 21 
Sup* Ct. 130, 131, holding license tax upon emigrant agenl5(. undei* 
Ga* Laws 1808. p. 21. par, 10» f 4. which leaves laborers free to 
make their own contracts. Is unconatitutlonaL 

136 U. 8. 114-121, 34 L. 304, NORFOLK, ETC., R. U, T. PENN- 
SYLVANIA. 
Syl. 2 (XI, 1012). Construction of Fourteenth Amendment 
Approved In Tolerton, etc., Co. v. Harck, 84 Ikltnn. 4m, 88 N. 
W. 20. holding Minn. Laws 181)5. chap, 332. is not prohibition 
ijajpalnst doing business In State unless law is complied with, but 
»rtcSea tneibod of obtaining jurisdiction over such corporations. 
Syt S (XL 1032), Foreign corporation in interstate business, 
ApproTod in Stockard v. Morgan, 185 U. S. 34. 40 L. 70a. 22 Sup. 
CL 5TS». holding State tax on residents as brokers, whose business 
la le folicU orders within State as agent for nonresident parlies 
ferfooda to be shipped to customers, is nnconstitutluiial 
Syt 4 fXI, 1013). Railroad engaged in interstate commerce. 
ApfirviTed In Wall v, N. & W. R. R., 52 W. Va. 497, 44 S. E. 20D, 
H Am. SL Rep, OCO, holding ears of defendant while being con- 
r^jrcd froiD one State to another loaded under agreement between 
amoiher railroad company and defendant cannot be levied on un- 
te attarhnient Against defendant, 
(Xt^ 10121. Miscellaneous. 

Cttad In Appendix. 97 Me. 503, 594, holding legislature fs not 
UiMtlted I'J Constitution from limiting insurance companies to 
of one standard lire Insurance policy. 



136 U. S. 121-237 Notes on U. S. Reports. 6 

13G U. S. 121-211. Not cited. 

136 U. S. 211-222, 34 L. 336, UNITED STATES v. NORTH CARO- 
LINA. 

Syl. 1 (XI, 1014). Interest against sovereign State. 

Approved In South Dakota v. North Carolina, 192 U. S. 321, 24 
Sup. Ct. 277, holding In action on bonds issued by North Carolina, 
secured by railroad stocls, no interest can be recovered; Monteith 
V. Parlter, 36 Or. 175, 78 Am. St. Rep. 769, 59 Pac. 193. holding 
where city warrant is not paid on account of no funds and five 
otlier warrants are issued in lieu of original, they draw interest from 
date of original warrant. 

(XI, 1014). Miscellaneous. 

Cited in South Dakota v. North Carolina, 192 U. S. 330, 24 Sup. 
Ct. 275, 276, 284, holding original Jurisdiction of Federal Supronu' 
Court, under .Const, art. 3, § 2, extends to suit by South Dakota 
as against North Carolina on bonds secured by mortgage of rail- 
road stock belonging to North Carolina; New Dundorbt»rg Min. Co. 
V. Old, 97 Fed. 153, holding in action for conversion of mining 
ore Injured party may recover interest from date of conversion. 

136 U. S. 223-237, 34 L. 341, UNION BANK v. KANSAS CITY 
BANK. 

Syl. 2 (XI, 1015). State decisions on assignments for creditors. 

Approved in Williams v. Gaylord, 102 Fed. 374, 375, holding 
construction of Cal. Stat. 1880, p. 131, | 1, providing for disposition 
of property of mining corporation placed thereon by State eoui't. 
is binding on Federal courts; American Surety Co. v. Worcester 
Cycle Mfg. Co., 100 Fed. 44, holding, under laws of Connecticut, 
chattel mortgage is invalid as to after ac(iuired property as against 
third parties, unless mortgagee has taken possession before oth«n- 
rights intervened. 

Syl. 7 (XI, 1017). Authority of receiver. 

Approved in Robinson, etc., Co. v. Belt, 187 U. S. 46, 23 Sup. 
Ct. 18, 47 L. 68, holding assignment for benefit of creditors must 
be deemed valid in Indian Territory In view of decisions of Arkan- 
sas, whereby 26 Stat, at Larg(i^ 90, § 31, Arkansas laws, concerning 
assignments for benefit of creditors, were adopted for Indian Ter- 
ritory; Atlantic Trust Co. v. Dana, 128 Fed. 218, holding where 
at commencement of suit to foreclose mortgage given by corpo- 
ration property was in hands of receiver mortgagee property in- 
tervened in receivership proceedings and thereby gained prior right 
to earnings of receiver as against ordinary creditors; Lewis v. 
American Naval Stores Co., 119 Fed. 390, holding appointment of 
receiver by District Court of Alabama for New Jersey corporation 
vested lilni with right to possession of property In Louisiana as 
against later application by another person; Hale ▼. Tyler, 10^ 



Notes on U. S. Reports. 136 U. S. 237-25G 



FW. 7S©. holding special receiver appointed by Minnesota court 
cmn mnlnlaiia ancillary suits In Federal court of another Jurisdlc- 
doii to enforce statutory liability of nonresident stockholders in 
SnaoilveBt Minnesota corporation; Cramer v. ller» tS3 Kan. 583» tJtJ 
Pac. mS, holding priority of judgment lien Is not affected when 
jiroperty passes to receiver, nor is it impaired by fact that execu- 
tJoii has not been taken out before expiration of one year after 
r«ul]tion; Hay ward y, Leesou. 176 Mass. 325. 57 N. E. 063, hold- 
ing receiver of insolvent foreign corporation cannot maintain ac- 
tion Against promoters to recover secret profits made hy them 
oat of sale of property owned by corporation; City Nat Bank 
». CluirleB Baker Co.. 180 Mass. 41, Gl N. E. 224, holding Acta 
1882. chap. 165. Mass*, autliorlzing taxing property ht4d by assignee 
InsolYency, cannot authorijse taxation of receiver for personal 
ty held by htm; Longley v. Hosiery Co.. 128 Mich. 198. 87 
JL W, 210, holding where corporation gave mortgages to certain 
creditors as trustee for themselves and others, proceedings to fore- 
dose mortgages by receiver appointed by creditors did not con- 
■titiite common^aw assignment, and unsecured creditors were not 
entitled to share in benefits of mortgages; Murtey v. Allen, 71 
Vt 381, 7C Am, St Rep. 781, 45 AtL 753, holding receiver of In- 
wlvent bank In Nebraska cannot maintain action in Vermont for 
iBfortement of stockholder's liability. 

lae 17. g. 23T-241, Not cited. 

138 U. R 24e--256, 34 L, 419. HAMILTON v. LIVERPOOL, ETC., 
INS. CO, 

Syt 2 (XI, lOld). Insurance stipulations. 

Approved In Munson v. Straits of Dover SS. Co., 99 Fed. 780, 
holding breach of agreement to arbitrate In charter party will not 
Afford basis for action for damages; Insurance Co. v. Jlorton, etc, 
Co., IOC Tcnn. 572, 573, 01 S. W. 790, holding clause in policy of 
bummnce that loss shall be determloed hy appraisement in case 
of disagreement is condition precedent to action on policy; Mont- 
i*oHJ4Ty V. American Gent Ins. Co,, 108 Wis. IGO, 84 N. W, 179, 
holding prorlslon in ln.surance policy that In case of loss award 
of apr^caiBen should be prima facie evidence of amount of loas 
»Hd DDi prevent agreement that award should be final; dissenting 
#»plaloQ in Western Assur. Co. v. Decker, 98 Fed. 383, majority 

tiding where Insurance policy provides that In case of diaputo 
to«Mi matter shall be submitted to appral&er^ appointed by 
tisrties^ iBnared discharged his dnty when he appointed an ap- 
tvutimTt and upon failure of appraisement he may resort to court. 

Syt 3 (XI, 1020). Refusal to submit to agreed appralsetnenl. 

I In Fisher v. Insurance Co.. a' Me. 490, 50 Atl. 284, 
• lenct?, etc,, lus. Co. v. Board of EducatloUi 40 W, Va. 



136 U. S. 257-286 Notes on U. S. Reports. 8 

376, 38 S. E. 686, both following rule; New Telephone Co. v. Fo- 
ley, 28 Ind. App. 419, 63 N. E. 57, holding where plaintiff had 
contracted to repair street and amount due should be ascertained 
by certain person plaintiff must show performance by person 
named; Vlnlng v. Franklin Fire Ins. Co., 89 Mo. App. 324, hold- 
ing denial of liability on insurance policy is waiver of adjustment 
and appraisement; Insurance Co. v. Camahan, 63 Ohio St. 271, .58 
N. E. 809, holding, under policy of insurance providing that in 
case of loss disagreement as to amount shall be submitted to arbi- 
tration, the arbitration is condition precedent to commencing ac' 
tion; Insurance Co. v. Morton-Scott-Robertson Co., 108 Tenn. 388, 
07 S. W. 817, holding saving of salvage goods by assured will 
not Justify one of several insurers from refusing to pay policy 
when sufficient is left to enable insurer to exercise option to take 
pro rata of salvage; dissenting opinion in Western Assur. Co. v. 
Decker, 98 Fed. 385, 386, majority holding, under policy of insur- 
ance providing that dispute shall be submitted to arbitrators, after 
their failure to agree, parties were not compelled to select other 
appraisers, but might resort to court 

Distinguished in Connecticut Fire Ins. Co. v. Cohen, 97 Md. 304, 
55 Atl. G78, holding under policy of insurance which provided that 
in case of loss disagreement as to amount should be submitted to 
arbitrators, failure of arbitrators to agree would not prevent suit 
for loss; Chalnless Cycle M. Co. v. Security Ins. Co., 109 N. Y. 
311, 62 N. E. 394, holding where insured knows insured desires 
appraisal before property is further injured, insured cannot postpone 
appraisal until property is sold. 

136 U. 8. 257-268, 34 L. 514. IN RE PALLISER. 

Syl. 3 (XI, 1021). Trial of postmaster — Jurisdiction. 

Approved in Stewart v. United States, 119 Fed. 93, holding where 
prisoner is arrested on warrant based on Indictment in foreign 
district and committed solely on indictment court has authority 
on habeas corpus to examine indictment; Davis v. United States. 
104 Fed. 138, holding, under 1 Supp. Rev. Stat, p. 687, making 
it a misdemeanor to secure transportation by means of false state- 
ments as to weight, prosecution can only be had in district where 
illegal rate was secured. 

136 U. S. 208-286, 34 L. 349, CHICAGO RY. CO. v. MERCHANTS* 
BANK. 

Syl. 1 (XI, 1022). Chattel mortgages. 

Approved In O'Roiirke v. Wahl, 109 Fed. 277, holding where note 
and trust deed securing it were signed and delivered to trustee 
to be held until acknowledged by debtor, a transfer thereof by 
trustee to innocent purchaser in violation of instructions would 
be valid. 



Notes on U. S. ReportB. 136 U. S. 2ST-300 



Sj^L 2 (XI. 1022). Negotiable note. 

Approved In Frost v, Fisher, 13 Colo. App. 336, 58 Pac. 877, 
J|M>IdJng under deed of trust securiug negottuble uote provided if 

tes and insurnnce were not paid tbey might be paid by trustee 
tnd be secured by same deed of trust, tbe additiooal sum^ were 
diargeable on land, but were not part of note makiug it not 
negotiable: Hunter v. Clarke, 184 IlL 1C2, 75 Am, St, Rep, 11)3. 50 
K EL 299» holding purchaser of note before due without notice of 
jisjnient not Indorsed on note may recover full amount; Clarli v* 

keen, 61 Kan. 529. 78 Am. St, Rep. 339, GO Pac, 328, boldlug 
providing in case of default to paymaut of Interest wbole 

IMiant shall become due and draw greater rate of interest is 
oUable: leader v. Plante, t»5 Me. 342, 50 Atl. 55, holding note 
psyable '* within one year after date '* Is payable tn one year after 

\ date with option to pay it before maturity. 

gf J. 3 (XI, 1022). Note payable before maturity. 

Approved in Washington Co, v. Williams, 111 Fed. 800, holding 
bonds which are to be paid from special fund to be raised by 
annual levy of specified rate are nonnegot table under Consol. Stiit. 
N'cbr., I 296S: City Nat, Bank v. Goodloe- McClelland Com. Co., 
93 Mo. App. 137, holding words. ** The makers and iudorsers agree 
to all extensions and partial payments before or after maturity 
without prejudice to the holder," does not destroy negotiability, 

(XI, 10^. MtscellaneouB. 

Cited fn dissenting opinion Id American Press Assn. v* Dally 

ory Pub. Co,, 120 Fed. 771. majority holding owner of copyrighted 
~|if^Mtliction does not lose the property thei*eln by licensee omitting 
UdUl copyright notice, 

\m tJ. 8. 287-300, 34 L. 408, THOMPSON v, PHENIX INS. CO. 

8yL I (XI, 1022). Unauthorized act of receiver 

AplicOTed In Kochat v. Gee, 137 CaL 500, 70 Pac, 470, holding 
rtceiver was properly credited with money paid to satisfy cred- 
llori of partnership which was necessary In order to enable him 
to complete contract made by partnership; In re Hamilton, 10*3 
SIS, holding where policy of insurance wns pledged to baniv 
gtenrSty for debt and subsequently Insured became Insolvent 
•ad policy was assigned to receiver, with conwent of insurer, the 
tt^Mxtrt was entitled to insurance as against bank when bank 
m-^ives premiums paid by it; Pullls v. Pullls Bros. Iron Co., 90 
Uo. ApjK 252, holding receiver may be reimbursed for reasonable 
^tlajr IQ taking care of property; Weller Mfg. Co. v, Eaton. 81 Mo, 
Am, 063^ boldlDg judgment may be attacked collaterally by show- 
ing P^rty wns dead when it was rendered; Richardson v. Tyson, 
m Wli, QS3, 58C» 86 N. W. 253. 254, holding where guardian ad 



136 U. S. 287-300 Notes on U. S. Reports. 10 

litem who Is an attorney employs counsel to assist liim he should 
be allowed reasonable compensation. 

Syl. 3 (XI, 1023). Reformation of insurance policy. 

Approved in Chicago & A. Ry. Co. v. Green, 114 Fed. 677, hold- 
ing court has Jurisdiction to reform release in which through mis- 
take name of party paying consideration was erroneously stated, 
and by Inserting part of consideration, which fact entered into 
settlement 

Syl. 5 (XI, 1024). Construction of Insurance policy. 

Approved in McMaster v. New York Life Ins. Co., 183 U. S. 40, 
46 L. 73, 22 Sup. XJt. 16, holding on question of forfeiture of 
insurance policy, where provisions are inconsistent, construction 
which will sustain policy will be adopted; American SS. Co. v. 
Indemnity, etc., Ins. Co., 108 Fed. 424, holding when hull and 
machinery of steamship are separately valued in policy of insur- 
ance the parts thus separated are to be treated as distinct insur- 
ances; Gross V. New York, etc., SS. Co., 107 Fed. 520, holding where 
shipper insured his shipment and consignee having paid draft 
against shipment Insured them on open policy not knowing of 
previous insurance, there was no double Insurance; Holmes v. 
Phenix Ins. Co., 98 Fed. 242, holding under the terms of policy 
insuring against loss by storms, but providing that no loss result- 
ing from hail or lightning shall be paid, or from blowing down of 
chimneys, unless other loss occur, damage done by hail or lightning 
Is not covered by policy; Royal Circle v. Achterrath, 204 111. 560, 
68 N. E. 406, holding clause in life insurance policy that it is to be 
incontestable after certain date is to be liberally construed in 
favor of insured; Campbell v. Fidelity, etc., Casualty Co. of New 
York, 109 Ky. 672, 60 S. W. 495, holding where Insured was killed 
by person whom he had assaulted, a recovery of life Insurance 
could be had unless he unnecessarily exposed himself to danger; 
dissenting opinion In Crew-Levick Co. v. British & Foreign Marine 
Ins. Co., 103 Fed. 54, majority holding where marine policy pro- 
vided that goods should be delivered at place, name of which 
was left blank, but rider attached thereto which was contract 
stated that property was ** oil in tank cars in transit," a delivery 
was made by placing the cars on private siding of Insured by its 
direction; dissenting opinion in McMaster v. New York Life Ins. 
Co., 99 Fed. 878, majority holding provisions In insurance policy 
that premiums shall be paid annually is not inconsistent with 
provision fixing time for payment of second annual premium six 
days less than a year from date of policy. See 95 Am. St. Rep. 
380, note. 

Syl. 6 (XI, 1024). Estoppel of Insurer. 

Approved in Order of United Commercial Travelers v. M*Adam, 
125 Fed. 362, 363, holding, under laws of Order of United Com- 



u 



Notes on V, S. Reports. 13(i U, S. 300-330 



' neirfal Travelers of America, local council may pay assessments 
for ddioqaent meniUer and keep him in good standing and supreme 
caiiBcQ ciuuiot av'old payment on ground that member was not in 
good standing; Ferguson v. Providence, etc.» Ins. Co., 125 Fed. 
1^ holding noder policy Insuring tug against damage to any vos- 
9^ for which tug is legally liable insurance company is liable 
foe damages caused by sinking scow wbicb tug towed into dan- 
geroQ^ place when tug has been subjected to liability; Fidelity. 
etc, Co. V. Love, 111 Fe<L 775, query whetber limitation contained 
III lite Insurance policy reqiilrlag action wit bin six montbs after 
death runs from that time or from time right accrued uadex other 
provisions; De Farcounet v. Western Ins. Co*, 110 Fed. 410. hold- 
ing where libelants shipped petroleum covered by Insurance and 

I TiSfiel and cargo were sold to pay salvage and other expenses, 
fa action on policy judgment on master^s bottomry draft in which 
tale was held Invalid was not admissible. 
<XI, 1022). Miscellaneous. 

ated in Randolph v, Scruggs. 190 D, 8. 539, 23 Sup. Ct 712, 47 
L. 1171^ holding claims for services rendered to assignee prior to 
adjndic^ition in bankruptcy against assignor within four months 
•re preferred claims. 

13« U. S. 300-312. 34 L. 414, ALLEN v. HANKS. 

8yl 2 {XI, 1025). Separate property of wife. 

Afiproved In Rose v. Rose, 104 Ky. 53, 40 S. W. 526, holding 
riiflil of husband to use of wife's real entate with power to rent 
tt confnTed by Gen. Stat., chap. 52, art, 2, j 1. Ky.. became 
Teftetl right when land was acquired by wife, and as to land already 
ncqnlred was not affected by act of 1S94. See 84 Am. St. Rep. 
4il. note. 

{Kit 1025). ^Ijscellaneous. 

atiHl In Twin CJty Power Co, v. Barrett, 126 Fed. 306, hold- 
ing where complainant who bad certain options on land transferred 
tiietn to a company with understanding by certain date bonds 
would he given in consideration thereof or options returned, the 
etmrt properly compelled purchase of the options; Jones v. Mutual 
Fidelity Co., 123 Fed. 520, holding unsecured creditors may obtain 
tppoiniment of receiver for Insolvent corporation under Del. statute. 
Manl) 25, m»L 

m a a 313-^30. g4 l. 455. Minnesota v. r.\rber. 

BjL 1 (XI, 1025). Constitutionality of meat Inspection law. 

ApprOTiHi In Booth v. Illinois, 184 U. S. 420, 40 L. 020, 22 Sup. 
Cl 127, hol4llng prohlUIUon ngjiln»t options to buy grain at future 
tim**, iioder III. Crlm. Code. § l^o, is not unconstitutional; State 
r, Dalton, 22 R. L 82, 40 All, 235, holding Pub. Laws, chap. m2. 
it. U milk In jT It a misdemeanor to give '* trading stiiuit>s/' is un- 



136 U. S. 313-330 Notes on U. S. Reports. 12 

coustitutional; People v. Buffalo Fish Co., 164 N. Y. 102, 79 Am. 
St. Rep. 627, 58 N. E. 37, holding Laws 1892, chap. 488, §§ 110, 
112, N. Y., relating to possession of certain fish during certain 
period, does not apply to fish caught in foreign country and im- 
ported into State; State v. Zophy, 14 S. Dal£. 125. 84 N. W. 393, 
86 Am. St. Rep. 745, holding Sess. Laws 1897, chap. 72, S. Dais., 
imposing tax on parties without State having wholesale estab- 
lishments in State, and exempting manufacturers within State. Is 
unconstitutional. 

Syl. 3 (XI, 1026). Inspection of meat. 

Approved in Austin v. Tennessee, 179 U. S. 344, 45 L. 226, 21 
Sup. Ct. 132, holding prohibition of sale of cigarettes is within 
police power of legislature providing it does not apply to original 
paclsages or discriminate against cigarettes imported from other 
States; Pabst Brewing Co. v. Crenshaw, 120 Fed. 152, holding 
act Mo. May 4, 1899, providing for inspection of beer and malt 
liquors, is not in violation of interstate commerce clause of L>ou- 
stitution; State v. Duels worth, 5 Idaho, 647, 95 Am. St. Rep. 202, 
51 Pac. 457, holding Laws 1897, p. 115, Idaho, providing that sheep 
shall not be imported into this State unless they are first dipped, 
are repugnant to commerce clause of Constitution. 

Distinguished in State v. Bixman, 162 Mo. 26, 62 S. W. 833, hold- 
ing Laws 1899, p. 228, Mo., declaring that all beer and malt liquors 
shall be made from certain cereals and* inspected, is proper exer- 
cise of police power. 

Syl. 4 (XI, 1027). Inspection of meat — Restraint on commerce. 

Approved in Smith v. St. Louis, etc., R. R. Co., 181 U. S. 255, 
45 L. 850, 21 Sup. Ct. 005, holding prohibition against importation 
of cattle into Texas from Louisiana until certain date because 
anthrax was liable to break out in that State is proper exercise 
of police power of State; Reid v. People, 29 Colo. 342, 68 Pac. 230, 
1)3 Am. St. Rep. 76, holding Sess. Laws 1885, p. 335, § 2, Colo., 
relating to importation of cattle is not regulation of interstate 
commerce; dissenting opinion in Lottery Case, 188 U. S. 364, 23 Sup. 
Ct. 330, 47 L. 504, majority holding carriage of lottery tickets from 
one State to another by express company is interstate commerce 
which Congress may prohibit; dissenting opinion in Austin v. Ten- 
nessee, 179 U. S. 378, 45 L. 240, 21 Sup. Ct. 145, majority holding 
tobacco must be recognized as article of commerce although to 
certain extent within police power of State; dissenting opinion in 
State v. Buxman, 162 Mo. 55, 62 S. W. 843, majority holding 
act May 4, 1899, Mo., providing for inspection of all beer sold oi 
manufactured In State is not unconstitutional. 

(XI, 1025). Miscellaneous. 

Cited in Minnesota v. Brundage, 180 U. S. 504, 45 L. 642, 21 Sup. 
Ct. 457, holding application to Federal court for writ of habeas cor- 



15 



Notes on IT. S. Reports. 130 U. S. 330-358 



pu» to release prisoner under Judgment of Municipal Court will be 
denied when he lias not availed liiraself of State laws. 

130 U. 8. 330-338, S4 L. 464. IN RE LUIS OTEIZA Y. CORTES. 

Sjt 2 fXI. 1029). Extradition — Habeas corpus. 

Approved in In re Reiner. 122 Fed- 110, holding embezzlement 
of funds of savings bank owned by city in Germany, by cashier, 
who is public official appointed by city* Is an embezzlement of public 
moneys within treaty 1852, between Prussia and tbe United States; 
Uaited States v. Greene, 108 Fed 819, holding findings of commls- 
doner on proceedings to remove person cliarged with crime to 
ftnoiber district, where there is any legal evidence before bim can- 
tiot be reviewed by court on application for removal; In re Count 
Dt Toalonse Lantrec, 102 Fed, 879, holding in proceedings for 
eitrnditJon of one charged with extraditable offense under treaty, 
fladlnits of probable cause by coram issjonor is open on habeas 
corpns only as to whether there was legal evidence before him 
«n which to exercise his judgment. 

Distinguished in Grin v. Shine, 187 U. S. 192, 193, 23 Sup. Ct. 
103, 47 tu 137, holding whether depositions offered under 22 Stat 
«t Large. 210. chap. 378. governing evidence \q extradition cases, 
tniDdently establishes criminality, cannot be reviewed upon habeas 
^orptQ»: In re Richter, ICXI Fed. 296, holding on application for 
JtBloTa] of defendant to anotb*ir district for trial, iadlctment la 
snmptire evidence of probable cause. 

<XL 102S>. Miscellaneous. 

Cited lo Tbe Japanese Immigrant Case. 189 U, 8. 98, 23 Sup. CL 
47 L. 725, holding exeeutive otflcers of United States were not 
Bv^ted by provisions of acts October 19, IKSS, chap. 1210; and 
Mareh 3* 183*1, chap. 551, for deportations of aliens, with arbitrary 
power of deportation without giving alien right to be heard; State 
V, Hnegin, liu Wis. 235, 85 N. W. 1057, holding, upon habeas corpus 
pi^eeedingB, court has jurisdiction to examine the complaint and 
evidence to see if there is probable cause, 

U. S. 338-347. Not cited. 

U- 8. 34^356, 34 L. 360, REYNOLDS v. ADDEN, 
gfL 1 <XI, 1029). Estoppel from removing cause. 
A|iproT«d In IlUnoIs Life Ins. Co. v. Shenehoii, 109 Fed. 07^ 
bolding defendant Is citizen of Illinois under the facts of the case. 
Sjl. 2 (Xl» 1029). Effect of Insolvency law, 
Jifiproved In Zacber v. Fidelity, etc.. Co., 106 Fed. 595, 598, hold- 
t&f lien of creditor attaching property of a Connecticut corporation 
Id Krjjtucky after appointment of receiver by Connecticut court 
If not displaced by snbsequent general assignment to receiver by 
itloa. 



136 U. S. 356-407 Notes on U. S. Reporta. 14 

136 U. S. 356-385, 34 L. 363, NASHUA, ETC., R. R. v. LOWELL. 
ETC., R. R. 

Syl. 1 (XI, 1029). Corporation citizen of State of creation. 

See 89 Am. St. Rep. 656, note. 

Syl. 2 (XI, 1030). Diverse citizenship presented by answer. 

Approved in Reavis v. Reavis, 101 Fed. 22, holding where Juris- 
diction is denied in answer in Federal court, motion to dismiss is 
not waiver of other defenses set up in answer. 

Syl. 4 (XI, 1030). Railroads in more than one State. 

Approved in Goodwin v. Boston, etc., R. R., 127 Fed. 987, hold- 
ing corporation incorporated under laws of New Hampshire, Massa- 
chusetts and Maine is citizen of New Hampshire when sued by 
citizen thereof; Goodwin v. New York, N. H. & h! R. R. Co.. 124 
Fed. 362, 303, 364, 366, 367, 369, 371, holding corporation owning 
system of railroad in Massachusetts and Connecticut, which may 
be sued in Massachusetts by citizen of Connecticut and conversely, 
cannot be sued in Massachusetts by citizen thereof, alleging that 
defendant Is citizen of Connecticut; Boston, etc., R. R. v. flurd. 
108 Fed. 118, holding action by citizen of Massachusetts was prop- 
erly brought in Circuit Court of New Hampshire district for death 
of resident of Massachusetts, against railroad Incorporated by 
concurrent action of several States, including those named; Deb- 
nam v. Southern, etc., Tel. Co., 126 N. C. 842, 36 S. E. 273, holding 
foreign corporation complying with Pub. Laws 181)0, chap. 62, § 1, 
N. C, became domestic corporation and not licensee to do business 
In State. See 85 Am. St. Rep. 920, note. 

136 U. S. 386-393, 34 L. 424, NORRIS v. HAGGIN. 

Syl. 1 (XI, 1032). Fraud — Statute of Limitation. 

Approved In Black v. Black, 64 Kan. 705, 68 Pac. 667, holdinj* 
action for fraud cannot be maintaliu'd after eighteen years after 
estate has been settled where fraud grow out of accounts in estate 
of their father which accounts wore pul)lic records; Loomis v. 
Missouri, etc., Ry., 165 Mo. 493, 05 S. W. 968, holding, under the 
facts of this case, plaintlft was barred by laches. 

136 U. S. 393-407, 34 L. 385, TEXAS, ETC., R. R. CO. v. 
MARSHALL. 

Syl. 1 (XI, 1032). Agreement to establish permanent terminus. 

Approved in Eckington, etc., Ry. Co. v. McDevitt, 191 U. S. 114, 
holding difiCerence between value of land with street-car service 
and expectation that cars will continue to run and such value 
without operation of cars is too uncertain for measure of damages 
for breach of covenant to run cars. 



lA 



Notes on U. S. Reports. 



136 U. a 408-436 



k 



SyL 2 (XI. 1033). Constnictton of eoDtrnct. 
Appro red In Western UDlon Tel. Co. v. Pennsylvania Co., 125 
t e<l. 71, 72* boldJng executory contract between telegraph and 
raltiXMd rompany for construction of telegrapU line along rtgbt of 
^ms of railnittd company for their Joint benefit did not operate 
mm coaT<?yance to telegraph company of an estate In realty; 
Cterdaod^ etc.. IL R. Co, v. KUig, 23 Ind. App. 583, K> N. E. 87S, 
lioldlit^ where acts complained of consisted of defendant*^ casting 
Into Uirse pond near plaintiff's premises offeualre material, the 
italMiQce could be removed and hence was not permanent. 
8yL 3 <XI, 1033). Specific performance, 

Atfprored In Beasley v. Texas & Pac. Ry. Co., 191 U. 8. 4S*7. 

boidios specific performance of covenant In deed not to build rall- 

wtmA depot within three miles of one stipulated for cannot be 

d ecwcd ^ affirming Beasley v. Texas, etc, Ry. Co., 115 Fed. 055. 

Xtk Voiding contract by railroad company to establish station at 

paitSmlar place and maintain no other station within certain 

distance la contrary to public policy; Berliner Gramophone Co, v. 

!$c*«iDoi}* no Fed. 34, holding where contract is one establishing 

relations between parties containing mutual covenants, 

will not decree spec i lie performance; Strang v. Rlchuiond, 

etc. IC R. Co., 101 Fed. 517. holding contract to build railroad 

aiiuu>l be speiilically enforced; Wilieon v. WiuehesU'r, etc, Ry. 

Col, 00 Fed. <U4. 645, holding where railroad. In consideration of 

ffgtit of way over land of plaintiff, agreed to maintain station on 

p|jit»tur« land and plaintiff was to operate it and receive fees, 

upon rrfttsal of defendant to longer maintain It, plaintiff's remedy 

la at law and not specific performance; New comb v. Norfolk, etc.. 

Bf-, ITS Maas* 450, 01 N, E, 43i holding, under Pub. Stat., chap. 113, 

i 7« reiafUt^ to street railway companleSt tlie court may compel 

cooipaiiy to comply with condition that it should sprinkle streeL 

~ V. », Kl8-45a, 34 L, 309, RICHELIEU NAV, CO. V. BOSTON 
INS. CO. 

8yL 2 (XI. 1033). Marine insurance — Burden of proof. 
ApproTcd Id The I^ausdowne. 105 Fed. 443, holding where vessel 
tea dIariipiirdiHl rule of navigation it la Incumbent on her to sho^r 
tlMt Tfalattoa of statute did not aud could uot have contrilmt^Hl 
to coUlalon. 
njl 9 (XI, 1034>, Admissibility of captain's protest. 
Appmred In Sharlaud v, Washington Life Ina. Co., 101 Fed. 211, 
jiotdln^. In action on life insurance policy, copy of findings 
ff** Inquest furnished by beneficiary is admissible on bebalf 
to eatablish suicide. 



136 U. S. 436-467 Notes on U. S. Reports. 16 

136 U. S. 436-449. 34 L. 519, IN RE KEMMLER. 

Syl. 3 (XI, 1035). Construction of Fourteenth Amendment 

Approved In Maxwell v. Dow. 176 U. S. 593, 594, 44 L. 602, 20 
Sup. Ct. 453, 454. holding State statute providing for Jury of eight 
in criminal case is valid; Bolln v. Nebraslsa, 176 U. S. 86, 44 L. 
383, 20 Sup. Ct. 288, holding proceeding by information for felony 
is not insufficient to constitute due process of law under U. S. 
Const., 14th Amend.; State v. Hogan, 63 Ohio St. 218, 58 N. E. 575. 
holding section 6995. Rev. Stat. Ohio, whereby punishment is pre- 
scribed for threatening to do injury by tramp, is not unconstitu- 
tional; State V. Tucker, 36 Or. 294, 61 Pac. 895, holding act February 
17, 1899, Or., providing for proceedings by information in criminal 
cases, is constitutional; Pinney v. Providence L.. etc., Co.. 106 Wis. 
401, 82 N. W. 310. holding Rev. Stat, | 1775b, Wis., providing 
for service of process on private corporation by leaving copy with 
register of deeds, is unconstitutional. See 88 Am. St. Rep. 517. 
note. 

Syl. 4 (XI, 1035). Criminal law — Due process. 

Approved in McDonald v. Massachusetts, 180 U. S. 313, 45 L. 547, 
21 Sup. Ct 390. holding Mass. Stat 1887. chap. 435, $ 1, imposing 
heavier penalty for second offense, is not unconstitutional; Howard 
V. Fleming, 191 U. S. 136, holding sentence of ten years for con- 
spiracy to defraud is not cruel or unusual punishment; Storti v. 
Conilth, 178 Mass. 553, 60 N. E. 211, holding Stat 1898. chap. 320, * 
S 6, Mass., relating to death of convicts by electricity, is not uncon- 
stitutional; McDonald v. Commonwealth. 173 Mass. 328, 73 Am. 
St Rep. 295, 53 N. E. 875, holding Stat 1887, chap. 435. Mass., pro- 
viding for severer punishment upon conviction of third offense, 
l8 not unconstitutional. 

(XI. 1035). Miscellaneous. 

Cited in Orr v. Oilman. 183 U. S. 286, 46 L. 20, 22 Sup. Ct 216, 
holding N. Y. transfer tax law, subjecting to taxation remain- 
ders created by will before precedent estate terminates, is not 
unconstitutional; Territory v. Ketchum, 10 N. Mex. 719, 721, 
65 Pac. 109, holding section 1151, Comp. Laws 1897, N. Mex., pre- 
scribing death penalty for intent to commit train robbery, is valid. 

136 U. S. 450-467, 34 L. 472. DISTRICT OF COLUMBIA v. WOOD- 
BURY. 

Syl. 2 (XI. 1036). Negligence of municipal officers. 

Approved in Workman v. Mayor, etc., of New York, 179 U. S. 
574. 45 L. 325, 21 Sup. Ct. 220, holding exemption of flreboat from 
seizure in rem will not relieve city from liability in personam 
under maritime law for injuries to another vessel caused by negli- 
gence of flreboat; Denver v. Porter, 126 Fed. 293, holding city is 



Notes on U. S. Reports. 13G U. S. 4CS-510 



liable for negligence of its officers uQder wliose directions a tl Limp- 
ing ground is maintained; dissenting oplulon in Workman v. Mayor, 
etc.. of New York, 179 U. B. 583, 45 L. 328, 21 Sup. Ct, 223, majority 
holding maritime law and not local law governs in determlnlug 
liability of ctty for injury to vessel l>y flreboat owned by clty- 
SyL 3 (XI, 103G), Personal Injuries — Damages. 
Approved in Soutbern Pac. Co. v. Hall, 100 Fed. 765» holding 
of artificial limb, purchased in consequence of Injury resulting 
amputation, is not recoverable under general allegation of dam- 
ages; Denver, etc., R. R. Co, v. Roller, 100 Fed. 750» holding In 
Dn for personal Injuries, received In railroiid collision, plaintiff 
recover for Injuries to her health caused by fright; Stories \\ 
~hm Angelef%. etc., Co,. 134 Cal. 1)4, 06 Pac. 73, holdhig in action for 
penonal injuries, elements of damages were expenses paid for care. 
ralne of time lost, compensation for Impairment of earning power 
and for pain and anxiety. 
SyL 4 (XI. 1036). Error without prejudice. 
Approved In Missouri, etc., Ry. Co. v. Elliott, 102 Fed. 105, hold- 
admission of incompeteiit evidence of material fact is error 
wltliout prejudice. 
BjL 5 (XI, 1036). Gejieral objection to evidence. 
Approved In CUocktaw, Oklaliouia, etc., U, R. Co* v. McDade, 104 
fj> S. GO, holding assignments of error based on general exceptions 
are not reviewable on writ of error from United States Supreme 
Omn; Duvts v. United States, 107 Fed. 757, holding objection to 
•vfdence tliat It Is Incompetent Is not available on writ of error, 
aa ii la not specific, 
iXI, 1036). Miscellaneous. 

Cited ID Gray v. Commutator Co., 85 Minn. 470, 80 N, W. 324, 
[ittldlng It la duty of master to furnish safe machinery for use of 
•ervant. and x>resuroption is that machinery Is safe; Snook v. City 
if Anaconda, 26 Mont. 105, 66 Pac. 758, holding city organ ?xed 
' Comp. Stat 1887, Gen. Laws Mont., dlv. 5, chap. '^2, providing 
taxatJoii for Improvement of streets, is responsible for dam- 
age* resu&Uos f^va datigerous condition of street 

lac U. & 4«-478. Not cited. 

in !!• S. -179-^10, 34 L, 329, INDIANA v. KENTUCKY. 
^1, 1 iXI. 1038). Grant of teixitory on river. 
Approveil In Holman ▼. Hodges, 112 Iowa, 720, 84 N, W, 952, 
Rf where island arose In navigable river apart from riparian 
r** land, auch owner has no title thereto by reason of riparian 
llfiiti CJiougb land was afterward joined to their land. 
Vol. HI— 2 



13G U. S. 519-569 Notes on U. S. Reports. 18 

Syl. 3 (XI, 1038). Recognizatlon of State boundary. 

Distinguished In Meyler v. Wedding, etc., 107 Kj. 325, 92 Am. 
St Rep. 35C, 53 S. W. 813. 60 S. W. 22, liolding, under section 11 
compact with Virginia (13 Hen. & M. Stat. Va,, p. 19), which pro- 
vides for use of Ohio river and Jurisdiction thereon, Indiana Judg- 
ment rendered upon service of process on Ohio river outside low- 
water mark on Indiana shore Is void in Kentucky; McMillan v. 
Hannah, 106 Tenu. 694, 61 S. W. 1022, holding fact that Cheatham 
county, Tennessee, acquiesced for fourteen years in action of leg- 
islature (Acts 1881, chap. 143) in transferring certain lands from 
that county to Dickson county, did not estop Cheatham county 
from then asserting claim to the land under Const., art 10, $ 4. 

(XI, 1038). Miscellaneous. 

Cited in United States v. Martinez, 184 U. S. 449, 46 L. 635, 22 
Sup. Ct. 425, holding failure to make patentees of parties to suit for 
confirmation of land within Spanish grant does not affect validity 
of decree where patents are undisputed. 

136 U. S. 51WH8. 34 L. 531, THAW v. RITCHIE. 

Syl. 3 (XI, 1039). Construction of wllL 

Approved in Land Title, etc., Co. v. M*Coach, 127 Fed. 380, hold- 
ing, uider will bequeathing property in trust, income to wife, and 
after her death to be divided between his children, children took 
vested interest which was subject to legacy tax under D. S. Comp. 
Stat. 1901, p. 2307. 

Syl. 6 (XI, 1039). Collateral attack on guardian's sale. 

Approved in Godchaux v. Morris, 121 Fed. 485, holding sale under 
decree providing for sale at plnce other than courthouse as required 
by U. S. Comp. Stat 1901. p. 710, does not render it void. 

136 U. S. 549-569, 34 L. 525, GIBBONS v. MAHON. 

Syl. 1 (XI, 1039). Title to corporate property. 

Approved in Coltrane v. Blake, 113 Fed. 790, 791, 792, holding 
holders of fully-paid-up stock by building and loan association, 
whd are paid int^.rest instead of proportionate share of profits, are 
stockholders and not creditors, and on insolvency of corporation 
are entitled to no preference over common stockholders. 

Syl. 1 (XI, 1040). Corporate accumulations. 

Approved in Dooge v. Leeds, 170 Mass. 5G1, 57 N. E. 102C, hold- 
ing where corporation Issued bonds to stockholders, payable out of 
fund after payment of debts of company, the bonds were capital 
and not income, and passed to remaindermen, not to life teua.nt 
under will providing for payment of income to certain persons dur- 
ing life and principal thereafter to others; State v. Mitchell, 104 
Tenn. 343. 58 S. W. 367, holding provision in corporation's assign- 



IJ Notes on U. S. Keports. 136 U. S. 570-5S6 

mrat for creditors that any surplus Bhould be divided among etoeU- 
holders ts olira vires, since surplus belongs to corpora tiou, 
ByL 4 mU 1040). Distribution of corporate earnings. 
AfisiroTed in De Koven r. Alsop, 205 III 311, 08 N. E. 930, &31, 
002, tMittllng stock dividends belong to corpus of estate devised to 
trustee to pay widow Income are not payable as income; Smith v. 
Hooper. 9& Md. 26, 51 Atl« 8411, holding under will hetiueatbiQg 
dlTldesids of fund to daughter, giving trustees power to Invest 
fund, locreiase from sale of property was not " dividends;'* Qulnu 
T. Safe Dep, & Tr. Co.. 93 Md. ms, 48 Atl. 837, holding under wil! 
b«qae«l^ing income of property for life, dividend dwlared out of 
ecrtmlii siDklnjf fund of corporation in which decedent was stock- 
boldffr slionld be paid to life tenant; Hemenway v. Hemenway, 181 
MmM^ 411t 63 N. E. 921, holding dividends declared upou accumu- 
lated profits was Income and not capital and went to life tenant^s 
ttfuSer nrlll bequeathing income to wife and cblldren and remainder 
to beini. 

laO U. 8^ 670-5T1, 34 L. 540, SHERMAN r. ROBERTSON. 

Bft 1 (XI, I040K Custums duties. 

ApiifDvea in De Pass v, Bldweil, 124 Fed, G22, holding, under 
rorskts- act April 12, 1900 (chapter 101, 31 Stat. 77), goods brought 
ttom Forto Rico after its cession and voluntarily left In warehouse 

Lmitil after passage of act are subject thereto. 
laS H. & 572-580. Not cited. 
W U* 8. Ii81-Il86. S4 U 246, MASON v, UNITED STATES. 
Sjl. 1 (XI, 1041). Appeal, 
> Approred in In re Key, 189 U. S. 85, 23 Sup. Ct. 624, 47 L. 721, 
pililliU mandamus will not He to compel Court of Appeals of 
"District of Columbia to reinstate appeal from Supreme Court of 
I>{stiirt In action brought before Justice of the peace where appeal 
was dtsmlssed by Court of Appeals for want of jurisdiction; Love- 
Isaa ▼. Ransom, 107 Fed. 627, holding where Judgment is Joint, all 
pilttaa against whom it is rendered must Join In appeal; Kiddir v. 
FliaJSty Ins.. etc, Co., 105 Fed, 823, holding where one of several 
appetila from decree In equity after term, and cites 
eomplalnant and receiver of one defendant the appeal will be 
aa It was necessary to include all parties; The New York, 
lOi Fed* 5d3, holding sureties on stipulation entered Into under 
0taL» I ^11, do not become parties to suit so as to require 
tkar tlii*y should be Joined in appeal by claimant whose sureties 
tbrj ari?; Grand Island, etc., R, R, Co. v. Sweeney, 103 Fed. 344, 
f, ftttder Sees. Laws S. Dak. 18f>3, chap, 116, § 4, relating to 
d^fendtini In equity on foreclosure of mechanic's lien. In- 
fmior U€Uht*ldev an? necessary parties to appeal by railroad. 



^■la 




137 U. S. 1-15 Notes on U. S. Reports. 20 

130 U. S. 580-027, 34 L. 500, IX RE BURRUS. 

Syl. 1 (XI, 1041). Habeas corpus by Federal court. 

Approved in Ex parte Baez, 177 U. S. 389, 44 L. 817, 20 Sup. Ct. 
077, holding leave to file petition for habeas corpus will be denied 
where restraint will terminate before return day; In re Laing, 127 
Fed. 210, holding Federal court has Jurisdiction to determine on 
habeas corpus whether officer of Federal court, indicted by State 
court for killing prisoner he was seeking to arrest, was not 
unlawfully restrained of his liberty; In re Celestine, 114 Fed. 552, 
holding Indian born In United States to whom land has been 
allotted becomes, under 1 Supp. Rev. Stat, p. 530, citizen of United 
States with right to sue in any proper forum. 

Syl. 2 (XI. 1041). Custody of children — Federal courts. 

Approved in Hoadley v. Chase, 120 Fed. 820, holding Federal 
courts have no jurisdiction to exercise functions of parens patriti3 
for determinination of rights to custody of an insane person. 



CXXXVII UNITED STATES. 



137 U. S. 1-15, 34 L. 580, THE MAX MORRIS. 

Syl. 1 (XI, 1043). Libel for injuries. 

Approved in Workman v. Mayor, etc., of New York, 179 U. S. 
502, 503, 45 L. 321, 21 Sup. Ct. 210, holding maritime and not local 
law governs in determining liability of city for injuries to vessel 
by flreboat owned by city; Sievcrs v. Eyre, 122 Fed. 730, holding 
where seaman is Injured while cleaning a loaded cannon, he assumes 
the risk and cannot recover damages; State v. Westoll, 100 Fed. 
237, holding stevedore who fastened chain on beams of hatch of 
vessel and stood on hatch, and when beam struck ordered winch- 
man to apply more power, was guilty of contributory negligence 
when sudden jerk threw him Into hold of vessel; The Nikolai II, 102 
Fed. 175, holding in action for personal injuries sustained by steve- 
dore employed in loading ship, who fell into hold at night, the 
evidence as to amount of light was conflicting and libelant could 
not recover. 

Distinguished in dissenting opinion in Workman v. Mayor, etc., of 
New York, 179 U. S. 580, 45 L. 330, 21 Sup. Ct. 225, majority holding 
city is liable by maritime law for negligence of its servants In 
charge of flreboat which collided with another vesseL 



21 



Notes on U. S. Reports. 



137 V, S. 15-62 



<X1. 1043)* Miscellaneoiift. 

Cited In SmlU) v. Cltj of Sliakopee, 103 Fed. 242, holding where 
drty falls to mnlntiilD light oa drawbridge reqiiired by law, and 
pilot attempts to take vessel through dra^v before It Is fully opened, 
liotli parties are guilty of negligence and damages will be dhided. 

IS* U. S. 15-21. 34 L. 604» YORK v, TEXAS. 
Sjt 1 (XI, 10*4). Appearance of defendant. 
Approved in Cady v. Associated Colonies, 119 Fed. 424, holding 
app^amnee of defendant in State court to file petition for removal 
Is 9peciaL and is not waiver of right to object to jurisdiction; 
JfajBTille 4t B, S, R, R. Co. v. Ball et a I.. lOS Ky. 2G1, 50 S. W. 193, 
ling special entry of appearance by defendant for purpose of 
bjecting to jurisdiction was ao appearance for all purposes; 
UayBviile & B. S. R. R. Co. v. Ball et al., 108 Ky. 259, 56 S> W< 
1SK» holding amendment to Civ. Code Proc. 51, Ky.. providing for 
B«rriee of summmons on pei'sous operating railroad^ is not uncon- 
itltiitionaL 

137 C. S. 21-30. Not cited, 

137 U. S. 30-^, 34 L. 508. HOSTETTER v. PARK, 
Syl. 4 *X1, 1045). Contract where usage prevails. 
Approved In Anderson v. Munson, 104 Fed. 917, holding whether 
rliarterer of vessel under time charter has authority to send vessel 
royage which owner knows cannot be performed In time may 
dftermlned by custom. 

I$f U. 8. 41-59. Not dted. 

137 W. 8. eO. 61* 34 L. 585, FISHBURN ▼. CHICAGO, ETC., RY. 
00. 

8yl I (KI» 1047), Practice in Federal courts. 

1 In Louisville, etc., R, R. Co. v. White, 100 Fed. 243, 
f Manning v. German Ins. Co., 107 Fed. 57, both follow- 
|; Jimes P. WItherow Co. v. Bardeleben, etc., Co.. 09 Fed, 

' j; Hex. 8tat, 5 914, requiring Ftnleral courts to conform 

to Stair practice, does not apply to procedure on appeal, and rulmg 
00 tnoDon for new trial is not reviewable. 

SyL 2 (XX. 1047). New trial in Federal court. 

Approved In Siinford v. White, 108 Fed. 929. holdiog motion for 
nt»w trial in OctolHT. 19t>0, of cause tried in October, lSi*9 in Federal 
^uurt Cornell too late. 

Vft t. 8. €1. 112. 34 L. 573, LA CON FIANCE. ETC. v. HALL. 

Syl 1 (XI, 1047). Diversity of citizenship on removal. 

Approved in Kinney v. Columbia Savings, etc., Assn., 191 V. 8, 
^. holding leave to amend petition for removal to show cltrien* 
•liip of plaintiff tnay be granted after filing removal papers. 



137 U. S. 62-95 Notes on U. S. Reporta. 22 

137 U. S. G2, 63, 34 L. 572, WASHINGTON MARKET CO. v. 
DISTRICT OP COLUMBIA. 

Syl. 1 (XI, 1047). Settlement of controversy pending appeal. 

Approved in Widekind 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 between him and defendant pending 
appeal is settlement of controversy. 

137 U. S. 64-78, 34 L. 574, PLORSHEIM v. SCHILLING. 

Syl. 1 (XI, 1048). Substitution of material not patentable. 

Approved in Union Hardware Co. v. Belchow, 112 Fed. 1009, 
holding Gordon patent No. 552,470, for hose supporter, was pat- 
entable. 

Syl. 3 (XI. 1048). Patents. 

Approved in Rodiger v. Davids Mfg. Co., 126 Fed. 964, 965, hold- 
ing Rodiger patent No. 649,864, for paste-cup and mucilage-holder, 
is void for lack of patentable invention; Griest Mfg. Co. v. Par- 
sons, 125 Fed. 119, holding Johnson patent No. 324,261, for ruffling 
or gathering attachment for sewing machines, is void for lack 
of invention; Eames v. Worcester Polytechnic Inst, 123 Fed. 72, 
liolding Walker patent No. 425,839, for improvement on twist-driU 
grinding machine of patent No. 411,845, valid; Bradley v. Eules, 122 
Fed. 870, holding Bradley design patent No. 32,747, for thill coup- 
ling, and No. 28,571, for washer for thill coupling, valid; Good- 
year Tire, etc., Co. v. Rubber Tire, etc., Co., 116 Fed. 369, hold- 
ing Grant patent No. 554,675, for rubber tire wheel, void for lack 
of patentable invention; J. L. Mott Iron Works v. Hoffman & Bill- 
ings Mfg. Co., 110 Fed. 775, holding Hammann patent No. 449,880, 
for supplying connections for basins or baths, void for lack of 
patentable Invention. 

137 U. S. 78-85, 34 L. 005, HENNESSY v. BACON. 

Syi. 2 (XI, 1049). Setting aside compromises. 

Approved in Chicago, etc., Ry. Co. v. Wilcox, 116 Fed. 014, hold- 
ing where complainant compromised claim for damages on advice 
of ph3'sielan, believing her injuries not serious, it would not be set 
aside upon discovery of their serious character; dissenting opinion 
In Rauh v. Waterman, 29 Ind. App. 357, 63 N. E. 45, 47, majority 
holding fraudulent representation of purchaser that agent of buyer 
had extended credit was sufficient to entitle seller to rescind. 

137 U. S. 86-95, 34 L. 620, CROWLEY v. CHRISTENSEN. 

Syl. 1 (XI, 1049). Public safety and health. 

Approved in Gundling v. Chicago, 177 U. S. 188, 44 L. 729, 20 
Sup. Ct (J35, holding ordinance giving mayor power to determine 
whether person applying for license to sell cigarettes has good 



Notes on U. S. Reports. 



137 U. S. 9&-D8 



dmrmcter in valid; State v, Currens, 111 Wis. 436, 87 X. W. 563. 
boldlug Rer. StaL 1S9S, § 1435b, prescribing prerequtsltea to license 
to prietlce medicine, valid. 
gjl 2 iXl, 1049). Restricting use of Intoxicating liquor. 
ApproviHl In Cronlo v. Adams, 192 U. S. 114, 24 Sup. Ct 220, 
lnolding municipal ordinance whjcb probiblta sale of liquor to 
females and whfcb prohibits employment of females from serving 
llqaor Is valid; Dulutb Brewing, etc., Co. v. City of Superior, 123 
Fed. 350, holding ordinance of city of Superior. November 25, ISQj, 
PNjulrlng all liquor dealers to procure license, applies to nonresi- 
dent manufacturer who maintains depot iu city; In re Marshali, 102 
|Fe<l 32j, holding county ordinance making it a misdemeanor for 
ay person lo use any repeating gnu for purpose of killing game is 
|llieou«titutlonal; Dobbins v. City of Los Angeles, 139 Cal. 1S3, 72 
971, holding ordinance making it unlawful to maintain gait 
rorka within certain llmlta Is valid; Adams v. Cronin, 29 Colo. 4DS. 
Pac 593, holding Denver city charter, | 20, subd. 12, provid- 
tliat women shall not be allowed to enter a saloon, is valid; 
oaenhine v. Ullne. 159 Ind. 502, 503, 65 N. EJ. 514, holding. 
Burns' Rev. Stat. 1901. Sf 7278, 7283i, Ind., provldltig 
6r granting liquor licenses, grounds Inlluendng remonstrance ueeil 
rtnt be stated; State v, Thompson, 160 Mo. 344, 60 S. W. 1070, 
holding act April 7. 1897, $ 2, providing for pool-selling licenses, 
Js comititutlonal; Hoboken v. Goodman, G8 N, J. L. 221, 51 Atl. 
holding sale of Intoxicating drinks at retail may be pro- 
ilMUHl; St. Louis, etc., Ry. v. Smith, 20 Tex. Civ. 459, 49 S, W. 
l/m., liolillng Rev. Stat 1805, tit. 102, chup. 7. Tex., giving live stocli 
try commission authority to prohibit Importation of diseased 
Into State, is constitutional; Danville v; Hatcher, 101 Va, 
£27, 44 S, E. 725, holding regulation of sale of Intoxicating liquors 
Is within police power of State; State v. Kreutzberg, 114 Wis. 538, 
m X. W* 1101, 91 Am, St Rep. 940. holding Rev. Stat 189S, f 44C<3b. 
«md* by Laws 18f»l», chap. 332, providing that no person shall 
Uiciuu-ge an employee because he Is member of lat>or union, is 
void. See 78 Am. St Rep. 253, note. 
(XI^ 104d). Miscellaneous. 

Cited in dissenting opinion in Eckhoff v. Gilbert, 124 Mich. 3'i4. 
N. W. 114. majority holding circular charging candidate for 
with being champion of saloon lawlessness is libelous per se. 

m U. 8. D&-d6, 34 L. 599, SEEBERGER v. CAHN. 
8yl 1 «X1. 1050). Construction of statute. 

Approved In United States v. Nordlinger, 121 Fed. 602, holdUijj 
■d^ meaning of word in tariff act Is inadmissible unless It Is 
ITrrenl fl^m coifioion meaning. 



137 U. S. 98-113 Notes on U. S. ReporU. 24 

137 U. S. 98-113, 34 L. 608, FITZGERALD, ETC., CO. v. FITZ- 
GERALD. 

Syl. 2 (XI, 1051). Waiver of defective service. 

Approved in Ellsworth Trust Co. v. Panamore, 108 Fed. 908, 
holding special appearance by defendants to object to Jurisdic- 
tion over person is not waiver of legal service; White v. Rio Grande, 
etc., Ry., 25 Utah, 359, 71 Pac. 597, holding right conferred by 
Const. Utah, art. 8, S 5, to have action tried in county where it 
arose, was waived by failure to object See 85 Am. St Rep. 920, 
note. 

Syl. 3 (XI, 1051). Service on foreign corporation. 

Approved in Central Grain & S. Exch. v. Board of Trade, 125 
Fed. 4G7, holding return to process against foreign corporation 
in Federal court showing service on officer is not sufficient unless 
corporation was at time doing business in State; Frawley v. Penn- 
sylvania Casualty Co., 124 Fed. 263, 266, 267, holding writing of 
four insurance policies in Pennsylvania to insured in Wisconsin, 
by correspondence and without medium of agent, did not constitute 
doing business in Wisconsin; Eldred v. American Palace Car Co., 
105 Fed. 450, holding Federal court does not acquire jurisdiction 
over defendant which is corporation of another State which does 
not carry on business in State of the suit and has no representa- 
tive therein, by service of process on one who was a director two 
years previously; Doe v. Springfield Boiler & Mfg. Co., 104 Fed. 
088, holding where broker in California, who at his solicitation 
was furpished prices by foreign corporation and occasionally made* 
a sale, and articles were delivered on cars, adding commission to 
price, and company had declined to appoint him its agent, the cor- 
poration was not doing business in California; McCord Lumber 
Co. V. Doyle, 97 Fed. 23, holding mode of service prescribed by 
State for obtaining Jurisdiction over foreign corporations will bo 
recognized in Federal courts. See note, 85 Am. St Rep. 912, 913. 

Syl, 4 (XI, 1052). Authority of president of corporation. 

Approved in Alaska, etc., Chicago Commercial Co. v. Solner, 123 
Fed. 800, holding action of secretary of Illinois corporation who 
had management of its business, in selling certain property in 
Alaska, the consideration of which was used by corporation, can- 
not be set aside for want of authority in secretary; Bennett v. Mill- 
ville Imp. Co., 67 N. J. L. 322, 51 Atl. 707, holding corporation is 
bound by acts of its president within scope of his authority, whicn 
it accepts benefits of. 

Syl. 5 (XI, 1052). Corporate obligations to creditor officer. 

Approved in Jas. Clark v. Colton, 91 Md. 211, 46 Atl. 390, holding 
payments by bank to president and directors on day previous to its 
Insolvency are unlawful preferences; Wagner v. Edison Elec. Co., 



Notes on D. S. Reports. 137 U. S. 113-145 



TTi llo. C2, T5 S, W, 971, holding where severiLl companies join 
«&d elect committee to supervise placing their electric wires under- 
groniKd^ and one of the committee Is elected engineer for the work, 
ke \s entitled to recover on quantum merait. 
ByL 7 (XI, 1052>. Implied obligation of bank. 
Ai^proved in Basaett v. Fairchild, 132 CaL 643, 04 Pac. 1084. hold- 
cior performing duties as manager not pertaining to his 
as director is entitled to compensation therefor; HnfTaiter 
V. Kreiser*s Assignee, 107 Ky. 206, 53 S. W. 280, holding wbete, 
after committee authorized to sell corporation plant ahaudoned Its 
iltota. c^rtnin directors who succeeded in making the sale were 
entitled to compensation: Taussig v. St. Louis, etc., Ry., 166 Mo. 34, 
3ov S- W. OTO, holding director who at request of the other directors 
lieffoniis services as attorney, Is entitled to reasonable value 
tlierefor. 
iXt, lOWJ. Miscellaneous. 

died In Flint v. Comly, 05 Me. 2^0, 40 Atl. 1046, holding non- 
pesldent defendant causing unconditional appearance to be made 
f^ Idm submits himself to jurisdiction of the court. 

|I U. 8. 113-13a Not cited. 

U. 8. 139-141, 34 L. 600, LAWRENCE v. HECTOR. 
fXt. IOCS). Miscellaneous. 

Sumpter v. Arkausas Nat. Bank, 69 Ark. 233, C2 S. W. 
Tig tenant cannot dispute title of landlord while in 

117 l\ S. 141-145, 34 L, ii^l. GURNEE v. PATRICK CO. 

SjL 1 (XI, 1053). Repeal of law. 

Approved in Emblen v. Lincoln Land Co., 102 Fed. 562» holding 
C may pass act wlthdnivving contest over right of entry 

5 [;iDds and determine rights of parties itself. 

SjL 2 \S.h 1053). Remanding order not final. 

Approved in German Nat. Bunk v. Speckert, 181 U. S. 407, 45 

L if.'T, 21 Sup. Ct 6SU, holding decision of Circuit Court of Appeals, 

•e of Circuit Court denying motion to remand cause 

f , Is not api»ealahle to United States Supreme Court 

Kiiftfr act March 3. 1801, chap. 517. 

iXU 1003). MlsceltaneouE. 

CJtfd \u Guardian Trust Co. v. Wliite Clififs Portland Cement 
k C Co,, ion Fed. r»in, holding nnder clause in mortgage ghen to 
••TOft* bonds allowing mortgagnr to lea.se its works while not in 
iffaolt In pfiytfietit of Interest or principal, trustee Xh mortgage niny 
Dslntala suit to cancel lease given after default In payment of 



137 U. S. 145-171 Notes on U. S. Reports. 26 

137 U. S. 145, 140. Not cited. 

137 U. S. 147-157, 34 L. 63^, IN RE GRIMLEY. 

Syl. 1 (XI, 1053). Discharge by civil court 

Approved in In re Fair, 100 Fed. 155, holding officer of United 
States who does an act within scope of his authority cannot be 
held to answer therefor under criminal laws of dJflCerent govern- 
ment. 

Syl. 4 (XI, 1054). Age limit in army. 

Approved in United States v. Reaves, 126 Fed. 129, 130, 132, 
holding, under act February 23, 1881 (U. S. Comp. Stat 1901, 
p. 1007), providing for enlistment in navy, enlistment by boy under 
eighteen is voidable only as to father; Ex parte Reaves, 121 Fed. 
855, holding under U. S. Comp. Stat 1901, p. 1007, providing that 
enlistment of minors between fourteen and eighteen years of age 
in the navy without consent of parents is void, son is not guilty 
of desertion in leaving his ship and returning home; In re Miller, 
114 Fed. 841, holding minor between sixteen and twenty-one years 
of age who enlisted in the army is subject to court-martial for 
past military offenses, although subject to release from service upon 
application of his parents. 

137 U. S. 157-lCO, 34 L. 644, IN RE MORRISSEY. 

Syl. 3 (XI, 1054). Enlistment In army. 

Approved in United States v. Reaves, 126 Fed. 130, 132, holding 
person enlisting In naval service becomes seaman and entitled to 
all benefits and liable to all responsibilities until end of enlistment 
by discharge or cancellation upon apj^Icatlon of parent; United 
States V. Reaves, 126 Fed. 129, holding enlistment of minor In mili- 
tary service is good as to minor and voidable at Instance of parents; 
In re Miller, 114 Fed. 842, holding under Rev. Stat U. S., SS 111^ 
1118, one between sixteen and twenty-one enlisting m army may 
be released on application of father, who cannot prevent court- 
martial for previous offense. 

137 U. S. 100-171, 34 L. 640, UNITED STATES v. TRINIDAD, 
ETC., COOKING CO. 

Syl. 1 (XI, 1054). Fraudulent land patents. 

Approved in United States v. Detroit Timber & Lumber Co., 124 
Fed. 399, holding fact that company lent money to persons to enter 
and pay for timber land, with hope that company could buy timber 
after entry, does not invalidate entry. 

(XI, 1054). Miscellaneous. 

Cited In Grand Lodge A. O. U. W. v. Bollman, 22 Tex. Civ. Ill, 
53 S. W. 832, holding change of allegation from charging defendant 
as corporation to one charging it as voluntary association does 
not implead different defendant 



Notes on XJ, S. Reports. 137 U, S. lTl-202 



m U. Sw in-202, 34 L. 625, MORGAN^S, ETC., SS, CO. T. TEXAS, 
ETC., RT. CO. 

8yL 1 fXI. 1055). Possesaian under fitlpulatloa In mortgiige. 

App rored !q Guardian Trust Co, v. White Cliffs Portlnud Cement 
109 Fed. 530, 531, holding provision In mortgage giving 
rfgbt to take possession on default Is not excluiMve of rlgLt 
to foreclose. 

SyL 2 {XI, 1055). Priority of operating expenses. 

Approved in Fidelity Insurance, etc., Co. v. Norfolk, etc., R. R. 
114 Fed. 393, holding judgment for tort against company com* 
'Sitl«*d before appointment of receiver Is not entitled to priority 
o^-er mortgagee ftom earnings of receivership: Contracting, etc., 
Co. T. CoDtloental Trust Co., 108 Fed, 4. holding lender of money 
to pmy hiteT«st on mortgage to prevent foreclosure Is not preferred 
to mortgagee; Illinois Trust, etc.. Bank v. Doud, 105 Fed. 133, 149, 
holding claim of creditor for money loaned to pay Interest upon 
prior mortgage debt is Inferior to prior mortgage; New York Se- 
mrity, etc.. Co. v. Louisville, etc.. R. R. Co.. 102 Fed. 391. 392, 
S8SL lioldlng where complainant assented to payment of operating 
expesseft by receiver of insolvent railroad it cannot require the 
expenses to be apportioned among the various mortgngees when 
lis i»vii mortgage would thereby obtain a preference; Maryland 
5;«el Coi T. Gettysburg, etc., Ry. Co.. 99 Fed. 153, holding debt 
for rehuUding power-house destroyed by tire does not constitute 
liref erred claim over prior mortgage on all property; International 
TTMhl Co, V. United Coal Co., 27 Colo. 254, GO Pac. Ji24, holding 
r*ei4ver appointed for ordinary insolvent private business corpo- 
nttOQ tUM no authority to Incur Indebtedness for carrying on busi- 
luisii and giving preference over prior ileuhoUlers; dissenting opin- 
ion In Illinois Trust, etc., Bank v. Doud, 105 Fed. 153, majority 
Mdlsg court may prefer unpaid current eatpensea of operation to 
teDdtkotders secured by prior mortgage, 

Bjl 3 CXI. 1056). Office of cross bill. 

Appoint^ In In re Whltener, 105 Fed. 18G. holding, under bank- 
niplcf net 1808, court has junadiction to restrain proceedings In 
itate court to recover possession of property in poijsesslon of trus- 
Ut and to entertain petition of intervention by claimant in the 
IlKiknjptey proceedings. 

dyi {» tXI* 1056). Jurisdiction on cross-bill. 

AplvroTea In Peacock, etc., Co. t. Tbaggard, 128 Fed. 1008. hold> 
dif where rlgbta of defendants In foreclosure require affirmative 
nllef thitf mtiy file cross-bills; Myers v. Luzenie County. 124 L'ed. 
O?, Iwkttoff Federal court has jurisdiction to determine rights 
l» pTMeeda of Judgment paid into court as between dllTereut 
Bts Urespectlre of citizenship; Llllenthal v. M'Cormlck, IIT 



I 



137 U. S. 202-224 Notes on U. S. Reports. 28 

Fed, 96, holding when Federal court has jurisdiction to enforce 
lien on property by reason of diversity of citizenship, it may de- 
termine rights of def^dants or interveners who assert liens on 
property by cross-bills; Davis v. Martin, 113 Fed. 9. holding Cir- 
cuit Court in foreclosure which has seized property for purpose of 
sale has jurisdiction of suit by third party claiming ownership 
to enjoin sale; Turner v. Southern Home Building, etc., Assn.. 101 
Fed. 314, holding in suit by building and loan association against 
borrowing stoclsholder to foreclose mortgage, where no accounting 
or cancellation of stocls is asl^ed the same can only be decreed 
on cross-bill. 

(XI, 1055). Miscellaneous. 

Cited in Bennett v. Chandler, 199 111. 109, 64 K. B. 1056, hold- 
ing agent of mortgagee who paid interest coupons on failure of 
mortgagor, without knowledge of either party, is not subrogated 
to right of mortgagee. 

137 U. S. 202-224, 34 L. 691, JONES v. UNITED STATES. 

Syl. 1 (XI, 1056). Criminal jurisdiction of Federal courts. 

Approved in United States v. Dietrich, 126 Fed. 663. holding 
in Rev. Stat., S 1038. providing that any District Court may re- 
mit any indictment to next session of Circuit Court, word '* ses- 
sion " means sitting and not term. 

Syl. 4 (XI. 1057). Acquisition of territory. 

Approved in Downes v. BIdwell, 182 U. S. 306. 45 L. 1114, 21 
Sup. Ct. 794, holding Porto Rico by treaty became territory appur- 
tenant to United States, but not a part of it. 

Syl. 5 (XI, 1057). Determination of sovereignty. 

Approved In Tartar Chemical Co. v. United States, 116 Fed. 730, 
holding question whether Algeria Is part of France, wlthiin scope 
of president's proclamation putting In force certain commercial 
agreement, must be determined by law of France. 

Syl. 6 (XI, 1057). Judicial nuti<'i\. 

StH? 82 Am. St. Rep. 4A(\ nolo. 

Syl. 7 (XI, 1057). Judicial notice. 

Approved in In re Taylor, 118 Fed. 197, holding in habeas corpus 
proceedings for discharge of prisoner held for extradition court 
may determine for itself political status of country where offense 
is laid; Smith v. City of Shalvopee, 103 Fed. 241, holding court 
of admiralty will take judicial notice of regulation of lighthouse 
board prescribing number and kinds of lights to be placed on 
drawbridges; Milwaukee County v. Iseuring, 109 Wis. 26. 27, 85 
N. W. 137, 138. holding journals of both houses of legislature may 
be referred to by the courts as to steps taken in passage of bills; 



Notes ou U. S. Reports. 



137 U. S. 22'i-2Sl 



\ 



^opinion In Tucker ?. Alsandroff, 1S3 U. S. 407, 4C* L. 
Ct. 212» majority holfliug treaty Inlended for mutual 
tDiist be construed in spirit of uberrima fides, 
8yL 12 (XI, 1058). Acquisition of Guano Islniid. 
Approred In Downes t. Bid well, 182 U. S. 307, 45 U 1115. 21 
Sop, Ct 795, holding Porto Rico after cession continued to be 
foreign to United States in domestic Bense, but was merely appur- 
teskflnt Uiereto as a pc»ssesslon. 

1*7 U. a 225-234. M L. 645. FALK v. ROBERTSON. 

SyL 1 *X1, 1058), Custom duties. 

approved in Rothscblld v. United States, 170 U. S. 467, 45 L. 
21 Sap, Ct 199, holding leaf tobticco suitable for cigar wrap- 
pcfi |8 dntiable under paragraph 213 of tariff act of July 24, 18£>7. 
m V. 8. 234^239. Not cited. 
W U. a 23&-245, 34 L. 664, FRENCH v. CAHTER, 

SyL 1 (XI, 105d). Patents. 

Approved in Hickory Wheel Co. v. Frazier, IDO Fed. 102, holding 
Hlllott patent No. 494,113^ for improvements in sulkies, is void 
lot irant of patentable novelty. 
137 U. 8. 243-25a 34 L. 650. WHEELER v. JACKSON. 

gyL 2 (XI, 1059). Statute of Limitations. 

Approved in Bradley 7. Llghtrap, 201 111. 524, 66 N. R 550. laold- 
iof Her, Stat. chap. 77, I 30. p. 625. providing for redemption 
Of Itnd sold on foreclosure, was not un const! tntioual as Impairing 
ohlication of trust deed executed prior to its enactment; Ashley 
Cow r, Bradford. 109 La. 653. 33 So. 630, holding where property 
li <iold for taxes upon prima facie valid assessment valid title 
miy be acquired and is conclnaive after three years; Tyler v. 
Court of Reginrrnyon, 175 Mass, 74, 55 N. E. 813, holding Stat. 
tSOS^ chap. 562, Mass,, providing for cutting o£E adverse interests 
in land, ts not unconstitutional. 

137 U. K 25g-266, 34 L. 652, DOBSON v. LEES. 

Syi. 1 iX\, lOfiO). Patent— Validity of reissue. 

Approved in Franklin v, Illinois Moulding Co., 12S Fed. 60, hold- 
iag Adams* second reissue patent No. 11,980, for machine for 
uifmotlng oma mental composiUon directly upon circular picture 
frames, claims 11 to 18, Inclusive* are void as covering matters not 
la tiriflnni patent* 

m 17. 8. 266-280. Not cited, 

07 U. S. 280-287, 34 L. 700, UNITED STATES v, LYNCH. 

Syl. 1 (XI. 1061). Validity of act. how raised, 

Approrei] In United States v. Ware. ISO U, S. 508. 23 Sup, Ct 
sSSk 17 L, 022. reaffirming rule; Sweringen v. St. Louis. 1^ U. S. 



137 U. S. 287-299 Notes on U. S. Reports. 80 

44, 4G L. 799, 22 Sup. Ct 570, holding decision of State court that 
distances in United States patent do not bring eastern boundary 
of land to Mississippi river does not raise Federal question under 
U. S. Rev. Stat, S 709, clauses 1 and 3. 

137 U. S. 287-299, 34 L. 670, GROVER, ETC., MACH. CO. v. 
RADCLIPFE. 

Syl. 1 (XI, 1061). Jurisdiction of foreign courts. 

Approved in F. Miller Brew Co. v. Insurance Co., Ill Iowa, 600, 
82 N. W. 1026, holding Wisconsin judgment entered by clerlt In 
default case, as authorized by Rev. Stat., S 2891, is entitled to 
recogniltion in courts of sister State; Ferry v. Miltimore, etc., Co., 
71 Vt. 458, 76 Am. St. Rep. 787, 45 Atl. 1035, holding In action on 
foreign Judgment question of Jurisdiction to render judgment can- 
not be raised by demurrer where want thereof does not appear by 
record. 

Distinguished in Crim v. Crim, 162 Mo. 558, 63 S. W. 492, hold- 
ing where defendant gave note authorizing any attorney to waive 
process and enter Judgment against him in such appearance, it au- 
thorizes personal Judgment whicfi may be sued on in another State. 

Syl. 2 (XI, 1061). Judgment without personal service. 

Approved in Clarlie v. Clarlte, 178 U. S. 195, 44 L. 1033, 20 Sup. 
Ct 876, holding interest of minor devisee in land situated in an- 
other State cannot be determined in suit to construe will in which 
guardian ad litem is appointed for infant; Hinton v. Pennsylvania, 
etc., Ins. Co., 126 N. C. 24, 78 Am. St. Rep. 640, 35 S. E. 184, hold- 
ing Judgment in personam cannot be rendered when return recites 
nonresidence of defendant and service without State. 

Syl. 5 (XI, 1062). Enforcement of foreign Judgment 

Approved in Thorman v. Frame, 176 U. S. 356, 44 L. 503, 20 Sup. 
Ct 448, holding appointment of administrator In State where de- 
cedent died and where property is situated does not constitute 
adjudication that decedent was domiciled there; Kirlt v. United 
States, 124 Fed. 339, holding where defendant resident of New 
Yorli, was indicted by Federal court of Georgia and arrested in 
New Yorlf, where bail was given, upon default in appearing, exe- 
cution from Georgia could not be enforced in New Yorls; MoredoclL 
V. KIrby, 118 Fed. 183, holding service of summons on defendant, 
who is citizen and resident of another State, made on agent un- 
der Civ. Code Prac, Ky., S 51, will not support personal Judgment; 
Dunn V. Dillis, 31 Ind. App. 082, 68 N. E. 1038, holding suit can- 
not be maintained in Indiana on Judgment recovered in Pennsyl- 
vania without personal service where defendant was nonresident 
of Pennsylvania; Old Wayne, etc., Life Assn. v. Flynn. 31 Ind. 
App. 474, 68 N. E. 327, holding in action on judgment of sister 



Notes on U, S» Reports, 



137 U. S. 30(K342 



I 



presumptiOD of jurisdiction does not arise wliere a1) the 
|flu:ts appear In record; Antlaony v. Masters. 28 Ind. App. 240, 63 
X* E. 507, holding error to strike out in action on foreign judg- 
meot defense tliat no process was served and sheriff made false 
mura: Paper Co. v. Sbyer, 108 Tenn. 458, 67 S. W, 85!>, Sm, bold- 
la^ section 5298. Shannon's Code Teiin,» providing for execution 
for deficlencj judgment against nonresident. Is void in so far as 
It attemptB to reach more than impounded property* 

137 a 8. 300-309. M L. 683. JOHNSON v. RISK. 

SjL 3 (XI, 1062). Anticipating judgment of court. 

Approved In Central Trust Co. v. Louisville Trust Co., 100 Fed. 
MT, holding Federal court will not Interfere with possession of 
property by receiver of State court. 

iXl, liMm. Miscellaneous, 

ated In German Sav. Soc. v. Dormltxer, 192 U. S. 127, 24 Suji. 
CX 222, holding decree of divorce may be impeached collaterally 
In cotutu of another State by showing court had no Jurisdlttlun 
on account of want of domicile Iti plain tiff; United Statt^s v. 
Snsytbe, 120 Fed. 33, holding superintendent of mint is liahlL* on 
b$$ hood for loaa of currency by fire through negligence of a 
mboidlnate. 

tgtV.B. 310-330. Not cited. 

87 11- 8. 330-342, 34 L. 687, THE NACOOCHEE. 
2 iXI, 10fi3). Speed In bad weather. 
.ppiroved in The Charlotte. 128 Fed. 40, holding In collision In fog 
I»e4w«<cn schooner tacking down and steamer running at a speed ef 
m kAota* steamer is liable; Watts v. United Slates, 123 Fed. 112, 
Mdlst^ war vessel running at speed of six knots an hour across 
finek oif oatgolng and Incoming vessels In fog is not running tu 
aodtnte speed under U. S. Comp. Stat. lOfJl. p. 2870; The Columbia, 
1M WM, 107, holding, under 2C U, S. Stat. 320, relating to Kpeid 
jf Teaerls In bad w^eather, steamer running thirteen knots an hour 
running at moderate speed* 
4 (XI, 10641. Precautions in bad weather. 
Apprared In The Belgian King, 125 Fed, 87G* holding vessel which 
to reduce speed after entering fog, or to stop them upou 
signals of another vessel. Is liable for damages resulting 
Itaa cottlatoo; The Northern Queen. 117 Fed. 911, holding steamer 
raulng In fog at full speed through place where vessels were 
Ukalj to anchor was not exercising proper precaution. 
Syt 5 <XI, lOO-l), Vessel holding her course. 
Ap^rofed to The J- C. Ames, 121 Fed. 921, holding steamer liable 
IvcilUakMi with sailing veaael when steamer strikes sailing vessel 




villi*- Er.*au3riu5^ -a •5*arr EHiriuer BS^mer: Hk- CW 



I'*^. V<Ui. iiui&i;^ -Tirii- jta i»f ill—' l jiciiirr jr nn2SBE>4f a 
d'.#** iiv: •-•Mirtr.inr.*- l ''uti^ff^ iiT "i»nrwi. 
Jfjl € ;X1. I'X-*^ Xi>H*ai».* uf Juntinxi. 

itjz \its^ j« iiv. i:i.i«j*: -ir rii ii>i r*- ^i- iitrp- viij'jL fim^ '^ag zb 
1^ U- JL :.5>5^ U I* (Kr:. J.01/--K0X5 T. LXIT3L1* STATES. 

Aj5irvr*> :x J>- M- ft-..*Tii tri 3tf^ C<*. t. Sar-inrd, ia» TyeoaL 90S, 
70 ^ W. *12L ii^.uc i.'g ;r'.«l:i* Irvii. sfcies «! £ats n^' 2aT«iied bj 

wrr «f *Ln i«yt in *^^*-..*s.'j»r 31 *fx*?cxied And Kdd. ii bekoiss m- 
r***TT*-l:j tr, ;jirr':cL. :jLj*;tr* triK reBtrres ccg.jTai^ixt tb€T«32i. 

C;-^ -i iL'vr-^i.'^'y^x: Vj^-jl. i^ii^^lT Co. v. Bmcft. U4 F<d. 512. 
LIZ. L^y^ilLj; ;urj*ix--.'jc- ol Y^-U^nl t^mt OT«r saxhi bronstit l^y 
j/t •>•-::: V:i<^ ijKh.iJrt u'>T«n.i:/*-iT c-Sc-ial for csis^ pMtwmd derlca 

3;r7 u. K, z^^'^A. u i^ *'jrn. Montana by. t. warren. 

Appj'jx^ JL Huvt T. iv^i. ijis:. N. C. 711, S4 & K. 651, holding, 
Qii'l'>r I^vifc IS^^. 'rLkp. 47L H 5. ';. N. CU relating to appeals In 
^rtisulustl ichh*^, <r>.LfT p«rtj mun appeal when the other appeals 
tc> r*n*i*'ir auj a<3vf^rwr mLu;^: dlfefrentiag opinion in J. B. SfFarlan^ 
«!/::., ^>». T, i^j\h:i%*t, VMi V*f^l. 1^. majontr holding Judgment of 
Cir'.iiit O/urt </zi a infAlon caziDot be reviewed where record does 
U'A »ii^jw auf obj<^-iJoD or exception. 

HjL 4 rxi, Hj';r>., Expert t^timony. 

Apj/rored in Glacier r, Nlcboli!. 112 Fed. SSI. holding witness who 
tiav U'/t l^een hi mine, or beard tef^timonj of those who had« cannot 
i'lve expert te»?tJnjony: KJoan t. Baird. 102 N. Y. 333. 56 N. E. 754, 
boldJng qoentiorj whether exf^ert witness is qualified to testify is 
for Judge in fimt instance; Seattle, etc.. Ry. t. Roeder. 30 Wash. 
251. 1^1 Am. Ht Itep. ^;8. 70 Pac. 501. holding person who had been 
tm land and bought and sold similar land in vicinity was qualified 
to testify as an exi^ert as to %'alue of the land; Traver v. Spokane 
Ht Uy,. 25 Wash. 253« 05 Pac. 2^, holding motorman familiar with 



B Notes on U* S. Reports. IST U. S. 355^9:.^ 

cw» nwy glfe expert testimony as to distance wiUiin wliich car 
m&j be 8topx>ed. 

Ul U. & 855-365. Not cited. 

137 U, 8. 3e6-370, 34 L. TOG. HANDLEY y, STUTZ. 
gyL 3 (XI, lOee). Jurisdiction of Circuit Court, 
Approved in Jones v. Mutual Fidelity Co., 123 Fed. 513, holding 
JnrlfidJctlon of Circuit Court appears when assets of insolvent 
corporation amount to more than $2,t!00; Taylor v. Decatur Mineral 
Ht^ Co., 112 Fed. 450, holding In action for dissolution of corpo- 
ra tioo and diatrihution of assets^ value of property to be admin- 
tetered is test of Jurisdiction. 

137 U. S. 370-380, 34 U 708, HAMILTON v. HOME INS. CO. 

SjL 2 iXI. 1067). Arbitration clause in insurance policy. 

Approved in Dickson Mfg. Co. v. American Locomotive Co., 
119 Fed- 489, holding provision for arbitration In bill of sale does 
aot make settlement as to whether certain expensea are to be 
taken as ** costs to vendor" condition precedent; Green v, American 
Cotton Co.. 112 Fed. 745, holding In action on insurance policy 
providing all damages for breach thereof should be submitted to 
artiitrution^ allegation that piaintiff oEfered to arbitrate and defend- 
ant refused is sufficient; Roche v. Baldwin, 135 Cal. 528, 534, CI 
Pic. 906» holding imder cautraet where defendaiit was to fix value 
of senrlces, such fixing Is condition precedent to commeneing 
tcdoD; Munk v. Kanzler, 2G Ind. App. 110, 58 N. E. 544, holding 
agreement In builder's contract that dispute as to value of any 
iDge shall be appraised by architects does not make such 
iraisement condition precedent to suit; Fisher v. Insurance Co., 
96 Me, 490. 50 Atl. 284, holding unless Insurance policy provides 
tJat 00 actlop shall be brought thereon until arbitration, Ita per- 
formance Is not condition precedent; Insurance Co. v. Morton, etc., 
Cto.. Wi Teun. 572, 61 S, W. 790» holding when policy provides that 
no «nlt fthall be brought until after compliance with Ita provisions a 
dsttse requiring appraisement In case of loss is condition precedent. 

137 U. 8w 388^^02, 34 L. 731, THE BURLINGTON. 

8|r!. 4 (XI, 1068). Construction of towage contract. 

Approred in Thompson v. Winslow, 128 Fed. 82, holding tug ia 
llalile for da mages sustained by schooner which Is stranded on 
Iv whlli^ In tow; The Garden City, 127 Fed. 3(M3, holdhig steamer 
was D0| negligent in attempting to return to canal with tow when 
Wtad became too strong to continue voyage; In re Moran, 120 
FW. 5^, holding under facta tug was liable for leaving the dredges; 
icol)«eo T, I^wls Klondike, etc., Co., 112 Fed. 77, holding under 
VoL in —8 



137 U. S. 393-450 Notes on U. S. Reports. 84 

the facts of this case steamship was liable for abandoning her 
tow. 

137 U. S. 393-411. Not cited. 

137 U. S. 411-423. 34 L. 724, UNION. ETC., BANK ▼. GILLESPIE. 

Syl. 2 (XI, 1069). Receiving money from factor. 

Approved In Bills v. Schliep, 127 Fed. 107, holding principal may 
follow proceeds of sale of goods through his factor Into the hands 
of any person with notice of trust character; Hutchinson v. Le Roy» 
113 Fed. 208, holding pledgor of stock which had been sold by 
pledgee had right to follow excess of funds, after paying his debt, 
through hands of assignee in banl^ruptcy of pledgee into hands 
of trustee and to recover from him; People's Nat. Bank v. Myers, 
65 Kan. 123, 69 Pac. 164, holding one who knows money in hands of 
another belongs to a third person cannot apply it in payment of his 
own indebtedness. 

Syl. 3 (XI, 1070). Equitable owner of money. 

Approved in In re Woods, 121 Fed. (501, holding where cotton 
was sold by mistake and proceeds deposited to factor's account, 
who were not consignees, on their Insolvency owner of cotton was 
entitled to value thereof from bankrupt's estate; Hunter v. Robbins, 
117 Fed. 923, 924, holding equity has Jurisdiction to charge bank as 
trustee of fund when it knew of ownership and fraudulently per- 
mitted codefendant to withdraw it and convert it to his own use. 

137 U. S. 423-435, 34 L. 719, BUSELL TRIMMER CO. v. STEVENS. 

Syl. 3 (XI, 1070). Improvements in degree not patentable. 

Approved in Lamson Consol. Service Co. v. Hillman, 123 Fed. 
422, holding McCarty patent No. 4(>r),967, for store-service apparatus 
for carrying cash and packages, discloses patentable Invention; 
dissenting opinion in Justi v. Clark, 108 Fed. 669, majority hold- 
ing Hurlbut reissue patent No. 11,606 (original No.* 503,664), for 
Improved dental spittoon, disclosed patentable invention. 

137 U. S. 436-444, 34 L. 744, ROBERTSON v. OELSCHELAEGER. 

Syl. 1 (XI, 1071). Customs duties. 

Approved in United States v. Massachusetts General Hospital, 
100 Fed. 934, 935, 938, 939, holding, under paragraph 585, tariff 
act of 1894, surgical Instruments are scientific instruments. 

137 U. S. 445-450, 34 L. 741. NEW YORK, ETC.. CO. v. NEW 
JERSEY, ETC., RUBBER CO. 

Syl. 2 (XI, 1071). Patents. 

Approved in Chinnock v. Paterson, etc.. Tel. Co., 112 Fed. 533, 
holding Chinnock patent No. 274,562, for process of suspending 
cables, is not so manifestly lacking in patentable invention as to be 
declared void on demurrer; Neidich v. Fosbenuer, 108 Fed. 267» 



Notes on V, S, Reports. 137 D, 8. 451-i37 






clmlins 1 and 2 of Brill patent No. 478,218, for Improvement 
te cmr tnaclcs, not Infringed; Parsons v. Seelye, lOO Fed. 454, hold* 
Ibc fftmte of an art, of wbich court may take Judicial notice In 
mit relating to patent* is confined to matters of general knowledge. 

irr U* 8. 451-457, 34 L. 738, IN RE PENNSYLVANIA. 

Sj-L 1 iXh 1072). Compelling inf»?rior court to take juried Ictioo. 
Approred In In re Grossmayer. 1T7 U. S. 49. 44 L. tj6C» 20 Sup. 
Ct. 536, holding mandamus wiil lie to compel court to enter judg- 
ment by defanlt whore !t declines to take jurisdiction after suf- 
fici«&t ten- Ice on defendanL 
8yL 2 (XI, 1072). When mandamus will not Issue. 
Appmired In The Union Steamboat Co.. 178 U. S. 319. 44 L. 1085. 
91 Mp. Ct. 805, holding decision of inferior court upon auy matter 
left open by opinion of higher court can only be reviewed by new 
smieal and not by mandamus: State v. Booth, 21 Utah. 95, 50 Pac. 
S&5» tioldltig judgment of dismissal in criminal case may be re- 
viewed by appeal by State under Const. Utah, arts. 8 and 9, but 
mit Uw nxandnmus. 
Bft 8 (XI, 1072). Jurisdiction of Federal courts. 
pprored In German Nat. Bank t. Speckert 181 U. S. 40T, 45 
\ 21 Sup, Ct 080, holding decision of Circuit Court of Appeals, 
nrrervlng decree of Circuit Court denying motion to rcmatnl rause 
10 S?t«t<> mart, la not appealable to Supreme Court of United States 
initl«r act of Congress March 3, ISUl, chap. 517; Weldon v. Fritzlen, 
12S y^cd* 615, holding In action to foreclose mortpiige where tiiort- 
^B^tir defendant and mortgagee are residents of same State, a 
d^tljior eoortgagee cannot, being resident of another State, re- 
ta^wm catMW to Federal court; Foulk f. Gray, 120 Fed. ItiS. hold- 
liyt vntt brought in court of State of which neither Is resident is 
liOf reinovable Into Feileral court under judiciary act 1887-88: 
Pmr^toi>ot) ^- Barr, 105 Fed. 83, holding, on ciuesllon of removal, 
eeort will consider only cltl/.enship and residence of parties to 
fucortl; Wnbl v. Fratiz. 100 Fed, 683, holding proceedings for pro- 
bate of will Is not *' suit of a civil nature at law or In equity." witljin 
mt/Mtnin^ of Judtclary act of 1888; Pennsylvania Co. v. Leemau, IW 
lod. 2t. 66 N. a 5<>, holding, under 25 Stat. 433, 435, i 3, providing 
fer ri»JiKiriil of causes, a plea In abatement is an answer; Rio Grande 
W. HT' ^- Power Co., 23 Utali, 33, <i3 Pac. 1K>7, holding Supreme 
CDwrt of State has no power to review order of Federal court 
il0<ilnliig jorJiKllctlon and remanding cause to State court. 
Syl- 5 (XI. I(fi2). Removal for pr«?judice. 

Afifmrred In Caitipl)ell v, MUtiken. 110 Fed. DSfl, holdlni? one of 
tw JlefrTiilimta. botb ni^eessury parties, and where there is no sep- 
fisMa roofJ^iver*y, cannot remove cause for locjil prejudice under 
r, S. CS^mp. Stat. 10<*i, p. SAM), where eodefendant and plaintiffs 



137 U. S. 45S-507 Notes on U. S. Reports. 86 

are residents of same State; Montgomery CJo. v. Cochran, 116 Fed. 
095, holding where one defendant has right to removal of cause to 
Federal court for local prejudice, it Is immaterial that codefendant 
and plaintiff are residents of same State; Ellison v. Louisville, etc., 
R. R. Co., 112 Fed. 810, holding, under act March, 1887, providing 
for removal of cause to Federal court when Justice cannot be ob- 
tained. It was error for court to refuse plaintiff right to contest 
allegation of petition for removal; Cole v. Garland, 107 Fed. 762. 
holding where party has shown right to have case tried in Federal, 
and court below has remanded It, his remedy Is by writ- of error to 
Supreme Court of State; Terre Haute v. EvansvlUe, etc., R. R., 106 
Fed. 540, holding, under Judiciary act 1887-^, § 2, a cause may be 
removed from State to Federal court for local prejudice only 
where there Is a diversity of citizenship between parties; Beach v. 
Railway Co., 131 N. C. 401, 42 S. E. 857, holding foreign corporation 
which has complied with Laws 1899, chap. 62, N. C, cannot remove 
cause to Federal court on ground of local prejudice. 

137 U. S. 458-^73. Not cited. 

137 U. S. 473-479, 34 L. 759, BANK OF BRITISH NORTH 
AMERICA V. COOPER. 

Syl. 3 (XI, 1074). Questions for Jury. 

Approved in Dennis v. Slyfield, 117 Fed. 479, holding question 
of fact whether written agreement constituted entire agreement 

137 U. S. 480-483, 34 L. 705, AMBLER v. BPPINGER. 

Syl. 1 (XI, 1074). Suit by assignee. 

Approved In Buckingham v. Dake, 112 Fed. 261, holding action 
of replevin by assignee of promissory note secured by chattel 
mortgage to recover possession from stranger to contract Is not 
suit to recover contents of chose in action under act May 3, 1887, 
Kan. 

137 U. S. 483-406, 34 L. 734, IIOLDEN v. MINNESOTA. 

Syl. 1 (XI, 1075). Repeal by implication. 

Approved in Croasdale v. Davis, Kan. App. 102, 50 Pac. 668, 
holding. Irrespective of amendment of law of 18(»0, Kan., power of 
clerk of Court of Appeals to tax costs is determined by Gen. Stat. 
1868,* chap. 27, S 8. 

Syl. 3 (XI, 1075). Fixing death sentence. 

Approved In State v. Iladdox, 50 W. Va. 224, 40 S. E. 388, hold- 
ing imposing death sentence again after affirmance of Judgment on 
appeal is ministerial duty of trial Judge. 

137 U. S. 406-507, 34 L. 762. BASSETT v. UNITED STATES. 

Syl. 2 (XI, 1075). Competency of spouse as witness. 

Approved In People v. Ciiiialo. 137 Cal. 538. 70 Pac. 470, hold- 
ing Intercourse with female under sixteen years of age, with her 



Notes on U. S. Reports. 137 D. S, 507-^542 



Ift not criminal violence witliiu inennhig of Pen. Code, 
Cal^ providing haBband or wife is not competent witness 
ItnrBt the otber. 

U. a 507-821, 34 L. 747, CHICAGO. ETC., RY* v. ARTERY. 
Bft 1 (XI, 1076). Negligence of fellow servant 
Approved In Rice v. Wabash Rj. Co., 02 Mo* App. 39, holding 
_MCfjoii b&nd riding on hand car is within protection of fellow* 
at act of Missouri; Perez v. San Antonio, etc*, Ry., 28 Tex. 
f, 258^ G7 S. W. 139, holding, nnd^r Sayler's Anno, Civ. Stat. Tex., 
§xt, 4560f, providing for liability of railroad for injuries to em* 
error to Instruct jury that plaintiff could not recover If 
not applied under order of foreman. 
fRjL 2 (XI, 107GK Impeachment of wellness. 

Approved In St. Louis, etc. Ry, v. Falsst 68 Ark, 593, 61 S. W. 
tSM^ holding when witness has admitted signature to affidavit but 
stated that statement waa taken down by another, it was error 
to refuse affidAvit to be read to jury; Stebbina v. Crooked Creek 
R. a^ etc^ Co., 116 Iowa. 515, 90 N, W. 350, holding, under Code 
lowm. I 2071. relating to liability of railroads for injuries to em- 
ployees by coemployeea» an employee who is Injured by negli- 
of coemployee while transferring rails from one car to 
maj recover; Texas, etc.. Ry. v. Webb^ 31 Tex. Civ. 501, 
72 SL W. 1<M6. holding, under Rev. Stat, art 4560f, Tex., relating 
to Ilabtllty of railroad for negligence of fellow employee, car used 
f«r traosportlng rock down Incline track to rock crusher Is a car. 
See 82 Am. St. Rep* 49, note. 

IIT U. a 521-52a 34 L, 780. WELLFORD v. SNJDER. 
Syl 2 <XI, 1076). Construction of wills. 

Approved In Cookaey. etc. v. Hill, etc.. lOG Ky, 308. 50 S. W. 238. 
JloJdl&g wonla " dying without issue," in wills, do not refer to 
itb of devisee before testator or during some particular estate 
f Ided for. 

m V. R 52»h542. a4 JU 767, ST. PAUL. ETC., RY. v. PHELPS, 

SfL 1 (XI, 1077). Construction of statute. 

Approved In In re Wolf. 122 Fed, 133, holding sale of goods and 
netfpt of payment therefor from bankrupt without kuowledire 
«f laaolvencj. and subsequent sale without payment do not con- 
•tltiitft preference under bankruptcy act § 00c; Johnson v. Southern 
Pie Co-. U7 Fed. 4*10, holding 27 Stat, chap. 190, p. 531, Utah, 
ta* Bot make It unlawful for common carriers to use locQmotives 
npif^ In Interstiite commerce which are not equipped wltli 
iSloiBatle couplers: Swarts v, Slegcl, 117 Fed. 19, holding Indorser 
fir rartlj on obUgation of bankrupt la creditor nnder act ISUS; 



137 U. S. 604-632 Notes on U. S. Reports. 40 

S7I. 4 (XI, 1080). Denial of new trial — Appeal. 

Approved in South Pen'n Oil Co. y. Latsbaw, 111 Fed. 598, hold- 
ing ruling on motion for new trial is not reviewable on appeal in 
Federal court 

Syl. 5 (XI, 1080). Controlling features in boundaries. 

Approved in Piatt v. Vermillion, 99 Fed. 367, 368, holding where 
surveys are run and marked on ground line so made governs over 
call in field notes for line of previous survey as common boundary. 

137 U. S. 604-615, 34 L. 788, PRESTON v. PRATHER. 

Syl. 5 (XI, 1080). Liability of banlt for negligence. 

Approved in Cussen v. Southern Cal. Sav. Bank, 133 Cal. 537, 65 
Pac. 1100, holding defendant negligent in not giving proper pro- 
tection to depositor in one of its safe-deposit vaults. 

137 U. S. 615-624, 34 L. 792, GREEN v. ELBERT. 

Syl. 1 (XI, 1081). Filing transcript on appeal. 

Approved in Berliner Gramophone Co. v. Seaman, 108 Fed. 717, 
holding issuance and service of citation on appeal until after time 
limited for appealing has expired does not defeat Jurisdiction. 

Syl. 5 (XI, 1082). Impertinent'matter in brief. 

Approved in State v. Call, 41 Fla. 402, 26 So. 1020, holding terms 
"elastic conscience" and "Ingenious skill of an artful dodger" 
are not proper expressions in a brief; Morrison v. Snow, 20 Utah, 
262, 72 Pac. 029, holding an attorney, under Rev. Stat., § 113, 
subds. 2, 4, 6, Utah, as a party to the action is prohibited from 
making defamatory charges against judge; Sawdey v. Spokane 
Falls, etc., Ry.. 27 Wash. 538, 07 Pac. 1095. holding statement in 
brief that action of trial court is an uncommon example of ju- 
dicial ignorance will justify court in striking brief from the files. 

137 U. S. 624-632. 34 L. 790. IN RE CONVERS. 

Syl. 1 (XI, 1082). Denial of due process. 

Approved in State v. Goddard, 162 Mo. 235, 62 8. W. 709. hold- 
ing retrial upon charge of murder in first degree, after reversal 
of judgment for murder in second degree, is not denial of due 
process of law. 

Syl. 2 (XI, 1082). Criminal prosecution under Fourteenth Amend- 
ment 

Approved in Hart v. State of Utah. 179 U. S. 681, 45 L. 384, 21 
Sup. Ct. 918, dismissed for want of jurisdiction. 

Syl. 3 (XI, 1082). Scope of Fourteenth Amendment. 

Approved in Maxwell v. Dow, 170 U. S. 003. 44 L. 605, 20 Sup. 
Ct. 457, holding State statute, providing that jury in criminal action 
shall consist of eight instead of twelve persons, is not denial of due 
process of law. 



Notes on U- 8. Reports* 137 U, S. 632-673 

T r. S. 632-636, 34 L. 799, RED RIVER CATTLE CO. v. 

KEEDHAM. 
8yL 3 tXI, 1083). Jurisdicdoii — Statement of value, 
Ai>pn>Ted In Robinson v. Suburban Brick Co,» 127 Fed. 806, hold- 
ing not DeeesfiJiry to state In bill amount in eon trove ray, but it 
nay be sliowti by affidavit or evidence; Hiinnab v. Bank, fi3 W, 
Va. S3v 44 ^. B. 153, holding when form of procedure In trial court 
does not require record to show value of property iu controversy 
affldarit may be filed in Supreme Court showing a value giving 
lOTisdlcdon. 

137 D, 8* Ca6-647, 34 L, 811. UNITED STATES v. WTNDOM. 

Syl. 2 (XI, 1083). Mandamus to compet ministerial duty. 

Approved in United States ex reh Riverside Oil Co. v, Hitchcock, 
IdO U. Sw 324, 23 Sup. Ct. 701, ^7 L. 1078, holding mandamus will 
not M* to compel secretary of Interior to vacate decision that se- 
lectioD of public land must be rejected; Kelra v. United States. 
177 U. 8. 293. 44 L. 775. 20 Sup. Ct. 575, holding action Of «ecre- 
taty of Interior in discharging clerk Is not subject to review in 
^ courts; Kimberiin v. Commission to Five Civilized Tribes, 104 
flti8» holding court cannot compel commission to the five civl- 
trfbee to enroll applicant whose claim had been denied. 

137 U. 8. 647-001. Not cited. 
lit tr. & e61-€73, 34 L. 819. PACKER v. BIRD, 
Syl 2 iXJ, 1084), Test of navigability. 
See 72 Am, SL Rep. 281, note. 

%!, 3 (XI, 1064>. Federal grants to riparian owners. 

AUproved In Northern Pacific U. R, Co, v. Towusend, 190 U, S. 

iTO, Zi Sup. Ct. 672, 47 L. 101*], holding adverse ownership for 

prlirnte use. under Statute of Limitations, can confer no title on 

ta4lTldnal to portion of right of way granted to Northern Pacific 

Railfcmd Company for construction of Its road; Illinois Cent. R, R, 

T. Ctilcago, 176 U. S, C5J), 44 L, 027, 20 Sup. Ct, 514, holding sub- 

BiwfM lands along shore of Lake Michigan were not liieluded in 

nut to Illinois Central Railroad Company; In re Valley, 116 Fed. 

*4. hoUllDg, under laws of Iowa, deed of liind adjacent to nun- 

^Tl«aWo water-course showing lots as bounded by meander line 

'^ftTcyi land Jying between meander Hue and high- water ninrk; 

*Wille Transp, Co. v. The City of Mobile, 128 AIn. 340. 30 So. «47. 

M\ti^ patent by United States to land along stream where tide 

*b\* and flows conveys to high tide line; State v. Longfellow, lOD 

tJw. 124, 00 H, W. 378, 379, holding riparhin owner of fresli water 



Ni^aote^ 



*j 



137 U. S. 673-699 Notes on U. S. Reports. 42 

Syl. 4 (XI, 1085). Federal grants In California. 

Approved in Mobile Transportation Ck). v. Mobile, 187 U. S. 485, 
23 Sup. Ct 173, 47 L. 271. holding Alabama when admitted into 
Union became entitled to soil below high-water mark under navi- 
gable water; Sweringen v. St. Louis, 185 U. S. 41, 46 L. 798. 22 
Sup. Ct 570, holding decision of State court that courses alleged 
In patent do not bring eastern boundary of land to waters of 
Mississippi river raises no Federal question which gives Supreme 
Court of United States jurisdiction to review judgment of State 
court; dissenting opinion in Kean v. Calumet Canal Co., 190 U. 
S. 481. 23 Sup. Ct. 660. 661, 662, 47 L. 1146, majority holding 
letters-patent from United States to Indiana of swamp lands (9 Stat, 
at Large, 520) convey to extent of full subdivisions land under non- 
navigable water on which fractional sections border. 

137 U. S. 673-682. Not cited. 

137 U. S. 682-689, 34 L. 832, COPE v. COPE. 

Syl. 2 (XI, 1086). State control over succession laws. 

Approved In Peacock v. Pratt, 121 Fed. 776, holding Income 
tax land Hawaii (Act No. 20, pp. 31-35, Sess. Laws 1901) Is valid; 
Chamberlain v. Iowa Tel. Co., 119 Iowa, 627, 93 N. W. 599, holding 
under various laws Iowa telephone company may occupy streets 
with poles without consent of city. 

137 U. S. 689-692. Not cited. 

137 U. S. 692-699, 34 L. 816, CALDWELL T. TEXAS. 

Syl. 1 (XI, 1080). Fourteenth Amendment — Criminal cases. 

Approved in Maxwell v. Dow, 176 U. S. 603, 44 L. 605, 20 Sup. Ct 
457. holding statute providing for trial before eight jurors In crim- 
inal action instead of twelve does not deny defendant due process 
of law. 

Syl. 2 (XI, 1087). Due process of law. 

Approved in Watson v. State of Rhode Island, 179 U. S. 679, 45 
L. 383, 21 Sup. Ct 915, following rule; Maxwell v. Dow, 176 U. S. 
604, 44 L. 606, 20 Sup. Ct 457, holding due process of law is secured 
when law operates on all alike; 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; In re Meggett 105 Wis. 297, 81 N. W. 
421, holding Rev. Stat, § 3479, Wis., providing for commitment to 
prison for disobedience of an order to pay money, does not deprive 
party of due process of law. 

Syl. 4 (XI, 1087). Sufficiency of hidlctment for State court. 

Approved In Howard v. Fleming, 191 U. S. 135, holding decision 
by State Supreme Court that conspiracy to defraud is a crime is 
conclusive on United States Supreme Court 



CIKXXVin UNITED STATES. 



I IT. S, 1-61, M L. ^3. JOY r. ST. LOUIS. 
SyL 1 (XI, 1088). Punctuation cannot defeat contractual intent. 
ApproTed in Crawford t. Burke, 201 III. 589, m N. E. 835. hold- 
I ins clause bankruptcy net 1898, construed to prevent disetiarge of 
I ^ebt created by fmud, lliough bankrupt not acting In fiduciary 
eapacity: Prouty v. Union Hardware Co., 176 Mass. 15S, 57 N. E. 
353» holding contract to pay |500 for license to sell patent skates, 
and certain royalty, and if royalty less tlian .•?5l)i> plaintiff would 
make np, not entitling plaintiff to money on eaneellatiouj St, Louis 
Trust Co* V. York. 81 Mo. App. 3415, construing provision for pay- 
ment •'one year thereafter** as referring to completion aad opera- 
tion af road, not to date of conti-act. 

SyL 10 (XI, 1080). Equity determining compensation riglit of 
way. 

Approved In St Paul. M. & M. Ry. Co. v. Western Union Tel. Co., 
US Fed. 510, holding equity may permit telegraph company to use 
railway right of way after teruiinatloD of ten-year contract, and 
determine compensation to be paid therefor, 

SyL 16 (XI, lOOOj, Specific performance not denied^ 
Approved In Lake Shore, etc., R. H. Uo. v, Feltou, 103 Fed. 2.^0, 
boldiag repeated trespasses give equity jurisdiction without waiting 
for trini and Judgment at taw; Blair v. Railroad Co., 92 Mo. App. 
boldlDg equity will enforce agreemeut to construct passageway 
cattle under tracks, and a water gate. 
*XL lt>88|. Miscellaneous. 

aiiKl in Muncie Nat Gas Co. v. Muucle. 100 Ind. 112, 66 N. E. 
4i2» holding city ordinance fixing fuel gas rates, providing rates 
*»boii]d not exceed price above stated,'* meant maximum scale of 
lPric»; Maysvllle & B. S. K. R. Co. v. Ball et al., 108 Ky. 236, 50 
1 W. l»L holding contract to furnish railroad with right of way 
cf <le«igmited width does not relieve company from liability for 
Mldiag thereon so as to obstruct approach. 

m tl, 8, 62-^1, 34 L. SC9, BUTLER v. GAGE. 

%|l 31 (XI, 1090). Federal question necessary for Federal 
tntedledon. 

Afiprfnred in Illinois v. Biuns. ISO V, S. 500, 23 Sup. Ct 851^ 47 
U %L reaffirming nile, 

143] 



^ 



138 U. S. 61-84 Notes on U. S. Report*, 44 

138 U. S. 61-67. Not cited. 

138 U. S. 67-78. 34 L. 864. PLEASANT TOWNSHIP ▼. iETNA 
LIFE INS. CO. 

Syl. 4 (XI, 1001). Federal courts disregard decisions divesting 
rights. 

Approved in Great Southern Fireproof Hotel Co. v. Jones, 116 
Fed. 799, holding Ohio decision (declaring invalid State mechanic's 
lien statute, under which contracts in suit were made, not bind- 
ing on Federal courts; Clapp v. Otoe County, 104 Fed. 476, holding 
State decision affecting validity of county bonds held by nonresi- 
dents not binding on Federal courts; Rondot v. Rogers Township, 
99 Fed. 211, holding Federal courts not bound by Michigan decision 
of 1884, declaring invalid municipal bonds bought by plaintiff^s 
predecessors in 1872. 

138 U. S. 78-84, 34 L. 862, BRIMMER v. REBMAN. 

Syl. 1 (XI, 1092). Unconstitutional statute void regardless of 
purpose. 

Approved in Booth v. Illinois, 184 U. S. 429, 46 L. 626, 22 Sup. Ct. 
427, upholding 111. Crim. Code, § 130, prohibiting options to buy 
or sell grain in commodities in future. 

Syl. 2 (XI. 1092). State Inspection laws, when valid. 

Approved in Smith v. St. Louis, etc., R. R. Co., 181 U. S. 255, 45 
L. 850, 21 Sup. Ct. 605, upholding Texas quarantine regulations, 
established by governor on advice of live stock sanitary commis- 
sioners, whereby importation of cattle from Louisiana prevented 
for four months; State v. Duch: worth, 5 Idaho, 648, 95 Am. St Rep. 
202, 51 Pac. 457. holding unconstitutional Idaho Sess. Laws 1805, 
p. 125, § 4. and 1897. p. 115, S 4, requiring imported sheep to be 
dipped as provided before entry; People v. Buffalo Fish Co., 164 
N. Y. 102. 79 Am. St Rep. 627, 58 N. E. 37. holding void N. Y. 
Laws 1892, chap. 488. § 110, making misdemeanor to catch or possess 
certain kind of fish out of season, as applied to fish imported from 
without; St Louis, etc., Ry. v. Smith, 20 Tex. Civ. 460. 49 S. W. 
631, upholding Rev. Stat Tex. 1895, tit 102. chap. 7, giving live stock 
sanitary commission authority to prohibit importation of cattle from 
infected districts; dissenting opinion in Austin v. Tennessee. 179 
U. S. 378. 45 L. 240, 21 Sup. Ct 145, majority upholding Tenn. Laws 
1897, chap. 30, prohibiting importation or sale of cigarettes or 
cigarette papers; dissenting opinion in State v. Blxman, 162 Mo. 
50, 62 S. W. 843, majority upholding Mo. Laws 1899, p. 228, im- 
posing inspection fee upon all beer and malt liquors manufactured 
or sold within State. See 78 Am. St Rep. 252, note. 

Distinguished in Austin v. Tennessee, 179 U. S. 344, 45 L. 226, 
21 Sup. Ct 132, upholding Tenn. Laws 1897, chap. 30, prohibiting 
and making misdemeanor importation or sale of cigarettes or 



Notes on O, S. Reports. 



138 V. 8. 84-108 



te papers or aubsUtute tLerefor; State v. Blxiuau, 1G2 Mo. 
[IB S, A^» 833, upboIdiDg Mo. Laws 1899, p. 228, imposing license 
for Inspection of all beer and malt liquors manufacltiredl or 
•old In 8tatti. 

SyL 3 (XI, 1003). Local regulations cannot denj nonresident^s 

eggjUlty, 

|Appn>Ted in State v. Zopby. 14 S. Dak. 125, 84 N. W. 3^3, m Am. 

Rep. 745* holding unconstitutional S. Dak. Sesa. Laws 1S9T, cbap. 

72* Imposing annual tax on nonresidents baving wbolesale tlqaor 

catmblisbments in State, exempting resident tberefrom* 

13S U. & m-92. Not cited. 

138 V. S. 03-98, 34 U 914, SUPERIOR CITY v. RIPLEY. 
Sji I <XI, 1093|. Contractor's assignee may sue city. 
A|M>roved in Peacoclt, etc.* Co. v. Tbaggard, 128 Fed. lOOQ, up 
Federal iurisdiction, where mortgage secured prior intlebt- 
af mortgagor to mortgagee, citizens of different States, 
Ih shearing inorigagor*s debt to resident third party assigned 
inuirtgagee; Seymour v. Loan, etc.» Co.» 128 Fed. 908, holding noii- 
at trustee to whom city ordinance granting water franchise, 
directed rentals to be paid, may sue in Federal courts, though bolder 
iOt ffBDchlse be resident; Hoadley v. Day, 128 Fed. 304, holding 
Hi court has jurisdiction of foreclosure of trust deed secured 
(by ootes, though 24 Stat 552 prev^ents suit by assignee of notCH 
cp«fjjdent on such assignment. 

U. a S8-10S, 34 L. 8»8, SIOUX CITY ST. RY. CO. T. SIOUX 
CITY, 

Syl 1 (XI. 1094). Railroad required to pave outside rails. 

Approved In Lincoln St R, R. v. Lincoln, 01 Nebr. 135, 84 N. W. 
&10, upholding provisions of Nebr. act 1887. requiring street rail- 
waj« In cities of first class to pave right of way, authorizing pave- 
Bem by city and assessment against railway. 

8fL 3 (XI, 1094>. Altering charter under reserved power con- 

ettodoiwi. 

Approved In Newburyport Water Co. v. Newburypart, 103 Fed. 

Itoldiog threat by city to build waterworks to compete with 

LiBtiff previously chartered, thus inducing sale to city, not duress, 

ing sale tailing of property; Merco utile Trust, etc.. Co. v, Collins 

Ptelu etc.. Co., 99 Fed. 817. holding suit to enjoin enforcement of 

dty ordinaDce which hns force of law, on ground of impairing con- 

tnct obligation, raises Federal question; Hot Spring.s Electric Light 

jJOol ?. Hot Springs. 70 Ark. 303. 67 S. W, 762. holding city having 

latfid electric franchise pursuant to wh^cb com puny erected poles 

' fC^d not afterward require company to pay for ground occupied by 

lilit; Dtposit Bank of Owensboro v. Daviess Co., 102 Ky. 187, 39 



I 



138 U. S. 109-156 Notes on U. S. Reports. 46 

S. W. 1033, holding acceptance ot act 1886, reserving power to 
amend charters, by banks chartered before 1856, a surrender of 
exemption from amendment; Springfield v. Springfield Ry. Co., 182 
Mass. 49, 64 N. E. 581, upholding Mass. Stat. 1898, chap. 578, ore- 
viding that street railroads shall not be required to repair any por- 
tion of streets or highways. 

138 U. S. 109-114, 34 L. 892, REAGAN v. AIKEN. 

Syl. 3 (XI, 1095). Charge to jury presumed correct 

Approved in Columbus Const Co. v. Crane Co., 101 Fed. 57, hold- 
ing rule 10 of Circuit Court of Appeals, requiring party excepting 
to charge to state matters therein excepted to, means proposition of 
law excepted to with charge embodying same. 

Syl. 4 (XI, 1095). Motion for new trial discretionary. 

Approved in Northern Pac. Ry. Co. v. Tynan, 119 Fed. 294, hold- 
ing where entire charge not given in record. Judgment not reversed 
on appeal for refusing instructions. 

(XI, 1095). Miscellaneous. 

Cited in Howard v. United States, 184 U. S. 681. 46 L. 758, 22 
Sup. Ct. 546, holding suit on bond of Federal court clerk depending 
on efitect of bond and laws governing same raises Federal question; 
Heath v. Wilson, 129 Cal. 368, 73 Pac. 185, holding deed conveying 
portion of debtor's property to trustee for certain creditors, balance 
to inure to debtor for life, not assignment for creditors, so valid. 

138 U. S. 114-124, 34 L. 902, BENT v. THOMPSON. 

Syl. 1 (XI, 1095). Judgment not annulled after twenty years. 

Approved in James v. Appel, 192 U. S. 138, 24 Sup. Ct 224, up- 
holding Ariz. Rev. Stat. 1887, par. 837, for discharging motions for 
new trial by operation of law if not acted on at same term. 

138 U. S. 124-133. Not cited. 

138 U. S. 134-146, 34 L. 887, TUBES v. WILHOIT. 

Syl. 1 (XI, 1096). Swamp land grant in prsesenti. 

Approved in Simpson v. Stoddard County, 173 Mo. 444, 73 S. W. 
703, holding act Congress September 28, 1850, granting public 
swamp lands to States, grant in prsesenti requiring no formal 
conveyance. 

138 U. S. 146-156, 34 L. 873, WHITEHEAD v. SHATTUCK. 

Syl. 1 (XI, 1096). Plaintiff out of possession cannot sue. 

Approved in Boston, etc.. Mining Co. v. Montana Ore Co., 188 U. 
S. 642, 23 Sup. Ct. 438, 47 L. 633, holding averment of possession 
necessary in bill in Federal court to quiet title to mining claim, 
though Mont. Code, § 1310, otherwise; Jones v. MacKenzie, 
122 Fed. 393, holding suit in equity to regain personalty in defend- 
ant's possession not maintainable in equity, replevin being proper 



tl 



Kotea oo U* S. Reports. 138 U. S. 146-156 




mcUoo; Uolteil States Mining Ca. y. LawBon, 115 Fed. lOOTt boMhig 

not rngnlicnhtf" In Fedarul eQulty court suit to try title to mluiug 

tt> preveot removui of ore, tLougli State court disregards 

Blon; Hill V. Northern, etc., Ry, Co., 113 Fed, 017, holding 

IteT. Stat.. % 914, conforming Federal to State practice, party 

csecutins release of liability to raHroud cannot avoid same for 

fraud* frltbout returning consideration; Cosmos Exploration Co, v. 

GrAy Cagle Oil Co.. 112 Fed. 9, holding not cognizable In Federal 

eBBTl of equity suit by claimant out of possession against clalmjint 

la po««essiOfi drilling oil wells and tailing oil therefrom; Ilanley v, 

g«r>»f Sl T. Coal Co., 110 Fed. 09, holding cognizable only by court 

«< lAW liUl to declare trust in lauds and for accounting by defend- 

ftfit la po«0e8sioa claiming adversely; Southern Pine Co. v. Hall 

UlQ Fed. 8ft, holding Federal court has Jurisdiction of suit by owner 

mil of possesBtoii to quiet title where State statutes whlrh iiicroased 

«qitltable riflits do not infringe rights to jury; Adoue \\ Strahan, l^T 

ITcd. 0UZ, boidlog owner of legal title out of possession cannot sue 

la Federal courts In etjulty to cancel tax deed as clotid on title, 

iSyt 2 (XI, 1097). No eciuitable remedy where legal sufficient, 

ApiiroTod in Jones v. Mutual Fidelity Co., 123 Fed. 510, enforcing 

T^tiupdf of 19 Del, Laws. chap. 181. autborizliig appointment of re- 

i^Ter for insolvent corporation, collecting debts and adiolnlstraliou 

•f property; Bearden v. Beiiner. 120 Ft^L GIM, refusing equitable 

fuU for partition, where defendant had ousted plaintiff, umil suit 

4 at law; Lownsdale v, Gray's Harbor Boom Co., 117 Fed. 980. 

L*a*Ung Federal equity court without jurisdiction to enjoin boom 

tmapmuf from obstructing navigaijie river, where plaintiff claims 

IMOCD «lte; American, etc., Co. v. Home Water Co,, 115 Fed. ISl, 

Mdlac Federal court of equity powerless to enforce payment by 

fi|y of water rentals, being right to sue at law: M'Guire v, I'ensa- 

eula Oty Co,. 105 Fed, G79. holding Federal equity court bus no 

Isrtiillctkm of suit by legal owner out of possession against claim- 

ttH la pos^eftsJon to prevent multiplicity of suits; 11 ill v. Northern 

^ic Rj, Co„ 104 Fed. 755, holding written release voluntarily signed 

^. ' V— it Ion not impeachable for fraud in Federal court of law, 

tl able dcfenst»s permitted in State courts; M, U. P. Co. 

' 1 ^'- M,, etc, Co.» 27 Mont 541. 71 Pac. 1007, holding under 

T i>,^,* Qi^^ Proc, i 1310, allowing eqnitaide action against 

ijint of realty, neither party entitled to jury trial; Lock- 

1^, 10 N. Mcjc. 00i», <i3 Pac. 53. refusing injunction re- 

tMidants from interfering with cbilm, where plaintld's 

.iuudulently surrendered same, ejectment being adequate 



*'t»utjgui«hed In Green v. Turner, OS Fed, 75S, holding Federal 
*•»! liAi Jurisdiction of action to quiet title by residents against 
*«">*i4fnu, ftltliough action for possession available against 
*«^iit« lo posaessioa. 



188 U. S. 262>288 Notes on U. S. Reports. 50 

« 

Mfg. Co., 115 Fed. 333, holding Uansfer of "exclusive right, 
license and privilege to manufacture and sell " article for use in all 
places constitutes mere license; Bowers Hydraulic, etc., Go. v. Vare» 

112 Fed. 64, holding exclusive right to use, make and sell patent 
article vrithin limited territory, subject to certain reservations, not 
assignment permitting suit in assignee's name; New Yorlc, etc., Co. 
V. Sullivan, 111 Fed. 181, holding where owner of patent grants 
exclusive franchise to sell, not to use article within certain terri- 
tory, suit agalDst infringers must be brought in assignee's name. 

Distinguished in D. M. Sechler Carriage Co. v. Deere, etc., Co., 

113 Fed. 287, holding transfer of exclusive right to manufacture, 
use and £ell patent during full term of same constitutes assign- 
ment enabling assignee to sue In own name. 

138 U. S. 262-271. Not cited. 

138 U. S. 271-285. 34 L. 936, NORTH v. PETERS. 

Syl. 1 (XI, 1103). Injunction against repeated attachment by 
creditors. 

Approved in Minneapolis Brewing Co. v. M'Gillivray, 104 Fed. 
271, holding Federal equity court has jurisdiction of suit to enjoin 
enforcement of unconstitutional statute imposing tax under which 
authorities threaten to seize plain tiflTs property; McMickle v. Har- 
din. 25 Tex. Civ. 225, 61 S. W. 324, refusing injunction to restrain 
enforcement of tax judgments on ground of illegality, such defense 
being available to individual complainants; disseotinp: opinion in 
L. Bucki & Son Lumber Co. v. Fidelity, etc., Co., 109 Fed. 410. 
majority holding under Fla. Rev. Stat 1892, § 1646, reasonable 
attorney's fees recoverable as damages In suit on attachment bond. 

138 U. S. 285-287, 34 L. 962, KAUFFMAN v. WOOTTERS. 

Syl. 1 (XI, 1104). Statute making appearance sufficient for 
jurisdiction. 

Approved in MaysvUle & B. S. R. R. Co. v. Ball et al., 108 Ky. 
259, 56 S. W. 192, upholding amendment to Ky. Civ. Code Proc, 
S 51, providing that service on person or corporation controlling, 
same as service company owning or constructing same. 

138 U. S. 287-203, 34 L. 967. WHEELING, ETC., BRIDGE CO. v. 
WHEELING BRIDGE CO. 

Syl. 2 (XI, 1104). Supreme Court following State on appeal. 

Approved in dissenting opinion in Tyler v. Judges of the Court of 
Registration, 179 U. S. 411, 412, 413, 45 L. 255. 21 Sup. Ct 208. 209. 
majority holding objection to Massachusetts statute for adjudicat- 
ing rights of persons other than registered owners of land by post- 
ing notice unavailable to one duly notified. 

Distlnguislied in Southern R. R. Co. v. Postal Tel. Cable Co., 179 
U. S. 643. 45 L. 356, 21 Sup. Ct. 250, holding writ of error not sus- 



Notes on U. S. Reports. 



112 



I 



talLen before lurtber proceedings had after appointment 
aloner^ in condemnation proceedings, there helng no final 

ftyl, 4 iXl* 1104>* Suspension of government power must appear. 

Approved In Williams v. Wlngo, 1T7 U. S, 603, 44 L. miJ, 20 Sup. 

OL TIM, bolding ferry licejise granted by Virginia Coytity Court, 

mder ceneral act prohibiting ferrj within one-half mile of another. 

Bot contract Impaired by later legislative franchise; Great Western 

»rt. Gam & Oil Co, v. Hawkins, 30 Ind. App. 563, 66 N. E. 767» 

iDttldln^ nnder Bums* Rev. Stat, Ind. 1901, i 5105, court may refuse 

tm appoint appraisers in condemnation proceedings, where petitioner 

iocs not ahow itself furnishing gas to public; IlaLlroad v. Atkinson, 

W. Va- 541, 44 S. E. 774» holding order of court in condemnation 

proee^dings under W. Va. Code, declaring complalnant*s right to 

coodemn. Dot final to authorize writ of error; Ferry Co. v. RusselU 

saw. Va. 3fl0. 43 S. R lu9, holding an appeal from County Court to 

Qrcnlt Court by owner of ferry for establishment of another to be 

tried oa record^ not with new jury, 

138 U. 8- 293-29& Not cited, 

138 U. a 29S-30e, M L. 963. KANSAS CITY R, R. v. DAUGHERTY. 

SyL 1 (XI, 1105). Federal court tries facts on removal. 

Approved to Guarautee Co. of N. Dak. v, Hanway, 104 Fed. 374, 
Mdlag where case becomes removable after expiration of time for 
raiMiTal, petition within reas^onable time thereafter entitles peti- 
tioner to transfer; Duff v. Hildreth, 183 Mass, 442, 67 N. E. 357, 
ft<ildla^ State court's duty on filing of petition for removal is to 
Mcnnlne whether case for removal made out, if so to accept bond 
wmiciQt further proceedings; Adams v. Railroad, 77 Miss. 315, 28 
So, 056, holding petition for removal filed after reversal on appeal 
kQ»laDe« 

HfL 2 iXl, 1105). Questions of law triable In State court 

Approved in Coker t. Monaghan Mills, 110 Fed. 806, holding Cir- 
CBil Court will not enjoin proceedings In State court In action 
Irottght therein because of pendency of removal petition not p re- 
futed to State ^ourt. 
(XI, 11051. Miscellaneous. 
Cll«ti Id Clirothera v, M'Kinley Mining, etc., Smelting Co., 122 

fvL 3Cttj, holding resident agent of foreign corporation serving no- 

^ AO phtlntirr to leave not joltitihle as defendant In ejectment 

tfilQit corporaUou to prevent retnoval. 

ttl r. S. 306-S12, 34 L. »51, AMES v, MOIR. 
*|t 1 ^Xl. 1106>, Fraud In bankruptcy means fraud In fact 
proved \n In re Basch, 1»7 Fed. 7rd, holding debt incurred by 
; M commission merchant Tailing to account for goods not 




138 U, S, S13-365 Notes on U. S. Eeports. 



ei2 



debt created by bis ** fraud" In fiduciary capacity; Ruff t. Mllaer, 
92 Mo* App. 630t holding debt created by agent's fraud in eiubeazUng 
proceeds of sale not affected by discharge In bankruptcy. 

SyL 4 (XI, 1100). Cull for goods without paying, fraud. 

Approved In Forsyth v. Vehmeyer, 177 U. S. 182, 44 L. 725, 20 
Sup, Ct. 625, holding money obtained under false representation that 
borrower had wood cut ready for sale constituted det)t created 
by fraud exempt from discharge; Bryant v. KiiiyoUp 127 Mich. 157, 
8(S N. W. 532, holding where plaintiff sold wood to defendant, re- 
serring title, and latter sold same* appropriating money, liability 
not arising from fraud in fiduciary capacity within baakruptcy 
act 

138 U, S. 313-352, 34 L. 969, UNITED STATES MORTGAGE CO. 
T. SPERRY. 
Syl, 8 (XI, 1106). Illinois law governs bonds solvable therein. 
Approved In Cotumbus, S. & II. R, R, Co. Appeals, 109 Fed. 194, 
holding, under New York laws, where Interest and principal on 
railroad bonds payable there. Interest not recoverable on coupons 
attached to bonds in holders* hand; Board of Comrs. v, Geer, 108 
Fed. 482, holding Mills* Anao, Stat Colo., 5 2252, allowing creditors 
Interest on bonds, bills, notes and Instruments In writing, appltea 
to interest coupons on municipal bonds. 

138 U, S. 353-300, 34 L. 954, ALEXANDER v, UNITED STATES. 

Syl. 1 (XI, 1107). Objection to challenge must precede convlctloi.- 

Approved in United States v. Davis, 103 Fed, 467, holding de* 
fendant cannot claim new trial because two challenges of State for 
cause Bustalned where defendant had fourteen peremptory chal- 
lenges left 

Syl. 2 (XI, 1107). Evidence of threats admissible In discretion. 

Approved in Green v. State, 154 Ind. 061, 663, 57 N. E. 639, 640, 
holding admissible statement of alleged assassin made to gun* 
-smith wblle repairing her revolver a few days before crime tliat 
she would kill deceased. 

138 U, S. 361-365, 34 L. 958, CRUMPTON v. UNITED STATES. 

SyL 1 (XI, 1108). Appeal -- Verdict against evidence not con- 
aldered. 

Approved In Kellogg v. United States, 103 Fed. 201, holding wbei4 
evidence In forgery case was conflicting, conviction not reverseit 
on appeal, 

Syl, 3 (XI, 1108). Exception lies to statements of counsel. 

Approved la Cudahy Packing Co. v. Skoumal, 125 Fed, 477, holding 
appellate court cannot consider objections to language of counsel 
where It only appears In record from motions and atfidavlts tiled 
after trial; United States r. Alexander, 110 Fed. 1015, holding 



1 



Notc« on IJ. S. Reports. 138 U. S. ^65^388 



Er^QiDeiit of district attorney not ^ouDd for Dew trial where 
court condemned same as improper and defendant requested no 
fnrtlier action; Kellogg t. United States, 103 Fed. 203, holding 
imiiroper reference by prosecuting attorney to slintlar prior con- 
TktioDfl cured by court's sustuinlng objection and attorney's con- 
oedtn^ Impropriety or remark; Cattano v. Metropolitan St Ry., 
ITS K. T. 572, 66 K, E. 565, liotding exception to remarks of plain- 
tUTs coansel not available If taken after court has delivered 
cktrge; Dimon v. New York, etc., II. R., 173 N. Y, 358, 66 N. B. 
62^ hohiing objection to language of counsel not reviewabie \m- 
Vem ctmrt ruiee tbereon and exception taken to ruling. 

13S U. a 3e&-379, 34 L, 931, UPSHUR v. BRISCOE. 

6yL 1 (XI, 1108). No trust created where Interest paid* 

Approved In In re Gaylord, 113 Fed. 135, holding stockholder 
ind customers maintaining runnltig accounts, debtor and creditor, 
beoce preference received by customer within prohibition of bank- 
ruptry act, | 5Tg. 

8yL 2 (XU 1108). Fraud in bankruptcy means intentional wrong. 

Approved In Bear w Chase, 90 Fed. 927, holding mere allegation 
m ptoadlnga not sufficient to establish exemption of claims from 
diaeliarge mast be established by considering facta and law; In re 
BaieJi, d7 Fed« 761« holding deht due by bankrupt commissioD 
merchant for goods consigned for sale not debt created by fraud 
by fiduciary, so not exempt from discharge. 
LByL 3 (XI, 1108), Fiduciary debt* arise from pre-existing re- 

UOD, 

Approved in In re Butts, 120 Fed. 969, holding contract purport- 
tog u» be for sale aad purchase of goods not made trust by pro- 
▼laion tiiat vendee was to hold in trust all unsold goods; Bracken 
?. Mliiier, 104 Fed. 527, holding where agent with money of prin- 
cipal talcea trust deed to himself as trustee, he is trustee and 
•pproprlatlng proceeds Is fraud preventing release; Bryant v, Kln- 
yoo, 127 Mich. 157. 86 N. W. 532, holding debt of defendant selling 
wood and appropriating proceeds where plaintiff sold to bim re- 
•cCTi&g title, not created by fraud in fiduciary capacity, 

1 U. S. 380-389, 34 L. 984, WADSWORTH V. ADAMS, 

, 1 (XI, 1108). Agent failing to communicate larger price, 
red In Paul v. Minneapolis, etc., Machine Co., 87 Mo, App. 
agent's fraud or misconduct forfeits right to com^ 



1>Mlngiiljbed in Carr v. Ubsdell. 97 Mo. App. 332, 71 8. W. 118, 
■flmiiiic recovery of agent where evidence showed performance of 
' ftnd not that agent acted for third party also. 



I 



138 U. S. 389-424 Notes on U. S. Reports. 54 

138 U. S. 389-397, 34 L. 987. BROWN v. TROUSDALE. 

Syl. 1 (XI, 1109). Injunction Involving validity of whole bond 
Issue. 

Approved In MacGinnlss v. Boston, etc.. Silver Mln. Co., 119 Fed. 
101, holding In suit to prevent foreign corporation from controll- 
ing domestic corporation, attempt to prevent former from operat- 
ing In State does not make cause removable; Smedley v. Smcdley, 
110 Fed. 258, holding indivisible suit against S, plaintiff's parol 
grantor, E, S's subsequent grantee, and H, E's grantee, to en- 
force gift and cancel deeds. 

" Distinguished In Colston v. Southern Home, etc., Assn., 99 Fed. 
307, refusing to pass on amount in controversy where prior suit 
for same purpose, liquidation of Insolvent corporation, pending in 
State court 

Syl. 3 (XI, 1100). Removal not allowed, residents and nonresi- 
dents. 

Approved in Green v. Heaston, 154 Ind. 128, 56 N. E. 88, hold- 
ing insufficient, removal petition alleging diverse " residence " of 
parties **at time of filing complaint" 

138 U. S. 397-402. 34 L. 991, BEAUPRE v. NOYES. 

Syl. 2 (XI, 1110). State court denying new trial nonreviewable. 

Approved In Gee v. Gee, 190 U. S. 557, 23 Sup. Ct 854, 47 L. 
1183, reaffirming rule; Hale v. Lewis, 181 U. S. 480, 45 L. 9G2, 21 
Sup. Ct. C80, refusing to review, on error, decision of State court 
that corporation estopped by action of directors to deny validity 
of law. 

(XI, 1110). Miscellaneous. 

Cited In Robins v. Wooten, 128 Ala. 379, 30 So. C82, holding where 
plaintiff knew defendant claimed land as own he cannot, after 
recognizing such claim, declare invalid as fraud on creditors. 

138 U. S. 403. Not cited. 

138 U. S. 404-414, 34 L. 993, IN RE COOPER. 

Syl. 1 (XI. 1110). Prohibition to district of Alaska. 

Approved In Percy Summer Club v. Astle, 110 Fed. 489, 490, 
holding attorney-general may Intervene In behalf of State In liti- 
gation over private right of fishery In 200-acre New Hampshire 
lake. 

138 U. S. 414-424, 34 L. 1014, CENTRAL TRUST CO. T. KNEE- 
LAND. 

Syl. 1 (XI, 1100). After acquired clause valid. 

Approved In St. Joseph, etc., Ry. v. Smith, 170 Mo. 331, 70 S. W. 
702, holding railroad mortgage on road, present and to be made. 



Notea on U. S. Reports. 138 U. 8. 425-460 

fttioQA, depot, grounds and otlier property, included rl^bt-of-way 
glands and stock yardfi. 

I>lstingtilshed In Murray t. Farmvllle, etc., R. R., 101 Va, 270, 
43 E. £. 556» holding mortgage securing tfonds covering all prop- 
4St7 relBtlng to or connected with railroad not Including a separate 
md afterward acqaired. 

3 (XI, 1111). Pre-existing liens precede after acquired 

Approved In Farmers' Loajit etc.* Ca t. DenTer« etc., R. R. Co.* 
126 F«L 49, holding mortgagee of future acquired property, on 
wlUcto mortgagee gave purchase- money mortgage, takes subject 
to such lien: Masteraon v. Burnett 27 Te:3C. Civ. 375, 60 S. W. 93. 
holding Judgment lien against purchaser of land, giving mortgage 
to isccnre purchase price, attaches to land subject to mortgage, 
fXl* 1110). Miscellaneous. 

Cited in State v. Morgan's La,, etc.» T. R. R, etc., Co.» 106 La. 
8o. 121, holding lease of tangible property of one railroad 
tier does not necessarily convey franehlsef hence Judgment 
lessee does not hind lessor* 

'W U. B. 425-43». Not cited. 

1S8 V. 8. 431MG0. 34 L. 1054, SIMMONS v. SAUL, 

8yL 1 (XI, 1112). Faith and credit clause permitting Jurla- 
illctJona] inquiry. 

Approved in Clarke v* Clarke, 178 U. S. 195, 44 L. 1033, 20 Sup, 
Ct 870, holding decisions by courts of domicile of testatrix that 
win worked equitable conversion of realty not conclusive upon 
iiourts of other States where realty situated; Thormao v. Frame. 
ITti U, S. 3ri*>, 44 L. 503, 20 Sup. Ct 448, holding appointment of ad- 
talflifttnitor in State of decedent's death and of situation of prop- 
«ty n6 adjndlmdon that such was decedenrs domicile at time; 
rmted States v. Eisenbels. 112 Fed. IIK], holding flnal Judgment of 
Wftjihington court as to title of land Involved in condemnation pro- 
<*f^lng» before Federal court cannot be questioned. 
SjL 2 (XU 1112k Parish court's Jurisdiction over successions 

ApfiroT^d In Bradley v. Dells L. Co., 105 Wis. 250, 251, 253, Si 
S. W. 395, holding purchaser of land claim sold by Louisiana 
parliili court In administration proceed logs, and evidenced by cer- 
ttflcate of surveyor-general, acquires valid title. 

8yL 7 (XI, 1112). Appointment of administrator not collaterally 
ua4icabteu 

ApfiroTfKl In llodrhaux v. Morris, 121 Fed. 4S5, holiling binding, 
mrtll refeme*! decree of Federal court directing sale of property 
at pUem othtjr than that required by statute; Stacks v. Crawford, 



iMiii^M 



I 



138 U, S. 461-483 Notes on U. S, Reporte, 



5t( 



63 Nebr. 663, 664, 665, 88 N. W* 852, 853, holding order of parish 
court of Louisiana not attackalile collaterally where petition shows 
death within parish^ futestacj and possession of property under 
$500; Coleman v. Howell, 131 N. a 127, 42 S. E. 556, holding, under 
Ga. Code 1882, i 2(508, judgment of Georgia Probate Court discharg- 
ing admlniBtrator Impeachable for fraud In North Carolina. See 
DOtea, 81 Am. St Hep. 552, 560, 561. 

Distinguished In Hale v. Coffin, 114 Fed, 575, holding Federal 
court has Jurlsdlctloo of equity proceeding to subject property In 
distributee's hands to decedent's debts, administration having been 
completed. 

SyL 8 {XI, 1113), Louisiana — Notice of sales not required. 

Approved In Massenberg y. Denlson, 107 Fed. 22, holding, under 
Tex. law Janunry 22, 1836, adopting Louisiana laws of succession, 
order of court unnecessary for sale of Texas land certificate, value 
under $500. 

Syl. 10 (XI. 1113). Equity not set aside will. 

Approved in Wabl v. Franz, 100 Fed. 687, holding proceeding 
for probate of will,, Instituted In Arkansas court, not suit of civil 
nature In law or equity within Judiciai'y act of 18S8. 

Distinguished In dissenting opinion in Wahl v. Franz. 100 Fed. 
693, majority holding proceeding In Arkansas court for probate of 
will not " suit of civil nature In law or equity," within judiciary 
act 1888, 

(XI. 1112), Miscellaneous. 

Cited tn Comstock v, Kerwin, 57 Nebr. 5, holding words ** or 
his legal representatlvea,*' In issue of patent, embraces asaigneea 
and grantees. 

138 U. S, 461-4G4, 34 K 1051, IN RE GRAHAM. 

Syl, 1 (XI, 1113). Criminal Judgment must conform to statute. 

Approved In Whltworth v, United States^ 114 Fed. 304, holding 
Improper, judgment of imprisonment for three years and pay costs, 
where Rev. Stat,, fi 4040, prescribed penalty for embezzlement 
imprfsonment and fine but not costs. 

138 U. S. 404-483, 34 L. 1044, CLAY T. FIELD. 
Syl. 5 (XI. 1114). Distinct Interests cannot be joined. 
Approved Id Wheless v. St. Louis, 180 U. 8. 382. 45 L, 585. 21 Sup, 
Ct 403. holding Interesta of separate plaintiffs In lota upon which 
assessment is to be levied, being entirely distinct not Joinable to 
make jurisdictional amount; McDonlel v. Taylor, 123 Fed. 339. 
holding heirs cannot sue to set aside several judgments against 
estate where no Judgment reaches $2,0tX1, though In aggregate they 
exceed that amount; Washington County v, Wllliains, 111 Fed. 813, 
holding separate bondholders, being entitled to pro rata share of 



Notes on U, S. Reports. 138 U. S. 483^01 



county tax» cannot unite to obtain decree declaring validity 
boi^d&» legal remedy being adequate; Hagge v. Kansas City S. 
.J' Co.* ICH Fed. 393, holding landowners Injured by overflow of 
stream^ due to defeodaot's obstnictlons, may unite for Injunction If 
cbm:^ dalm reaches f2,000; Stemmler v. McNeil, 102 Fed. 661, bold- 
Jas In soil to quiet title to land claimed by plaintiff and numerous 
nts, each defendant's claim must reaeb $2,000. 

Ished In Louisville, etc.. R. R. v. Smith, 128 Fed. 4, 
io suit by railroad to enjoin threatened Interference with 
TigM of way, value of right of way, not of land, is amount in con- 
troTersy; Jones v- Mutual Fidelity Co., 123 Fed. 511, holding, under 
10 DeL Laws, chap. 181, equity has jurisdiction of suit by unse- 
cured creditors of insolvent corporation where assets exceed $2,000 
tn T«li»e: dissenting opinion In Washington County v. Williams, 111 
Fed* S14, majority holding holders of county bonds entitled to pro 
rata sbare of annual tax cannot Join to obtain declaration of 
validity of bonds, legal remedy being adequate, 

138 U. 8. 483-485. 34 L* 1031, BUNT v. SIERRA BUTTE, ETC., 
MIN. CO. 

SyL 1 (XI, 1115). Servant assumes rlslc of Itnown dangers. 

Approved tn Davis v. Trade Dollar ConsoL Mfn. Co.» 117 Fed. 

125, holding servant working In mine assumes risk from missed 

blisu: Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 276, 65 N. E. 921, 

person not servant injured by falling of temporary bridge 

not negative assumption of risk In passing over same. See 

RAm. St Rep. 567, note. 
U. S. 4SG-4S5, 34 L. 1032. HAMMER v. MOULTON. 
SyL 2 (Xt, 1115). Equity refusing because of delay. 
Approved tn Kessler v. Ensley, 123 Fed, 5G2. holding four years' 
drliy by stockholder to set aside conveyance of corporation bars 
right, though statutory period to recover land ten years; New York 
Security, etc.. Co. v. Louisville, etc.. R, R, Co., 07 Fed, 233, hold- 
tog delay of nine years without showing that holders could have 
Inown of offer to exchange outstanding bonds for new bonds 
barrvMl such right; Wampol v, Kountz, 14 S. Dak. 330. 85 N. W. 
5M, 86 Am. St Rep. 7*>9. holding defendant after allowing plaintiff 
tn occupy and Improve land for thirteen years belleTlng grantor's 
<k«cd valid cannot show It a forgery. 

tSS U. & 496-50L 34 L. 1012, MISSOURI v. ANDRIANO. 
8yt I CXI, 1116). Ruling favoring citizenship not reviewed, 
Ipltroved in Baker v, Baldwin. 187 U* S. 63, 23 Sup. Ct 20. 47 
L T6^ botdtng Michigan decision sustaining act Congress February 
9k I97S, making silver dollar of 412.5 grains full legal tender, not 
IVTJtwabJe; Lynde v. Lynde, 181 U. S. 186, 45 L. 814, 21 Sup. Ct. 
SSe, hoMtng New York decision holding husband bound by New 



13S U. S. 501-509 Notes on U. S. Reports. 58 

Jersey divorce decree awarding wife alimony not reviewable by 
Supreme Court; Kizer v. Texarlcana & Fort Smith Ry. CJo., 179 
U. S. 201, 45 L. 153, 21 Sup. Ct 101, refusing to review Arlcansas 
decision sustaining defense to action on contract to furnish cars 
that contract violated interstate commerce act; Taylor v. Beclsham 
(No. 1), 178 U. S. 571, 44 L. 1198, 20 Sup. Ct 808, refusing to review 
Kentucljy court's decision In Taylor-Beclcham gubernatorial con- 
test; De Larmar's Nevada G. M. Ca v. Nesbitt, 177 U. S. 528, 44 
L. 874. 20 Sup. Ct 717, holding State court decision quieting title 
to mining claims held under Rev. Stat, § 2324, as extended by 
28 Stat at Large, 114, chap. 142, not reviewable. See 94 Am. St 
Rep. 379, note. 

138 TJ. S. 501-509, 34 L. 1023, LOUISVILLE, ETC., R. R. v. 
WILSON. 

Syl. 2 (XI, 1116). Special counsel's fees not employee's wages. 

Approved in Monsarrat v. Mercantile Trust Co., 109 Fed. 231, 
holding provision of order appointing receiver, directing payment of 
traffic and mileage balances, entitles creditor to preference from 
income but not from corpus; Gregg v. Mercantile Trust Co., 109 
Fed. 22G, holding claims for legal services rendered railroad in 
ordinary course, not contributing beneficially to mortgagees, not 
preferred claims; Latta v. Lansdale, 107 Fed. 585, holding attorney 
employed by railroad at yearly salary not within Sandf. & H. Dig. 
Arli., §§ 1425, 142G, confining insolvent corporation's preferences to 
employee's salaries; dissenting opinion in Illinois Trust, etc.. Bank 
V. Doud, 105 Fed. 154, majority holding claim for money loaned 
to pay interest on prior mortgage of railway not preferred to 
mortgage claim. 

Distinguished in Illinois Trust, etc., Banlc v. Doud, 105 Fed. 146, 
holding claim for advance to railroad, used to pay interest on prior 
mortgage and in construction, not preferred to the mortgage lien. 

Syl. 3 (XI, 1117). Parties cannot question payment preferred 
claims. 

Approved in Gregg v. Mercantile Trust Co., 109 Fe^. 226, hold- 
ing unsecured creditors, with preferential claims against railroad, 
entitled to have restored to corpus amounts diverted by paying 
certificates for equipment 

Syl. 4 (XI, 1117). Attorney's priority for services to receiver. 

Approved in Loofbourow v. Hiclcs, 24 Utah, 58, 66 Pac. 604, 
holding where decree of foreclosure provides for payment of at- 
torney's fees, such fees are part of judgment and liens on property; 
Potter V. AJax Min. Co., 22 Utah, 287, 01 Pac. 1001, holding, under 
Comp. Laws Utah 1888, § 3683, attorney and client may malie 
own agreement as to fees, and client cannot defeat attorney's 
claim by compromise. 



Notes on O. S. Reports. 138 U. S- 50W552 



(XX, 1116>. MJBcellaDeoas. 

Cited la Van Frank v. Missouri Pac, Ry., 89 Mo. App. 4G0, hold- 
Uig claim for traffic balances accrning wltUIn year prior to first 
fecdTershlp preferred to mortgage debt 

laa U. & 609-513. Not cited. 

13& TJ. S. 514-524. 34 L. 1026. WILLIAMS v. UNITED STATES. 
8yL 3 (XI, 1118). Equity divests fraudulent title. 
ApproTed !n Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 
Ffd. 12, boldlug equity without jurisdiction of suit to determine 
ri^tta tn land claimed where plaintifl' out of posseissiou and defend- 
aot exploring for oil In land, athrmlng Cosmos Exploration Co. v. 
iiraj Eagle Oil Co., 104 Fed, 44, refusing relief to lien-land claim- 
ant where affidavits alleged land iion mineral and unoccupied where 
locators were In possession exploring for oil; dissenting opinion 
la Hendryx v. Perkins, 114 Fed. 829, majority holding bill for 
jracatlon of prior decree for fraud will not sustain decree granting 
Dch r^ef on ground of mistake of fact 

SyL 4 (XI. US). BUI alleging fraud and mistake, mistake 
afficJent, 

Approved in Dietrich v. Hutchinson* 73 Vt 142» 87 Am. St Rep. 
^iCftS, &> Atl. 812« holding failure to liiclude husband In deed as 
Btor through mistake of scrivener, other necessiiry elements 
e-lag present, warrants rescission. 

Hyl, 5 ^XI, 1118), Secretary may delay Inequitable proceedings- 

AiJliroved In Altschul v- Clark, 39 Or. 328, 65 Pac. 995, holding, 

im^iUr Rev. Stat,, H 441, 453, selection by road company of land 

iDLed to Oregon for military roads passes no title till secretary 

interior approves; Lawrence v. Potter, 22 Wash. 40, 60 Pac. 

holding, under Rev, Stat, ft 2297, land department has Juria* 

on ta determine all contests arising under public laud statutes. 

U. 6. 525^536. Not cited. 

1 U. a 537-552, 34 L. 997, LAWRENCE MFG. CO. v. TENNES- 
SEE MFG. CO, 
8yl 1 (XI, 1119). Name must Indicate origin or ownership. 
Afyproved In Draper v. Skerrett, 116 Fed. 208, holding words 
* tYench Tissue" Improper trademark, but enjoining use thereof 
tiy di*fendant, plalntlCf having used same before; Shaver v. Heller, 
•tC Co., 108 Fed, 832| enjoining use of word "American " In con- 
^Btetloo with ball and wash blue, such name having acquired known 
Qerdal meaning; Kyle v. Perfection, etc., Co., 127 Ala. 48, 
\ 8ow B46. 546, holding manufacturer, under name of " Perfection 
Ittresi Company," producing " Perfection Mattresses,** having 
out cannot manufacture "Kyle Perfection Mattress;" Nidi- 
fy Bdekney Cigar Co., 15S Mo. 1G4, 59 S. W. 123, holding 



138 U. S. 562-587 Notes on U. S. Reports. 62 

138 U. S. 662-573, 34 L. 1040, SCHELL y. FAUCHB. 

Syl. 9 (XI, 1022). Contemporaneous construction of ambiguous 
statutes controls. 

Approved in Harrison v. Benefit Soc, 61 Kan. 140, 59 Pac. 267, 
holding as recognized by legislature clerk of Supreme Court en- 
titled to same fees as clerk of District Court; dissenting opinion In 
Falrbank v. United States, 181 U. S. 320, 45 L. 878, 21 Sup. Ct 663. 
majority holding stamp tax on foreign bill lading tax on exports 
and void, hence no need for interpretation. 

Distinguished in Fairbank v. United States, 181 U. S. 308, 310, 
46 L. 873, 21 Sup. Ct. 658, 659, holding stamp tax on foreign bill 
of lading imposed by 30 Stat at Large, 451, is in substance tax 
on exports and invalid, hence no question of construction. 

138 U. S. 573-587, 34 L. 1063, HEATH v. WALLACE. 

Syl. 3 (XI, 1122). Lands periodically overflowed not swamp 
lands. 

Approved in McDade v. Bossier Levee Board, 100 La. 634, 33 
So. 631, holding permanently overflowed swamps destined to 
become dry when levees built passed as swamp lands under grants 
of 1849 and 1850. 

Syl. 4 (XI, 1122). Contemporary construction weighty. 

Approved in Boynton v. Haggart, 120 Fed. 828, holding patent 
of auditor and governor of Arkansas to swamp lands con- 
veyed to State by Congress not subject to collateral attack; Robards 
Tobacco Co. v. Franks, 103 Fed. 280, holding taxation of tobacco 
in factory amounted to removal and prevented additional tax when 
rate was raised; Nunn v. Gerst Brewing Co., 99 Fed. 942, holding 
under Rev. Stat., § 334, allowing discount on beer stamps pur- 
chased by brewer " and by him used In business," discount allowed 
from sale not from use; Re Nat. Guard of Vermont, 71 Vt 499, 45 
Atl. 1053, holding members of first regiment, Vermont national guard 
enlisting by order of governor construing act April 22, 1898, re- 
instated on returning; Lawrence v. Potter. 22 AVash. 45, 60 Pac. 
151. holding Rev. Stat. U. S., § 2297, prescribing certain causes for 
instituting contests before land department, does not limit Jurisdic- 
tion to those, department settles all disputes. 

Syl. (XI, 1122). Land department's decision on swamp lands 
conclusive. 

Approved in King v. McAndrews, 111 Fed. 864. 805, holding land 
reserved by act of Congress for Indians not incorporated by Dakota 
act into town of Chamberlain to withdraw same from settlement; 
James v. Germania Iron Co., 107 Fed. 001, holding patent granted 
by department to second applicant after prior entry vacated instead 
of first, being based on error of laAv, may be changed; Small v. Luti, 
41 Or. 577, 69 Pac. 826, holding conclusive on State's transferee 



Notes on U. 8. Reports, 138 U. S, &87-t>^ 



1 determlnatioii by secretary of Interior on appUeatiOD for patent 
thjki lands were open to taomestead. 

(XI« 1122). Miscellaneous* 

Cited in Fredericks v. Zumwalt, 134 Cal. 47, 66 Pac. 40, holding 
TQld under 8taL 1873-74, p. 327, certificate Issued by State land office 
Cior swamp laoda which had heen patented to settler In 1S61. 

138 V. 8. 587-595. Not clted- 

138 tJ. & 505-616, 34 L, 1102, NEW ORLEANS v. GAINES, 

3 (XI, 1124). Representative's own citizenship determines 
il JuHsdiction^ 

Aiiproved In Mexican Cent. R. R Co. v, Eckman, 187 U. S. 433, 
4M, 23 Sup. Ct. 213» 47 L. 247* holding where guardian can sue In 
own name, ward's citizenship determines Federal jurisdiction; 
STDnffle ▼. Moniuomery, 128 Fed. 107, holding actual citizenship 
of aiituinistrator determines Federal Jurisdlctiou, and nonresident 
tiK-ooilug Qdministrator nnder Illinois laws requiring residence 
■fl it made resident thereby. 

tttetlngnished In Wllcoxen v. Chicago, etc, R. R. Co., 116 Fed. 
holding under Iowa statutes ward owns property and Is real 
party plaintiff for Federal jurisdiction, 
Syl 9 (XI. 1124). Judgment entered after defendanrs death. 

l*i8Unguished In Weller Mfg Co, v, Eaton, 81 Mo, App. G60, hold- 

trold foreign judgment rendered on proper service, but after 
h of party sued. 
(XI, 1123>. Miscellaneous. 

Cited to Wllcoxen v, CWcago, etc., R. R, Co., 116 Fed. 440, hold- 
lif OAder Iowa statutes guardian not vested with title, and waxd^s 
tiliyoship determines Federal JuHsdictJon. 

la C. & 617-023. Not cited. 

m C, a C23-635, 34 L. 1080, GORMLEY v. BUNYAK 
9yt t (XI, 1125). Allowing additional plea or amendment dls- 



Apprtivcd In Sawyer v. Piper, 189 U. S. 157, 23 Sup. Ct 634, 4* 

L IW, refusing to review trial courfs refussal to permit a sup- 

ttentary answer; Lange v. Union Pac. R. R., 120 Fed. 341, holdiog 

Bev, Stat, § U54, authorizing Federal courts to allow ameud- 

_', allowing amended answer discretionary; Berliner 

^1 V. Benman, 113 Fed. 754, holding granting or re- 

hthiu leave lo file amended hill or plea discretionary with trial 

M«n amS not reviewable, 

SjL 9 (XI, 1125). Federal courts judicially notice public statutes. 

Aipmved In Gale v. Southern Bldg., etc.. Assn., 117 Fed. 73U, 

rcoattvci of Alabama loan assudation meant by piirtie^i to be 



« 



138 U. S. 635-672 Notes on U. S. Reports. 



CM 



goTemed by Alabama law, not bad as against Viriflnia usury laws; 
Mercantile Nat, Bank v. Hubbard, 105 Fed. 820, holding prior deci- 
sion erroiieoualy construing Ohio statutes, allowing deduction of 
Indebtedness from " credits " of bank sbareholders for taxatloOi 
not res adjudlcata; Mutual Life Ins. Co. v. Dingley, 100 Fed, 412, 
holding Federal court takes Judicial notice of New York statute in 
suit on Insurance policy where contract "subject to charter of 
company and laws of New York." 

ISa U. S, 63&-655, 34 L, 1110, COOK COUNTY v. CALUMET, ETC., 
CANAL CO. 

SyL 1 (XI, 112CJ. Reviewable State decision lavolves oecessarily 
Federal question. 

Approved in Wisconsin v. Commissioners of Public Lands, 183 tJ« 
S. m'd. 22 Sup. CL tB4, reamrming rule; Balk v. Harris, 132 N, C, 15, 
43 S, E, 478» holding decision "of State court necessarily deciding 
const! tutloiialliy of sister State decision appealablev though deciding 
Incidentally nonfederal question. 

SyL 5 (Xlf 1126)> Disputing statutory rights not impeaching 
statute. 

Approved In Indiana Power Co. v. St. Joseph, etc., Co., 187 U. S, 
63ti, 23 Sup. Ct. S42, reafflrming rule; Keuuard v. Nebraska, ISO 
U, S, ^08, 4a L. 1177, 22 Sup, Ct, 881, holding decision by Nebraska 
court that Pawnee reservation lands are public lands within 13 
Stat at Large, 47, chap, 59, raised no Federal question; Swerlngen 
V, St, Louis, 185 a S. 44, 4tl L. 7t>9. 22 Sup, Ct, 571, holding decision 
of State court that courses and distances in Federal patent do not 
bring boundary of land to Mississippi river raises no Federal que^ 
tlon. 

138 U. S, 65G-€72, 34 L. 1096, SAN FRANCISCO V. LE ROY. 

SyL 2 (XI, 1127), City's title resting on confirmatory acts. 
Approved In Mission Roelc Co, v. United States, 109 Fed. 771, hold- 
ing 13 Stat,» 332, by which United States relinquished right to lands 
within San Francisco limits, not Including islands in bay not within 
cori^orate purposes; San Francisco v. Center, 133 Cai. 678, 680, 6tJ 
Pac. 84, 86, holding modification of Judgment quieting title against 
city that jndgment should not impair city's right to streets and 
squares meant at time of confirmation of ordinance laying out same; 
dissenting opinion in Kean v, Calumet Canal Co,, 190 U. 8. 481, note, 
23 Sup, Ct Ct}0, 47 L. 114tJ, majority holding United States patent 
to Indiana of swamp lands conveying '* whole of fractional sec- 
tions *' on map convey full sections though under navigable waters. 
Syl. 5 (XI, 1127). Pneblo rights entitled to protection. 
Approved in Holladay v. San Francisco, 124 Cal, 357, 57 Pac 148;, 
holding one in possession of land before 1835, designated as pLblJc 
park by ordinance of 1856, later confirmed by 13 Stat 333, a<s 
quires no tiUe by ordinance of 1855. 



I 

I 



Note« on U. S. BeportB, 138 U. S. 678-7U8 

OB U. & 673-e9i. 34 U 1060, MERRILL t. MONTIGISLLO. 
ijl 2 iXI, 1128). Tawns caiuiot Iss^e Begotiable iimtmiQeiitA, 
red In Coquard v. Oqoawka, 192 111. 304. 365, 61 N, E, 662, 
Ber* Stat lUinols 1ST4, p. 739. enabllDg cities and eountlea 
to lasue bondE where foroierly liavlug power did not authorize city 
nhaeqiieittlj incorporated to refund* 
DlstlD^uiahed In Washington Co. y. WHIlami, 111 Fed. 806, 
nonnegoUable bonda issued by county to be paid from 
tax fund applied pro rata to Interest irst, and prtnclpal 
■ftfTward; Klamath Falls v. Sachs, 35 Or, 338. 339, 341, 73 Aid. 
St S€p. 504, 505, 507, 57 Fac. 333, 334, upholding under Sess. Laws 
pL 212, authorizing Klamath Falls to Incur excess charter Jn- 
for light and water bonds issued for both under water 



138 U. a e04-708, 34 L, 1078, ANDERSON v. WATT. 

4yL (XI, 1129). Objection to citizen taken any time. 

Approved In Reavis v. Reavis, 101 Fed, 22, holding under Fed- 
eiml judiciary act, objection to jurisdiction ou ground of citizen- 
ship may^ be taken in answer. 

BfL (XI. 1129). Circuit Court dismissing on false citizenship 



Approred in Adama ▼. Shirk, 117 Fed. 804, holding under IS Stat 
473. Imrdeo of showing no diversity of citizenship on defendant, 
Gteotl Ck>ort examlniDg question. 
QyL 8 (XI, 1120). Jurisdiction must be posltlTely arerred. 
Apprcrred In Lengel T. American Smelting* etc, Co,, 110 Fed 21, 
: cinder act August 13, 1888, stockholder of FennsylTanta can- 
wmB to New Jersey, New Jersey corporation and directors cltl- 
of another State. 

, 4 (Zl, 1130), Citizenship at beginning of suit determinadye. 

In Pacific Mut Life Ins. Co. y, Tompkins, 101 Fed. 

UX boldlog plaintiff by remoylng family from West Virginia lost 

there for Federal jurisdiction under act 1888. 

BfL 9 (XI, 1130). Domicile presumed to continue where estab- 

AppfOred In Eiseie t. Oddle, 128 Fed. 945, holding sufflclent in 
ihiCfiet of proof contra, of plaintifTs domicile in California, evidence 
of rmiditiee there and removal to Nevada for his health; Dominion 
SwL Bmak r, Olympta Cotton Mills, 128 Fed. 182, holding allega- 
nm iQr defendant that another defendant Is citizen of another 
UllieilOl food defense, privilege being personal; Collins v. Ashland, 
Of FM. 178, holding Insnfficient to show change of domicile In 
OMiC Ofldoice that plaintiff was citizen of Ohio, residing there all 
Itfi aetpt temporarily in Kentucky while working; In re Files, 
VoLIU— 5 




139 ^. S. 1-ip Notes on U. S. Reports. 66 

108 Fed. 211, holding absconding of bankrupt three months before 
petition, from place of residence for several years, where family 
stiil resided, not changing domicile; Hanchett y. Blair, 100 Fed. 821» 
holding stockholder suing corporation not presumed citizen of 
siElme State, where showing residence in other State for seventy 
years, maintaining business there. 

Syl. 10 (XI, 1131). Wife's domicile is that of husband. 

Approved in Tsol Sim v. United States, 116 Fed. 923, holding 
Chinese woman in United States prior to exclusion law subsequently 
marrying American citizen entitled to remain though failing to com* 
ply with law. See 84 Am. 6t Rep. 29, note. 



CXXXIX UNITED STATES. 



139 U. S. 1-19, 35 L. 77, ST. PAUL v. NORTHERN PACIFIC B. 
R. CO. 

Syl. 1 (XI, 1131). Act 1864 grant in prsesenti. 

Approved in M'Fadden v. Mountain View Min. & Mill. Co., 97 Fed, 
679, holding 27 Stat. 62, restoring to public domain portion of Col- 
ville reservation, did not operate as immediate restoration, act of 
1896, extending mineral laws, not being retroactive. 

Syl. 2 (XI, 1132). Grant in prscscnti not impaired by patent 

Approved in Manley v. Tow, 110 Fed. 251, holding land patented 
to Iowa for railroad purposes, but not earned by railroad, was 
not for use of road within 24 Stat. 556, but subject to settlement. 

Syl. 3 (XI, 1132). Except prior rights, determining route vests. 

Approved in Nelson v^ North. Pac. Ry. Co., 188 U. S. 116, 23 Sup. 
Ct 305, 47 L. 410, holding bona fide occupant of public land within 
indemnity land of Northern Pacific grant of 1864 before definite 
location of road entitled to complete homestead. 

Syl. 4 (XI, 1132). Most direct line possible between terminals. 

Approved in Southern Pac. R. R. Co. v. United States, 109 Fed. 
925, holding act incorporating Texas Pacific railroad granting lands 
from southern boundary of State to San Diego on thirty-second 
parallel not authorizing road on thirty-fourth parallel. 

Syl. 6 (XI, 1133). Exception not including similar grant 

Approved in United States v. Oregon & C. R. R. Co., 101 Fed. 
318, holding, under land grant to Oregon and California railroad, 
14 Stat 239, 16 Stat. 94, title to indemnity lands remained in gov- 
tfnment until selected and approved. 



Nates on U. S. Reporti, 



130 U. S. 19-Gl 



gjL 8 (XI, 1133). Hlgbta acquired in lands after witlsdrawal. 

ApE^rored In United States t. Loaekamp, 127 Fed. 9C1, holding 
Hatted States cannot recover for timber cut from public lands which 
whea sorrejed would beJong to railroad under grant July 2, 1S(I4; 
Sonh^n Pac. Ry, v. Nelson, 22 Wash. 529, 61 Pac. TOG. holding 
order of commLasioner of general land otEce on filing plat show* 
log railroad's general route, withdraw iiig land from Bettlement, 
ivediided subsequent homestead; dlBsentlng opinion in FuIbou v. 
3(«11ieni Pac. Ry. Co., 188 U. S. 150, 151. 153, 23 Sup. Ct. 317. 
SIS, ai9, 47 L. 423. 424, majority holding bona Ede occupant of In- 
fknnlty lands within Northern Pacific grant 1SG4 before definite 
loeaUoo of road entitled to complete homestead. 

SyL H <XI^ 1134). Secretary's selection of Indemnity not dls- 
cffttooaxy* 

Appmv^d in Southern P, R. R, Co. v. Bell, 183 U, S. 0S2. 46 L. 
XT, ^ 8«ip* Ct. 235, holding secretary of interior not authorized by 
land grant act July 27, 1806. to Southern Pacific to withdraw 
Indemnity lands until place land losses determined. 

ia» U. S. 19-23. Not cited. 

13» a S. 24-61. 35 L. 55. CENTRAL TRANSP, CO. v. PULLMAN'S 
CAR CO. 

B iXI, 1135). Judgment of nonsuit final and nppealable. 
9?ed In Barabasz t. Kabat, lU lid. 50, 46 Atl. 338, holding. 
lid* Code, art. 75, | 87a, defendant introducing evidence 
after motion for nonsuit denied waived error In denial. 
SjL 4 (XI, 1135). Supreme Court following State statute. 
Approrvil In Drummond v. Louisville & N. R. R, Co., 100 Fed, 
boldUig. unde-T Hurd^s Rev. Stat, chap. 110. | 49, III., tioiv 
cnnnot lio aDowed after court directed verdict for defendant 
i dloebarg^ jury. 

(XI, 1135K Charter enumerating powers excludes othern. 
in Cumberland Tel., etc, Co, v. Evansvilie, 127 Fed. 
m, m bolding. under 2 Bums' Rev. Stat. 1901, | 5517, for or- 
idlaalJoo of telephone companies, company has no power to 
rraiMf 11 r an Its property and franchises; Seattle Gas, etc.. Electric 
Oil w. atJxens* Light, etc.. Power Co., 123 Fed. 592, holding New 
Uiwrnj corporatloQ having no power, under charter law, to manu- 
iKtart and aell gaa, cannot engage in gas businesa in Washington; 
Stov Albany Water-Works v. Louisville Banking Co., 122 Fe«l. 
QOl. MdXoc under Indiana statutes, water company supplying city 
vlU iraCcr cannoi uanafer entire property and franchises to 



136 U. S, 24^1 



Notea oa 0, S. EeportA. 



68 



Sjh 7 (XI, 1136). FranchlBe not transferable without leglslatiTe 
eooaent 

Approved In New Albanj Water^Worki t. LonlsTllle Banking 
Co., 122 Fed. 780, holding, under Indiana atatutes, company anp* 
plying city with water cannot transfer entire property and 
franchlaea^ 

SyL 9 (XI, 1136). Public grant conatmed faTorable to public 

Approved in dissenting opinion In Eeau y. Calumet Canal Co., 
190 U. S. 499, 23 Sup. Ct 667, 47 L, 1153, majority bolding United 
States patent to Indiana swamp lands conveying *• whole of frao 
tlonal sectlona " on map conveyed full sections including submerged 
land. 

SyL 10 (XI, 1136), (Juaal-public eorporatlon cannot Ineapacltate 
itself. 

Dlatlogulshed in Coal Creek, etc., Co, r, Tennessee, etc*, Co.* 106 
Tenn, 676, 62 S. W, 168, holding act 1887, chap. 198, Tenn., em- 
powering corporations to lease property conditioned on majority 
vote of stockholders, Inapplicable to lease of coal mining company. 

Syl. 18 (XI, 1138). Ultra vires contracts absolutely void. 

Approved In O'Brien v, Wheelock, 184 U. 3. 490, 46 I* 655, 22 
Sup. Ct S69, holding special assessments for drains and ditches 
Imposable by proceedings In County Court under III. act 1871, not 
provided for In State Constitution and void; Cumberland TeL, etc. 
Co, V. Evansvllle, 127 Fed. 193, 194, 196, holding 2 Burns' Ber. 
Stat 1901, I 5517, authorizing formation of telephone companies 
with power to dispose of land, gives no power to sell all property 
and franchises; Richmond Guano Co. v. Farmers*, etc.. Ginnery, 
119 Fed, 711, holding void notes given by corporation empowered 
to operate cottonseed-oil mill and ginnery, for Invoice price of 
fertilizer, to be sold for profit; Ft Scott v. W. G. Eads, etc., Co., 
117 Fed. 54, holding ultra vires and void, under Gen. Stat Kan. 1890, 
II 62S4, 6294, authorizing purchase of bonds from highest bidder, 
contract whereby corporation offered brokerage: Sage v. Fargo 
Tp., 107 Fed 385, holding void, under Kan, Laws 1887, p. 186. 
township railroad aid bonds issued pursuant to election held within 
one year from organization of county; Gilbert v. Seatco Mfg. Co., 
98 Fed. 214, holding, under Washington statute, corporation having 
no surplus profits has no power to assume liability on notes of 
officer; New Haven Trust Co. v. Gaffney, 73 Conn, 4S5, 4T Atl. 761^ 
holding ultra vire*, under charter (Spec. Laws Conn. 1887, pp. 616» 
617), providing for |100 shares, contract for sale by corporation for 
less than |100; First Nat Bank v. American Nat Bank, 173 Mo. 
159, leo, 72 S. W. 1061, holding, under Bev. Stat U. S., | 5136. 
national bank has no power to guarantee payment of draft drawn 
on customer; Kansas City v. O'Connor, 82 Mo* App* 681, holding 
ultra Tires sprlnkllag contract not validated by part performance; 



Nates on U. S. Heporti. 



139 0, a e2-78 



Tmtelot r. Wblthead. 9 N. Dak. 479. 480. 84 N. W. 13, upboldiny 
whereby aatlonal bank received stock of another corpo- 
1n payment of debt wbere debtor was flDanclally embar- 
%l Wblte T, Bank, C6 S. C. 503, 45 S. E. 99, holding corporation 
porehAslns shares In bank contrary to S. C. Code 1902, | 1843» not 
liable on inch stock on bank's Insolvency, 

DlBtlngnlshed In Texarkana. etc.» Ry. v. Bemle L. Co., 67 Ark- 

M9l 6S 8. W. 947. holding binding on company note signed by 

at for company for money to pay off employees, bnt used 

^ president for own purposes, 

9yL 20 (XI, 1135). Ultra ylres contract consideration recover- 

ApproTed in National Bank, etc., Loan Co. t. PetHe, 189 U. 8. 
4S5, 2S Sop. Ct. 513, 47 L. 880, holding right to recover money paid 
OtttloDml bank on contract songbt to be rescinded for fraud not 
defeated because contract was nltra vires; Aldrlch v. Chemical 
NaL Bank. 176 U. 8. 633, 44 L. 617, 20 Sup. Ct 504, holding national 
bank naing In business moaey borrowed from another bank by vice* 
president liable therefor, though bank could not borrow; Emmer^ 
Urg T. First Nat Bank. 97 Fed. 747, holding bank bound to return 
Itles given to It to collect or account for proceeds, although 
act ultra vires; Leigh v, American Brake Beam Co., 205 111. 
fStif 68 N. E. 715, holding assumpsit will lie by corporation to re- 
€0W money loaned by It ultra vires; Muncle Nat Gas Co. v. 
liiacfe, IdU Ind, 103, 104, 66 N« E. 439, upholding contract between 
dty umd gas company by which maximum gas rates were fixed; 
Alklna et at T. Shreveport etc., R. R. Co.. 106 La. 577. 31 So. 170, 
Qpboldtog clause in contract granting aid to railroad whereby 
CMBpAajr was to operate two boats to furnish transportation for 
IMgbt «Dd produce; Kansas City v. O'Connor, 82 Mo. App, 663, 
t^ijlng dtj may recover consideration paid for ultra vires street- 
iHCtakllng contract; %\lilte v. Bank, 66 S. C. 511. 45 S. E3. 101, 102, 
boMIng corporation purchasing bank stock contrary to 3. C. Code 
1902» i 1843. not liable thereon to bank's creditors; Tennessee Ice 
Cow ▼, lUlne, 107 Teno. 159, 64 S. W. 31, upholding claim of 
ifftwtng company for money for beer furnished Ice company under 
dm Ttres contract 



lao U. 8L G2-«7. Not dted< 

m V. a e7-7s, 35 l. 107, logan county bank t. town- 

SEND, 
IgrL 9 (Kl^ 1140). National bank has only granted powers, 
Allpra^ed In Merchants' Nat Bank v. Wehrmann, 69 Ohio St 
ITS, 69 N. B. 1007, holding transfer by debtor to bank of shares In 
§ntniS^hlp did not constitute bank partner but owner In sey- 
MHy. 



139 U. S. 79-^96 Notes on U. S. Reports. 70 

Syl. 4 (XI, 1140). Bank purchasing bonds nltra vires liable. 

Approved In Aldrlch v. Chemical Nat. Bank, 176 U. S. 631, 44 
L. 610, 20 Sup. Ct 503, holding national bank liable for money 
borrowed by vice-president and used In bank's business though 
bank could not legally borrow; Richmond Guano Co. v. Farmers', 
etc., Co., 126 Fed. 715, holding corporation liable for value of 
fertilizers received pursuant to ultra vires contract, paid for by 
notes, void for ultra vires; Battey v. Bank, 62 Kan. 392, 63 Pac. 
439, holding State bank has lien on stockholder's stock for debt 
of stockholder for loan from bank on Individual note; Tennessee 
Ice Co. V. Raine, 107 Tenn. 159, 64 S. W. 31, upholding brewing 
company's quantum meruit claim for proceeds from beer furnished 
ice compahy under contract ultra vires the latter; Fulton v. National 
Bank, 26 Tex. Civ. 119, 62 S. W. 87, holding pledgor of stock to 
national bank cannot regain same without reimbursing Dank though 
latter gets no title. 

Syl. 7 (XI, 1141). Government alone can attack ultra vires. 

Approved in Schuyler Nat. Bank v. Gadsden, 191 U. S. 458, 24 
Sup. Ct. 131, holding question of usurious interest paid on note 
held by national bank, in suit to foreclose mortgage securing same, 
governed by Federal law though mortgage taken by president; 
Scott V. Deweese, 181 U. S. 211, 45 L. 827, 21 Sup. Ct. 588, holding 
stockholder of national bank cannot escape liability under Rev. 
Stat, § 5151, on ground that certificates represent increase not 
paid in; Blodgett v. Sanyon Zinc Co., 120 Fed. 896, holding en- 
forceable assignment of case to New Jersey corporation in Kansas, 
not fully complying with Kansas laws. 

(XI, 1140). Miscellaneous. 

Cited in National Bank, etc.. Loan Co. v. Petrie, 189 U. S. 424, 
23 Sup. Ct. 512, 47 L. 880, holding money paid to national bank 
for ultra vires bonds may be recovered on rescission of contract 
for fraud. 

139 U. S. 79-96, 35 L. 97, CHICAGO, ST. LOUIS, ETC., R. R. CO. 
V. PULLMAN SOUTHERN CAR CO. 

Syl. 2 (XI, 1142). Insurer subrogated to insured's rights. 

Approved in Ferris v. American B. Co., 155 Ind. 543, 58 N. E. 
702, sustaining covenant of lessee not to sell beer on premises 
except that of certain brewery. 

Syl. 3 (XI, 1142). Carrier's contract with sleeping-ear company 
valid. 

Approved in State v. Associated Press, 159 Mo. 457 (see 60 S. W. 
105), refusing mandamus to compel Associated Press to furni!«h 
complainant with news on same terms as others. 



Notes on U. S. EeportB. 



139 U. S. 96^127 



f\^ %. OO-llT. 35 L. 88. CLARK v. BEYER. 
Sjri. ^ iXl» 1142). Enforcing claim against estate, removable 
volt. 

Apiiroved In KIrl>y v. Chicago, etc., R, R.. 106 Fed. 557, hold- 
In^ statutory proceeding In Iowa court for damngea in condemna- 
tion of land BUlt In civil nature at law within Judiciary act 
18S7-8S: Gain van v. Jones. 102 Fed. 427. hoMing, under section 
140$« CaL Code Civ. Proc., alien presenting claim to executors 
mad Prabate Court may. on rejection thereof, sue In District Court. 
SyL 6 (XI, 1143). Corporatloa may sell below par value. 
ApproTed in Great Western Mln., etc., Co. v. Harris, 128 Fed. 
^ CSd, lM>tdlng creditors cannot hold stockholders liable on trans- 
AcUoD by which corporation Issued stock at eighty-five, with bonus 
<M|iiail to half the issue; Stratton's Independence v. Dines, 126 Fed. 
UTt, boldlug corporation cannot sue sole owner of mining property, 
wlio tnmed over property and took majority of shares of stock 
ili^reln, for representations as to value. 

SyL 8 (XI, 1143). Unpaid subscriptions trust fund for creditors. 

Approved in C. F. & I. Cow v. Smelting Co., 13 Colo. App. 4711. 
P»c, 224, holding unpaid stock suhscriptiong are trust fund lor 
Itors, Jind stockholder cannot set off against liability therein 
ailtmnces to corporation; Singer Piano Co. v. Walker. 113 Iowa, 
087, 83 N. W. 726, holding void mortgage given by Insolvent cor- 
pofstlon to secure notes representing one-half the subscription of 
fibers therein. 

ajt to fXI. 1144). Holders of unpaid stock liable thereon. 

Appfored In Vermont, etc., Co. v. Declez. etc.. Co., 135 Cal. BSfi, 
Ml 87 Am. St. Rep. 148. 150. 67 Pac. lOoQ. holding incorporators 
ifreelng orally to purchase JltMD stock for ;j!20 per share, fully paid 
•iilwcrit>erB liable for unpaid balance to creditors. 

Dtetlngui«hed in Seaboard Nat Bank v. Slater, 105 Fed. 180. 
MdlAg defendant not Uabie under Const. Nebr., art. 11, § 4, on 
wtotk Ifisued to his transferrer on payment of debt without agree- 
ittwit for or expectation of payment. 

SyL 12 (XI. 1144). Federal courts favor State decisions. 

Approved tn Yazoo & M. V. R. R. Co. v. Adams, 181 U. S. 583. 45 
L 1012. 21 Sup. Ct. 730, adopting ruling of Mississippi State court 
OD question of Accrual of State taxes under State laws. 

m a 8. U8-127. 35 L. 104. FOGG v. BLAIR. 

8yL 1 CXI, 1145). Unpaid subscriptions constitute trust fund. 

Apiirored In Vermont, etc., Co, v. Decle^i. etc.. Co., 135 Cal. 58G. 
:*?C. 5% 87 Am. St. Rep. 149, 150. 6T Pac. 105D, 10tK>. holding in- 
-^rporttoni OfmWjr agreeing to purchase 100 shares for $20, fully 



139 U. S: 12S-1S? Notes oa U. S. Report*. 



T2 



paid aTibscrlbera are liable to creditors for unpaid balance; 0. F. 
& L Co, T, Smelting Co.» 13 Colo, App, 479, 59 Pac. 224, boMlog un- 
paid subscrlptlone are trust fund and eubscrlber cannot set off 
agalaat them atlvanees to corporations; State v. Holmes, 60 Nebr, 
43, 82 N. W. 110, holding ahareholders entitled to Intervene to pre- 
vent waste of corp<5rate assets bj unwise sale of corporate property, 

SyU (XI, 1146), Demurrer does not admit legal conclusions. 

Approved lo AtJantic Trust Co. v. Dana, 128 Fed, 222, holdlog 
InBufllcient general charge of cunning made against trust company 
In Inserting provision for decree touching payment of rental; Lock- 
hart T, Leeds, 10 N. Mex, &9S, 63 Fac. 53, holding allegations In bill 
to restrain defejidants from operating mine that defendants Induced 
plaintiffs by fraud to refrain from tiling claim mere conclusion 
not admitted on demurrer; New Bonk v. Kleiner, 113 Wis, 292, 87 
N, W. 1091, holding liiBufflclent aaswer alleging fraudulent rep- 
resentations setting them forth, where representations do not con- 
silt ute fraud, 

(XI, 1145), Miscellancoufi. 

Cited In St Louis Hay, etc, Co, t. United States, 191 U. S. 170, 
refusing to revise judgment of board of equalization on simple 
allegation that same was *' fraudulent; " Taylor v. Cummiugs» 127 
Fed. 109, holding stockholders receiving stock as " full paid/* bona 
fide where firm organized corporation In good faith, not liable for 
accidental overvaluation by bookkeeper, 

139 U, S, 128^137, 35 L, 73, COVINGTON STOCKYARDS CO r. 

KEITH. 

Syl. 3 (XI, 1147). Carder cannot refuse to receive live stock. 

Distinguished In Post r. Railroad, 103 Tenn, 210, 52 S. W. 307. 
holding carrier not bound to accept goods for shipment beyond 
line and to use one line where several equally safe, 

Syl ft (XI, 114t>* Carrier cannot make extra stockyard charges. 

Approved Jn dissenting opinion In Interstate Commerce Comni. v. 
Chicago, etc., IL IL Co., 103 Fed. 252, majority upholding fixed ter- 
minal charge per car of live stock by railroads entering Chicago 
for transportation to Union stockyards. 

Syi 7 (XI, 114T). Carriage of live stock begins with delivery. 

Approved In Interstate Commerce Coram, v. Chicago, B. & Q» 
R, R. Co,, 180 U. S. 330, 40 L. 1101, 22 Sup. Ct. 820, sustaining aft 
reasonable imposition by Chicago railroads of 1^2 per car for trana- 
porting live stock cars to Union stockyards. 

Syl. 8 (XI, 1148). Carrier furnishing suitable facilities. 

Approved in Central Stock Yards v, Louisville, etc, Ry.. 192 U* 8, 
570, 24 Sup, Ct. 341. holding interstate commerce act of 1887, pro- 
hibiting unlawful preference, does not rcQuire carrier with stock- 
yards to receive and send stock to and from yards on connecting 




Notes on U. 8, Reporta. 139 U. S. 137-165 

t: Mmrming CeDtral Stock Yards Co* t, LoulsTlDe & N. R, B. 
C3ot, 118 Fed- 116v holding carrier establishing stockyards of own 
hAi funlebed reasonable facilities and capDot be compelled to 
Mirer at other yards afflnolng Central Stock Yards Co. v* Louis- 
Tflle, etc^ Ry. Co.. 112 Fed. 82S, refusing injunction to compel rail- 
fiMd baying stockyard of own to convey stock to connecting carrier 
tD ttke to another yard; Lackland r, C. Si H. Ry„ 101 Mo, App. 427. 
74 & W. 506, holding carrier of live stock must fumisli safe pens 
for live stock while waiting to be loaded. 

IM U. S. 137-151, 35 L. 116. GUARANTY TRUST, ETC., CO. ▼• 
GREEN COVE. ETC., R. R. CO. 
8yt 1 (Kit 1147). Limitations on tmstee's power strictly cos- 



Ai»proTed !n Guardian Trust Cow ▼. White ClifCs, etc., Co., 109 
F«L 330. 531, holding trustee under mortgage to secnro bonds 
flTlng him right to take possession on demand of stockholders, on 
Bitocfgagor's default for three months, may foreclose at once; Turner 
▼. Soathem Home Bldg., etc., Assn., 101 Fed. 314, holdlDg suit to 
foRelose mortgage of loan association stockholder given to secure 
loan of $2,000 and interest, amounting at time to $200, gave Federal 
Inrisdictlonal amount. 

SyL S (XI, 1148). Nonmortgage lienhoMers need not acquiesce. 

Approred in Land Title & Trust Co. v. Asphalt Co., 121 Fed. 103, 
iwi d ta g trustee in pledge of securities for payment of interest on 
<gtiicates may enforce payment on default regardless of method 
p ra y ld ed In agreement; Guardian Trust Co. t. White Cif£fs, etc., 
Oou, lOO Fed. 529, holding trustee empowered bj mortgage to take 
pomtmUm on demand of stockholders after three months default 
0( OMirtgBgor may foreclose directly on default 

8jL 8 iXl, 1140), Dtsmlising foreclosure when boods outstanding 



Appr^rred In Dickerman t. Northern Trust Co,, 17G U. S. 194, 44 
h. <81* ao Sup. CL 316, holding tn stilt to foreclose mortgage secur- 
iQf p«jra«Dt of bonds, t>onds need not be produced where shown 
fi» tit vaUd obligations; Central Trust Co. t. Califoraia & N. R, R. 
Cow 110 Fed. 76, holding determination of ownership of bonds 
dtimed by intervener In foreclosure suit unnecessary for decree 
«f fcrvdofcre where fact and amount of default shown. 

M C. a 151-156. Not cited. 

W a a 156-165, 35 L. 112, JOHNSON V. POWERS. 

SyL 2 (XI. 1150). Letters of administration inoperative beyond 
jvlidleClofL 

AppfOTMl In Price v. Ward, 25 Nev. 218, 58 Pac. 851, holding 
appointed In Nevada cannot sue to redeem mortgage 



139 U. S. 166-210 Notes on U. S. Reports. 74 

of intestate's land in California and to set ofT against debt waste 
committed thereon. 

Distinguished in Cincinnati, etc., R. R. Co. v. Thlebaud, 114 Fed. 
92ri. upholding under Ohio Rev. Stat., S 6163. right of Indiana ad- 
ministrator to sue in Ohio for wrongful death of intestate. 

Syl. 5 (XI, 1150). Judgment against administrator not evidence 
extraterritorially. 

Approved in Bristol v. Washington County, 177 U. S. 139, 44 L. 
703, 20 Sup. Ct. 5S8, sustaining Minnesota taxation of personal prop- 
erty of nonresident preferring such claims to ordinary debts, and 
providing for seizure on attachment and notice; Ingersoll v. Coram, 
127 Fed. 4:^. hoidng ancillary administrator in one Jurisdiction not in 
privity witli one of another to mal^e judgment against either res 
adjudicata as to other; Shinney v. North American, etc., Co., 97 Fed. 
12, holding suit for appointment of ancillary receiver in difTerent 
jurisdiction independent of suit in which primary receiver appointed 
and subject to removal; Johnston v. McKiunon. 129 Ala. 226, 29 So. 
697, holding judgment against decedent's personal representative 
in another State furnishes no cause of action against same person 
appointed as representative by State in suit; Burton v. Williams, 
63 Nebr. 435, 88 N. W. 7GC, holding judgment against administrator 
appointed in District of Columbia cannot be enforced in Nebraska. 

139 U. S. 100-176, 35 L. 84, KING v. DOAN. 

Syl. 1 (XI, 1150). Renewing note not affecting transaction. 

Approved in Crocker v. Huutzicker, 113 Wis. 190, 88 N. W. 235. 
holding renewal of promissory note not payment thereof to vali- 
date alleged fraudulent conveyance made before renewal 

139 U. S. 176-197, 35 L. 123, STOCKMEYER v. TOBIN. 

Syl. 8 (XI, 1152). Judgment sale not avoided for irregularities. 

Approved in Nevada Nickel Syndicate v. National Nickel Co., 
'103 Fed. 402, holding sale of personalty and realty as one parcel 
pursuant to decree and without objection of defendant affords no 
ground for setting sale aside. 

139 U. S. 197, 198. Not cited. 

139 U. S. 199-210, 35 L. 147, HOWARD v. STILLWELL, ETC.. 
MFG. CO. 

Syl. 1 (XI, 1152). Objection to depositor, when made. 

Approved in Samuel Bros. & Co. v. Hostetter Co., 118 Fed. 260, 
holding objection to admissibility of deposition made month after 
same on file properly overruled. 

Syl. 4 (XI, 1153). Profits recoverable when not uncertain. 

Approved in Farmers* Loan & T. Co. v. Eaton, 114 Fed. 17, hold- 
ing loss of profits by termination by order of court of railroad lease 



Notes on U. S. Reports. 139 U. S. 210-215 



«iecated Ijy receiver recoverable damnges; Port Blakely Mill Co. 
T, Sliarkey, 102 Fed. 261, holdiag possible earnings of horses trans- 
parted to JUaska considered as damages for delay In ahipnient; 
Mactilne Co. v. Compress Co.* 105 Tenn. 206, 58 S. W, 274. siistainrng 
chAT^ In action for furnishing defective machmei-y that plaintiff 
could recov<?r rental value if parties contemplated loss of use would 
«iUQe from default. 

Distinguished in Fidelity Co. v. Buchl Co.. 189 U. S. 142, 23 Sup, 
Ct r»So, 47 L. 751, holding injury to vendee^s credit by vendor*fl 
•crions for breach of contract and loss of profits from vendee's 
failure to deliver thereafter not recoverable damages. 

Hjl 3 (XX 1152). Anticipated profita not recoverable. 

Approved In Eckington, etc.. Ry. Co. v. McDevitt, 191 D. S. 112. 
Si 8«QK Ct. 38, holding difference In value of land without street-car 
•enrioe and with perpetual service too uncertain damages for 
tiresdk of covenant to operate cars over extension; Globe Hctinlug 
Co. T, Landa Cotton Oil Co.. 190 U, S. 544, 23 Sup. Ct 755, 47 L. 
IIT3;. holding trani?portJitlon charges and damages for loss of use of 
ianks. In breach of oil contract not recoverable damages; Iron City 
^€Mt-Works V. Welisch, 128 Fed. G90, holding evidence of antiri- 
pated profits from sale of picks too remote damages in suit for 
brfeneh of contract to sell same; The George Dumois, 115 Fed, (>7, 

tdlng charterer cannot recover for deterioration of bananas ship- 
In known bad condition acd for freight which would hare been 
earned If fruit In good shape; De Ford v. Maryland Steel Co., 113 
-Fe*l. 15, holding Interest ou payment made on vessels only recover- 
able damages for noncompletion on time, losses of protits being too 
oiujectural: Central, etc., Co. v. Hartman, 111 Fed. 98, refusing 
rreovrry of anticipated profits In suit under Sherman auti-trust law, 
where plaintiff did not show volume of buKiness before and after 
Interference complained of; Acme Cycle Co. v. Clarlie. 157 led. 276. 
63 N. E. 563, holding damages for losses In possible sales caused 
by failure to deliver bicycle machinery not sustainable as counter- 
daim; Manufacturing Co. v. Creamery Co., 120 Iowa, 587. 95 N. W. 
tSd. holding loss from delivery of milk to other creameries because 
af delay fa fnmiahlng machinery not recoverable; Douglass v. Hall- 
foad, 51 W. Va, 533. 41 S. E. 916, holding improper evidence that 
piaJntlff could make greater future profits from grazing than from 
gralnlag land. 

Distinguished In Hlchhorn, Mack & Co. v. Bradley, IIT Iowa. 
M, 80 N. IV. 53S. holding measure of dauingea for alleged termina- 
floa of agent for Introduction of cigars, evidence of sales up to 
trtal idmlsslhle. 

IS 17. & 210-215* Not cited. 






139 U. S. 216-223 Notes on U. S. Reports. 76 

139 U. 8. 216-221, 35 L. 151, NORTHWESTERN FUEL CO. T. 
BROCK. 

Syl. 1 (XI, 1154). Court correcting preyioos errors. 

Approved in dissenting opinion In Hendryx ▼. Perkins, 114 Fed. 
829, majority holding bill to vacate decree for fraud showing 
mistake only cannot be maintained after nine years' delay. 

SyL 2 (XI, 1154). Correcting orders made without jurisdiction. 

Approved in Baltimore, etc., Assn. v. Alderson, 99 Fed. 492, hold- 
ing Circuit Court on mandate from Court of Appeals, dhrecting vaca- 
tion of order ratifying receiver's sale, may direct repayment of 
money to receiver's sureties; Jenkins v. State, 60 Nebr. 207, 82 N. 
W. 623, holding on vacation of judgment by appeal in replevin 
failure to return property is contempt summarily punishable by 
District Court; McFadden v. Swinerton, 36 Or. 355, 62 Pac 12, 
holding payment of fund to complainants during pendency of 
appeal on order for retention made, did not subject clerk to per- 
sonal liability. 

SyL 3 (XI, 1154). Proceedings for restitution of property. 

Approved in O'Reilly v. Henson, 97 Mo. App. 494, 71 S. W. 110, 
holding appellate court on reversing void judgment under which 
writ of possession issued will order restitution of property; Horton 
V. State, 63 Nebr. 42, 88 N. W. 149, ordering restitution of money 
obtained under judgment afterward reversed. See 96 Am. St Rep, 
141, 142, note. 

(XI, 1154). Miscellaneous. • 

Cited in rhe isjllza Lines, 114 Fed. 313, holding where cargo sold 
by order of court, proceeds of sale proper measure of value for 
adjustment of interests, though less than value. 

189 U. S. 222, 223. 35 L. 147, BRITISH QUEEN MINING CO. T. 
BAKER, ETC., MIN. CO. 

Syl. 1 (XI, 1154). Circuit Court's findings general or speclaL 

Approved in Corliss v. Pulaski Co., 116 Fed. 290, holding under 
Rev. Stat., § 649, Circuit Court making general finding has no 
power to sign special findings and embody same in bill of 
exceptions. 

Syl. 3 (XI, 1154). Where no exceptions, general findings non- 
reviewable. 

Approved In Interstate Com. Comm. v. Southern Pac Co., 128 
Fed. 602, holding finding by commerce commission that railroad role 
reserving right to route certain shipments supports order to dto- 
continue same; EH Mining, etc., Co. v. Carleton, 108 Fed. 25, hold- 
ing where court did not err in admitting or rejecting evidence, its 
findings of fact in trial by court are conclusive on appeal; Terre 
Haute, etc, R. R. Co. v. State e^ rcl., 159 Ind. 483, 65 N. B. 416^ 



Notes on U. S. Ee{K>rts. 13» U. S. 223-2013 

xmder Boms* Rev. Stat 19€1, $ 249, merglog law and equity 
action In approving master'a flndlugs, do basis for appeal- 
error, 

%m rr. s. 223^239, 35 l. 154, st. loui9» etc. by. co. v. com- 

MBKCIAU ETC., INS. CO. 
MjL 2 (XI, 1155). Insurer subrogated to Insured's rJgbta. 
Approved In Mason v. Marine Ins. Co., 110 Fed. 45T. balding on 
ataadonment of vessel lost In collision, Insurers vested with owner- 
ship o€ wemsel and dgbt to anj subsequent recovery from wrongs 
doer; Tbe St. Johns, 101 Fed. 472, 474, 475, holding subrogatioa 
of Insurer paying policy for collision to fund recovered from 
subordinate to collision claims against Injured vessel. 
9jL S (XI, 1155). Insurer gains no greater rights. 
Approved In Judd v. New York, etc., SS« Co., 12S Fed. 9, holding 
itiie admissions of Insurance compaiiy to relieve carrier 
li&blllty where insurer had not paid loss, so had only conttn- 
geat Tight of subrogation; Judd v. New York, etc., SS. Co., 117 
l^Ml. 21S, holding inadmissible evidence in suit against carrier for 
Iporntng of goods, that plaintiff bad received payment from insure. 
fijrL tk QLU 1155). Carrier's liability commences on exclusive 



AppcoTed In Cunard SS. Co. v, Kelley. 115 Fed* 685. holding erro- 
todMi Instmction that Issuance of bills of lading coupled with sub- 
■eqqgnt acceptance of goods on board placed goods In possession 
troBi 



■I U. 8. 210-206. 35 U 159. MANCHESTER v. MASSACHUSETTS. 

ByL 1 CXI, 1150). Marine league limits national Jurisdiction. 

Approved In State v. Gallop, 126 N. C. 983, So S. E. 181, uphold- 
ftg K. Q. Laws 1897, chap. 291, | 7. making misdemeanor for any 
cnon to Interfere with citizens gunning or fishing on Currituck 



SSfL 8 (Xl« 1156). States control fisheries subject to Congress. 

Appnyrcd in United States v. Tjndale. 116 Fed. S22, holding un- 

dtloied money found on body found floating on high seas, within 

p«K Sent. Maaa.» chap. 131, entitled county public adminlstratort 

In admUilater same; State v. Snowman, M Me. 112, 46 Ad. SIB, 

Me. statute 1897, chap. 262, requiring registration and 

mgMemUou of guides by commissioner of fish and game, and penal- 

Mv rloJatlons: State v. Corson, 67 N. J. L. 184, 50 Atl. 7^, up- 

K. J' *ct March 24, 1809. regulating oyster planting In State 

wsterB arid licensing by tonnage boats engaged in planting; 

ttMotin^ opinion In Kean v. Calumet Canal Co.« 190 U. S. 431, note, 

H tai Ct. MO* ^^ ^ 1^^^ majority holding Federal patent to In- 





139 U. S. 266-278 Notes on U. S. Reportt. 78 

(liana of swamp land of " whcde of fractional sections" represented- 
on map referred to conveyed submerged portions of snch sections. 

139 U. S. 266-278, 35 L. 171, ETHERIDGE v. SPERRY. 

Syl. 1 <XI, 1157). Supreme Court reviewing State decision. 

Approved in In re Antigo Screen Door Co., 123 Fed. 253, holding 
uuder Wisconsin ' toW, -whereby chattel mortgage rendered fraudu- 
lent by agreement giving mortgagor power to sell, trustee in bank- 
ruptcy may claim for creditors as against mortgagee; Clayton ▼. 
Exchange Banli, 121 Fed. 631, holding under Ga. Code 1895, §§ 2724, 
2727, requiring record of mortgages, mortgage of storelteeper to 
bank not recorded until bankruptcy not preferred over intervening 
creditors. 

Distinguished in Avery v. Popper, 179 XJ. S. 811, 45 L, 205, 21 
Sup. Ct. 96, holding mere fact that plaintiff purchased at marshal's 
sale under Federal court execution does not entitle him to writ of 
error where validity of Judgment not questioned. 

Syl. 2 (XI, 1157). Following State holding on chattel mortgages. 

Approved in In re Josephson, 116 Fed. 405, upholding under Georgia 
law not requiring record of chattel mortgages, unrecorded mortgages ' 
given bank to secure bona fide loans to insolvent entitling bank to 
priority; In re Shirley, 112 Fed. 304, holding Rev. Stat Ohio, § 4150, 
declaring void chattel mortgages unaccompanied by immediate de- 
liver>' unless recorded, applies only as to intervening right before 
filing; Williams v. Gaylord, 102 Fed. 374, following State construc- 
tion of Cal. statute 1880, p. 131, § 1, prohibiting mining corporation 
directors to dispose of corporation's mining, as Including foreign 
corporations; American Surety Co. v. Worcester Cycle Mfg. Co., 100 
Fed. 44, holding under Connecticut law and decisions, chattel mort- 
gage of after acquired property Invalid against third parties, unless 
possession taken before intervening rights. 

Syl. 4 (XI, 1158). Chattel mortgage made to creditor. 

Approved in In re Ball, 123 Fed. 165, holding agreement made 
bona fide whereby mortgagor of goods may sell same in regular 
course, withdraws goods sold, but leaves mortgage unaffected on 
unsold goods; In re Williams, 120 Fed. 544, upholding mortgage 
where farmer's notes transferred to cotton factor to secure ad- 
vances, in absence of evidence that mortgage was fraudulently 
withheld from record; Donohue v. Campbell, 81 Minn. 109, 111, 83 
N. W. 470, 471, holding not fraudulent, as matter of law, chattel-pur- 
chase mortgage on merchandise and fixtures to cover additions, 
mortgagor to keep stock up and to keep possession until default; 
Noyes v. Ross, 23 Mont 440, 441, 442, 75 Am. St Rep. 549, 550, 59 
E*ac. 372, 373, upholding chattel mortgage of stock made In good 
faith on consideration of previous loan and assumption of debt, 
mortgagor to remain in possession and retail; Thompson v. Esty, 



I¥ 



Notea on U. S. KeportB, 139 U. S. 27S-379 




flO N. H. 65, 45 All. 568, upholding under N. H. insolvent law. bill 
of «ale lor $4,000 for property worth 14.207, money beiog paid by 
f«idee and property leased to vendor; First Nat. Bank v* Calkins, 
Vi 8. Dak, 420. 81 N. W. 734, liolding fraud being for jury, fact that 
mortgagor of horses knowingly allowed mortgagee to sell and eon- 
?ot portJOD of herd not conclusive of fraud; Horner- Gay lord Co. 
T. Fawcett 50 W. Va, 493. 40 S, E. 567, holding deed of trust exe- 
cnted to secure bona fide debt on stock of goods, covexiog after 
iotxiired property, not prima facie fraudulent as to subsequent 
credlfore with notice* 

13» U. & 278-2d3. Not dted. 

138 U. & 2d3-297, 35 L. 193, WALTER A. WOOD, ETC., CO, v. 
SEIXXEB, 

^SyL 2 (XI, 115d). Federal question must be necessary to 

ved In Holt ▼* Indiana Mfg. Co., 17^^ U. S, 71, 44 L, 376. 20 
CL 273, holding suit to eojoin State taxes because levied in 
feet ofi patents or patent rights not Involving Federal question , 
vllbla Bev. Stat, f 629. 

B 139 U. 8. 297-306. 35 L. 167, MUTUAL RESERVE, ETC., LIFE 

^^m ASSX. T* HAMLIN. 

^^B^T'l* ^ <Xi» llt?0). Application for reinstatement waives no rights. 

■ Approved in Supreme Council A. L. of H. v. Orcutt, 119 Fed. 687, 

■ lioMtiig member of fraternal order wrongfully suspended for uou- 
pcyisent of dues, where no notice of assessments given, does not 
wmlfe rigbt by seeking reinstatement 

139 V. & 306-^26. 35 L. 183, UNITED STATES EX EEL. v. 
BLAINB. 

1 (XX, 1100)* No mandamus to control executive discretion. 

ed in Kelm v. United States. 177 U, S, 293, 44 L. 775, 20 

CC 575. holding unreviewable discharge by secretaiy of in- 

of clerk for incompetency; KlmberiJn v. Commission to, etc., 

Tr^liet. 104 Fed. 658. refusing mandamus to compel commission to 

1^ five clTUixed tribes to enroll complainant as citizen of Qhicka- 

«W AmtiOO. 

U» U. 8, B26-33(]w Not dted. 

m U. 8. 38T-^2, 35 L, 181. WORTHINGTON v. EOBEINS, 

9yl Z rXI« 1162). Customs classification not determined by use. 

Approved In Downing v. United States, 116 Fed. 780, holding old 
vstmoa, 91.0(1 per cent* of copper, dutiable as manufactures of metal 
vllkla paragraph 193, act July 24, 1S97, and not on free Est, 

tM U. & a^-37a Not died. 




lad U. S. 380^438 Notes on U. S. Reports. 



m 



138 U. S. 380-385, 35 U 19T, UNDERWOOD ?. DtJGAH. 

SjL 1 (XI, 1164). Ancestor'A laches asserting title bars heir. 

Approved in Masaenberg t. DenJson, 107 Fed. 23, balding order 
of court unnecessary for legal sale and transfer of Texas land cer- 
tificate triiaijf erred bj admlalatrator sixty years before, and wortb 
under $500. 

139 IS. S. 385-388, 35 L. 21T, DOLiN ?. JENNINGS, 

SyL 1 (XI, 1154). Survivor must Join deceased's representatlTe. 

Approved in Loveless v. Ransom, lOf Fed. S2T, botdlng wbere 
Judgment In debt on lease bond is Joint, aU parties on bond mils I 
Join fn writ of error. 

139 U. e. 388-417. Not cited. 

130 U. S. 417-438, 35 L, 227. HANDLED T. STUTZ, 

SyL 1 (XI. Iie4). Failure to record vote not fatal. 

Approved In Crebs v. Lebanon, 98 Fed. 551, boldlng city ordinance 
not invalidated by clerk's overslgbt in not copying same on city 
records. 

SyL 2 {XI, 1164). Notice nnnecessary wbere all stockholders 
present. 

Approved In Qreat Western Mfn., etc., Co. v. Harris, 128 Fed. 
329, holding corporation cannot sue to set aside contract for sale 
of bonds Issued at elgbty-five cents, wltb stock bon^t equal to one^ 
hall Issue, made between corporation and stockbotders; Gold Bluff, 
etc., Corp, V. Whltlock. 75 Conn. 675, 55 Atl. 177, holding under 
Conn. Gen. Stat 19€2, f 3377, failure of call of meeting to state 
purpose of amending by*laws as to meeting time not ground for 
Injunction. 

SyL 5 (XI, U&l). Assenting stockholders liable to eubsequent 
creditors. 

Approved In la re Miller, etc*, Co., Ill Fed. 615, holding under 
bankruptcy act 1S98, § 2, Bankruptcy Court may in proper case 
order aBsessment on stockholders of Insolvent corporation for bene- 
fit of creditors; Vermont, etc., Co. v. Declez, etc.. Co.. 135 Cal. 58a 
687, 588, 87 Am, St Rep. 149, 150. 67 Pac. 1059, 1060, holding In- 
corporators orally agreeing to purchase 1100 shares for |20 pet 
share, fully paid, liable to creditors for unpaid balance on corpora- 
tion's insolvency; State Trnst Co. v. Turner, 111 lowa^ 668, 82 N. 
W. 1030, holding where property received by corporation In payment 
for stock is overrated, owner of stock It liable to creditors for dif- 
ference between true value and rating. 

SyL 6 (XI, 1166). Stockholders impliedly promise to pay sub- 
scription. 

Approved in Seaboard Nat Bank v. Slater, 105 Fed. ISO. hold 
Ing defendant not liable as subscriber under Nebr. Const, art. 11 



!a 



Notes on U. S. Reports. 



139 U* S. 438-402 



I 4, wbere stock Issued to liJs transferrer, pajment of claim wIt'L 
BO expectation of pajineDt. 

Syl 9 iXU 1107k Stockholder setting off claim against cor- 
pora tloD. 

Apprared tn Lantry v. Wallace, 97 Fed. S70» bolding bank stock- 
liolder sued by receiver for assessment cannot counterclaim for 
iaasges a^nst bank for fraudulently Inducing purchase of stock. 

(2U. il^)* MlsceUaneous. 

CItied In Taylor v. Cummings. 127 Fed. 110, holding under Hurd'a 
IQ. Stmt 1B93, declaring stockholders' liability, members of Urm 
orgxnizliig corporation bona fide not liable for bookkeeper's over- 
Taliulloii of stock; Richardson v. Mining Co., 23 Utah. 3S6. 65 Pac. 
lU, holding where mining property conveyed to new corporation, 
laarket value at time is test of bona fides of transfer, not subse* 
q;iie&t demonstration of worthiness. 

139 U. a. 438-44a Not cited. 

U. S. 449-462, 35 L. 219. IN RE DUNCAN, 

1 (XI* 11G7K No haljeas corpus, court having Jurisdiction. 
l^ppiiOTed In Minnesota v. Brundage, ISO U. S. 502, 45 L. 641, 21 
QL 456, refusing appMcation for habeas corpus to release prlB- 
* from sentence of Municipal Court of Minneapolis, where Stale 
not exhausted; Davis v, Burke, 179 U, S. 402, 45 L. 2ol. 
Ct 211, refnsitig to Interfere with execution of State court 
D ground of invalid Stute hiw, where question not raised 
te State court. See S7 Am. St Rep. 202, note. 
9$L 2 (XI, 1168). Statute presumed to be duly passed. 
^Al^roved In Milwaukee Co, v. Iseuring. 109 Wis. 2t>, 27, 85 N. 
1S7. IBS, holding in contest of law, court may examine leglsla* 
iHe JotiniAls at time of passing law in question, or consult any 
otter mast w orthy source of information. 
QjL 8 (XI, 1168). Constitullons are limitations on people. 
A|iprOT«d in dissenting opinion in Taylor v. Beckham (No. 1), 
178 U* 8, 604, 44 I^ 1210, 20 Sup. Ct lOlG, majority holding decision 
if WtAtt court against claimant to governorship In Taylor-Beckham 
Mitttt oot appealable to Supreme Court. See M Am. St Rep. 382, 



WjfL 7 CSX, 1X68), State court's constitutionality of own statutes. 

Apprared in Taylor v. Beckham <No. IK 178 U. S. 579, 44 L. 1201, 
SI t^pk. Ct 901, holding decision of State court against claimaDt to 
WOfmnantip not depriving defeated party of property giving appeal 
19 iopmse Court 

VoLin— 6 



139 U. S. 462-477 Notes on U. S. Reporte. 82 

139 U. S. 462-468, 36 L. 225, LEEPER v. TEXAS. 

Syl. 2 (XI, 1168). Record below must show Federal question. 

Approved in Eastern Building & Loan Assn. v. Welling, 181 U. 
S. 49, 45 L. 741, 21 Sup. Ct 532, holding where Federal questions 
not raised In State court until case remitted to trial court and 
application made for rehearing. Supreme Court will not consider. 

Syl. 5 (XI, 1169). Due process of law — When satisfied. 

Approved in Maxwell v. Dow, 176 U. S. 603, 604, 44 L. 605, 606v 
20 Sup. Ct 457, upholding Utah practice of proceeding by Informa- 
tion instead of indictment and before Jury of eight instead of 
twelve; dissenting opinion in Hendryx v. Perkins, 114 Fed. 824, 
majority holding bill to vacate decree for fraud, showing mistake 
only, not maintainable after nine years* delay. 

Syl. 6 (XI, 1170). Uniform operation of laws, due process. 

Approved in Florida C. & P. R. R. Co. v. Reynolds, 183 U. S. 478, 
46 L. 287, 22 Sup. Ct. 179. upholding Fla. Laws 1885, chap. 3558, 
requiring comptroller to assess railroad property for taxes escaped 
during 1879, 1880 and 1881; Bolln v. Nebraska, 176 U. S. 80, 44 L. 
383, 20 Sup. Ot. 288, upholding as due process, under Fourteenth 
Amendment, Nebraska proceeding by information for felony; State 
V. Hauii, 61 Kan. 154, 59 Pac. 343, holding unconstitutional Kan. 
Laws 1897, chap. 145, making unlawful payment of employees la 
any credit other than lawful money of United States; Pinney v. 
Prov., etc., Co., 106 Wis. 401, 82 N. W. 310, holding unconsUtutional 
Wis. Rev. Stat., § 1775b, authorizing service on private corporation 
by leaving copy of process with register of deeds. 

139 U. S. 469-477, 35 L. 213, DELAWARE, ETC., R. R. CO. v. 
CONVERSE. 

Syl. 1 (XI, 1170). Court may direct verdict on conclusive 
evidence. 

Approved in Marandi v. Texas & Pac. R. R. Co., 184 U. S. 191, 
46 L. 496, 29 Sup. Ct. 347, holding question for jury whether rail- 
road company negligent in failing to provide sufficient protection 
against fire in cotton piled up on platform; Pattou v. Texas & P. 
R. R. Co., 179 U. S. 600, 45 L. 3G3, 21 Sup. Ct. 276, holding direction 
of f'erdlct for defendant proper, where fireman Injured by turning 
of loose step while cleaning engine at end of trip Instead of on 
return; (iilbert v. Burlington, etc.. Ry., 128 Fed. 532, holding plain- 
tiff precluded from recovering for Injury while uncoupling cars by 
going between them Instead of using patent lever; Dunworth v. 
Grand Trunk, etc., Ry., 127 Fed. 309, holding where deceased killed 
while standing on railroad crossing, court bound to direct verdict 
for defendant; St. Louis Cordage Co. v. Miller, 126 Fed. 508, hold- 
ing erroneous refusal to charge for defendant, where plaintiff was 
Injured while working farming machine with unprotected cog 
wheels; Pennsylvania Co. v. Paul, 126 Fed. 159, sustaining submis- 



Notes OB U. S. Reports. 139 U. S. 46»-477 



tfmi to jury of question of EegU^ence where plaintiff riding on 
ipecial ticket ^was Injured while riding ou crowded platform; Cole 
?. G^niiaji S^Uiv. & Loan Soc, 124 Fed. 122, sui<taiulng directfon for 
dK<*i>dant 'wliere plaintiff was Injured by stepping down elevator 
9bmtt ifrlien stnunge boy operated gate; Bi^ce v. Southern liy. Co., 
UK Fed. 713. bolding Insutliclent under S, C. Code Civ. Proc, § 163, 
mft to engineer and fireman, complaint simply stating derailment of 
trmln; Ragsdale v. Southern R. IL Co., 121 Fed. 921, holding proper 
direction of rerdict for defendant, where evidence insuftlclent to 
ffvstaln finding that defendants locomotives set tire In quealJon; 
ChicAiSO. etc, R. R. Co. v. Rossow, 117 Fed. 493, holding driving on 
trmck on a trot with fur collar turned up above face obstructing 
ricw constitTited negligence in law; St. Louis. etc-» Ky. Co, v. Left- 
wich. IIT Fed. 129, holding question whether passenger was* negli- 
gent in descending to lower step to expectorate was for jury, not 
coam Brady v. Chicago & G. W. Ry, Co., 114 Fed. 105, austaining 
iireetSoD for defendant where employee injured by negligence of 
twitchman without showing any negligence on part of company; 
OadaJiy Packing Co. v. Marcan, lOtj Fed. &48. holding court shonld 
ta^« directed verdict for defendant, where plaintiff, minorp injured 
lif falling from block on slippery floor used by him four weeks; 
CSatfc w, ZamJko, 106 Fed, 6<>9, holding court should direct to find 
for defendant where plaintiff was injored while riding on foot- 
iMUil of tender without holding on band rail; Mexican Cent. Hy. 
•€3b. t, Murray, 102 Fed. 271, holding where evidence leaves court 
In dottbt as to direction of verdict, court rightly submitted it to 
Jury; Ponder v. Jerome Hill Cotton Co,. 100 Fed, 374, sustaining 
i&r^ctkm of verdict for plaintiff, where defendant sued on note, 
aO^fid aame for wager, but did not show no Intent to deliver cotton 
r.ir wrilttj given; Railway Officials', etc.. Assn. v. Wilson, 100 Fed. 
Tl Luiding proper submission of case to jury where deceased was 
^Jitartoiisly killed; Chicago, etc,» Ry. Co. v. Price, 97 Fed. 427, 
43^ iuaiainlng submission to jury of contradictory evidence as 
to cliaracter of railroad track and finding of unsafeness thereof. 
SyL 2 (XI. 1172k Making flying switch at night, gross negligence. 
Aniroti!*d In Mirchell v. Illinois Cent. R. R„ 110 La. mi, 34 So. 
HT, hoidlng making of "running switch*' on much-used street, 
irtnTv hrnkf-man failed to warn boy, gross negligence; Vance v, 
liUtlway, 53 \V, Va. 34«, 44 8. E. 4G4. upholding direction for plaJn- 
lUff lojnrid by cars of train making ** flying switch," where two 
[»tta««ea aworc to looking down track after engine passed. 

yiMnnfiiiAhe<\ In Chesapeake, etc., Ry. Co. v. King, 119 Fed. 250, 

I ItekllAK tjti«^tloo of negligence of pasi^enger In alighiing from train 

^cromlng defendant's tracks to depot properly left to jury. 

t jl 3 <XL 1173K Finding as to ni>gl1gfure not reviewed. 

i|ipror«>d In Railway Co. r. Coulon, 9 Kan. A pp. 121, 57 Pac. 1064, 

^Mag Tfifdict of Jory flndtng no contributory negligence ou plain- 




139 U. S. 478^530 Notes on U. S. Reports. 84 

tlfTs part precludes recovery for inlur^ to cattle should not be 
overturned 

(XI, 1170). Miscellaneous. 

Cited In Chlcaeo & N. W. Rv. Co. v. De Clow. 124 Fed. 147, 
holding admissible evidence of statement of conductor as to shock 
of train, he having denied fact of lar subsequently; Lanzbelu v. 
Swift, 121 Fed. 418, holding where Issue of contributory negligence 
depends upon several facts, question should be left to lurv under 
proper instructions as to law. 

139 U. S. 478-^80, 35 L. 218, SNYDER v. FIBDLER. 

SyL 4 (XI, 1174). Administrator may resign to testify. 

Approved In Bunker v. Taylor, 13 S. Dak. 439, 83 N. W. 657, 
holding, under S. Dak. Comp. Laws, § 4881, administrators ap- 
pointed on death of executrix, rendering surety on note of estate, 
are successors In Interest; Mortgage Co. v. Thedford, 21 Tex. Civ. 
255, 51 S. W. 2G4, holding general manager of corporation not 
"party" to suit brought by corporation to prevent his testifying 
under Sayles' Tex. Civ. Stat, art 2302. 

(XI, 1174). Miscellaneous. 

Cited In Bunker v. Taylor, 13 S. Dak. 446, 83 N. W. 659, hold- 
ing, under S. Dak. Comp. Laws, § 5260, excluding testimony of 
"parties," defendant sued by administrator, though making no 
appearance, cannot testify for codefendants. 

139 U. S. 481-507. Not cited. 

139 U. S. 507-530, 35 L. 238, DAVIS v. WEIBBOLD. 

Syl. 3 (XI, 1175). Town-site laws excepted only known mines. 

Approved in Lamed v. Jenkins, 113 Fed. 637, holding Rev. Stat., 
f 2392, excepts only mines known at time of town grant of town-site 
patent from grant therein; Kansas City M., etc., Ck). v. Clay, 8 
Ariz. 332, 29 Pac. 11, holding in ejectment under pre-emption 
entry defendant may show existence, at time of entry, of known 
mineral deposits rendering land exempt under Rev. Stat, f 2268; 
Schendell v. Rogan, 94 Tex. 596, 63 S. W. 1005, holding Tex. act 
1895, art. 3498, reserving mineral land and oath required of settler 
of ignorance of minerals, applied only to lands so designated. 

Syl. 4 (XI, 1175). Patentee owns subsequently discovered 
minerals. 

Approved in Moran v. Horsky, 178 U. S. 209, 44 L. 1039, 20 Sup. 
Ct. 858, holding State court decision sustaining defense of laches 
against mining claim abandoned fourteen years, allowing gain- 
ing of apparent town-site title, involves no Federal question; Cos- 
mos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 11, holding 
equitable title of entry man under forest reserve acts (30 Stat 36), 
does not vest before approval of section by land department; 



Notes on U, S. Reports. 139 U. S. 507-530 



€||re Land, etc, Co, r. Olmstead, 103 Fed. 578, holding entryman 
CO ixubllc land under forestry reservation act, obtaining equitable 
tttle bj jierformlng conditions, may maintain suit to restrain others 
f^m sinking oil wells tbereon; Standard Quicksilver Co. v, HabU 
ihiw, 182 CaL 119, 64 Pac 115, holding liomestead title to land on 
whlc^ shaft discovered streak of cinnabar ore good as against 
•nhsequent mining location tbereon. 

Syl. 5 (XI, 1175). Claimant taking preliminary steps protected* 

AppfOTed in OUve Land* etc.. Co. v. Olmstead, 1U3 Fed. 576, 
boldbig entryman on nonminorai lands wnder forest reserve act, 
performing conditions conferring equitable title, may enjoin sink- 
Ifl^g of oil wells on land. 

SyL 7 (XI, 1176). Term " mineral " requires paying quantities. 

Appfoired In Cosmos Exploration Co. t. Gray Eagle Oil Co., 104 
F«d» 47, refusing relief to en try man under forest reserve act 
aUectn^ land to be agricultural and nonmlneral, wbere opposite 
vas true and another claimant exploring for oil; Olive Land, etc.. 
Col r. Olmstead, 103 Fed. 572, holding entryman on nonmlneral 
Imds tinder forest reserve act, performing conditions conferring 
equitable title, may enjoin sinking of oil wella thereon; Cleary v. 
Sklfllch, 28 Colo. 368, 369, 370, 65 Pac. 61, 62. 89 Am. St. Rep. 211, 
213; 213» holding mill-site claimant prevails over lode claimant 
wberct, when mill erected, mineral could not be profitably extracted 
durngti conid at time of cobtest 

87L ^ (XI. 1176). Officers cannot alter patent rights. 

Apl^oved In United Tunnel, etc, Co, t. Creede, etc.« M. Co., 
110 Fed. 171, holding land department judgment and patent of 
ttSalttir claim do not estop those not parties thereto from denying 
prior discovery of minerals; King v, Mc Andrews. Ill Fed. 863, 
holding patents of land department covering land of reopened In- 
dian rMienrfltion, included by Dakota lav^s in city of Chamberlain, 
KH attaeksble collaterally, reversing King v* M' Andrews, 104 Fe(3. 
HI, nphotrtlng. under Rev. Stat U. S.i IS 2258, exempting from 
pre-emption lands within Incorporated cities, and 25 Stat. 888. South 
Dtlc«f<» loclaslon of reservation land in city; Frazee v. Spokane 
Cmntf, 2d Wash, 283, 69 Pac, 781, holding Indian entitled to patent 
Irad uder act Congress 1884, July 4th, f 5, entitled to protection 
sf soeh law though officers erroneously apply another law. 

tyi ID (XI, 1177). Authorized patent concludes necessary facts. 

iAppfOTid In Cosmos Exploration Co. v. Gray Eagle Oil Co., 
Fad. 44, holding entryman acquires no vested rights to lieu 
nnder forest reserve act nntil land depart men t approves 
•Heetloo; Calhoun, etc., Co. v. Ajax, etc., Co., 27 Colo. 20, 59 Pac, 
m^ holding receiver's certificate and patent Issned for mining 
conclualTe as to validity of location, and evidence denying 
: of ore thereon tnadmlssible. See 75 Am. St Rep. 882, nota 



139 U. S. 530-548 Notes on U. S. Reports. S6 

139 U. S. 530-539, 35 L. 261, UNION EDGE-SETTER CO. ▼. 
KEITH. 

Syl. 2 (XI, 1177). Mere aggregation old elements not patentabl^^. 

Approved in Brown Hoisting, etc., Mach. Co. v. King Bridge 
Co., 107 Fed. 504, holding Brown patent 300,690, for hoisting and 
conveying machine, void for anticipation and laclt of novelty; 
Campbell Printing, etc., Co. v. Duplex Printing, etc., Co., 101 Fed. 
294, holding Stonemetz patent 376,053, for web-printing machine, 
largely aggregation of old elements, not infringed as to slight 
patentable variation. 

139 U. S. 540-548, 35 L. 247, BROWN CHEMICAL CO. v. MEYER. 

SyL 1 (XI, 1178). Mere descriptive words not monopolized. 

Approved in Elgin Nat. Watch Co. v. Illinois Watch Case Co., 
179 U. S. 673, 45 L. 379, 21 Sup. Ct. 273, holding name " Elgin " 
cannot be registered as lawful trademark; Allen B. Wrisley Co. v. 
Iowa Soap Co., 122 Fed. 797, holding ** Old Country " not subject 
of technical trademark for soap; Draper v. Skerrett, 116 Fed. 208, 
holding term ** French Tissue " cannot be employed as trademark; 
Brennan v. Emery, etc.. Dry Goods Co., 108 Fed. 627, 628, hold- 
ing words *' steel shod " indicative of quality and not subject of 
trademark for shoes soled with steel nails, affirming 99 Fed. 976; 
American Washboard Co. v. Saginaw Mfg. Co., 103 Fed. 282, holding 
word "Aluminum " cannot be monopolized as technical trademark 
for washboard composed partially of that metal; Watkins Medical 
Co. V. Sands, 83 Minn. 330, 86 N. W. 342, holding words " Vegetable 
Anodyne Liniment " merely descriptive and not subject of trade- 
nuirk; dissenting opinion in Shaver v. Heller & Merz Co., 108 Fed. 
838, majority enjoining use by defendant of term ''American " tn 
connection with ball or wash blue. 

Syl. 2 (XI, 1178). " Iron Bitters " cannot be monopolized. 

Approved in Johnson v. Rutan, 122 Fed. 998, holding plasters 
termed ** Soothing Dressing " made by well-known formula not 
dutiable as proprietary medicine under revenue act 1898. See 
notes, 85 Am. St. Rep. 93, 99. 

Distinguished in Shaver v. Heller, etc., Co., 108 Fed. 827, enjoin- 
ing use of name ''American" by defendant In connection with 
ball or wash blue. 

Syl. 3 (XI, 1178). Honest use of surname not enjoined. 

Approved in Royal Baking Powder Co. v. Royal, 122 Fed. 846, 
enjoining use by Royal of his name on baking powder label so as 
to mislead purchasers to confuse it with Royal Baking Powder; 
Chlckering v. Chickering & Sons, 120 Fed. 73, enjoining use of 
name of corporators of " Chickering Brothers " on pianos, confus- 
ing product with Chickering and Sons pianos; Computing Scale 



Notes on U. S. Reports. 139 U. S, 549-660 

Coc T* Standard, etc., Co., 118 Fed. 967, refusing Injunction to re- 
ftmln tisie by defendant of terms " computing " and " standardp'* 
fo coooevtlon witli scales, no misleading being shown; Peck Bros., 
etc Co, T. Peck Bros, Co., 113 Fed. 21>S, enjoining use of name 
•* Peck Brothers " to designate new firm In wbleh no Peck brothers 
were members; American Washboard Co, v. Saginaw Mfg. Co.. 
103 Fed, 2S4, refusing on facts to enjoin as fraudulent use of 
term ** Aluminum " on washboard containltig no aluminum where 
purchasers not deceived. See notes, 85 Am. St. Rep. 103, 104. 

DlsftinguiMhed In Draper v. Skerrett, 11 tS Fed. 208, enjoining 
fmuduleot use of terra •* French Tissue '* by sales agent of manu- 
fB^tsrer to designate other product; Lever Bros., etc., Works t. 
gmltlu 112 Fed. 909, enjoining use of surname *' Welcome '' oo 
fioflip confusing article with well-known product so designated; 
SluiT«r V. Heller, etc., Co.. H>8 Fed. 82a 832, 838, enjoining use or 
word **American *' In connection with liall and wash blue at suit 
q€ macufaeturers of "American Ball Blue." 

Sjh 7 (XI, 1179). Person may assign name as mark. 

Approved In Peek Bros., etc., Co. v. Peck Bros. Co., 113 Fed. 
2991 folding trade name " Peck Brothers and Company " pnaa^l 
to reonganizatlon committee purchasing franchises, name and 
goo<S wilL 

W U. g. 540, 550, 35 L. 266. FOWLER v. HAMILU 
Byt I (XI, 1180). Decree diBmlsslng bill final. 
Atrprored in Norcross v. Nave & McCord Mercantile Co.. 101 Fed. 
lUxmlftalng appeal as not taken wlttin ten days allowed by 
buikniptcy act 1898, where prayer, citation and service not filed 
with District Court In ten days; Staples v, Barclay, 30 Colo. 431» 
n Pac. 375. holding, under Mills' Colo. Stat, |i 674, t;9-l, liability 
, of sureties on co«t bond attach when decree rendered and review 
bust be by appeal 

tJ. 8. 551-560, 35 U 270, INLAND, ETC., COASTING CO. v. 
TOLSON. 

Bjt 1 (XI, 1180). Contradictory statement of Injured not si^- 
ttli«mnt 
Approved In The City of Portsmouth, 125 Fedv 268, holding state- 
nt thtt plaintiff Injured coccyx by fall on chair not conclusive 

made when she was suffering from fall. 
8jL Z (XI, 1180). Landing without pilot may be negligence. 
Apprvred In Pennsylvania R, R. Co. v. Ropner. lO'i Ve^, 307, 
boUtlDf eoUision uf steamship with pier prfmn fncie evidence of 
•«|lignnt navigntion; Bridge v, Morgan's Louisiana, etc.» R. S. Co.. 
W Ia. 365, 32 Sov 642, holding company Ilnbie for injury rcsult- 
tof from InelUcIent Inspection of car by which car was nllovveil t<i 
fd vllti banger pins out and nuts loose; Railroad v. Kuhn, 107 




13d U. S. 551-560 Notaa on U. S. Reports 



88 



Tenn, 114, 64 S. W. 203. holding evidence of derailment of car 
causing injury creates presumption of negligence. 

Distinguished in Raney v. Lachance^ 96 Mo. App. 4S4. TO S. W, 
877^ holding where plank negilgeiitly drawn bj plaintiff and an- 
other workman broke window^ It is not presumed to be plaintiflTa 
negligence or joint negligence. 

Syl. 4 <XI, 1190)* Jury determines whether act per se negligence. 

Approved in Jefferaou Hotel Co, v. Warren, 12S Fed. 567» hold- 
ing where loss of baggage by fire attributed to contributory neg- 
ligence, defendant has burden^ so question for Jury; Northern Pac. 
Ry. Co. V. Tynan. IIQ Fed. 202, upholding refusal to direct for 
defendant where deceased, not 8how*n negligent, waB killed while 
trying to couple cars with dissimilar out-of-date couplings; Towles 
T* Southern R, R. Co,, 103 Fed, 405, holding whether defendant's 
train Jmnds were negligent In managing train, after knowing of 
plaint I JT*s presence on track, question for jury; Wllley v, Boston, 
etc.. R. R., 72 Vt. 120, 47 Atl, 398, holding where plaintiff Injured 
at crossing w^aa seen when train was thirty rods distant, brakes 
applied at fifteen, emergency brake not applied, presents question 
for Jury. 

Syl. 5 (XI, 1181). Burden on defendant to show contributory 
negligence. 

Approved In Hemlng^'ay t. IlllDois Cent R. R, Co., 114 Fed. 84G, 
holding in Federal courts, in street-car accident casci burden of 
showing contributory negligence on defendant 

Syl, 6 iXI, 1181). Contributory negligence not barring recovery, 
Approveil In Netherlands, etc., Xav, Co. v. Diamond, 12S Fed. 
573, holding where plaintiff fell into vessel's hold, question of negli- 
gence and contributory negligence for jury; The Steam Dredge 
No. 1, 122 Fed» ttsri, holding libelant not precluded, by presence in 
dangerous place, from recovering for negligence of winch man Iti 
not ungearlai; winch-head; Turn bull v. New Orleans & C. R, R. Co.. 
120 Fed. 785, sustaining Inst ruction In action for wrongful death 
that contributory negligence no defense if defendant by reasonable 
care could have prevented; Oliver v, Denver Tramway Co., 13 
Colo. App. 551, 59 Fac. 82, holding not demurrable complaint alleg- 
Ing ordinance requiring cars to stop at street Intersection, and 
plaintiff's injury while crossing where car proceeded, though motor- 
man saw plaintiff; Tnlly v. P., W. & B. R. R., 2 Pennew. (Del) 
541, 47 Atl. 1020, holding erroneous Instruction for defendant where 
injured boy playing In coal car wim seen by yardnmster and could 
have been by brake man; Citizens' St. R. R. Co. v. llamer, 20 Ind. 
App. 437, holding contributory negligence of child on track does 
not bar recovery wliere motorman could have stopped car; Lamp- 
kin Y. McCormlek, 105 La. 427. 20 So. 956, holding railroad liable 
for death, though decedent contrlbtitorily negligent, where train 



Notes on U. S. Reports. 139 U. S. 551-^360 

Itdi^ down toward danger point In city without notice; Shanks 
% Springfield Traction Co., ICH Mo. App. 708, 74 S, W. 387. hola- 
feif t>Uilntifr, being deaf» though negligent in walking upon track, 
aot precluded tHereby if Jury found motorman negligent In not 
car; Klockenbrlnk v. St LouIb» etc., R. R., 81 Mo. App. 
iMkldliic^ plaintiff though negligent could recover where Injury 
by negligence of motorman fn not stopping car when pos- 
; affirmed in Klockenbrlnk v, St, Louie, etc, Ry. Co., 172 Mo. 
72 S, W. 903, holding plaintiff, driving on track at night, may 
where motoriDan saw, or could with ordinary care have 
pkaintLff; Wheeler v. Railway, 70 N. H. 614, 50 Atl. 104, hold- 
company liable for Injury caused by plaintiff's falling from 
open door of baggage car while intoxicated, company being negU- 
tt^tt in not preventing; Cox t. Norfolk. etc*» R, R.. 126 N. C. 106, 
^^ift S. E. 238v holding proper submission of Issue whether, notwltn- 
^^^kdln^ deceaeed^B admitted contributory negligence, defendant 
^ind have prevented accident; Bodie v. Railway Co., 61 S, C. 484, 
"ISSw 39 S. E. 720» 721, sustaining Instruction that defendant was 
iiatiSe If injury could have been avoided, though plaintiff negligent, 
for negligence would not then be direct cause; dissenting opinion 
to Dawson t. Chicago, etc, Ry, Co., 114 Fed. 876, majority hold- 
lac deceased brakeman, going between two moving cars, seizing 
cMiplitig rod instead of hand-hold and falOng therefrom, barred 
by centrlbutory negligence: dissenting opinion In Rider v. Syracuse 
B. T. Ry. Co., 171 N. Y. 162, 63 N. E, 844, majority holding driver 
oegltgently driving on track in front of approaching electric car 
cannot recover for coilision. 

Dlstlngnished in Dunworth v. Grand Trunk, etc., Ry., 127 Fed, 

810. bulding defendant not liable for deceased*s deatli at crossing 

wli€i« engineer did not observe danger In time to avert accident; 

Chattanooga, €?tc^ Ry. v. Downs, 106 Fed. 642, holding, under Ga. 

CimS<*, fl 221*2, 3*)*U^ person stepping in front of approaching englue 

vlUiont looking, to get express package from platform, negligent 

)n biw; Gilbert r. Erie R. R, Co., 97 Fed. 752, holding contributory 

iM>Sllg«0ce In drirlng npon crossing in covered rig without looking, 

tft€r teeing train 135 feet away, precludea recovery; Griffith v. 

OMifer Tramway Co., 14 Colo. App. 512, 61 Pac. 48, holding de- 

tttaed nmniDg diagonally across to street-car stopping place, killed 

vhlle croaalDg track ahead of api^roachlng car, guilty of contrlbti- 

tary ne^gence; Gahagan v. Railroad, TO N. H, 450, 50 Atl. 151, 

Mdlog plaintiff walking on track without tooklttg or listening, 

■tmct by engine moving slowly, precluded by negligence. 

fijl 8 (XI, 11S2). Court determines witness' competency. 

Appt^ntd tn Sloan t. Balrd, 162 N. Y. 333, 56 N. E, 754, sustaln- 

Ibf f9f^r«e*a rnUnn tiiat witnesses experienced in rubber businesa 

rciv qualified to testify as to ralue of rtibber manufacturing plant 



X30 U. S. 560-600 Notes on U. S. Reports. 90 

Syl. 10 (XI, 1182). Common knowledge not subject of expert 
testimony. 

Approved in Hunt v. Kile, 98 Fed. 53, holding improper question 
whether witness considered rope '* ordinarily safe apparatus for the 
work," being question for Jury. 

139 U. S. 5G0-5G8, 35 L. 206, SELMA, BTC, R. R. CO. ▼. UNITED 
STATES. 

Syl. 3 (XI, 1183). Plaintiff must prove facts peculiarly In 
knowledge. 

Approved in Hinkle v. Southern Ry., 126 N. C. 938, 78 Am. St. 
Rep. 688, 30 S. E. 350, holding where shipper shows delivery of 
cnttle in damaged condition, burden is on carrier to show exemp- 
tion; Parker v. Railroad, 133 N. C. 340, 45 S. E. 659, holding carrier 
accepting goods " subject to delay " has burden of showing care 
to avoid delay; Raleigh Hosiery Co. v. Raleigh, etc., R. IL, 131 
N. C. 240. 42 S. B. 602, holding where fire shown to come from 
engine, defendant presumed negligent and must show approved 
appliances or extraordinary cause; dissenting opinion in Williams 
v. Southern Ry., 130 N. C. 124, 40 S. B. 982, majority holding 
erroneous to refuse direction negativing defendants negligence, 
where witnesses testified to sparks escaping from engines and one 
that engine was safe. 

139 U. S. 5(39-590, 35 L. 278, INTERSTATE LAND CO. V. MAX- 
WELL LAND GRANT CO. 

Syl. 1 (XI, 1183). Demurrer admits facts well pleaded. 

Approved in Green v. Indian Gold Min. Co., 120 Fed. 716, hold- 
ing allegation in complaint that master owed duty of providing 
safe place to work and keeping same in repair mere surplusage. 

(XI, 1183). Miscellaneous. 

Cited in Whitney v. United States, 181 U. S. 112, 45 L. 774, 21 
Sup. Ct. 568, holding incomplete title under Mexican governor's 
grant of land in New Mexico, where no evidence of approval by 
legislature. 

139 U. S. 591-600, 35 L. 273, SHELTON v. PLATT. 

Syl. 1 (XI, 1183). Injunction against illegal tax seldom allowed. 

Approved in Schaffner v. Young, 10 N. Dak. 253, 86 N. W. 737, 
refusing injunction to restrain one acting as sheriff from sealing 
personalty seized in one county for alleged tax of another county. 

Syl. 3 (XI, 1184). Taxation not restrained where legal remedy. 

Approved in Douglas County v. Stone, 110 Fed. 815, refusing 
to restrain collection of taxes under alleged erroneous assessment, 
Va. Code 1889, S§ 567, 570, providing legal remedy. 

Syl. 4 (XI, 1184). Equity restrains taxes in settled jurisdiction. 

Approved in Cruikshank v. Bidwell, 176 U. S. 80, 44 L. 381. 20 
Sup. Ct 283, refusing to restrain collector of customs from prevent- 



Notes on U. S. Reports. 139 U. S, 601-6OS 



ImiKirtatioo of unwholesome tea under act March 2. 1S97, s\h 

ttg unconstltutloDfllitj of law; State v. Wood, 155 Mo. 453, 56 

W. 479, refusing to enjoin State inspector from acting under 

Vo^ tJiwa 1890, p. 228, requiring inspection of beer and labeling 

iDq^ected packages. 

IMs^^tehed In dissenting oploion In State v. Wood, 155 Mo. 

66 & W. 485, majority refusing to enjoin enforcement of 

Lawa 1809, p. 228. requiring inspection of beer and labeling 

ted pacliages. 

^fL 5 (XI, 1184). No injuncti^ii against taxes without Irrepar- 
aHie lajury. 

AppfOTed In Nye, Jenks & Co. v. Washburn, 125 Fed. 818, refus- 
to enjoin town authorities from collecting personal property 
tax alleged to be Illegal and levied by collusion of officers; State v, 
WockI, 155 Mo. 447, 56 S, W, 477, refusing to enjoin enforcement of 
Mo. Lawa 1889, p. 228, requiring Inspection of beer and labeling of 
packages. 

V. 8L 601-608, 35 L. 294. WESTERN ELECTEIO CO, v. 
LAR1IR 

8yL 1 (XI, 1185). Patent right not dependent upon Importance. 

Dlatlngulfihed In Mast. Foos & Co. t. Stover Mfg. Co.. 177 U. S. 
mi, 44 L. 859. 20 Sup. Ct. 711. holding Martin patent 433,531. for 
iBkpnoremeut In windmills, invalid for want of ^ invention; Falk 
Mfg. Co, V. Missouri R, R. Co., 103 Fed. 301, iiolding Hoffman and 
FkQc patent &45.044>, for improvement In rail joints, void because 
atfdiac nothlog to art of cast-welding, 

ayL 2 (XI, 1185). Adapting old device not Invention. 

-1 Id Dowaglac Mfg. Co. v. Superior Drill Co,, 115 Fed. 
!• ig Fackbam patent 557,868. disk seed drill, infringed by 

Aevice having an me principle of clear furrow modifying dlstribu- 
tUnx In furrow; Bryant Electric Co, v. Electric Protection Co., 110 
P»cl, 21T, holding Cleveland patent 391,512, for electric switch, 
void for anticipation; Metallic Extraction Co. v. Brown, 104 Fed. 
J33. holding Brown patent 471,204, for supplemental chamber in 
arv^roaiitlng furnaces. Infringed by furnace under Ropp patent 
fi>2.081« with dlfTereutly located chamber. 

SyL 3 (Xl« 11861* Enjoining use of torsional key. 

Ai^proved in BrlsHn v. Carnegie Steel Co.. 118 Fed. 597, holding 
fold, for lack of novelty, Honiey & RItcbey patent 352.74S, for 
ff«*l table for rolling mills, not changing operation of kuown tables; 
Gforg* Froat Co. v. Cobn, 112 Fed. 1012, holding patentable and 
lafrlofed Gorton patent 532,470, for hose supporter with rubber 
button, for meta) button previously used; Davey-Piggins JIach. Co. 
f, Isaac Prouty. etc. Co., 107 Fed. 610. holding Davey patent 



139 U. S. 608-641 Notes on U. S. Reports. 82 

555,434, for pegging machine for use in pointed toes, not Infringed 
by machine for cutting and driving pegs; HaUock v. Davison, 107 
Fed. 486, holding patentable and infringed HaUock patent 600,782, 
for welding machine with distinctively new tooth, possessing lateral 
stiffness and forward flexibility. 

Distinguished in Colts Patent Firearms Mfg. Go. v. Wesson, 122 
Fed. 94, holding Felton patent 535,097, for safety device for re- 
volvers to confine cylinder in place, void for lack of invention. 

139 U. S. 608-616. Not cited. 

139 U. S. 616-621. 35 L. 286, WILSON ▼. EVERETT. 

SyL 1 (XI, 1187). Instruction which cannot prejudice nnobjec- 
tionable. 

Approved in Kilham v. Wilson, 112 Fed. 571, holding recover of 
fixed compensation for sale of realty where claim also made for 
$50,000 contingent fee precluded subsequent suit for contingent 
fee. 

Syl. 2 (XI, 1187). Error improper to review Jury's findings. 

Approved in Myers v. Brown, 102 Fed. 250, holding question 
whether verdict against weight of evidence not reviewable on writ 
of error. 

Syl. 3 (XI, 1187). Supreme Court affirming where appeal friv- 
olous. 

Approved in O'Connell v. Mason, 127 Fed. 437, adjudging frivol- 
ous, under act July 20, 1892, plaintifTs statement of poverty. Join- 
ing therein separate and distinct allegations covering several sub- 
ject-matters. 

139 U. S. 021-624, 35 L. 288, NATAL v. LOUISIANA. 

Syl. 1 (XI, 1187). Municipalities empowered to regulate estab- 
lishment of markets. 

Approved in New Orleans v. Faber, 105 La. 211, 212, 29 So. 606» 
upholding New Orleans city ordinance, prohibiting private markets 
within 3,200 feet of public marlsets. 

SyL 2 (XI, 1187). Breach market regulations triable without 
Jury. 

Approved in Ogden v. Madison, 111 Wis. 430, 87 N. W. 573, hold- 
ing keeping house of ill-fame punishable under city ordinance with- 
out Jury, though also made offense by State law. 

139 U. S. 624-628. Not cited. 

139 U. S. 628-641, 85 L. 814, BOCK v. PERKINS. 
SyL 1 (XI, 1188). Marshal's power raises Federal questloiL 
Approved in Howard v. United States, 184 U. S. 681, 46 L. 758, 

22 Sup. Ct 546, holding suit on bond of clerk of Federal court 



Notes on U, S* ReporU* 139 U. S. 642-651 



r 



I 



I 



on effect of bond and statutes governing same is within 
iTederml jurisdiction; Klrl^ v. United States, 124 Fed. 341, enjoining 
batted States marshal in New York from levying on execution 
by Georgia District Court, on forfeited recognizance of non* 
FOes V. Davis, 118 Fed. 466, holding action on attach- 
bond in suit pending In Federal court presents Federal ques- 
ttais: McDonald v. Nehraslia, 101 Fed, 174, holding action against 
receJter of national banii in oiUclal capacity within Jurisdiction of 
Federal court; State v. Frost, 113 Wis. 649, 652, 89 N. W. 920, 922, 
holding suit in equity In behalf of State to enjoin receiver from 
dCBtroylog road removable to Federal courts, 

Dlsttnguisbed in iLvery v. Popper, 179 U. S. 311, 45 L. 205, 21 
Ct. 96, holding fact that plalDtifT purchased at mar.slial's sate 
Federal execution, where execution not questioned, entitles 
to no writ of error to tr>- priority of State liens; Mayo v. Doek- 
erjr, 108 FedL 896» 899, holding United States marshal sued in State 
court for trover for seizure of property under Federal execution 
eannot remove suit on certiorari. 
8yL 3 tXI, 1189). Assignment limited to property In schedule. 
Approved In American Bell Tel. Co. v. National Tel. Mfg. Co., 
109 Fed* 1CK)2, holding disclaimer of adaptability of Berliner patent 
tnittamitter to transmit speech, not arising frum clerical mistake 
mskd not amendable. 

Distinguished In Phillips & Bultorff Mfg. Co. v. Whitney, 102 
Fed. 844, holding assignee of Iowa insolvent may sue in own name 
«fi aotea for rent of Insolvent's realty in Alabama, though notes not 
IB ictiedale. 

1S» U. S. 642-65U 35 L. 290, SANFORD v. SANFORD. 

SyL G <XI, 1188). Equity interferes where fraud is involved. 

Approved In Black v. Jackson, 177 U. S, 357, 44 L. &04, 20 Sup.' 
Ct. 651, holding Oklahoma court cannot grant mandatory injunction 
to establish right to possession of homestead. Federal Constitution 
gMBU right to jury; McCord v. 11111, 111 Wis. 513, 84 N. W. 33. con- 
iiiBlii^ title of entry man entitled to patent, where land depart- 
■Mill foQiid facta entitling him to patent, but erroneonsly issued it 
t0 mjiotlier. 

Dtotlofulahed In Hawley v. Diller, 178 U. S, 489, 44 L. 1102, 20 
iOpL GC 991, holding decision of secretary of interior, canceling an 
oitij Uider timber and stone act for fraud, within Jurisdiction 
eooftfTtd on bim by law. 

SyL 1 (Xlt 1189). Department decisions not attackable col- 
ktenllf. 

Approved In Small v. Rake^traw, 28 Mont 420, 72 Pac. 748. sus- 
tftlnlnf botdJng of •ecretaiy of Interior that claimant bad no resl- 




139 U. S. 651-684 Notes on U. S. ReportB. 9» 

dence for homestead purposes where his voting residence was 
elsewhere. 

139 U. S. 651-657, 35 L. 300, DAVIS v. TEXAS. 

Syl. 1 (XI, 1190). State decision on State statute unreviewable. 

Approved in Howard v. Fleming, 191 U. S. 135, 24 Sup. Ct. 50, 
holding North Carolina court*s decision declaring conspiracy to de- 
fraud a crime concludes Supreme Court to inquire into detention 
under conviction therefor. 

139 U. S. 658-662, 35 L. 306, ALLBN ▼. PULLMAN PALACE CAB 
CO. 
Syl. 1 (XI, 1190). Tax not enjoinable simply for unconstitu- 
tionality. 

Approved in Cruicltshanlt v. Bidwell, 176 U. S. 80, 44 L. 381, 20 
Sup. Ct. 283, refusing to restrain collector of customs from pre- 
venting importation of unwholesome tea pursuant to act March 2, 
1897, act being alleged unconstitutional; State v. Wood, 155 Mo. 453, 
56 S. W. 479, refusing to enjoin enforcement of Mo. Laws 1809. 
p. 228, requiring inspection of beer and labeling of inspected pacl^- 
ages; Loclthart v. Leeds. 10 N. Mex. 599, 63 Pac. 53, dismissing bill 
to enjoin operation of mine on land alleged to have been surren- 
dered by plaintiff's partner before proof under conspiracy with 
defendants. 

Syl. 3 (XI, 1190). Court observes whether ground for relief. 

Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 
Fed. 8, holding Federal court of equity has no Jurisdiction of bill 
by one out of possession to prevent drilling of oil wells in land. 

139 U. S. 6G3-684, 35 L. 305, BYBEE v. OREGON, ETC., R. R. CO. 
Syl. 1 (XI, 1101). Land grant condition avails government only. 

Approved In California Reduction Co. v. Sanitary Reduction 
Works, 12G Fed. 43, upholding under police power and consolidation 
act of 18G3, empowering supervisors of San Francisco to supervise 
health, contract for disposition of garbage for fifty years; Utah, 
etc., R. R. Co. V. Utah, etc., Ry. Co., 110 Fed. 890, holding 18 Stat. 
482, granting right of way over public lands, providing for forfeit- 
ure on noncompletlon In five years, simply enabled government to 
forfeit on action; St. Louis Safe Deposit Bank v. Kennett Est., 101 
Mo. App. 4(X), 74 S. W. 484. holding adjoining owner objecting to 
defendant's smokestack in alloy, told by defendant's attorney that 
such was legitimate, being Ignorant of right to enjoin, not barred 
by acquiescence. 

Distinguished in Manley v. Low, 110 Fed. 250. holding prior set- 
tler on lands patented to Iowa for railroad purposes by 13 Stat 72, 
but not earned by road, prevails over purchaser from company. 



Notes on U. S. Reports. 



140 U. S» 1-26 



I \j. S- 6S4-e94, 35 L. 319, BOONE CO. v. BUHLIKGTON, ETC» 

a, fL CO. 

Sjpl- 3 (^I* 1192). County subject to Statute of Limitations. 

AMW>Ted in Simpson v. Stoddard Co., 173 Mo, 466, 469, 470, 73 
&. W- TIO. 711* 712, holding county grantee of swamp lands cannot 
ifler thirty yeara* receipt of taxes from bona flde grantees, in 
Goimty Covirt allege Invalidity In order of sale. 



kftrt4 
m pay 
mest 



CXL UNITED STATES. 



U. S, «W-703. 35 L. 310, REDFIELD v. B ARTELS, 
Hjrt 4 (XL 1192). Interest not recoverable for claimant's delay, 
A|>proved In McClaIn v. Pennsylvania Co,, 108 Fed. 619, holding 
payid^ illegal revenue taxes on threat of distraint entitled to 
from payment on recovery of taxes; Bnr rough v. Aljol, 105 
306^ holding claimant for repayment of revenue taxes paid 
tfilny years before not entitled to interest during delay, prior to 

ISM U. 8, 1-25, 35 L. 3C3, PENXOYER v. McCONNAUGHY. 
gfL X (XX 1193). State immune from suit under Eleventh 
Appt^ttd In Starr v. Chicago, etc, Ry. Co,, 110 Fed, 7, boldlng 
Mitt against attorney -general to enjoin enforcement of unconsti- 
fadOQal rata schedule not suit against State. 

BlstlofitlsUed In dissenting opinion In Sontb Dakota v. North 
CUOUIUI* 102 U, S. 331. 24 Sup. Ct 282. majority holding Supreme 
OBOrt hM$ )iirt8dictioo of foreelosure suit by South Daiiota as donee 
0f booila taaaed by North Carolina, secured by railroad mortgage. 

HyL 2 iXl, 1103K Suit against otliccr on State contracts. 

Jk^^prored lo Smith v. Reeves, 178 U. S, 440, 41 L, 1143, 20 Sup. 
CL 921, bOJdIng action against State treasurer in official capacity to 
fftani Biooey taken under illegal assessment Is suit against State; 
fmpit r- Dfirtrict Court, 29 Colo, 238, 68 Pac. 254, holding District 
Opot cmooor enjoin State board of assessors from valuing railway 
«ad Mecnijiii property for taxation according to Colo. Sess. Laws 
ttte. p. 280; dlfrseutlDg opinion in White v. Ayer, 12G X, C. G05, 36 
*. K. 1431 majority nwarding mandamtis to compel State auditor to 
iBIie iramijnt tor salary of oyster inspector, 

OtatiagnUhifd lo Western Union Tel, Co. v. Myatt, 98 Fed. 357. 
i^MUiif enforeement of telegiaph message rate shown by com* 



I 




140 U. S. 1-25 Notes on U. S. Reports. 96 

pany to be below cost of service, where Kansas conrt of visitation 
charged with enforcement was illegal. 

SyL 3 (XI, 1193). Suit against nominal State officer not pro- 
hibited. 

Approved in Prout v. Starr, 188 U. S. 543, 23 Sup. Ct 400, 47 L. 
587, holding suit against Nebraska board of transportation to pre- 
vent enforcement of railroad rates under statute alleged invalid not 
suit against State; Farmers' Nat. Bank v. Jones, 105 Fed. 464, re- 
fusing mandamus to compel State authorities to issue bonds to 
plaintiffs, Arkansas statute giving no power to issue new bonds; 
Minneapolis Brewing Co. v. M'Gillivray, 104 Fed. 270, holding suit 
to enjoin enforcement of unconstitutional statute imposing license 
tax on nonresident liquor manufacturers not suit against State; 
Southern Ky. Co. v. North Carolina Corp. Commission, 97 Fed. 514, 
holding Federal court has Jurisdiction of suit by railroad to re- 
strain State authorities from collecting tax, alleging assessment dis- 
criminative and without authority of law; Hickman v. Missouri, etc.. 
By. Co., 97 Fed. 116, holding suit by Missouri railroad commission- 
ers under State statutes to enforce order fixing rates, not suit by 
State to prevent removal 

Distinguished In Union Trust Co. v. Stearns, 119 Fed. 794, hold- 
ing suit against attorney-general to enjoin institution of criminal 
prosecution in name of State is suit against State. 

Syl. 7 (XI, 1194). Beal parties determine whether suit prohibited. 

Approved in Salem Mills Co. v. I^ord, 42 Or. 89, 69 Pac 1035, 
holding in suit to enjoin State officers from using more water than 
State entitled to under contract. State not necessary party. 

SyL 8 (XI, 1194). Contemporaneous executive construction con- 
trolling. 

Approved in United States v. National Surety Co., 122 Fed. 911, 
holding sureties on distiller's bond liable thereon until liquor en- 
tered for deposit in warehouse, and not released by execution of 
warehousing bond delaying payment; In re Spreckles, 104 Fed. 883» 
holding according to ruling of treasury department under 26 Stat. 
613, and Bev. Stat., § 2513, shipowner allowed cancellation of duty 
for worn-out metal sheathing; Northern Pac. B. B. Co. v. Soderberg, 
104 Fed. 427, holding land chiefly valuable for granite rock is min- 
eral land within exception of grant of July 2, 1864, and did not 
pass thereunder; Nunn v. Gerst Brewing Co., 99 Fed. 942, holding 
under Bev. Stat, § 3341, as construed by treasury department, pur- 
chaser of beer stamps '* by him used in business " entitled to dis- 
count at time of purchase. 

(XI, 1193). Miscellaneous. 

Cited in Insurance Co. v. Craig, 106 Tenn. 640, 62 S. W. 150, hold- 
ing insurance commissioner empowered by Tenn. act 1895, chap. 



Kote« on TJ, S. Heports. 



liO V, S. 25-ei 



Ml, to reTOke lustiraiiee license when company fails to comply with 
law* e&imot be enjoined from so doing. 

IM U. S. 25-^0. 35 L. 332. HENDERSON t. CARBONDALE, ETC., 
OOK£ CO, 
SyL 2 {XI« 1195). Equity requires clear proof for forfeiture. 
Approred In Foley v. Grand Hotel Co,, 121 Fed. 512, decreeing 
rtgiit of Tendee to complete payment for furniture^ where vendor 
ta concert with lessor Instituted suit for one tying up funds and 
prereoting payment 
^L 3 iXI« 1195>< Demand necessary to forfeiture of lease. 
AtPpTOTed In Lam son Consol Store, etc, Co. v. Bowland, 114 
Fod. 643k holding default Id rent Instalment did not justify lesaor^s 
tfrtry, where no formal demand made on day rent due. 
ifyL 7 fXI, 1105). Presumption that letter reaches destination. 
Approved in Wilson v. Forti, 190 IlL 626, 60 N. E. 879, holding 
aUkfaiTlt that master had sent notices of sale to be posted, uot al- 
liiCiBf properly stamping and posting letters, insufficient evidence to 
fi^port sale. 

%90 U. S. 41-17. 35 U 361. SCOTLAND COUNTY COURT ▼, 
UNITED STATES. 

1 (XI, 1195). Taxation Incident to bond issue. 

>Ted In State v. Mayor, etc.. of Bristol, 109 Tenn. 324, 70 

[W, 1033, holding Tenn. Acts 18S7, chap. 88. giving city power to 

bonds, impliedly authorized tax levy to pay bonds and In^ 

; Oar ▼. New Whatcom. 26 Wash. 890, 67 Pac. 90, holding 

Wftsb. Laws 1889-90, p. 521. authorizing boad issue and 

to p&f same, city levying insuflicieut. not subject to mandamus 

la lerx supplemental tax. 

UH 17. 8. 47-51. Not cited. 

H» 0. 8. 62-55. 35 L, 331, HILL v. CHICAGO, ETC.. R. K CO. 

Bjl t OLU 1196). Dismissal of bill — When anal. 

DlidOfittabed in Menge v. Warrlner. 120 Fed. 818. holding judg- 
mtm ^ dlamlisal as to one of several defendants jointly charged 
4iaa Aot permit writ of error while action pending as to others. 

m U. 8, 55-ei, 35 L, 347, INTERNATIONAL TOOTH CROWN 
CX), ▼• OAYLORD. 
9jl 2 (XI, 1197). Superior workmanship not invention^ 

In National Tooth Crown Co. v. Macdonald, 117 Fed* 
White patent No. 571.102. for mold for metallic tooth 
diiferent material for swaging purposes, anticipated 
I7 Ptft«r patent No, 637,481; Hickory Wheel Co. v. Frazler. 100 
IM. 1(12, holclin^ Elliott patent No. 494.113, substituting pneumatic 

voLra— 7 




140 U. S. 65-97 Notes on U. S. Reports. 68 

tired wheels for higher wheels formerly used on sulkies, void for 
lack of invention. 

140 U. S. 65-70, 35 L. 342, ILLINOIS, ETC., RY. v. WADB. 

(XI, 1197). Miscellaneous. 

Cited in Citizens' Sav., etc., Assn. v. Belleville, etc., R. R. Co., 
117 Fed. 112, holding county issuing void bonds for railway stock 
liable to holder of bonds for stock when former adjudged void. 

140 U. S. 71-76, 35 L. 344, HARPER COUNTY COMRS. v. ROSBL 
Syl. 3 (XI, 1198). Bonds of de facto county valid. 
Approved in Jeff Davis Co. v. National Bank. 22 Tex. Civ. 160, 

54 S. W. 40, holding county liable to bona fide holder of bonds issued 

to build courthouse and jail, erected on change of county seat, 

though change Illegal. 

140 U. S. 7&-91, 35 L. 371, iETNA, ETC., INS. CO. V. WARD. 

Syl. 1 (XI, 1198). Charge substantially as requested unobjec- 
tionable. 

Approved in Salem Iron Co. v. Commonwealth Iron Co., 119 Fed. 
593, holding where correct statement of law in charge as whole Is 
sufficient, points of counsel need not be followed. 

Syl. 2 (XI, 1198). Jury weighs conflicting evidence. 

Approved in Ward v. Brown, 53 W. Va. 257, 44 S. E. 500. holding 
erroneous Instruction that testimony of physicians not testifying as 
experts was more weighty than that of other witnesses. 

Syl. 6 (XI, 1198). Appellate court cannot consider findings. 

Approved in Southern Pac. Co. v. Covey, 109 Fed. 421, refusing 
to review verdict of Jury in railway injury case, based upon con- 
flicting evidence; Myers v. Brown, 102 Fed. 250, holding whether 
verdict against evidence not considered on writ of error to Clrcnit 
Court of Appeals. 

(XI, 1198). Miscellaneous. 

Cited in United States v. Lee Huen, 118 Fed. 457, holding under 
section 3, Chinese exclusion act 1892, May 5th, Chinese arrested 
thereunder must establish right to remain by evidence to satisfy 
reasonable man. 

140 U. S. 91-97, 35 L. 339. IN RE WASHINGTON R. R. 

Syl. 1 (XI, 1199). Interest not allowed unless asked below. 

Approved in The Glenochil, 128 Fed. 9(>9. holding District Court 
without power in following mandate awarding Judgment with costs 
to allow interest also; State v. Dickinson, 63 Nebr. 872, 89 N. W. 
432, vacating District Court order restraining proceeding of suc- 
cessful party under mandate from appellate court, directing Dis- 
trict Court to proceed in certain manner. 



Notes on tJ. S. Hep arts. 



140 U. a 98-117 



Sjt 2 rXt, 1199). Mandamus lies wbere do appeal. 
Apfiroved In Southern Building, ete., Assn. v. Carey, 117 Fed. 
iSSw lioldiDg mandamus proper to correct errors where second appeal 

RftlMNi. 

Dtfttitistiisbed In The Union Steamboat Co., 178 U. S, 319, 44 L. 
5, 20 Sop. Ct, 906, holding mandamus will not lie to enforce de- 
^ of dlTisloQ of damages, where question is left open by mandate 
«r Appellate court; State v. Norris, 61 Nebr. 403, 85 N. W. 43tJ, re- 
Ctiftla^ aumdamus to compel trial court to render judgment for in- 
1)H««I. where finding for IfUgant did not include Interest. 

9fL 3 I XI, 1199). Mandate directing specific Jndgment leaves no 



Apgiroved In White v. Bruce, 100 Fed. 3ij4, holding snretiea In 
writ of €*CTor bound where Circuit Court found against appellant 
aad appellate court affirmed cannot defend against eiiforc€>ment of 
aiaiidate; Baltimore, etc., Aesn. r. Aldersou, U9 Fed. 491, holding, 
«■ otaJldate from appellate court to vaente order ratifying re^ 
eetr«f'a aale. Circuit Court may order money repaid to iuterveulng 
; State v. Omaha Nat. Banii, m Nebr. 235, 82 N. W, HTjO, 
District Court, mistaking or misconstruing mandate, may 
la forced to obey same by mandamus. 

DlatiJafiUshod In dissenting opinion In State v. Omaha Nat. Bank, 
m Nalir. 243, S2 N'ebr. S53, majoHty holding Diitrlct Court, mia- 
taMiic nuiJidate^ may be forced to obey same by mandamus. 

140 U. a 98-lOe, Not cited. 

140 U. 8. lOe-117, 35 L. 358. SCOTT v, NEEL. 

SjL 1 rXI. 1200>. Enforcing State's extended equitable remedies. 

Approved lo United States ShIpbulldiDg Co. v. Conklin. 12(1 Fed. 

SBSi. cAforciBg remedy of New Jersey statute for appointment of 

fveelrer of insolvent corpora ti on at suit of mortgage bondholders 

teTlDi? liens on property; Jones v. Mutual Fidelity Co., 123 Fed, 

flTTp tiofdlng Federal court will enforce equitable remedy of 19 

DeL LJtwa. chap. 181, for receivership collecting debts and admin- 

latcriiig alTaiFa of insolvent corporation. 

tjl 2 (XI, 1200). Jury trial not lost hy merger. 

Appttived in Bearden v. Benner, 120 Fed. <}04, refusing to entcr- 

, tmtn bill for pflrtitlun • ore plaintiff's title disputed and defeiul- 

^Iq posaesslon adversely; SaffOrd v. Ensign ilfg. Co., 12Ci Fe<l. 

iinif Federal court bas no jurisdiction of bill based on con- 

lo oa^ patent device on cars and pay royalty thereon for dis- 

aod accounting; Hudson v. Wood, 110 Fed. 771, 777, hold- 

ff^ lo er^ltor's suit fn Federal court, question of IndebtedneHS 

If dattJed eanool be tried regardless of StJitt^ statutes, dclilor en- 

I dtJffvf fw Joix; In<1lfln nul>l>er Co. v, ConRolidateil Ruhbpr, etc.. To . 

iilT red, 3d5. holding Federal court of equity cannot entextaln bill 




140 U. S. 106-U7 Notes on U. S. Reports. 100 

to recover money for goods sold and delivered under contract 
giving plaintiff right to inspect boolis; Lilienthal v. M'Cormick, 
117 Fed. 08, 99, holding cause of action for damages for breach 
of contract not cognizable in Federal equity suit to foreclose con- 
tract as chattel mortgage; United States Mining Co. v. Lawson, 
115 Fed. 1009, holding Federal court of equity has no jurisdiction of 
bill to quiet title to mining claim not alleging plaintiff In posses- 
sion or both out; American, etc., Ck>. v. Home Water Co., 115 Fed. 
181, holding Federal court of equity, in absence of ground for 
equitable relief to prevent forfeiture, would have no jurisdiction of 
suit for water rentals; M'Gulre v. Pensacola City Co., 105 Fed. 
679, holding proper dismissal of bill to recover realty, showing legal 
title in plaintiff and possession in defendant. 

Distinguished in Jones v. Mutual Fidelity Co., 123 Fed. 522, 
holding Federal court has jurisdiction to apply remedy of 19 Laws 
Del., chap. 181, for appointment of receiver with power to collect 
debts and administer affairs; Southern Pine Co. v. Hall, 105 Fed. 
88, holding Federal court will follow Mississippi statute enlarging 
equitable remedies so as to permit bill to quiet title where defend- 
ant in possession. 

Syl. 5 (XI, 1201). Legal actions not cognizable in equity. 

Approved in Peacock, Hunt & West Co. v. Williams, 110 Fed. 
919, holding Federal equity court has no jurisdiction over suit by 
creditor who6e claim evidenced by notes not reduced to judgment 
to attach property and appoint receiver; Hill v. Northern Pac. Ry. 
Co., 104 Fed. 756, holding written release of railroad company for 
agreed sum paid cannot be impeached in Federal court of law for 
fraudulent representations inducing same. 

Syl. 6 (XI, 1201). State statute permitting joinder not followed. 

Approved in Langtry v. WaUace, 182 U. S. 550, 45 L. 1225. 21 
Sup. Ct. 883, holding fraudulent representations inducing purchase 
of stock no defense to action at law by receiver to enforce statu- 
tory liability. 

Syl. 7 (XI, 1202). Suit to apply property to debt. 

Approved in Crissey v. Morrill, 125 Fed. 880, holding, on motion 
In Federal court for execution against stockholder pursuant to 
judgment at law; stockholders cannot set up equitable set-off against 
corporation; McNulty v. Mt. Morris El. L. Co., 172 N. Y. 415, «5 
N. E. 197, holding where lessee joined in suit to restrain nuisance 
on expiration of lease and vacation of premises, action waa at law 
for damages. 

Distinguished in Jones v. Mutual Fidelity Co., 123 Fed. 618, 621. 
525, 527, 528, holding Federal court will apply remedy of 19 Laws 
Del., chap. 181, for receivership collecting debts and administer- 
ing affairs of insolvent corporation; Andrews v. Mathis, 134 Ala. 
866, 82 So. 741, holding trustee in bankruptcy may maintain suit 



101 



Notes on U. S. Reports. 140 U. S. 118-136 



cqoitx under Alabama Btattite (Code, S 818)* to recover prop- 
trty fraudolently conveyed. 
SyL 8 (XI, 1202). Equity enforcing legal remedy requires 

ApproTed In Strang v* Richmond, etc*. K. B. Co., 101 Fed. 515, 
boddin^ equity cannot entertain jurisdiction of bill alleging de- 
taidajirs breach of contract by preventing plaintiff from con- 
fltmcttn^ railroad. 

Dlrtlngalfihed In Postal Tel. Cable Co. v. Southern Ry. Oo., 122 
160, holding right of Jury trial inapplicable to proceediugs 
State statute for condemnation of land; Citizens' Banlc, etc., 
▼. Union Min., etc, Co.. 106 Fed. 09, holding intervening stock- 
In general creditor's suit against corporation admitting Its 
iTcncy and Indebtedness cannot question jurisdiction. 
Syl 10 (XI, 1203). Equity requires defendant oot of possession. 
Approved In Adoue v. Strahan, 97 Fed. C92, holding plaintiff 
Ml of pottsaBslon cannot maintain blU in equity to cancel tax- 
dMd m» cloud OD tide. 
(XI. 1200). Miscellaneous. 

Cited m H. B. Clafiin Co. v. Furtick, 119 Fed. 432, holding Fed- 
cnl court of equity haa jurisdiction of suit to foreclose chattel 
mottcsge, nlthough State statute allows mortgagee to possess and 

HO U. 8v llS-136, 35 L. 377. BALL v. UNITED STATES. 

8yi 4 (XI. 1203). Accused murderer has right to speak. 

DIatliigiiished in State v. Sally, 41 Or. 370, 70 Pac. 397, hold- 
fa^ not reversible error to omit to ask defendant before sentenc- 
iRg bliu for larceny of steer* if he had anything to say. 

4jt $ <XI, 1204). Judgment rendered on Sunday void. 

Approved tn United States v. M'KnIght, 112 Fed. 987. hold* 
Isg no new trtnl granted because district attorney concluded 
■Clpioi^nt on Saturday and Judge charged jury, oae juror request- 
thg Aelaj on religious grounds; Hersen v. Smith, 138 Cal 2U», 94 
Am. St Hep. 41, 71 Pac. 181. holding Cal. Code Civ. Proc, $ 134, 
fMJddl&g transaction of judicial business oq Sunday, does not pre- 
vnc •enrfce of process on that day. 

SyL S (XI, 1204). Indictment must allege place of death. 

Jlpprt»red in dlascntlng opinion in Roherson v. State, 42 Fla 
^m, 2E8 So* 42S, majority holding sutHcient, und^r llorlda statu tea, 

Uctmeut alleging infliction of mortal wounds In one county of 
irltiioat stating In what county death occurred, 

Syt 11 (XI, 12(H). Indictment must state essentials of offense. 

Ifproved lr» Murphy v, Massacliusetts, 177 U. S. 158. 44 L. 714. 

Sop. €X 040« holding seutence of conviction after reversal of 



140 U. S. 137-177 Notes on U. S. Reports. 102 

former conviction on application of convict because unconstitu- 
tional does not violate the double jeopardy provision. 

140 U. S. 137-142. Not cited. 

140 U. S. 142-150, 35 L. 388, UNITED STATES v. ERVING. 

Syl. 1 (XI, 1204). Circuit Court commissioners follow State 
practice. 

Approved in United States v. Beavers, 125 Fed. 780, holding, 
under N. Y. Code Crim. Proc, § 618, commissioner has no power 
to compel attendance of witness by subpoena served outside county 
without court order; Marvin v. United States, 114 Fed. 227, allow- 
ing commissioner of United States court to recover under Con- 
necticut practice, for subpoenas, warrants and complaints, and 
other papers under State practice. 

Syl. 7 (XI, 1205). Commissioner charges for entering returns. 

Approved in McGourin v. United States; 102 Fed. 557, allowing 
commissioner's fee for filing entry of returns of execution. 

Syl. 9 (XI, 1206). Appropriation bill construed. 

Distinguished In United States v. Puleston, 106 Fed. 295, 297, 
disallowing marshaFs claim for mileage fees where persons ar- 
restiMl not taken before nearest commissioner, according to 21 
Stat 609. 

140 U. S. 151-164. Not cited. 

140 U S. 104-168, 35 L. 396. UNITED STATES v. BARBER. 

Syl. 1 (XI, 1207). Commissioner charges for drawing complaints. 

Approved in Marvin v. United States, 114 Fed. 227, allowing 
commissioner's claim for subpoenas, warrants and complaints agree- 
ably to Connecticut laws. 

Syl. 6 (XI, 1208). Cannot charge for attached depositions sepa- 
rately. 

Approved in Marvin v. United States, 114 Fed. 227, disallowing 
commissioner's claim for mittimus and recognizances. 

140 U. S. 169-177. 35 L. 399. UNITED STATES v. VAN DUZEB. 

Syl. 6 (XI. 1209). Clerk charging for Jury lists and indictments. 

Approved In Marvin v. United States. 114 Fed. 226, disallowing 
claim for copy of indictment furnished accused at his request, not 
under order of court 

Syl. 8 (XI, 1209). Charging for order to pay jurors. 

ApprovcMl in Marvin v. United States, 114 Fed. 228, allowing 
charges for certificates of orders to pay jurors and for depositions; 
United States v. Marsh, 106 Fed. 483, holding clerk should not 
luclude item for affixing seal. 



Notes on U. S. Reports. 140 U. S. 177-213 



110 U. a. 177-183. Not cited. 

MO V. a 184^198» 35 L. 404. ST. PAUL PLOW WORKS v. STAR- 
LING. 

8yL 1 (XI. 1211). Unlimited license endures with patent. 
Approved In American St Car Advertising Co. v. Jones, 122 Fed. 
806L botdln^ where license not limited in duration it continued 
_HllIl reTociitlon of license or deatli of [jatent, and licensee liable 
r9Fs]tles, 
gjrt 7 (XI, 1211), Date of plaintirB Invention as rebuttal. 
Approved in Westingbouse, etc., Co. v. Saranac Lake, etc., Co., 
2)08 Fed- 222. holding where anticipation shown, if date of appiica- 
tloa b« dBte of invention patentee must show prior invention. 

140 a a 199. 200. Not cited, 

110 a a 200-209, 35 l. 409. in re claasen. 

8yL 2 (XI. 1212). Infamous crimes — ImpdaoDment In penl- 
tentiarx. 

Approved In Fitzpatrick v. United States. 178 U. S. 307, 44 K 
108D. 20 Sup. Ct. M5, holding conviction for murder punishable 
with death Is conviction of capital crime, altliough Jurj may affix 
life imprisoumeut; M'KnIght v. United States, 113 Fed. 4'j2, hoid- 
lAf. under Rev* Stat., g 1007, writ of error in conviction for em- 
clement stays execution; Good Shot v. United States, 104 Fq6. 
halding murder of one Indian by another is capital crime 
ble witli death tinder Rev, Stat. § 5339. and not reduced be- 
jury spared penalty. 

SyL 8 (SI, 1213). Supreme Court issuing supersedeas. 

Dlstingulahed In New Engiand R. B, Co. v. Hyde, 101 Fed. 399, 
bokllng ClrciUt Court of Appeals cannot under Uev. Stat, § 710, 
iHow supersedeas where plaintiff in error failed to conform to 
iietiOJ] K>07 by filing writ and bond In sixty days. 

$^h 8 (XI, 1213). Ordinary writ to operate as stiperaedeas. 

Approved In In re McKenzie. laO U. S. 550. 45 L. 6G3, 21 Sup. Ct 
TO^ upholding writ of supersedeas Issued by Circuit Court of 
Afilicfilii to District Court after appeal allowed, and supersedeas find 
papers filed next day; Toroanses v. Meiaiug, 10(i Fed, 
i\g under section 11 of act creating Circuit Court of Ap- 
(«al«, a single judge may grant appeal and supersedeas; Ex parte 
Ifioditj* 132 C:al. 41, 04 Fac. 92, holding writ of eiTor to Federal Su- 
prant Court from conviction for perjury operated as supersedeas. 
tod riiirlff had no authority to deliver defendant to State prison. 

!<• U, 8. 209 213. Not cited. 



140 U. S. 234-273 Notes on U. S. Reports. 106 

140 U. S. 234-239, 35 L. 476. BLOCK v. DARLING. 

Syl. 3 (XI, 1215). General exception to charge not reviewable. 

Approved In South Penn. Oil Co. v. Latshaw, 111 Fed. 599, re- 
fusing to review refusal of Instructions where no evidence given 
from which relevancy of Instructions would appear. 

(XI, 1215). Miscellaneous. 

Cited in Hazard v. Coyle, 22 R. I. 440, 48 Atl. 443, holding admin- 
istrator of trustee who gave notes to secure performance of trust 
entitled to enjoin collection where the property was reconveyed by 
trustees. 

140 U. S. 240-247, 35 L. 489. MULLAN v. UNITED STATES. 

Syl. 4 (XI, 121G). Presidents naval appointment displaces In- 
cumbent. 

Approved in Quackenbush v. United States, 177 U. S. 25, 44 L. 
656, 20 Sup. Ct. 532, holding reinstated officer appointed as of 
certain date, retired as of later date with no pay except from re- 
appointment, cannot recover pay for reappointment 

140 U. S. 247-254, 35 L. 478, WOODARD v. JEWELL. 

Syl. 2 (XI. 1216). Mortgagor selling face from Uen. 

Approved In Weir v. Iron Springs Co., 27 Colo. 388, 61 Pac 620, 
holding stipulation in trust deed allowing mortgagor to sell part 
unincumbered for one-fourth cash and trust deed did not authorize 
sale one-fourth cash and bond for deed. 

Syl. 6 (XI, 1217). Power to sell not Including exchange. 

Approved in Morton v. Morris, 27 Tex. Civ. 267, 66 S. W. 97, hold- 
ing power of attorney to sell on such terms as attorney deems 
meet no authority for sale, price deferred until attachment pro- 
ceedings ended. 

140 U. S. 254-273, 35 L. 464, REYNOLDS V. STOCKTON. 

Syl. 1 (XI, 1217). Judgment rendered without Jurisdiction not 
recognized. 

Approved In Thorman v. Frame, 176 U. S. 356, 44 L. 503, 20 Snp. 
Ct. 448, holding appointment of administrator in Louisiana where 
decedent died and where property situated no adjudication that 
deceased was domiciled there; Clarke v. Clarke, 178 U. S. 195, 44 
L. 1033, 20 Sup. Ct. 876, holding decision of South Carolina conrt 
that will of decedent domiciled there worked equitable conversion 
of property In Connecticut not binding on latter courts. 

Syl. 2 (XI. 1217). Judgment not responsive to complaint — Effect. 

Approved in Stokes v. Foote, 172 N. Y. 342, 65 N; B. 181, hold- 
ing decree in equity suit to enjoin actions at law not conclusive as 
to construction of agreement where such not necessary to decree; 
dissenting opinion in Wells v. American Mortg. Co., 123 Ala. 426^ 



Notes on U* S. Reports. 140 U. S. 254-273 



SB 8ol 305, majority holding under Ala. Code, § 859, providing for 
txecaUoii for balance due after sale on foreclosure, deficiency 
decree may issue without notice; dissenting opinion In BiUer v. 
MenJ^e. Ill Ky. 315, 62 S. W, 776. majority holding lienbolder 
Bode defeDdant in foreclosure suit by another llenholdert but 
nftklng no defense, barred by judgment 

Distinguished in National Foundry, etc.. Works v. Oconto, etc.. 
C4K, 105 Wis. 67, 81 N\ W, 132, upholding decree of afflrmatlve relief 
lA foreciosiue suit where pleaded facts constitute defense without 
pmyer tn answer lor affirmative relief. 

8yL 3 (XI, 1217), Suit to reach specific fund — Extent 
Approved In Shlnney v. North American Sav„ etc., Co., 97 Fed. 
11, holding court of equity has power to appoint receiver for assets 
of foreign corporation within jurisdiction. 

SjL 4 (XI, 1217). No Judgment against receiver after discharge. 
Approved In McGhee v, Willk, 134 Ala. 291, 32 Sa 304, holding 
of receivers and surrender of bond and of assets defense 
suit against receiver as such for wrongful dealh from negll- 
fCfiee of employees. 
SuL 5 iXh 1218). State judgment binds property therein. 
Approved in State Trust Co. v. Kansas City, etc., It it Co,, 115 
F«d. S70. holding Federal court appointing receiver In foreclosure 
•nil hBM jarisdiction of intervention of creditor to determine priority 
0C St«ie judgment as lien; Scruggs v. Scruggs, 1U5 Fed. 31, holding 
itttratrix appointed by Kansas Frobate Court not subject to 
in Missouri court by heir for distributive share of estate; 
▼. North American Savings, etc. Co., 97 Fed. 12, holding 
lodk^BCfit against ancillary receiver does not bind assets beyond 
jurlidSCtion; Johnston v. McKinnon, 129 Ala. 227, 29 So. 697, hold- 
laf Jndgnaent of Florida court against administrator no evidence 
of dcl>t lo attit by same plaintiff against decedent's representative 
Id AHibiitPft: Bank Comrs. v. Association, 70 N. H. 559, 85 Am. St 
Bcpi 018; 49 Atl. 125, holding where foreign State distributes among 
cridllon fond deposited with it by corporations for doing basi- 
lica ttoreln« such creditors can prove balance only in home Btnte; 
r$f\ar w. Gray, 5© N\ J. Eq, 630, 44 Atl. 672, holding directors of 
NfW J^n^ corporation paying compromise Judgment in New York 
•oil liad lien on New York property of con >o rati on In receiver's 
IliKli; Kfmns t. Pease, 21 H. t 180, 42 Atl. 507, sustaining power 
<if t^^ty coon to appoint ancillary receiver for foreign corporotton 
tnd of receiver to sue in own name on chose in action; dissenting 
qrtaloo In Chesapeake & Ohio Ky. v, Swayze. 60 N. J. Eq. 432, 47 
Atl 32. majority holding New Jersey court appointing receiver for 
ttUMportitlon company may restrain Virginia corporation from 
ttHdiiiig ▼esMla under Virginia judgment. 



140 U. S. 273-304 Notes on U. S. Reports. 108 

(XI, 1217). Miscellaneous. 

Cited In St Lawrence Co. t. Holt, 51 W. Va. 364, 41 S. B. 356, 
holding decree dissolving injunction restraining sale on ground 
tliat third parties claimed land finally adjudicates lack of Interest 
in such parties. 

140 U. S. 273-278. Not cited. 

140 U. S. 278-290, 35 L. 505, IN RE WOOD. 

Syl. 1 (XI, 1218). Negro not entitled to mixed Jury. 

^ee notes, 87 Am. St. Rep. 185, 189. 

Syl. 4 (XI, 1219). Habeas corpus cannot obstruct State procedure. 

Approved in Minnesota v. Brundage, 180 U. S. 502, 45 L. 641, 21 
8up. Ct 450, refusing application for habeas corpus to release per- 
m>u imprisoned under judgment of Minneapolis court on ground of 
uucH>uatltutional law, where State remedy unused; Anderson v. 
KlUott, 101 Fed. 613, discharging United States marshal from 
arivtit by State authorities for force used in executing process of 
IjiVileral court, placing litigant in possession. 

8yl. 5 (XI, 1219). Writ of error before habeas corpus. 

Approved in Davis v. Burke, 179 U. S. 402, 45 L. 251, 21 Sup. Ct. 
2U, rof using to Interfere with sentence of Idaho court on ground 
\>t invalidity of statute when question not raised in State court. 

UO U, S. 291-298, 35 L. 510, IN RE JUGIRO. 

Syl. 1 (XI, 1220). Appeal from denial of habeas corpus. 

.\pprovod in Bl.vthe Co. v. Hincliley, 111 Fed. 838, holding ia 
vqulty bill of review must be filed within the six months allowed 
fi»r taking appeal to Circuit Court of Appeals. 

Syi, 2 (XI, 1220). Rev. Stat., § 700, restraining State courts. 

IMstlnguished in In re Strauss, 120 Fed. 332, holding under Rev. 
Stut.. 8 770, allowance of writ of habeas corpus to test validity of 
pivUnilnary commitment of suspected fugitive by magistrate no- 
bar to extradition proceedings. 

Syl. 6 (XI, 1220). No right to jury of own race. 

See notes, 87 Am. St. Rep. 185, 188, 189. 

(XI, 1220). Miscellaneous. 

Cited in Burget v. Robinson, 123 Fed. 265, holding effect of order 
of Circuit Court of Appeals staying mandate after Judgment 
Indetlnltely is to restrain jurisdiction in that court. 

140 U. S. 298-304, 35 L. 481, ROGERS v. DUR^VNT. 

Syl. 2 (XI, 1221). Illinois — Checks as bills of exchange. 

Approved in German Bank v. Beatrice Bank, 63 Nebr. 248, 88 N. 
W. 481, holding local bank check is bill of exchange and formal 
protest for nonpayment proper, hence notary may recover fees. 



lot Notea on U. S. Reports. 140 U, 8. 304-334 

140 U. 8. 304-315, 35 L. 473, HUMPHKEYS v, McKISSACH. 

SjrL 2 <XI» 1221). Stockholder caonot incumber property con- 
iroUed bjr officers. 

ApproTed In Stewart ▼. Pierce. 116 Iowa, 751, 89 N, W. 240, bold- 
bi^ erroneons order of court in winding up corporation for sale of 
IKopertj of another eorporatioD» nil of stock tberelH being held 
by that disaolved; Keitb Co. v. Ogalalla Power, etc. Co,. 64 Nebr. 
37, 80 N. W. 376, holding invalid bond of defendant to secure per- 
formance of contract for constructing Irrigation plant, where town 
cominlasioners had authority only to contract with promoter per- 
Moally; Ba^er v. Bank. 63 Nebr. S05, 93 Am. St Rep. 4S7, 89 N, 
W. 2T0, Uolding bank indorsee of note not barred from recovery, 
tkeetste cashier knew of accommodation nature of note; Aransas 
Pa« Harbor Co. v. Manning. 94 Tex. 502, 63 S. W. 029. holding In 
ali^ence of creditors consent of directors and stockholders suf- 
icknt authorization for transfer of property by president 

SyL 4 (XI, 1221). Appurtenance is incident to principal. 

Approved In Chicago, etc.. R. R. v. McGuire. 31 Ind. App. 114. 65 
X. KL 833^ holdhig mortgage covering after acquired proijerty con- 
aeeted wiUi railway did not attach to land bought and leased to 
barber and grocer to prevent sale under judgment; Lawrence v, 
Qennetsy, 105 Mo, 070, 65 S. W. 719. holding contract to sell gaa 
plant and franchise to run same fulfliled by deed conveying plant 
"wlUi all rightB, privileges aod appurtenances.'* 

SyL 5 (XI, 12221. " Appurtenance " includes property Indlspen- 
Mbit to road. 

Wm 81 Am. St Rep. 7^ note. 
W U. 8, 31^-334, 35 L. 419. LENT v. TILLSON. 

8yt 1 (XI, 1222k Tax law providing hearing due process. 

Ap|»roved In GJidden v. Harrington. 189 U. S. 259. 23 Sup. Ct 576, 

47 L. 801, upholding Massachusetts statute for assessing personal 

property held In trust to trustee requiring assessora to give public 

•oclce before assessing 0aaUy, binding parties; French v. BiLrber 

Ai|»halt Paving Co., 181 U. S. 340, 45 L, 888, 21 Sup. Ot. 631, up- 

Mdlfig apportionment of entire cost of street pavement upon 

ilivttiiis tots according to frontage after publication of notice; 

QiOipbellaTille Lumber Co. v. Hubbert 112 Fed. 721, upholding 

Kf. Act February 27. 1882, providing that tax commissioner shall 

fll» list and give three weeks* published notice thereof; Citizens* 

ittT. BaDk T. Greenburgh. 173 N. Y. 230, 65 N. E. 983, upholding 

Lflwi 1882. chap. 403, providing that County or Supreme Court 

<m petition post notice when application shall be made for 

HtoeCkMi of new road. See 94 Am. St Rep. 622, note, 

%! S iXl, 12221. Legislature sole Judge of property benefited. 

APfirored la Barbi^r Asphalt Pav. Co. v. Freneh, 158 Mo. 554, 58 

i. nr. 9ilt opboldliig assessment for paving street levied against 



L Uw 
P Htoe 



140 U. S. 334-359 Notes on U. S. Reports. 110 

abutting lots according to frontage; King v. Portland, 38 Or. 416, 
63 Pac. 5, upholding Or. Sess. Laws 1898, p. 150, authorizing coun- 
cil to make street Improvements, apportioning one-half cost of 
street to abutting lots. 

Syl. 4 (Xi, 1223). Federal courts follow State construction. 

Approved in Hibben v. Smith, 191 U. S. 325, 24 Sup. Ct 91, 
holding binding on Supreme Court holding of highest State court 
that ownership of abutting property by one of board of assessors 
did not vitiate assessment 

140 U. S. 334r^43, 35 L. 446, ESSEX, ETC., ROAD BOARD T. 
SKINKLE. 

Syl. 1 (XI, 1223). State law discharging assessment yalld. 

Approved in New York, etc., Ins. Co. v. Board of Comrs., 106 
Fed. 137, upholding Rev. Stat. Ohio, § 2834c requiring county Issu- 
ing bonds for purchase of armory site and erection of armory to 
pay same though courts declared bonds void; Flock v. Smith, 65 
N. J. L. 226, 47 Atl. 442. upholding N. J. act March 30, 1886, pro- 
viding additional means for collection of taxes by sale of lands. 

Distinguished in Weston v. Ralston, 48 W. Va. 191, 36 S. B. 455, 
holding there can be no adverse possession against public ease- 
ment in street. 

Syl. 2 (XI, 1223). Public roads board merely governmental 
agency. 

Approved in Steele County v. Brskine, 98 Fed. 219, upholding 
N. Dak. Acts 1895, p. 43, validating contracts for transcribing 
records which were previously ultra vires; Browne v. Turner, 176 
Mass. 15, 5G N. E. 971, holding lease to railway company. Including 
subways which commissioners might construct, not impaired by 
repealing authority to build, and designating new tunnel for the 
lease. 

140 U. S. 344-359. 35 L. 413, MARSH v. NICHOLS. 

Syl. 2 (XI. 1224). State decision not involving patent validity 
nonreviewable. 

Approved in Cely v. Griffin. 113 Fed. 982, holding suit to set 
aside contract for sale of patent involves no Federal question; 
McMullen v. Bowers, 102 Fed. 496, holding suit by licensor of 
patent to forfeit dredge machinery used outside license territory 
and for infringement from such use not Federal in nature; Kurtz 
V. Strauss. 100 Fed. 801, holding bill by patent owner for specific 
performance of contract for manufacture of automatic brake and 
fender and for cancellation of forged assignment of part withiD 
State Jurisdiction. 

Distinguished in Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 
185 U. S. 2S6. 46 L. 913. 22 Sup. Ct. 682, holding suit by licensee 
against patentee and third person setting up title under licensee 



lU 



Notes oa U, S, Kcports. 



140 TJ, 8. 360-40« 



md aUe^iQg infrlDgement arises under patent laws; Atherton Macb. 
Cou t. Atwood'Marrison Co., 102 Fed. 95o, holding suit for Injunc* 
Ckm tnd for damages for Infringement with In Circuit Court jurls- 
dletloit, though al&o involving ownership of patent 

im u. a. 300-370, 35 u 453, the e. a. packer. 

SjL 8 {XI* 1224). Reviewing Circuit CourfB refusal to find facta. 

Afiproved In Rebberg v. Greiser, 24 Mont. 4ti3. 63 Pac. 43, hold- 
tag question whether evidence sufficient to sntjtaln verdict is one 
of law error In which must he set out In specitl cations of error. 

gji 6 iXI, 1225k Court notices only rules or record, 

ApproTed in Smith v. Shakopee. 97 B^ed. 975, holding Admiralty 
Oonits win not judJcially notice lighthouse l)oard regulations. 

DlMiogulshed in Smith v, Shakopee, 103 Fed. 241, holding Ad* 
nunUty Courts wiU take Judicial notice of lighthouse board reguia- 
tSatm nuide on antbority, prescribing number and kinds of lights. 

♦XI, 1224 k Miscellaneous. 

Cited In The Robert W. Parsons* 191 U- S, 32, upholding admiralty 
jurisdiction over suit In rem for repains to Erie canal-boat made 
la home port; Powers v. United States, 119 Fed. 5<j6, reversing Judg- 
ment and ordering new trial where special dndings of court in trial 
w^hoot jury included only probative facts. 

M 0. 8L an-406, 35 L. 42S, HARDIN v. JORDAN. 
$yL 3 iXI, 1225). Meander lines do not limit grant 
Apfiroved in Kean v. Calumet Canal Co., 100 U. S. 45S. 459, 460» 
m, 23 Sup. CL 651. 652, 47 L. 1137. 1138. holding patents of 
t7alfed Simtes to Indiana under act September 28, 1850, ot whole 
af fMcClociml iectlooa enumerated lii govern meet plat conveyed 
portions; Murphy v, Kirwan, 103 Fed. 109, holding 
goTemment has surveyed and sold township of public land 
tionScrtfig on lake, land department cannot sell lands bet wren 
awaiii<trr line and lake; Albany Bridge Co. v. People, VJ7 111. 204, 
m X. E. 352. holding where lield notes of survey of fractional town- 
Mp bordering Mlaslaslppl showed meander tine but goverumeot 
ilaf atiowed river as boundary, latter conerolled; Hanson v. lilce» 
S Wao, 270. 92 N. W. 983. holding w-here meander line is not 
of fractional lota, contiguous owners own land between 
\ And shore as if accretion; McDade v. Bossier Levee Board, lii9 
031, 33 So. 030. holding swamp land grants to Loul^iiiatia, 
--IffiO, iMUsed sections selected in entirety unafifected by sub- 
c^ by lake. 

ashed In McCrath v. Myers. 126 Mich. 215, 85 N. W. 718. 

pttrcJiaae- money roortgnge discharged by vendor's failure 

iftjr good title to vendee, according to provisionR therefor in 

^S9g^: Security Land, etc., Explor. Co, v. Burns, HI Minn, 

m X \\\ 300, 04 Am. St Hep. 6S9, holding w^here fractional 




140 U. S. 371-406 Notes on U. S, Reports. 112 

lots are bounded on government plat by meander line, where no 
lake ever existed there, such line governs; French Live Stock Co. 
V. Springer, 35 Or. 324, 58 Pac. 103, 104, sustaining instxuction 
where plaintiff claimed by reliction lands beyond meander line, 
that line not conclusive of lake, and if no lake to find for defendant; 
dissenting opinion in Kean v. Calumet Canal Co., 190 U. S. 488, 498» 
23 Sup.Ct 663, 667, majority holding Federal patent to Indiana und» 
swamp land act 1850, of "whole of fractional sections" referring 
to government plat, conveyed submerged portions. 

Syl. 4 (XI, 1226). Tide-water grants to high-water mark. 

.Approved in Illinois Cent R. R. v. Chicago, 176 U. S. 660, 44 L. 
627, 20 Sup. Ct 514, holding submerged lands along shore of Lake 
Michigan not included In grant to Illinois Central, of lands, waters 
and material of State; McBaine t. Johnson, 155 Mo. 203, 55 S. W. 
1034, upholding instruction in ejectment by riparian owner to 
recover island claimed as accretion and under patent, predicating 
vight as riparian owner if accretion and patentee otherwise; Hinck- 
ley V. Peary, 22 Utah, 26, 60 Pac. 1013, holding conveyance of land 
bordering lake conveys same subject to gains or losses by accre- 
tion or reliction; Washougal Transp. Co. v. Dalles, etc., MId. Co., 
27 Wash. 497, 68 Pac. 77, holding defendant claiming under Federal 
grant of land bordering river prevails over defendant's claim under 
State grant of shore lands where originally no shore lands. 

Distinguislied In dissenting opinion in Kean v. Calumet Canal 
Co., 190 U. S. 480, 495, 501, 23 Sup. Ct 660, 666, 670, 47 L. 1145, 1151, 
1153, majority holding Federal patent to Indiana under act Septem- 
ber 28, 1850, of whole of fractional sections on government plat, con- 
veyed submerged portions. 

SyL 5 (XI, 1226). State controls tide water and submerged land. 

Approved in Holman v. Hodges, 112 Iowa, 717, 84 N. W. 951, 
holding island arising in navigable river and subsequently Joined 
to riparian land not property of riparian owner. 

Syl. 7 (XI, 1226). Riparian rights governed by local law. 

Approved in Hardin v. Shedd, 190 U. S. 518, 519, 520, 521. 623. 
23 Sup. Ct 685, 686, 47 L. 1157, holding under Illinois law convey- 
ance of upland bordering on nonnavigable lake does not carry 
adjoining submerged land; Mobile Transportation Co. v. Mobile, 
187 U. S. 485. 487. 23 Sup. Ct 173, 47 L. 271, holding Ala. act 
January 31. 1867, granting to city Mobile shore under navigable 
water in city, did not violate riparian owners' rights; Illinois Cent. 
R. R. V. Chicago, 176 U. S. 659, 44 L. 627, 20 Sup. Ct 514. holding 
submerged lands on Lake Michigan shore did not pass under grant 
to Illinois Central; In re Valley. 116 Fed. 984. holding, under Iowa 
law and decisions, deed to lands bordering on nonnavigable stream 
under Federal survey pass land between meander line and high- 
water mark; MobUe Transp. Co. v. Mobile, 128 Ala. 350, SO So. 647, 



in 



X<»te8 oo U. S. Reports 140 U. S. 371-106 



\ 



ftty may yni>tntjiin ejectment for lands gninted hj goTem- 
aerrtent to goTemmeiit rights of naTigation thereover: 
187 XJ, S. 4S5: Carr r. Moore, 119 Iowa, 156» 93 N, W. 
9^ boMIng under Iowa law 11ml tiog title oDder Federal irranta to 
feSgli water, except bjr accretion, Iniundary not extended hj diying 
O «C body of water; Widdecombe t. Chiles, 173 Mo. 206. 73 S. W. 
til7, Wt Asi. St. Bep^ — ^ holding where strip of unpatented land 
titlnlfilTig defendant washed away and rebuilt adding much wore 
llirtlil, iiiatwflfr xtatentlng strip cannot claim defendant's accretion; 
Oe tmamm r, Flaherty, 164 Ho. 372, &1 S. W. 186, holding accretions 
to Bialiiland still belong thereto after creek cuts through them, 
fUmtatfng them from mainland; 5Ioore v. Farmer, 156 Mo. 4S, 79 
AaL StL Rep. 514, 56 S. W. 49a holding under ^lo. act April 
t. 1SB6. conveying river beds to cotmties, county acquired title to 
JaisBd afid accretions thereto superior to riparian owner's claim; 
llcBalBe Y. Johnson^ 155 Mo. 201, 55 S. W. 1033, 1034, holding 
Idaad formed on north side of MIssonil channel by recession of 
flTer becomes property of north riparian owner, wheu patented to 
felM liy county; dissenting opinion in Scranton v, Wheeler, 179 U, S. 
171» 4& L. 143, 21 Sup. CL 63, holding riparian owner not entitled 
to coaipensatlon for land under navigable water on erection thereon 
l^* ftrretament of pier to improve navigation. 

Dlstlitgnlshed In dissenting opinion in Hardin v. Shedd. 190 U. S. 
ao. 521« 23 Sup. Ct. 686, 6S7, majority holding under Illinois law 
of upland do not carry adjoining land helow water land 
noooarlgable lake; French Glenn Stock Co. v. Springer, 185 
C. 8. S2, 46 L, 803, 22 Sup. Ct, 565, holding Federal question pre- 
oasled by contention Ln State court that proper construction of 
gut W WlMu aetit survey would give plaintiff land claimed; dissenting 
flplaS4M» m Kean v. Calumet Canal Co., 190 U. S. 47S, 497, 498, 23 
Sop* Ct- 658. 659. 47 L. 1144, 1152. majority holding Federal patents 
to Isdlana under act September 28, 1850, of whole of fractional 
iBdoded In government plat conveyed submerged portions 



\ 



T eld nd 



I 



tlfi^ ^ <XI. 1227), Center of freshwater stream ts boundary. 

iroved In Cochran v. M,. K. & T. Ry, Co., 94 Mo. App. 473, 68 
'VfT* SII8, holding though grant of land on highway presumed to 
w^meU center, question of intent of grantor of laud on eacu side of 
right of way properly left to jury. 
Dlstiajnilflhed In dissenting opinion in Keon v. Calumet Canal Co., 
la 0« B, 408, 23 Sup. Ct 667, majority holding Federal patent to 
idtaut imder swamp land act 1850, of "whole of fractional see- 
000^ OB government plat carried submerged portions. 
CXI, 1S25). Miscellaneous. 

Cited Id Klrwan v. Murphy, 199 Fed. 355, holding United States 
iiiaol correct surveys and revoke grants made of land platted 
VoLlU— 8 



140 U. S. 406-417 Notes on U. S. Reports. U4 

around lake, where plats showed lake as boundary; Pacific, etc., 
Co. V. Packers* Assn., 138 Cal. 636, 72 Pac. 163, holding right of 
fishery in public waters of ocean is public and cannot become ex- 
clusive by long use. 

140 U. S. 406-117, 35 L. 442. MITOEBLL v. SMALB. 

Syl. 1 (XI, 1228). Single defendant cannot remove inseparable 
suit 

Approved in Marrs v. Felton, 102 Fed. 779, holding suit against 
railroad and receiver for wrongful death, where properly joined in 
State court, not separable as to receiver; Bates v. Carpentier, 98 
Fed. 453, holding suit to quiet title against number of defendants, 
severable as to each, removable. 

Syl. 2 (XI, 1228). Landlord with sole title may remove. 

Approved in Wirginan v. Persons, 126 Fed. 453, holding where 
bill seeks cancellation of deeds of defendant or decree that he hold 
lands in trust, he is sole necessary defendant and may remove suit. 

Distinguished in Chicago, etc., Ry. Co. v. Martin, 178 U. S. 249, 
251, 44 L. 1057, 20 Sup. Ct. 855, 856, holding where joint cause of 
action alleged against railroad and receivers for wrongful death, all 
defendants must Join in removal. 

Syl. 5 (XI, 1229). Rules in Uardm v. Jordan affirmed. 

Approved in Hardin v. Shedd. 190 U. S. 518, 23 Sup. Ct. 685, 47 
L. 1157, holding, under Illinois law, conveyance of land bordering 
a nonnavigable lake does not convey submerged land; Carothers v. 
M'KiuIey Min., etc.. Smelting Co., 122 Fed. 307, holding resilient 
agent of foreign corporation serving notice on plaintiff to vacate 
not proper party defendant in ejectment against corporation to 
prevent removal; Hinckley v. Peay. 22 Utah, 26, 60 Pac. 1013. hold- 
ing conveyance of land bordering a lake conveys grantor*s right to 
lands attached or to attach by accretion or reliction. 

DiHtinguished in French Live Stock Co. v. Springer, 35 Or. 324, 
58 Pac. 103. 104, 105, sustaining instruction where plaintiff claimed 
lands beyond meander line by reliction, that line not conclusive of 
lake, and if no lake, directing for defendant; dissenting opinion in 
Hardin v. Shedd, 190 U. S. 521, 23 Sup. Ct 686. 47 L. 1158, ma- 
jority holding, under Illinois law, conveyance of land bordering a 
nonnavigable lake does not pass sul)nierged land; dissenting opinion 
in Kean v. Calumet Canal Co.. 190 U. S. 476, 23 Sup. CL 658, 47 
L. 1143, majority holding Fe<leral patent to Indiana of swamp lands 
untier act September 28, 185U, conveying ** whole of fractional sec- 
tions,'* referring to plat, passed parts submerged. 

Syl. 6 (XI, 1229). I'ateut referring to plat carries riparian rights. 

Approved in Murphy v. Kirwan, 103 Fed. 108, holding where 
government surveyed and platted township containing navigable 



Notes on U. S. Reporte. 140 U. S. 417-424 
Wut ibowlGg meander line, land department cannot claim line 



I 



\ 



Syl. d (SI, 1229). Lake not meander line fix boundary. 

A^groved in Kean v. Calumet Canal Co., llKl U, S. 458, 459, 23 

■OL CI. 651, 052, 47 L. 1136, holding Federal pateDt to Indiana, 
met September 28, 1850, conveying " wbole of fractional sec 
Included In plat conveyed balance beoeatb navigable water; 
rtCDdl Live Stock Co. v. Springer, 35 Or. 324. 58 Pac. 105, sustaln- 
IHf laistmction to find for defendant If no lake where plaintiff 
fiit«»4 by reliction beyond meander line. 

DMio^ished in Schlosser v, Hemphill, 118 Iowa, 455. 90 N. W. 
S6k bolding where plalntlfiTs lots botiuded by meander line and land 
beyond conveyed to State, no water being along line, such line 
vi» bocmdary; Security Land, etc., Explor, Co. v. Burns, 87 Minn. 
IM. 91 N. W. 30«, 94 Am. St Rep. 681J, holding meander line gov- 
enui finctlonal lots where they appear to abut on water which 
lever existed along Ruch line. 

(Xl^ 1228), Hiscelianeous. 

Cited In KIrwan v. Mui*pby, im Fed. 355. holding United States 
eumot correct survey of land around lake and revoke patents ba^d 
OQ plat, after patentees bad sold to purchasers relying thereon. 

MOD. S. 417-424, 35 L. 501. INOCK TING v, UNITED STATES. 

8yL 1 <X1* 12-D). InbereQtly improbably uncontradicted testl* 
mons not cod trolling. 

Approved In United States v. Lee Huen. 118 Fed. 456, 457, 458, 

ISO. 460, 4«>2. affirming decision of commissioner ordering deporta- 

tioo of Chinese where claim of citizenship not upheld by satlsfae- 

tmj eridence; United States v. Leung Sam, 114 Fed. 703. sustain- 

iag flnding of United States commisslaner that Chinese was not 

falwtliUy to United States; Woey Ho v. United States, 109 Fed. 890, 

aflnuing Judgment remanding woman to China, where all evidence 

la lier fJiifor was from Chinese, some of which w^as of improimble 

namrr; Todolski v. Stone. 1S6 111. 548, 58 N. E. 342, holding suth- 

i evidence of collusion that judgment creditor received judg- 

t iKite In payment of previous note ju»t prior to assignment, and 

tluit rtelttor confessed judgment thereon. 

gjrL 2 iXl, 1230>. ImprulvnbJe testimony warracts denial of 

AplpniYrd In riiit<?d StiiU\s v. Sing Lee, 125 Fed. 62S, affirming 
coomlftsfooer's Dudlng that Chinese apiiellant was unlawfully in 
ClBJfed Jitates, efJdeucc though uncontradicted seeming to warrant 
Aadlof; Coey v. I>arknell, 25 Wash. 525. 65 Pae. 7G2, upholding 
iMrer conrt^s po to cross-exannne as to value of growing 

esv^ii, wltniMijpeii ' '>^ 'l^at plaintiff promised to credit on note 

viloe of iodi growing crops. 



140 U. S. 424-445 Notes on U. S. Reports. 116 

140 U. S. 424-428, 35 L. 503, WAN SEING v. UNITED STATES. 

Syl. 1 (XI, 1230). Exclusion act contemplates deporting laborers. 

Distinguished In United States v. Gue Llm, 176 U. S. 468, 44 L. 
548, 20 Sup. Ct 419, holding wife and minor children of Chinese 
merchant domiciled In United States may enter under act 1884 
without certificate. 

Syl. 2 (XI, 1230). Certificate prerequisite to right to land. 

Approved in LI Sing v. United States, 180 U. S. 489, 45 L. 630, 
21 Sup. Ct 450, holding admission of Chinese by customs officer 
on Chinese consular certificate not final to preclude commission- 
er's examination of question; United States v. Tuck Lee, 120 Fed. 
992, holding Chinese laborer departing without permission of cus- 
toms ofiicer, from undesignated place, and returning through un- 
designated place, liable to deportation regardless of certificate; Mar 
Blng Guey v. United States, 97 Fed. 580, holding under 23 Stat. 
116, 117, requiring Chinese, not laborers, to procure certificate* 
Chinese received without such, subject to deportation. 

140 U. S. 428-435, 35 L. 470, HIGGINS v. KEUFFEL. 

Syl. 1 (XI, 1231). No copyright for mere label. 

Approved in Courier Lith. Co. v. Donaldson Llth. Co., 104 Fed. 
995, holding lithograph prints used solely for advertising not within 
protection of copyright laws. 

Syl. 3 (XI, 1231). Strict compliance with statute for Injunction. 

Approved in Edward Thompson Co. v. American Law Book Co., 
119 Fed. 220, holding in action under Rev. Stat., § 4964, for in- 
fringement of copyright, plaintiff must allege record of title though 
delivery for record prima facie evidence thereof; Mifllln v. Dutton, 
107 Fed. 710, holding insertion of name "Ticknor & Fields" In 
magazine numbers did not satisfy copyright statutes although they 
be agents for Mrs. Stowe, the authoress. 

140 U. S. 435-445, 35 L. 458. GLEESON V. VIRGINIA, ETC., H. R. 
CO. 

Syl. 1 (XI, 1231). Landslide, ordinary rain, not act God. 

Approved in Sanders v. Coleman, 97 Va. 094, 34 S. E. 622, hold- 
ing nonperformance of marriage contract excused by defendant's 
nonculpable contraction of urinary disease requiring abstinence 
from marital relations. 

Syl. 2 (XI, 1231). Railroad must guard against landslides. 

Approved In Railroad v. Kuhn. 107 Tenn. Ill, 112, 113, 128, 64 
S. W. 203, 207, holding showing of broken rail and derailment of 
train establishes prima facie case requiring defendant to show due 
care; Farrington v. Rutland R. R., 72 Vt. 26, 47 Atl. 172. holding 
question whether railroad sued for burning plaintlff*8 buildings used 
reasonable precautions against such injury for Jury. 



ar 



Notes on U. S. Reports. 140 U. S. 445-480 



StL 3 pn, 1231). Injury prima facie proves negligence. 

Approved \n Wliltney v. New Yorlv, etc., R, 11. Co., 102 Feci 852, 
hoJding can1er*s negligence prima facie shown by passenger*a ln< 
jo/y throagh derailment of car; St Loels, etc., R. R. v. Burro vrs. 
fi Kaa. 96» 61 I*ac, 441, holding showing of injury from sudden 
Jtoppinj of train "when plaintiff rose to spit In stove, prima facie 

ibllthet neglSgr^oce, 
ti&goislieci Id Patton v. Texas & P. R. R Co,, 179 U. S. 603. 45 
L 364, 21 Sap. Ct. 2TT, holdiug no presumption of carrier's negll- 
gdkce arises froEn Injury to servant and where engineer cleans en* 
Ctae iHthout waiting for inspection he cannot recover; Bryce v. 
SoQtb«ni Ry. Co., 122 Fed. 713* holding allegation of injury from 
denUiBeiit of train raises no presumption of ncgilgeace against 
IBfiJieer and conductor, to defeat railroad's removal. 

8yL 4 (Xl, 1231). Clerk not risking defects in road. 

DlttlDgnlshed in Baltimore & Ohio, etc, Ry. v, Voigt, 176 U. S. 
dliSb 44 L. 5G0. 20 Sup. Ct 302, holding express messenger not 
puceoger within public policy riile» and precluded by contract from 
ticovedng for Injury. 

110 U. &. 445-453. 35 L. 403, LEWISBURG BANK v. SHEFFBY. 

SyL 1 (XI, 1232). Rehearing application next term too late. 

Approved In In re Ives, 111 Fed. 497, holding Bankruptcy Court 
DO power to vacate Jydgment where application not made In 
lefia when jadgmcnt rendered; Sllngluff v. Gainer, 49 W. Va. 11, 
37 S» E. TT3. holding petition of person of same name as Intended 
fefCBdant filed after final decree too late. 

140 U, 8. 453-480. 35 L. 581, IX RE ROSS. 

%L 3 (XI, 1232). Jury guaranty inapplicable to consular courts. 

Apprtnred In Hawaii t. Manklcht, 190 U. S. 220, 23 Sup. Ot 792, 
17 L. 102i, holding 30 Stat at Large* 750, accepting cession of 
HAwmll, tlld not extend constitutional jury system to island; Downea 
T. BWfreJl, 182 U. S. 2G9. 21*3, 46 L. 1099, 1101, 21 Sup. Ct 780, 789, 
■pHioldlng Foraker act April 12, 190O, imposing duties upon imports 
ftoo Forto Blco. 

Bft 9 fXl, 1233>. Enlisting alien owes temporary allegiance. 

Approved In The European, 120 Fed. 780, holding American cltl- 
mtm §hipp\ng to South Africa with horses, receiving transportation 
tadlt sre pajseogers on return and may recover for Improper food; 
Tto KeMor, 110 Fed. 443, 444, upholding 30 Stat 755, prohibiting 
pgfmym ^it of wages of seamen applying to payment of British 
iB ifcJ t eU OD British ships In American waters. 

BfL 11 (^I, 1233>. Acceptance of pardon is binding. 

Apfirored in In re CondiUonal Dlschar^-e of Convicts, 73 Vt i23, 
SS Atl- 13. holding convict accepting governor's conditional dls- 
dbMt£^ iohject to apprehension on governor's warrant 



140 U. S. 481-665 Notes on U. S. Reports. 118 

(XI, 1232). Miscellaneous. 

Cited In The Budora, 110 Fed. 432, holding 30 Stat 763, prevent- 
ing prepayment of seamen's wages. Inapplicable to suit by crew 
against British vessel to recover wages. 

140 U. S. 481-493, 35 L. 521, CLARK THREAD CO. v. WILLIMAN- 
TIC LINEN CO. 

Syl. 3 (XI, 1233). Prior patent must precede Invention. 

Approved in Bettendorf Patents v. J. R. Little Metal Wheel Co., 
123 Fed. 435, holding testimony that fire occurred twelve years 
before and about a month prior he made invention, insufilcient to 
show anticipation of patent asked twenty-five days before fire; 
Westinghouse Electric, etc., Co. v. Catskill 111., etc., Co., 121 Fed. 
834, holding void for anticipation Tesla patents, Nos. 511,559, 511,500. 
for electrical apparatus, system being described earlier in Italian 
journal; Swain v. Holyoke Mach. Co., Ill Fed. 409, holding insufiS- 
cient to establish that use of patent article two years before appli- 
cation for patent was for experiment pateutee*s sole testimony 
twenty years thereafter. 

Syl. 4 (XI, 1233). Mere mental conception not patentable. 

Approved in American Bell Tel. Co. v. National Tel. Mfg. Co., 109 
Fed. 1035, holding fact that apparatus shown by experiments to be 
adapted for speech transmission insufllcient proof that patentee had 
put to such use, where application disclaims speech transmission. 

Syl. 5 (XI, 1233). Plaintiff must show prior invention. 

Approved in Sacks v. Kupferle, 127 Fed. 570, holding where com- 
plainant shown not to be original inventor fails to prove otherwise. 
Judgment against him in infringement suit against dealer bars suit 
against manufacturer. 

140 U. S. 493-528. Not cited. 

140 U. S. 529-545, 35 L. 550, WILLIAMS v. HEARD. 

Syl. 5 (XI, 1234). Section 5044 embraces all bankrupt's property. 

Approved in Buchanan v. Patterson, 190 U. S. 363, 23 Sup. Ct. 
767, 47 L. 1097, holding appropriation of act March 3, 1899, based 
on report of Court of Claims on claims to administrators represent- 
ing firm and also surviving partner, extended to all parties repre- 
sented; In re Slingluff, 106 Fed. 156, holding endowment Insurance 
policy on bankrupt*s life payable to him on surviving term 
to assignee for creditor. 

140 U. S. 545-565, 35 L. 572, IN RE RAHRER. 
Syl. 1 (XI, 1235). State police power inherent 
Approved in Miffert v. Medical Board, 66 Kan. 720, 72 Fac 

upholding Kan. Laws 1901, chap. 254, creating board medical ex- 



IVi 



Notes on U* S, Reports, 140 U. S. 545-565 



irlUi power to refuse or revoke U cense on gixmnd of 

SyL 2 (XI, 1285). CongresB cannot control subjects in State's 
Pttiren. 

ApproTed In Arkaosaa v. Kansas & T. Coal Co., 1S3 U. S. 189. 
4« U 147. 22 Sup, Ct 49, holding suit in State court to enjoin 
UirMt€oed importation of armed men Into countj where strike 
€^4ted Dot removable to Federal court 

SjL 3 (XI» 1235). Fotirteentb Amendment leaves States police 



I 



Approved in Iowa v. Scblenkeri 112 Iowa» G50, 84 N. W. 700, 
opbolding Iowa Code, § 4989, declaring tine for one seJlIng adul- 
temted milk. 

5jL 4 iXU 1230). Congressional nonregulatlon means subject 
left free. 

Approved in Racine Iron Co. v, McCommoes, 111 Ga, 546, 36 S. E. 
Sra uphold J ng Georgia tax on ti'aveling agents for nonresident 
pfindpaU, making executory contracts for sale of goods, receiving 
tliem In bulk and distributing same; dissenting opinion in Austin v. 
Tennessee, 179 D. S, 374, 45 L. 238, 21 Sup. Ct. 144, majority up- 
holding Tenn. Acts 1S97, chap. 30« prohibiting and punishing im- 
poruiticm or sale of cigarettes or cigarette paper or Bubstitiite. 

DUtinguUhed in Atlantic & Pacific Tei. Co. v. Philatlclphia, 190 

D. S. 1C2, 23 Sup. Ct 818, 47 L. 999, Iioldlng telegraph company 

Oim^ ^ Interstate commerce liable for reasonable license fee 'or 

efifo«T«Qient of local supervision of poles and wires. 

BjL 6 (XL 1236). Liquor subject to police power. 

An^reired In Shoshone Min. Co. v. Huiter, 177 U. S. 538, 44 L. 

20 Sup. Ct 727, holding adverse suit to determine right to 

of mine under Rev. Stat., §| 2325, 2326, mr within Fed- 

Jttrtedlction unless depending on construction of mining laws; 

lt0 T. Hickox, 64 Kan, 638, G51*. 68 Pac. 38, holding unconstitu- 

Klui. L41WS 1885, chap. 149, $ 12, making It a misdemeanor to 

orden for liquor from or for person not authorized to sell 

mime; Bute v. Johnson, 86 Minn. 126. 90 N. W. 162, npholding cou- 

vfctlao under Minn. Laws 1895, chop. 259, for sale of liquor within 

8tttfti t&T shipment and sale in Iowa; State v. Blxman, 162 Mo. 

tt« 62 H. W. 837. upholding Mo, act May 4, 1899, requiring In- 

ipecttan of beer and mult liquors and exacting inspection fee tbere- 

tar; dtewoting opinion In Austin v. Tennessee, 179 U. S. 387, 15 L. 

MS, 21 Sop. CL 149, majority upholding Tenn. Acts 1897, chap. 30, 

iniltilUng and punishing importation, sale, or distribution of 

di^gntttm^ cigarette paper or substitutes therefor. 





140 U. S. 545-565 Notes on U. S. Reports. 120 

Distinguished in United States v. Adams Exp. Co., 119 Fed. 242, 
holding carrier carrying liquor C. O. D. from Illinois to Iowa not 
guilty of selling liquor in Iowa. 

SyL 6 (XI, 1236). State definition of commerce not controlling. 
' Approved in Gibbs y. M'Neeley, 102 Fed. 598, upholding associa- 
tion of shingle manufacturers so far as formed to prevent over- 
production by concerted action, and to establish uniform prices and 
grading; Commonwealth v. Petranich, 183 Mass. 219, 66 N. B. 808, 
holding unconstitutional Mass. Rev. Laws, chap. 100, § 1, prohibit- 
ing sale Qf liquors without license, excepting '* native wines " there- 
from; dissenting opinion in Austin v. Tennessee, 179 U. S. 377, 45 
L. 239, 21 Sup. Ct 145, majority upholding Tenn. Acts 1897, chap. 80, 
prohibiting and punishing importation or distribution of cigarettes, 
paper or substitutes therefor. 

Syl. 7 (XI, 1236). Congress divests articles of commercial 
character. 

Approved in Lottery Case. 188 U. S. 358, 360. 362, 23 Sup. Ct 827, 
328, 329. 47 L. 502. holding carriage of lottery tickets from one 
State into another by express company interstate commerce within 
prohibitory power of Congress; Hanover Nat. Bank v. Moyses, 186 
U. S. 190. 46 L. 1120, 22 Sup. Ct. 861, upholding recognition of local 
law by bankruptcy act July 1, 1898, in matter of exemptions, dower 
and priority of payment. 

Syl. 8 (XI, 1237). Wilson act ratified State prohibitory laws. 

Approved in 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 interstate commerce within prohibitive power 
of Congress; Duluth Brewing, etc., Co. v. Superior, 123 Fed. 358, 
upholding city ordinance requiring all dealers in liquors to obtain 
license from city; Pabst Brewing Co. v. Terre Haute, 98 Fed. 333, 
holding unconstitutional city ordinance imposing license tax upon 
each brewery or agency thereof maintained within the city, being 
tax on commerce; State v. Smiley, 65 Kan. 249, 69 Pac. 202, up- 
holding Kan. Laws 1897. chap. 2G5, prohibiting anti-i*ompetitive 
trade agreements, as applied to grain combinations; State y. 
Bengsch, 170 Mo. 116, 70 S. W. 720, holding under Wilson law, sub- 
jecting liquor to local laws, question of invalidity of Mo. Laws 
1901, licensing manufacture as interference with interstate com- 
merce, cannot arise; Corbin v. McConnell, 71 N. H. 352, 52 AtL 449. 
holding Wilson law did not revive N. H. Pub. Stat, chap. 112, S 19, 
prohibiting soliciting orders for sale of liquor outside of State. 

Distinguished in Herrlott v. Potter, 115 Iowa, 653, 89 N. W. 08, 
holding land of intestate dying after passage of unconstitutional 
inheritance tax, and before curative amendment, not subject to 
such tax. 



121 



Notea on U. S, Reports. 140 XT. 8. 565^HLi34 



14© U. 8, 565-574, 35 L. 517, NORTH A^IERICA INS. CO. W. 
HIBERNIA INS. CO. 

(XI, 1238). Miscellaneous. 

Clied In London, etc., Corp. v. Thompson, 170 N. Y. 90, 62 N. E, 
UM8^ holding reinsurer of rosin in barrels in w&retiouse not liable 
for tots of tkat stored in open yard. 

140 U. S. 5T5-565. 35 L, 513, IN RE WILSON. 

BjL 4 (XI, 123S)* InsnfBcient grand jury no ground for discharge. 

Approved In Day v. Conley, 179 D. S. 680, 45 L. 3S3, 21 Sup. Ct 
917. reamrming rule. See 87 Am. St. Rep. 185, note, 

(XI, 1238). Miscellaneous. 

Cllcd In SliuU ¥. Barton, 58 Nebr. 743, 79 N. W, 732, holding 
stfttote referred to by aubsequent statute not rendered Jnoperative 
l9 rcpeaL 

M U« & 58&-B82, 35 L. 578, IN RE DELGADO. 

Syt S (Xtf 1239). Determtnatton of facta by Jury unnece&sary. 

ASffiroTed In Eidodt v. Territory, 10 N. Mex. 151. 61 Pac 109, 
boldlng governor's appointee as territorial treasurer prima facie 
taUtied to office, and mandamus proper to give possession. 

im V. 8. 592-590, 35 L. 543, KNEELAND t. BASS, ETC., MACH. 
WORKS. 

8yL 2 IXI, 1239). Court directing receiver to pay operating 



Ste S3 Am. St Rep. 75, note. 

Distinguished In Int. Trust Co. v. United States, 27 Colo. 256, eO 
ftc 1125. holding court cannot authorize receiver of coal company 
10 prefer Indebtedness incurred in running business. 

140 C. S. 590-1334, 35 L. 500, UNITED STATES v. DALLES, ETC., 
ROAD CO. 

Syl I (XL 1240J. Dismissing without bearing after pleas sus- 
tfttncd. 

Afpprared In Files v. Brown, 124 Fed. 142, holding where de- 
murer oremiled vendor has right to answer petition to rescind 
ml6 fend cancel order authorizing same; Metcalf v, American School 
^ttmimr* Co., 122 Fed. 117, h aiding facts in plea set down for 
mr^mmmm taken as true. 

DtetUiguLihed In Giberson v. Cook, 124 Fed. 988, holding under 
B«v. Stat*, I 723, Federal court has no Jurisdiction of suit to quiet 
dtW wfi^re defendant in possession. 

•jjL 2 (XL 1240). Laches not pleadable against governmenL 

Aliproved In In re Stoever, 127 Fed. 397, holding bankruptcy act 
proTJding that claim must be proved within one year, not 
II United States; Young v. Chumqulst, 114 Iowa, 122, 86 



140 U. S. 634^66 Notes on U. S. Reports. 122 

N. W. 207, holding plaintiff entering, in 1887, indemnity railway 
lands selected in 1878, but certified by government in 1891, not 
entitled thereto by adverse possession in 1896. 

140 U. S. 634-647, 35 L. 546, MARTIN v. BARBOUR. 

Syl. 3 (XI, 1240). Assessors omitting oath avoid tax deed. 

Approved in Manahan v. Watts, G4 N. J. L. 474, 45 Atl. 816, hold- 
ing freeholder not having talien oath of ofllce prescribed by N. J. 
Pub. I^ws 1894, p. 529, cannot maintain Information to obtain 
possession of office; Eaton v. Bennett, 10 N. Dak. 349, 87 N. W. 189, 
holding failure of assessor to affix affidavit to assessment as pre- 
scribed by section 1551, N. Bak, Laws 1887, vitiates taxes and make 
deed based thereon voidable. 

Syl. 4 (XI, 1240). Statutory tax sale notice strictly required. 

Approved in Alexander v. Gordon, 101 Fed. 96, holding two years* 
possession under tax sale void for failure to record with county 
clerk as required by statute gives no right against prior owner; 
Logan V. Eastern Ark. Land Co., 68 Ark. 250, 57 S. W. 798, hold- 
ing unrecorded tax sale void under Mansfield*8 Ark. Dig., § 5762, 
requinng such recording; Wine v. Woods, 158 Ind. 392, 63 N. E. 
760, holding void under Wis. Acts 1859, chap. 22, § 50, tax deeds 
naming only county as grantee instead of State also as required. 

(XI, 1240;. Miscellaneous. 

Cited in Pitre v. Schlcsliuger, 110 La. 236, 34 So. 426, holding 
State's vendee at tax sale cannot claim prescription of article 233, 
La. Const, whore State continued to tax former owners of land; 
Pitre V. Haas, 110 La. 178, 34 So. 367, holding purchaser at tax 
sale based on fraudulent valuation accepted by State auditor can- 
not invoke La. Const., art 233; Carey v. Cagney, 109 La. 83, 33 So. 
91, holding tax purchaser cannot invoke aid of Statute of Repose, 
where original owner remains in possession. 

140 U. S. 647-654. Not cited. 

140 U. S. 654-665, 35 L. 556, NEW ORLEANS v. LOUISLANA 
CONST. CO. 

Syl. 1 (XI, 1241). Municipality's reversion in leased levee uu- 
attachable. 

Approved in Kerr v. New Orleans, 126 Fed. 924, holding square 
of land in New Orleans held in trust for public purposes cannot be 
seized to satisfy Judgment against city; State ex rel. v. Board of 
Levee Comrs., 109 La. 419, IVS So. 392, holding under article 290, 
La. Const, consent of New Orleans board of commissioners neces- 
sary to build wharves on riparian lands; Asylum v. New Orleans, 
104 La. 401, 29 So. 120, holding city holding batture propo.'*ty on 
river may advance landing line over shoaling bank and may lease 
landing and batture property to private individuals. 

140 U. S. 665, 666. Not cited. 



CXLI UNITED STATES. 



to V. a 1-18, 35 U ^1, IN RE GARNET. 

Syt 1 ^Xll, 7). Limited liability of river vessels valid. 

Al^iirored In In re Old Dominion SS, Co., 115 Fed. 850, hold- 
Ib^ proeeediog by shipowner in District Court for iiaHta:toii ttt 
lltMUtx under Rev. Stat, § 4282» If not previously ad judical ted, 
terminable by court, not jury; People v. Ivn!g:bt, 171 N. Y, 3^,3, 
#1 N. E. 155» bolding cab service witbin State, maintained at 
ttroilmui of Interstate railroad, not exempt from taxation under 
tax lUfT, I lU (Laws 1806, chap. 008). 

8yL 4 (XII, T). Admiralty jurisdiction to highest navigable 



Afifiroved In The Robert W. Parsons, 191 U. S. 35, holding Erie 
cteai coonecting navigable waters, commerce ^thereon being do^ 
and foreign, lien for repairs on canal-boat thereon enforce- 
t only In Admiralty Courts. 



141 V. 8. 18-36, 35 L. 613, PULLMAN'S PALACE CAR CO. v. 
PENNSYLVANIA. 
SyL 2 <XIL 8). Personalty taxable where found. 
Approved In Blackstone v. Miller. 188 U. S. 2i)4. 23 Sup. Ct 278. 
17 L. 444. holding State may tax the transfer, under will of non- 
KsKlcot, of debts due the decedent by Ha citizens; Bristol v, 
WasWn^on County. 177 U. S. 144. 145, 44 L. 7CK5. T07, 20 Sup. Ct 
W^ tioldlng nonresident's Investments are subject to taxation 
LftWfl of the State, where resident agent performs all the 
«» at bis office; Coulter v. Weir. 127 Fed. 008, holding Ky, 
- f 4077 et seq*. Imposing tax on intangible property of 
y not otherwise taxed, not uaconstltutiooal applying to 
lMMVt«le €jx press company; Kuckgaber v, Moore, 104 Fed. 950. 
hUdlng war revenue act 1S98, S 29 iSO Stat 464). not applicable 
!• lit^D^t Of property unless such, In absence of will, were dla- 
trOstttahl^ under intestate laws of some State; Corry v- Baltimore. 
m Md. 322, 53 Atl. 043, holding shares of stock held and owned by 
■Ident of State In Maryland corporation are liable to taxation 
*rtnrxit**« of said State; Swedish, etc, Nat Bank v. First 
X n. 113. 94 N. W. 222. holding place of perfona- 

Mi it or pledge Is State where property Is situated. 

•2i4 Uwa of ilmi t^tate determine Us validity; People T. Knight, 

[1231 





141 U. S. 18^6 Notes on U. S. Reports. 12i 

171 N. Y. 361, 64 N. E. 154, holding cab service within State, main- 
tained at terminus of Interstate railroad, not exempt from taxation 
under tax law, § 184 (Laws 1896, chap. 908). 

Syl. 3 (XII, 8). Interstate personalty taxable by State. 

Approved in Atlantic, etc., Tel. Co. v. Philadelphia, 190 U. S. 
163, 23 Sup. Gt. 818, 47 L. 999, holding telegraph company, though 
engaged in interstate commerce, may be taxed by municipality 
regarding supervision of its poles and wires; Union Refrigerator 
Transit Co. v. Lynch, 177 U. S. 152, 44 L. 710. 20 Sup. Ct 632, hold- 
ing State may tax average number of refrigerator cars used by 
railroad within State owned by foreign corporation with office 
elsewhere; Yost v. Lake Erie Transp. Co., 112 Fed. 747, 748, hold- 
ing interstate or foreign commerce vessels, registered under Fed- 
eral laws, with name of port on stem, under Rev. Stat, § 4178ft 
have situs for taxation at home port; Citizens' St R. R. Go. v. 
Common Council, 125 Mich. 689, 85 N. W. 102, holding processes 
by which assessors arrived at value of street railroad are imma- 
terial, regarding validity, where property is honestly worth assess- 
ment; State V. Cauda Cattle Car Co., 85 Minn. 460, 89 N. W. 67, 
holding chapter 160, Laws 1897, imposing 2 per cent tax upon 
property engaged In interstate commerce, same not being uniform 
rate, violates section 1, article 9, of State Constitution; dissenting 
opinion in Jackson v. Corporation Commission, 130 N. C. 420, 42 
S. E. 135, majority holding assessment of realty of railroad in 
1900 cannot be used in determining valuation of franchise under 
Pub. Laws 1901, chap. 7, § 50, the assessments being different 

Syl. 4 (XII, 9). State taxation proportional railroad mileage 
valid. 

Approved in Allen v. Commonwealth, 98 Va. 84, 34 S. B. 082, 
holding, under act February 14, 1898 (chap. 342, § 8, par. 2), makes 
shares of stock of all corporations, held by residents of State, tax- 
able, same not constituting part of capital. 

Syl. 5 (XII, 10). Property in transit not taxable by State. 

Approved in Eklman v. Martinez, 184 U. S. 582, 46 L. 701, 22 
Sup. Ct. 517, holding American securities passing partly under 
will executed abroad by nonresident alien, and intestate laws of 
Spain, not subject to inheritance tax act June 13, 1898, § 29; Fair- 
bank V. United States, 181 U. S. 30C. 45 L. 872, 21 Sup. Ct 657, 
holding act of Congress June 13, 1898 (30 Stat at Large, 451, 
chap. 448), S G, imposing stamp tax on foreign bills of lading, being 
in effect tax on exports, is unconstitutional; In re Appeal of Union 
Tank Line Co., 204 111. 350, 68 N. E. 505, holding cars of for^gn 
corporation — not railroad — being in transit through Illinois, are 
instruments of interstate commerce, not taxable except in home 
State; Foster, etc., Co. v. Caskey, 66 Kan. 604, 72 Pac. 270, hold- 
ing capital stock of foreign corporation, though doing extensive 



^ot€fl on tJ. S. Reports. 



141 U, a 36-G2 



fo Kansas, not being witliln Juilsdlctloix of Stati.% not 
wl>Jert to taxation tlierein, 

(HI. 8). Miscellaneous* 

ated in Dooley v. Pease, 180 U. S. 129, 45 L. 459, 21 Sup. Ct 
aHi holdhig Federal courts wUl follow law of lOInois wlilch pro- 
Ubltt owner of personalty to sell same and continue In possession, 
fiffeotinf &ttaelimeDt by creditors. 

141 a a 86-3&. Kot cited. 

m U. 8. 40-17. 35 L.. 628, MASSACHUSETTS v. WESTERN 
UNION TEI*, CO. 

Sfll (XII, lO). I*roperty within State thongb Interstate taxaWe. 

Approred Id Atlantic & Psclflc Tel. CJo. v. Pli Nad el phi a, 100 U. S. 
tn, 23 Sspw ct. 81S» 47 L. 999, liolding telegraph company, thoiigrh 
■fiffd la toterstate commerce, mny be taxed t)y municipality, 
nfU^Qf ttxi>erviBion of Its poles and wires. 

9)rl2(XIl, U). State's proportional mileage telegraph tax valid. 

Approved la Western Union Tel. Co, v. Missouri ex rel. Gottlier, 
1» r 8. 424, 23 Sup, Ct 733, 47 L. 1121, holding, though engaged 
ta tnterttate commerce^ State tax on property within State, hased 
MKivtlOiially upon foreign corporation system, is not invalid; State 
I. Wfstero Union Tel. Co., 165 Mo. 519, 520, 523. 52*1, 05 S. W. 
Tn, 778, 780, 781, holding the assessment of telegraph company, 
oimng under laws of another State, cannot exceed actual cost 
Of filQe of Its tangible property; dissenting opinion in Jackson v, 
Ottpofitioa Ck>inmissIon. 130 N. C. 420, 42 8. E. 135, majority 
Iddlag aifteasmenta of realty of railroad in 1000 cannot be usod 
U dvlannliilng valuatJon of franchise under Pub. Laws 1901, chap. 
!• I 60^ tbe aasaftsments being difTerent 

in IL & iT-e2» 35 L. 649, CRUTCH ER v. KENTUCKY, 

iyL 1 (XII, 11). State cannot tax foreign express agent 

A^^OTed In Stoclthard r. Morgan, 1S5 U. S. 34, 46 L. 793, 22 

^up, CL 679, holding State cannot tax resident merchandise brokers 

wte iolSdt ord^- from jobbers within the State, as agents for 

aoofttldtlit flrms, being Invasion constitutional commercial clause. 

Syl. 2 UUI, 11>. State license carrying interstate commerce void. 

kppmred in Lottery Case, 188 U. S. 357, 23 Sup. Ct 325, 47 L. 

^ boldtng carriage of lottery tickets from one State to another 

tf fzprMM company engaged In carrying from State to State Is 

imcniale commerce within congressional power; Caldwell v. North 

187 U. S. 627, 23 Sup, Ct 231, 47 L. 339, holding ordluauce 

Ileenae fee of agent of nonresident portrait company, 

bulk, frames pictures and delivers, is Interference wltli 

commerce and Invalid; Austin v. Tennessee, 179 U. S. 

im 45 U 240, 21 Snp. Ct 140, holding legislative prohibition of 




141 U. S. 47-62 Notes on U. S. Reports. 12C 

sale of cigarettes within police power of State, except in origiuul 
packages, and the malting of discrimination against Imported 
cigarettes; Norfollc, etc., Ry. Co. v. Sims, 191 U. S. 450. holding 
nonresident manufacturing corporation may ship sewing machine 
to customer in another State C. O. D. without being subject to 
license tax of said State; Allen v. Pullman Co., 191 U. S. 182, hold- 
ing State tax of $500 per car upon sleeping-car companies, making 
no distinction between cars used in interstate traffic and those 
wholly within State, void; Reilley v. United States, 106 Fed. 903, 
holding act March 2, 1895. relative to lottery tickets, covers case 
where individual carries slip or ticket from one State to another, 
having to do with lottery; Stone v. State, 117 Ga. 296, 43 S. E. 742, 
holding section GOO. Penal Code 1895, making it a misdemeanor for 
peddler to sell merchandise without license, not operative against 
one engnged in interstate commerce; Commonwealth v. Pearl Laun- 
dry Co., 105 Ky. 26G, 40 S. W. 28, holding citizen of another State 
may come into this State and solicit and receive work to be done 
in that State without paying license tax. See 96 Am. St Rep. 
849, note. 

Syl. 3 (XII, 13). State may tax local not interstate business. 

Approved in Pullman Co. v. Adams, 189 U. S. 422, 23 Sup. Ct. 
4i)5, 47 L. 878, holding Miss. Code 1892, §§ 3317, 3387. Is constitu- 
tional in imposing tax on sleeping-car companies carrying passen- 
gers from one point to another in State; Southern Exp. Co. v. 
Mayor, etc., 116 Fed. 758, holding city ordinance prohibiting Inter- 
state express company transacting any business in city until 
license fee is paid is unconstitutional, being unlawful exaction on 
Intel-state commerce; American Refrigerator T. Co. v. Adams, 28 
Colo. 123, 63 Pac. 412, holding Sess. Laws 1807, chap. 70, merely 
providing mode of assessing taxes, viz., that of mileage charge 
within Slate, was not unconstitutional, though retrospective to 
some extent; Williams v. Fears, 110 Ga. 589, 35 S. E. 700, holding 
imposition of tax upon ** emigrant agent," one engaged In hinng 
laborers in this State, is not regulation of interstate commerce; 
State V. Candtt Cattle Car Co.. 85 Minn. 4()0. 89 N. W. 67, holding 
chapter 160, Laws 1807. imposing 2 per cent tax upon pro]>- 
erty engaged in interstate commerce, same not being uniform rate. 
violates section 1, article 9, of State Constitution; State v. Northern 
Pac. Exp. Co., 27 Mont. 426, 71 Pac. 407, holding express company 
transacting interstate and intrastate business not liable for occu- 
pation tax under Pol. Code, § 4074, same not discriminating be- 
tween local and interstate business; State v. Rocky Mountain Brtl 
Tel. Co., 27 Mont. 404. 71 Pac. 314, holding Pol. Code, $ 4071, 
amended by act Marcli 6, 1807, imposing seventy-five cents license 
on each telephone '* doing business in State," applies solely to 
business within the State; State v. Caldwell, 127 N. C. 525, 37 
S. E. 139, holding city ordinance taxing persons dealing in picture 



"H 



iNotes on U- S. Reports. 



141 U, S. ll2Hi7 



eodiatitutlonal, regarding one receiving In '' knockdown ** 
ikipe* picturea afterward put In frames; Carroll v. New York, etc., 
& IL Co.. 65 N. J. L. 126. 46 AIL 708, bolding section 88 of coi-po^ 
atlHi act« regarding service In personal actions ngninst forelgii 
cifp oci tlop , applies to one only who may reprtHOut corporation* 
QOl fm CQ^iDeer; In re Wilson, 10 N, Mex. 36« 60 Pacv 75, boldiug 
tfiTitcrtal statute imposing license fee for the Belling of coal oil 
»UMn Territory is unconstitutional regiirdlng sales in original 
pieka^ed by importer; People v. Knight, 171 N. Y. 371, 64 N. E. 
!^ holding cab service within State, maintained at terminus of 
tttftrvtate railroad, not exempt from taxation under tax law, 
I ISi (Laws lSi>6, chap. 908), 

ntflttSHsuished In Pullman v, Adams, 78 Miss. 829, 30 So. 758, 
•AtMHafs Code 1892, $ 33S7, imposing tax of $100 on each sleeping- 
car sod Additional tax of twenty-five cents for each mile of travel, 
lifeetB only State business, 

SyL 4 IXII, 13). Injurious commercial articles within police 
power. 

Approved in AtlanUc & Paclflc Tel. Co. \\ Philadelphia, 100 
S, 102, 163, 23 Sup. CL 818, 47 L. 909, holding telegraph com- 
pmy. iboQgb engaged in interstate commerce, may be taxed by 
Bimfrlpailltyp regarding stipervtslon of its poles and wires; Chicago 
^ A. R. R. Co. V. Carilnville, 200 111. 327, 03 Am. St. Rep. 109, 05 
X. K. T34« holding ordinance in accorilanee with legislative author- 
Itjt r**giiltiting speed of trains within city limits, presumed reason- 
Mhim exerelMi* of authority. 

lU U, a 02-67, 35 U 638, VOIGT v. WRIGHT. 

SjL 1 (XII« 14). Laws discriminating different flours invalid. 

Al>l»n>Ted tu Borth w Illinois, 184 U. S. 420, 46 L, 626, 22 Sup, 
, Gl. -i:?7, boldlug prohibitions against options to buy or sell gntlu 
futures — ^UL Crlm. Code, § 130 — does not invade litierty 
ilfnl t?vefy ellizen by U. S. Const,, 14th Ameiidm.; AusHd v. Teii- 
ITU D. S, 378, 45 L. 240, 21 Sup. Ct. 146, holding legislative 
rviUicUofi of sale of cigarettes Is within police power of legls- 
tot ore. e-xeiept as regards original packages, and disorimlnation 
«g»|pst rfgaretlrs Imported from other States; State v. Duckworth. 
^ Idiibo. C4H. m Am. St. Rep. 202, 51 Pac. 457, holding sections 
« uud a ol 8o«iii. l^\Ts, 1S»7, p. 115, making It unlawful to bring 
%lMs9p loio the State without tirst dipping according to act, repug- 
iitiK ta r«^rrnl Constitution; State v, Zopby, 14 S, Dak, 125, S4 
X, W. 308, 8tl Am. St. Rep. 745, holding Sess. Laws 1SI>7, chap. 72, 
itocfflmifiatlRg between tax Imposed on wholesale liquor estab- 
Itoltwuita. parties! without State, and manufacturers within, con- 
flkti with U. J?. Const., art. 1, § 8; dissenting opinion in State v. 
HXBto. \f^ Mr>. 56, 62 S. W. 843, majority holding act May 4, 
I9BV rxacilag lirflpectlon fee on all beer sold In State, largely in 



U 




141 U. S. 67-S7 Notes OD U. S. Reporfa. 12S 

excess of expense thereof, not in contravention of U. S. C«)nst., 
art. 1, S 10. See 78 Am. St Rep. 253, note. 

Distinguished in State v. Bixman, 1C2 Mo. 28, 62 S. W. 834. 
holding act May 4, 1899, exacting inspection fee on all beer sold In 
State, largely in excess of expense thereof, not in contravention of 
U. S. Const., art. 1, { 10. 

141 U. S. 67-«L, 35 L. 622, STEIN v. BIENVILLE WATER 
SUPPLY CO. 

Syl. 2 (XII, 14). Water supplied under exclusive contract. 

Approved in Newburyport Water Co. v. City of Newburyport, 103 
Fed. 589, holding franchise to private corporation, permitting the 
furnishing of water to city, not being exclusive, city may subse- 
queutiy build competing water-works. 

SyL 3 (XII, 14). Interpretation of contract least harmful to 
State. 

Approved in Boise City Artesian Hot, etc.. Cold Water Co. v. 
Boise City, 123 Fed. 235, holding, though city contracted yearly for 
water supply and company expended money for additional equip- 
ment, gives no rights to continuation after contracts expire; Austin 
V. Bartholomew, 107 Fed. 353, holding city, for more than eight 
years acquiescing in the assignment of old to new water company, 
cannot avoid contract on ground of legality of assignment. 

Distinguished in Southwest Missouri Light Co. v. City of JopUn, 
113 Fea. 822, holding ordinance providing for erection of electric- 
light works for municipality, in violation of implied terms of con- 
tract under prior ordinance, is impairment of contract obligation. 

141 U. S. 81-87, 35 L. 654, PARKER v. ORMSBY. 

Syl. 2 (XII, 15). Federal court denies Jurisdiction not appearing. 

Approved in Great Southern, etc., Hotel Co. v. Jones, 177 U. 8. 
454, 44 L. 844, 20 Sup. Ct 692, holding citizenship of individual 
members of limited partnership under Pennsylvania laws must be 
alleged by association in Federal court, Jurisdiction depending upon 
diverse citizenship; In re Poltke, 104 Fed. 967, holding essential 
facts, giving court Jurisdiction of bankruptcy proceedings, must 
appear affirmatively and distinctiy under bankruptcy act 1688, 
S 2, subd. 1; dissenting opinion in Giles v. Harris, 189 U. S. 601, 
23 Sup. Ct 645, 47 L. 918, majority holding absence of avermenti 
in bill Federal Circuit Court showing Jurisdictional amount, not 
available on appeal to Supreme Court, lower court's Jurisdiction 
raised on other grounds. 

Syl. 3 (XII, 15). Payee barred, Circuit Court assignee barred. 

Approved In Portage City Water Co. v. Portage, 102 Fed. 771, 
holding, under section 1, Judiciary act 18.S7-88, it not appearing 
upon record that original parties to promissory note could sue In 
Federal court, subsequent holders could not; Smith v. Packard, 06 



c 




Nates on U. 8. ReporU. 



141 U. S, 87-lld 



Fed. 7ft7, boldlnf attadiment against partnership, one defendant 
t^gikln^ partner's name to fortbcoming bond, latter <!annol deny 
totborlziitlan of signature, having voluntarily received Its benefits. 

rBjL 4 (KH, 16)* Assignee suing payee's citizenship must appear, 
Appfored In Murphy v. Payette Alluvial Gold Co., 98 Fed, 321. 
boldliis removal petition of assignee must show requisite diversity 
«f ctCzensblp between plalntlfTs assignor and defendant^ as well 
as between plalntifif and defendant 

^Ml U. & 87-106, 35 Lw 640, CARPEXTEK V. STRA^'GE. 

BjU 2 CSIU 16). Ignoring Judgment sister State raises Federal 




>vea In Jacobs v, Marks, 182 U. S. 537, 45 L. 1244. 21 Sup. 
S*C7, bolding full faith and credit to another State's Judgment 
denied by admitting evidence that discontinuance was result of 
agreement never complied with. 
SjL 7 (XII, 17). New York Judgment unarolds Tennessee deed. 
Approved in Ingersoll v. Coram, 127 Fed. 433, holding ancillary 
mdtnitiiistrator In one Jurisdiction not in prhity with anotlier of 
Hune estate in another Jurisdiction, hence adjudication for one no 
Wmr to other; Cooper v. Ives, 62 Kan. 399. 63 Pac. 435, bolding 
diTinf of real property governed hy inheritance laws In State 
Imod la situated, hence title to same not determlnai>1e by 
of another State; Con ant v. Irrigation Co., 23 Utah, *loO, 9o 
St. Rep. 723, 66 Pac. 189, holding stream rising In Idaho and 
SovrltiK Into Utah, former State has no Jurisdiction over a diversion 
M tlie water In latter, 

141 U* S. 107-116, 35 L. 635. IN RE MAYFIELD. 
flgrt. 1 (XU,. 17j. Indian Cherokee nation amenable to Its court. 
Apuroved Id In re Blackbird, 109 Fed. 142, holding act :^Ifircli 3* 
SMD (231 Stat. 362, 385, f 9). assumed exclusive Federal Jurlsdlctlan 
ttCftrdlo^ crijnes over tribal Indhins on reservation within a State; 
T. Columbia George, 39 Or. 133, 65 Pac. 606, bolding act 
8, 18S7 (24 Stat 3S8, chap. 119, g 4), making allottees of 
lacid subject to State law, did not give State Jurisdiction 
Vtf ftUotl^e commuting murder on Umatilla reservation. 
DMin^iiisbed In United States v. Miller, 105 Fed. 946, holding 
of wrongful intent In furnishing Intoxicating liquors to 
immaterial statute declaring any person furnishing It to 
teas thmU be punished. 
BjtL 1 ptIJ, 18). Supreme Court may examine exterior facts. 
A||flTOT«d In Ex parte 0*Neal, 125 Fed. 909, holding Federal Dls* 
trtrt Cofirt haTing Jurisdiction to punish relator for assaulting bank- 
iroatee. Irregularities in proceedings not reviewable bj Clr- 
: C6ctrt on habeas corpus, 
Vol. Ill— 9 



141 U. S. 117-132 Notes on U. S. Reports. 130 

141 U. S. 117-121. Not cited. 

141 U. S. 121-126, 35 L. 657, DENNY v. PIRONI. 

Syl. 1 (XII, 18). Residence averment not equivalent citizensbip 
averment. 

Approved in Gale v. Southern Building, etc., Assn., 117 Fed. 733, 
holding bill alleging complainant's residence does not state his 
citizenship, necessary to give Federal court Jurisdiction; Thomas v. 
National Bank, 106 Fed. 438, holding national bank suit in Federal 
court will not lie, declaration failing to show diverse cltizenahip, 
record nowhere supplying omission, act July 12, 1882, { 4. 

Syl. 2 (XII, 18). Pleading omissions uncured by partial remit- 
titur. 

Approved in Jumeau v. Brooks, 109 Fed. 354, holding though 
pleadings do not show requisite diversity of citizenship, action In 
Circuit Court of Appeals not dismissed, requisite Jurisdictional 
facts appearing in bill of exceptions; Zebert v. Hunt, 108 Fed. 450, 
holding under act 1887-88, nonresidence must clearly appear from 
petition or record, but it is sufficient to allege facts from which 
nonresidence follows as legal conclusion. 

141 U. S. 127-132, 35 L. 659, ST. LOUIS, ETC., RY. CO. v. 
McBRIDE. 

Syl. 2 (XII, 18). Circuit Court's Jurisdiction $2,000, clUzenshlp 
diverse. 

Approved in Fosha v. Western Union Tel. Co., 114 Fed. 701, 
holding act March 3, 1887 (24 Stat. 552), corrected by act August 
13, 1888 (25 Stat 433), gives Federal Circuit Court Jurisdiction oT 
controversies between citizens of different States, disputed matter 
exceeding $2,000. 

Syl. 3 (XII, 19). Circuit Jurisdiction where plaintiff resides. 

Approved in Fosha v. Western Union Tel. Co., 114 Fed. 702, hold- 
ing Jurisdiction founded on diversity of citizenship, suit should be 
brought only in residence district of plaintiff or defendant, but de- 
fendant may waive this personal privilege; Piatt v. Massachusetts 
Real Estate Co., 103 Fed. 706, holding requisite diverse citizensBip 
existing, the particular district in which action may be brought is 
matter of personal privilege within election of defendant; Duff v. 
Hildreth, 183 Mass. 441, 67 N. E. 357, holding provision giving Juris- 
diction to the Circuit Court only in the district where one of par- 
ties resides may be waived by defendant. 

Syl. 5 (XII, 19). Demurring to facts waives Jurisdictional 
objection. 

Approved in Foulk v. Gray, 120 Fed. 162, holding suit State 
court of which neither party is resident not removable on diverse 
citizenship under Judiciary act 1887-88, unless both plaintiff and 
defendant waive objection; Lewis v. American Naval Stores Co., 



131 



Notes on U. S. Reports. 141 U. S. 132-1 T4 



119 Fetl- 390, boldiikg Daval coiopauj voluiitaiily sybuittting to 

covrt'a lortedictiou, stockholder or creditor eaimot overrule Its 

actlaiL, not baring been paity to onginol action: In re Miehle, 116 

Fed- 752* boldlng Bankruptcy Court lacks jurisdiction over eontro* 

Termj l>erweeii trustee and banknipt's assignee, regarding latter's 

refti bot fraudulent transfer, and who does not consent to tlie 

J«r&sdl€Ttloa; Memphis Sav. Bank v. Houchens, 115 Fed. 102, hold- 

ftis \»rinz^ng suit In plaintil3"ii or defendant's district maj be 

^-aired by latter by removing to Federal court from State court, of 

wblcli oeither was Inhabitant: Wbltwortb v. IUIdoIs Cent R. R Co., 

lOT Fed. 560, holding defendant appearing In State courts not rcsi- 

liftirr of either party, filing bond and peliUoniug to remove, waives 

kto ris)>t to ^ 8^^ 'o home district; Lowry v* Tile, etc., Assn., 08 

Frd. $23* boldlng defendants by general appearance waive the ob- 

JectlOQ of misjoinder because otlier defendants axe eot inhabitants 

mi th^ district; White v, Rio Grande, etc,, RyM 25 Utah, 357, 71 

Pae. 56T. holding under Const., art. 8, § 5, right of suing in county 

wkusre action arose waiTed by defendant's failure to object to 

jartsdlctiou and demurring at subsequent trial 

BtI* 6 <X1I, 19). Pleading to merits waives jurisdictional 
«l»JccrtloD. 

»ApproTed In Barnes v. Western Union Tel. Co., 120 Fed. 555, 
holdlsiS defendant waives objections to irregular process, by filing 
general demurrer and full answer four days after specially appeflr- 
lOK ftod moving to dismiss; Lowry v. Tile, etc., Assn., OS Fed. 823, 
tooMlng there Is a general appearance by a demurrer which does 
mad alone object to the jurisdiction, but goes to the merits of fhe 
mmi Savings Bank of Danbury v. Downs, 7-1 Conn. W. 49 Atl. 913, 
^oldtltg defendant appearing and answering, irregularity in sign- 
.Qg writ of scire facias by assistant clerk of court was waived. 

T\ S. 132-174. 35 L. 002, BRIGGS v, SPAULDING. 

: t <XII. 20K Director's liability arises from implied trust 

Great Western MIn., etc.. Co. v. Harris, 128 FetL 322. 

:— .:..,-,, neither corporation nor receiver suing in Its name can 

nialtitaia aull to set aside contract between corporation and all its 

oockbolden^ but creditors may; Kemp v. National Bank, etc., 100 

r«(L 54* holding bank officer cannot avail himself of Statute of 

requiring written promise, where his fraudulent statement 

depositor to suffer loss; TJtley v. Hill, 155 Mo. 259, 78 Am. 

9L B«p<. 585w 65 8* W, 1098, holdhig defendants under Rev, Stat- 

i 2709, are estopped to plead ignorance of bank's condition, 

dirvctora who knowing of Insolvency assent to reception of 

; Cllffitldy V. Uhlmann, 170 N. Y. 510, 63 N. E. 550, boldlng 

dipMltofl action against bank directors for fraud In accepting 

Wli«i2 bank was insolvent, prima facie case throws ex- 

[dto on defeo'lnnt. 

DMagtiWi^ ^^ dissenting opinion In Cassldy v. Uhlmnun, ITU 



141 U. S. 132-174 Notes on U. S. Reports. 132 

N. Y. 528, 529, 63 N. E. 560, majority holding depositor's action 
against bank directors for fraud In accepting deposits when bank 
was Insolvent, prima facie case throws explanation on defendant. 

Syl. 2 (XII, 21). Subject determines directors' care. 

Approved in O'Leary v. Abeles, 68 Arlt. 263, 57 S. W. 792, hold- 
ing payee's note paid, drawee bank marking it "paid," charfi^ing 
maker therewith, and sent draft to collecting bank, though draft 
dishonored and paying bank failed; Johnson v. Stoughton Wagon 
Co., 118 Wis. 446, 95 N. W. 397, holding corporation managing offi- 
cer devoting entire business days of nine hours each and half of 
evenings to company's service, has given his full time. 

Syl. 4 (XII, 21). Prudent directors not liable for others. 

Approved In Boyd v. Schneider, 124 Fed. 245, holding under Rev. 
Stat, § 5239 (U. S. Comp. Stat. 1901, p. 3515), receiver may recover 
against directors of Insolvent national bank for negligence for the 
benefit of creditors and stockholders; Great Western, etc., Mfg. Co. 
V. Harris, etc., Ill P^ed. 44, holding State statutes imposing liabili- 
ties upon corporation directors do not exclude common-law lia- 
bility for misfeasance and negligence In the performance of their 
duties; New Haven Trust Co., Recr. v. Doherty, 75 Conn. 559, 54 
Atl. 211, 96 Am. St. Hep. , holding life insurance directors neg- 
ligently loaning funds without adequate security may, on insolvency 
of corporation, be sued by receiver on personal liability. 

Syl. 5 (XII, 21). Directors liable for positive misfeasance. 

Approved in Fisher v. Parr, 92 Md. 270, 271, 278, 294, 290, 48 Atl. 
025, 028, 034, 035, holding corporation, or its receiver, is prop^ 
party to complain against Its directors to account for negligent 
performance of their duties. 

Syl. (XII, 21). Directors must be ordinarily prudent 

Approved in Campbell, Recr. v. Watson, 02 N. J. Eq. 438, 50 Atl. 
137, holding bank directors are not excusable for losses occasioned 
the bank by their failure to comply with its by-laws because of 
Ignorance of their existence; Klllen v. Barnes, 100 Wis. 574, 82 N. 
W. 540, holding If banking corporation officers misrepresent its 
conditions, causing person to lose deposit, they are directly liable 
to depositor only on grounds of deceit 

Syl. 8 (XII, 22). Corporate director's resignation may be oral. 

Approved in Manhattan Co. v. Kaldenberg, 165 N. Y. 10, 68 N. 
E. 793, holding verification, under Laws 1892, chap. 2, { 30, by 
president of corporation alone, sufficient, offices of secretary and 
treasurer being vacant, lack of quorum preventing filling same. 
See 95 Am. St Rep. 579, 580, note. 

Syl. 12 (XII, 22). New director not liable for past management. 

Approved In Great Western, etc., Mfg. Ca v. Harris, etc.. Ill 
Fed. 42, holding in absence of statute permitting, executors cannot 



a 



Notes on U. S. Reporta. 141 U. S. 174"2fl8 



1^ prosecuting for misfeasance of decedent who was corporation 
director, tboagli estate was beaeflutecL 

^Xlh 20). Miscellaneous. 

Cited In ZInn v. Baxter. G5 Ohio St 867, 62 N, E, 331, holding 
former natiooal bauk shareholder, having parted with his stoek, 
oimot matntaln action against directors before bank's dissolution 
^ pfoper Federal proceedings. 

141 U. 8< 174-201, 35 L. 693, McALLISTER v. UNITED STATES. 
SjrL 1 (XU^ 23). Alaska District Court not Federal court 
Approved in Downes v. BIdwelU 182 U, S. 293. 364. 45 L. 1109, 
6, 21 Sup. CL 789, 816i holding Porto Rico by treaty of cession 
territory appurtenant to United States, but not within 
itTenue clause requiring duties, etc., to be uniform; Corbus v, 
Uonhardt, 114 Fed. 12, holding Rev, Stat. U. S.. § 858, providing 
ta actions hy or against executors, etc., neither party shall testify 
against the other " regarding transaction of testator," etc., ioap- 
j>UeabIe to territorial courts; Jackson v. United States. 102 Fed. 
4tl>. hoidJng the impaneling of a grand jury in Alaska is governed 
by tbe atmtutes of Oregon, extended by act of Coagress to that 
ttrrltory. 

J ajL 4 (Xn, 23K Territorial courts not constitutional courts. 

ared In Downes T. Bldwell, 182 U. S. 287, 45 K 1099, 21 
Ct. 779, holding alien people cannot be Incorporated into 
States by treaty-making power by mere cession, without 
CSpra* or implied approval of Congress. 

9fL 8 (X1I» 24). TeiTitorial courts established under Federal 

AptfTored In Shurtleff v. United States, 189 U, S, 310, 23 Sup, 
CL 537, 47 L, 832. holding, under act June 10. ISDO, § 12 (26 Stat, 
at Large, 136, chap. 407, U, S, Comp. Stat 1901, p. 1031), president 
Bifty remove certain officials for *' Inefficiency, neglect of duty or 
aiitfwiMinee In officej" Levin v. United States, 128 Fed. 830, 
under section S, art 1, U. S, Const,, Congress may law- 
' eiB|iower state courts to admit qualified aliens to cltlzensliip, 
Ive of legislative authority from the States creating them. 

C. a 201-205. Not cited. 

la V. S. 206^208. 35 L. 717. GORMAN v. HAVIRD. 

lyL 2 1X31. 24), Jurisdictional amount unrecoverable, plaintiff's 
Ml dlanlaBed. 

Apfirorred In Bedford Quarries Co. v, Welch, 100 Fed. 514. hold- 
la^ l^ai&tiff cannot confer Jurisdiction on Federal court for price 
•f goodM told, by Ignoring in petition a credit due defendant, reduc- 
IBK sinoiilit below $2,000. 



1 




141 U. S. 20J>-234 Notes on U. S. Reports. 134 

(XII, 24). Miscellaneous. 

Cited In Chicago, etc., Ry. Co. v. Weaver, 112 Iowa, 103, 83 N. 
W. 796, bolding District Court not bound to take Jurisdiction of 
appealed case from Justice's court, counterclaim pleaded being 
fictitious to obtain necessary amount 

141 U. S. 20^211. Not cited. 

141 U. S. 212, 35 L. 719, UNITED STATES v. GRIFFITH. 
Syl. 1 (XII, 24). Appellant's moving dismissal grounds not fllable. 

Approved in Greene v. United Shoe Machinery Co., 124 Fed. 965, 
holding appeal from interlocutory decree for injunction and ae- 
couutiug in patent suit. Circuit Court of Appeals cannot remand 
cause without reversing same requiring examination of merits. 

141 U. S. 213-221, 35 L. 705, SCHULTZ v. JORDAN. 
Syl. 1 (XII, 25). Sale not implied by surreptitious transfer. 

Approved in W. L. Wells Co. v. Avon Mills, 118 Fed. 194, hold- 
ing customer purchasing goods of corporation cannot thereafter 
question its legal existence to defeat its right in Federal court, as 
citizen of Mississippi, to recover price. 

Syl. 3 (XII, 25). Properly directed letter mailed reaches destina- 
tion. 

Approved in Pape v. Fergusen, 28 Ind. App. 303, 62 N. E. 714, 
holding substituted complaint, filed in place of lost original, pre- 
sumed true copy thereof, and tal^es its place as of the date of the 
original filing. 

141 U. S. 222-227, 35 L. 715, GREGORY, ETC., MIN. CO. v. STARR. 

Syl. 3 (XII, 25). Appeal being for delay damage given. 

Approved in O'Connell v. Mason, 127 Fed. 437, holding act July 
20, 1892, chap. 209, § 4 (27 Stat. 252, U. S. Comp. Stat. 1901, p. 707). 
permits court to dismiss cause under act if same is frivolous. 

141 U. S. 227-234, 35 L. 702, PACIFIC NAT. BANK v. EATON. 

Syl. 1 (XII, 25). Whole subscription unrecoverable on part 
Increase. 

Approved in Scott v. Deweese, 181 U. S. 215, 45 L. 829, 21 Sup. 
Ct. 5$)0, holding holder of national banls certificates has stoclc- 
holder's liability to creditors under U. S. Rev. Stat, § 5151, though 
act May 1, 188C (24 Stat, at Large, 18, chap. 73), was not complied 
with, regarding increase of capital; Gettysburgh Banlc v. Brown, 05 
Md. 387, 52 Atl. 97G, 93 Am. St Rep. 347, holding where corpo- 
ration was reincorporated at its Inception, the increased capital 
regarded original, and not all being subscribed for, defendant not 
liable on his subscription. 



Notes on U. S. Reports. 141 D. S. 234-239 

SyL S (XII, 28). Corporation certificate evidence of title. 

Approved In Bailey v. Tillingliaat 09 Fed. 810, holding comp- 
trckller's certificate authorizing increase of capital stock of natloaal 
teak conclusive of all facts necessary to authorize Increase In 
inlillc favor and against swbsorlhers; May v. MeQuiUaa* 129 Mlcli. 
m^ 8& N. W. 47, holding memorandum agreement of transfer of 
Hoek certificates for land not absolute agreement to trade* title to 
mack not passing until exchange of papers consummated trade. 

HI U. & 234-239, 35 L. 711, THAYER v. BUTLER. 

SjrL 1 (XII, 20), Subscriber after payment liable as stockholder. 

Apfiroved In Scott v. Deweese, 181 D. S. 210. 45 L. 829, 21 Sup. 
Ct 5W), holding bolder of national bank certificates has stock- 
Miter's Uabllity to creditors under U. S. Rev. Stat.. § 5151, though 
act May 1. 1SS6 (24 Stat, at Large, 18. chap. 73). was not com- 
piled with, regarding increase of capital; Bailey v. Tillinghast, W 
Wtd. SlOl holding comptroller's certificate authorizing Increase of 
Ci|>ltml stock of national bank conclusive of all facts necessary to 
iflHiorlse increase In public favor and against subscribers. 

Ill U. S. 240-244. 35 L. 713. BUTLER v. EATON. 

SyL 2 iXil. 2$). Judgment against bank estops receiver. 

ApfiToved In Montana Mining Co. v. St. Lonia M. Sc M. Co., 1S6 
U. 8. 32, 46 L. 1042, 22 Sup. Gt. 747, holding Judgment of Circuit 
Ooon of Appeals first rendered ceases to be final by operation of 
Mcood judgment, which was itself not final; Wood v. Cabill, 21 
TtaL. ClT. 44. 50 S. W. 1074. holding Judicial notice will be taken 
of tJie records of a case on a former appeal. 

Syl. 3 tXIIt 26). Judgment reversed, judgment thereon reversed. 

Wm 99 Am. 8t Rep. 131. note. 

HI U- a. 244-250. Not cited. 

141 U, S. 250-25{). 35 L. 734. UNION PAC. RY. v. BOTSFORD. 

Syi 1 (XU. 27), Physical examination not compellable at com- 
mcm law. 

AVprored In Stack v. New York, etc., R. R.. 177 Mass. 157, 58 
S. B. «8«, holding, under Pub. Stat. chap. 170, I 43, authorizing 
^tmptetUm of property, plaintiff in personal injury case not com- 
P«QmS to snbmlt to Inspection of his person. 

Dlstlogulabed tn Camden & Suburban Ry. v. Stetson. 177 U. S. 
1T4, 44 L. 722. 20 Sup. Ct 618, holding no power exists at common 
liir p^rmlrting Circuit Court ordering a surgical examination of 
tj»« laatnturr but under U. S. Eev, Stat. | 721. the SUte laws 



1 




J 



141 U. S. 260-295 Notes on U. S. Reports. 136 

Syl. 3 (XII, 27). Ck>urt may order woman examined. 

Approved in Camden & Suburban By. Go. v. Stetson, 177 U. 8. 
177, 44 L. 723, 20 Sup. Gt 619, holding no power exists at common 
law permitting Gircuit Gourt ordering a surgical examination of 
the plaintiff, but under U. S. Rev. Stat, { 721, the State laws 
govern. 

Distinguished in South Bend v. Turner, 156 Ind. 429, 60 N. E. 
275, holding plaintiff, child of nine, injured two years before trial, 
was subject to physical examination at defendant's request, prop- 
erly made, and court erred in refusing; Ottawa v. Gilliland, 63 
Kan. 169, 170, 65 Pac. 253, 254, holding in action for personal 
injury trial court may order injured party to submit unexposed 
portion to private examination, if same is necessary. 

Syl. 5 (XII, 27). Surgical examination not orderable before triaL 

Approved in South Bend v. Turner, 156 Ind. 425, 60 N. B. 274, 
holding plaintiff, child of nine, injured two years before trial, was 
subject to physical examination at defendant's request, properly 
made, and court erred in refusing; Faivre v. Mandercheid, 117 
Iowa, 731, 90 N. W. 79, holding wife's action for damages for sell- 
ing liquor to her husband, admission of photographs showing his 
crippled condition in addition to physical examination, not revers- 
ible error; Packet Co. v. Hobbs, 105 Tenn. 37, 58 S. W. 280, hold- 
lug plaintiff, as witness, may exhibit his injured l^nee to show 
extent of injury, though by false movements he exaggerate its 
condition, credibility only thereby denoted. 

Syl. G (XII, 28). Federal may adopt State's physical examina- 
tion. 

• Approved in Lange v. Union Pac. R. R., 126 Fed^ 340, holding, 
under Rev. Stat, § 054 (U. S. Comp. Stat. 1901, p. COG), the Federal 
courts. In granting amendments of pleadings, are not governed 
by the State laws of practice. 

Distinguished In Smith v. Northern Pac. Ry. Go., 110 Fed. 341, 
342, holding act March 9, 1892 (2 Supp. Rev. Stat U. S., p. 14), 
regarding the taking of depositions, recognizes State law in 2 Ball. 
Anno. Godes & Stat, §§ GOOS-GOIO. 

141 U. S. 2G0-295. 35 L. C78, GRISWOLD v. HAZARD. 

Syl. 1 (XII, 28). Equity will relieve against mutual mistake. 

Approved in Lawrence County Bank v. Arndt, 69 Ark. 416, 421, 
65 S. W. 1055, 1057, holding parol evidence is admissible where 
execution of note was due to mistake of law by makers, represen- 
tations of payee inducing the mistake. 

Syl. 2 (XII, 28). Equity relieves against clear legal misappre- 
hension. 

Approved In Johnson v. Hunter, 127 Fed. 22G, holding decree In 
proceedings for sale of land for nonpayment of levied taxes not 



IJT 



Notes on U. S. Reports. 141 U* S. 296-332 



t 



iniclubte collaterally on ground that complaint did not state 
of action. 



in tr. S, 296^^22. 35 L. 721. POTTER t. COUCH. 
Syt 1 (XII, 29>. Necc^Fsitles of trust deterniloe trustee^s fee, 
Afppfored In Dulin v, Moore, 96 Tex. 139. 70 S. W. 743. holding 

ft being testatrix's Intention to create a testamentary trust wltn 

Ircal title in tmstee* paragraphs relating thereto were not void 

u rfp(t|p»ant to previous devise. 
SyL 4 (Xll, 29). Perpetuities Inapplicable less than twenty-one 

Approved In In re Kopmeler. 113 Wis, 239, SO N. W. 136, hold- 
kif will devising realty In tniat for twenty -one years not unlawful 
within Rev. Stat., § 2039, prohibiting " for longer period 
I tiW> lives in being and twenty-one years." 

lil U. 8. 225-327. Not cited. 



Ill U. & 32T-332, 35 L. 706, McNULTA t. LOCKRIDGB. 

SyU 2 IXII, 30), Receiver liable for predecessors. 

Approvrd In Guarantee Co. v. Ganway, 1(J4 Fed. 374, holding 

iUcrwory trustee of fund takes it in privity with his prede- 

wmtot% subject to suits pending against Lira which affect the 

•duilnlstratlon of the trust; Baltimore, etc., Assn. t, Alderson, 1)9 

F«d. 4&5^ holding appointment of receiver being regular, his vm- 

of proceeds of property makes his sureties liftljlf^ 

hts bill of appointment was subsequently nuUitied; Rob- 

r. Mills, 25 Mont. 401, C5 Pac. 117, holding, under 25 Stat. 

m, I 3, Fe<leral receiver of water company may be sued for fail- 

Iftgp 1« pot street in condition, his predecessor leaving same In that 

thapr. Bee 74 Am, St Bep, 204, 205. 296, 20S, notes. 

8yL 3 (Xn, 30). Federal recetver*8 immunity on court's leave, 

Apfirovwl in Erb v. Morasch, 177 U. S. 585, 44 L. 81)8, 20 Sup. Ct 
ra», holding receiver Is liable to suit in a court other than that 
hj wbleb be was appointed, disregard of official duty injuring 
fMJtr •olOf; Coltrane v. Templeton. 106 Fed. 377, holding the con- 
fMitoiWi* of parties Interested requiring the appolatraent of resi- 
iwt eoTtceirer, cc»urt's dlscretJon In making appointment not sub- 
ject to review on appeal; Louisville, etc., R. Co. v. Tinker's Adnir, 
]m Kfs 499, 40 S. W. 31tJ, holdinjr section 3, act Congren.s Aujrust 13, 
liML pt!nnfrting receivers of Federal courts lo be sued for acts 

■ wIIMb PpeelriTship, without appointing court*B leave, meauH In 

■ eanprff^t court. 

■ Dlillaieiiifilietl In Fnrmers' Loan, etc.« Co. v. Chicago & N. P. R. R, 
H Ctak 118 FM. 205, holding Federal receiver In railroad foreclosure 
H Mil iwt tnable without leave of ai^polntlng court In State court 

I: 



141 U. S. 332-343 Notes on U. S. Reports. 138 

Syl. 6 (XII, 31). Action against receiver only official capacity. 

Approved in American Bonding, etc., Co. v. Baltimore, etc., B. R. 
Co., 124 Fed. 877, holding contract clause, giving receivers right 
to cancel same at their option, did not indicate intention of un- 
assignability, cancellation being in case of sale of property; Fidel- 
ity Ins.. etc., Co. v. Norfolk, etc., R. R. Co., 114 Fed. 393, holding 
cause of tort action against railroad after receiver appointed, Judg- 
ment rendered does not constitute debt of the receivership, giving 
priority over mortgage claims; Central R. R., etc., Bank Co. v. Farm- 
ers', etc., Trust Co., 113 Fed. 413, holding receivers of railroad sys- 
tem must report to and be governed by Circuit Court sitting in 
district of their original appointment, regarding general manage- 
ment; Gableman v. Peoria, etc., Ry. Co., 101 Fed. 3, holding action 
in State court against railroad receiver to recover for personal 
injuries due to negligence not removable solely on ground that 
receiver was Federal appointee; Wolfe v. Pierce, 23 Ind. App. 597, 
55 N. E. 874, holding service of appeal notice, in action against 
Federal railroad receiver, on freight and ticket agent within State, 
was sufficient on receiver who was without State; Powell v. Sher- 
wood, 102 Mo. 615. 63 S. W. 487, holding Laws 1897, p. 96, defin- 
ing liabilities of railroad corporations relative to their employees, 
applies to receivers of railroad corporations likewise; Parker ▼. 
Dupree, 28 Tex. Civ. 343. 67 S. W. 186, holding Rev. Stat., arc 
3017. authorizing action against any person for death due to neg- 
ligence, receiver of private corporation not suable, his negligence 
causing death. See 74 Am. St. Rep. 287, note. 

Distinguished in In re Gutman, 114 Fed. 1011, holding trustee 
being vested with bankrupt's title, property constructively in Bank- 
rupt Court, bankrupt's mortgagee getting possession has not legal 
possession, nor does trustee invade his right. 

141 U. S. 332-343, 35 L. 781, MAGOWAN v. NEW YORK BELTING 
CO. 

Syl. 1 (XII, 31). Patent for vulcanized rubber. 

Approved in Armat Moving Picutre Co. v. American Mutoscope 
Co., 118 Fed. 849, holding Jenkins and Armat patent for picture- 
exhibiting apparatus was not anticipated, and discloses patentable 
invention, and claims 1, 2, 3, 4, 5, 7 and 8 infringed; Haliock v. 
Davison, 107 Fed. 486. holding Haliock patent for weeding machine, 
not being anticipated nor device suggested by anything in prior 
art, was infringed; Krajewski v. Pharr, 105 Fed. 520, holding 
Krajewski patent for machine for breaking and cutting cane 
shows patentable novelty, was not anticipated and is valid. 

Distinguished in Plumb v. New York, etc., R. R. Co., 97 Fed. 
647, holding McKenna patent for air-brake attachment, being device 
of merely mechanical skill, patent is void for lack of novelty io 
view of prior art 



I3i Notes on U. 8. Reports. 141 U. S. 344-384 

SjL 2 <Xn» 31). Markedly new Improvement involves patentable 
JHf^orion. 

Apt^roved In NatiouaJ noUow, etc., Co. v. Interchangeable, etc.» 

Co., 106 Fed. TOSJ, lioldlng new combination of old elements, by 

irhieli a. new and useful result Is produced, may be protected by 

ptteftt as securely as a new macblne. 

Syl. 3 I XII, 31). Patent extensively used probably novel. 

Afifiroved in Peters v. Union Biscuit Co.. 120 Fed. 685. holding 

ttmUooQj aa to existence and use of structure essentially same as 

ptfdit twelve years prior to giving testimony, unsupported by ex- 

ly^t to ^tiibtisb auticlpatlou; Klnloeh TeL Co. v. Western Electric 

Oql. 113 Fed. dtS5, holding patented device having displaced others 

la previous use to perform its runctlou is persuasive evidence that 

Jf bitolreB Invention; Kalamazoo Ry. Supply Co. v. Duff Mfg. Co.* 

US F«d* 2Ci8. holiLing question of Invention beiag fairly open to 

doobt. tlie practical success of the device in displacing similar 

dcTfees In previous use sustains the patent; National Hollow^ etc., 

Co. V, Interchangeable, etc., Co.. lOG Fed. 708. boldlng extensive 

use of machine which is clearly without novelty does not dispense 

vriili that statutory requirement and it will not sustain a patent; 

F«lk Mfg. Co, v. Missouri R. R. Co,, 103 Fed. 302, holding great 

otlUty of patented article can only be considered regarding the 

exercise of inventive faculty when that question is balanced with 

dottlit; dissenting opinion in Tecktonlus v. Scott, 110 Wis. 454, 80 

X* W. 676, majority holding **T" patent infringing *' S," and *'S" 

■riling to **T" reserving right to manufacture ** S " but manu- 

fSCtnres "T" instead* not violation of contract, articles being 

aqulralent. 

fXl]« 31). Ikfiscetlaneous. 

Cited in Consolidated Rubber Tire Co, v. Finley Rubber Tire Co., 
11)0 Fedh 634, holding one obtaining exclusive rights under patent, 
I* ran dorlng Its life, acknowledging its validity In contract of 
Utmmt, cannot afterward contest validity of such patent 

in V, a 344-357, 35 L. 776, GAGE v. BANI. 

Syl 4 iXII, 33). Tax deed title notice must appear. 

ApjifOTed In Harrell v. Enterprise Sav. Bank, 183 111. 547, 56 
N. E, GG, holding notice expiration of time to redeem from tax 
tmW H fn tally defective, falling to show specifically whether sale 
wmt for taxes or special assessments. 

l« a & 358-384. 35 L, 766, UNITED STATES v. MISSOURI, 
nxx RY, CO, 

^ft 4 (XII, 33), Railway legally selected unappropriated In- 
Ovflniltx Ijtndi. 

AppTOTiMl m Clnrk V. Oerington, 186 U. S. 208, 46 L. 1130. 22 
flOPb Ct 873, UoIdiDg even-numbered sections within place limits of 




141 U. S. 384^08 Notes on U. S. Reports. 140 

grant to Union Pacific Railroad by acts July 1, 1862, not open 
to selection by Missouri, Kansas & Texas Railroad as IndemiJly 
lands In satisfaction of grant under act July 26, 1868. 

Syl. 5 (XII, 34). Selection passes title to indemnity land. 

Approved in Clark v. Herlngton, 186 U. S. 209, 46 L. 1130, 22 
Sup. Ct 874, holding land department's approval of railroad's 
selection of indemnity land, same being subject to homestead by 
acts of Congress, did not vest title in company; Oregon, etc., R. R. 
V. United States, 189 U. S. 104, 23 Sup. Ct 616, 47 L. 728, holding, 
under act July 25, 18G6, chap. 242 (14 Stat at Large, 239), requir- 
ing " selection," secretary cannot, upon mere " acceptance " of map 
of definite location, withdraw land from settlement, afiSrmlng 
Oregon & C. R. R. Co. v. United States, 109 Fed. 515, holding title 
to lands within indemnity limits remained in general government 
subject to disposition until performance of all preliminaries, Includ- 
ing secretary's approval of selection, affirming United States v. 
Oregon & C. R. R. Co., 101 Fed. 318, holding, until deficiency in 
primary grant is ascertained, and indemnity lands in lieu thereof 
selected, approved by secretary, title remained in United States, 

Syl. 7 (XII, 34). Under certain circumstances government cancels 
patent 

Approved in United States v. Chicago, etc., Ry. Co., 116 Fed. 1)72, 
holding patent issued to railroad for land to which individual had 
acquired prior right under homestead law. United States obligated 
to maintain suit for cancellation; United States v.. Oregon & C. 
R. R. Co., 101 Fed. 320, holding settlers having acquired prior 
rights to land, United States is obligated to convey same, though 
land department has Issued patents thereof to railroad. 

141 U. S. 384-408, 35 L. 780, FOWLER v. EQUITABLE TRUST 
CO. 

Syl. 5 (XII, 35). Interest excecKllng legal rate usurious. 

Approved In Kinney v. Columbia Sav., etc., Assn., 113 Fed. 3G6,. 
holding attorney's fees provided in trust deed for trustee, defend- 
ant, upon foreclosing trust deed to secure note, not entitled to fees, 
on ground trustee refused to act; Union Mortgage, etc., Co. v. Ha- 
good, 97 Fed. 3G5, holding provision In mortgage for payment of 
attornej^'s fees by mortgagor in case of foreclosure does not ren- 
der notes secured thereby usurious: Payne v. Henderson, 106 
Ky. 138, 50 S. W. 35, holding agents to lend money exacting excess 
Interest retaining excess as commissions, borrowers may recover 
that amount from principal as usury paid, principal having as- 
sented. 

Syl. 8 (XII, 35). Trust deed — Attorney's fee on foreclosure. 

Approved In In re Roche, 101 Fed. 900, holding mortgage agree- 
ment to pay 10 per cent attorney's fees If mortgagee forecloeed^ 




Notes on U. S. Reports. 



1-41 U. S. 40S-429 



moTtgMgot becoming bankrupt saltl fee not allowed In addition to 
fflndiMl and Interest; Turner v. Southern Home Bldg., etc.* Assq., 
101 Fed. 314. holding contract not requiring borrower to surrender 
itock OD foreclosure, same being aslied in answer, permitted by 
bj-lawB, court's Jurisdiction unaJTected. amount being below $2,000; 
Snyder t. Savings Assn., 23 Utah, 301, 04 Pac, 873, holding money 
lontract secured by trust deed upon realty in State wbere con- 
tnrt WHS made governs in its construction, not State where same 
li psymble. 

lil U. S. 40&>410. Not cited. 

141 C. 8. 411>^15. 35 L, 794, FOWLER T, EQUITABLE TRUST 
CO. 

SjL i (XIX, 36). Decree unreversed for unreasonable attorney's 

Ai>proTed In Jacoway v. Hall, 67 Ark. 345, 55 S. W. 14, bolding. 
Oi fettlement of administrator's account, he not entitled to at- 
torney's fees expended by him in resisting proper charges against 



141 U, 8. 415-419. 35 L. 775, HICKMAN v. FORT SCOTT. 

8yL 2 (Xll, 36). Judgment after term beyond court's control. 

Apfiroved to Boiget v. Robinson, 123 Fed. 264, holding rule 29, 
Qfcnit Court of Appeals, re<itiiring rehearing petition, filed wltJiln 
A iDOOtli after Judgment, being for court's protection, waived by 
eonrtt tustice m requiring; Sanford v. White, 108 Fed, 929, holding a 
Hftlted States court has no power over Its proceedings after the 
temi at which such proceedings were had. 

Ill 0, 8. 419^29, 35 L. 800, McCLAIN v. ORTMAYER. 
SfL I (XII, 37). Patentee d esc r thing part presumably abandons 



Apprc^red In Klnloch Tel, Co. v. Western Electric Co., 113 Fed. 
K&, lioldlng patentee having made his claim, he thereby disclaimed 
uid abandoned to the public all other combinations that do not 
iBTiiSe his claims. 
8yL 2 (SII. 37). Explicit claims not alterable by court 
Appfroved In Union Biscuit Co, v. Peters, 125 Fed. 609, holding 
PMcn patent for packing biscuits, crackers, etc., In view of the 
jKlof srt. Is void, lacking patentable novelty; American Sales-Book 
CflL ▼. Cmrter-Crume Co., 125 Fed. 501, holding Beck patent for a 
ttmJfoliltng aales^bookf result accomplislied by prior devices, lacks 
fittBtable novelty and Is void; United States Pig Wood, S., etc.« 
U B, Co, V. Sturtevant, 122 Fed, 479, holding pa tout claim cov- 
' combination of elements without emphasizing the Importance 
of ofl« element over that of others, court not autlioris^.ed to hold 
s^y cJement noDessentlal; Schrelber, etc., Co. v, Adams Co.. 117 



141 U. S. 419-429 Notes on U. S. ReportB. 



142 



Feil. S34, holdJDg laugun^e of patent daim, being clear and unam- 
blgiiouSp courts cannot enlarge U, though it do not cover the actual 
Invention of patentee; Simplex Ry., etc,» Co. v. Wands, 115 Fed, 
521, holding parol evidence Is admissible Id showing state of the 
art to aid the court In construing a patent within limits imposed 
on the claims; Feifer v. Brown & Co., 106 Fed. 940, holding Peifer 
patent for an improvemeaf In metalliirglca] furnaces limited by- 
Its terms, aud not Infringed unless another device falls within 
terms. 

SyL 5 (XI I r 38). Infringement must be within patent claims. 

Approved In Adam v. Folger, 120 Fed. 203* 2(50* holding patent 
for combination not Infringed If any one of the elements Is omitted, 
but change of location will not avoid Infringement; Dayton, etc, 
Co. V. Westinghouse, etc.* Co., 118 Fed. 573. holding Tesla patents 
regarding operation of electric motor disclose Invention In view 
of prior art, and neither was anticipated by third patent by samt? 
Inventor; Hendey Mach. Co. v, Prentiss Tool, etc., Co., 113 Fed. 
5l>4, holding Norton patent for an Improved feed for screw-cutting 
engine lathes held limited to particular combination shown In the 
claims; Stokes Bros. Mfg. Co. v. Heller, 101 Fed. 2G7. holding 
StoUes patents for imiirovemeuts In rasping-cutting machines must 
be limited t<> the specific combinations described, 

Dlgtlngulslied In Meslek v. Moore» 100 Fed. 84CJ, holdlog language 
of spec! ilea tlon showing clearly the part secured as a monopoly, 
nothing can be held to Infringe same which does not fall within 
patentee*B terms. 

Syl. 8 <X1I, 38). No definition criterion of invention. 

Approved in Hanlfen v, Armltage, 117 Fed. 849, holding one 
criterion of Invention is that others have sought and failed, even 
though process w^as regarded simple when discovered; Nationril 
Hollow; etc., Co. v, Interchaiigeable, etc., Co., 106 Fed. TOT, hold* 
ing the extensive use of a machine, clearly without novelty, does 
not dispense with that statutory requirement, and will not sustain 
a patent 

Syl. 9 (XII, 39). Id doubtful cases utility determines Invention, 

Approved In American Sales- Book Co. v. Bullivant, 117 Fed. 259. 
holding evidence of comparative utility* as hetween a device and 
others claimed as anticipations, properly considered, douljt existing 
as to their practical identity; Goodyear Tire, etc., Co. v. Rubber 
Tire, etc., Co., 116 Fed. 3TT, holding novelty of patent being In 
doubt, general use Is evidence of valne, though latter is nothing 
If attributed to other causes; Standard Caster, etc., Co. v. Caster 
Bocket Co.. 113 Fed. im, holding It Is only when the patentability 
of a device is doubtful that Its general use may turn the scale; 
Falk Jlfg. Co. V. Missouri R. R. Co., 103 Fed. 302, holding great 
utility of patented ailicle can only be considered regarding the 




Notes on U. S. Reports. 141 U. S. 42D-468 



cxcfciBe of Inventive faculty, when that qu*^st!on Is balauced with 
4MllC; Lame t. Welds, 99 Fed. 202, holding the commercial success 
Hi m patented article is only one element to be considered wbere 
pAtentabUity Is othen^'lse in doubt 

141 U. 8* 42^-437, 35 L. 804, McLEAN v. CLAPP. 
SjL 1 fXlI, 39). Contract rescission mnst be prooapL 
Approved In Shupplrlo v. Goldberg, 192 U. S. 242, 24 Sup. Ct 
S81« bolding purchaser of realty cannot rasclad because vendor 
flilsrepresented area^ where he performed acts of ownership after 
dtecovering tbe fraud; Ward v. Sherman, 102 U. S. 176, 24 Sup. Ct. 
230K tmidtng delay of three yeara in questioning mortgagee's title 
1^ p r ofic t ty conveyed to him, he having sucee^sfuliy dealt with it 
mm Ills owfi, precludes rescission under deiivery; Wheeler v. M'Nell, 
lOl Fed. 685), holding party having right to rescind contract for 
frmttA mmrt disaffirm Immediately on discovering fraud, by placing 
otter purty In statu quo as nearly as possible. 

SjL 2 txn. 40K Possession of realty equitable notice. 
Approved In Kirkham r. Moore, 30 Ind. App. 5&3. 05 N. E. lOM, 
possession of entire premises by one of several tenants in 
milBcient to put purchaser from go tenant upon Inquiry. 

141 r. a 437-141. Not cited. 

141 U. 8- 441-458, 35 L. 809, CROSBY. ETC., VALVE CO. v. 

C0N8OU DATED. ETC., VALVE CO. 

Syl. 2 «XI1, 40). Entire profit recoverable due lo infringement. 

Approved In Penfield v. Potts, 12G Fed. 480, holding iufrliiglug 

macMne meeting special market because of part infringed* pat> 

efttee entitled to entire sale profits, but for other classes of work, 

•Stirt pvoHts not recoveraijie; Piaget Novelty Co. v. lIoadiey» 123 

Fed. 8B6« holding manufacturer of infringing article is liable for 

net profits ilerhed from its sale, salability depending prl- 

opoD patented feature; Codding ton v. Profpe, 112 Fed. loiH, 

where, but for patented feature, infringing article would 

•Bt be saUihie, patentee is entitled to whole profits of such article; 

Wales f. Walt-rbury Mfg, Co.. IQl Fed. 130, holding infringer Is 

for ♦mire profits made by manufacture and sale of article 

patented device, without which article would have been 



m U. S. 4G»-408, 35 L. 817, MeCREARY v. PENNSYLVANIA 
CANAL CO. 
?ft 1 {XII, 41). Patentee recovers part profits from improve- 



li>tirnrM In LatlJtnore v. Hardsocg Mfg. Co., 121 Fed. 987, hold- 
Is -t'nient of lantern-holder worn on miner's cap entitles 
pbiw^iMrK iijereof to profits arising from its sale as separate article 



141 U. S. 4G8-475 Notes on U. S. Reporta, ^ 144 

from cap; BrlckiU v. Mayor, etc., of City of New York, 112 Fed. 71, 
holding apparatus combining well-known device open to the public 
and the infringing element, patentee is entitled only to profits 
from Infringing element. 
Syl. 4 (XII, 41). Identical or colorable patent with previons TOld, 
Approved in Thomson-Houston Elec. Co. v. Black River Trac- 
tion Co., 124 Fed. 512, holding structure described in patent, being 
complete, composed of several coacting parts, each described, no 
other valid patent Is issuable for one of the parts^ 

141 U. S. 468^75, 35 L. 821, AMERICAN, ETC., TWINB CO T. 
WORTHINGTON. 

Syl. 1 (XII, 41). Name known in commercial sense. 

Approved in Wieland v. Collector, etc., of San Francisco, 104 
Fed. 543, holding small fish packed in oil in quarter tins of size and 
style designated in paragraph 208, tariff act 181>4, labeled *' sardines 
in oil," are duitable as such; In re Wieland, 98 Fed. 103, holding 
spratd put up in oil in tin boxes in accordance with paragraph 20S, 
tariff act 1894, and labeled '* sardines " are dutiable as such. 

Syl. 6 (XII, 42). General term will not include specific. 

Approved in Swan & Finch Co. v. United States, 190 U. S. 146, 
23 Sup. Ct 704, 47 L. 980, holding drawback act of July 24, 1897, 
S 30 (30 Stat at Large, 211, chap. 11, U. S. Comp. Stat. 1901, p. 1991), 
"on exportations,*' inapplicable to goods used on vessel bound for 
foreign port; Commercial Bank v. Sandford, 103 Fed. 100, holding 
sale of lands in South Carolina under tax execution, directed by 
sheriff and approvingly made by deputy, not unlawful though 
deputy's appointment uncon^rmcd by Judge; Southern Ry. Co, v. 
North Carolina Corp. Comm., 97 Fed. 518, holding railroad suit to 
restrain State authorities from collecting tax levied on its property 
on ground of discrimination involves constitutional question, irre- 
spective of citizenship. 

Syl. 7 (XII, 42). Doubtful tariff resolved in importer's favor. 

Approved in Benziger v. United States, 192 U. S. 55, 24 Sup. Ct 
196, holding plaster casts of clay models, though gilded and pro- 
duced in unlimited quantities, are "casts of sculpture," and en- 
titled to free entry; Eidman v. Martinez. 184 U. S. 583, 46 L. 701, 22 
Sup. Ct. 517, holding American securities passing partly under will 
executed abroad by nonresident alien and partly under intestate 
Spanish laws not subject to inheritance tax act June 13, 1898, 
i 29; Detroit Fish Co. v. United States, 125 Fed. 804, holding, under 
paragraph 571, tariff act October 1, 1890, chap. 1244, i 2, free 
list (30 Stat 606), American corporation could import fish free, 
caught in net leased by American to Canadian corporation; Voight 
y. Mihalovitch, 125 Fed. 83, holding imported cherries, in alcohol to 
prevent decay, same used to make cherry Juice, are not dutiable 



Ifi 



Notes on TJ. S. Reports. 141 U. S. 475-^9 



- MM ftnits pnBerred la spirits/* nor as " clierry juice;'' O, G. 
Hempstesd* etc.. Son v, Thomas. 122 Fed. 530, holding construe* 
tioD of classification of an imiiort which would as well place It on 
tfe« free HsL course farorinff Importer must he adopted; United 
States T. Nordlinger. 121 Fed, 01*2, holding evidence as to trade 
vaemnins of term used In tariff act iuadmisBlhle unless meaning 
differs from ordinary dictionary or meaning In common speech; 
UEUted States r. MuUins, 119 Fed. 33G. holding officer's fsiling to 
collect tax on spirits when same were removed from warehoiise 
precluding government recovering on distiller's bond» if It were 
chargeable; Klump v. Thomas, lOS Fed. 7f«9, boldhig flax 
isoattlsting of hanks of two strands twisted together not dutiable 
vmder paragraph 347, tariff act 1897, as " thread • • ♦ made 
trom jrara • • ♦ composed of flax;" Hart v. Smith, 159 Ind. 
tB(K ^ N. £. 664, holding Invalid part of Increase in an assesBinent 
aot determinable and separable from valid part, entire increase In 

141 U. S. 475-179, 35 L. 824. LEADVILLE COAL CO. v. Sic- 
CREEBY. 

8yL 2 pen, 43y. Clicuit Court's adjudication unaffected Staters 
dedsMML 

Appco^^ In Mutual Reserve, etc.f Assn. t* Phelps, 190 U. S. lo9, 
S Sitgi. Ct. 710, 47 L. 995, holding Federal court cannot enjoin pro- 
CMdios* In State court sought to be reoiovedi same being merely 
^oatixiiiailon of action therein, and aldlDg execution of judgment. 

MI U, 8w 4T9-491. 35 U S26, DAVIS v. PATRICK, 
8y1* 2 <XII, 43), Statute of Frauds inapplicable to promisor's 



A|iprored In Choate v. Hoogatraat, 105 Fed. 720, holding defend- 
aats letrer to plaintiff agreeing to stand sponsor for lumber fur- 
flislHd third party by plaintiff sufficient consideration to take it 
aol Statute of Frauds in Wisconsin. 

l« V. 8, 491-509, 35 L. 830. KNEELANB ▼. LUCE, 
9jt 3 IXII, 441. Receiver's certificates must be redeemed, 
Anproved In Farmers' Loan, etc., Co. v, Stuttgart, etc., R. R., 108 
fW- 568^ holding certificates for debts contracted by receiver in- 
ctadfd It *^ costs of suit" payable second fn order, trustee fore- 
dmkig milroad mortgage. See 83 Am. St. Rep. 75| note. 
flgrt i <XII, 44), Receiver's certificates binding trustee bind 



AfUffored In Atlantic Trust Co. v. Dana, 128 Fed. 225, holding 
receiver ordered to defend suit to establish lien against 
, decree for mortgagee binds receiver and all parties 
by tilm. 
Votni--10 



141 U. S. 510-520 Notes on U. S. Reports. 146 

141 U. S. 510-520, 35 L. 837, SEITZ v. BREWER'S, ETC.. MA- 
CHINE CO. 

Syl. 1 (XII, 44). Collateral parol agreement must be distinct 

Approved in Sun Printing, etc., Assn. v. Edwards, 113 Fed. 447, 
Lolding plaintiff introducing evidence of conversations and negotia- 
tions between the parties prior to the letter contract, evidence of 
such is admissible on behalf of defendant; McCormicli v. Yoeman, 
26 Ind. App. 418, 59 N. E. 1070, holding machine sold on written 
warranty and paid for by note, verdict for maker contrary to the 
evidence, no evidence being offered showing breach of warranty; 
Worland v. Surest, 106 Ky. 715, 51 S. W. 446, holding contract in 
writing, no fraud, buyer cannot abate the price on account of 
breach of verbal representations at time of sale, article having less 
value; Armington v. Stelle, 27 Mont. 20, G9 Pac. 117, holding absence 
of fraud, etc., contemporaneous agreement between parties to writ- 
ten sublease of mine, regarding extension in event of buying, was 
inadmissible; Stowell v. Greenwich Ins. Co., 163 N. Y. 306, 57 N. E. 
482, h(^ding stipulations contradicting the written contract, and not 
constituting an independent collateral contract, parol evidence in- 
udmissible regarding details of agency. 

Syl. 2 (XII, 45). Writing implying completeness, whole agree- 
ment presumed. 

Approved in The Barnstable, 181 U. S. 472, 45 L. 959, 21 Sup. Ct. 
687, holding liability caused by negligence of vessel's crew, ap- 
pointed and paid by charterers, not imposed upon owners by clause 
charter party requiring owners **pay insurance on vessel;" Union 
Selling Co. v. Jones, 128 Fed. 075, holding contract reduced to writ- 
ing and Imports completeness on its face, it will be presumed that 
parties have included every material item and term; Matthias v. 
Beeche, 111 Fed. Ii41, holding shipowner's representations prior to 
charter respecting vessel's speed, same not embodied in charter, are 
suporse<led by instrument in absence of fraud or mutual mistake; 
Montgomery v. JEUui Life Ins. Co., 97 Fed. 917, holding w^ritten 
contract of employment between general agent and life insurance 
jonipany, being full and unambiguous, parol evidence inadmissible 
to incorporate collateral guaranty; Thompson Foundry, etc., Co. v. 
Glass. 136 Ala. 0.*»4, :53 So. 812, holding parol evidence is inadmis- 
sible to prove that the lessor agreed to ma ice repairs, as such agree- 
ment was merged in the lease; Bullard v. Brewer, 118 Ga. 920, 45 
S. E. 711, holding contract of parties reduced to writing having the 
appearance of comph'toness, parol evidence to alter inadmissible, 
in absence of fraud, accident or mistake. 

Syl. 4 (XII, 45). Written contract silent, parol evidence inad- 
missible. 

Approved in Morris v. Chesapeake & O. SS. Co., 125 Fed. 67, 
holding where steamship contract for carriage of cattle makes no 



14T 



Notea on U» S. Reports. 



141 IJ. S. 520-530 



ilstlocticNi between several vessels named, parol evidence cantiot 

eieept one from sucb warranty; Hawley Furuace Co, v. Xloopcr, DO 

Mdu 39T, 45 AtL 45S, boldlng contract lo put In furnace giiarantee- 

lac eertaJii saving in coat of fuel, but silent as to manner of ascer- 

tminlng, cK>ntemporaneuue verbal understand lug luadmlssible. 

SyL 5 *X1I, 45). Manufacturer selling definite article no warranty. 

Approved in Dodge v. Dicltson Mfg* Co,, 113 Fed. 222, holding 

vendee ordering article of manufacturer for particular purpose, hav- 

ta^ opportunity to inspect during tlie manufacture, uo implied 

warranty against latent defects; Frederick Mfg. Co. v. Devlin. 127 

Fed- 15, holding bicycle manufacturers agreeing to furnish stem 

easUiig a« per sample of certain steel, were not iKiund to a 

aelec*tioti within their opinion; Provldeuee Macb< Co. \\ Laurens 

liUls, 98 Fed, 19U, holding machinery furnished under writ- 

ctMitnct defendant alleging it unfit, but not denying conforma- 

lo contract, and claiming damage for defects, parol evidence 

aduUssible in explanation; Fairbanks, etc., Co* v. Baskett, 98 Mo. 

Ap^ 10, 71 S. W. 1118, holding seller delivering gasoline engine of 

^tnd and character agreed on, there was no Implied warranty that 

If would meet purchaser's use, 

§f I, (XII, 46). Representation not written no warranty. 

Approred in Providence Mach. Co. v« Laurens Cotton Mills, DS 

r«d. 7SMK holding machinery manufactured for a particular use 

Mn^ lit, proper and efficacious, buyer's disappointment In secur- 

htf Paired results no grounds for action. 

Al V, S. 520-52T. Not cited. 

m U. a &2S-^3&, 33 L. &43, CROSS v. ALLEN. 

j^rL 5 ^XIl, 40|. Principal's payment interest keeps note alive. 

f«« 9G Am. St Rep. 671, note. 

I^ft 7 iKU, 47». No laches, obligations not barred. 

Approved in George v. Butler, 2tJ Wash. 4C5, 90 Am. St. Rep. TG2, 
67 I^c l*»>i, holding several notes secured by a mortgage, each Ea 
(ModstJoii for separate action, and limitations wUl run against 
tknm trmt doe, though others not barred. 

SIfL 10 l^ll, -ITI. Bupreme presumes State conrt*B decision 



Approved in Manhattan Life Ins. Co. v. Alhro, 127 Fed. 2S5, 
rllltofit regard to Ita correctness, construction of State 
bjr State Huj»rcme Court binds Federal court sitting therein 
H fasgsl •eltoli* of name charncter; Southern Uy. Co. v. North Caro- 
tHi, ete, Comm., DS Fed. 1(15. holding decision of highest State 
fOOft eonstruifig 8tate stntuie. will i^e recognised as authoritative 
^m nd«roi coart^ except where prior rights are affected. 



141 U. S. e^l^-582 Notes on U. 8. Reports. 148 

141 U. S. 63W)42, 35 L. 849, ADAMS v. BELLAIRB STAMPING 
CO. 

SyL 1 (XII, 47). Aggregation of old devices not patent 
Approved in Rodiger v. Davids Mfg. Co., 126 Fed. 964, 965, hoIQ- 
ing Rodiger patent for mucilage-holder, merely combination of old 
elements, effect producing nothing novel, lacks patentable inven- 
tion; J. L. Mott Iron Works v. Hoffman, etc., Mfg. Co., 110 Fed. 
775, holding Hammann patent for supply connections for basins or 
baths is void for lack of patentable invention, involving only exer- 
cise of mechanical skill; Hickory Wheel Co. v. Frazier, 100 Fed. 
102, holding Elliott patent for sulky wheels provided with pneu- 
matic bicycle tires not subject of invention. 

141 U. S. 543-548, 35 L. 851, OLCOTT v. HEADRICK. 

SyL 1 (Xn, 48). Foreclosure purchaser held for receiver's claim. 

Approved in Kennedy v. Roundtree, 63 S. C. 403, 41 S. E. 480, 
holding on foreclosure in Federal Circuit Court, such court retains 
Jurisdiction of the parties and subject-matter until sale Is con- 
firmed; H., etc., Ry. v. Crawford, 88 Tex. 280, 31 S. W. 178^ hold- 
ing Jurisdiction of Federal court ceases upon discharge of receiver 
and delivery of property to purchaser, and State could then enforce 
its own Judgment according to its laws. 

141 U. S. 548-556, 35 L. 853, ROGERS v. UNITED STATES. 
Syl. 2 (XII, 48). Circuit and Supreme affirms Districts Judgment 
Approved in American Sales-Book Co. v. BuUivant, 117 Fed, 260, 

holding legal action in Federal Circuit Court, tried by stipulation 

without Jury, its findings of facts not reviewable on writ of error, 

if any evidence supporting. 

141 U. S. 557-^00, 35 L. 857, RECTOR v. LIPSCOMB. 

Syl. 1 (XII, 48). Supreme Court dismisses appeal, insufiBcient 
amount. 

Approved in Robinson v. Suburban Brick Co., 127 Fed. 806, hold- 
ing bill in Federal court need not state amount in controversy, it 
appearing to be within Jurisdictional limit from allegations, from 
record or from evidence; Southern Building, etc., Assn. v. Carey, 
117 Fed. 335, holding Circuit Court cannot refuse appeal, ground 
that decree to be appealed from was entered on mandate from 
Circuit Court of Appeals. 

141 U. S. 560-564. Not cited. 

141 U. S. 564-582, 35 L. 860, FIRE INS. ASSN. v. WICKHAM. 

Syl. 2 (XII, 49). Parol admissible showing circumstances .of 
writing. 

Approved in Ireland v. Spickard, 05 Mo. App. 64, 68 S. W. 751, 
holding receipt reciting **in full of all demands" in no case a 



m 



Notes on U. S. Reports, 141 tJ. S, 583-001 



e^otrtct, but simply prima facie evidence of recited fact, and Is 
contradlctable by parol; Card well v, Stnarti 92 Mo. App. 595, hold- 
ing release belnf? more than receipt and correctible only by equity, 
plaintiff may anticipate affirmative defense, and In sepai*ate court 
&sk its correction or cancellation, 
SyL 4 <XII, 49). All due» part will not release. 
Approved 1b Durebman v. Dunn, 101 Fed. 608, holding receipt 
tB full for all claims under charter by master, on payment of 
frdgbt due, will not release charterers for demurrage then due, 
master being compelled; Iroquois Furnace Co. v. Elphicke, 200 IIL 
424, 65 X, E. TS8, boldhig the delivery of cargo and collection of 
freight money Is not a waiver of a claim for demurrage; McGlyun 
T. Scott 4 N* Dali, 29, 5S N. W. 4G4. holding one party having no 
dilm, and knows It, settlement of the unfounded claim he makes 
Dot •ufflcient consideration to support other's promise; Franklin Ina. 
Co. T. VUleneuve, 25 Tex. Civ. 360, 60 S. W. 1016, holding life 
policy settled for less than its face by company*8 representations 
Uiat more could not be collected, question of accord and satlsfac* 
tioa for the jury. 
Syl 5 (XU. 49). Part will release disputed debt 
Approved In Chicago, Milwaukee, etc., Ry. Co, v. Clark^ ITS U, 
366. 44 Lu 1106, 20 Sup. Ct 929, holding specified snm will be 
Lined as an extinguishment of the whole sum, where the 

ale amount is In dispute^ 
If 4I&), Miscellaneous. 
Cited In Levy, etc.. Mule Co» v. Kauffman, 114 Fed, 174, holding 
^^urpose Lndncing acceptance of drafts as accommodation to drawer 
ot legal consideration for his contract and such not pleadable as 
UXlxxte of consideration* 

HI U. 8. 58a-589, Not cited- 

la U. 8. 589-^01, 35 L. 870, MARSHALL v. HOLMES. 

SyL 1 iXn, 50). Removal complete filing petition and bond. 

Approved In Loop v. Winters, 115 B'ed. 365, holding filing of a 
ialSdent petition and bond effects the removal without any action 
9t tbe court. 

8yL 5 (XII, 51). When equity will relieve against Judgment. 

Approved In Bailey v. Wllleford, 126 Fed. 806, holding where de- 
fendant elected to litigate whole matter in State courts, and having 
tuUir presented his entire case. Federal court will not take J\irls- 
t^fdim; Hendry^ v. Perkins, 114 Fed. S07, holding neither bill to 
VMttt decree for fraud nor bill to review Is maintainable after 
ll|if of nine years, complainant Icnowing of decree, no exciise 
tffered; Home Ins, Co. v. Virginia-Carolina Chemical Co., 109 Fed. 
•t lU>]dlag right of trial by jury In legal actions does not prevent 
lenity trying matters pending action, said matters equitably cog- 




141 U. S. 602-627 Notes on U. S. Reports. 150 

nlzable only and substantially important; Holton v. Davis, 108 Fed. 
149, holding equity will relieve complainant against Judgment on 
ground of fraud, proof of which is clear and distinct, and evidence 
may be circumstantial if persuasive; Wood v. Davis, 108 Fed. 131, 
holding court of equity may enjoin defendant availing himself of 
Judgment, if fraud is clearly proven and Judgment the result of 
the fraud; Pittsburg, etc., Ry. Co. v. Keokuk, etc.. Bridge Co., 107 
Fed. 786, holding bill of review, ground of fraud in obtaining de- 
crees to be reviewed, should show all details, putting complainant 
on inquiry after litigation ended; Allen v. Allen, 97 Fed. 529, hold- 
ing Judgment not impeachable in equity, ground of fraud practiced 
by successful party, if fraud attempted was unsuccessful; Tillman 
V. Peoples, 28 Tex. Civ. 240, 67 S. W. 205, holding relief will not 
be extended to a party seeking to vacate former Judgment, he fail- 
ing to exercise reasonable diligence In the matter. 

Distinguished in Evans v. Gorman, 115 Fed. 402, 403, holding 
under Rev. Stat, § 720, Federal court has no power to enjoin sale 
of estate lands ordered by Arkansas Probate Court to pay Judg- 
ments against the estate. 

Syl. 6 (XII, 52). Circuit Court relieves against inequitable 
Judgment. 

Approved in Massie v. Buck, 128 Fed. 31, holding injunctive 
remedy being ancillary to the granting of relief in a suit to set 
aside sheriff's deed. Federal court had Jurisdiction under Rev. Stat, 
§ 720; National Surety Co. v. State Bank, 120 Fed. 598, 599, 000, 
GOl, hplding Rev. Stat, § 720, not violated by Federal court en- 
Joining unconscionable Judgment of State court, injunction being 
against the person, not the court; Julian v. Central Trust Co., 115 
Fed. 962, holding Rev. Stat., § 720. has no application to enjoining 
sheriff from selling, under execution of State court, property of 
third party, sheriff being trespasser and abusing process; Phelps t. 
Jklutual Reserve, etc., Assn., 112 Fed. 466, holding under Rev. Stat, 
§ 720, Federal court cannot, except by bankruptcy law, enjoin re- 
ceiver appointed by State court having concurrent Jurisdiction, no 
priority claimed by Federal court. 

(XII, 50). Miscellaneous. 

Cited in Phelps v. Mutual Reserve, etc., Assn., 112 Fed. 465, hold- 
ing court of record once acquiring Jurisdiction of cause by service 
of process, same continues after Judgment, other proceedings being 
necessary to enforce same. 

141 U. S. 602-615. Not cited. 

141 U. S. 616-627, 35 L. 879, MOLINE PLOW CO. v. WEBB. 

Syl. 1 (XII. 53). Error on face of record noticed. 

Approved in dissenting opinion In Keene Five-Cent Sav. Bank ▼. 
Reid, 123 Fed. 228, 230, majority holding provision In note " to be 



m 



Notes on U, S. Reports. 141 D. S. 027-^61 



cQostT^ed according to laws of Kansafi ** means statutes not de- 
tMooM of locul courts In anywise. 

8yl i (XII, 53). Limitations against note unless optiona 
exercised. 

Aflpvoved In Cone v. Hyatt, 132 N. 0. 815, 44 S. E. 679. holdlDg 
tibe defense that tbe remedy Is barred by limUatioas may be waived 
by falling to set it ap; Harriugtan v. Claflin, 28 Tex, Civ. 104, m 
S. W. 900, laoldlng five notes containiDg agreement that failure to 
pajr tbe note others would mature at holder's election, statute began 
to mn from election only. See ii5 Am* St. Kep. 655, note. 

141 V: 8. 627-637, 35 L. 882, WILLCOX, ETC. MACHINE CO. Y, 
EWING. 

8yL 5 iXII, 54). Barring stipulations agency revocable at will. 

Approved In Abbott v. Hunt. 12D N, C. 405. 40 S. E. 120. holding 
landowner anthori^ing agents to sell property if they can, owner 
may tormitmte agency at will, and pay for after service cannot be 
compelled. 

141 U. 8. 638-647, 35 L. 886. CRAIG v. CONTINENTAL INS. CO. 

SyL 4 (XII, 54). Unless owner not within limited liability. 

Approved In The Nutmeg State, 103 Fed. 79S, holding under or- 
dinary shipping contract carrier not liable — fire destroying vessel 
and cargo — being at no fault though goodfl could have been 
tlilpprd night of arrival. 

SJrL 5 (XII» 54). Managing officer within limited liability act. 

Apftroved In In re Old Dominion SS. Co., IIQ Fed. 850, boldlng 
osder Rev. Stat. S 4282, relieving shipowner from liability ** unless 
ire ta due to his negligence," cargo-owner must affirmatively prove 
fels neglect to establish liability. 

(Xlt 54). Miscellaneona. 

Cited in Parsons v. Empire, etc.. Co., Ill Fed. 208, holding ship- 
omiers permitting one to have ostensible authority^ tbey will be 
li^iie for his negligeuce and incompetence, and Rev. StaL^ U 4283- 
i2S^ is inappUcable, limiting liability, 

in V, & &i&-€5Q. Not cited. 

HI a a escMiai. 35 u s&i, smyth v. new oeleans canal, 

ETC, CO. 

Bfl 2 4X1 1, 55). Law being suOicient equity refuses assistance. 

A9pnnHi to M*Gulre v. Pensacola City Co., 105 Fed. 6S0, hold- 
tag Mfl io eqaity to recover realty, complainant having legal title, 
ntf defendaot io possession bj force, is improper remedy and 



141 U. S. 661-096 Notes on U. S. Reports. 152 

141 U. S. 661-668, 35 L. 893, McLISH v. ROFP. 
Syl. 1 (Xn, 55). No appeal before final judgment 

Approved in Bowker v. United States, 186 U. S. 138, 139, 46 L. 
1092, 22 Sup. Ct. 803, holding under judiciary act March 3, 1891 
(26 Stat at Large, 826, chap. 517), cases involving jurisdiction of 
District and Circuit Courts not reviewable in Supreme Court until 
final judgment; Hays v. Richardson, 121 Fed. 537, holding Circuit 
Court finding that attachment was* fraudulently sued out by plain- 
tiff, and dismissing for want of jurisdiction, judgment reviewable 
only by Federal Supreme Court; In re Jacobs, 99 Fed. 542, holding 
from final decree of District Court in bankruptcy case, an appeal 
may be taken to Circuit Court of Appeals in ordinary way. 

Syl. 2 (XII, 56). Act 1891 determines elecUon of appeal. 

Approved in Holden v. Stratton, 191 U. S. 118, holding appeal in 
bankruptcy proceedings not proper mode of reviewing decisions of 
Circuit Courts of Appeal on original petition, but certiorari is 
remedy; Ayres v. Polsdorfer, 187 U. S. 588, 23 Sup. Ct. 197, 47 L. 
315, holding judgment of Circuit Court of Appeals, jurisdiction 
thereof invoked solely on diverse citizenship, not reviewable in 
Federal Supreme Court on writ of error; Wirginan v. Persons, 126 
Fed. 455, holding party defeated in Circuit Court electing to appeal 
whole case, and does so, assigning jurisdictional errors and merits. 
Court of Appeals may decide jurisdiction only; Watkins v. King, 
118 Fed. 531, holding though construction of Federal Constitution 
incidentally arises in trial in Circuit Court does not prevent Cir- 
cuit Court of Appeals reviewing whole case on writ of error; Excel- 
sior Wooden-Pipe Co. v. Pacific Bridge Co., 109 Fed. 497, holding 
Circuit Court dismissing lacking jurisdiction, pending motions un- 
determined, only issue reviewable is "jurisdiction" by Supreme 
Court, and not on appeal to Circuit Court of Appeals; Reliable Incu- 
bator, etc., Co. V. Stahl, 105 Fed. GG7, holding primarily, assignment 
of errors determines scope of appeal to Circuit Court of Appeals, 
and if other errors than jurisdiction are inserted whole case is 
before court 

(XII, 55). Miscellaneous. 

Cited in Givin v. United States, 184 U. S. 673, 46 L. 747. 22 Sup. 
Ct. 528, holding under act July 1, 1864, $ 3, no direct appeal lies to 
Federal Supreme Court from decree of District Court dismissing 
petition to enforce confirmation of land claim. 

141 U. S. 668-689. Not cited. 

141 U. S. 600^^6, 35 L. 905, CHICAGO, ETC., BY. CO. T. 
ROBERTS. 
Syl. 1 (XII, 59). No appeal in advance of judgment 
Approved in Bowker v. United States, 186 U. S. 138, 46 L. 1002, 

22 Sup. Ct 803, holding decree of District Court dismissing 



Notes on U. S. Reports. 



142 U. S, 1-1 i 



Id admtralt^r to recover damages for eontslon, not final jvi^g- 
hence not reviewable by S^preiue Court; Gei^man Nat. Bank 
^peckert, 181 U. S. 408, 409, 45 L. 927, 21 Sup. Ct. 630, 690, 
Circuit Conrt of Appeals reversing Circnlt Court which 
motion to remand case to State court not appealable to 
le Court* decision not final judgment; Cole v. Garland, 107 
Fed. 761, holding no appeal or writ of error lies from tbe decision 
of the Circuit Court In remanding cause to State court, from which 
I Improperly removed; Wedeklnd v. Bell* 26 Nev. 414, r/j 
ei4# holding where parlies to an appeal settle the controversy, 
ftppeaJ will be dismissed though cause has been argued aud 
tvimiiUed. 

141 U. 8. 606-700, 35 L, 006. SINGER MFG. CO. v. WBIGHT. 
SyL 1 (XU, 6&>. Appeal dismissed tax meanwhile paid. 
Approved in Wedeklnd v. Bell 26 Nev. 414, 69 Pae. 614. holding 
vhere parties to appeal settle the controversy, appeal will be dis* 
mlseed though cause has been argued and submitted; State v. 
lambeft, 52 W. Va. 250, 43 S. E. 177, holding court will express an 
on questions of law if necessary to a determination, but 
gaestiona or abstract propositiuiis will not be deeidi^d. 



CXIJI UNITED STATES. 



142 C. 8. 1-17. 35 U 915, SHARFHAWK v. TERKES. 

$}l 1 (XJI, 61). Stock exchange membership passea to assignee. 

Al>proved In Page v. Edmunds, 187 U. S. COl. 23 Sup. Ct 202, 

<T L 321, holding membership of bankrupt iu Philadelphia Stock 

Eicbmge is property within bankruptcy act 18[*8, § 70. and title 

tbereto vests In trustee if bankrupt could have previously trans- 

femd; In re Olewlne. 125 Fed. 841. holding liquor llcenBe, tliougli 

cnaifembie by approval of granting power, not subject to seizure, 

ii part of bankrupt's assets, and may be part of exemption; In re 

Gi^iofd, 111 Fed. 719, 722, holding bankrupt's membership In 

itock exchange is property, and subject to restrictions imposed by 

•Moditloo by-laws constitutes assets of his estate; In re Page, 

Wt F«iL 93, affirming 102 1* ed, 740, 747, holding seat or memher- 

iMtp of h4ink:rupt tn Ftock exchange is property and passes to bla 

tiwaie^ to bankruptcy, and latter may sell same as assets; In re 

terlcllu 101 Fed. 231, holding license to occupy stall in city market 

tPpfUfiMtjr of licensee, which will pass to his trustee in bankruptcy. 



142 U. S. lS-43 Notes on U. S. Reports. 154 

Syl. 2 (XII, 61). Bankruptcy assignee need not accept unprofit- 
able property. 

Approved In In re CJogley, 107 Fed. 74, holdJ::g trustee In bank- 
ruptcy not required to talie charge of any portion of estate heavUy 
encumbered, where nothing can be realized for unsecured creditcMv; 
Ivlein V. Gavenesch Co., 64 N. J. Eq. 53, 53 Atl. 197. holding lessor 
In lease for years, designated annual rental, having right of re- 
entry rent failing, cannot recover after lessee's insolvency and 
receiver quits premises. 

Syl. 3 (XII, 61). Bankrupt after discharge may purchase prop- 
erty. 

Approved in Lasater v. National Bank, 96 Tex. 348. 72 S. W. 1058, 
holding bankrupt being owner of claim against another, because 
bankrupt paid usurious interest, trustee failing to administer such 
asset, bankrupt, after discharge, may sue on claim. 

S^L 6 (XII, 61). Bankrupt paying assessments may hold seat. 

Approved in Fisher v. Cushman, 103 Fed. 8(>3, holding though 
transferability depends on consent of stranger does not defeat 
claim of creditors in bankruptcy to realize what can be on trans- 
fer if made. 

(XII, 61). Miscellaneous. 

Cited in Dayton Hydraulic Co. v. Felsenthall, 116 Fed. 965, hold- 
ing re<'civer taking possession of leasehold premises, not an adop- 
tion of lease and assumption of covenants, he has right of election, 
owing for rental during use. 

142 U. S. 18-28, B5 L. 919, NEW ORLEANS, ETC., R. R. CO. v. 
JOPES. 

Syl. 2 (XII. 62). No action for Justifiable self-defense. 

Approved in Doremus v. Root, 23 Wash. 716, 63 Pac. 574, hold- 
ing if the employee— conductor — who caused the injury to fire- 
man is free from liability therefor, his employer — railroad — 
must also be free. 

142 U. S. 28-43, 35 L. 925, PEARCE v. RICE. 

Syl. 4 (XII, 62). Gaming contracts void in Illinois. 

Approved in Clews v. Jamieson, 182 U. S. 489, 490, 495, 45 L. 
IIIHJ, 1197, 1100, 21 Sup. Ct. 856, 8o8, holding no presumption of 
intent to make gaming contract by selling stock not then owned 
for future delivery; Board of Trade v. L. A. Kinsey Co., 125 Fed. 
75, holding whether contract for future delivery on exchange Is 
legitimate or wagering transaction depends upon Intention or 
absence thereof of actual delivery and payment 

Syl. 5 (XII, 62). Issue on plea filing replication. 

Approved in Soderberg v. Armstrong, 116 Fed. 710, holding, under 
equity rule 33, the filing of a general replication to a plea in bar is 



J^ 



Notes on U. S. Reports. 



142 U. S. 43-9:} 




iwt SO admlssiOQ of the eufficlency of the plea; Jones v. HllJis. inil 
Fled, S56» holding deteriuinatloQ of facts stated in plead In favor 

of def^daot. Issue taken thereon, bill not iiefessarlly dismissed, 

lot court further determines snfficlcnoy of facts. 

112 V. a 4^-50, 35 Lu 931, FARNSWORTH v. DUFFNER 
SyL 1 (Xn, 62). No r^clssIoD vendee knowing f^cts. 
At^proTed In Sbappirio v. Goldberg, 192 U. S. 242, 24 Sup. Ot 261, 
laldiD^ Tendor*8 misrepresentations of realty regarding its area not 
acUoiiabie where correct description was given In deed and pur- 
ftsser's agent, unhindered. Investigated records; The Protection, 
IQS Fed. 518, holding shipper's representatlou regjirding size of 
mi^f]»e» thongh not correct no defense^ carrier not carry iug on 
fUtiCBJmr Teesel accordance with terms of bill of lading; Rauh 
▼. Wfltennan, 29 Ind. App. 359. 361, 61 N, E. 143, 63 N. E. 46. 47, 
porchaaer of whiskey from agent iti fraud nlt?nt!y obtain - 
from principal on misrepresentation, principal may rescind 
•ad recoTer goods. 

SjL 2 (£11^ 63). Convincing proof rescinds contract for misrepre- 
•ematloD* 

ived in Trenchard v, Kell, 127 Fed. 601, holding doctrine 
ireai emptor is inapplicable where there is an express war- 
fwity and actual and positive fraud on part of defendant. 

Ill V, S. 56-72. 35 L. 9:^6, FINN v. BROWN. 
Kyi, 1 (XII. 63)* One's name on stock -book presumed owner. 
Approved In Campbell v. American Alkali Co., 125 Fed. 210, 

Mdlng validity of an order of corporation directors in assessing 

■Ittcklioklen not collaterally attackable by stockholder in action 

ipUoat Llm to recover assessment. 
DIctJngnlshed In Foote v. Anderson, 123 Fed. 663, holding entry 

«l oat-'a namt! In bank stock-book as shareholder, without knowl- 

id|» or a»ent on his part, will not charge his estate after death 

ia Moirttkoider. 

SyL S (XJI. 63). Hecelver of dividend has liability of owner. 

Approvwi in Lawrence v. Greenup, 97 Fed. 910, holding national 
lia&li r*velver cannot recover from stockholder in legal action sum 
mvlvrd by blm on partial dtstdbtition made and received In good 
fiUth, Inaolvency 6ubse<iuently. 

IC U. S, 73-Ta Not cited. 

MS U. 8. I&-83. 35 L. SH;i. NEW OELEANS T. NEW 0RLUAN8 
WATEB-WOBKS CO- 
$yt I (XII, 04). State decision reviewable record showing Fed- 
<fal igo^atluo* 

4^pn^cd In Kew Orleans Water- Works Co, v. Louisiana, 185 
IT. B. %fS, AC L. IHl, 22 Sup. Ct. CM, holding no Federal question 




142 U. S. 7»-»3 Notes on U. S. Reports. 156 

arises from forfeiture of corporation's charter for alleged violation 
of its terms by decree of State court made after full hearing; 
Underground R. R. v. New Yorlc, 116 Fed. 955, holding N. Y. 
rapid transit act 1891 declared valid under State Constitution by 
highest State court, such decision is conclusive upon Federal court 

Syl. 3 (XII, 64). Bare averment Federal question no avail. 

Approved in Sawyer v. Piper, 189 U. S. 157, 23 Sup. Ct 634, 47 
L. 759, holding claim that Federal right would be denied in fore- 
closure decree by State court without leave to file supplementary 
answer were granted, defense without merit; Gulf & Ship Island 
R. R. Co. V. Hewes, 183 U. S. 75, 46 L. 90, 22 Sup. Ct 29. hold- 
ing question of repealable exemption from taxation, given by State 
law, by subsequent statute, simply construction of State law not 
reviewable on writ of error; Illinois Cent. R. R. v. Chicago^ 176 
U. S. 65G, 44 L. G2G, 20 Sup. Ct 513, holding question of railroad's 
taking materials to complete road is impaired by statute prohibit- 
ing it and may be reviewed by Supreme Court on writ of errmr. 

Syl. 4 (XII, &5). Constitutional guaranty presupposes legal con- 
tract. 

Approved in Illinois C. R. R. Co. v. Adams, 180 U. S. 87, 45 L. 
413, 21 Sup. Ct 254, holding Federal question presented by bill 
alleging contract exemptions of railroad from taxation, existing 
and recognized many years, State statute attempting to impair; 
Walsh V. Columbus, etc., R. R. Co., 176 U. S. 476, 44 L. 552, 20 
Sup. Ct 39G, holding whether Ohio act May 18. 1894. impaired 
act Congress May 24, 1828. granting lands to Ohio for canal pur- 
poses raises Federal question sustaining writ of error; Riverside 
& A. Ry. V. Riverside, 118 Fed. 740, holding it is not essential 
that a valid contract exists for Jurisdictional purposes if plaintiff 
claims such existence, and its impairment in good faith; Mercan- 
tile Trust, etc., Co. v. Collins Park, etc., Co., 99 Fed. 817, holding 
suit to enjoin enforcement of city ordinance, having force of 
State law. ground of impairing prior contract, involves Federml 
question irresi)<}ctive of parties' citizenship. 

Syl. 5 (XII. 05). No depriving party having no property. 

Approved in Weston v. Ralston, 48 W. Va. 191, 36 S. B. 455, 
holding public easement once lawfully established over land for 
public highway, and accepted by proper authorities, good against 
all titles, and court will enjoin interference. 

Syl. 7 (XII, 65). Impairment contracts inapplicable to munici- 
pal charters. 

Approved in Knoxville Water Co. v. Knoxville, 189 U. 8. 488, 
23 Sup. Ct. 532, 47 L. 891. holding contracts between water com- 
pany and private consumers, rates "now or hereafter In force** 
not impaired by municipal ordinance reducing such rates, each 



157 



Notes on U. S. Reports. 



142 U. S. 03-115 






^Teo; Steele County t. Ersklne* 08 Fed. 219, holding mu- 
aldpatttsr doing act without authority previously conferred may 
ie legalized by subsequent legislative euactmeut, such legislation 
mot coofttlmtlonally prohibited and legislature could have pre- 
vtomlj sa&ctioDed; State v. Barker 116 Iowa. 103. 89 N. W. 206, 
citizen and city taxpayer contributing support to water- 
haa Boffident interest In right to office of persons as trus- 
to proBecnte action of quo warranto; Joesting t. Baltimore, 
17 Ifd. 502, 55 All. 457. holding power to tax conferred by State 
of its munlcipaUties mere transfer by State to Its own 
authority to exercise State's attributes; 8prlngfleld v. 
i^rlBgfield St By*. 182 Mass. 49, 64 N, E. 581, holdlngr Stat. 18t>6, 
878^ r^ertng street ratiroad making street repairs, not Un- 
as Impairing contracts, though city Imposed same; 
etc. Co. V, Clarksburg, 47 W, Va. 744, 35 S. E, miX 
d&rkaburg granting exclusive franchise to private cor- 
to use its streets for twenty years, being void, name 
mo€ contract capable of impairment 

8yL 8 (XII, 65)* Constttutlon protects municipalities' private 
Hgbta, 

Jipprared In Browne ▼. Turner, 176 Mass. 15. 56 N. E. 971. 
baldUiff 8Ut 1897, chap. 500, | 17, permitting city leasing tunuel 
coDilfUcted at public expense, consideration percentage annual 
nciliiiB. not nnconstitutioually taking city property wliiiont com- 



ic U. 8. 93-101, 35 L. 94a FRANKLIN CO. T, GERMAN SAV. 
BANE. 
Syt 2 (XII, 66). Judgiuent same parties conclusive collateral 

ApfimTcd tn dissenting opinion In Grand County t. People, 16 

CWa. A9^ 24«. 64 Pac. 686, majority holding, though holder of 

warrant reduced it to Judgment, It did not preclude court 

Into nature of debt from which It resulted. 

DMIitgnished In Manluttan Trust Co. v. Sioux City. etc.. R. R. 

' «^. let Wed, 713^ holding adverse decree on petition of inter veu- 

Obd Is creditors' suit to establish landlord's lien against Insolvent 

not precluding second petition for subsequent earnings 



^C* C. a 101-115, 35 L. 051, COGHLAN T. SOUTH CAROLINA 

IL a. CO. 

Syt 1 (XII* 60), Law under which contract was made governs. 

A^proTfd In rinney v. Nellson. 183 U. S. 14S. 46 L. 127. 22 Sup. 

It U, boldiJifr coutractual ohligatlon of foreign corporation stock- 

^ inlJDpiaired by Cal Civ. Code. S 322 (enacted prior thereto). 

:.g Mme personal obligation upon stockholders forelgu and 



142 U. S. 116-121 Notes on U. S. Reports. 158 

domestic corporations; Fidelity, etc., Assn. v. Harris, 94 Tex. 36, 
57 S. W. 638, 86 Am. St. Rep. 819, holding action for life insurance 
governed by Pennsylvania laws, statute thereof declaring forfeiture 
for materially untrue statements, applicant's warranty made his 
statements material precluding recovery; dissenting opinion in 
Keene Five-Gent Sav. Bank v. Reid, 123 Fed. 228, majority holding 
provision ''this note to be construed by Kansas laws" means 
State statutes governing negotiable instruments, not comprehending 
decisions of local courts. 

Syl. 2 (XII, 66). Lex loci contractus generally governs. 

Approved in United States Sav., etc., Co. v. Harris, 113 Fed. 31, 
holding Minnesota loan association taking mortgage on realty in 
Kentucky, all payments to be made at home office, contract gov- 
erned by laws of Minnesota; Gray v. Telegraph Co., 108 Tenn. 48. 
91 Am. St Rep. 711, 64 S. W. 1065, holding action against tele- 
graph company for breach of public policy imposed by statutes 
not rendered ex contractu, statement of cause not being distinctively 
ex contractu, statutes affording relief. See 91 Am. St. Hep. 740, 
note. 

Syl. 4 (XII, 6G). Laws of place of performance govern. 

Approved in Mutual Life Ins. Co. v. Phinney, 178 U. S. 338, 44 L, 
1094, 20 Sup. Ct. 910, lidding conclusively presumed both parties 
to contract know the law respecting it, they agreeing its determina- 
tion by laws of a certain State; Ilicrouymus v. New York Nat. 
Bldg., etc., Assn., 101 Fed. 13, 14, holding payment of principal to 
be made in State of lender, (luostion of usury is determinable by 
laws of that State if valid; Mutual Life Ins. Co. v. Dingley. 100 
Fed. 413, holding life insurance application being part of contract 
reciting ** subject to charter of company and New York laws " con- 
tract governed l)y those laws irrespective insured's residence; 
Hamilton v. Fowler, 99 Fed. 25, holding note purporting to have 
been made in Mi.ssouri. payable there, is Missouri contract governed 
by its laws regarding usury, though makers reside elsewhere; 
Mutual Life Ins. Co. v. Hill. 97 Fed. 267, holding New York State 
issuing policy forwarded from company's office in Washington State* 
proof of death and payment made in New York, same is New York 
contract; Swedish, etc., Nat. Hank v. P'irst Nat. Bank, 89 Minn. 
113. 94 N. W. 22.3. holding place of performance or enforcement of 
pledge of personalty is State of situs, and validity must be deter- 
mined by laws of that State. 

142 U. S. 116-121. 35 L. 956, HALL v. CORDELL. 

Syl. 5 (XII, 67). Lex loci contractus generally governs. 

Approved in Mutual Life Ins. Co. v. Hill, 97 Fed. 267, holding 
New York State i.ssuing policy forwarded from company's office In 
Washington State, proof of death and payment made in New York, 
same is New York contract; Mutual Life Ins. Co. v. Dingley, 100 



I 



Notes on U. S. Reports. 142 U. S. 122-14S 

Fei 413, holding life Insurance application being part of contract 
mdting "* subject to charter of t-ompauy and New York laws/' con- 
timet poreroed by those laws, irrespective insured's residence; 
first Nmional Bank of Geneva v. Shaw, lOD Tenn. 240, 70 S. W. 
907. Iftoiding note of married woman residing with her husband in 
TteacsBee, but delivered and con sum ma ted in Ohio, payable there, 
Gray v. Telegraph Co., 108 Tenn. 49, 91 Am. St, Rep. Til, ti4 
S. W, 1066. holding action against telegraph company for 
breacli of public policy Imposed by statutes not rendered ex eon- 
tmctii« Btatement of cause not being distinctively ex contractu, 
ilBtmcs affording relief; Fidelity, etc., Assn. v. Harris, M Tex. 35, 
}T S. W. 638. SG Am. St. Rep. 819* holding action for life insurance 
loremed by Pennsylvania laws, statute thereof declaring forfeiture 
far OMterlallj untrue statements, applicant's warranty made his 
■tatemetit^ material precluding recovery. 

112 D. S. 122-12S. Not cited. 

142 U. S. 12SU13S, 35 L. 9«1. VAN STONE v. STILLWELL, ETC., 
MFG. CO. 
8yL 4 <Xn, 63}. Decision motion new ti'iat not appealable. 

lived in McCutcheon v. Hall Capsule Co., 101 Fed. 548, hold- 
Ling upon a motion for new trial cannot be assigned for 
«T©r iD the Federal courts. 

DlfttUigntshed in Smith v. HopkliiB, 120 Fed. 923, holding the 
4eai«l of a motJon for a new trial cannot be reviewed by the Circuit 
Cmui of Ap[Kats. 
9rL 8 (XII, 68). Mechanic's lien creature of statute. 
Amroretl In Win throw Lumber Co. v, Glasgow In v. Co., 101 Fed. 
M8» bolding mecliflulc's lien, being purely statutory, can only arise 
'here aO require mentis of statute have been substantially complied 
■Itfa etcn to tbe ilUng of Itemized account ; National Bank v. Camp- 
Id!, 21 Tex. Civ. ICa, 57 S, W. 292, holding owner of homestead 
tat caimol duurge premises with mechanic's lien favor another party 
to ticQre loan to pay contractor, lender not otherwise assisting. 
SyL 10 (Xll, 68)* Mechanic's lleo not waived accepting note. 
ArT»fuVHl !n Baumhofr v. St. L. & K. Ry. Co., 171 Mo. 12S, 71 S. 
^*^ lu&. 04 Am, St. Rep. 775, holding contractor did not waive lien 
^^f labor And material by mere agreement to take stock in payment, 
^<^I>i as to p;iymi<nt actually made under contract 

iC L\ 8, LT8^140. Not cited. 

»*2 a 8. 140-143, 35 U 1)0*5. CLASSEN v. UNITED STATES. 

W. 1 (XI1» <59). Kssenlials of indictment for embezzlement. 

■^ffroffd In MrKnighl r. United States, 115 Fed. 9^, holding 
■^inieat in Indidtnent charging natioual bank officer with em- 




142 U. S. 140-148 Notes on U. S. Report*. 160 

bezzlement paying money on worthless note, if directors* consent be 
relied on, same must be proven. 
SyL 2 (XII, 69). Indictment, one good count supports verdict 
Approved in Carter v. McClauprliry. 1S3 U. S. 384, 46 L. 247, 22 
Sup. Ct. 189, holding sentence of army court-martial does not cease 
though punishment fixed thereby was theoretically increased by 
president in disproving some and approving others of findings; 
Lehman v. United States. 127 Fed. 44, holding conviction generally 
on an indictment containing several counts will be sustained if any 
one of the counts is good and supported by evidence; Dimmick y. 
United States, 116 Fed. 832, holding general verdict and Judgment 
of conviction on indictment of several counts not reversible on 
error ground insufficiency of indictment, any one warranting Judg- 
ment; United States v. M'Clure, 107 Fed. 269, holding Judgment will 
not be arrested on motion for insufficiency of the indictment if any 
one of the counts therein is good; Breese v. United States, 106 Fed. 
689, holding question of bank president's guilt of abstracting or 
misapplying its moneys, immaterial that he drew out some of it for 
his children; Carter v. M'Claughry. 103 Fed. 620, holding sentence 
n gross imposed by court-martial on several charges not invalid 
in setting aside some of charges if others will support the convic- 
tion; Tubbs V. United States. 105 Fed. 62. holding defendant con- 
victed on several counts, sentence not exceeding that of one, one 
good count sufficient to sustain Judgment; Hechter v. State, 94 Md. 
442, 50 Atl. 1013, holding on an indictment charging two offenses, 
a verdict is good which finds accused guilty of one offense, but la 
silent as to the other. 

Syl. 3 (XII, 70). Any good count Justifies sentence. 

Approved in Haynes v. United States, 101 Fed. 819, holding 
general verdict of guilty, indictment containing several counts, bad 
counts do not vitiate, sentence not exceeding what might be 
properly imposed on the good. 

Syl. 4 (XII, 70). Only error on record considered. 

Approved in Breose v. United States. 106 Fed. 682, holding the 
record in a misdemeanor case not showing that defendant was 
present when sentenced case will be remanded for new sentence; 
McCutcheon v. Hall Capsule Co., 101 Fed. 548, holding single 
exception talvcn to wliole charge, not directing court's attention to 
any particular portion, raises no question for review, and defects 
are irremediable. 

(XII, 60). Miscellaneous. 

Cited in In re Bollah, 116 Fed. 72, holding proceeding on statnte, 
pleader must negative exception in exacting clause, in petition in 
involuntary bankruptcy, by averring defendant not wage-earner nor 
tilling the soil 



Notes on U. S. Reports. 142 U. 8. 148-210 



U. 8. 148^155» S5 U DOS. SIMMONS v. UNITED STATES. 
8yL 2 (XII, 70). Discharging, substltutiiig another jury not twice 

ApflctiT«<S In Dtijer v. Ulmois, 187 U. S. 86, 23 Sup. €t 23, 47 L. 
bolding plea of former Jeopardy not basable upoii discharge of 
for their inability to agree on verdict from 4 p. m. until 9:30 
4. m-, next clay; In re Ascher, 130 Mich, 540, 90 X, W. 422, hoMJug 
judge Ondlng that certain jurors concealed facts on their voir dire 
naminitloD justified discharging jury and declaring mistrial, and 
1 was not put in jeopardy, 
3 iXlly 70), Triai Judge may express opinion jury. 
Approred In Sebeck v. Plattdeutsche Volksfest Vereln, 124 Fed. 
VSit boldiiig court's stating to plaiuUff's counsel that he was injecting 
false ififiiie was cured by court's withdrawing remaQd and theu 
fttUr auting issues claimed; CUing v. Uoited States, 118 Fed. 543, 
It was not error for judge In trial for conspiracy to express 
aa to what verdict should he, if afterward he quaiified bis 
Breese v. United States. lOO Fed. 08C, boiding judge's 
ion that defendant is guilty not error, he having cautioned tbe 
diat they were sole Judges, that his opinion should not govern. 

M2 U. S- 155^100, 35 L. 971, McELVAINE v. BllUSH, 

SyL 4 (XII, 70), Defendant appealing cannot complain of cou- 
flnemeiit. 

Approved In Murphy v. Massachusetts, 177 U. S. 163, 44 L, 715. 
30 8iipw Ct. 642, holding sentence of conviction after reversal of 
foinier judgment, on application of the convict, on unconstltn- 
Ihaiality of statute, not placing in double jeopardy, 

^yL 5 (XIL 70). Supreme Court foilowa State's construction 
ftanta. 

Approved In Provident Savings Life Assur. Soc. v. Hadley, 102 

fal 890, holding application for life Insurance by Massachusetts 

in Kew York, policies Massachusetts contracts under Acts 

ISM^ chap. ^32, § 73. 

VfL e pen, 71). Federal courts* noninterference State criminal 

to. 

Approred I© Minnesota v, Brundnge. 180 IL S. 502, 45 L. mh 21 
Sopt Ct 450b holding Federal court should refuse writ habeas 
Judgment of Municipal Court under unconstitutional statute. 
State affords relief in reviewing Judgment 

M U. & iei-2l6v 35 L. 074, KNIGHT v, UNITBD STATES LAND 
ASSOCIATION. 
fllyL 1 (XII, 71). State having no title patent void. 
Approved In King v, McAndrews, 111 Fed, 864, holding patent of 
Stales presumptive evidence that land department had 
VoLIU — U 




142 U. S. 161-216 Notes on U. S. Keports. ltV2 

Jurisdiction, and patent not open to collateral attack, reversing 
King V. M' Andrews, 104 Fed. 432, holding patent issued under home- 
stead law, showing upon face that the land was not subject to 
entry under such law, is void and inadmissible in evidence. 

Syl. 2 (XII, 71). Power of surveys exclusively political depart- 
ment. 

Approved in Kean v. Calumet Canal Co., 190 U. S. 481. note, 28 
Sup. Ct. 660, 47 L. 1146, holding title to land within Federal 
patents under swamp land act September 28, 1850, chap. 84 (9 Stat 
at Large, 420), unaffected by resurvey of land covered by water at 
original survey; Gardner v. Bonestill, 180 U. S. 369, 45 L. 576» 21 
Sup. Ct. 401, holding determinations of land department against 
claim included in Mexican grant, which was surveyed and patented 
by claimant, conclusive against him in subsequent private action 
against him. 

Syl. 3 (XII, 72). Secretary may supervise proceedings respectiiig 
titles. 

Approved in United States ex rel. Riverside Oil Co. y. Hitchcock, 
190 U. S. 324. 23 Sup. Ct 701, 47 L. 1078, holding mandamus wlU 
not lie against secretary of interior to compel him to vacate his 
decision regarding selection of public land under act June 4, 1897; 
Hawley v. DUler, 178 U. S. 488. 495. 44 L. 1102, 1164, 20 Sup. Ct 
991, holding land department has jurisdiction to cancel an orifi^inal 
entry for public lands at any time before a patent is issued; Boynton 
V. Ilnggart 120 Fed. 828. holding auditor and governor of Arkansas 
constitute quasi-Judicial tribunal to determine title to swamp land, 
and patent thereby issued impervious to collateral attack barring 
fraud; Cosmos Exploration Co. v. Gray Eagle Oil Co.. 112 Fed. 13, 
aflfrming 104 Fed. 42, holding Federal courts without Jurisdiction 
to determine rights of parties, title remaining in United States, con- 
test pending between same parties in land department; Olive Land, 
etc., Co. V. Olmstead, 103 Fed. 574, holding location oil placer claim 
on public lands vests no title in locators until discovering oil, as 
against United States or one subsequently acquiring legally: Smith 
V. Shakopee, 103 Fed. 241, holding Admiralty Courts take Judicial 
notice of regulations of lighthouse board, made upon authority 
of act of Congress; United Land Assn. v. Pacific Imp. Co., 139 Cat 
376, 69 Pac. 10(^, holding decision of Federal Supreme Court in 
matter of Federal Jurisdiction must be of binding authority on 
State court of last resort; Gage v. Gunther, 136 Cal. 345. 347, 80 
Am. St. Rop. 147, 140, 68 Pac. 712, 713, holding decision secretary 
of interior on contest preliminary to issuance of patent cannot be 
invoked to preclude re-examination by a successor, on principles 
res Judicata; Beach v. Southern Ry. Co.. 131 N. C. 400. 42 S. E. 856, 
holding foreign corporation having become domesticated by Laws 
1809, chap. 62, N. C, not entitled to remove to Federal courts 



Notes OE U. S. Reports. 142 V. S. 217''236 

Bd local prejudice; Altschu] v. Clark, 30 Or. 327, 65 Pac. 995, 
[balding road company's seleotlou approved by State and filing 
' ailectiofi list in local land offices, pajing fees, did not pass title 
till Beerei&ry approved selection: Lawrence v. Potter. 22 Wash. 37» 
«, 40, 00 Pac* 149, 151, 152, holding Rev. Stat U. S.. i 22D7, pre- 
•efSbfss ccftain causes for Institutiiig contest before land depart- 
BHit« does Dot preclude tt from bearing contests for otber causes; 
McCord T. HiU, 111 Wis, 526, 87 N. W. 483. holding under act Con- 
June 3^, 189C, regarding errors of general land office, applica- 
1 loaj' be made direct to secretary of Interior wbose decision will 

$ CXU, 72). States own land under tide waters, 

ired in Sullivan Timber Co. v. Mobile, 110 Fed, 190, holding 
of title under act January 31» 1867, Ala., unaffected 
rights of owners of lands bounded by high tide water- 
OQ Mobile river; Hie bards on v. United States, 100 Fed. 717, 
^WTiig State holds title to beds of navigable streams within Its 
In trust for the public for purposes of navigaUon, Goi^ 
luiTing sole constitutional control 




m U. S, 217^236. 35 L. 994. MAINE v. GKAND TEUNK RY, 00. 

8yi 2 tXlX, 73k Exercise of franchise under State control. 

Approved In Hanley t. Kansas City South. Ry. Co., 187 U. 8. 

&L, 23 Sup. Ot. 216, 47 L. 336, holding Arkansas railroad commis- 

iioa rtolstes Federal Constitution regarding commerce, by enforcing 

ntif between two points within State, large part of route being 

ttOttUle Stale; dissenting opinion In People v. Knight, 171 N. Y. 

356^ 372, 64 N. E. 152, 158, majority holding cab service main- 

tilned wholly within State, at railroad terminus, passengers car- 

rtid oader separate contract not Included in tax exemption of 

iatentste commerce franchise property. 

Sjl 4 fXII, 74). Franchise tax on gross receipts valid. 

Approved In Wisconsin & M. Ry, Co. v. Powers, 191 D. S. ZSS, 

levying specific tax upon property and business of any 

operating within State, under Mich, act June 4, 1897, not 

■ifoiiitltmtlonal Interference with interstate commerce; Cumb. & 

J^ It B. V. State. 92 Md. «^, 690. 691, 48 Atl. 509, 610, holding 

Mirylsod State tax on gross receipts of road In proportion as 

Imgih of line In State bears to whole not Invalid interference 

wMk Imumaie commerce; Lewiston, etc., K. R. Co. v. Grand Trunk 

iy. Op;, at Me, 269, 54 Atl. 753, holding lessee paying tax on 

jtasor's Included, and not deducting from annual rental 

of l€ase, after eighteen years no deduction can be made; 

CtmmSmtiooer of Railroads v. Wabash E. R, Co., 126 Mleb. 115, 85 

X W, ISSL hoMifi^^ coder No. 90, Pub. Acts 1891, railroad com- 




142 U. S. 23&-282 Notes on U. S. Reports. 164 

missioDers in fixing rates may include amount of interstate fares 
earned by portion of road lying within this State. 

142 tJ. S. 236-241. Not cited. 

142 U. S. 241-254, 35 L. 999, DESERET SALT CO. v. TARPBY. 

Syl. 2 (XI, 75). Land grants in prsesentl unless restricted. 

Distinguished in Manley v. Tow, 110 Fed. 251, holding patent 
issued to State for lauds coterminous with railroad, unearned for 
incompleteness, prior settler uuder homestead law given pref- 
erence over purchaser of company. 

Syl. 3 (XII, 75). Grant 1862 transferred present legal title. 

Approved in Toltec Ranch Co. v. Cook, 191 U. S. 538, 540, hold- 
ing adverse possession of land within congressional grant to Central 
Pacific R. R., under claim of right for full statutory period, trans- 
ferred title, though railroad had not obtained patent; United States 
V. Oregon, etc., R. R. Co., 176 U. S. 43, 44 L. 364, 20 Sup. Ct 266, 
holding grant of public land to Northern Pacific railroad, act 
Congress July 2, 1804, nature of float excluding all reserved land 
sold or otherwise appropriated before filing location map; United 
States V. Losekamp, 127 Fed. 962, holding United States could not 
recover for tinlber cut from public domain, which, when sur- 
veyed, would consist of odd-numbered sections within railroad grant; 
Thompson v. Crane, 25 Nev. 122, 58 Pac. 54, holding title under 
Central Pacific land grant passed to railroad when the line was 
definitely fixed, and subsequent transfer before receiving patent 
passed title; Toltec Ranch Co. v. Babcock, 24 Utah, 193, 66 Pac 
879, holding, though defendant's adverse possession was not of 
seven years* duration before issuance of railroad patent, it was 
from filing certificate of location. 

142 U. S. 254-282, 35 L. 1004, KAUKAUNA WATER, ETC., CO. 
V. GREEN BAY, ETC., CO. 

Syl. 1 (XII, 76). State decision reviewable Federal question In- 
volved. 

Approved in Detroit etc., Ry. Co. v. Osbom, 189 U. S. 387, 23 
Sup. Ct. 541, 47 L. 863, holding State court's decision refusing 
petition for mandamus, relator clalmlug and setting up right un- 
der Federal Constitution, tantamount to denial and reviewable 
in Federal Supreme Court; Yazoo & M. V. R. R. Co. v. Adams, 
180 U. S. 15, 45 L. 404, 21 Sup. Ct 245, holding Federal question 
impairment of contract sufticlently raised for purposes writ of 
error, case turning upon existence of such contract, if one did 
really exist; State v. Smith, 177 Mo. 94, 75 S. W. 632, bedding con- 
stitutionality of city ordinance expressly raised and determined 
by trial court constitutional question at once attached and ap- 
pealable, though Supreme Court previously decided ordinance tin- 
constitutionaL 



W Notes on U. S. Reports. 142 V. S. 2S2-325 

^jl 4 ffll, 77)- State court's construction property statute floal. 
Approred lo Kean v. Calumet Canal Co., 190 U. S, 481, note. 
23 Fap. Cl. 600, 47 L.. 114G, liolding title to lands within patents 
ftfiffl government pursuant to swamp land act September 28, 1S50, 
W afected by resurvej* land covered by water at original sur- 
W» Mobile Transportation Co. v. Mobile, 187 U. S. 4S5. 23 Sup, 
Ct I<3, 47 Lu 271, holding Alabama when admitted became en- 
UtW to soli beloiv- high- water mark, under navigable waters 
tllhiJi State, wliere it had not been previously granted. 

SyL 8 iXII. 77). Riparian owner's right to land, 

Approred In Green Bay. etc., Co. v. Kankauna, etc., C<>., 112 
WlJv 3M, 87 N. W. 8<>8, holding defendant wrongfully appropriating 
ni«r from plain tiCTs water power, measure of damage Is rental 
nine etch year of horse-power taken at dam with interest 

ftrl 10 (XII, TT). Statutory remedy. If adequate, la exclusive. 

%mm Anu St, Rep. 943, 040, note. 

Ml E ". 282-202. I\ot cited. 

m U, S. 293-312, as L. 1018, STUTSMAN CO. v. WALLACE. 
%jl I IXII, 78). State commercial laws must follow Federal. 
Approved m Dviluth Brewing, etc., Co. v. Superior, 123 Fed. 356, 

holding municipal ordinance taxing sale of liQuors in place dis- 

ttoct from manufactory and exempting manufacturers selling at 
oinnficlory In quantities not discriminative within Fourteenth 
Amendment; Snowden v. Loree, 122 Fed. 49tj, holding State laying 
f^ tftwa dedicated lane to public use, thereafter estopped It to 
me. and subsequent patent of its land department was void; 
: nl FouDdry, etc.. Works v. Oconto City, etc., Co., 113 Fed. 
iW^ boldlJig pendency of suit in Federal court for judgment and 
Aedt&nie's lien, property remaining in defentlant, State court has 
IvMlctlOD entertaining suit for foreclosure on the property; Pick- 
«tt Tp. V, Post, ni) Fed. GG2. holding State Supreme Court deoiiir' 
t»g fftatiite authorizing is*iuance of municipal bonds unconsUtu- 
Otoal not conciusive on ITederal courts, bona fide purchaser's rij^hta 

iMnitag prior to decision. 
9ifl 5 (XII, Wh Ministerial officer enforcing process not liable. 
Apprared In Anderson v. Elliott, 101 Fed. «jlfj, holding Federal 

ttmhal not 8UbJe<*t to arrest tind Imprisonraeiit by State autlaority 

fw ict0 doDe pursuant to writ of Federal court 

tC C. 8. SI-%-325. 35 L, 1025. SUNVLOWER OIL CO. v. WILSON. 
^Sl 2 rXII. 70). Railroad receiver not liable company's agree- 



A|iprOT<-d In Dayton Rydraullc Co. v. Felseurhall. 116 Fed. 5)f>5. 
^•Wtef receiver appointed by equity court, being merely custodian 



142 U. S. 326-355 Notes on U. S. Reports. 166 

thereof, does not become assignee of leasehold simply because 
placed In possession a term; Fidelity Ins., etc., Co. v. Norfolk, 
etc., R. R. Co., 114 Fed. 393, holding cause of action arising before 
appointment of receivers, such Judgment not debt of receivership 
whether receivers were parties to It or not. 

Syl. 3 (XII, 79). Railroad receiver may adopt lease contract 

Approved in Dayton Hydraulic Co. v. Felsenthall, 116 Fed. 905, 
holding receiver taking possession of leasehold has reasonable 
time of election to adopt contract or surrender property, paying 
rent for the use. 

Syl. 4 (XII, 80). Optional property returned money returned. 

Approved in Centerville v. Fidelity, etc., Co., 118 Fed. 338, hold- 
ing city purchasing and taking possession of water- works subject 
to mortgage placed thereon by former owner necessary party to 
foreclosure, and equity will afford complete relief; Fidelity Trust, 
etc., Co. V. Fowler Water Co., 113 Fed. 572, holding Federal equity 
court acquiring rightful jurisdiction of town of Fowler and sub- 
ject-matter, complete relief will be granted without remitting 
complainant to action at law; Richi v. Chattanooga, etc., Co., 105 
Tenn. (553, 58 S. W. 646, holding court of equity, having taketf 
jurisdiction for purpose of restraining and abating nuisance, has 
jurisdiction to award damages. 

Syl. 6 (XII, 80). Railroad receiver stands in company's place. 

Approved in Klein v. Gavenesch Co., 64 N. J. Eq. 53, 53 Atl. 197, 
holding lessor entitled to designated annual rent with right of re- 
entry, rent failing, not entitled, lessee insolvent, for rent accruing 
under lease after receiver quits premises. 

142 U. S. 320-338. Not cited. 

142 U. S. 339-355, 35 L. 1035, PACIFIC EXPRESS CO. v. SEIBERT. 

Syl. 1 (XII, 80). Merely showing law unconstitutional collection 
unrestrained. 

Approved in Cruickshank v. Bidwell, 176 U. S. 80, 44 L. 381, 20 
Sup. Ct. 283, holding suit to restrain customs collector enforcing 
act Congress March 2, 180T, ground of its unconstitutionality, not 
naintainable on Inadequacy of legal remedy, madequacy not 
existing. 

Syl. 2 (XII, 81). State cannot tax interstate commerce. 

Approved in In re Appeal of Union Tank Line Co., 204 IlL 351* 
68 N. E. 505, holding foreign corporation cars (not railroad) bay- 
ing principal office elsewhere, merely in transit through ininolB, 
are instruments of Interstate commerce not taxable by State; State 
V. Northern Pac. Exp. Co., 27 Mont. 422, 71 Pac. 405, holding 
Pol. Code, i 4074, contravenes Federal Constitution in taxing ex- 



107 



Notes on U, S. Reports. 142 U. S. 33^-555 



Is coropaay transacting interstate and intrastate business, not 
rimiiiatlng between local and Interstate business. 
fl 3 I XI I, 81), State maf tax business within State. 
l»pjOTed la State v. United States Fidelity Co., 93 Md. 310, 
48 AIL 019, holding tax imposed, under Code, art 81, § 146, 
sided act 180G, chap. 120, limited to gross receipts on business 
vltJUn State and did not Include Interstate business. 

$yL 4 tXII, Slj. Fourteenth Amendment unrestrlcts taxation 
Mibod. 

Approved In Florida C. & P. R. R. Co. v. Reynolds, 183 U. S. 
479, 46 L. 2S7. 22 Sup. Ct. 180, holding Fla. Laws lS8r», chap. 3558, 
requiring comptroller to asAees railroads for taxes omitted not 
denial of L*qual protection, general legislation providing other 
iBi*thod; Ballard v, OH Co.. SI Miss. 581, 95 Am. St Rep. 498, 34 
8a 557. holding act 1S08 <Laws 18i)8, p. 85, cliap. C(5), I 1. uneon- 
•lltntlonfll. Imposing restrictions on all corporations witlxout re- 
flid to their business, not Imposed on natural persons; Stand- 
trd Oil Oo. V. Spartanburg, m S. C. 41, 44 S. E. 379, holding or- 
dinance requiring oil dealers to pay license $250 yearly, excmpt- 
i^ dealers handling oils, license tbereon paid, imconstltutlonal, 
diailfleatJon being unrensonable. 
9rL 5 (XII, 81). Special legislation applying equally not uncon- 

Approved Id Flortda C, & P. R. R. Co. v. Reynolds, 1S3 U. S. 478. 
IB U 287. 22 Sup. Ct. 179. holding railroad companies In Florida 
M iSmled e^ual protection of the laws thereof, regarding assess- 
BMOt of omittetl property, under B'la. Laws 1SS5» chap. 3558; 
Xortitwefltem. etc.. Ins. Co. v, Lewis, etc., Cx>.. 28 Mont. 402, 72 
Pki. M; holding Civ. Code, § 681, relative to domestic and foreign 
ctfpiBmtloDt applying, as it does, only to business within State, 
••I in interference with Interstate commerce. 
8|i 8 (XII. 82). Taxing all transportation companies is valid. 
Jlpprored in Kidd v. Alahama, 188 U. S. 733, 23 Sup. Ct 402, 
C L ^72, holding equal protection not denied by Ala. Code 1886, 
• C3L cl. 13, for taxation of railroad stock, domestic railroads 
i*iDpted, their list being substantially complete; American Sugar 
feet C-o. r. Louisiana. 17& U. 8. 95, 45 L. 105. 21 Sup. Ct. 441, bold- 
Kir mannfacturer refining sugar not dealed equal protection of 
iMl, Lt. Coti«t. 1879, art 2(K1, imposing license tax upon reSners, 
tttmptlng ttfose refining their own prottuct; Peacock v. Pratt, 121 
ftC T77, holdlnir Income tax law of Hawaii not Invalid la Im- 
POKtag tax oo Incomes of corporations as being In violation of 
''•toll Coontltiitlon or territorial organic law; State v. Smith. 
tM lad »7» aa K S^ 30, 64 N. a 18, holding no denial equal 



142 U. S. 355-366 Notes on U. S. Reports. 168 

protection by Acts 1899, p. 422, providing certain dednctions ftom 
assessed valuation of realty of mortgage indebtedness thereon not 
exceeding $700; Callahan v. St Louis, etc., Ry. Co., 170 Mo. 494» 
71 S. W. 214, 94 Am. St Rep. 760, holding Rev. Stat 1899, 8 2873, 
not unconstitutional as subjecting railroads to liability to their 
employees not imposed oA other persons and companies under 
similar conditions; State v. Bixman, 162 Ma 37, 62 S. W. 837» 
holding, under act May 4, 1899 (Laws 1899, p. 228), it was compe- 
tent for legislature to subject beer and malt liquors to certain 
excise tax, excluding other spifltuous liquors. 

142 U. S. 355-366, 35 L. 1040, CHAFFEE CO. v. POTTER. 

Syl. 1 (XII, 82). Constitutional limitations regarding indebted- 
ness must be noticed. 

Approved in Burlington, etc., Bank v. Clinton, 111 Fed. 444, hold- 
ing purchaser of whole bond issue under statute limiting same 
is cliargeable with notice thereof and limited in his recovery against 
city to such amount; National Life Ins. Co. v. Mead, 13 S. Dak. 45. 
47, 48, 79 Am. St. Kep. 880, 881, 882, 82 N. W. 79, 80, holding 
though bond recitals were in effect representation that Incurred 
indebtedness did not exceed limit, city not estopped to show In- 
creased indebtodiioss, purchaser's knowledge thereof presumed. 

Distinguished in King v. Superior, 117 Fed. 116, holding no 
distinction made as to conclusiveness of recital In municipal bond 
whether it is of a fact required by constitutional law or by statute 
law; Kairlield v. Rural, etc.. Dlst, 111 Fed. 458, 459, holding absolute 
limitations being placed upon indebtedness of municipalities by 
Const. Iowa, art. 11, § 3, purchaser charged with notice of such 
facts, notwithstanding their recitals. 

Syl. 2 (XII, 82). Fair recitals excuse inquiry of purchaser. 

Approved in Pierre v. Dunscomb, 100 Fed. 016, holding innocent 
purchaser buying negotiable bonds of others than municipality and 
its agents, recital to fund the debt, excessive indebtedness not ques- 
tion for purchaser; Lyon Co. v. Keeue Five-Cent Sav. Bank, 100 
Fed. 340, holding negotiable rolunding bonds issued under proper 
legislative enactments. In purchasers' hands before maturity of old 
ones, presumed not to increase county's indebtedness. 

Syl. 3 (XII, 83). Municipality not estopped recitals showing 
falsity. 

Approved in Geer v. School Dlst No. 11, 97 Fed. 734, holding 
statute not authorizing orticers to determine whether municipal 
bond issue exceeds legal limit, general recital of compliance will 
not estop municipality showing excessive indebtedness. 

Distinguished In Lake County v. Linn. 29 Colo. 455, 68 Pac. 841, 
holding action on Interest coupons from county bonds issued in ex- 



Notes on U. S. Reports. 



142 U. S. 355-36S 



c^&D^ lor warrants, plaintlflC's prima facie er I deuce throws bur- 
den of preponderance of evidence otherwise upon defendant 

SyL 4 tXlI, 83). Municipality is concluded recitals of reguliidty. 

__Appn>ved In Walte v. Sjinta Cruz, 184 U. S. 319, 40 L. 5G4, 2Z 

Ct- 333« holding statutes conferring power of determining all 

isitea of bond issue upon municipal officers, recitals of eon- 

fciraiit7 to CoDstitullon and statutes e^top municipality denying 

fllidity; Beatrice v. Edminson, 117 Fed, 432* holding excessive 

hidebtediies^i not shown by face of bonds or by any public record, 

tntioually prescribed, recitals in municJpiil bonds importing 

accordance estop defeating bonds; Municipal Truat Co, v. John- 

Cliy. 116 Fed. 4GS, holding under statute vesting municipal 

flflbcera with full power of determining domesticity of railroad and 

of bonda thereto, reeitol of compliance conclusive, cor- 

same name recorded; Board of Comrs. v. Coler, 113 Fed. 

TU, holding legal effect of bond recital being eiiulvaleut to existing 

Ucti authorised by sections of Code N. C. with reference to 

iMlng completion of railroad, recital conclusive; Independent 

Srhool Dlst. v. Hew, 111 Fed. 7. 8. holding municipal omeers hav- 

tng power and duty ascertaining and determining necessary facts 

tdatlTe to bond issue, their certificate estops municipality proving 

UMtf against bona fide holder; Board of Comra, v. Keene, etc.. 

Bank, 108 Fed. 510, 515, holding each county bond being separate 

pftnulae where facts under law miglit legalize part of excessive debt 

tuMled, presumption favors such facts; Hughes Co. v, LivingstoUi 

104 F«L 311, 313, holding If laws under certain state of facts per- 

tttt ijDasl- municipality to Issue bonds, its recitals may conclusively 

♦•top aay denial unless laws pr(»scrlbe public record; Wesson v. 

Ml Vernon, 98 Fed. 809, holding where township authorized by State 

saCalt to issue bonds for refunding Its legal outstanding in deb ted - 

BMifedtils of compliance with statute estop repudiation, on ground 

«f falsity of recital; Brattleboro Sav, Bank v. Board of Trustees, 98 

r*4 53.T holding act Impliedly conferring upon township trustees 

powrr rvf recital that issue is justified in refunding indebtedness, 

"rim eonduKively binds township in favor l>ona flde purchaser; 

^^zf\\ of Comrs. v. Suthff. 97 Fed. 2HX 211, holding negotiable 

i»aj Umd recital, oflicers authorized to determine all requl- 

Liifll fonsUtuiJonai limit not exceeded raises estoppel favor of 

Iwia fiij«! purchaser conclusively; State v. Wichita Co., ti2 Kan. 502, 
H f*ic 47, holding under Laws 1891, chap. 1(j3, as against tli*e 
**!*♦ the recitals on face of bonds estop county from denying truth 
«f tkt itdtala. 
*Xlh S2». Miscellaneous. 

OM In Kelly t. Cole, C3 Kan. 393. 135 Pac. C75. holding un- 
^■M lAtereal coupons attached to municipal bonds are not 



142 U. S. 366-380 Notes on U. S. Reports. 170 

'* bonded indebtedness actually existing," being exclusive of amount 
to be funded under statute conferring power. 

142 U. S. 366-380, 35 L. 1044, DOON TP. v. CUMMINS. 

Syl. 2 (XII, 84). Municipal bonds exceeding constitutional limit 
void. 

Approved in Ottumwa v. City Water Supply Co., 119 Fed. 329, 
holding plain purpose of Constitution being the restricting of legis- 
lative authority to permit municipality to exceed limits imposed, 
any excess would be void; Fairfield v. Rural, etc., Dist 111 Fed. 
4G0, holding absolute limitations being placed upon indebtedness of 
municipalities by Const. Iowa, art. 11, § 3, purchaser charged with 
notice of such facts, notwithstanding their recitals; Pierre v. Duns- 
comb, 100 Fed. 021, 622, 623, holding State Constitution prohibiting 
cities of State incurring indebtedness beyond certain per cent.. 
bonds in excess of limit, upon proof of fact, are void; Lyon Co. v. 
Keene Five-Cent Sav. Bank, 100 Fed. 339, holding municipal bonds 

payable to " or order ** legally payable bearer who if citizen 

of another State may sue in Federal court, though original holder 
could not ; Bannock Co. v. Bunting, 4 Idaho, 164, 165, 37 Pac. 279, 
holding warrant issued for purchase of courthouse site expense of 
$4,000 over current year's expenses not being necessary, violated 
constitutional provision, section 3, art. 8; Montpelier, etc., T. Co. 
V. School Dist, 115 Wis. 630, 92 N. W. 441, holding school directors 
compromising claims against district and issuing orders to pay 
agreed amount, which were void for want of power, subsequent 
bonds thereon void, no tax being voted. 

Syl. 4 (XII, 85). Paying interest does not estop municipality. 

Approved in Wetzell v. City of Paducah, 117 Fed. 655, holding 
long acquiescence with other facts estop city repudiating bonds for 
mere irregularities precedent to issuance subscription and issuance 
expressly authorized by charter. 

Distinguished in City of Pierre v. Dunscomb, 106 Fed. 615, hold- 
ing innocent purchaser buying negotiable bonds of others than 
municipality and its agent recital to fund the debt excessive in- 
debtedness not question for purchaser. 

Syl. 5 (XII, 85). School district is municipal corporation. 

Distinguished in £2verett v. Independent School Dist, 109 Fed. 
702, 703, holding If at issuance series of bonds, school district was 
already indebted beyond constitutional limit, such bonds enforceable 
to extent their proceeds paid valid prior indebtedness. 

Syl. 6 (XII, 85). Bonds satisfying judgment indebtedness not 
increased. 

Approved in Pierre v. Dunscomb, 106 Fed. 616, holding funding 
l>onds neither create nor increase the indebtedness of a munic- 



171 



Notes on U. S. Reports, 142 U. S. 381-^95 



I 



tpallty. bnt merely change its form; Taylor v. Scliool Dist, 97 Fed, 
t:55» holding Iowa school district created by division of larger dis- 
trkt lUble fi^r exchange bonds beyond coustltntioual amount, issued 
to pity judgment against it 

INstiogiilshed In Keene Fire-Cent Sav* Bank v. Lyon County, 97 
Fed* 1G5, holding county negotiable bonds issued to fund out- 
gimHUir Indebtedness, nothing on face charging purchaser with 
outlet constitutional eaccesslveness. Innocent purchaser for Talue 
miy rely upon recitals. 

SyL 7 (XII, 85). Purchaser knowing constitutional limit recitals 
wiMlliless. 

A|(|ir<»ved In National Life Ins. Co. v. Mead, 13 S. Dak. m. 79 Am. 
8L ItepL 8S, 82 N, W. 81, holding though recitals were in effect 
it ft uM rtrtloai that Incorred tndebtednei>s did not exceed limit, city 
mC fislofiped to show increased indebtedness puivhaser's knowledge 
prtSDJDed. 

DlstiDgnlshed in Independent School Dist v. Rew, 111 Fed- 9, 
boldltig mimiclpal officers haying power and duty ascertaining and 
Mermlning necessary facts relative to bond isi^ue, their certificate 
muw municipality proving falsi ty» against bona flde holder. 

112 U* S, 3S1-385. 35 L. 1050, SCOTT v. ELLERY. 
SyL 3 (XU» 80* Bankrupt's creditor may waive right 
Approved In First Nat Bank v. Pope. 85 Minn. 435, 89 N. W. 

81ft, boidhig under Gen. Stat 1894, § 4234, subd. 3, proving debt as 

Qai«ciimi, and taking dividend, operate as waiver and release of all 

McnrltT held by creditor. 

142 C. 8. 3SG-305, 35 L, 1051, CHARLOTTE, ETC., R. R. CO. v. 
GIBBES. 
8jL 1 tXII, 80). Corporations are persons within Fourteenth 
AiDtadmeBL 

A|iqprof«d In Transportation Co. v. Oil Co., 60 W. V&, CIO. 40 S. E. 
Mk lioidtng corporations liable for damages for torts pursuant to 
OQiplracy and combination between them and other corporations or 
Pnoisa, just like natural persons. 
4rL 3 (XII, I^G). Railroads subject to legislative coutroL 
J^npmred In Mat thews v. Board of Corporation Comrs., 97 Fed. 
iH Mdlltg: act 1809, N. C, creating State corporation commission, 
Mof rtg$it lo regulate railroad rates, operates as alteration and 
wpeal pro tonto any railroad charter to the contrary. 
^l I (Xil, SOh Railroad regulation matter legislative control. 
Approved lo State v, Jacksonville Term. Co., 41 Fla. 403, 27 So. 
385, boktiog inacdamns will lie to compel observation of regulation 
nde by rallroarl commission under powers conferred by chapter 
€af^ LtwB I8W. H duty to public Justify. 




142 U. S. 396--416 Notes on U. S. Reports. 172 

Syl. 5 (XII, 86). Railroad commission expenses by State tax. 

Approved in Consolidated Coal Co. v. IlUnols, 185 U. S. 207, 46 
L. 876, 22 Sup. Ct 617, holding act May 28, 1879. lU., providing 
for appointment of State mine inspectors, fees payable by mine- 
owners, is not arbitrary or unreasonable within Fourteenth Amend- 
ment. 

Syl. 6 (XII, 87). Public burden not denial equal protection. 

Approved in Chicago v. Union Traction Co., 199 111. 269, 65 N. B. 
246, holding ordinance requiring street railway to clean street be- 
tween its tracks not violating equality and uniformity of legislation; 
Detroit, etc., Ry. v. Commissioners, 127 Mich. 229, 86 N. W. 846, 
holding under act 1893, No. 171, 8 5, commissioner is properly au- 
thorized to provide suitable safeguards at crossings of railroads and 
street railroads, and apportion the expense thereof. 

142 U. S. 396-410. 35 L. 1055, WIGGINS FERRY CO. V. OHIO^ 
ETC., RY. CO. 

Syl. 5 (XII. 8S). Estoppel applicable to points pleaded. 

Approved in Dennison Mfg. Co. v. Scharf Tag Label, etc., Ctf., 
121 Fed. 318, liolding decree sustaining demurrer to bill, and dis- 
missing same for want of Kf*neral equity, not bar to second suit for 
unfair competition; Ohio Uiver Ry. Co. v. Fisher, 115 Fed. 936, hold- 
ing decree rendered on demurrer is conclusive only on issues Joined 
by pleadings, and decree on validity of will as court's opinion not 
pleadable as adjudication; Kilham v. Wilson, 112 Fed. 573, hold- 
ing judgment for ^23.ooo for ranch in question bars an action In 
equity for accounting for J?r>(),000 or any part thereof. 

Syl. 9 (XII, 88). I*leudings amended party not unjustly 
prejudiced. 

Approved in Mossberg v. Nutter. 124 Fed. 967, holding decree ap- 
l>ealed from not being llnal. Circuit Court of Appeals upon request 
of trial judge will return records permitting supplemental bill on 
newly discovered evidence; Thomas v. Winne, 122 Fed. 398, hold- 
ing habeas cor[)us proceedings to discharge naval recruit, no issue 
of intoxication at enlistment presented by pleadings, no review of 
question on appeal thou;;h he testified: Havls v. Adnms, 102 Fed. 
52r>, holding in Federal Admiralty Court no technical rules of 
variance exist which prevents recovery, libelant showing meri- 
torious case, amendment allowable at any stage to conform to 
evidence; IJnion Cent. Life Ins. Co. v. Phillips, 102 Fed. 28, holding 
matters of amendments to pleadings, particularly trial amendments, 
are within discretion of trial court, its action not reviewable on 
writ of error. 

Syl. 10 (Xil, 80). Law indulgent regarding fixtures. 
Approved in St. Paul, M. & M. Ry. Co. v. Western Union TeL 
Co., 118 Fed 513, holding under contract permitting telegraph com- 



113 



Notes on U. S. Reports. 



14:: D, S. 411-4^*0 



|aii7 maintaining Its line for tea years on railroad property^ anil 

cmtmlninir no express provision concerning expiration, railroad 

cq[iiitsMj entitled to compensation only wbere use continued^ Balder 

▼* McClnrg, 196 111, 34, 92 Am. St Rep. 2GG, 64 N. E. 703, holding 

r of leased premlsea released retiring member of firm 

took lease of remaining partner for unexpired term on original 

trsde fixtures could be removed^ 

SyL U (XII. fiO). Ilaib aiiixed movable under agreement 

ApproTed In Western Union Tel. Co* v. Pennsylvania Co., 125 

Fed. TOt holding terms of agreement determine whether telegraph 

poles and wires erected along a raiiroad lose their character as 

Qcnonalty; Mercantile Trust, etc*, Co* v. Roanoke & S* lly. Co., 

IQB Fed. 11, holding railroad company laying tracii upon another's 

roadbed under agreement, such not part of realty, hut passes under 

prerions mortgage covering after acquired property; Young v. Con- 

•olldated Imp. Co., 23 Utah, 593, G5 Pac. 722, holding the mutual 

on of the terms and conditions of lease Included the right of 

to remove Improvements placed thereon by him. See 84 

Mm, 6t Rep. SS5, S8Q, note. 

112 D, & 417^50. 35 L. 1063. SIMMONS CREEK COAL CO. ?• 
DORAN. 
8yl 1 (XII. 89). Survey may Include all known calls. 
Approved in Belding v, Hebard, 103 Fed. 537, holding it Is a 
ttlfenal rule that permanent natural objects called for In a 
teimdaiy will control those which are less certain. 
ifl 2 I XII, S9). Instrument reformed for mutual mistake. 
Ipproved In Nlles v. Graham, ISl Mass. 48, 02 N. E. 987, holding 
•qvtty has power to decree re-execution of lost Instrument or one 
tlUi hts been wrongfully mutilated. 
8jt 5 <XIl, 89K Vendee must nse due cantlon. 
Approved In Mackey v. Gabel, 117 Fed. 877, holding bona fide 
lifCftiser of realty entitled to protection against equitable owner 
SVC actually pay valuable, not nominal consideration. 
?yl J fXlI, 89>. Vendee must notice facts In title papers. 
Af^ffoved Ln Empire State-Idabo. etc., Co. v. Bunker Hill, etc., 
OtW 121 Fed* 077, holding defendant owning several claims on 
ttae lode wltb complainant, extra lateral rights In controversy, 
will quiet title, action of ejectment being inadequate; Ver- 
T^ Wmiams, 112 Fed, 211, holding principal was affected 
^ igeilt'i knowledge, and was not Innocent purchaser against 
entitled to reformation, mortgage showing on its face 
deacrlption; Southern Bldg., etc., Assn. v. Miller, 110 
Hi, lit boldliig insurance by mortgagee being optional, company be- 
ttVlig Insolvent after insurance, mortgagor chargeable with notice 
Inii^ rtpioM premlnm without protest as to company selected. 



142 U. S. 450-471 Notes on U. S. Reports. 174 

Syl. 8 (XII, 90). Circumstances determine actual or constroctlve 
notice. 

Approved in Thomas v. Flint Co., 123 Mich. 36, 81 N. W. 945, 
holding latent defect in bridge, discovered by few, three days be- 
fore accident imposes no liability upon city upon constructive no- 
tice, reasonable diligence exercised, with knowledge. 

Syl. 11 (XII, 90). Actual occupancy sometimes necessary adverse 
possession. 

Approved in Nutter v. Brown, 51 W. Va. 603, 42 S. B. 663, hold- 
ing possession of land is notice of equitable rights, which need 
not be asserted unless occasion demands, since laches are not 
imputable to a peaceable possession. 

Syl. 12 (XII, 90). Circumstances determine what Is adverse 
possession. 

Approved in Sharp v. Shenandoah, etc., Co., 100 Va. 85, 40 
S. B. 105, holding occupying claimant conveying part of tract 
constituting actual possession, not whole, loses constructive pos- 
session of balance without taking actual possession thereof. 

(XII, 89). Miscellaneous. 

Cited in United States Mining Co. v. Lawson, 115 Fed. 1006, 
holding Federal equity court in State not requiring possession to 
quiet title bill must show affirmatively complainant's possession, 
or both out of possession. 

142 U. S. 450-458, 35 L. 1077, BOYD v. UNITED STATES. 

Syl. 3 (XII, 91). Conspirators liable for crime resulting. 

Approved in Powers v. Commonwealth, 110 Ky. 456, 61 S. W. 
754, holding one of several persons conspiring to do some other 
unlawful act committing murder, his coconspirators not criminally 
responsible as accessories before fact unless in furtherance thereof. 

Syl. 4 (XII, 91). Evidence of other crimes inadmissible. 

Approved in Bullock v. State, 65 N. J. L. 575, 86 Am. St Rep. 
G83, 47 Atl. 08, holding on trial of criminal charge not r^evant 
to show that defendant committed similar crimes in nowise con- 
nected with the one in question; Paulson v. State, 118 Wis. 99, 94 
N. W. 774, holding on murder prosecution it was error to admit 
evidence that three years previous to alleged crime defendant 
had been convicted of larceny. 

142 U. S. 459-471, 35 L. 1080, FISK v. HENARIE. 

Syl. 1 (XII, 91). Act 1887 restricted Circuit Court's Jurisdiction. 

Approved In McDonnell v. Jordan, 178 U. S. 238, 44 L. 1052, 
20 Sup. Ct. 889, holding application for removal of will contest 
to Federal Circuit Court for "prejudice," etc., under act August 
13, 1888. comes too late, first made after a mistrial; Fonlk r. 
Gray, 120 Fed. 163, holding suit in State court, neither party being 



Ill 



Notes on U. S. Reporta. 142 n» S. 471-4S8 



nsldent^Bult not removable Into Federal court for diverse citizenship, 
ander judiciary act 18S7-&58, unless parties waive jurisdictional 
objections; Parkinson v. Barr, 105 Fed. 8S, bolding no separable 
coatroTersy, not removable under judiciary act 1887-88 on diverse 
citizenship, onless all defendants are nonresidents of State of 
tcdon; Wabl v, Franz, im Fed. 683. toolding will probate in Arkan- 
ns Probate Court not *' sylt of chil nature " within judiciary act 
ISfiv permitting removal on local prejudice to Circuit Court; Penn- 
sflvania Co. v. Leeman, ItMD Ind, 21, 6G X. E. 50. holding on appeal 
from order denying removal, H appearing petition was subsequent to 
tmemled complaint and answer, complaint not In record, It i& pre- 
tamed difference between two complaints did not authorize removal; 
Thompson v. Sonthern Ry.» 130 N. C. 142, 41 S. E, 10» holding act 
0»n^es8 Augnst 13, 1886, providing for nonresident renoval to Clr- 
cnit Court foreign corporation domesticated under act February 10, 
19^, cannot remove without specifically alleging nonresldence. 
Syi 2 *Xn, 92). Act 1887 repealed act 1867. 
Approved in Ellison v. Louisville, etc., R. R. Co., 112 Fed. 808, 
. JWding defendant obtaining removal order without plain tiff *s no- 
itee. Circuit Court erred refusing to permit plaintiff seasonably 
thnfMil^T to contest allegations of the petition. 
Wjl 4 CXII, 92K Removal before final bearing act 1S87. 
ApjiroTed in Chauncey v. Dyke Bros., 119 Fed. 10, holding Bank- 
fliOtcj Court having acquired lawful custody of property, con- 
lIctlBf liens attaching, has jurisdiction to determine their priority, 
Itelgii trustee not Interested party. 
Ilyt 6 (XII, 92), Later repugnant act repeals former. 
Approved In Columbia Wire Co. v. Boyce, 104 Fed. 174. holding 
rr act creating Circuit Courts of Appeals, amended by 
KCt, again amended liMK>, no reference to act 189 j^ latter 
t&ffidjiuiry act was repealed likewise. 

112 U. 8. 4n-i7a Not cited. 

IC U. a 470^-lSa 35 L. 1087, IN RE FASSETT. 
Sjl I IXII, my Libel within District Court. 
Approved In The Marlon, 99 Fed. 450. holding salvage of vessel 
lii ctfgo. latter cannot be libeled and seized to dispossess cus- 
iMi olBcer bolding same under customs law^;. 
Byl a (XII, 93>. Want of Jurisdiction prohibition Issues. 
Afprored In Gonzales v. Williams, 192 U, S. 15, 24 Sup. Ct ISO. 
natlTe of Porto Rico, Inhobitant tbereof at treaty cession, 
lluml^ant within act Congress March 3, 1891, provld- 
itpoftatioD of aliens: United States v. Brown, 127 Fed. 
tidliSliii^ board of general appraisers authwlzed in section 
14 fmtowM administrative acti June 10, 1890, to decide case 



142 U. S. 488-510 Notes on U. S. Reports. 176 

submitted by customs collector, must first determine Its Juris- 
diction; The Underwriter, 119 Fed. 737, holding in American 
admiralty law, general tendency to hold vessel liable for her repairs 
and supplies, unless owner, with furnisher's knowledge, declines 
allowing lien; Dewell y. Mix, IIG Fed. 667, holding one valantarHy 
paying customs duties on imported merchandise from Porto Rico 
after treaty, before Foralier act; cannot recover same, collector 
having accounted with treasurer. 
Syl. 4 (XII, 94). Libel by owner in District Court 
Approved in De Lima v. Bidwell, 182 U. S. 175, 45 L. 1048, 21 
Sup. Ct 744, holding right of owner against customs collector to 
recover money exacted as duties not taken away by repeal of 
U. S. Rev. Stat., § 3011, or section 25 of customs administratiye act. 

Syl. 5 (XII, 94). Whether Import Circuit Court cannot determine. 

Approved in De Lima v. Bidwell, 182 U. S. 176, 179, 45 L. 1048, 
1049, 21 Sup. Ct. 746, holding appeal from collector to board of 
general appraisers under act June 10, 1890, does not include review 
of question whether article was imported or not 

142 U. S. 488-492. Not cited. 

142 U. S. 492-510, 35 L. 1092, NORTHERN PAO. R. R. V. WASH- 
INGTON TERR. 

Syl. 1 (XII, 94). Mandamus issuable compelling specific legal 
duty. 

Approved In Beasley v. Texas & Pac. Ry. Co., 191 U. 8. 487, 
498, holding public policy precludes decree for specific performance 
of covenant in deed in railroad^s right of way not to build de- 
pot ordered by State commission; Central Stock Yards Ca y. 
LouisviUe & N. R. R. Co., 118 Fed. 119, holding State cannot com- 
pel railroad to transfer cars of live stock to connecting road at 
connecting point within State, shipment being from another State; 
Page V. Louisville, etc., R. R., 129 Ala. 237, 29 So. 677, holding 
duty of railroad to maintain station waiting-room exists only by 
statutory regulations, or charter, or some legislative pow«r con- 
ferred upon railroad commission; Lewis v. Christian, 101 Va. 141, 
43 S. E. 333, holding oyster inspector permitting natural oyster 
ground to be staked off by private individuals violates Code, i 2158, 
mandamus proper remedy compelling him. 

Distinguished in Telegraph, etc., Co. v. Railroad, 52 La. Ann. 
1854, 28 So. 285, holding complainant seeking to force railroad to 
afford it equal facilities given rival, court may mandamus to 
compel like service to both. 

Syl. 5 (XII, 95). Mandamus inapplicable compelling building of 
depots. 

Approved in Jack v. Williams, 113 Fed. 829, holding court is 
not Justified in compelling owners of railroad to repair and operate 



in 



Notes on U. S, Reports, 142 U. S, 510-586 



rame at certain loss, and receiver may be ordered to dis* 
ftUe; Nashville, etc., Ry. Co. v. State. 137 Ala. 443, 34 So. 402, 
Ung absence of statutory authority, railroad commission may 
not order railroad where to locate station and what depots to 
balld: People t. Brooklyn Heights R. R„ 172 N. Y. 95, 96, 64 N, E, 
T». holdLog board of railroad directors having power to direct 
foaming of trains at certain Intervals, mandamus will not lie to 
ftttore abandoned service, 

112 U. 8. 510-546, 35 L. 1099, UNITED STATES V. DES MOINES, 
ETC,, RY. CO. 

SyL 1 fXtI« 95). Land department must reserve congressional 
psDta. 

Approred In dissenting opinion In Hewitt v. Schultz, ISO U. S. 
120, 45 U 473, 21 Sop. Ct 316, majority holdlug laud commissioner's 
ttitifiexte of deficiency In laud graiitt^ to railroad have no effect 
b e|«ctment ftgalnst railroad purchasers, department having not 
licosnlxed same. 

S^L 6 (XII, 96). No ladies against Federal government. 

Approved in French Republic v. Saratoga Vichy Co., 191 U. S. 
138^ holding French republic suing for proprletiiry right, instead 
«l goremmental, not entitled to exemption of nullum tempus* bnt 
Ucbes apply in full force; Moran v. Horslty, 178 U. S. 214, 44 L. 
lOll, 20 Bap. Ct 860^ holding State court sustaining defense of 
tgAlnst mining claim abandoned fourteen years, same he- 
town site, decision Independent of Federal question. 

SyL 11 (XII, 96 >, Courts cannot question legislature's good 
tatOL 

Ipproved In Taylor, etc. v. Beekham, etc., 108 Ky. 296, 94 Am. 
8t Rep. 366, 50 S. W. 181, holding legislature leaving full f)ower 
to determine contest elections and composition of said hoards courts 
ttf powerless to Inquire Into sufficiency of matters: State v, Su- 
paior court of MUwaukee Co., 105 Wis. 677, 81 N, W. 1054, hold- 
iBf city council's power being legislative, under Rev. Stat, § 1S62. 
fiiiTdlDg use of streets, court cannot enjofn passage of ordinance 
tteeto appertaining. 

tfl U. 6. 547-58e, 35 L. 1110, COUNSELMAN v. HITCHCOCK. 
4rt 1 (XI, 96), Eefusal to testify construed broadly. 
Apfvored In In re Nachman, 114 Fed. 1^)5, holding, under Const. 
E S^t amend. 5, relieving person criminally charged from testify- 
lag; wltacis to bankruptcy proceedings, may avail himself of 
msmm provtaton; State v. Donovan, 10 N. Dak. 208, 86 N, W, 711. 
' tectton 13, State Const, providing shield for person against 
of prlTate books In criminal cases, not applicable to 
of druggist. See 75 Am. St Rep. 322, 346, note. 
Tol, 111 — 12 




142 U. S. 547-586 Notes on U. S. Reports. 178 

Syl. 2 (XII, 97). Fifth Amendment includes grand Jury pro- 
ceedings. 

Approved in United States v. Rosenthal, 121 Fed. 866, holding 
no officer of department of Justice is authorized by sections 358, 
367, U. S. Comp. Stat. 1901, pp. 207, 209, to conduct proceedings 
before grand jury; State v. Gardner, 88 Minn. 138, 92 N. W. 533, 
holding defendant in criminal case compelled to be witness against 
himself before grand jury, it is violation of constitutional guar- 
anty, and court must quash indictment; People v. O'Brien, 176 
N. Y. 261, 263. 265. 266, 267, 268. 68 N. E. 354, 355, 356, 357, hold- 
ing, under Const., art. 1, § 6, relieving witness from incriminating 
himself in criminal case against another, one cannot be compelled to 
testify under Pen. Code. § 342. absolute immunity being essential; 
Ex parte Wilson, 37 Tex. Cr. 638, 47 S. W. 1000, holding constitu- 
tional provision that accused need not give evidence against himself 
applies to testimony before grand jury as well as court; Thortou v. 
State, 117 Wis. 341. 93 N. W. 1108, holding in prosecution for 
assault to commit rape, evidence admitted to compare tracks at 
place of assault not invasion of personal rights guaranteed by 
Constitution. See 75 Am. St. Rep. 320. note. 

Syl. 3 (XII, 97). Accused may refuse giving incriminating tes- 
timony. 

Approved in Matter of Peck v. Cargill, 167 N. Y. 395. 60 N. E.- 
77(>. holding petition stating that petitioner believes certain facts 
exist constituting crime, without stating grounds for belief, no 
basis for revocation of liquor tax certificate. 

Syl. 4 (XII, 97). " Criminal prosecution " narrower " criminal 
case." 

Approved In Couuselman v. Ilitchcock, 122 Ala. 488, 26 So. 173, 
holding action against railroad for wrongful killing of deceased, 
court alleging ** negligently and carelessly and willfully " done 
does not charge ** gross carelessness." 

Syl. 6 (XII, 97). Witness need not incriminate himself. 

Approved in Newgold v. American, etc., Mfg. Co., 108 Fed. 342, 
holding, though party produced certain books in equity suit, same 
no waiver right to refuse production in another action where 
same would furnish evidence against him; State v. Burrell. 27 
Mont. 287. 70 Pac. 984, holding bankrupt act shielding the giving 
of incriminating evidence does not prevent evidence incriminating, 
such obtained from bankrupt's testimony; Matter of Oreen, 86 
Mo. App. 220, 221, holding witness may refuse to testify If testl- 
timony will incriminate, and refuse to answer questions for same 
reasons; Ex parte Arnot Carter. 100 Mo. 013. 60 S. W. 543, hold- 
ing Rev. Stat. 1809, § 2200. violates Const, art. 2. § 23, inasmuch 
as witness cannot be compelled to give incriminating evidence. 



l<f Notes on tJ- S. Reports. 142 U. S. 547-586 

SjrL T tXH^ 98), Gonatitutiona] privilege iimiffeeted by Rev. Stat* 



I 



ApproTed in WyckofT v. Wagner Typewriter Co., 99 Fed. 159, 
whether witness' answcT may reasonably tend to orimi' 
» him, under Rev. SLnt.. | 8tjii, is determinable by court in view 
kieadings aDd other testimony. 

SyL (XII, 98j. Witness need not dlBclose connecting circura- 



AppfoTed in In re Kajiter, 117 Fed. 357* holding banitrupt charged 
Ift State court with crimes involved In bankraptcy proceedings, 
Ittftkropt need not furnish books of aceoiini. same tending to in- 
efhniiMite hJm; La Bourgugne, 104 Fed. S24« hokllng thongh 
iifwers under admiralty rules SI and H2 shows loss through his 
'prititf,** depriving of limited llahillty under Rev, Stat, | 42SS, 
refosaJ J>ot permlBsible, los^^ not being forfeiture; State v. Height 
117 towa, 636, 657, 659, 91 N. W. 93(>, 94 Am. St Kep. 'S27, 328, 330, 
HoMlug compulsory physical examination of person aceused of rape 
to determine existence of venereal disease violates Const, art 1» 
IftiUid evidence is Inadinlssihle; Blum v. State, m Md. 385, 51 Att 
iOllkOidfiig person cannot be compelled to produce private account- 
IttoU in conduct of his business, as evidence in erimlnnl prose* 

$;L 10 (XIl^ 08). Statute permitting prosecution cannot supplant 

CoDldtlltiOD. 

Apnroved in In re Xachmau, 114 Fed. 990, holding bankruptcy 

*S, I 7, being protection only against use of witness iesti- 

'**.Mi> lu Federal prosecution, provisions of Const U. S,, amend. 5, 

i« in V oka hie, 

$fi* 11 IXII. W). Fifth Amendment affords complete immunity. 

-Approved in United States v. Kimball, 117 Fed. im, holding 

Coile Crira, Proc. N. Y., § 393. permitting defendant to tes- 

Uff IS wltne^ In his own behalt applies only to ** defeiul- 

!«»*• or those charged, being narrower than constitutional 

ffOTlfliOfi; lo re Sbera. 114 Fed. 208, holding sttuation being 

MtU as seemii to put him In hazard, bankrupt cannot he 

i9ai|iet)fd to answer questions tending to ineriminate; Foot v. 

lis Fed, 159, trJO. holding under Rev. Stat., i 800, wit- 

10 cmw^ Involving violation of commerce, need not testify, said 

not foUy exempting witness from prosecution on hia 

In re Smllh. 112 Fed, 509, holding banivruptcy trustee 

mnmUd onder bankruptcy act 1S1>8, t 29q, for misappropriating 

fnda. may refii»e to answer question tending to Inrriniinate; 

la f» Wiltlt lOI J*Vd- 519. hoidlng bankruptcy act 1898, f Ta. su!>d. 

H Mfif itiort of ftiM Immunity from prosecution under Const., 

Illiind. ^ Qooe compMed to give Incriminating testimony; lu re 



142 U. S. 687-622 Notes on U. S. Reports. 180 

Feldstein, 103 Fed. 271. holding bankruptcy act, | 7a, subd. 9, 
securing bankrupt against criminating evidence, does not sufficiently 
secure immunity to witness under Const, amend. 5; People y. 
Butler Street Foundry, 201 111. 248, 255, 66 N. £. 352, 355, boldin^ 
immunity granted by anti-trust law 1891, amended 1893 (Hurd's 
Rev. Stat 1899, pp. 616, 617, in §§ 7a, 7b), is coextensive with con- 
stitutional immunity matters outside State not involved; State y. 
Faulkner, 175 Mo; 609, 75 S. W. 136, holding if witness' constitu- 
tional privilege be wrongfully refused and he be imprisoned for 
contempt, habeas corpus will give redress or In yielding, Judgment 
will be reversed. See notes, 87 Am. St Rep. 182, 183: 75 Am. St 
Rep. 319. 

(XII, 96). Miscellaneous. 

Cited in Burk .v. Putnam, 113 Iowa, 234, 84 N. W. 1053, holdinif 
Acts 27th Gen. Assem., chap. 108, § 1, prohibiting husband and 
wife being witnesses against each other except in civil cases by 
Judgment creditors, not unconstitutional. 

142 U. S. 587-615. Not cited. 

142 U. S. 615-622, 35 L. 1134, UNITED STATES y. ALABAMA* 
ETC., R. R. 

Syl. 1 (XII, 100). Executive construction favored cases of am- 
biguity. 

Approved in United States v. Flnnell, 185 U. S. 244, 46 L. 803, 22 
Sup. Ct 636, holding clerk of District and Circuit Court entitled to 
per diem compensation under act March 3, 1887, chap. 362, otherwise 
uniform statutory construction of treasurer would be overruled; 
Fairbank v. United States, 181 U. S. 308, 45 L. 873, 21 Sup. Ct 058, 
holding practical construction of constitutional provision by legis- 
lative action is entitled to no force except in cases of doubt: 
Hewitt V. Schultz, 180 U. S. 157, 45 L. 472, 21 Sup. Ct 315, holding 
cert ill catc of commissioner of land office of deficiency in railroad 
grant of no effect in ejectment against purchasers from railroad, 
same never recognized by department; Hawley v. DiUer, 178 U. S. 
488, 44 L. 1102, 20 Sup. Ct 990, holding secretary of interior has 
Jurisdiction to reverse decision of commissioner of general land 
office under U. S. Rev. Stat, {§ 2450, 2451; Nunn v. Gerst Brewing 
Co., 99 Fed. 942, holding tariff act 1897, took effect when signed by 
president at 4:04 o'clock, p. m., July 24th, and exact time may be 
shown if material under Rev. Stat., § 3341; Boston Ins. Co. y. 
Chicago, etc., Ry. Co., 118 Iowa, 430, 92 N. W. 91, holding whole 
matter of railroad's carrying mails being relegated to postmaster- 
general, he determines whether duty was created by statute or 
contract 

Syl. 2 (XII, 100). Construction should not be retroactive. 

Approved in Nelson v. Northern Pac. Ry. Co., 188 U. S. 140, 23 
Sup. Ct 314, 47 L. 419. holding continuous occupation of public 



Notes on U. S. Reports. 142 U. S. 022-651 



hods, bona fide Id ten Hon to acquire homestead title after survey, 
constitutes •* claim ** begun prior to definite railroad location; State 
f. United States Fidelity Co., 93 Md, 318 (see 48 AO. 920), holding 
tii imposed Code, art. 81. f 140. amended by act 1896, chap. 120, 
Itmlted to ^oss receipts on business of companies within State. 
exdoding Interstate business. 

112 U. S. 622-636, 35 L, 1136, SOUTH BRA^TH LUMBER CO V, 
OTT. 

SyL 1 (XII, 100). State's statutory assignments followed by 
Sapreme Court. 

Approved in Robinson, etc., Co. v. Belt. 187 U. S. 46. 23 Sup. Ct 
IS^ 47 L. OS, holding validity of assignments for bent^flt of creditors 
requiring i^ease as condition of preference determinable by State 
Iiw as Interpreted by highest State court; Sullivan Timber Co. v. 
Mobile* 110 Fed, 190, holding tboogb riparian rigbts in Alabama 
faiTe never been expressly defined, Supreme Court judicaliy notices 
LgtorloQs usage in given locality; Ontario Bank v. Hurst, 103 Fed. 
335^ boldlng Michigan statute (section 8739, How. Anno. Stat), rela- 
tive to no preferences to creditors in " common-law assignments." 
constrxjction by State Supreme Court will bind Federal courts. 

SjL 4 (XII, 101). Intention existing instruments become general 
iMlgnmeDtB. 

Approved In Ontario Hank v. Hurst, 103 Fed. 233, holding gen- 
♦nl debtor has right to secure bona fide creditor, and though giv- 
ing preference, such are not regarded as fraudulent. 

(Xn, lUO). Miscellaneous. 

Cited in Cunard SS. Co. v, Kelley, 115 Fed, 605, holding bank- 
ruptcy trustee seeking legally to enforce bankrupt's title to per- 
•oottty will be subject to aU claims against bankrupt not In fraud 
el Umkniptcy law. 

m U. S. 636-643. Not cited. 

M U, 8. 644"€51, 35 L. 1144, PETRI V. COMMERCIAL NAT, 
BANK- 

SyL 4 (XII. 102). Act 1882 curtails national banks* rights. 
Approved In Speck ert t. German Nat. 6ank» 98 Fed. 153. holding 
of removal given receiver of national bank by Federal stat* 
i^ppUes only to cases where he Is necessary party to the action. 
8yL 7 (Xn, 102)* Act 1887, national banks as individuals. 

to CoDtlnental Nat. Bank v. Buford, IQl U. B, 122, 124, 
r noder net August 13, 1888, Circuit and District Conrts have 
» JvriBdfetfOD orer national banka other than In cases betweco 
Mtrtdcal cHiiteas of same State, 




142 U. S. 651-664 Notes on U. S. Reports. 182 

142 U. S. 651-664, 35 L. 1146, EKIN v. UNITED STATES. 

Syl. 1 (XII, 102). Supreme Court reviewing cases inyolving 
Federal law. 

Approved in Rice v. Ames, 180 U. S. 374, 45 L. 581, 21 Sup. Ct 
407, holding construction of extradition treaty being involved, under 
Court of Appeals act March, 1891, § 5, appeal may be direct from 
District to Supreme Court. 

Syl. 7 (XII, 103). Executive officer determines immigrant alien'tf 
right. 

Approved in In re Sing Tuck, 126 Fed. 388, 389, 390, holdin;; 
Chinese applying for admission to United States failing in making 
good his claim, adverse decision of inspector not appealed from is 
conclusive; United States v. Williams, 126 Fed. 254, holding lmmt> 
gration act March 3, 1903, chap. 1012, § 2, 32 Stat. 1214 (U. S. Conip. 
{Stat Supp. 1903, p. 172), excluding anarchists from United States, 
not in contravention of Const, amend., art. 1; State v. Hulgin, 110 
Wis. 235, 85 N. W. 1057, holding if. in habeas corpus suit against 
sheriff, he is required to restore prisoner to liberty, he is aggrieved 
party entitled to be heard on appeal. 

Syl. 8 (XII, 103). Habeas corpus merely determines detention 
legality. 

Approved in Lavin v. Le Favre, 125 Fed. (595, holding whether 
executive officers of government, in deporting alien emigrant, are 
proceeding legally is judicial question, which may be inquired Into 
on habeas corpus; Chow Loy v. United States, 112 Fed. 301, hold- 
ing sutlieieiit grounds for detention of prisoner being shown, he 
cannot be discharged on writ habeas corpus for defects or Irreini- 
larities in form of conunituient; dissenting opinion in Motherwell 
V. United States, 107 Fed. 455, majority holding deserter frona navy 
of foreign government in custody of United States is reloasable 
under habeas corpus, treaty not giving foreign officers constructive 
custody. 

Syl. 11 (XII, 104). Inspectors not required to take testimony. 

Approved in In re Lee Lung. 102 Fed. 133, holding under act 
August 18. 1894 (28 Stat. 390), adverse decision of customs or immi- 
grant officer to Chinese landing not reviewable in Circuit Court 
on habeas corpus. 

Syl. 12 (XII, 104). Inspector's decision final against alien. 

Approved in The Japanese Immigrant Case. 189 U. S. 97, 100, 23 
Sup. Ct. 613, 614, 47 L. 724, 725. holding Federal courte will not 
intervene by habeas corpus to prevent deportation by governmental 
executive officers under acts October 19, 1888, chap. 1210, March 8, 
1891, chap. 551; Lee Lung v. Patterson, 186 U. S. 174, 175. 46 L. 
1110. 22 Sup. Ct 797, holding customs collector disregarding Chinese 
certificates made evidence in their behalf by statute does not lose 
Jurisdiction of finally determining right claimed; In re Lee Plug, 



Notes OD U. S. Reports, 142 U. S. 064-701 



UH FeiL 679, holding Cliinese exclusion act (23 Stat. 117) commits 
^puiftion of CMnese enti-y to customs collector with right of appeal 
to tressor^, and makes their decision final; United States v. Yama- 
nka, 100 Fed. 407, holding secretary's decision uader act October 
10. 1888 (25 StaL 566>» not made conclusive, as decisions denying 
tigkt to t&nd unaftects Its validity, so long as unreversed; United 
StilM w. Gin Fung, 100 Fed. 390, holding under act August 18, 
WW (28 8taL 390), declsIOD of customs or immigrant officer shall 
le fiaa], unless reversed on appeal to secretary of treasury. 

(XII, 102), Miscellaneous. 

ated In State v. Overman^ 157 Ind. 145, 00 N. E, 1019, holding 
rad€r Const., U. S.» art. 4, S 2, Indiana sheriff secretly conveying and 
iHeating insane person In Ohio, the infirmary thereof cannot man* 
dtJiiits stiertfT to receive party back. 

S42 U. S, 6*W-^iS2. Not Cited. 

142 U. S, dS2-4590» S5 L. 1157, CLARK v. SIDWAY. 

8yL 2 (XII, 105). Joint purchase creates tenancy In common. 

Approved in Trice v. Yoemau, 8 Kan. App. 540, 54 Poc. 281), hold- 
ing promise to pay third person debt due him by promisee enforce- 
able by promisee against promisor without waiting for third person 
to sue thereon, 

in U. S. GOl-701, 35 L. IIGO, HOME BENEFIT ASSN. v. SAR- 
GENT. 
SjL 1 <X1I, 105j. Direct examination touching cross-ex a ml ua- 
tfoo €oiitpletes. 

Apuroved In Walsh v. Peterson, 59 Nebr. 052, 81 N. W. 855. hold* 
b»^ witness relating portion of conversaliou or transaction on his 
direct ej^amination, he may be cross-examined as to the entirety. 
fL 3 <XI1, 105). Plaintiff may prove death disregarding suicide. 
(yproved in Sbarland v. Washington Life Ins. Co., 101 Fed. 211, 
holding copy of findings on coroner's inquest Is admissible on 
lit of Insurance compnny, same being prima fade defense of 
CX Seitzinger v. Modern Woodmen. 204 IlL 03, 08 N. E. 479, 
Dir membership certificate in beuelicial society restiictlng 
wttliXJi llir«?e years •* dying by his own hand whether sane or in- 
! " firecludes recovery within limit though party insane; Dicker- 
T. Northwestern Mut. Life Ins. Co., 2m 111. 274, 65 N. E. am, 
policy providing against Insured's self-destruction whether 
• or Insane In avoiding Insurance^ no proof of Insanity, insured 
cooaclous In the act; Supreme Lodge v. Celbke, 198 III. 
K. B. 1059. holding insurance certificate made void insured 
oe or Insane, company not liable unless insured was 
wboQy unconscious of his acts; Laessig v. Travelers* Protective 
AmUL, Ida Mo. 281, 6Q S. W. 471, holding plaintiff in action on acci- 
iiBt poUcf lias burden of proving accidental death though defend- 




IDXIJII UNITED STATES. 



I 



m a a 1-1T» 36 K 55, LODISVILLE WATER CO. v. CLARK. 
VI I (XII, lOTj. General act repeals prior speciaf act. 
Allured in Gulf & Ship Island R. E. Co. t. Hewes, 183 n« 8. 
Ti 48 Lw 00^ 22 Sup. Ct 29. bolding question whether exemption 
from itxadon for term of twenty years, which Miss, act February 
II 1SS2, f IS, gives to railroad thereby incorporated, was repealed 
bf Co6fi of 1892» not reviewable In Supreme Court; Deposit Bank 
«f OwpBsboro t. DaTless Co.. 102 Ky. 189, 201, 39 S. W. 1034, 1(>37. 
:«uldlDg where under Hewitt bill of 1886, which was accepted by 
?aflt«, baulis were required to pay tax of seventy-live cents on each 
•liwe of flOO. value In full for all taxes and later State tax rate 
"cJocetl to forty-two and one-half cents, property became subject 
" locnl taxation, 
SyL 3 (XII. 107). Repeat of tax exei^ptlon. 

ipprored In LoHlBTille & X. R. R. Co. v. Kentucky, 183 U. S. 
Sta 40 L. 306, 22 Sup, CL 101, holding? railroad accepting charter 
•ol^Mt to provisions of Ky, Const., g 218, prohibiting gfreater charge 
f«r slMHt than for long haul, cannot claim Implied contract exemp* 
from sneb provisions by virtue of charter; Stoarnes v. Minne* 
U 17» U. S, 240, 259, 45 U 172. 180, 21 Sup. Ct. 70, 87, upholding 
rBBtmcts between Minnesota and railroads mnde by nets of Fehru 
Mif 23^ ItiOS, and March 4. 1870, whereby State exempted companies 
fmtm sU other taxes until sale or lease of the lands, or sale of 
^tiUDtNige thereon. In consideration of percentage of gross earnings; 
XrwbiUTport Water Co. v. City of New bury port, llXS Fed, 587, 
where legislative franchise granted to private corporation to 
wmtcp- works to supply city with water Is not exclusive, sub* 
MQiieiit rrant to city of right to build competing water-works does 
BPf roantltute taking of corporation's property or franchise within 
IR wif t e e n fli Amendment See 90 Am. St. Rep. 253, note. 

^^ r, S, 15^-28. 36 L. m. DISTRICT OF COLUMBIA v. HUTTON. 
SyL ] (XII, lOS). Statutes In pari materia. 

ApproTod iJJ Lloyd v. Supreme Lodge K. of P„ 98 Fed. 7L up- 
acddinf article of bylaws of Supreme Lodge, Knights of Pythias, 
nladaf to conditions of insurance of members of endowment rank; 
"^■fHpflt T. Talley. 3 Pennew. (Del). 98, 47 Atl. 1012. holding Rev. 
(Mt, pk S28t i ^ UiBiting amount which might be raised by tax 

tl85J 



^ 



I 



143 U. S. 28-60 Notes on U. S. Reports. 186 

for purpose of building or repairing sehoolhouse to sum of $500» 
Impliedly repealed by 21 Del. Laws, chap. 67, S 14. See notes, 88 
Am. St Rep. 27G, 270. 

143 U. S. 28-32, 36 L. 63, NATIONAL STEAMSHIP CO. T. 
TUGMAN. 

Syl. 3 (Xll, 108). Evidence — Affidavit used to obtain leave to 
amend. 

Approved in Sharland v. Washington Life Ins. Co., 101 Fed. 211, 
holding copy of findings of coroner's inquest furnished by bene- 
ficiary Id life 'insurance policy as part of proofs of death of insured 
is admissible on behalf of Insurance company, in action on policy, 
as prima facie evidence to establish defense of suicide. 

143 U. S. 32-41, 36 L. 64, SIOUX CITY, ETC., LAND CO. T, 
GRIFFEY. 

Syl. 1 (XII, 108). Railroad grants — TiUe on filing definite 
location. 

Approved in United States v. Oregon, etc., R. R. Co., 176 U. S. 
43. 44 L. 304, 20 Sup. Ct. 206, holding filing of map of general rente 
of Northern Pacific railroad did not, prior to filing of map of d^n- 
ite location, constitute such disposal of lands within exterior lines 
of route as to preclude subsequent grant to another company; 
Southern Pac. R. R. Co. v. United States, 100 Fed. 923, holding 
line of Texas Pacific never definitely fixed in California on rente 
surveyed between Gumond and San Diego, so as to give that road 
right to lands adjacent to such line which would prevent such lands 
from passing to Southern Pacific under grant to that company; 
Wilbur V. C. R. & M. R. Ry. Co., 116 Iowa, 67, 89 N. W. 102, 
arguendo. 

Syl. 3 (XII, 109). Government alone can attack pre-emptIoner*s 
bona fides. 

Approved in Jones v. Oemler, 110 Ga. 213, 35 S. B. 380. holding 
under act relating to lease of State lands for oyster planting, State 
alone can proceed in courts to declare forfeiture of lease for failure 
to comply with terms of laws. 

143 U. S. 42-60, 36 L. 66, NEW ORLEANS, ETC., RY. CO. t. 
PARKER. 

Syl. 1 (XII, 109). When aggregate claims determine Jurisdiction. 

Approved in Illinois Cent. R. R. Co. v. Adams, 180 U. S. 40, 45 
L. 414. 21 Sup. Ct. 255, holding bill for Injunction against taxes 
brought by railroad against revenue agent who represents all par- 
ties interested sufllciently states Jurisdictional amount when it 
alleges that taxes assessed amount to specified sum, much larger 
than Jurisdictional amount; Overby v. Gordon, 177 U. S. 218, 44 
L. 743, 20 Sup. Ct 005, holding amount of estate which passes by 



Notes on U. S. Keporta. 



143 U. S. 60-75 



vin. If that U held Yolid, coustUutes Qiatter in dispute without 
p%Mfd to amount of Interest of any one of contestiints. 

SjrL 5 *XII. 110). Land not forming part of railroad — Mortgages. 

JifiproTea in Chicago, etc., li. R. y. MeGulre, 31 lud. App. 114, 
d X* 8b 833, holding under railroad mortgage covering after ac- 
qnlretl property connected with or appertaining to railway, property 
idivlred mfter execution of mortgage adjacent to depot and used 
for stoceg did not pass. 

8yL S (Xll, 110). Mortgage bondholder must act for all. 

Appfm^ in Kimber v. Gannell Gold Min., etc., Co., 126 Fed. 
l^ holding fact that prospective levy against a defendant In an 
MtiOD at law would be worthless is no defense to action. 

143 n. S. 00-75. 3G L. 71, NEW YORK, ETC, R. R, CO. v. WINTER 
^jL 1 <XII^ 110). Passengers not presumed to know carrier's 






Approved in Erie R. R v. Littell, 12S Fed. 551, reaffirming rule. 
SyL 2 ♦Xll, 110). Carrier's — Admissibility of agent*s statements 
ss to stopover. 

Approred in JeCfersoo Hotel Co. v. Warren, 128 Fed. 5G8. hold- 
Jaip lo action for destruction of guest's baggage in hotel fire, evi- 
defier that on guest complaining to clerk that he did not desire a 
rpoia KS high &b fourth Qoor clerk assured him that hotel was 
fireproof was admissible; Sco^eld v. Pennsylvania Co., 112 Fed. 
S5H. S30. 861, holding where railroad agrees ti> transport passenger 
lictween speciHed points with right to stop off at intermediate point, 
sj»d ticket coupon covering distance between such points is taken 
up l»jr conductor before reaching intermediate point, conductor of 
to* - •-• " t-annot eject passeJiger, 

i^hc'd In Rolfs v. Atchison, etc.. Ry. Co., 06 Kan. 280, 71 
P»tv o-i*, holding in action by passenger for ejection from train 
wbrre ticket shows on face that It will expire on date punched, 
sljitem<>ntfl of ticket agent at time of sale contradictory to ticket 
mrm InadciiiH&ihle. 

Syi- 5 (Xil, 111). Breach where party done all contract requires, 
Aptirwred In Penn. Co. v. Lenhart, 120 Fed. 63, holding where 
Llotiff iicld mileage ticket which must be presented at ticket 
eOee for exchange ticket but ticket agent did not have such 
tiekcta, conductor could not eject plaintiff for failure to pay cash. 
Syl 6 (XII, 111), Resistance of ejection by passenger. 
Appmred in Erie R. II. v. LIttell, 128 Fed. 552, reaffirming rule. 
DmSDgDlshed In Monnler v. N. Y. C. & H. R. R. R. Co., ITS N. Y. 
W* 96 Ana. St, Rep. , 67 N. E. 571, holding passenger who re- 
tmam lo pay additional fare cannot invite personal collision and 
mm roiiipiany for damages for assault for ejection. 




143 U. S. 76-99 Notes on U. S. Reports. 188 

Syl. 7 (XII, 111). Instructions substantially as requested are 
unobjectionable. 

Approved in Netherlands, etc., Nav. Co. v. Diamond, 128 Fed. 
574, holding where in action for injuries to servant of elevator 
company by falling into hold of vessel, court sufficiently stated rule 
as to contributory negligence, it was not bound to give requested 
instructions directing Jury's attention to plainttfTs particular acts 
bearing on such question; Pennsylvania R. R. v. Palmer, 127 Fed. 
059, applying principle in action for wrongful ejection from train; 
Western Union Tel. Co. v. Morris, 105 Fed. 56, applying rule In acH 
tiou for damages for negligence In transmitting telegram. 

Syl. 8 (XII, 111). Excesslveness of verdict not determinable on 
error. 

Approved in Texas, etc.. Pacific R. R. Co. v. Behymer, 189 U. 8. 
469, 23 Sup. Ct 622. 47 L. 906, applying rule In action by railroad 
employee for damages for personal injuries; Graves v. Sanders, 125 
Fed. 693, applying principle in action to recover attorney's fees; 
Metropolitan St. Ry. v. Jocobi, 112 Fed. 925, applying principle In 
action for damages for personal injuries; Sun Printing & Pub. Assn. 
V. Scheuck, 98 Fed. 930, applying rule in action for libel. 

143 U. S. 76-79, 36 L. 81, UNITED STATES v. WITTEN. 

Syl. 1 (XII, 112). Stealing spirits as defense — Distiller's bond. 

Approved In United States v. National Surety Co., 122 Fed. 910, 
lioldlug sureties on distiller's official bond not relieved from lia- 
bility by execution of warehousing bond given pursuant to Rev. 
Stat., § 3293. 

143 U. S. 79-99. 36 L. 62, TYLER v. SAVAGE. 

Syl. 1 (XII, 112). Scope of equity jurisdiction. 

Approved in Mack v. Village of Frankfort, 123 Mich. 425, 82 N. 
W. 211, holding Circuit Court has no jurisdiction under Miller's 
Comp. Laws, §§ 415, 433, of bill In equity against village and Its 
officers, to recover money judgment on village bonds, when no 
Injunction asked, though fraud In Issuance of bonds alleged. 

Syl. 2 (XII, 112). Legal remedy must be as efficient as equitable. 

Approved in Rochester German Ins. Co. v. Schmidt, 126 Fed. 
1002, holding where several Insurers were only pro rata liable for 
loss if liable at all, and several suits In State courts have been 
brought against them to which same defenses were interposed, and 
some were removed to Federal courts but others could not be re- 
moved. Federal court may enjoin both Ffederal and State suits by 
bill to adjust liabilities of insurers; Barrett v. Twin City Power Co., 
lis Fed. 865, upholding jurisdiction of bill praying appointment of 
receiver to complete purchase of water right options transferred to 
defendant; Schmidt v. West, 104 Fed. 274, upholding Jurisdiction 
over suit to cancel forged note, brought by purported maker against 



m 



Notes on U. S, KeporU. 



143 U. a 99-186 



I«j«^ wbo Is alleged to be asserting valltlity of sweh note and 
ittmpting to negotiate same, wbere under State statute note will 
iMit be tAarred for eleven years; Gregg v. Thurljer, 69 N. H, 4S3, 45 
aU, 113, applying rule in determining priority of mortgages. 

SyL 4 {XU, 113), Adequacy of legal remedy raised first on 
ippeal 

Aiijiroved In Highland Boy Gold Min. Co. v, Strlcltley. 116 Fed. 
f&i reaffirming mie. 

la u* & 9e-iia se l. 90. smale v. mitchell. 

?yl, 4 fXlI. 114), Courts — New trial In ejectinent as of right. 

ApProred tn Files t. Davis. 118 Fed, 46S. upholding Federal juris- 
dictioo of action on attachment bond issued In suit pending in 
f>dienl court 

IC U. &. 110-135, 36 L. 93. IN KE RAPIER. 
^L 1 (XII, 114), Validity of lottery act of 1890. 
Afiptrored In State v. M'Kee, 73 Conn. 30. 40 Atl. 414, upholding 
fnh. Acta 1886, chap, 205, $ 2, prohil)itlng sale or possession of 
Cioo or newspaper devoted to and prlndimlly made up of 
news, police reports, pictures and stories of bloodshedt 
crime. 
ft, 2 <XIl, 114). Congressional power over mail. 
approved In American School of Magnetic Healing v. M*Annulty, 
F«d* 666, holding under 26 Stat, 406, postmaster-general may 
' Jlrect thmt all letters addressed to certain parties be returned to 
dissenting opinion in Lotterj* Case, 1S8 U. S. 3tj5, 366, 23 
CL 330, 47 L, 505, majority holding carriage of lottery tickets 
State to another by express Is interstate commerce which 
may prohibit by malting it penal, 
3 (XII, 114). Exclusion of matter from mails — Freedom 



Aipprored In State v, McKee, 73 Conn. 24, 46 Atl 412, upholding 
Flib. Act* 1805, chap. 205, f 2. prohibiting sale or possession of 
fvblicvtloii or newspaper devoted to and prlndpnlly made up of 
crliiiliiiil new8» police reports, pictures and stories of bloodshed, 
crime; People v. Most, 171 N. Y. 431, 64 N. E. 178. holding 
Of artlcie which Instigates murder and revolution is 
M^ under Penal C<^)de, § 675, punishing persona who com- 
: me9» endangering public peace, 

Ua U. a 135>1S0, 36 L. 103, BOYD ▼. NEBEASKA EX BEL. 
THAYBR 

9jU S <X1I. 115). Congress alone can establish naturalization 



A9Qrot#tS l0 United States v. Severlno, 125 Fed. 053, 054, up^ 
nMt^ Ppderal court's Jurisdiction of prosecution for periury com^ 
tftM la jmturall nation proceedings In State court 



143 U. S. 135-18G Notes on U. S. ReportB. 190 

Syl. 5 (XII, 115). Review of State decision to try title to office. 

Approved in Erie It It v. Purdy, 185 U. S. 153, 46 L. 850, 22 
Sup. Ct. 007, denying Supreme Courtis Jurisdiction to review State 
judgment sustaining New York mileage book act of 1895; Taylor 
V. Beckham (No. 1). 178 U. S. 571. 582, 594, 44 L. 1198, 1202, 1207, 
20 Sup. Ct. 902, 1013, denying Supreme Court's Jurisdiction to re- 
view State decision against claimant to office of governor. See 04 
Am. St Rep. 379, note. 

Syl. 5 (XII, 115). Leaning in favor of citizenship. 

Approved in Downes v. Bidwell, 182 U. S. 290, 45 L. 1108, 21 Sup. 
Ct 788, holding Foraker act of 1900 temporarily providing civil 
government and revenue for Porto Rico. 

Syl. 10 (XII, 115). Collective naturalization on admission of 
State. 

Approved in Bahand v. Bize, 105 Fed. 486, holding inhabitants 
of Nebraska at time of its admission, who had previously thereto 
declared before court of record, intention to become citizens of the 
United States, were by enabling act created naturalized citizens of 
the United States. 

Distinguished !n Coutzen v. United States, 179 U. S. 195, 45 L. 
150, 21 Sup. Ct 91), holding alien minor who had resided in Texas 
less than six montlis before admission of that State, and was not 
resident at time of its Declaration of Independence, and liad never 
taken oath of all(';;laiiee to Texas was not citizen of Texas so as to 
become citizen of United States without naturalization. 

Syl. 11 (XII, 115). Admission on equal footing with original 
States. 

Approved in Bolln v. Nel)rnska, 176 U. S. 88, 44 L. 384, 20 Sup. 
Ct. li.yj. lioldiii;; Fifih Amendment requiring indictment by grand 
jury in felony cases, not applical)le to procedure in Neljraska. 

Syl. 12 (XII, 115). Declarants as citizens on admission of 
Nebraska. 

Approved In Littell v. Krie R. R. Co., 105 Fed. 539, holding alle- 
gation that plaint ifT is citizen of United States and actual resident 
of State named, is suflicient allegation of his citizenship in such 
State for jurisdictional purposes. 

Syl. 14 (XII, 115). Effect of parents' declaration of intention on 
minors. 

Approved in In re Di Sinione, 108 Fed. 943, holding where alien 
immigrant claims status of citizenship under naturalization laws 
of United States, courts may determine such claim notwithstanding 
its adverse determination by executive department. 

Syl. n; (XII, 110). Effect of State determination of Federal < 
question. 

Approved in Smith v. Slate. 42 Tex. Cr. 222. 58 S. W. 98, and 
Carter v. Texas, 177 U. S. 447, 44 L. 841, 20 Sup. Ct. 680, both 



4^^ 



Notes on U. S. Reports. 



143 U. S. 135-lSa 



Wdlnf eitclusion of negroes from grand jury which indicts negro 
taSUte court, when thej* are excluded solely because of their race 
« color, denies him equal protection of laws. 

^ft 17 tl£II< 116), Xatnrallzatlon presumed from exercise of 
nshtSL 

Approved In Strtcklcy t. HIU, 22 Utah, 2T0, 62 Pac. 897, holding 
AadSif of eonrt that party was naturalized citizen not disturbed^ 
BOC appeal 

i^jL 18 (X1I» 116). Demurrer admits well pleaded allegations. 
Approved In Murray Co. v. Continental Gin Co., 120 Fed, 535, 
i:oldii»g sufficient, complaint charging Infringement of letters patent 
a information and bellet 

143 U, S, 187^102, 36 L. 118, UNION, ETC., IN8. CO. ¥. HANFORD. 

8yl 2 (XII, 11»3). Lex fori determines mortgagee's remedy. 

Approved in Johns v. Wilson, ISO U. S. 447, 45 L. 617, 21 Sup. 

Cl 44S^ holding grantee whose deed stipulates that he will assume 

aortgage U personally Iial>le for delicieaej; Cent. Electric Co. v. 

9pnsae Electric Co.. 120 Fed. 4)20. holding law of forum deter- 

vhetber remedy to enforce payment of obligations of third 

in Federal courts. 

8jL 3 <XII, 116). Mortgagee suing at law, grantee assuming debt. 

Approved In Barker v, FuUman^s Palace Car Co., 124 Fed. 566, 

^llllii^ Cfiedltor could enforce contract of sale made between two 

fwtbvr pdirties whereby purchaser agreed to settle debts of vendor;; 

OoMljetr Shoe, etc, Co. v. Da o eel, 119 Fed. 6t)5, holding agrt'oment 

fii!f aailgnce of contract assuming assignor's oLtligfitions thereunder 

doe* not make him party to contract, so that he can he sued thereon 

at law t>y other party; Adams v. Shirk, 117 Fed. 806, 807. 1(M Fed. 

q:U mtiil lOG Fed. 6t'»3, all holding Federal court will follo%v local 

pracdet of permitting lessor to sue assignee of lessee at law for 

rtnt* OfNUi contract of assumption in assignment; Laaelle v. Miller, 

id Or, 532, 553, G7 Pac. 308. holding acceptance of Interest on note 

la mdTtoce by creditor from principal debtor is prima facie eviOeuce 

wi cxfenjtltin of time of payment suttic-ient to authorize discharge 

flf narHy if acceptaiice is without his consent. 

Dtstlii^iahed In Hudson v. Wood, 110 Fed. 771, holding in credit- 
^1 full in Federal court by Judgment defendant and nnother, al- 
kfsid to be his debtor on money demand^ question of In Iter's in- 
4»tolMlii(*«3i If denied cannot be tried. 
9fl, I <XII, IIGl Graniee assuming mortgage debt as surety. 
^pmtffdd In Johns v. Wilson, 180 U. S. 448, 45 L. 617, 21 Sup. 
C3L ML holding grantee who purchased mortgaged premises prior 
li iltlg of foreclosure and who withlield deed from record until 
•ft« ••rrlce of summons cannot defrnd on ground that not showti 
tet Mmt^gor exhausted or Is insolvent; Herd v. Tuohy, 13^ CmI. 



143 U. S. 192-215 Notes on U. S. Reports. 182 

62, 65 Pac. 141, holding where mortgagor, with knowledge of mort- 
gagee, conveyed premises to one who assumed mortgage, and mort- 
gagee agreed in writing with grantee to extend time, mortgagor not 
liable for deficiency; Miller t. Kennedy, 12 S. Dak. 482, 81 N. W. 
907, holding where mortgagee has knowledge of purchaser's as- 
sumption of mortgage on land conveyed, his agreement with vendee 
extending time of payment, against objection of mortgagor, dis- 
charges him from liability for deficiency; Sully v. Childress, 106 
Tenn. 112, 60 S. W. 500, holding relation of makers of note is that 
of sureties to one who has assumed its payment for them and to 
one who, after such assumption and with knowledge of it, taken an 
assignment of debt. 

143 U. S. 192-196, 36 L. 121, NEW ORLEANS, ETC., R. R. v. NEW 
ORLEANS. 

Syl. 1 (XII, 117). Tax exemption not presumed. 

Approved in Theological Seminary v. Illinois, 188 U. S. 672, 23 
Sup. Ct 387, 47 L. 648, holding charter exemption from taxation of 
whatever kind and description belonging to or appertaining to theo- 
logical seminary does not include property held as investment; 
Newport News, etc., Ry. v. Newport News, 100 Va. 163, 40 S. E. 
647, holding municipal ordinance granting franchise for street rail- 
way, though silent as to taxation, does not grant immunity from 
payment of license tax. 

Syl. 3 (XII, 117). Corporation takes property subject to tax- 
ation. 

Approved in Union, etc.. Bank v. Memphis, 111 Fed. 566, 
arguendo. 

143 U. S. 19G-202. Not cited. 

143 U. S. 202-200, 36 L. 125, IN RE WOODS. 

Syl. 1 (XII. 118). Certiorari to review Circuit Court of Appeals. 

Approved in Burget v. Robinson, 123 Fed. 268, 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, Circpit Court of Appeals 
cannot pass on same matters on rehearing; Cumberland & Pa. R. R. 
V. State, 92 Md. 690, 48 Atl. 510, arguendo. 

143 U. S. 207-215, 36 L. 12G, HORNER v. UNITED STATES. 

Syl. 2 (XII, 118). Venue— Delivering lottery advertisements by 
mail. 

Approved in Davis v. United States, 104 Fed. 138, holding, under 
interstate commerce law. § 10. par. 3, punishing offense of false 
billing in order to obtain reduction in transportation rates, offense 
Is punishable where property delivered for transportation. 



Oi Notes OD U. S. Reports 143 U. 8, 215^ 274 

Sjl 3 (XII, IIB). Habeas corpus — Jurisdtetlon of court to which 
rawT&l asked. 

Approred In United States ▼. Yarborough, 122 Fed. 299. holding 

m$ aiveBted for removal to another district should be given 

iVpriiMl of right to be present before judge to resist application, 

tad be given notice of time anil place wheo application will be 

:rle; Stewart v. United States, 119 Fed. 03, holding where prisoner, 

"»*r*sl on warrant based on Indictment in foreign district, is 

^ed for removal to foreign district solely on streiig^th of 

»?nt, habeas corpus lies to examine indictment; In re Rlchter» 

i. 2lMi» 2DT, holding complaint on which person Is arrested l!or 

r-j^ioval to another district may be made on information and belief. 

1« U. 8. 215-224, 36 L. 130, LAWRENCE v, NELSON. 

Syl 2 <XII, 115». Judgment — Federal decree against foreign 

tloktraior. 

F,4]iproved In Perkins v, Hendryx, 127 Fed. 448. holding where 

piBal bill In equity was brought against firm, and after decree 

atetng bill firm was dissolved by death of nonresident partner, 

p^wnal representatives of such partner, who were not within 

were not indispensable parties; Scruggs v. Scruggs, 105 

I, bolding administrator uppolnted. by court of one State Is 

: iohiect to action in court of another State by heir to establish 

Mi Hgtt to distrfbatlve share In estate. 

8yt 3 <XII. 119). Federal court's Jurisdiction over admlnlstTations. 

Aji^rored In Security Trust Co. v. Black River Nat Bank. 1S7 

I XL 8, 227. 23 Sup. Ct 58, 47 L, 155, holding nonresident owner of 

against decedent's estate cannot maintain suit against ad- 

in Federal court where suit if brought In State courts, 

[ mtnM liare been barred by statutes of State; Security Trust Co, v. 

I 0««t» 104 Fed. 386, holding Minnesota statutes requiring aU ered- 

of ^leeedent to present claims to Probate Court within such 

ftet tmi J«eM than six nor more than eighteen months from granr- 

tmg a€ adsnliilstnitlon^ us court may allow, and providing that claims 

■oCfo pttmeated are barred, does not deprive Federal court of Juris- 

^IrtSon aC action by nonresident creditor against persunnl repre- 

^e. brought within full eighteen months; dissenting opinion 

1,1 r. Frana. 1C»0 Fed. G98, 699, majority holding proceeding 

ttt probate of will la not •* suit of civil nature at law or In equity," 

'wntn meaning of judiciary act ISSS. §$ 1, 2. 

!<2 D, 8. 224-274. 36 L. 134. HAMMOND v. HOPKINS, 
"ft 1 (XIX. IIW. Unconscionable acts and laches defeat equitable 



vppcorod to GnnnlBon v. Chicago, etc., Ry. Co., 117 Fed. 046, 
•flUf kmg d^ay In enforcing foreclosure of second mortgage on 
VoLni— 13 




143 U. S. 275-292 Notes on U. S. ReporU. 194 

railroad barred suit by bondholders as against purchasers under 
prior foreclosure; Heirs of Led'oux v. Lavedan, 52 La. Ann. 332, 
27 So. 205, applying rule In suit to declare property part of estate. 

Syl. 2 (XII, 120). Laches — Death of principals or witnesses. 

Approved in American St Car Advertising Co. y. Jones, 122 Fed. 
808, holding suit for royalties not barred where defendant paid 
royalties under parol license until 1889, and in 1895 patentee as- 
slgrned patent to complainant, who had no knowledge of license 
until 1900, when patentee assigned him claim for past royalties, and 
on refusal to pay brought suit; Potts v. Alexander, 118 Fed. 887, 
890, denying motion to file replication nunc pro tunc over ten 
years after suit dismissed; Benson v. Dempster, 183 IlL 309, 05 
N. E. 656, holding delay of thirty-eight years by grantor In abso- 
lute deed in asserting express trust under which grantee was to 
recoil vey property bars relief where during that time he permitted 
heirs of grantee, who died shortly after conveyance, to believe 
they were absolute owners of property without asserting trust 
until property had become valuable. 

Syl. 6 (XII, 121). Cestui's laches in attacking trustee's purchase. 

Approved in Littell v. Hacltley, 126 Fed. 315, holding where 
executor, who is also surviving partner in firm in course of liqui- 
dation, explains to sole legatee of deceased partner desirability 
of her disposing of interest in firm property and oCTers to purchase 
at price fixed by business man selected by her, sale will not be set 
aside after twelve years; Wade, etc., v. Odle, 21 Tex. Civ. App. C02, 
54 S. W. 789, holding attaching creditors claiming adversely to 
trust deed cannot have sale thereunder set aside because made to 
its trustee. See 80 Am. St. Rep. 5()3, note. 

143 U. S. 275-29L>, 36 L. 154, TUB BAR BED-WIRE PATENT. 

Syl. 2 (XII, 121). Date of application determines legal effect of 
patent. 

Approved in Thomson-Houston Elev^. Co. v. Black River Traction 
Co., 124 Fed. 513, holding Van Depoele reissue No. 11.872, for 
traveling contract for electric railways, void for anticipation; Elec- 
tric Storage, etc., Co. v. Buffalo, etc., Co., 117 Fed. 315. holding fact 
that delay in issuance of patent after filing of application will 
result In giving patentee monopoly for longer term than seventeen 
years, cannot shorten term of patent when such delay resulted from 
interference proceedings and was not attributable to patentee; 
Westlnghouse. etc., Co. v. Dayton, etc., Co., 106 Fed. 72C, holding 
Tesla patents Nos. 511.559 and 511.500. for split-phase motors, not 
anticipated by any prior invention of patentee. 

Syl. 3 (XII, 121). Barbed-wire patent. 

Approved in Hallock v. Davison, 107 Fed. 486, upholding Hallock 
patent No. 600,782, for weeding machine. 



Notes on U. S. Reports. 143 U. S, 275-292 



§jl 4 (XII. 122). Patents — L.ast step resulting In success. 

Approved In Farmers' Mfg. Co. v, Spruka Mfg. Co., 127 Fed. 

m, Qplioidlng East patent No. 429,021, for Tentilating barrel; 

Pvifn T. UDion Biscuit Co.. 120 Fed. asa upliolding Peters patent 

Xo. 021,974, for method of packing biscuit; Fay v. Mason, 120 Fed. 

sat, upbofding Fay reissue No. 11,6C4 (original No. 500,819), for 

ooUtr Ironing machine; Severy Process Co. y. Harper, etc.» Bros., 

tH Fed. 384, holding Severy patent No. 549.601, for bed for platens 

f<Of printing presses, does not cover device of Allen patents Nos. 

ttJjZl 7-613^1; Kalaraaxoo Ry. Supply Co. v. Duff Mfg. Co.» 113 

Fid. 268. upholding Barrett patent No. 312,310. for lifting jack; 

CmJewBkl T. Pharr, 105 Fed. 520, upholding Krajewskl patent 

S^i, 349«$Ci3^ for machine for breaking and cutting sugar eaue; 

StBtm Clara VaL Mill, etc., Co. v. Prescott, 102 Fed. 507, holding 

Pkcaeoct patent No. 309,881, for band sawmill, limited by prior 

ifft and not Infringed; Streator Cathedral Glass Co. v. Wire-Glass 

09^ 97 Fed- 957, holding Shnman patents Nos. 423,021 and 473,020, 

far wtre-glass process, valid and Infringed by Ryan patent No. 

[ttuira 

SyL 5 (XII, 122). Patent — New combination of old elements, 
Approred In Armat Moving Picture Co. v. American Mutoacope 
Ipi^ 118 Fed. S49, upholding Jenkins and Armat patent No. 586,953, 
1; tor moTtog picture machine; Goodyear Tire, etc., Co. v. Rubber Tire, 
ItML., Co., llti Fed, 371, holding void Grant patent No. 554.675, for 
^fubber tire wheel; Caster Socket Co. v. Clark. 110 Fed. 979, hold- 
tag Denton patent No, 594,937. for socket for furniture casters, 
for anticipation; National Hollow, etc.. Co. v. Interchangeable, 
[#te, Co., lOG Fed, 703, 708, upholding Hein patent No. 361.009, 
2, foe metallic brake beam; Stephenson v. Allison, 123 Ala. 
, 20 Sou 292. applying rule In suit to rescind contract of purchase 
M privilege of aelllng patent right In given territory, 

Bfl 6 <XII, 123). Patents— Burden of proving anticipation, 

Avptwed In Sacks v. Kupferle, 127 Fed. 570, reaffirming rule; 
li^tTlmsc Mattress Mfg. Co. v. Brown, 122 Fed. 89, upholding 
Lrlfil^toii patent No. 607,910, for Interconvertible bed couch; Peters 
I %, Vnkm Biscuit Co., 120 Fed. 684. holding testimony of witness 
ii la existence and use of structure essentially the same as that 
if pa ten I twelve or fifteen years prior to time of giving testimony, 
anpfMifted by any exhibit, is Insufficient to establish anticipation; 
Dvflm r, Bawo, 118 Fed. 859. holding Treat patent No. 508,816, 
te^ mtialar hell, void for anticipation; Emerson Electric, etc.. Co. 
^. Van Sort, etc. Electric Co., 110 Fed. 9S0, 981, upholding Weston 
9BUm Koi 622.247, for Improvement in lubricated bearings for 
•fcrtiic cefllDff fans: Swain v. Holyoke Mach. Co,, 111 Fed. 409, 
' wliere It la shown that Inventor Installed machine embody- 
' tmnpietB JuTentlon for practical use by purchaser, more than 





143 U. S. 293-301 Notes on U. S. Reports. 106 

two years before application for patent, his own unsupported tes- 
timony, given twenty years afterward, that installation was for 
experimental purposes only, is insufficient; American Bell Tel. Co. 
V. National Tel. Mfg. Co., 109 Fed. 1018, holding Berliner patent 
No. 4G3,5G9. claim 2, for telephone transmitter, not anticipated by 
patent No. 233,969, for same patentee; Westinghouse, etc., Co. v. 
Saranac Lake, etc., Co., 108 Fed. 220, upholding Stanley patent No. 
409,800, for system of electrical distribution; Covert v. Covert, 106 
Fed. 185, holding Emons patent No. 403,599, for wagon jack, void 
on ground that article covered thereby was invented and placed on 
sale more than two years before application; Williams Patent 
Crusher, etc., Co. v. St. Louis Pulverizer Co., 104 Fed. 801, uphold- 
ing Williams patent No. 489,230, for crushing and pulverizing 
machine; Lein v. Meyers, 97 Fed. 007, holding where device of 
patent in suit is disclosed by another, antedating it more than two 
years, burden is on complainant to prove beyond reasonable doubt 
that his was prior invention. 

Syl. 7 (XII, 123). Device in experimental stage not anticipation. 

Approved fn dissenting opinion in Tecktonius v. Scott, 110 Wis. 
454, SO X. W. ()70, majority determining conclusiveness of Federal 
judgment declaring device to be an infringement. 

Syl. 8 (XH, 123). Patents — Doubts resolved In favor of pioneer. 

Approved in Kitselman v. Kokomo Fence Mach. Co., 108 Fed. 

059, uplioldlng Kitselman patent No. 350,322, for wire fabric 

machine. 

143 U. S. 293-301. 30 L. 102, MICHIGAN INS. BANK v. ELDRED. 

Syl. 2 (XII, 125). IJill of exceptions not allowed after term. 

Approved in Fick v. Crook, 27 Colo. 432, 02 Pac. 833, reaffirming 
rule: Koewing v. Wilder, 120 Fed. 474, holding where, during term 
at which jud^^nent was entered, court entered order directing 
verdict for defendant and allowing ** such time as counsel should 
want to prepare bill of exceptions," such order operated to exteua 
time for prei)aiing l)iil of exceptions to date beyond term; Adams 
V. Shirk, 121 Fed. 824. holding l)ill of exceptions cannot be amended 
at term subseciuent to that at which filed to correct omission due 
to party's own neglect or oversight; Western Dredging, etc., Co. v. 
Ileldniaier, 110 Fed. 181, permitting reliling of bill of exceptions 
nunc pro tunc whore bill was signiHl by judge of district but sup- 
pressed by Circuit Court of Appeals on ground that trial judge 
should have signed it; Ueliable Incubator, etc., Co. v. Stahl, 102 
Fed. 593. holding atfidavits not reviewable to establish fact that 
bill of exceptions presented for signature after term to shovr that 
signing and filing of same were within time allowed; First Nat. 
Bank of Denver v. Wilder, 100 Fed. 224, holding Circuit Court of 
Appeals will not make order allowing amendment of bill of ezeep- 



tr»7 



Notes on U. S> Reports. 



143 U. S. 301-318 



ti6im In tlmt court or authorizing its ameuclment below to supplr 
miners omitted from original bill; Merchants* Ins, Co. v. Buckner, 
0S Fed. 224, holding where motion far new trial Is duly filed but 
Mt acted upon at trial term» but cotirt, by order stayingr execution, 
mgnlf^ts purpose to keep control of judgment until motion de- 
Qmtaked, bill of ei^eeptlons may be settled and tiled at succeeding 
term At which motion is disposed of: Johnson v* Gebhauer, 159 Ind. 
175. W N, E. 857. holding void Acts ItiCil, p. 511, providing that 
where nftempt had been made to make evidence part of record on 
ipiveal by filing biU of exceptioBs in accordance with Acts 1S90, 
pi. 394 is«bser|uently held void), court might extend time for filing 
NB of exceptions; State v. Estes, 34 Or. 205» 52 Fac. 572, holding 
UU of exceptions which through inadvertence or mistake has been 
latrorrectly made up niay, by order of trial court, entered nunc pro 
mnc on proper notice, be so amended at subsequent term that it 
win accord with real facts, even though appeal pending. 

143 tr. S. 301-305. 3G L. 313, LUDELING v. CHAFFE, 
Syi 2 tXlI, 125). Federal right must be plaintirs. 
Approved In Hart v. State of Utah, 179 U. S. GSl, 45 L. 384, 21 
Ct ma, reaffirming rule; Smith v. Indiana, l&l U. S. 148, hold- 
: where State oflicer has no Tnterest In controversy except aa such 
r» testa constitutiouality of State statute purely In interests of 
UdPd parties by suit in State courts, he cannot sue out writ of error 
IRMB dupreme Court to revise State judgment against him; Tyler 
T, Jadge# of the Court of ReglstraUon, 179 U. S. 408, 45 L. 2ri4, 21 
itip. Ct. 207. holding objection that persons may be deprived of 
i3ti without dae process under Massachusetts Torrens land act. 
It provides for adjudieatlou of rights of certain classes of 
who are notified only by posting notices, cannot be raised 
bj <uie not alfected by such provisions of act. 

143 C. 8. 30&-31H, 36 U 104, HORN SILVER MIN. CO, T. NEW 
YORK. 

Sjt 2 (XTl, 126), Corporate franchise is taxable. 

AppmreO In Bank of California v. San Francisco, 142 Cal. 270, 
, 2S2, 75 Pac. S^, 835, holding franchise of being a corporation 
\ mnchise within meaning of Const, art. 13, i 1, providing for 
itlOQ of nonexeuipt property, and defining "property*' as In- 
Mtag •* taoneyii, credits and franchises/* 

9ft 4 (XU, 126). Foreign corporations subject to State regu- 



Approved In Jones v. Mutual Fidelity Co,, 123 Fed. 532, uphold- 
Tennettee act March 2ti, ISDl, providing that foreign corpora- 
doing buslueiss In State must first file copy of charter with 
"liOiUry of Stale nnd abstract of same in each county In which it 
to do tfusiuess. and punliiihing violation of its provisions; 



143 U. S. 31S-346 Notes oa U. S. Reports^ 108 

Oakland Sugar MiH Co. t. Fred W. Wolf Co^ US Fed. 244, uphold- 
:ng Michigan Comp. Laws 1SS>7. } S574. providing for payment of 
franchise fee by foreign corporations doing business in State, and 
prcrv'iillr.g that all contracts made fn State by corporation which has 
iiot compiled with act shall be void; Southern Car. etc., Co. t. 'State, 
133 Ala. »520. 32 So. 23»X upholding Code, | 4122, subd. 55. reqnir- 
:r*g all con-orations doing business in State not otherwise specially 
re^i'ilr-d ^^ pay license tax. to pay annual privilege tax graduated 
by pai«i-up capital of corporation. 

143 U. S. 31S-33S. Not cited. 

143 U. S. 331^-34^3, 36 L. 17d. CHICAGO, ETC.. RY. T. WELLMAN. 

Syl. 1 'XII, 127i. Legislature may fix rates — Judicial functions. 

Approved in Cotting v. Godard. 1S3 U. S. S5, S7. 40 L. 99. 100, 
22 Sup. Ct. 33. holding stockyards company is denied equal pro- 
te<:tion of laws of Kansas lact March 3, 1S97), which limits amount 
of charges to be made by that corporation without limiting charges 
to be made by other corporations doing smaller business; Chicago, 
.Milwaukee, etc.. Ry. v. Tompkins. 17G U. S. 173, 44 L. 420, 20 
Si: p. Cr. 3.%S, holding reasonableness of schedule of rates for local 
t/Tisiness of railroad company determined by comparison between 
;;ros!i receiprs and cost of doing the business: Haverhill Gas Light Ca 
V. Karker, Vf,9 Fed. t;90. upholding Federal equity Jurisdiction of sulc 
by ^as company against State officers to enjoin threatened enforce- 
iii^'Tit of order made by defendants under State statute requiring 
roujiilniuant to supply gas to customers at rate which is so unrea- 
son;! ble as to deprive complainant of rights under Fourteenth 
Amendment; Kansas City, etc., Ry. v. Board of Railroad Comrs.. 
IW Fe<l. 357, holding State has no power to regulate charges of 
railroad company for carriage of goods between two points in 
State, wh'-re course of transportation must be for considerable 
part of distance through another Territory; Western Union Tel. 
Co. v. .\fyatt. UH Fed. ;{43. holding Kansas court of visitation cre- 
ated by S*'ss. Laws 1S(»8. chap. 28, which is empowered to regulate 
railroad rates. Is a legislative body; State v. Johnson, Gl Kan. 820, 
r^) Vac, 1074, holding void Laws 1808, chap. 28. creating court of 
visitation; Janvrin. Petitioner, 174 Mass. 517, 55 N. E. 382, up- 
holdiijg Stat. 1S05, chap. 488, § 23, as amended by Stat 1807. chap. 
33n, giving to actual water takers within ten miles of city of 
Boston aggrieved by rates, right to apply to court to determine 
reasonal)I«'iu»s8 of rate; Railroad Comrs. v. Grand Rapids, etc., Ry. 
Co., i:jO Mich. 2r»(>, SO N. \V. 007, holding purchasers at foreclosure 
of railroad who organize corporation under 2 Comp. Laws, | 6224, 
securing to them same rights, powers and privileges as original 
company had, subject to all provisions of said act and its amend- 
ments, are subject to 2 Comp. Laws, § G234, par. 9, reducing fare to 
two and one-half cents per mile. 




m Notes on U. S. Reports. 143 U, S. 346-370 

9jl 2 (XII, 12S). Validity of act is for courts. 

ipproved in Estate of JoIiubod, 139 CaJ. 535, 73 Pac. 425, up- 

kUlng^ ftmendatorj act of 1897^ exempting nepbews and nieces of 

teethed when residents of State from collateral Inheritance tax; 

CUogo Union Traction Co. v, Chicago, 199 IIL 547. 65 N. E. 470, 

9tolding Chicago Rev. Code. § 1723, fixing rates of fare on street 

allPMas; Commissioner of Railroads v. Wabasli R. R,, 123 Mich. 

•n, 81 X. W, 527, holding, under Pub, Acts 1891, Act No. 90, re- 

lAHfii^ raJlroads, gross annual earnings of whose passenger trains 

■I reported to railroad conamissioner exceed |;2,0(X) and are less 

tHan |3w000, per mile of road, to carry passengers for two and one- 

iadt cents per mile, mail and express receipts are Included. 

143 U. S. 346-359, 36 L. 180, BRIGGS v« UNITED STATES. 

SjL 2 (XII, 120). Sale of crop to be raised. 

See notes. 81 Am. St. Rep. 44, 45. 
yBjL 3 iXII, 129). Sales — Delivery unnecessary where terms 



ApproTed Jn Clark v. Shannon, etc., Co., 117 Iowa, 647, 648, 91 
N. W. 924, holding where plaintlfT's agent went to store to pur- 
riwrim mtock and bill of sale delivered, part payment made as per- 
•ott init In charge as plalntiflf's agent, but Ueys cot turned over 
pending temporary absence of agent to obtain unpaid price of 
•lock. In action against subsequent mortgagee of stock with notice, 
to recorer goods, question of delivery was for jury, 

112 U. S. 35S>^70. 36 L, 186, NEBRASKA v. IOWA, 
8yL 1 <xn, 129>. Boundary of land Ijordering on stream, 
[^Jkplirored In Stockley v, Clssna, 119 Fed. 822, 833, determining 
to lands resulting from change in course of Mississippi by 
1 cutoff known as '* Centennial cut," across '* Devil's Elbow;" 
tBalae y. Johnson, 155 SIo. 203, 55 S. W. 1034, applying rule in 
tenfilnlng applicability of findings and instructions In action 
fjectment 

SyL 2 (XII, 129). Boundaries — Sudden change in bed of stream. 
Approved In Hughes et al v. Heirs of Birney et aL, 107 La. 670, 
8 Sa 23, reaffirming rule; Stockley v. Clssna, 119 Fed. 823, 834. 
Ining title to lands resulting from change in coiuvse of Mis- 
by sudden cut off knowu as " Centennial Cyt '* across 
' titt\n Elbow;" Watkins v. Pool, im Cal. i;i8, 62 I*ac. 386, hold- 
; artiticial change in course of river which is established Uound- 
betweea two counties made at neck of peninsula created by 
Id stream, whereby new channel of river is caused and 
f«aer channel la ordinarily left dry, does not change county 
teoadary; Cook v. State, 81 Miss. 150, 32 So. 313, holding counties 
•f 8tite and territorial jurisdiction of courts, bordering on Mia- 



1^3 U. S. 371-430 Notes on U. S. ReporU. 200 

sissippi, extend to center or thread of stream; Widdecombe v. 
Chiles, 173 Mo. 200, 73 S. W. 445, holding where tract at time of 
government survey was entirely cut from river by intervening 
tract, which was later entirely washed away, so that remoter tract 
Is reached by river, subsequent accretions belong to latter tract; 
State V. Keane, 84 Mo. App. 131, 133, holding where defendant's 
saloon was located west of old navigable channel of Missouri on 
west boundary of Platte county. Circuit Court of that county bad 
no jurisdiction to try him for selling liquor without license, since 
act was committed in Kansas; Ocean City Assn. v. Shriver, 64 
N. J. L. 5G1, 4ti Atl. 694, determining right to alluvion along Peck's 
beach. 

Syl. 5 (XII, 120). Law of accretions applies to Missouri river. 

Approvcil in De Ix)ng v. Olsen, 03 Nebr. 331, 88 N. W. 514, re- 
artlrniing rule. 

Syl. (XII, 130). State boundary dependent on Missouri river. 

Approved in East Omaha Land Co. v. Hanson, 117 Iowa, 07, 98, 
UM). 1M> N. W. 7<m;. holding where island springs up in midst of 
stri'nm, It is an accretion to soil in bed of river and not to land of 
riparian owner. 

143 U. S. 371-;5l)4, 30 L. 191, WINONA, ETC.. R. R. CO. V. PLAIN- 

vii:\v. 

Syl. 1 J XI I, i;>0). state decision must deny Federal right. 

Approvt'd in dissoniing opinion in Tullock v. Mulvane, 184 XJ. S. 
r>*j;:, n; L. ti7i», liii sup. Ct. oSii. majority holding (luestion as to 
llahiliry on Fodorai injunction bond b<"cause of alleged effect of 
tiTtaiii stipulations disiuissiiij: jjortion of case and of appeal from 
di'croe aftiTwanl roiuliToil. involves FiMleral question. 

143 r. S. ::tU^:iO, 30 L. 2U1, IRON SILVER MIN. CO. V. MIKE, 
r/rC, MIN. CO. 

Syl. 1 iXlI. 13u>. Minos — Moaning of ** known vein." 

Approved in Standard Quicksilver Co. v. Ilabishaw, 132 Cal. 123, 
04 Pac. 110, roalUrniing rule. 

Syl. 7 (XII. i;*l). Minos — "Known veins" must be clearly 
asoertainod. 

Approvod in Cloary v. Sl;itli«'h. 12S I'olo. 3(^. Or» Pao. 01, 89 Am. 
St. Hop- -11. lioltlinj: whoio adviTso claim is lilod by lode claimant 
ajrainst appliraiion for patout on oxisting mill site location, lode 
claimant must show that lands contain minerals of quantity ano 
quality that can l»e oxtraciod at prolit. 

Syl. I XII. 13n. Whotlior dopnsit is vein is for jury. 

Approved in I'loary v. Skitlich. iN Colo. 309. 89 Am. St. Rep. 212, 
G3 Pac. 01, holding whore adverse claim is tiled by lode claimant 



>l 



Notes on U. S. Reports. 143 U. S. 431-4T2 



iSMlimt applfcatloD for patent ou esListitjg mill site location, lode 
diliiuiiit must show that lands eontaio mlneralB of quantity and 
7fr«lltr tliat can be extracted at profit. 

m t. S. 431-442. 36 L. 214, SULLIVAN r, IRON, ETC., MIN. CO. 

Syl 1 (XII, 132). Location not necesaarj to known lode. 

A|>pr9Ted In Clipper Mining Co, v. Eli M. & L. Co., 29 Colo. 391, 

G8 Pac 291, 93 Am. St. Kep. 98, holding mere proof tliat lodes 

«cSit within certain territory or within boundaries of placer nihi- 

Ififf locftUoD, does not authorise persons to enter within such loca- 

ifter application for its patent to prospect and develop a lode 



-:L 3 (XII, I32>. Mines — Rev. Stat.» § 2333 — Lodes not talien 
op* 

Approved in Olive Land, etc., Co. v. Olmstead, 103 Fed. 578, hohl- 
Uig. under forestnr lieu land act of June 4, 1897, right of person 
•drctJng Ueu land not affected by fact that it has surface Indica- 
tions of oil where no discovery of oil has ever been made thereon. 

^ I 5 (XII^ 132). No reversal for WToug reason — Direction of 

Approved In Whitney v- New Yoric, etc., R. R. Co., 102 Fed, S5l, 
holdiag defendant In whose favor verdict has been rendered by 
dirw^tlon of court Is entitled to support such verdict upon any 
^oand whleb evidence in record permits. 

143 r, B, 442-452. 36 L. 218, SCHWAB v. BERGGREN. 
SyL $ (XII, 133). Time of execution not part of sentence. 
ApproviHl in State v. Haddox, 60 W. Va. 224, 40 .S. E. 3SS, hold- 
wbftfe, pending sentence of death, prisoner obtains writ of error 
lhi!f»*by delays execution of sentence, and judgment is after- 
aitlrmed, presence of prisoner not necessary at fixing of 
funbtfr Uaie for execution. 

143 a 8. 452-457, 36 U 224, FIELDBN v. ILLINOIS, 
i^yl 3 (XJI, 133). Absence of accused on hearing writ of error. 
Arprored in State v. Haddox, 50 W. Va. 224, 225» 40 S. E. asS, 
^' where, pending sentence of death, prisoner obtains 
lor and thereby delays execution of sentence, and jndg- 
iiMrttt l« afterward afl3rmed, presence of prisoner not necessary at 
txlnj; of further time for execution. 

m C. 8. 457-472, 36 L, 220. HOLY TRINITY CHURCH v. 
ITKITED STATES. 

Sjl 1 (XII, 133), Allen couirrict labor laws — Rector. 

Ayprored In In re Ellls» 124 Fed. 042. G4:3. holding export ac- 
tmmmmtB aot members of recognized profession entitled to entry 



8yl 



143 U. S. 457-472 Notes on U. S. Reporte. 202 

under alien contract labor law of March 3, 1903; United States v. 
McElroy, 115 Fed. 253, holding In action to recover penalty imposed 
by contract labor law of February 26, 1885, declaration alleging that 
alien was "to perform labor and services as worlsman in certain 
factory of said defendant and not as private secretary," etc., 
negativing various specially excepted classes, but not otherwise 
showing character of labor or services in which he was to be em- 
ployed, is insufficient 

JSyl. 2 (XII, 134). Intention governs letter of statute. 

Approved in White v. United States, 191 U. S. 550, holding, under 
Navy personnel act of March 3, 1809, officers who have reached 
maximum pay before passage of act are not given increased pay; 
Pirie v. Chicago TlUe & Trust CJo., 182 U. S. 452, 45 L. 1179, 21 
Sup. Ct 912, holding creditor who has received payments from 
insolvent within four months of bankruptcy, but who had no cause 
to believe payments were intended as preference, must under 
§ 57g, surrender preference before any claim by him against bank- 
rupt estate can be allowed; United States v. M*Clellan, 127 ITed. 
97G, holding condition of peonage within act of March 2, 1867, Is 
illegal holding of person to involuntary servitude to work out debt 
or contract claimed to be due by person so held to the person so 
holding; Badische AnUin, etc., Fabrik v. Klipstein, 125 Fed. 544, 
holding testimony of lawyers of foreign country that certain acts, 
documents and records proved had effect of creating complainant a 
corporation under laws of such country, prima facie establishes 
corporate character of complainant; In re Ellis, 124 Fed. 641, hold- 
ing expert accountants not members of recognized profession en- 
titled to entry under alien contract labor law of March 3, 1903; 
Mutual Reserve Life Ins. Co. v. Koth, 122 Fed. 858, holding Rev. 
Stat Mo. 1879, § 5983, forbidding forfeiture for nonpayment of 
premiums of policies on which two full premiums have been paid, 
does not apply to policies issued on assessment or natural premium 
plan; St. Paul, M. & M. Ry. Co. v. Western Union Tel. Co., 118 Fed. 
515, applying principle in construing contract between railroad and 
telegraph company; Tsoi Sim v. United States, 116 Fed. 926, hold- 
ing, under amendatory act of November 3, 1893, Chinese woman 
who lawfully entered country prior to enactment of any exclusion 
laws, but who failed to obtain required certificate, where she was 
thereafter and prior to her arrest married to citizen, cannot be 
deported; United States v. Hogg, 112 Fed. 912, holding Ky. Stat, 
§ 1GG4, par. 3, providing that officer may at. any time after return 
day, while original execution is in his hands, sell any property 
taken in virtue thereof, provided levy thereof made before return 
day does not change common law rule, affirming 111 Fed. 294; 
United States v. Burke, 99 Fed. 808. holding master of vessel can- 
not be fined or refused clearance papers, under act of March 3, 1S91« 



Notes oa U. S. Reports. 143 U. S. 45T-17-* 



u peiuiltj for refusing to return on his vesseli alien seaman who la 
«nt of crew and escapes from ship; Norei-oss v. Nathan, 99 Fed. 418, 
^Idlii^ District Court as Bankruptcy Court has jurisdiction of 
salt hy trustee against bankrupt and another to net aside alleged 
f^adulent conveyance by bankrupt to codefendant, irrespective of 
dt^ensliip; Given v. State, IGO Ind. 554, 66 N. E. 751, upholding 
le jurisdiction over prosecution for violating statute prohi bit- 
permitting gas to escape into open air tor more than two days, 
wbere constitutional question raised; MeGaiinon v. Fire Ins, Co,, 
127 Mlcl^ G49, 87 N. W. 66, 81) Am. 8t, Itep. 512, holding where 
■ppiJCtttlcm for insurance contained ugreemeut to keep watchman on 
greoiises wben not in operation, and premises burned while watch- 
man temporarily absent, insurer liable; Thomt^sou v. Esty, 69 N, H. 
•3, 45 AUL 573, holding, under Pub. Stat,, chap, 201, § 26, assignee 
te inaotTeney cannot avoid sale by debtor, made In good faith and 
for SBffleient consideration, on ground that it was fraudulent u» 
to eettain creditors because possession retained by vendor; Morgan 
r, Hedstrom, 1(54 N, Y. 230, 58 N. E. 27, holding corporate bonds 
■c curcd by mortgage upon corporation's realty are within Laws 
1S92,. chap. 688, % 30, declariiig that if annual report not made 
filed directors are jointly and severally liable for all debts 
eocporatlon; Gaut v. American Legion of Honor, 107 Tenn. 623, 
S. W. 1075, and Knights Templars, etc,, Co, v. Jarmon, 104 Fed, 
1^*4, both holding clause In appUeation for insurance that appli- 
ttiit agrees to abide by constitution and rules of company as they 
«pw ape or may be constltytionally changed thereafter, does not 
llTe asaeiit in advance to change materially lessening value of 
poiJcy bj reducing amount of indemnity; dissenting opinion in 
Cmited States v. One Pearl Necklace, 111 Fed. 172, majority hold- 
lit; under tariff act 1897, par. 697, $100 restriction applies to 
aitldM purchased abroad irrespective of whether they are pur- 
cteMd returning resident;'* The Asiatic Prince, 108 Fed, 290, and 
Itallfd States v. Pin Kwan, 100 Fed. 612, both arguendo. 

Dlitliiguished in Treat v. Wbite, 181 U. S, 268, 45 L. 854, 21 Sup. 
CL €13, holding **call" for stock which contains absolute promise 
In mQ stock at any time within tifteen days at certain price, though 
H MBj be unilateral, is an agreement to sell within war revenue 
att IfSi^ schedule A, § 25. 
8j1. 3 iXll. 135)» Title used to interpret statute not to change. 
Ippfored in White v- United States, 191 U. S. 550, holding, under 
Mtf personnel act of March 3, lSt)y. o flic era who have reached 
Baslliittm pay before passage of act are not given increased pay; 
Tim Kestor, 110 Fed. 438, holding act December 21, 1898, § 24, 
tertlddtllg prepayment of seamen, applies to prepayment on A merl- 
in aott or waters of Britishers shipping In American port on Britisli 



€i 




143 U. S. 472-552 Notes on U. S. Reports. 204 

Syl. 4 (XII, 135). Statutory construction — Object and surround- 
ing circumstabces. 

Approved in Hawaii v. Manklchl, 190 U. S. 213, 23 Sup. Ct 7S9, 
47 L. 1021, liolding Newlands resolution of • 1898 did not substi- 
tute criminal proceedings by grand and petit Juries for existing 
Hawaiian procedure; Chesapealce & Potomac Tel. Co. v. Manning* 
186 U. S. 246, 46 L. 1147, 22 Sup. Ct. 884, upholding act of June 
30, 1«98, regulating rates which telephone company may charge In 
District of Columbia; Moffitt v. United States, 128 Fed. 381, holdr 
Ing master not liable to penalty imposed by 26 Stat. 1086, where 
Mexican peddler accidentally taken away by ship, and on arrival 
in San Francisco stated he wished to be taken back but left ship 
without knowledge of master or officers before she left port; United 
States V. Morrison, 100 Fed. 895, determining sufficiency of Infor- 
mation for importing alien ladies' kid glove cutter; State v. O'Con- 
nor, 81 Minn. 83. 83 X. W. 400, holding Const., art. 4, § 36, as 
amended in 1S07, permitting cities to frame charters, applies to 
cities in existence at time of Its adoption only. 

143 U. S. 472-513, 36 L. 232, IX RE COOPER. 

Syl. 1 (XII, 135). Alaska District Court has admiralty jurisdic- 
tion. 

Approved in r.niot» v. Murray, 123 Fed. 370, holding, under Alaska 
government act of Jiinc 1, lOUO, action to foreclose mortgage on 
vessel cannot t)e united with one to enforce Hens for wag(*8 of 
seamen ajrainst vessel; .Tackson v. United States, 102 Fed. 480, 
holding entitling of indi<'tnient returned in District Court for Alnnka 
" In District Court of the United States for the District of AlasTia.** 
does not vitiate indictment. 

Syl. 4 (XII. VM). l*roliil)ition not obligatory after judgment. 

Approved in Mason v. (Iriibel, 64 Kan. 8-10, 68 Pac. 0(>1, holding 
prohibition does not lie ajrainst justice of peace proceeding with 
trial of defendant arrested for unlawfully selling liquor and with 
maintaining nuisance, where no property seized. 

(XII, l.Ti). Miscellaneous. 

Cited in Percy Summer Club v. Astle, 110 Fed. 489, as Instance 
of permitted intervention by sovereign in what was merely litiga- 
tion of private parties. 

143 U. S. 513 510. Xot cited. 

143 U. S. 517-552, 3G L. 247, BUDD v. XEW YORK. 

Syl. 2 (XII, 137). Elevator business charged with public Interest. 

Approved in State v. Jacksonville Term. Co., 41 Fla. 412, 27 So. 
236, construing Laws IJ^O'J. chap. 41iKK § C, relative to requiring 
admission into passenger terminals of railroads desiring or re^ 



I Notes on U. S. Reports. 143 U, S. 517-552 

^ttlrpd bj commlssionors to enter and fixing rates for use of sueb 

tirmlnals; Odnr Rnpids Water Co. v. Cedar Rap Id a, 118 Iowa, 25S, 

91 5. W. 1090, uplioldiiig rjgbt Of town to regulate water rates; 

StMte T, KInloch Teleplione Co., 93 Mo. App, 358. G7 S. W. 1186, 

^^^yifpg mandamus lies to compel telephone company to give ser- 

fte to customer; Agua Pina Co, v. Mayor, ete.» 10 N. Mex. 28, 29, 

ID Plc: 21Gv holding act of March 18, 1S97» authorizfng any exJst- 

tag dty or town to regulate water rates, did not affect prior coti- 

Ornct between water company and San Miguel county; Fallsburg, 

He Ca 1^. AJexander. 101 Va, 100, 43 S. E. 108, holding legislature 

cutnot aotliorise corporation to condemn private property in order 

to locate plant for manufacture and generation of water power, 

V^l or beat, to be utilized and transmitted to any place for use of 

cotmpany or others; dissenting opinion in State v, Haun» CI Kan. 

179, 50 Pac. 351, majority holding void Laws 1807, chap. 145 

(Scrip Law); dissenting opinion In People v. Buffalo Fish Co., 164 

X. Y. 111. 58 N. E. 41, majority holding void Laws 1802, chap. 488, 

11 110, 112, raaklng it misdemeanor to have in possession certain 

kinds of fish during certain periods in so far as they affect posses- 

iteo of Imported fish. 

B>ksttiig\tished in Cotting v. Godard. 183 U. S. 84, 86. 46 L. 00, 
K 22 Sup. Ct. 33, holding stocliyards company is denied equal 
tCecUon of laws by Kan. act March 3, 1807. w^hlch limits amount 
clurges to be made by that corporation, without limiting charges 
10 be made by other similar corporations doing smaller amount of 
Iraiaiiess; Dodge v. Mission Township, 107 Fed. 833, holding void 
Kjib, let of March 1, 1880, authorizing issuance of township bonds 
lor iiromotion of construction and operation of mills to manufac- 
titiv togar and syrup. 
Syl Z fXH laS). Commerce — State regulation of grain elevators. 
^iroTisd in State v. Jaclisonvilie Term. Co., 41 Fla. 406, 27 So. 
- V lipholdlng railroad commissioner's regulation under Laws 1800, 
rhap. 4T0f>, re<iuirlng terminal company to admit railroad operating 
itne from Florida to Georgia to privileges of Its passenger terminal. 

Syl 4 |X1I» 138). Legislative power to prescribe maximum ele- 
fmtor rates, 

AjnTTOfed in Janvrln, Petitioner, 174 Mass. 516. 55 N. E. 382, up- 
M4lDg water supply act (Stat. 1805, chap. 488), glTlng certain 
mMtwr companietf exclusive right to supply water to towns In vicin- 
tsjr qC Boston, tut giving right to persons aggrieved to petltioa Su- 
prwrne Judicial Court to have rates fixed. 

iXlh ISTk Miscellaneous. 

Cftpd to S^tate V, Associated Press, 150 Mo. 424, 44S, 30 S. W. 94, 
WZ dlMentlng oplotoo. 





143 U. S. 553-578 Notes on U. S. Reports. 206 

143 U. S. 553-570, 36 L. 259, HOYT v. LATHAM. 

SyL 8 (XII, 139). Delay with knowledge of trustee's acts. 

Approved in Alaska, etc., Chicago Commercial Co. v. Solner, 123 
Fed. 860, holding where corporation's secretary, having power to 
manage business, sold property of corporation, receiving considera- 
tion and applying it to uses of corporation, and on vice-president 
assuming charge, latter filed suit to recover property, ratification 
of secretary's action presumed where directors did not act; Murphy 
V. Ganey, 23 Utah, 641, 66 Pac. 193, holding where wife executed 
conveyance of her realty to husband, who wrongfully recorded It, 
and later in divorce proceedings wife obtained lien thereon for 
alimony, and on death of husband wife filed claim against estate 
which was settled, she cannot claim premises as against husband's 
vendor. Sec 80 Am. St. Rep. 563, note. 

143 U. S. 570-578, 36 L. 266, HORNER v. UNITED STATES. 

Syl. 1 (XII, 139). Direct appeal from Circuit to Supreme Court. 

Approved in Davis, etc., Mfg. Co. v. Los Angeles, 189 U. S. 216, 
23 Sup. Ct. 499, 47 L. 780, holding appeal lies direct to Supreme 
Court from decree of Circuit Court dismissing bill which is based 
not only on diversity of citizenship, but upon alleged unconstitu- 
tionality of certain municipal ordinances as impairing contract 
obligations; Watliius v. King, 118 Fed. 531, holding fact that ques- 
tion as to construction or application of Federal Constitution arises 
incidentally in trial of action in Circuit Court, does not deprive Cir- 
cuit Court of Appeals of Jurisdiction to review whole case on error; 
Ex parte Jacobi. 104 Fed. 682, holding appeal from Circuit Court 
doclKlon on hal>eas corpus, based on ground that applicant is de- 
tained In custody in violation of Constitution, does not lie to Cir- 
cuit Court of Appeals; City of Dawson v. Columbia Ave. Saving 
Fund, etc., Co., 102 Fed. 200, 209, holding under amendatory act 
of February 18. 1895, appeal does not lie to Circuit Court of Ap- 
peals from onler granting injunction in case in which municipal 
ordlnaucoH are claimed to impair obligation of contract, though case 
may involve other questions; dissenting opinion in American Sugar 
Refining Co. v. New Orleans, 104 Fed. 5, majority holding where 
controlling question involves construction and application of Con- 
stitution, Circuit Court of Appeals has no Jurisdiction, though ques- 
tion not raised by plaintiff's pleading and Circuit not dependent 
on it. 

Syl. 2 (XII, 139). Jurisdiction of entire cause on appeal from 
Circuit Court. 

Approved in Mexican Cent. Ry. Co. v. Eckman, 187 U. S. 432, 23 
Sup. Ct. 212, 47 L. 247, reaffirming rule; German Sav. Soc v. Dor- 
mitzer. 192 U. S. 128, 24 Sup. Ct 222, refusing to dismiss writ of 



Notes on U. a Reports, 143 U. S, 57&-59G 



on ground that Federal question not set up below, and tliat 
etecUlon rested on two grounds, one of wblch was independent of 
Fi&efBi question, when plaintiff had Insisted on constitutional 
i^ts as £ooD as oeoasion arose; Spencer v, Duplan Silk Co., 191 
r, S- 52ri. holding suit does not arise under Federal Constitution or 
Jtirs uaJesg dispute or controversy as to effect or consti'uetion 
thereof, upon determination of which result depends* appears in 
ntarA; Home Life Ins. Co. v. Fisher, 188 U. S. 727, 23 Sup, Ct, 
SSL 47 Lw 668. holding where constitutional qnestion was validity 
cf State statute allowing attorney's fees in action on life Insur- 
ance policy. Supreme Court may on error review other assignments 
oC error where constitutional question not pressed; Louisville Trust 
Oeu T. Stone, 107 Fed. 300. holding Federal jurisdiction having been 
proiiefliy invoked for relief against assessments as discriminating 
aialJiBt complainant In violation of Fourteenth Amendment, bill 
msLj be retained to administer other relief^ where discrimination 
oot proved. 

8yL 3 (XII, 140). Habeas corpus to determine whether scbeme 
la lottery. 

ApproTed in Storl v, Massachusetts^ 183 U. S. 143, 4G L. 124, 22 
OL 74. holding on appeal from dismissal by Circuit Court of 
IB corpus for want of jurisdiction, Supreme Court not limited 
ta fiuestioD of jurisdiction. 

SyL 6 (XII, 140). Treaty superseded by later conflicting statute. 

Approved in The Kestor, 110 Fed. 448. holding amendatory act of 
December 21, 1898, % 24, forbidding prepayment of seamen, applies 
ta prepajment on American soil or waters of wages of Britishers, 
•lilppbig IQ American ports on British ships, 

143 U- 8. 578^586. Not cited. 

148 U, 8, 587-596, 30 L. 272, GANDY v. MAIN BELTING CO. 

W. S (Xlh 141). Patents — Use as evidence of utility. 

i^proTed In Dowagiac Mfg. Co, v. Minnesota Moline Plow Co-, 
lis red. 13J*. holdtnjr Hoyt patent No. 446,2:m for improvement in 
grvlii drills, ralid and infringed by device made in accordance with 
llvope and Moehring patent No. 008,307; Dowagiac Mfg. Co. y. Su- 
P«ii» Drill Co., 115 Fed. 895. holding P,nckham patent No. 557,StJ8, 
f«r loqiroyenient in disc grain drilis. valid and infringed. 

Syl 4 (XII. 141), Patent aa evidence of invention, 

Approrrd In Peters v. tJnlon Biscuit Co,, 120 Fed. 085. upholding 
DAtent No. 621.974, for method of and means for pacidng 
•; I-amb Knit GtK>ds Co. v. Lamb Glove & Mitten Co., 12*» 
HL 273; boldlug Lamb patent No. 402,503, for knitted glQvm, valid 
nilDCnngedu 




143 U. S. 596-049 Notes on U. S. Reports. 206 

143 U. S. 596-021, 30 L. 277. CHICAGO, ETC., R. R. CO. ▼. DEN- 
VER, ETC., R. R. CO. 

Syl. 2 (XII, 142). Construction — Entire contract and situation 
of parties. 

Approved in Clarke v. Eureka County Bank, 123 Fed. 927, apply- 
ing rule in construing escrow agreement for shares of stock; Bowers 
Hydraulic, etc., Co. v. Vare, 112 Fed. 04, holding under license vest- 
lug licensee with exclusive right to use, make and sell invention 
within certain territory, but giving patentee right to make and use 
within such territory for certain puri>ose, licensee could not main- 
tain suit for Infringement in own name; Scott v. Bait, etc., R., 93 
Md. 409, 49 Atl. 328, holding agreements of parties and resolutions 
of corporation which authorized issue of preferred stock may be 
considered In ascertaining rights of holders of preferred stock; 
Mayer v. Goldberg, 110 Wis. 101. 92 N. W. 558, construing yearly 
contract of employment of traveling salesman. 

Syl. 5 (XII, 142). Lease of terminal facilities — Right to employ 
crews. 

Approved in Michigan Cent R. R. Co. v. Pere Mar. R. R. Co., 
128 Mich. 347, 87 N. W. 270, upholding contract whereby one railroad 
granted to another right in perpetuity to use grantor's road in 
common, with provision that grantee should not receive freight to 
be transported east of certain point. 

143 U. S. 021-041). 30 L. 285, UNITED STATES v. TEXAS. 

Syl. 3 iXll, 142). Courts — Determination of boundary between 
State and Territory. 

Approved in South Dakota v. North Carolina, 192 U. S. 317, 318. 
24 Sup. Ct. 275, upholding Supreme Courts original Jurisdiction 
over suit by one State against another to decree foreclosure and 
sale of stocks belonging to debtor State, which secure bonds of 
such State; United States v. Michigan, 190 U. S. 390, 23 Sup. Ct 
747, 47 L. 1109, upholding Supreme Court's original Jurisdiction 
over suit by United States against Michigan to compel it to account 
for suri)lus moneys In St. Mary's Falls ship canal fund; Minnesota 
V. Hitchcock, 185 U. S. 35^, 40 L. 901, 22 Sup. Ct 055, upholding 
Supreme Court's original Jurisdiction of suit by State to enjoin 
secretary of Interior and commissioner of land office from selling 
scliool lands in Red Lake Indian reservation; Louisiana y. Texas, 
17() U. S. 10. 44 L. 353, 20 Sup. Ct. 250, holding controversy between 
two States, within Supreme Court's original Jurisdiction, not cre- 
ated by enforcement of (luaraiitine regulations by health officer of 
one State acting under valid laws, to damage of citizens of an- 
other State. 

Distinguished in dissenting opinion in South Dakota v. North 
Carolina, 192 U. S. 338, 339, 24 Sup. Ct 284, majority upholding 



Notes on U. S. Reports. 



143 U. S, tM.'>-7tH* 



) 



^njii^nie Court'a arlglnal iurlsdJctlon over suit by one State against 
lotljer to decree foreclosure and sale of stocks owned by debtor 
ite. which secure bonds of such State. 

-5 C. S. W9-70O, 36 L. 294, FIELD v. CLARK. 

$ft I PCU, 14S)* Congressional Journals cannot contradict en- 
ftxUid act 

vpproved In Couoty of Yolo v. Colgan, 132 CaL 272, 04 Pac. 406* 

ix^tftla^ rtepeallng act of February 23» 1893 (State, 1803, p. 5), was 

faiid, and cannot be Impeached by finding that Senate jourual 

that TOte for bill in Senate was less than majority of 

elected. 

SjL 2 CXU, 143). Mode of keeping Journals and authenticating 



Approred In C3ounty of Yolo v, Colgan. 132 Cal. 274, 64 Pac. 407, 
Stats, 18Si3, p. 5* was valid and caonot l)e impeached by 
that Senate journal showed that vote for bill In Senate was 
less than majority of senators elected. 

SyL 3 (XII, 143). Enrolled act Is unimpeachable. 

Approred In Chesapeake & Potomac TeL Co. v* Manning, 1S6 
XI a. 245, 46 L. 1147, 22 Sup. Ct 884. upholding 30 Stats. 525, 538, 
chap. 5I0« regulating telephone rotes In District of Columbia; Manl- 
fault t- 8. M. Ward, etc., Co., 123 Fed. 716, upholding South Caro* 
Hu act of March 3. 1903, authorizing coastrtietion of dam across 
Khkkidc creek: Stale v. Frank, eJO Nehr. 332, 83 K W. 75, upholding 
icaa. Laws, chap. 31, amending Comp. Stats. 1897, chap. 28, g 3, 
ttlltitd "Fees'*: State v. Beck, 25 New 81, 56 Pac. lOlOp uphold- 
iaig act of March 4, 189f), repeating act Incorporating city of Reno; 
ftal* T. Howell, 26 Nev. 105, 04 Pac. 468, holding where bill passed 
haUi houats and was signed by presiding otflcer, who transmitted 
It to goremor. who returned it with his objections, to secretary of 
Mmtm after adjournment of st'ssion, failure of presiding otficers of 
MeOMAlng legislature to sign bill wMch was passed over veto, 
fodtrrd Uw ijivalid. 

INdtogutthed In Wilkes Co. Comrg. v. Coler, ISO U. S. 521, 522, 
IH^IS L, 651, 652, 21 Sup. Ct. 463. 464, holding decisions of highest 
Hala court to effect that provisions of State Constitution respecting 
piiaagtt of statute are mandatory must be followed by Federal 
oowft tirespectlTe of Federal rule as to Federal statutes. 

Sjt. 4 <X11, 144). Contemporaneous practicable statutory con- 
itmcfkai. 

A|t»i>Ti4 In Downea v. BldweU. 182 U, S. 286, 45 L. 1106, 21 
H§.€L 7m, npboldlng Foraker act of April 12, IJKK), temporarily 
infidlDf Hrll government and revenues for Porto Hico. 
FaLIlI — 14 



jjyi 



143 U. S. 64&-700 Notes on U. S. Reports. 210 

Syl. 5 (XII, 144). Delegation of legislative power to president. 

Approved in Buttfield v. Stranahan, 192 U. S. 496, 24 Sup. Ct. 355, 
upholding 29 Stat 604, to prevent importation of Impure and un- 
wholesome tea; Consolidated Coal Co. v. Illinois, 185 U. S. 210, 46 
L. 877, 22 Sup. Ct 619, upholding 111. Sess. Laws 1879, as amended 
in 1897, coufiding to State mine inspectors discretion to determine 
number of times each mine shall be inspected and providing that 
charges therefor shall be paid by mine owners; Rider v. United 
States, 178 U. S. 258, 44 L. 1060, 20 Sup. Ct 840, holding failure to 
comply with order of secretary of treasury directing alteration In 
bridge to facilitate navigation will not subject municipal officers 
to criminal prosecution under river and harbor act as amended In 
1890, where such officers have not necessary funds; Dastirvignes T. 
United States, 122 Fed. 35, affirming 118 Fed. 200, 201, upholding 
30 Stat. 35, authorizing secretary of interior in superintendence of 
forest reservation to mal^e such regulations and establish such 
service as will insure objects of such reservation; United States T. 
Hlasingamc, 116 Fed. 654, holding void provision of sundry civil 
appropriation act of June 4, 1897, making it criminal to violate 
any rule or regulation thereafter to be made by secretary of Interior 
for protection of forest reservations; United States v. Maid, 116 Fed, 
653, holding perjury under Rev. Stat, § 5392, cannot be based upon 
nffidavit of uonniineral chaiacter of land made in support of home- 
stead entry, though land office regulation requires such affidavit to 
be made in certain States; Hand v. Stapleton, 135 Ala. 165, 33 So. 
tK)*J, upholding Acts 1900-1901, p. 754, relating to removal of county 
seat as not violative of suspending powers of legislaure; Walker ▼. 
Towio. 156 Ind. 644, 647, 59 N. E. 22, 23. upholding ordinance re- 
quiring mayor, whenever he apprehends danger from hydrophobia, 
to issue proclamation compelling owners of dogs to muzzle tbem 
for not less than thirty nor more than ninety days; Blue v. Beach, 
155 Ind. 133, 56 N. E. 94, upholding Burns' Rev. Stat 1894, § 6711, 
et soq. authorizing State board of health to adopt rules to prevent 
spread of contagious and infectious diseases; Pratt v. Breckinridge, 
112 Ky. 12. 65 S. W. 138. holding void act March 11. 1898, providing 
for appointment of election commissioners by legislature: Kennedy 
V. Mayor of Pawtucket 24 R. I. 46-4, 53 Atl. 318, upholding Public 
Laws 1902, chap. 1018, providing for appointment of commissioners 
to divide city of Pawtuck(>t: Narrogjing v. Brown Co., 14 S. D, 
:HV2, 85 N. W. (>03, applying rule in upholding Laws 1891, chap. 14, 
proscril)ing mode of making assessments and levy and collection of 
taxes: Loeper v. State, 103 Tenn. 526. 53 S. W. 967, upholding 
••uniform tax-book act" of 181)9; .Tannin v. State, 42 Tex. Cr. W4, 
62 S. W. 419, holding void anti-scalpers law of twenty-third legis- 
lature; Young V. Salt Lake City, 24 Utah 330, 331. 67 Pac. 1067, 10G8, 
upholding Rev. Stat. chap. 15, tit. 10, § 288 et seq., relative to 
changing boundaries of incorporated cities; State v. Froehlich, 118 



Notes on U. S. Reports. 



144 U. S. 1-lD 



144, m N. W. 54, holding void Laws liK)!, p. 01*5. chap. 4GS, 

spprofirlatl&g fixed sum for purpose of paying Innocent purchasers 

«C impaid cooiity orders Issued under act 1895, [>roviding for treat- 

OMBl of habltnid drunkards at private insLitntlous and purchased 

liefjorie same declared invalid; dissenting opinion in PunieU v. Maun, 

mS Ky, 118, 50 S. W. 2t>l», majority upholding election iaw of 

Maicb IX, 18S8* providing for election by legislature of State hoard 

of sleciiOD commissioners, and appointment by It of county board. 

Dlfttiiicra^sbed IB GiUiooly v. Elizabeth, m N. J, U 486. 49 AtL 

1J07, lioldliig void act of March 21. 11)01, giving governor power In 

kin dtecretiOD. on application of one hundred voters, to appoint 

naimufgirliTn to district or redistrict words in cities. 

8jL 6 <XII, 145k Valid parts of statutes stand when separable. 

Approved In Iowa v, Santee* lU Iowa 10. 82 N. VV. 448. hiilding 

Code* f 2S08^ forbidding use of petroleum products for iilnmluattng 

wbich emit combustible vapor at lower temperature than 

1^^ Fahr. closed test except when used In Weishack lamps, Is 

omij as to latter provision. 



OXLIV UNITED STATES. 



144 V, S, l-ll, 30 L. 321. UNITED STATES v. BALLIN. 

Sji. 3 ncil, 14U>. Counting nonvoting members to make quorum. 

AsipcovLHl in State v. Porter. 11 N. Dak. 319, 91 N. W, 950, hold- 
- « wben? delegates who are entitled to sit in party convention are 
rw^ot, but refrain from voting, they cannot, by so doing, invall- 
^tt aetkiQ taken by majority of those voting. 

Ui C. ». 11^19, 36 L. 327. AN SOMA BRASS. ETC., CO, v, ELEC- 
TEICAL SUPPLY CO. 
$fU I tXlI, 147). Doing what has been done, not invention. 
4p{ifft}ve<l In WestiugJiouse Electric, etc., Co. v. Union, etc.. Co., 
FVil, 423. upholding Westinghouse patent No, 3Gii,3ti2. and 
patent Xo. 508,iiri4. both for electrical transformers; Thom- 
~i«-Hi>««Toii Electric Co. v. Na.sjtau Electric K. Co.. f>S I^'ed. Ill, 
Thomson patent No. -I8rM<j7, for improvements In electric 
vwiidka^ rold for want of patentable novelty. 
ijl2 tXll, 14TU Patents — Application of old process to anala- 

JMl|»ttr#«J In Johnson Co, v. Toteilo Traction Co.. 119 Fed. 8^3. 
void Moxham patent No. 540,7Dii. for improvement in rail- 
•wlteh ijirucliireH: l>c Lamnr v. De Lanuir Mln. Co., 117 Fed. 
'joM.rijf voh? Wttisteln patent No. t}(»7,71!i, for process for 



^ 



144 U. S. 19-47 Notes on U. S. Reports. 212 

extracting precious metals from cyanide solutions; Standard Caster. 
etc., Co. V. Caster Soclcet Co., 113 Fed. 165, holding Berkey patent 
No. 318,533, for caster socket anticipated by Kane & Brown patent. 

Syl. 3 (XII, 147). Patents — Application of old device to new use. 

Approved in Moore v. Schaw, 118 Fed. 607, upholding Moore 
patent No. 622,251, for holding device for riveting pipe; National 
Hollow, etc., Co. V. Interchangeable, etc., Co., 106 Fed. 702, uphold- 
ing Hein patent No. 361,000, claim 2, for metallic brakebeam. 

Distinguished in Falk Mfg. Co. v. Missouri R. R. Co., 103 Fed. 
302. holding Hoffman & Falk patent No. 545.040, for improvement 
in rail Joints, void for anticipation. 

144 U. S. 1&-24, 36 L. 330, LARKIN v. UPTON. 

(XII. 148). Miscellaneous. 

Cited in Brewster v. Shoemaker, 28 Colo. 179, 63 Pac. 310, 89 Am. 
St. Rep. 180, as affirming State court; Wetzstein v. Largey, 27 Mont 
224. 70 l*ac. 719, as to history of litigation. 

144 U. S. 24-28. Not cited. 

144 U. S. 28-34. 36 L. 333. HEINZE v. ARTHUR. 

Syl. 1 (XII, 148). Tariff — Sufficiency of protest. 

Approved in Battle & Co. v. United States. 108 Fed. 220, hold- 
ing where article classitied as medicinal preparation. In preparation 
of which alcohol was used, and only ground of protest was that 
conceding it to be such preparation it was not dutiable as such, but 
as chemical compound, importer cannot insist that classification 
was incorrect because it does not appear that alcohol was used in 
particular article. 

144 U. S. 35-41. Not cited. 

144 U. S. 41-47. 30 L. 338, WILSON v. SELIGMAN. 

Syl. 2 (XI 1, 141)). State cannot extend jurisdiction extra-terrl- 
torially. 

Approved in Whitman v. Oxford Nat. Bank, 176 U. S. 563, 44 L. 
51H), i»() Sup. Ct. 478. holding words ** shall be secured** In Kan. 
Const., art. 12, § 2. declaring liability of stockholders in corpora- 
tions of themselves declare liability; Cady v. Associated Colonies, 
111) Fed. 424, holding constructive service on foreign corporation, 
under State law applicable to cori)orations doing business in State* 
will not confer jurisdiction where at time of such service corpo- 
ration is not doing business in State; Moredock v. Kirby, 118 Fed. 
184, hoMing service of summons issue<l against nonresident de- 
fendant, made on agent in charge of his business in Kentucky, in 
accordance with Ky. Civ. Code Proc. § 51. subd. 6, does not con- 
fer jurisdiction to render personal judgment against defendant; 
Emanuel v. Ferris. 03 S. C. 121, 41 S. E. 25, holding where prop- 
erty formerly situated in this State and passing under will has 



:i3 



Notes on U. S. Reports* 



144 U* S. 47^-64 



bwo conrerted Into personalty and removed from State by for* 
dfii corporation* wblcb is trustee under will. State courts cannot 
aeQvlre juried Ictloo of such corporation In suit by cestui que trust 
bf pQbUcatioD of summons. 

BjL 4 (XI I » 1501- Personal notice necessary to biud stockholder. 

ApfiroTed in Com mo n wealth, etc., Ins. Co. v. II ay den, 61 Nebr. 
4Siw 85 K. W. 444, holding court having Jurisdiction of Insolvent 
«QfX>or«tloQ for purpose of winding up its affairs has no authority 
19 render personal Juugment against one of its stockholders who 
li not party to action, by service of process or voluntary appearance* 

IXII. 149). Miscellaneous. 

Cited In Ward t. Congress Const Co., m Fed, 604, as to definition 
of term •• suit** 

Hi U. & 47-64, 36 L. 340, LAU OW BEW v. UNITED STATES, 
BjL 1 tXn, 150). Appellate Jurisdiction under act 1891, 
Approved in Woey Ho t. United States, 191 U. 8. 558, reafflrmlng 

ftku 

Distinguished In Butt v. United States, 126 Fed. 795, holding, un- 
ier 21 SUt 829, $ 11, in suit on claims against United States, 
cMnt cannot aUow appeal by United States after expiration of six 
■iNitli* from entry of decree. 
BfL 4 (XII, 151). Statutory construction — ^Legislative Intent 
Approved In Hawaii v. Mankichi. 190 U. S. 214, 23 Sup. Ct 789, 
41 L, 1021, holdhig criminal proceedings by grand and petit juries 
aot futfstltnted for existing Hawaiian procedure by Newland's 
ftnimion of 1898: United States v. Gue Lim, 176 U. S, 467, 44 L. 
Ml 20 Sup, Ct, 418, holding wife and minor children of Chinese 
who Is domiciled In this country may enter without cer- 
raentloned in act of 1884; Pabst Brewing Co. v. Crensliaw, 
» f«L 148, holding Mo. Sess. Laws 1S99, p. 228. § 5, relative to 
lafp»ctlon of beer, does not apply to beer manufactured outside 
ti Siaie and shipped Into It for sale In another State; St Paul, 
M, it U. Ry, Co. V. Western Union Tel. Co., US Fed, 515, con- 
ttniiig eontmct between railroad and telegraph companies for con- 
•Auction of telegraph line; Tsoi Sim v. United States, 110 Fed. 
m Ifeolding, under act November 3, 1893, Chinese woman who 
Itwfollj entered country before enactment of any exclusion acts 
md remalDed. but who failed to obtain required certificate, wheti 
•te# in* thereafter and prior to arrest married to citizen, cannot 
W dfiiorted: United States v. Ho^rg, 112 Fed. 912, affirming 111 
Fwl 2^h holding Ky. Stat, g H5(i4, par. 3, providing tliat officer 
•■y At Afly time after return day, wlille origioal execution still 
la bte liands, sell any property talc en in virtue thereof, provided 
krf intdt before return day does not change common-law rule 
Ite Itvj may be made on return day; In re Moore» 111 Fed, 149, 




J 



144 U. S. 47-64 Notes on U. S. Reports. 214 

holding, under bankruptcy act 1808, § 63a, Judgment Imposing 
fine for violation of State statute not provable debt which is re- 
leased by discharge in banltruptcy; Manley v. Tow, 110 Fed. 
247, holding, under 24 Stat. 556, § 4, forfeiting unearned lands 
covered by railroad grants, one purchasing unearned lands from 
company after passage of act not entitled to protection as against 
actual settler under homestead laws, whose settlement antedated 
such purchase; In re Spreckles Co., 101 Fed. 882, holding, under 
26 Stat. 613, requiring duty on materials Imported in bond for 
use in construction or equipment of vessels to be paid in case ves- 
sel employed in coastwise trade for more than two months In 
any one year, does not require payment of duty before vessel per- 
mitted to engage in coastwise trade after material worn out; Rob- 
erts V. Pacific, etc., Co., 104 Fed. 579, upholding Federal Jurisdiction 
of suit by plaintiff who is citizen of State where brought against 
citizen of different State and an alien; Robards Tobacco Co. v. 
Franks, 103 Fed. 279, holding where tobacco manufacturer after 
April 14, 1898, placed stamps on tobacco at rate of six cents per 
pound, such tobacco remaining In fact was only liable to three 
cents per pound additional under war revenue act of 1898, § 3; 
United States v. Burke, 99 Fed. 898, holding master not liable to 
penalty or refusal of clearance papers, under act March 3, 1891, 
where alien seaman who is one of crew escapes while in port and 
master is unable to secure his return to ship; In re Higgins, 97 
Fed. 776, 777, holding where attachment is sued out In pending 
suit upon filing of aflidavit and bond as required by State statp 
ute and is levied on debtor's property within four months prior 
to filing of bankruptcy petition, attachment will be dissolved if 
it was obtained while defendant was insolvent; Tanner v. Nelson, 
25 Utah, 237, 70 Pac. 988, construing Rev. Stat., § 1856, relating 
to convention called by superintendent of instruction to receive 
bids for furnishing school books; Fabor v. Green, 72 Vt. 118, 47 
Atl. 392. holding Vt. Stat., chap. 187, does not exclude traffic in 
wood alcohol. 

Syl. 5 (XII, 152). Chinese merchants may return without cer- 
tificate. 

Ai)proved in United States v. Tuck Lee, 120 Fed. 992, holding. 
under 25 Stat. 477, where Chinese laborer holding United States 
labor certificate departed from United States at point other than 
places of departure prescribed, without permission, and thereafter 
re-entered at noudesignated point. In absence of evidence of in- 
tention in departing he was subject to deportation; United States 
V. Wong Lung, 103 Fed. 794, holding where Chinese is shown to 
have been memlJer of mercantile firm In this country for seven 
years, fact that he has lately visited China and returned, there 
being nothing shown as to manner of re-entry, does not warrant 
deportation; Mar Bing Quey v. United States, 97 Fed. 679» hold- 



m 



Notes OB U. S. Reports* 



144 U. S. 64-92 




iagf nodcr 23 Stat 116, 117, requiring Chinese other than labor- 

m deiiring to enter Uaited States, to procure certificate from 

diMse authorities^ vised by consular represeatatlve of United 

StMtm, Chinese unlawfully permittee! to enter without such cer- 

Ctflcitt may be deported without regard to occupation since entry. 

DistliigiiJshed In United States v. Moj Ylm, 115 Fed. C53» hold- 

iDf fact that during six months imnK^diately following passage 

itf Cbineee exclusion act of 1893 , appellants were merchants la 

not cooeluslTe of present right to remain, where they afterward 

Itfc GOODtry, disposing of business, and witliout auy proven in- 

tenliofi of return tng« and then returned and engaged in business as 

Ubor^TBL 

l« U. 8. G4-75, 36 L. 346, BUTLER v. NATIONAL HOMB FOR 

SOLDlERa 

SyL 1 (XII. 152). Removal where plaintiff Is Federal corporation. 

Approved in State v. Frost, 113 Wis, 648, 80 N. W. 920. bold- 

InfoirmatJon In equity in behalf of State to enjoin Federal 

Iter from destroying railroad for purpose of selling materials 

It, pursuant to order of Federal court, Is removaWe. 

HlMlngiiiabed In Marrs v. Felton, 102 Fed. 7TC, holding where 

Federal receiver of State corporation is properly Joined with co- 

AifeiidAQt who has no right of removal and suit does not involve 

ttyarable controversy. It cannot be removed by receiver. 

8yl 2 (XII, 153). Direction of verdict on opening statement of 

Ai^proved In United States v. Dietricli, 126 Fed. 678, directing 
ieqvUtal on opening statement of prosecution; Lyman v. Kansas 
Oiy. *tc.. B, R, Co,, 101 Fed. 639, holding statements by counsel 
•I trial disclaiming any purpose of bill to have either modifted 
or tet aside a proxy binds client. 

m V. 8, 75^92, 36 L. 352. KENT v. LAKE SUPERIOR CANAL CO. 

Syl. 2 tXII, 153). Foreclosure by trustee binds bondholders. 

Ajiproved In Fletcher v. Ann Arbor R. R, Co., IIG Fed. 4S1. 
Mttng beneficiary In mortgage deed made to and foreclosed by 
tnmm cannot avoid sale after confirmation and distribution of 
ymcteds on ground that property hid In at less than vaJue by 
•yndlrrite* of which receiver making sale was member, where no 
trtM charged against trustee: Rumsey v. People's Ry. Co., 154 
Mol 245, 55 8. W. 624, holding bondholders not necessary parties 
to ffuit agalnat trustee to foreclose mortgage-securing bouds. 

Ssl 3 (XII, 153). Priority of receiver's certificate recogoized 
IfOTMee, 

Approved fn Pueblo Trac. & B. Co, v. Allison, 30 Colo. 341, 70 

L'fj, hotdlDg building of mile of road In order to save for- 

■ < of company*a privilege of using streets, not such over- 



144 U. S. 92-119 Notes on U. S. Reports. 216 

whelming necessity where application did not allege that city 
would enforce forfeiture, as to warrant issuance of receiver's cer- 
tificates to defray cost lien prior to mortgage. 

Syl. 4 (XII, 153). Legal conclusions not admitted by demurrer. 

Approved in Crockett v. McLanahau, 109 Tenn. 525, 72 S. W. 
952, holding allegation in action for libel as to want of probable 
cause not admitted by demurrer. 

Syl. 5 (XII, 153). Relief under prayer for general relief. 

Approved in dissenting opinion in London, etc.. Bank v. Horton, 
126 Fed. 60S, majority holding in action by mortgagee who has 
purchased property at foreclosure sale, to cut off defendant's right 
of redemption, court may decree general foreclosure and resale 
under prayer for general relief. 

14-4 U. S. 92-96, 36 L. 358, IN RE HEATH. 

Syl. 2 (XII, 154). Supreme Court — Review of district criminal 
appeals. 

Approved in Sinclair v. District of Columbia, 192 U. S. 19, 
24 Sup. Ct 213, denying Supreme Court's Jurisdiction to review 
criminal Judgment of Court of Appeals of District of Columbia, un- 
der District Code, § 233. 

144 U. S. 97-104, 36 L. 360, GORDON v. THIRD NAT. BANK. 

Syl. 1 (XII, 154). Diverse citizenship first questioned in Supreme 
Court. 

Approved In People's Tel., etc., Co. v. East Tennessee Tel. Co., 
103 Fed. 215, holding destTiption of complainant in title of bill 
filed by resident of TtMinessee. as duly incorporated under laws 
of Kentucky, is sufficient alle^ration of complainant's citizenship 
ns npiinst ol)JiH'tion first raised on appeal, though there is no 
direct averment that complainant is citizen of different State from 
that of d<»fendant. 

Syl. 3 iXIl, ITA). Extension of time releasing surety. 

Approveii in Uosenbaum v. Uayes, 10 N. Dak. 328, 86 N. W. 
980, applying rule to factor's lien. 

(XII, 154). Miscellaneous. 

Cited in 80 Am. St. Rep. 110, note. 

144 U. S. 104-110, 30 L. 30,?, CAMDEN v. STUART. 

Syl. 1 (XII, 154). Simulated payments for stock do not defeat 
creditors. 

Approved in Taylor v. Cummiugs, 127 Fed. 110, holding where 
members of llrni orj^anized corporation and exercised good faith 
in accepting valuation of assets fixeii by bookkeeper, fact that by 
reason of errors in bookkeeper's statement there was material 
overvaluation does not render stockholders receiving fully paid 



fur 



Notes on V. S. Reports. 144 U. S. 119-126 



for Interest Id firm liable to creditors for difference; Strat- 
r« Independence v. Dines, 12G Fed. 977, holding l^nglIsb cor- 
Han organized to talie over mining property in Colorado, by 
own^r, who conveyed property to corporation and received 
stock, eicept seven shares which were allotted to seven 
persons for purpose of complying with English law, cannot 
me to recover damages for false representations made by hira 
to associates as to value of property; Vermont, etc., Co* v. Decie^^ 
tte, Co^ 1^ Cal. 5S7. 87 Am. St Rep. 150. 67 Pac. 1000, holding 
■todLbolders organizing corporation with stock of par value of 
ilOO, who by oral agreement among themselves, had paid-up shares 
laroed to themselves at purchase rate of ^20 are liable to credit* 
for unpaid balance on corporation's insolvency; Fouche v. 
tV Nat, Bank, 110 Ga. S41, 36 S> E. 2G2. holding recital in 
certificate that shares are foil paid and nonassessable does 
protect person named as owner from liability for unpaid sul> 
[ption. If he at time of purchase knew subscription was due; 
Bute Trust Co. V. Turner, 111 Iowa, G70, 82 N, W. 1031, holding 
lere property received by corpora t ion at excessive valuation in 
ent for shares owner of sucii stock is liable to creditors for 
ilffeteiice between true value of property and face vnlue of stock; 
lloors ▼. Universal Elev. Co., 122 Mich. Gl, 80 N. W, 1010, hold- 
lag stockholder's liability cannot be evaded by putting in property 
vlikli Is exchanged for stock at price In excess of real value 
•r bf tssnance of fully paid-up stock; Chrlsman^ etc., Banking 
Cow T. Independence Mfg. Co., 168 ilo. 643, 68 S. W. 1028, hcild- 
teg iiitiscrit}er to corporate stock tliat has not been fully paid up 
fWUiot, by any device or arrangement with company, its officers 
nr «<oekboJderf , surrender stock to company and be releastKl from 
QsMUy for amount unpaid on such stock. 

tSfi 4 (XII. 155). Presumptions In favor of master's conclusions, 
Al^roTed in Columbus, S. & H, R. R. Co. Appeals, 100 Fed. 
M; 'Titntor r. Franklin Nat Bank of New York, 107 Fed. 827, 
tM FItJHIty, etc.. Co. v. St. Matthew^s Sav. Bnnk, 104 Fed. 800, 
ill ivatlimilng rule; Buckingham v. Estes, 128 Fed. 587, applying 
niif where trial court affirmed findings of master on accounting of 
naitt. 

iXlI, 1M>. Biiscellaneous. 

Cited In Stnart v. Peyton. 07 Va. 821, 824, S4 S. R 700, 701, 
it to bintory of cuse« 

m V. 8, 119-126, 86 L. 368, DACASSAGNE t. CHAPUIS. 
Hjrt 1 (XII, 15S). Injunction intended for preventive relief. 
i|ipmir«d in Black v. Jackson, 177 U. S. 361, 44 L. SOG, 20 Sup. 
Ct (Bfi, deojlng mandatory Injunction to prevent trespass on 




144 U. S. 12&-173 Notes on U. S. Reports. 218 

Syl. 2 (XII, 155). Eviction — Equitable relief — Establishment 
of legal titie. 

Approved In Abraham v. Casey, 179 U. S. 217, 218, 219, 46 L. 
159, 160, 21 Sup. Gt. 91, as to question of res adjudlcata of Judg- 
ment in principal case; Cosmos Exploration Co. v. Gray Eagle 
Oil Co., 112 Fed. 9, holding averments in bill to determine title 
or right of possession by one out of possession that defendant 
has drilled oil wells on land, and is taking oil therefrom, against 
which injunction is asked, make bill demurrable as in effect on 
injunction bill. 

Syl. 3 (XII, 156). Lis pendens. 

Approved iii Weils v. Goss, 110 La. 355, 34 So. 473, holding pur- 
chaser pending litigation acquires no title. 

144 U. S. 126-130, 36 L. 371, TRIPP v. SANTA ROSA STREET 
R. R. 
Syl. 2 (XII, 156). Waiver of citation on appeal 
Approved in McFadden v. Mountain View Min. & Mill. Co., 97 
Fed. 672, holding rule 36 of Circuit Court of Appeals for ninth 
circuit, providing for holding of September term at Seattle, and 
that ail appeals for district of Washington shall be heard at 
Seattle term, unless parties stipulate otherwise, making of cita- 
tion issued in September after Seattle term returnable at San 
Francisco is waived by stipulation that cause be heard at San 
Francisco. 

144 U. S. 130-154. Not cited. 

144 U. S. 154-173, 36 L. 384, UNITED STATES v. BUDD. 

Syl. 1 (XII, 157). Proof of fraud to cancel land patent 

Approved in United States v. Clark, 125 Fed. 778, refusing to 
set aside patent for public lands for fraud; United States v. Detroit 
Timber & Lumber Co., 124 Fed. 398, 399, 400. holding fact that 
lumber company had loaned money to enable persons to enter 
timber lands in expectation that entryman would sell it lands 
because it had only mill in vicinity, does not render entriefi In- 
valid for fraud where there was no agreement for sale prior to 
entries; Grey v. Morris, etc., Dredging Co., 64 N. J. Eq. 570. 55 
Atl. 65, applying rule in action by State to annul lease of lands 
under water on ground that defendant was not owner of shore 
front. 

Syl. 5 (XII, 158). Timber act of 1883 — Character of land when 
patented. 

Approved in Thayer v. Spratt, 189 U. S. 350, 23 Sup. Ct. 578, 
47 L. 848, reaffirming rule; Whitney v. Spratt, 25 Wash. 67, 64 
Pac. 920, holding, under 20 Stats. 89, providing for sale of timber 
lands ruling by commissioner of general land office that lands 



zm 



Notes on U. S. Reports. 144 U. S. 173-ia7 



vliJcli were chiefly valuable for Umber at time of etilry, but which 
rvfKtd be col tira ted after removal of timber, were Dot piirchasabie 
mder meU was errooeoua. 

Srt 6 (XII, 158). DepartiDent's decision as to character of laad 
QOoeliislre. 

Approved In King v. McAndrews. Ill FerL 8<Ji5, lioMing land 
4e|mrUDeQt had jurisdiction to hear and determine claims of 
liotDesteaders and townsite claimants to land described in Dal^. 
act Msrch 7, 1885, under act of Congress of March 2, 1S89. and 
l» Isffvie patents therefor; James v. German ia Iron Co., 107 Fed. 
6Di, holding one who would attacli land patent for mistake of 
fmct must plead and prove evidence before department from which 
mlstalte resulted^ particular mistake that was made, and fact that 
If It had not been made patent won id not have issued; Deweese 
▼. Smith, 106 Fed* 446, holding decision of comptroller of currency 
ms la tlioes and amounts it is necessary to collect from bank 
stockholders to pay bank*s debts is not collaterally attackable, 

rustlngalsbed In Emmons v. United States, 103 Fed. 773, holding 
IB BcUon imder act of June 16, 18S0, to recover from United States 
iBoaey paid by plalntiCTs asslpior for lands entered under timber 
ict on ground that entries subsequently canceled by department 
CO griHiQd that lands not subject to entry as timber lands, answer 
tllcgltig that entries canceled because not made In good faith 
■tsti« good defense 
iXll, 157). 5fiscel1aneous. 

Clled to Grey r. Morris, etc., Dredging Co., 64 N. J. Eq. 559, 55 
ktX, (El, to point that bill in equity by State to annul patent is usual 
p<w«dare, 

m U. ^ 173^197, 36 L. 300. BREXHAM w. GERMAN-AMERICAN 
HAXK. 

ISfi 1 (XII, 150), Municipal power to borrow — Issuance of 
Bfiptiible bonds. 

A|ipniT«d In Coquard v, Oqnawka, 192 III. 364, 61 N. B. 662, hold- 
lif |P9Wcr of municipality to issue new negotiable bonds having 
licMaitii of commercial paper, to take place of former Issue, not 
tQpUfd merely from power originally conferred authorizing such 
^tmm issue; Lawrey v. Sterling. 41 Or. 528, 69 Pac. 464, holding 
Imwm 1JQ8, p. M, f 1, authorizing mortgage of realty^ gives ad- 
■lalmitar power to execute promissory note for loan, 

BMoguUbfd tn Washington Co. v. Williams, 111 Fed, 806^ hold- 
^ wutity bonds which acknowledge Indebtedness In certain sum 
i»l ivoiftlBe to pay same to payee or bearer from special fund to be 
Uf annual levy of specified tax, are not negutiable bonds; 
PftlU T, Sachs, 35 Or. 337, 330, 341, 76 Am. St. Hep. 504, 
HH 807, 57 Pac. 333, 33-1. holding power granted to municipality to 
liior bonds for specific purpose implies power to make such bonds 



144 U. S. 197-208 Notes on U. S. ReporU. 220 

negotiable in form and character; National Life Inn. Co. ▼. Mead, 
13 S. Dak. 44, 79 Am. St. Rep. 879. 82 N. AV. 79, holding Laws 1800. 
chap. 37, art 5, § 1, providing that council shall have power to 
borrow money on city's credit for municipal purposes and issue 
bonds therefor, confers power to Issue refunding bonds. 

144 U. S. 197, 36 L. 403, RICE v. SANGER. 

Syl. 1 (XII, 160). Supreme Court — Review of State Judgment 
remanding. 

Approved in Bogy v. Daugherty, 184 U. S. 696, 46 L. 763, 22 Siip. 
Ct. 938, reaffirming rule; Morgan v. Thompson, 124 Fed. 205, holding 
Judgment of United States Court of Appeals In Indian Territory 
which reverses Judgment of inferior court and remands for fur- 
ther proceedings, Is not final Judgment reviewable in United States 
Court of Appeals. 

144 U. S. 198-202. Not cited. 

144 U. S. 202-208, 36 L. 405, COLUMBIA R. R. Co. ▼. HAW- 
THORNE. 

Syl. 1 (XII, 161). Time for request for nonsuit 

Approved in Fullierson v. Chisna Min., etc.. Imp. Co., 122 Fed. 
784, lioldiiig exception to order overruling motion for nonsuit is 
waived by subsequent introduction of evidence by defendant; 
Sigafus V. Porter, 179 U. S. 121, 45 L. 116, 21 Sup. Ct. 30, holding 
where defendant introduces evidence after motion to dismiss, he 
cannot assign refusal to dismiss as error; Barabasz v. Kabat, 91 
Md. 59, 46 Atl. 339, and M'Crea v. Parsons, 112 Fed. 918, both hold- 
ing motion for Judgment made by defendant at close of plaintifTs 
evidence and overruled Is waived unless it Is renewed after de- 
fendant has Introduced his evidence; Bopp v. New York, etc., 
Transp. Co., 177 N. Y. 36, GO N. E. 123, holding where on trial of 
action for negligence of two defendants, one of them moves for 
nonsuit, and, on denial, excepts thereto, but pirts in evidence and 
again malvos motion and on its denial cross-examines codefendant's 
witnesses to sliow his lack of responsibility, refusal to grant non- 
suit is waived. 

Syl. 2 (XII, 102). Repairs after accident as evidence of negli- 
gence. 

Approved in Southern Pac. R. R. Co. v. Hall, 100 Fed. 708. fol- 
lowing rule; Waterburj' v. Waterbury Traction Co., 74 Conn. 167, 
50 Atl. 9, applying rule in action by town against street railroad 
to recover amount of Judgment, town had been compelled to pay 
for personal injuries caused by defective highway where defect 
alleged to have been caused by defendant's negligence in taking 
down railing; Georgia So. Ry. Co. v. Cartledge, 116 Ga. 166, 42 S. E. 
406, applying rule where railway mail clerk was injured by mail 



Notes on U* S, Reports. 



144 U. S. 20&-238 



grtl^; Holt T. 8pokane» etc.. Ry. Co,, 3 Idaho, 716. 35 Pac, 43, apply- 
la; role where well filled up after child injured by falling Id; Myers 
▼. Lumber Co., 129 N. C. 255, 39 S. E. titil, holdiixg in action by 
tm^Qiee for iDjuriea alleged to have heen caused by negligent 
msaa^ment of machinery', evidence that after accident macliinery 
vmi nored to another part of room ie incompetent; Baran y. Reading 
Ijtm Co., 202 Pa. St, 285. 51 Atl. DSO. holding in action for injuries 
caused by explosion of boiler alleged to be improperly supported, 
9mA Imprudently allowed to cool while connected witli boilers In 
operatloii, evidence that replacing l>oilcr was differently supported 
and boilers thereafter disconnected while cooling is InadmiRsible; 
Marsucx t. Hennessey, 24 R, L 209. 52 Atl. 1023, applying principle 
Is adiOQ by employee for injuries caused by machinery ; Rriilroad 
f. Wyatt. lOi Tenn. 434, 78 Am. St. Rep, 927, 58 S. W. 300. applying 
mle in action against railroad for injuries caused by defect in 
4c90t platform; Virginia, etc., Wlieel Co. v. Chalkley, OS Va. G4. 
91 & E, 976. applying rule In action by servant for injuries caused 
hf alleged defects In machinery; Carter v. Seattle, 21 Wash. 500, 
9 Pac, 5oi, holding fact that city filled up excavation in sidewalk 
titv accident cannot he considered in determining city's negligence 
la permitting sidewalk to remain In dangerous and unsafe con- 
dltloa. 

144 tJ. 8. 209. 36 I.. 407. RED RIVER CATTLE CO. v. SULLY. 
SyL 1 IXII. 162). Error dependent on matter not in record. 
Approved In Lincoln, etc., Min. Co. T. Hendry, 9 N. Mex. 156, 

ft> Psc 332, reaffirming rule. 

IM XL 8. 210-224. Not cited. 

m U. 8. 224^238. 30 L. 414. POPE MFG. CO. T. GORMULLY. 

ijl 1 (XIL 1G3). Contracts against public policy. 

Aoitroved In Washington Irr. Co. v. Krutz. 119 Fed. 287. holding 
wliere irrigation company's ottlcers offered to convey land to register 
^ lifid olflce In consideration of services lief ore laud deiJiirtJueiit. 
^hkh be declined while In office, and after expiration of term he 
iBte«d nominal services for company, upon which offer was re- 
aod accepted, last agreement was void as against public 



^^L 4 (Xll. Itj4). Specific performance Is discretionary. 

Ayprored In Newton v. Wooley. 105 Fed. 545. 54Q, refusing specific 
9frt9rm»nce of contract for sale of stock In corporation where con- 
vvt ti Qsconscloiiable. 

iyL 5 (Xn. 1G4). Specific performance of licensee's contract not 
It JJipnte patent. 

OliUn^Uhed In Consolidated Rublver Tire Co. v. Finley Rublier. 
He, Cow 116 Fed. 037, bold tog one who obtained exclusive rights 




144 U. S. 238-310 Notes on U. S. Reports. 222 

under patent bj license in which he acknowledged Its validity, 
which rights he has sold to another for valuable consideration, is 
estopped to deny validity of patent 

144 U. S. 238-24a Not cited. 

144 U. S. 248-254, 36 L. 423, POPE MFG. CO. V. GORMULLY. 

SyL 3 (XII, 165). Patents — Essentials of assignment to permit 
suit by assignee. 

Approved in Mllwanltee Carv. Co. v. Brunswick, etc., Co., 126 
Fed. 182, holding instrument granting exclusive right to manufac 
ture, use and sell machine for which grantor has applied for 
patent and containing agreement to also assign a like right in any 
other machine for which grantor may procure patent does not 
constitute assignment of patent granted on subsequent applica- 
tion which will support suit by grantee for infringement; Schler 
Carriage Co. v. Diere, etc., Co.. 113 Fed. 287, holding instrument 
by which patentee conveyed to corporation, its assigns and legal 
representatives exclusive right to manufacture and sell patented 
article in the United States for full term for which patents are 
granted, is an assignment granting all patentee's rights and 
authorizes grantee to sue for infringement in own name alone. 

144 U. S. 254-200, 36 L. 428, POPE MFG. CO. v. GORMULLY 
MFG. CO. 

Syl. 1 (XII, 105). Patent void for want of novelty. 

Approved in Downgiac Mfg. Co. v. Brennan, 118 Fed. 147, hold- 
ing Hoyt patent No. 440,230, for improvement In grain drills, not 
Infringed by Cliristian & Munn patent No. 497,86i. 

144 U. S. 2G0-203. Not cited. 

144 U. S. 203-310, 30 L. 429. LOGAN v. UNITED STATES. 
Sj'i. 1 (XII, 105). Constitutional right of protection to marshal's 

prisoner. 

Distinguished in Karem v. United States, 121 Fed. 254, holding 
Rev. Stat., § 55U8, punishing conspiracy to injure, oppress or In- 
timidate any citizen in free exercise of right secured by Federal 
constitution or laws, is not appropriate legislation for enforcement 
of Fifteenth Amendment. 

Syl. 3 (XII, 108). Congressional exercise of general power. 

Approved In Motes v. United States, 178 U. S. 402, 44 L. 1151. 20 
Sup. Ct 905, upholding Uev. Stat., § 5508, punishing conspiracy 
to injure or intimidate any citizen in free exercise of constitutional 
or statutory riglits or privileges; Boske v. Comingore, 177 U. 8. 
468, 44 L. 850, 20 Sup. Ct, 705, holding under Rev. Stat., f 101. 
secretary of treasury could make regulation that records in offices 
of collectors should be in their custody and control for purposes 
relating to collection of revenue only. 




Notes on U. S. Reports. 14A U. S* 2<J3-3U^ 



SjrL e (XII, 1G6). ConsdtutiDDal rights, how protected. 
Approved in Karem v. United States, 121 Fed. 257, holding 
Ref. Stat, i 55Q8, punlshicg conspiracy to Injure, oppress or in- 
timldiite any citizen In free exercise of right secured by Federul 
OoofititaUoD or laws, is not appropriate legislation for eufortumt^nt 
•f rirt^efitli Amendment; Lackey v. United States, 107 Fed. IIG, 
Toid Rer. Stat, S o507» punishing person who prevents, 
controla or Intimidates another from exercising right of 
to whom that right Is guaranteed by Fifteenth Amend- 
^ re-rersing 99 Fed. 961, 968, holding indictment sufflclcnt, un- 
4m Rer. 6tat» f 5SCIS, which charges defendants with con.sph*ing 
to Injure, oppress, threaten or intimidate certain colored men hi 
aerd^e of their right to v»te, to which they were legally enti- 
ttoiL on account of their race or color, 
8yL 8 {Xll, 16<3k Consolidation of indictments, 
AppruTed in Haynes v. United States, 101 Fed. 818, reafflrm- 
\mf ntle, 
SjrL 10 fXII, 167). Discbarge of jury not Jeopardy. 
ApproTed In United States v. Jim Lee, 123 Fed. 742, and State 
f. DwteUo. 29 Wash. 360, 00 Pac, IIW, both reaffirming rule. 

SyL 12 (XII, 16Tj. Adoption of State laws as to competency of 
w \m m mA — CrtmeB. 

Appmred tn Dreyer v. Illinois. 187 U. 8. 86, 2Z Sup, Ct 33, 47 
lb aOb feAfflrming rule; Withaup v. United States, 127 Fed. 534, 
prosecution for perjury In Federal court in Color,ido, court 
Uke Judicial notice of genuineness of signatures to papers 
IM la other cases, though part of Its own records, for purpose 
At itflsIltieD as standards of comparison; Allen v. Clark, 12ii Fed. 
T«, aiflrmlng 114 Fed. 370, holding Rev. Stat, S 91l>. providing 
tiat psny recovering Judgment in common-law cause In Federal 
«nirt »I»1I be entitled to similar remedies on same as are provided 
te like caaae by State laws, does not apply to fine In criminal 
me: United SUtes v. Davis, 103 Fed. 405, holding after juror 
ieofpifid by both sides and has taicen his seat in the box he may. 
9«o mumocing himself as feeling dlsquaiified to act Impartially, 
Mors belfi^ sworn, be directed by court to stand aside; dissent- 
taf opliikio to Wolfson v. United States, 102 Fed. 145, majority 
iiftflltic, under 20 Stat. 30, one of two defendants Jointly indicted 
wd tried may, at his own request, be examined as witness by 
fBvBiiincnt^ 

W. H (XIL 107), Conviction does not eitra-territoriaily dis- 
9Bill^ wltDes^. 

Approttd in Palmer v. C. R„ etc., Ry., 113 Iowa, 448, 85 N. W. 
311 haMng witness cannot be interrogated as to previous con- 
nrt&M In Auotlier JurlsdicUon; Missouri, etc., Ry. v, De Bord, etc., 



144 U. S. 310-323 Notes on U. S. Reports. 224 

21 Tex. Civ. 702, 53 S. W. 593, holding witness in civil case cannot 
be impeached by introducing record of his conviction of fdony 
in another territory. 

SyL 15 (XII, 168). Pardon after sentence served — Disqualifica- 
tion of witness. 

Approved \n Fitzpatriclt v. United States, 178 U. S. 307, 44 L. 
1080, 20 Snp. Ct 945, holding, under Judiciary act of 1891, conviction 
for murder Is " conviction of capital crime," though Jury qualify 
verdict by adding words "without capital punishment" 

JSyl. 17 (XII, 168). Furnishing list of witnessoi to accused. 

Approved in Bird v. United States, 187 U. S. 126, 23 Sup. Ct 
45, 47 L. 104, holding where witness for prosecution Is desig^uated 
on indictment and list of witnesses given to defendant by maiden 
name, which was name by which she was known at time, though 
she had been married and divorced and had subsequently borne 
name of another man, she is competent witness. 

(XII, 105). Miscellaneous. 

Cited in United States v. Eberhart, 127 Fed. 256, to point that 
there is a peace of the United States; In re Lalng, 127 Fed. 
216, to point that Federal courts will award habeas corpus to 
bring parties before them, where they are imprisoned under State 
Judicial proceedings, to determine whether or not parties should 
be released from further imprisonment; United States v. Morris, 
125 Fed. 322, holding conspiracy to prevent negro citizens from 
exercising right to lease and cultivate land, because they are 
negroes, is within Uev. Stat., § 5508; Watson v. The State, 116 Ga. 
611, 43 S. E. 34, holding under indictment for murder accused may 
be convicted of statutory offense of shooting at another. 

144 U. S. 310-323, 36 L. 445. UNITED STATES v. SANGES. 

Syl. 3 (XII, 169). Supreme Court's appellate Jurisdiction is statu- 
tory. 

Approved in dissenting opinion in State v. Thayer, 158 Mo. 60, 
51, 5S, 58 S. AV. 13. 14. 16, majority holding appeal lies for defend- 
ant from conviction for misdemeanor in criminal court of Jack- 
son county on information. 

Syl. 5 (XII, 161)). Supreme Court — Habeas corpus from terri- 
torial courts. 

Approved In Sinclair v. District of Columbia, 192 U. S. 19, 24 
Sup. Ct. 213. holding under Code of District, § 233, Supreme Court 
has no jurisdiction to review, on writ of error, Judgment of Court 
of Appeals of District of CoUnn])ia in criminal case. 

Syl. 6 (XII. 161).. Government cannot appeal in criminal case. 

Approved in Louisville Trust Co. v. Knott, 191 U. S. 230, hold- 
ing Supreme Court need not consider itself bound as to question of 



Notes on U. S, Reports. 144 U. S. 323-371 



tetloa because It may have exercised jiirisdlction In a cose 
wlien question might have been raised bot passed Btib silentlo; 
State T* RSdenbaugh, 5 Idaho» 713, 51 Pac. 751, holding State cannot 
appeal trom Judgment dismissing prosecution for mtsdemeanor 
lemnrrer to complaint; Portland v. Erickson, 39 Or. 9» 62 Pac. 
holding Hill's Annot. Laws» § 583, do not give State or raunlci- 
tty right to appeal or writ of review from judgment of acquittal; 
Hoipllj ▼. Massachusetts. 177 U. S. 159, 44 L. 714, 20 Sup. Ct i^^, 
tzgoendo. 

114 a SL ^3-371. 36 L, 450, O'NEiL ?, VERMONT. 
SjL 3 iXn, 169). Consolidation of ofTenses depends on State 

▲pprored in Bliss v. United States, 105 Fed. 509, holding counler- 
fetting of notes at different times, although all apparently of the 
Mine aeries and printed from same plate, constitute distinct 
afimeai^ ao that conviction of one not bar to prosecution for other: 
aiata F. Baker« 105 La. 378, 29 So. 942. holding when city ordinance 
na^iTii each day's continuance of nuisance separate offense, one 
QOHTlcted of separate offenses on successive days cannot set aside 
MBfeaces by certiorari, 

SyL 4 (XII, 170). Cruel ponlshment — Federal question not in 
tvSaL 

ARpr^ved in Cass County v. Gibson, 107 Fed. 307, holding gou- 
oaj axcf*pt]on to court's refusal to give requested instructions 
piaiata do question for review. 

ByL 5 (XII, 170), Eighth Amendment Inapplicable to States. 

Approved in Maxwell v. Dow, 176 U. S. 597, 44 L. 603, 20 Sup. Ct. 
IS5i, upholding Utah statute providing for jury of eight In criminal 
luet oot capitaL 

tyt <S <X1I, 170), Federal question — Consignment 0. O, D. 

Approved In Iowa v. American Express Co., IIS lowa^ 450, 451, 
C X W* 67, holding where liquor is shipped by express into this 
Sltta C O. D.. express company becomes agent of consignor for 
fVpoae of affecttng Illegal sale in this State; Sims v. Norfolk, etc., 
i.B. Co., 130 N. C. 557, 41 S. E. 673. holding when sewhig machine 
IttSptA into State on bill of lading to he delivered to consignee 
Wpm pnyment of purchase money It may he levied on by sheriff 
hrfom delivery to consignee for failure to pay lit:*>nse tax under 
im IMU cliap. 9. I 52 (reversed In 191 U. S. 441); State of Loufsi- 
aoa r. McAdama, 106 La. 730, 31 So. 192, arguendo. 

DlitliMpifahed In Norfollf. etc., Ry. Co. v. Sims, 191 U. S. 44S, 
where article shipped In original package to person in 
States to be there delivered on payment of agreed price, 

m auiDOt be aubiected to license tax in latter State ^reversing 
3C, C 556). 

Vol. Ill — 15 




144 U. S. 371-407 Notes on U. S. Reports. 226 

Syl. 7 (XII, 170). Review of State decision — Federal question. 

Approved In State v. Judges, 105 La. 335, see 29 So. 803, holding 
Supreme Court on second appeal has no Jurisdiction where on 
second trial case tried on issues independent of constitutional 
question. 

Distinguished in United States v. Adams Exp. Co., 119 Fed. 244, 
holding where liquors are delivered to carrier for delivery to con- 
signee on payment of price, title passed to consignee on deliverj 
to carrier and carrier not guilty of selling liquor without license. 

(XII, 169). Miscellaneous. 

Cited in State v. Broedcr, 90 Mo. App. 170, holding under act 
May 4, 1800, each and every sale of package of beer, not havlni^ 
upon it certificate of inspection, is violation of statute; Territory 
V. Ketchum, 10 N. Mex. 723, 65 Pac. 171, to dissenting opinion. 

144 U. S. 371-304. 36 L. 469, THE BLUE JACKET. 

Syl. 4 (XII, 170). Absence of lool^out not contributory to 
collision. 

Approved in The Nettie Quill, 124 Fed. 671, reaffirming rule; The 
Pilot Boy, 115 Fed. 875, holding steamer having no lookout other 
than pilot not liable for collision with schooner which changed her 
course; The Elk, 102 Fed. 698, holding tug not liable to contribute 
to damages caused by collision in which tow was injurcxl, because 
she failed to keep proper lookout, where she was not otherwise In 
fault, and omission did not contribute to collision. 

Distinguished in The George W. Roby, 111 Fed. 612, holding 
steamer without lookout, going up lake in dense fog without 
slackening speed on hearing another vessel's signals, liable for 
collision. 

Syl. 6 (XII, 171). Collision — Failure to reverse in extremis not 
fault. 

Approved in The Columbia, 109 Fed. 669, determining liability for 
collision between ship and bark, both in tow of tug on separate 
lines; Ross v. Merchants', etc., Transp. Co., 99 Fed. 795, determining 
liability for collision between steamer and anchored scow, which 
was one of string which tide had swung across channel on dark 
night. 

144 U. S. 394-407. 36 L. 479. WATERMAN v. BANKS. 

Syl. 3 (XII, 171). AVhen time is of essence of contract. 

Approved in Woods v. M'Graw, 127 Fed. 917, applying rule to 
option contract; Idaho Gold Min. Co. v. Union Min., etc.. Co., 5 
Idaho. 119. 1*21, 47 Pac. 98, 99, applying rule to option to purchase 
mining claim: Tripler v. Campbell, 22 R. I. 266, 47 Atl. 386, deter- 
mining that deed absolute, by contemporaneous agreement became 
mortgage; dissenting opinion in Kauffman v. Raeder, 108 Fed. ISft 



Grand Trunk Ry, v. Ives. 144 U. 8. 40S-434 

mmjmitj holding where nine parties agreed to pay certain sum 
for A*s stock and A agreed to deliver stock when tliey paid prlce» 
of stock in bank la elt>' where contract made fortj days 
to day named Is sufficient offer of performaQce. 
iDguished in Kauffman v. Reader. 108 Fed. 181, holding where 
agreed to pay certain sum for A's stock and A agreed to 
It when they paid price* deposit of stock in bank la city 
contract made Is reasoaable offer of performance. 

SjL # (XII. 171). Withdrawal of offer limiting time for 
aeeepCuice. 

▲ngtOTed In Richard y. Taylor. 122 Fed. S36, holding where after 
iMgMitiJitlotiB for sale of timber defendant executed contract of sale 
md deposited it with bank with iDStnietlons to return if specified 
•BID not paid by complainants by certain day, and contract re- 
tnni^ on expiration of time, complainant could not thereafter de- 
FQiit money and demand conveyance. 

9fl 5 iXll^ ITlj. Time of essence of contract — Nature of 



Approred In Kentucky Distilleries, etc, Co. v. Warwick Co., 109 
Fted. 2S2. holding in contract for sale of distillery and Quantity of 
wkliky. lime was of essence of contract; Clark v. Americao^ etc., 
IQiL Co., 2H Mont. 478» 72 Pac. 981. applying rale to optional con- 
vict for purchase of mine. 

in U. g. 40S^i34, 36 L. 485. GRAND TRUNK RY. v. IVES, 

$fl 2 tXII. 171). Evidence in bill of exceptions. 

Awored in Metz v. People's Sav. Bank, 129 Mich. 323i 88 N. W- 
STQ, holding where record does not purport to contain all of the tes- 
Hoioay. It will be presumed that there was evidence to support 
Jadgmcnt 

8yl, 3 (Xn. 171). Appeal — Failnre to except ae waiver of 
il!)cetloo. 

Appcored la Western Uulon Tel. Co. v. Burgess, 108 Fed, 31. 
WljlQf rule m action by servant for personal injuries. 

Hfi 6 (XII, 171), Negligence as question for jury. 

Approred In Bryn v. Southern Ry, Co.. 122 Fed. 713, and Towles 

t. 86iiUi€ra R. R. Co., 103 Fed, 405. both reatnrming rule; Smith 

» D^. 128 Fed. 5€4. applying rule where passenger on boat injured 

•f hlastlng on government w^orlc on river; Swift v. Langbein. 127 

F«L 114, 115, applying rule in refusing Inetruction as to contrlbti- 

Iwy m^gUg^DCe In action for injuries sustained by stepping iuto 

Mr left In sidewalk by removing iron grating; Northern Pac. 

(f. Oou r. Tynan. 119 Fed. 293, applying rule in action for death 

if bimk€flilU] killed while coupling cars; St. Louis, etc., Ry. Co. v. 

Uftwkiiv 117 Fed. 129. holding contributory negligence of passenger 




144 U. S. 408-434 Notes on U. S. Reports. 228 

on train platform, who grasped railings on steps to expectorate, 
was for Jury; Alaska United Gold Mln. Co. v. Keating, IIG Fed. 
567, holding where it was customary in lowering men down mining 
shaft to lower five men down at once in bucket, and there was 
testimony that it was customary to stand on cross-bar above 
bucket and that it was no more dangerous than standing in bucket, 
question whether standing on bar was negligence was for Jury; 
Hemingway v. Illinois Cent R. R. Co., 114 Fed. 848, applying rule 
to accident at railroad crossing; Sansom v. Southern Ry., Ill Fed. 
881), upholding direction of verdict for defendant where passenger 
purchased ticket on train advertised as ** solid vestibule train," 
and was killed by sudden Jerk of train wliile he was passing to 
day coach, which was not vestlbuled; Tacoma Ry., etc., Co. v. 
Hays, 110 Fed. 499, holding question of contributory negligence of 
one crossing track in covered wagon without looking around is 
for jury; King v. Morgan, 109 Fed. 453, applying rule in determlu- 
iiig assumption of risk by miner in tamping dynamite with iron bar; 
^r(Jliee V. Campbell, 101 Fed. 940, applying rule in action for death 
of section foreman riding on hand car on dark morning contrary 
to rules, where he was ordered to work at distant place; M'Cullen 
V. Chicago, etc., Ry. Co., 101 Fed. G7, applying rule In action 
against railroad to recover value of property alleged to have been 
8t»t on lire by sparks from locomotives; Nelson v. New Orleans, 
etc., R. R. Co., 100 Fed. 738, holding contributory negligence of 
hod carrier, who was killed by train while carrying mortar to new 
depot, was for jury; Railway Officials*, etc.. Assn. v. Wilson. 100 
Fed. 370, upholding refusal to direct verdict in action on accident 
policy: Texas, etc., Ry. Co. v. Nunn, 98 Fed. 900, upholding refusal 
to direct v(»rdict in action by passenger for personal injuries sus- 
taine<l by starting of train at station before passenger had time to 
alight; Chicago, etc., Ry. Co. v. Price, 97 Fed. 428, applying rule 
where conductor went forward with lighted lantern to spot where 
gasoline tank had burst, and there was an explosion In which he 
was killed; Gaunce v. Gulf, Colo., etc., Ry., 20 Tex. Civ. Sfi. 48 
S. W. r»2r>, holding where passenger is injured while standing on 
platform of car while in motion, his conduct in assuming such 
position is not negligence per se; Danville v. Robinson, 09 Va. 450. 
39 S. K. 12."), applying rule in action for injuries caused by defect 
In street: dissenting opinion in Dawson v. Chicago, etc., Ry. Co.. 
114 Fed. S7r>, majority holding brakeman guilty of contributory 
negligen<-e in seizing grip-iron of flat car, moving rapidly, in attempt- 
ing to ride in anotlier car. where there were hand-holds on next 
car; dissenting opinion in Ramsay v. Eddy, 123 Mich. 164, 82 N. W. 
129, majority holding brakeman guilty of contributory negligence in 
climbing on side of moving car as it was passing lumber pile 
placed very close to track; dissenting opinion in Nichols v. Peck, 21 



Urand Tnjuk liy. v. Ives. 144 U. S. 408^34 



E. L 106^ 43 At! 1040, majority holding question of contributory 
Mclfgence in wall^Ing Into known danger In highway in broad 
^fTtfgtit Is for court 

I>istingnished In Garrett v. Illinois Cent R. R., 126 Fed, 410, 
toldlxtg where driver of wagon Injured crossing railroad tracit, 
Qpurt wm direct verdict for defendant wliere reasonable men could 
aoi differ as to plalntifTs negligence, 

$yL C (XII, 174K Running train at forbidden speed as negligence. 
AjipH-oTed In Edwards v, Atlantic, etc., R. R.. 120 N. 0. 82. 39 
S. E. 732, reaffirming rule; Delaware, L. Sc W. R. R. Co. v, Devore, 
114 Fed. 157, applying ruJe where ti'aln failed to signal at croKsing 
fi>jDt(|liired by statute; Kinyon v. Chicago, etc., Ry. Co,, US Iowa, 
H^te N. W» 42. holding high rate of speed in operation of train 
does not of itself constitute negligence; Henderson v. Durham 
tau!tloti Co., 132 N, C. 785, 44 S, E, tKK), holding failure of street- 
cir company to use fenders in front of cars as required by ordi- 
Is evidence of negligence; Norfolk Ky, v. Corletto. 100 Va. 
41 8, E. 741. applying principle where city ordinance limited 
ot electric cars: dissenting opinions In Lea v. Durluim, 
HC B. B„ 120 N. C. 4G8, 40 S. E. 215. and Neal v, Carolina, etc. 
TL TL 12U X C. 05S, 3G S, E, 124, both courts holding where plain- 
tiff's ertdfeuce ^defendant not having Introduced anyj Is demurred 
t% sod If true establishes concurrent negligence on part of both 
Itfttai DOnsuit is proper. 

SyL 8 (Xn. 174). Necessity for flagman at crossing is for Jury, 
Ayikrored lo New York, etc., R. R. Co. v. Moore, 105 Fed, 728. 
iHJBimlsg rale; Baltimore, etc.. R. R. v. Stumpf. 97 Md, 94, 54 
All 9KI, lialdlsg where safety gate at railroad crossing is open 
mA WBtclamjin is nlisent one who after looking and listening Is 
HC fvQiy of contributory negligence In failing to stop; Bradley 
r. OilQ BK., etc^ Ry., 126 N. C. 740, 36 S. E, 183, arguendo. 

9yl 11 <X1I. 175). Instruction substantially as requested. 

A]>^roY<»d In Trumbull v. Erickson, 97 Fed, 895, holding it is 
i0t WTor to refuse instructions asked, which are based on par- 
Ckslftr facts or items of evidence, and by thim singling them 
Ml g\re thCDi undue prominence; Peck v. Oregon, etc., R, R,. 
S rtJilt. 27, C9 Pac. 154. applying rule in action for Injuries sus- 
tatDMt at ratlroiid crossing; dissenting opinion In Western Union 
T#it Cd, r, Morris* ttrS Fed. 5(1, applying rule in fiction for dani- 
m§^ caused by negligence in transmitting telogrjioi, 

BfL 12 (XIl, 175). Contributory Degllgence Is for Jury, 
▲pprorcd In Dun^'orth v. Grand Tntnk, etc, Ry,. 127 Fed, 300, 
a»d OliP^o r. Oregon, etc., R. R,, 24 Utali, 472, l>S Fac. 151, botli 
IHinrnilnr rule; Netherlands, etc*, Nav. Co, t. Diamond, 128 Fed. 




144 U. S. 408-434 Notes on U. S. Reports. 230 

573, applying rule in action against owner of vessel for Injuries 
to servant of elevator company, caused by his falling into hold, 
as result of insufficiency of light, after vessel's hatches had been 
closed; Chicago, etc., R. R. Co. v. Rossow, 117 Fed. 493, holding 
farmer attempting to cross railroad tracic without stopping or 
looliiug in direction in which train was approaching guilty of 
contributory negligence; Tacoma Ry., etc., Co. v. Hays, 110 Fed. 
500, holding question of contributory negligence of one crossing 
tracl£ in covered wagon without looking around, was for Jury; 
Southern Pac. Co. v. Harada, 109 Fed. 382, applying rule where 
person wallced across railroad tracl^s; Chesapeake, etc., Ry. Co. v. 
King, 99 Fed. 25(J, applying rule where passenger alighting at 
station and crossing track to reach street was struck by freight 
train; Oliver v. Denver Tramway Co., 13 Colo. App. 549, 50 Pac. 
81, applying rule where pedestrian was run over by cable car at 
street crossing; Klockenbrink v. St. Louis, etc., Ry. Co., 172 Mo. 688. 
72 S. W. 903, applying principle where plalntifif was driving along 
track of electric railway where there was danger owing to lateness 
of hour and darkness that he might not be seen by motorman In 
time to avoid collision; Shanks v. Springfield Traction Co., 101 Mo. 
App. 706, 74 S. W. 387, holding question of proximate cause was for 
Jury where deaf man was walking along street-car track, motor- 
man of car approaching from behind making no effort to check car 
until within a few feet of plaintlfiF, though he rang bell; Aldrich 
V. St. Louis Transit Co.. 101 Mo. App. 88, 74 S. W. 144, applying 
rule where deaf person crossed car tracks in front of car apparently 
absorbed in paper; Coley v. North Carolina R. R., 129 N. C. 414, 
40 S. E. 198, holding whether engineer is guilty of contributory 
negligence in using drain pipe as grab-iron in trying to get upon 
an engine is for jury; Wilson v. Citizens*, etc., Ry., 105 Tenn. 84, 
58 S. W. 337, holding whether failure of person approaching rail- 
road track to stop, look and listen is contributory negligence is 
for Jurj'. 

Distinguished in dissonting opinion in Southern Pac. Co. ▼. 
Harada, 109 Fed. 389, 390, majority applying rule where person 
walked across railroad tracks. 

Syl. 13 (XII, 175). Plaintiff's negligence bars recovery when 
proximate. 

Approved in Neininger v. Cowan, 101 Fed. 791; Gilbert v. Erie 
R. R. Co., 97 Fed. 751; Klockenbrink v. St Louis, etc., R. R., 81 
Mo. App. 350, and Bogain v. Carolina, etc., R. R., 129 N. C. 159, 
39 S. E. 809, all reaffirming rule; Lauterer v. Manhattan Ry., 128 
Fed. 543, holding one who voluntarily attempts to climb on board 
moving car cannot recover for injuries sustained because of man- 
ner in which station platform is constructed; Welsshaar v. Kimball 
SS. Co., 128 Fed. 401, holding contributory negligence of passengers 
in crowding into boat after being told that boat was overcrowded 



:!31 



Grand Trunk By* v. Ives. 144 U. S. 408-434 



no defend where officer tn charge failed to exercise auth^irity; 
DlBWortb V. Grand Trunk, etc., lly., 127 Fed. 310, IioMing where 
4ec9ftsed; who was killed while standing on railroad crossing, was 
follcj of contributory negligence as matter of law. fact thai de- 
fffidjuit was guilty of nonconipltance with statutory regnlationa 
iloeft not preclude It from relying on defense of coutriliutory neg- 
tt^eoce; The Steam Dredge Ko, 1, 122 Fed. tiS5, hoidhig iibelaut, 
wli© was government inspector on dredge, not gtiiity of contributory 
negiHgence In leaning against bttt around which one of lines used 
liO CDOTe dredge passed, where hitt broke by reason of negligence 
<rf winch-man; Tumbutl v. New Orleans Jt C. R. K. Co., llfO Fed. 
T^ upholding instruction in action for wrongful death, that defense 
<rf coniributory negligence will not avail if defendants by exercise 
tC reifionable care, could have avoided accident; Citizens' St. R. R. 
Col t. Hamer, 29 Ind. App. 437, 62 N. E. C62, holding where child 
Hmck by car moviug at rate of tive miles an hour, and motorman 
caoJd have stopped car after collision and before child's leg was 
mtsbed, but needlessly carried child under car for distance of 
hit feet, contributoi'y negligence of child would not defeat recovery; 
Uiopkla V. McCormlck, 105 La, 427, 29 So. 956, holding where 
tniiuDen back train down opposite danger point In city, wltliout 
«&ntlng signals, at precise moment when passenger train Is mov- 
l&f in other direction on parallel track, railroad is liable where 
penoD standing between two lines is killed though he imprudeutly 
biCfced too near one track; Provost v. Railroad, 52 La. Ann. 1901, 
28 So. 308. applying rule w^h^re person walked across railroad bridge 
tad was struck by train; Shanks v. Springfield Traction Co., 101 
HfiL App. TOTp 74 8- W, 3S7, holding question of proximate cause 
wta fof jury where deaf man was walking along street-car track, 
motomian of car approaching from behind making no effort to 
'*ljecl£ car antll within a few feet of plaintiff » though be rang bell; 
Wheeler v, BaUway, 70 N, H. 614, 50 Atl. 104, holding fact that 
pinenger falling from car was intoxicated and for tliat reason 
filled TO observe ordinary precautions for his safety, does not pre- 
dude recovery where trainmen could have prevented accident by 
tt*Pof due care: Galiagan v. Railroad, 70 N. H, 450. 50 Atl. 151, hold- 
hJ^ tie^ilgent failure to give warning signals of approaching train 
^Mft not render railroad liable for injuries to traveler which would 
Htfe been prevented by ordinary care on his part; Costello v. Third 
ArtL R. R., 161 N. Y. 322. 55 N. E. 890, holding nuesilon whether 
«^0BfrttQti>f7 negligence of infant in attempting to cross electric 
mrwtt mil way track in front of moving car was proximate cause 
t€ mimry; Bodie v. Railway Co., 01 S. C. 484, 39 S, E. 720, apply- 
\ng rolr lo acLlon by employee for personal Injuries; dissenting 
4pil»loii Id Rider v, Syracuse R. T. Ry„ 171 N. Y. 102, m N. E, 844, 
qtflJofltT holding rule not applicable where one drives on truck In 
oi electric car and is Injured by collleion where raotorman 




J 



144 U. S. 434-i51 Notes on U. S. Reports. 232 

did not act willfully, though wagon was carried some distance 
before wagon overturned and injuries inflicted. 

Syl. 14 (XII, 176). Jury considers all facts as to contributory 
negligence. 

Approved in Kinyon v. Chicago, etc., Ry. Co., 118 Iowa, 360, 361. 
92 N. W. 42; Peck v. Oregon, etc., R. R., 25 Utah, 34, 69 Pac. 156, 
and Boyden v. Fltchburg, etc., R. R., 72 Vt 97, 47 AtL 412, aU 
reaffirming rule; Laughlin v. Swift, 121 Fed. 419, holding in sub- 
mitting question of plaintiff's contributory negligence in action 
for personal injury, it is better practice to instruct on principles 
of law controlling, leaving jury to apply such principles to (acts 
found; Crooker v. Pacific, etc., Co., 29 Wash. 36, 69 Pac. 361, hold- 
ing continuance of servant in operation of defective machinery 
after promise of master to remedy it, is not assumption of risk. 

(XII, 171). Miscellaneous. 

Cited in Louisville & N. R. R. Co. v. Summers, 125 Fed. 722^ 
holding where counsel for both parties read decided cases to Jury 
for purpose of showing how courts had applied the law to similar 
cases, they could not object that court, as part of charge, referred 
to case he had previously tried, merely as an illustration of prin- 
ciples he was enunciating. 

144 U. S. 434-438. 30 L. 495, KEATOR LUMBER CO. v. THOMP- 
SON. 

Syl. 2 (XII, 17G). Time to object tg time of filing replication. 

Approved in Hriggs v. Cook, 99 Va. 278, 281, 38 S. E. 149, 150, 
holding whore, in in*occcding by motion to recover judgment for 
money, defendant ploadod non assumpsit and special plea of set- 
off, but no replication liled to second plea and no evidence offered 
thoreundor, defendant's motion to set aside verdict for failure to 
file replication comes too late. 

144 U. S. 439-451, 30 L. 49G, HARTFORD LIFE INS. CO. ▼. 
UNSELL. 

Syl. r» (XII, 177). Forfeitures not favored in law. 

Approved In Fraser v. New Zealand Ins. Co., 39 Or. 347, 64 Pac. 
815. holding where agent issued policy, and in excess of authority 
inclu(l«'(l vacancy permit, but on learning facts Insurer canceled 
part of policy relating to goods not contained in building for which 
vacancy permit issued, and returned ratable portion of premium, 
condition in policy as to vacancy was waived. 

Syl. <*► (XII. 177). Estoppel to claim forfeiture of insurance by 
misleading acts. 

Approved in Farmers', etc., Assn. v. Kinsey, 101 Va. 242, 43 
S. E. o4(.), reatlirming rule; Mutual Reserve Fund, etc., Assn. ▼. 



z^ 



Notes on D. S. Kei)orts. 144 U, S. 451^5S 



Yi Fed. 422. holding where policy provided that it should 
be valid nnlesB premium thereon paid in cash, and agent paid 
SP&0J first premium and tooli oppHcant*8 note for about two- 
UUstls of premium without company's knowledge* company not 
llible: Union, etc.. Ins, Co. v. Whetzel, 29 Ind. App. 656, 65 N, E. 
17, applying rule to stipulation in policy that none of its terms 
may be mcnlified or changed except in specified way; Supreme 
Cotmca Catholic Knights of A. t. Geo. Winters* Admn, 103 Ky. 
147, 55 S. W. 91D, applying rule to suspension of member of society 
for nonpayment of assessments pursuant to by-law. 

Syl 8 (XII, 178). Waiver of refusal of peremptory instructions. 

Approved in Tamblyn v. Johnston, 126 F'ed, 271, applying ruie in 
iclion for wrongful attachment; Freese v* Kemphiy, 118 Fed. 431X 
hddlug one falling to move for direction of verdict in his favor, 
tlierthy admits that there is some evidence upon each material 
liwe; Crockett v. Miller, 112 Fe6. 731, holding where there was no 
<w>tidii to direct verdict, but without objection court permitted to 
loatnact on assumption of sufficiency of evidence, objection of 
l*ck of evidence to support verdict cannot be heard on appeal; 
Dorvfj v. United States, 101 Fed, 751, holding where indictment 
nmuilned several counts charging nntlonal l>anlv officer with having 
ttiCle false entries, general instruction directing acquittal on such 
cmmti properly refused where there was evidence sufficient to go 
to )uty oa any of counts, 

IH U. a 451-458, m L. 501, DODGE t* TULLEYS- 
«lyL 4 (Xn, 178). Cestnl's citizenship In foreclosure by trustee, 
Appfoved In Hunter v. Robbins, 117 Fed. 922, holding corpo- 
ntliMi neiMl not be made party to suit in Fetleral court by treasurer 
tfaln«t predecessor for accounting where Its Joinder would oust 
)irtftdictioii. 
3S(yL G (XII, 178). Allegation of corporation's citizenship. 
Ap|iravf»d in Roberts v. Pacific, etc., Co., 104 Fed. 57D, boldinjr 
il«^tJoii !n removal petition that petitioner is corporation or^^/n)- 
ittd ondrr laws of foreign country is sufficient allegation that it 
wai eitU«^il of such country at time of commencement of action 
Wfl S iXlU ITU). State laws do not govern Federal equity. 
Approved In Phlnizy v. Augusta, etc., R. R. Co., 98 Fed. 77S, 
F<id<^rnl court. In allowing counsel fees for services in forc- 
ed mortgage, not bound by contract made by trustee 
m kr i^ or l>y practice. 

Bft 9 <XII. ITS). Compensation and counsel fees of trustee. 
Approved In Barry v. Priel, 114 Fed. 991, holding premiums paid 
9^ OMMtgiigor on account of his loan should be credited thereon, 
ii«t wttluiut allowing him Interest thereon. 




144 U. S. 458-488 Notes on U. S. Reports. 234 

144 U. S. 458-4G5, 36 L. 504, NORTHERN PAC. R. R. ▼. ELLIS. 

Syl. 1 (XII, 180). Review of decision of Circuit Court of Appeals. 

Approved in Ayres v. Polsdorfer, 187 U. S. 591, 592, 593, 23 Sup. 
Ct. 198, 47 L. 316, 317, holding Circuit Court of Appeals Judgment 
in which Circuit Court's jurisdiction was invoked solely on ground 
of diverse citizenship, cannot be reviewed in Supreme Court on 
error because Federal question arose in Circuit Court, though It 
might be of such character as to permit direct appeal; Smith ▼. 
Reeves, 178 U. S. 446, 44 L. 1145, 20 Sup. Ct. 923, holding acUon 
against, by Federal corporation is not authorized by Const, art. 3, 
$ 2, as case arising under Federal laws and Constitution. 

Syl. 2 (XII, 179). Matters considered on second appeal. 

Approved in Illinois v. Illinois Cent. R. R. Co., 184 U. S. 92, 40 
L. 447, 22 Sup. Ct. 306, holding every matter embraced by decree of 
United States Circuit Court and not left open by Supreme Court 
decree, atlirming former decree in all respects but one, and as to 
that one remanding cause for further investigation of facts upon 
which it depended, is conclusively determined; Yazoo & M. V. R. R. 
Co. V. Adams, 180 U. S. 8, 45 L. 402, 21 Sup. Ct. 242, holding Fe<leral 
(luostion not set up in State court soon enough to sustain writ of 
error from Federal Supreme Court when It is not presented until 
after cause decided by State court and remanded for new trlaL 

144 U. S. 465-475, 36 L. 506, NORTHERN PAC. R. R. v. AMATO. 

Syl. 4 (XII, 180). Contributory negligence is for jury. 

Approved in Mexican Cent. Ry. Co. v. Henderson, 114 Fed. 805, 
holding error to refuse instruction to find for defendant If It was 
duty of engineer to inspect engine before starting out and he did 
not malce such inspection, where engineer made entry In repair 
boolc and before starting saw entry erased on book but did not 
examine engine; M'Ghee v. Campbell, 101 Fed. 941, applying rule 
in action for death of section foreman who went on track on hand 
car on dark morning contrary to rules, where he was ordered to 
be at distant place at certain time; Galveston, etc., Ry. v. Quay, 
27 Tex. Civ. 517, 66 S. W. 220, upholding refusal to direct verdict 
wlicn^ fir(>nian was cleaning engine over pit and other employees 
d(>ta<-lied and pushed tender away without notice to fireman, 
causing him to fall. 

144 r. s. 47<;-48s, 36 L. 510, ciiatp:augay ore, etc., CO. ▼. 

lU.AKE. 

Syl. 2 (XII, 180). Appeal — Amount of knowledge necessary td 
be expert. 

Approved in Glasier v. Nichols. 112 Fed. 881, holding opinion of 
witness as to value of mine properly rejected where he had never 
been inside of it, but had merely seen surface dirt; dissenting 



Notes on D. S. Reports. 144 U, S. 48S-52T 



In SoaUieni Pae. Co. v. Ariiett, 111 Fed. 859» majority 
Ittltiff testimony of cattle raisers in iietion for injury to cattle 
:llg€iitly handled In shipment, as to tlielr being In unfit condition 
lor thipment over mountains, though witnesses had never shipped 
•rer mountains. 

SjL 4 tXIl. 180). Evidence of local custom. 

Approved In Great Western Elevator Co. v. White, 118 Fed. 410, 
evidence of general custom in elevator business limiting 
' of local agents In drawing of drafts, to such as were drawn 
In payment of grain bought or negotiated for cash at time they 
irere drawn, not admissible without proof that other party had 
knowledge of such custom; Rastetter v. Reynolds, lliO Ind, VdS, Uti 
K. fi, 014, applying rule to custom as to delivery of lumber. 

8yL 5 (XII, 181). General exception to refusal to instruct. 

Approved In Baggs v. Martin, 108 Fed, 34, and Rep an no Chemical 
Co. V. Victor Hardware Co,, 101 Fed. 9511 both holding where only 
tiception to Instructions Is to entire charge as whole, which con- 
tAlas several distinct propositions of law, it w411 not avail appellant 
it any part of charge Is good; M'Cutcbeoo v. Hall Capsule Co., 101 
Fed. 548, holding single exception to charge as whole, which does 
aot direct attention of court to particular portions to which objec- 
tkm Is made, raises no question for review. 

mU. 8. 4S8..508. 38 L. 514. BELFORD v, SCRIBNER. 

8jL 2 (XII. 181). Copyright —Author a married woman. 

Approved in Mifflin v. R. H. White Co., 190 U. S, 263, 23 Sup. 
Ct 77(1, 47 L» 1042, holding copyright secured by entering for copy- 
ist In name of publiihers, the issues of rna^a^^ine which contain 
(aUtUments thereof Is lost by subsequent publication of work lo 
look form, with no other notice of copyright llian that of entry in 
•Otlloi^l name; BlleBteln v. Donaldson Lithographing Co., 1.S8 U. S. 
Ml 23 Slip. Ct 290. 47 L. 4G1, holding copyrtgiit taken out by 
Goorf«r Lithographing Company under name Courier Company, 
which was a trade variant on that name, is valid. 

Hi V, 8. S00-4S27, 36 L. 521, &MITH v. GALE. 
Syi 1 (XII. 181). Parties — Interest of intervener, 
Apurored In Clarke v. Eureka County BanJc. lltS Fed. 537. hold- 
ktg wbere by Judgment of Prol>ate Court it is determined that an 
Mtate la fully settled and administrator is discharged, creditors 
whom claims were allowed, but not paid because estate Insolvent, 
euUMit intervene In subsequent action by administrator individually 
i» r#coirer property formeriy belonging to deceased; Vanmeter v. 
ridclltj Traat, etc. Safety Vault Co.. etc., 107 Ky, 113. 53 S. W. 
Ot iMIidlii^, In action to foreclose chattel mortgage to secure rput. 





144 U. S. 527-533 Notes on U. S. Reports. 236 

intervening petition questioning plaintiff's title to realty rented, 
and asserting right by agreement with plaintiff to redeem property 
from execution sale at which plaintiff had become purchaser. Is 
insufficient; Dickson v. Dows. 11 N. Dais. 409, 92 N. W. 799. refus- 
ing to allow Intervention in foreclosure of contract for sale of land. 

Syl. 7 (XII, 182). Quieting title — Sufficiency of evidence to 
support finding of possession. 

Approved in Kirkham v. Moore, 30 Ind. App. 554, 05 N. E. 1044, 
holding special finding in action for specific performance of contract 
to convey land, stating that purchaser from party bound to convey 
** had not actual knowledge " of plaintiff's claim, is not finding that 
purchaser ** had not actual notice.'* 

144 U. S. 527-533, 30 L. 528, TORRENCE ▼. SHEDD. 

Syl. 2 (XII, 182). Removal for separable controversy. 

Approved in Ilarley v. Home Ins. Co., 125 Fed. 793, reaflfirming 
rule; Weldon v. Fritzlen, 128 Fed. 013, holding action by mortgagee 
against mortgagors and their creditor, claiming mortgage Hen ou 
property to obtain foreclosure and adjustment of liens, presents 
but single controversy; Carothers v. M'Kinley Min., etc.. Co., IIG 
Fed. 050, and Katos v. Carponticr, 08 Fed, 453, both holding defend- 
ant, who is citizen of (lillercnt State from complainant, in suit to 
<iuiet title against several defendants for purpose of adjudication 
of all claims adverse to complainant, may remove to Federal court; 
(lerman Sav., etc., Soc. v. Dormitzor, IIG Fed. 473, holding there Is 
no separable controversy justifying removal where complaint al- 
leged that plaintifl's, being minors and owning land with dofondant 
J., defendants fraudulently procured probate sale of plaintiff's In- 
terest to J. for cash, in which no payment was made, and that J. 
then gave ch.'feiidant hank a mortgage and that defendants are In 
possession, and pray accounting and partition; Ward v. Frajiklin, 
110 Fed. 7!MI. holding action against several defendants for damages 
t()r assault charged to have been comniltted by certain of defend- 
ants at instigation of another ih'fendaiit, through her agent, is not 
removable by latter ou ground of .sei)arable controversy; Smedley 
v. Smedley, 110 Fed. 2r»s. applying rule in suit to recover land; 
Yarnell v. Felton. 10-1 Fed. 102, and 102 Fed. 370, both holding 
application by only one of two defendants of different citizen.ship 
from plaintiff does not entitle petitioner to removal; Marrs v. Fel- 
ton. 102 Fed. 778, holding Fe«leral receiver, who is Joined with co- 
defendant who has no right to remove, cannot remove where there 
is no separable controversy; Broadway Ins. Co. v. Chicago, etc., 
Ry. Co., 101 Fed. 510, holding where nonresident insurers who had 
severally paid policies on lumber company's property, sued lumber 
company, which was domestic corporation and nonresident rail- 
road, through whose negligence fire was caused, to enforce sub- 



m 



Notes on U. S. Reports. 144 U. S. r»2T-5:J:i 



fOgiUiKi pro tanto against railroad, latter could not remove to Fed- 
fBl eourt. 
SjL Z (XII, 183). Separate answers do not make separable con- 

ApproTed iB Chesapeake & O* R. R. Co. t. Dixon. 1T9 U. S. 

ISSl 45 L. 125, 21 Sup. Ct 7U« holding action againsst railroad ana 

two of its employees, ehartjlng them with concurrent negligence m 

person at railroad crossing, is not removable by railroad on 

of diverse citizenship when employees are eitizfus of samt* 

IS plaintiff; Chicago, etc.. Ry. Co. v. Martin, ITS U. S. 24S, 

II L. 1056. 20 Sup. Ct. 8oo, holding all defendants m;ist unite In 

(iCltloii for removal where joint cause of action is alleged against 

«0 defendants for causing death of person; Fogarty v. Southern 

P*c Co.f 123 Fed, 974, holding action by employee against rail- 

md and others for personal injuries caused by negligent raalnte- 

aiace of cars and tracks and to negligent operation of car by all 

dtfndflnts Is Dot removable by railroad, where codefeudants not 

mfiWTg of other States; Carothers v. M'Kinley Min., etc., Smelting 

€/k, 122 Fed. 307* holding resident agent of foreign corporation who 

ku m«^1y served on plaintiff notice signed by him as managing 

director, that plalotlfC Is wrongfully occupying certain premises and 

will be held liable for trespass unless he surrenders them, cannot 

lit ouide party defendant to plaint ilT*s action of ejectment against 

-ution, so as to prevent removal; Dougherty v. Yazoo, etc.. 

It. R. Co., 122 Fed. 208, denying right of palace car company 

ove action for Injuries while riding on palace car, when rail* 

iflzt^n of same State as plaintiff; Charman v. Lake Erie & 

*o,. 103 Fed. 451, holding fact that one of two defeud- 

Jolntiy In State court was joined for purpose of pre- 

tiioval, does not give other defendant right to remove 

vhm plaintiff had legal right to bring joint action; Colbnni v. 

0DL 101 Fed, 505, holding creditor's suit to obtain adinlnlstratlon of 

gu i y c it y of insolvent corporation and to exclude certain defendants 

ItmB fiartieipating In distribution of property, cannot be removed 

tf POcb defendants; Winston v. Illinois Cent R. R., Ill Ky, 959, 

OS S. W. 15. holding where foreign railroad and servants sued 

yttmtlj for daxnages caused by negligence of servants cannot re- 

iaoir« cause where servants are residents of State and were Joined 

I* pmvmt removal. 

BfL 5 <X1I, 183). Partition — Incidental controversy not re- 

BKHTttbie. 

A|>proTed In MacGlnnlsg v. Boston, etc.. Silver ^fin. Co.. 119 Fed. 
xppplylng rule in suit by stockholder of domestic corporation 
sticb corix)ratlon and foreign corporation to enjoin latter 
C041 trolling domestic ccrporatian. 




vy;: 






144 U. S. 527-533 Notes on U. S. Reports. _ 

Distinguished In Lake St. El. Ry. Co. ▼. Zlegler, 09 Fed. 122, 123, ■> 5^ 
124, holding Joinder of resident trustees in action by corporation 
against nonresident stock and bondholders for accounting and sur- 
render of stock and bonds did not deprive Federal court of 

jurisdiction. ■^- • 

Syl. 6 (XII, 183). Remand when separable controversy com- -^^^ 

promised. -i»i 

Approved in Yontsey v. Hoffman, 108 Fed. 701, remanding cause ■^- 

where action dismissed as to defendant, who alone Is citizen of l.£i..»j 

other State; Prince v. Illinois Cent R. R. Co., 98 Fed. 3, arguendo. .-^^ 

Syl. 7 (XII, 183). Costs on reversal and remand. -- 

Approved in Pellett v. Great Northern Ry. Co., 105 Fed. 105, i J 

holding, under Judiciary act of March 3, 1875, f 5, Circuit Court may lr,-*\ 

award statutory costs in favor of plaintiff, including attorney's >*.-*i 
docket fee, though case remanded for want of Jurisdiction. >^jh 

144 U. S. 533-548, 30 L. 532, SHARON v. TUCKER. 

Syl. 2 (XII, 184). Requisites of adverse possession. 

Approved in Tyee Consol. Min. Co. v. Langstedt, 121 Fed. 712, 
holding finding in ejectment by owner of legal title to mining 
claim to recover portion thereof, that defendant has -been In open 
notorious and continuous possession, with claim of ownership, la 
insufficient 

Syl. 4 (XII, 184). Requisites of bill of peace. 

Approved in Great Hive L. O. T. M. v. Supreme Hive, 129 Mich. 
333, 88 N. W. 885, enjoining use of ritual of fraternal benefit 
society in other States; City of Albert Lea v. Nielsen, 83 Minn. 
251, 80 N. W. 84, holding where community of interest In subject- 
matter, or common title from which all defendants' separate claims 
and all issues have arisen, can be shown, equitable action lies to 
restrain defendants from prosecuting separate actions at law 
against plaintiff. 

Syl. 8 (XII, 184). Adverse possession sufficient to support eject- 
ment. 

Approved in Toltec Ranch Co. v. Cook, 191 U. S. 538, holding 
adverse possession under claim of right for statutory period after 
act granting land and before issuance of patent to railroad for 
part of its land grant in Utah, and not within its right of way, 
prevails against patent; Soutli Portland L. Co. v. Munger, 3G Or. 
475, 00 Pac. 9, holding equitable cross-complaint in ejectment 
whereby defendant claims title to land In controversy, and alleges 
that one of deed througli which he claims Is Insufficient to convey 
legal title owing to certain formalities resulting from mutual mis- 
take and praying for its reformation, states ground for equitable 
relief. See notes 95 Am. St Rep. 072, 070. 



Notes on U. S. Reports, 144 U. S. 54S=573 



III IT- S. 548-550. Not cited, 

141 U. a 560-567, 86 U 536. COOSAW MIN, CO. v. SOUTH 
CAROLINA. 

SjL 1 <XIJ, 183). Statutory grants construed in favor of public. 

l|i|iroTed In Minor v. Erie, etc., R. K. Co., 171 N. Y. 573, 64 N. E. 
Mk npboldlng mUea^e-t>ook act of 18D5, eb to railroad thereafter 
ICKguitzed nnder Laws 1892, chap. GS8. 

Syt 2 (XII, 185). Statutory construction ^ Reference to title. 
AK»roTed in Wbite v. United States, 191 U. S. 550, boldiog navy 
act of March 3, 1899, does not give increased pay to 
who had reached maximum pay before passage of act: 
Knowlton v. Moore, 178 U. S. 65, 44 L. 979, 20 Sup. Ct. 75(3, up- 
lotdliif war revenue act 1898. H 29, 30, taxing inheritances and 
; The Kestor, 110 Fed, 438, holding 30 Stat. 755, | 24, pro- 
prepayment of seamen, applies to prepayment on Ameri- 
OB lOll or in Atherican waters of Britishers shipping in American 
poets OQ BrftlsU ships. 

gjL 5 (XII, 185K Attorney-general may sue to prevent nuisance. 

Approved in Muncie Nat Gas Co. v; Muucle, IGO Ind. lOG, GG 

X. E, 440, holding city can sue gas compnay, using streets for 

llRlitmtioD of gas to consumers, to enforce contract fixing maxi- 

■m price of gas. 

ijl 8 (XII, 185). Iniunction proper to abate nuisance. 

AptffOTed In United States v. Rickert, 188 U. S. 445, 23 Sup. Ct. 

'v\ 47 U 539, upholding Injunction by government against iin- 

^wfui taxation by State of property used in cultivating lands 

ioUed to Indians In severalty; Missouri v. IliinolB, 180 U, S. 245, 

L 514, 21 Sup. Ct 345, npholding equitable Jurisdittion to re- 

■ami© UirciAteQed daily transportation by Chicago sanitary district 

tmnatnniJ channel of sewage which will poison water 

of Inhabitants of Missouri; Empire StRte» Idaho, etc., Co. v. 

Hilt etc., Co.. 121 Fed, 978, upholding bill to quiet title 

wherm defentlant owned several claims on same lode as complain- 

«at« itniSer which It claimed extra-lateral rights adverse to those of 

CfMoplalnant and under one of which it liad commenced to extract 



%U V, B. 56^570. 36 L. 544, KELLAM v. KEITH. 
iyL 1 IXII* 186). Removal ^ — Diverse citlaenship at commence^ 
of ftnlt. 



Al^firored In Kinney v. Columbia Savings, etc, Assn., 191 U. S. 
iU U* & &70-5T3. Not cited. 




144 U. S. 573-601 Notes on U. S. Reports. 240 

144 U. S. 573-580, 36 L. 546. BROWN ▼. MASSACHUSETTS. 

(XII, 187). MisceUaneous. 

Cited In Hibben v. Smith, 191 U. S. 324, to point that assessment 
of property of Individual members of board, made by board* It 
valid if authorized by statute. 

144 U. S. 581-.584. 36 L. 551, WINDETT ▼. UNION MUT. LIFE 
INS. CO. 

Syl. 1 (XII, 187). Expense of extinguishing tax titles chargeable 
to mortgagor. 

Approved in South Dakota v. North Carolina, 192 U. S. 311, 24 
Sup. Ct. 273, upholding Jurisdiction over suit by one State a^rainst 
another to enter decree for foreclosure and sale of stock owned 
by debtor State securing bonds of such State though bonds orig- 
inally owned by individual who donated them to complainant; 
Worcester v. Boston, 179 Mass. 51, 60 N. E. 412, holding where 
mortgage provided that mortgagor and those claiming under him 
should pny all taxes, and mortgagee to protect interest was com- 
pelled to rcHloem property from tax sale, he could add this amount 
to mortgage debt. . 

144 U. S. 585-601, 36 L. 552, CRAWFORD ▼. NEAL. 

Syl. 1 (XII, 187). Diverse citizenship — Fictitious assignment. 

Approved in Dickerman v. Northern Trust Co., 176 U. S. 192, 41 
L. 430, 20 Sup. Ct. 315, holding judgment against corporation not 
collusive so as to prevent its nonpayment from constituting default 
for which mortgage debt may be declared due under mortgage. 
merely because action was undertaken to create such default. 

Syl. 2 (XII, 187). Fraudulent conveyances — Preferences in good 
faith. 

Approved in United States Rubber Co. v. American Oak Leather 
Co., 181 U. S. 448, 45 L. 046, 21 Sup. Ct 676, holding preferences 
by confessed jud{;inents and assignments which are constructively 
but not actually fraudulent against other creditors of an insolvent 
corporation, though set aside in suit by other creditors will not 
preclude those who have taken invalid preferences from sharing 
with unsecured creditors pro tauto; Kemp v. National Bank of The 
Republic, 109 Fed. 51, holding, under Virginia laws, insolvent 
del>tor may prefer creditors in good faith for valuable consider- 
ation. 

Syl. 6 (XII, 188). Master^s findings presumed correct. 

Approved in Lilienthal v. M'Cormick, 117 Fed. 97, applying rule to 
findings on conflicting evidence; Western Union Tel. Co. v. Ameri- 
can Bell Tel. Co., 105 Fed. 686, applying rule in suit to determine 
telephone royalties; dissenting opinion in Wells, Fargo & Co. ▼. 



144 U. S. G21-627 Notes on U. S. Reports. 242 

on note, which stipulates for payment of interest in annual In- 
stallments, default Judgment in favor of plaintiff is not res adjudi* 
cata in action to recover principal; City of Newport v. Commoih 
wealth, 106 Ky. 445. 450, 50 S. W. 848, 51 S. W. 434, holding adjudi- 
cation upon liability for taxes for one year is no bar to action for 
taxes for subsequent year where it does not appear that adjudi- 
cation resulted from contract exempting defendant; Debnam t. 
Chetty, 131 N. C. 681, 43 S. E. 10, holding Federal Judgment estab- 
lishing validity of coupons to certain bonds does not estop those 
issuing bonds from denying validity of bonds; Montpelier, etc., T. 
Co. v. School Dist, 115 Wis. 635, 92 N. W. 443, holding Judgment 
on four school bonds on series of six not res adjudicata if validity 
of other two bonds of series in subsequent suit to recover them; 
Fordyce v. State, 115 Wis. 616, 92 N. W. 432, holding Judgment 
declaring that candidate had right to have name placed on ballot* 
and holding void act relating to qualifications for office, is not bar to 
(luo warranto by State on relation of taxpayer to oust her from 
otHce for lack of qualifications; Foster v. Posson, 105 Wis, 103, 81 
N. W. 324, holding doctrine of res adjudicata applies where, after 
decree finding stocl^hotders individually liable, they paid entire 
amount but not in proportion to their stock and assigned claims 
for contribution against associates to plaintiff, who sued corpo- 
ration and stockholders to enforce contribution. 

Distinguished in ^Etna Life Ins. Co. v. Board of Comrs., 117 
1\h\. 84, 86, holding defense may not have been litigated In first 
action it is not res adjudicata. 

Syl. 3 (XII, 101). Each coupon is separate promise. 

Approved in Independent School Dist. v. Rew, 111 Fed. 4, and 
Hoard of Comrs. v. Keene, etc.. Bank, 108 Fed. 510, both reaffirm- 
iiig rule. 

144 U. S. G21-627, 30 L. 5GG, CROTTY v. UNION MUT. LIFE INS. 
00. 

Syl. 1 (XII, 191). Life insurance — Necessity for Insurable In- 
terest. 

Approved in Foster v. Preferred Accident Ins. Co., 125 Fed. 
r>38, holding where i)erson effects insurance on own life in good 
faith, paying premiums himself, and has policy pnyable to any 
Deneliciary he chooses, insurer cannot plead want of insurable In- 
terest of beneficiary. 

Syl. 2 (XII, 101). Creditor's Insurable interest 

See S7 Am. St. Rep. 512, note. 

Syl. 3 (XII, 191). Insurance — Creditor as beneficiary — Payment 
of debt. 

Approved in Manhattan Life Ins. Co. v. Hennessy, 99 Fed. 09* 
holding creditor to whom debtor has assigned policy as collateral 



^ 



Notes on U, S. Reports. 144 U. S. G2S-6o8 



cetse to have Insurable Interest in life by accepting 
Imflts of assignment by creditor. 
Bjl 4 (TIU 191L Insurance — Proof of debt at death, 
Approi-ed in Richardson v. Drug Co., 92 Mo. App. 535, applying 
frtneiple In action of assumpsit. 
STL ^ <XII, 191). iDBiirance -= Statenaents on proof of death as 

Inifored iB Sharland v. Washington Life Ins, Co,, 101 Fed. 211. 

copy of Undines on coroner's InQueist. furnished by bene- 

In life policy as part of proofs of death, is admissible on 

litbtlf of Insure in action on policy to establish defense of suicide. 

M4U. a §28^^539. 36 L, 509. WHITE v. RANKIN. 
SjL 1 (Xn, 101 >* Equity jurisdiction over Infrijigenient suit, 
Approved in Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 
185 U. S. 1113. 21*5, m L. 910, HIT. 22 Sup. Ct. 085, G^^J. upholding 
Ckeill Court's original jurisdiction over suit by licensee against 
ptffitse and third person, in which bill sets up title under license 
i«d aQ^g^es validity of patents and iufrinj;:eur*^Dt; Atherton Mach. 
Oft. ?. Atwood-Morrlson Co,. 102 Fed. D55, upholding Circuit Court's 
jBdidicrtfoQ over suit for iujunclion and recovery of damages for 
WlDgement of patent though it Ineidentally involves deter in iua- 
0*1 of question of ownership of patent. 

M4 C, S. «4O.047. 36 L. 5T4, PENDLETON v. RUSSELL. 
ijl 4 iXII» 11>2>. Effect of corporate dissolution on prior judg- 

ilp^roved In Weller Mfg. Co. v. Eaton, 81 Mo. App. GGl, bold- 
^ fon^tgD judgment rendered on proper service, but after death 
rf part J Is void; Taylor v. Gray, m N, J. Eq. G30, 44 All. 068» 
Mdt^ order of forfeiture of charter worlds dissolution. 

IH U. 8. G4T-d53. Not cited. 
IIUU. S. G53-1358, 3tl L. 579, ROBERTS v. LEWIS. 

llyL '2 iXll, 102). Circuit Court's jurisdiction attackable under 
Stttr tirvctice, 

Ap|»«^vpd In Roberts v. Langenliaeh, IW Fed. Sol, hold big where 
jwtMlictiuiial allegation In plalntiCf's pleading in Federal court is 
denied by answer, and Hlate practice requires matters in abate- 
timnt to be pleaded by answer, issue of fact is Joined which is 
f« be trl^Hl with other issues; Scott v. Hoover. 99 Fed. 249. 250, 
under Cal. Code Civ, Proc, | 3110, relative to change 
objection to trial where action brought Is waived by 
without affidavit of merits and demiind. 
DIt«lll|etll*heil In Whclan v. Rio (irnnde, etc., Ry., Ill F'ed 328. 
Mttftof plt^n in abatement In Federal court sitting in Montana 
irDI be trpated as nui^wer where It la the same iti substance. 



144 D. S. 658-688 Notes on U. S. Reports. 244 

144 U. S. 658-^65, 36 L. 385, KIND ALL v. SAN JUAN MIN. CO. 

Syl. 1 (XII, 193). Mining locations on reservation prior to with- 
drawal. 

Approved in M'Fadden ▼. Mountain View Min. & MilL Co., 97 
Fed. 673, holding act July 1, 1892, restoring to public domain 
portion of Colville reservation, did not operate in advance, of presi- 
dent's proclamation to give right to locate mining claims therein. 

Syl. 2 (XII, 193). Adoption of previous acts on withdrawal of 
land. 

Approved in Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 678, 
holding in absence of intervening rights, fact that mineral is not 
discovered on claim until after notice of location is posted and 
boundary marked is immaterial. 

144 U. S. 665-668, 35 L. 585, GREGORY v. BOSTON SAFE DE- 
POSIT CO. 

Syl. 2 (XII, 193). Appeal — Modification of Circuit Court's dis- 
missal. 

Approved in Greene v. United Shoe Machinery Co., 124 Fed. 
964, holding where appeal is taken from Interlocutory decree for 
injunction and accounting in patent suit Circuit Court of Appeals 
cannot remand with leave to Circuit Court to reopen case, without 
first reversing; Gregory v. Tike, 94 Me. 30, 46 Atl. 795, holding sub- 
mission not by rule of court may be revoked by party to it before 
award made. 

144 U. S. 669-677. Not cited. 

144 U. S. 677-688, 36 L. 591, UNITED STATES v. EATON. 

Syl. 2 (XII, 194). Offonsos must be against public law. 

Approved in United States v. Dietrich, 126 Fed. 678, holding 
one eUvled Unitod States senator until he has been accepted by 
senate as nieniber is not ** monibor of Congress," within Rev. Stat.. 
f 1781, prohibiting bribery. See 78 Am. St. Rep. 236, note. 

Syl. 3 (XII, 194). Departmental regulations have force of law. 

Approved in Smith v. City of Sbakopee, 103 Fed. 241, holding 
Admiralty Court takes Judicial notice of rej^ulations of lighthouse 
board: (Jrady v. United States, 98 Fed. 239, holding fact that 
postmaster's bond dot»s not contain additional condition required 
by Rev. Stat., § 38:u, relating to n'loney order business, does not 
relieve him or his sureties for money order funds misappropriated 
by him. 

Syl. 4 (XII, 194). Departmental regulations cannot create crimes. 

Approved in Van Lear v. Eisele, 126 Fed. 827, holding void In- 
terior department regulations, relating to Arkansas Hot Springs, 
providing that no bathhouse shall permit any person " who is 



20 



Kotea an U, S, Reports, 



145 U. S. 1-2S 



me^icai treatmeDt " to bathe therein, unless such person 
li patient of pbjrsielan registered by superintcDdent, and right of 
tt^mij only accorded to physicians approved by board designated 
^ lecretary; United States v. Three Pacliages of Distilled Spirits, 
IS Fed. 55, holding addition of caromel to spirits after itispec- 
tiaa subjects tbem to forfeiture under Rev. Stat, | 3455; United 
StitM y, Dasterrignes, 118 Fed, 201, upholding 30 Stat. 35. au- 
ttoflslng secretary of Interior to make rules for protection of 
fonsl reservations; United States v. Blasiugame, 116 Fed. 654, 
boidlng void 30 Stat. 11, malcing it a crime to violate any regula- 
doc thereafter made by secretary of interior for protection of 
fofwt reservations; United States v, Maid, 116 Fed. 051, 652, Go3, 
teUln^, under Rev. Stat,, § 51J92, prrjwry by making false affi- 
»!iTit In relation to land entry cannot be based ou atfidavit of 
lummtneral character of laud made in support of homestead en- 
try, though land odice regulation reciuires such affidavit See 78 
Am. St Rep, 25S. note. 

Dkitingnished in DImmfek v. United States, 121 Fed. 642, hold- 
tof In prosecution under Rev, Stat. § 5492, against mint clerk for 
fftUore to deposit proceeds of sale of old materials, rule of treas* 
wj department requiring all such funds to be separately deposited 
• list day of quarter was admissible. 



CXLV UNITED STATES. 



WIT. & 1-28, 38 L. 601. FICKLEN v. SHELBY CO. TAXING 
DI8T. 
8yl 2 (XU; 196). Commerce — State tax on brokers for non- 

ipproT^ In Pabst Brewing Co. v. Terre Haute. OS Fed. 334, 
NiSlfif city ordinance imposing license on breweries or agencies of 
^ftwtrtes is Invalid as applied to depot maintained by brewing 
iiNidaUon of another State for purpose of storing in original pack- 
49? bf4>r Ablpped into Btate until Its distribution to customers In 
'"tfliml [lacliage; Racine Iron Co. v. McCommons. Ill Ga, 549, 36 
^' E. ^1. upholding act imposing license tax on traveling agents 
U€ iioct«)dent principnJft, who make executory contracts for sale 
•f foodft^ and who receive Ibem in bulk, and break original pack- 
•ie nm\ distribute them among customers; Kolb v. Booutou, 64 N. 
L L 165, 44 Atl 873, upholding municipal ordinance licensing 
fenterft and peddlers; Adkins v. Richmond, !)S Va. 98, 100, 34 S. E. 
*<» !»7o. holding State cannot tax resident solicitor for sale of 



145 U. S. 29-52 Notes on U. S. Reports 246 

goods by sample solely for nonresident owner, who forwards such 
orders and receives commission. 

Distinguished in Stockard v. Morgan, 185 U. S. 34, 36. 46 L. 793, 
794, 22 Sup. Ct. 579, 580, holding Tennnessee statute 1881, taxing 
drummers, void as to nonresident drummer for nonresident firm. 

Syl. 3 (XII, 196). State tax on occupations. 

Approved in Stockard, etc. v. Morgan, 105 Tenn. 414, 58 S. W. 
1063, upholding privilege tax on merchandise brokers. 

145 U. S. 29-52. 36 L. 609. SESSIONS v. ROMADKA. 

Syl. 2 (XII, 197). Bankruptcy — Title to patent passes to 
assignee. 

Approved in In re Cogley, 107 Fed. 75, holding bankruptcy trustee 
not required to take charge of or sell any portion of estate ro 
heavily incumbered with valid liens that nothing can be realized 
therefrom for unsecured creditors; Lasater v. National Bank, 06 
Tex. 348, 72 S. W. 1058, holding after close of bankruptcy ][>roceed- 
ings and discharge of trustee, an asset of bankrupt which had 
passed to trustee by bankruptcy proceedings, though he had no 
knowleflge of its existence, may be recovered by the bankrupt him- 
self, where neither creditors nor trustee assert any rights in It. 

Syl. 3 (XII, 197). Patentee's power to disclaim is beneficlaL 

Approved in Carnegie Steel Co. v. Cambria Iron Co., 185 U. 8. 
435, 46 L. 985, 22 Sup. Ct 711, holding disclaimer may extend to 
part of specitication as well as to claim or one feature of claim. 

Syl. 5 (XII, 197). Patents — Infringer setting up assignee's title. 

Approved in Winkler v. Studebaker Bros. Mfg. Co., 105 Fed. 190. 
191, holding where part owner of patent died intestate and estate 
administered and administratrix discharged without having made 
any disposition of interest in patent, title acquired by assignment 
from next of kin is suthcient to support suit for infringement of 
patent. 

Syl. 9 (XII, 197). Patent for same purpose. 

Approved in Boyer v. Keller Tool Co.. 127 Fed. 138, upholding 
Boyer patent No. 537.029, for pneumatic tool; Standard, etc., Scale 
Co. V. Computing Scale Co., 126 Fed. 649, construing computing scale 
patents; Brislin v. Carnegie Steel Co., 118 Fed. 600, holding Brislln 
& Vinnoe patent No. 345,953, for feeding mechanism for rolling mills, 
anticipated Ilanley & Rickey patent No. 352,748. 

Syl. 11 (XII, 198). Liberal construction of pioneer patents. 

Approved in Crown Cork, etc., Co. ▼. Aluminum, etc., Co.« 106 
Fed. 867, holding Painter reissue No. 11.685, for bottle stopper, 
infringed by stoppers made in accordance with Hall patent No. 
541,203. 



Notes OR U. S. Keports. 



145 U. 8. 52-110 



Sfi 13 (Xn* 197). iDfringement — Profits as damages. 
Dtotiagulsbed In Lattlmore v. Hardsoeg Mfg, Co.» 121 Fed. 987, 
In accountliig for infrlngempnt of patent for miner's lantern 
where defendant sold miner's caps to which It attached 
I lioMcxi^ complainant could recover profits on holders only. 

I 115 U. 8. 52-55. Not cited. 

I 115 U. & 56"«2, ae L, 621. LEWIS v. BARNHART* 

I SyL S rXII, 190). Will must be executed according to laws of 

I tete of execntJoQ. 

I Approred in BUaa v. Seeley. lin 111. 473, 475, 01 N. B. 52S, 529, 

Llnlditig record In Illinois of foreign will accompanied by certificate 

PIkffctive in not stating that will was duly executed and proved 

icrording to laws of foreign State will not prevail against deed* 

thocgh executed prior thereto, 

!« U. S. 82-105, 30 L. 632, QUINCY, ETC., R. R. v. HUMPHREY. 
^jl 2 (XII, 199), Receiver's liability for agreed rent of leased 

Approved In Dayton UydrauUc Co. v. Felsentlmll, 116 Fed. 905. 
boliUng where on demand for rent of leased premises which 
F»relver never had taken actual possession of, latter asked for time 
19 UiTi!»tigate, and one year later, on demand for rent or surrender 
^pr^oiiBes, he agreed to surrender un condition of release of IrneU 
PEfit inch condition bound receivership for rental from that time; 
Fidelity Insurance, etc, Co. v. Norfolk, etc., It. R. Co.. 114 Fed. 
3KI, holding Judgment obtained against railroad after its property 
plactd In hands of receiver in suit to foreclose mortgage thereon. 
forUnt caoimltted by company prior to receivership, is not entitled 
l^yrkirSty over mortgage bondholders from earnings of receivership; 
Gslii ?. Gavenescb Co., 04 N. J, Eq. 53, 5;^ Atl, 197. holding lessor 
il lisae for term of years at designated annual rent, which gives 
Tight of re-entry in case of failure to pay rent, cannot, on 
Insolvency, demand from receiver rent accruing under lease 
•ftw receiver quits premises. 

»laU, 8, 105-116. 36 L. 640, ST. JOSEPH, ETC., R. R. v, HUMPH- 

**rl 4 <XII, 201). Possession of leased road — Receiver's lia- 
Wlltr for agreed rent. 

> in Fidelity Insurance, etc., Co, v, Norfolk, etc., R, R. 

'I 393, holding Judgment against railroad obtained after 

* . n.. Lt of receiver in suit to foreclose mortgage, for tort 

'^ ' by company prior to receivership, is not entitled to 

• r mortgage bondholders from receivership eandngs: 

„ -Security, etc., Co- v, Louisville, etc., R. R. Co., Iy2 Fed. 

-^' uoidiog wherv court has taken possession of consolidated rail- 



145 U. 8. 116-135 Notes on U. S. Reports. 248 

roads by receiver who has, under orders of CDurt assented to by 
complainant, paid operating expenses and interest on prior mort- 
gages, preferential debt so created cannot be apportioned between 
mortgages. 

145 U. S. 110-122, 36 L. 644, WILLARD v. WILLARD. 

Syl. 1 (XII, 201). Partition as of right by tenant in common. 

Approved in Bearden v. Benner, 120 Fed. 693, holding adverse 
possession destroys common possession and bars partition so long 
as ouster continues; West v. East Coast Cedar Co.. 101 Fed. GI8, 
holding part owner of tract of land who is not made party to suit 
for its partition, but who claims as tenant in common with parties 
and from same source of title may intervene. 

145 U. S. 123-132, 30 L. 640, NEW EXCILAXD MTGE. SEC. CO. V. 
GAY. 

Syl. 3 (XII, 202). Appeal — Amount in controversy. 

Approved in Holt v. Indiana Mfg. Co., 176 U. S. 72. 44 L. 377, 20 
Sup. Ct. 273, holdiug suit to restrain collection of taxes not exceed- 
ing $2,000 in amount, though arising under Federal Constitution or 
laws, is not within Circuit Courtis Jurisdiction under act August 13, 
3S88, § 1; l»uruell v. Page, 128 Fed. 408, denying Circuit Court's 
jurisdiction over suit to restrain enforcement of personal State tax 
amounting only to JI^SO, tliough It constituted cloud on realty valued 
at more than $2,000; Oregon R. & Nav. Co. v. Shell, 125 Fed. 080. 
denying jurisdiction of Circuit Court to correct ambiguity in deed 
to railroad's riglit of way, and to restrain removal of gates at 
crossing where value of realty and damage accruing to adjacent 
proiHTty from road's construction do not exceed ^2,000; Battle v. 
Atkinson, 115 Fed. 387, holding Arkansas action for unlawful de- 
tainer being merely for recovery of possession. Federal court In 
that State has no jurisdiction over action by allegation that value 
of premises Is over J|ir>.()0U with rental value of $25 per month. 

145 U. S. 132-irJ5, 30 L. IMO, rilUKEK v. FERRIS. 

Syl. 2 (XII, 202). Appeal — Findings of master concurred In by 
court. 

Approved in Sanders v. Bluefield. etc., Co., 106 Fed. 502. re- 
amrming rule; Beyer v. Le Fevre, 180 U. S. 119, 40 L. 1082, 22 Sup. 
Ct. 707, holding where trial court and appellate court agree as to 
facts establislied. Supreme Court accepts their conclusion; Buck- 
ingham V. Estes, 128 Fed. 587. applying rule in action by bankrupts 
wife to enforce resulting trust of land assigned as part of bank- 
rupt's assets; Manhattan Life Ins. Co. v. Wright, 126 Fed. 88. 
applying rule in action on life insurance policy; Pollock v. Jones. 
124 Fed. 107. applying rule in determining validity of mortgage aa 
preference under bankruptcy act; I.ilieuthal v. M*Cormick, 117 Fed. 




Note« on U. S, Reports. 



143 U. S. 135-141 



*T, fcoMliig- findings of fact made on cooflicting evidence will not 

^ tiUiarluHl on ftppeal; Steartis-Roger Mfg, Co. t. Brown, 114 Fed, 

iS,, AppijiJig rule In action for Infringement of patent; Klnloch 

r-J. Co. T. Western Electric Co., 113 Fed. 60G, upholding Seeiy 

itent Xo. 330,067, for improvement in annunciators for multiple 

wltdlboards; ThaJlman t, Tliomas, 111 Fed. 2S3. and North Aoieri- 

cu SxpJonitlon Co. v. Adams, 104 Fed. 408, both holding chan- 

ttfloi't finding on convicting evidence is presumptively correct; 

iuaea T. Germanla Iron Co., 107 Fed. 602, applying rule in attack 

on hmd patent; The Anaces, 106 Fed. 743, holding landings of 

iilmiralty court in libel of ship for personal injuries are pre- 

•maptively correct; National Hollow, etc., Co. v. InterchaGgenble, 

ere, Co., lOS Fed. 717, holding Hein patent No. 361,009. for metallic 

btikebe&m Infringed by Aglar patent No. 000,396; Western Union 

TfL Co. V, American Bell Tel. Co., 105 Fed. 086, applying rule In 

iion for telephone royalties; dissenting opinion in Chaoncey v. 

'jfe^ Bros,, 119 Fed. 21, majority holding under Ark. Acts 1805, 

217, fi 3. lien of laborers and materialmen enperior to lien of 

^urt^ge given to pay for Improvements, as to such part of pro- 

<ff«U not used for Improvements; dissentlog opinion in Wells, 

Fif^^ Co. V. Walker, N, Mex. 203. 50 Pac. 924, majority holdiug 

is inft on note refeiTed by consent to master, his findings of fact 

wUcb are sustained by evidence are conclusive, 

mV. 8. 135-141, 36 L. 652, BARNETT v. DBNISON. 

1^1, 1 (XII. 2fJ3i. Municipal corponiUons are mere local agencies 
— PowerB. 

troved in Atlcln v. Kansas, 191 U. S. 221, upholding Kansas 
It-hour law of 18f»l; Boise City, etc., Co. v. Boise City, 123 Fed. 
city ordiuiince granting right to lay and repair water 
't» and alleys, but without fixing any term for privi- 
int of mere license only revocable at will. 
tfjL 2 (XII, 203). BoDd purchaser chargeable with reQuirementa 

ApproTetl In Campbells vllle Lnmber Co. v. Ilubiit-rt, 112 Fed. 
7M, 725. boldlng. under Ky. act February 27, 1882, amending act 
•tithorlziug court In which judgment Is recovered on Tjiylor 
ty bands to assess and collect tax to pay such judgment, and 
idlo^ that lK)nds Khali on their face stipulate that holders 
be entitled to remedies for collection Id such acts provided, 
only of such bonds as cootain such stipulation are entitled 
•ucb i^mettJet, 

IjL 4 (XII, 203). Bonds — ^ Recitals of issuance under ordinance. 

»Ted Id nnited States Trust Co, v. Village of Mineral Ridge, 

962^ holding, under Rev, Stat, Ohio. § 2703, requiring all 

Ipol bonds to express on their face purpose of issuance and 

what ordinance, village refunding bonds reciting that they 



145 U. S. 141-174 Notes on U. S. Reports. 250 

were issued to take up former bonds as provided by village ordi- 
nance, and ordinance providing for their issuance was void, pur- 
chasers are charged with notice of invalidity. 

Distinguished in Clapp v. Marice City, 111 Fed. 107, holding 
village bonds containing statement that they were issued under 
nnd pursuant to Ohio Rev. Stat, § 2701, and referring to ordi- 
nance authorizing their issuance by its date and general purport 
and which also stated that bonds were issued under authority of 
said section were sufficient under Ohio Rev. Stat., § 2703. 

Syl. 5 (XII, 204). Bonds ~ Estoppel by recital of issuance under 
ordinance. 

Approved in Jeff Davis Co. v. National Banli, 22 Tex. Civ. IGO, 
!)4 S. W. 40, holding county cannot deny liability on courthouse 
bonds in hands of bona fide holders on ground of illegality In elec- 
tion by which county site was established where it has maintained 
its offices at site since election. 

145 U. S. 141-155, 36 L. 654, GOODE v. GAINES. 

Syl. 1 (XII, 204). Estoppel to deny landlord's titie. 

Approved in Sumpton v. Arl^ansas, etc., Bank, 69 Ark. 233» 62 
S. W. 581, reaffirming rule. See 89 Am. St. Rep. 73. note. 

145 U. S. 156-174, 36 L. 658, TOPLIFF v. TOPLIFP. 

SyL 1 (XII, 205). Patents — Prior device as anticipation. 

Approved in Farmers' Mfg. Co. v. Spruks* Mfg. Co., 127 Fed. 697, ^ 
upholding East patent No. 420,021, for ventilating barrel; Mil- «.^, 
waukee Carv. Co. v. Brunswick, etc., Co., 126 Fed. 186, holdin^^ 
Smith and Post patent No. 443,803, for carving machine, valld*..^ 
but not infringed by machine of Lockman patent No. 571,535' ^2, 
Armat Moving Picture Co. v. American Mutoscope Co., 118 FedC!^ 
847, upholding Jenkins and Armat patent No. 586,953, for plctnr»^j 
exhil)iting apparatus; Moore v. Schaw, 118 Fed. 607, upholdlutcx^ 
Moore patent No. 622,251, for device for riveting pipe; GamiodT^r^ 
Unhairing Co. v. American, etc., Co., 115 Fed. 502, upholdin^xj 
Sutton patent No. 383,258, for machine for removing water baiirj^ 
from fur skins; Hallock v. Davison, 107 Fed. 486. upholding Uaitt Jj 
lock patent, No. 600,782, for weeding machine; National Hollov^ca 
etc., Co. V. Interchangeable, etc., Co., 106 Fed. 702, upholdli=KX^ 
Hein patent No. 361,009. for metallic brakebeam; German-Amev-^ 
<an Filter Co. v. Loew Filter Co., 103 Fed. 310, upholding Stroc=:»« 
heim patent No. 378,379, for process for filtering beer; Brill 
Third Ave. R. R. Co., 103 Fed. 293, upholding Brill pat 
No. 478,218, for car trucks; Dodge v. Porter, 98 Fed. 627, 
holding Tillinghast patent No. 497.971, for pneumatic tire; Plut 
V. New York, etc., R. R. Co., 97 Fed. 647, 648, holding void lU Jfe. 
Kenna patent No. 348,289. for airbrake attachment. 




231 



Notes on U. S. Reports. 



145 U. S. 15<j-lT4 



9jl 2 (Xn, 205). Presuraptions In favor of patentable novelty. 

Aj»prored In Clmlottl Unlialring Co. v, Comstock Uubairing Co., 
US Fed, 524, upholding Sutton patent No. 383,258. for machine 
ftr removing water hairs from fur skins; Kinloch Tel. Co. v. 
Vwieni Electric Co.. 113 Fed. 605. upholding Seely patent 
3fca> 330.007, for improvement in gronpin^ spring jacks and annirn- 
dlMl for multlplo switchboards; Kalamazoo Ry. Supply Co. v. 
litff Mfg. Co., 113 Fed. 2ti8> upholding Barrett patent No. 312,316. 
f«r lifting jack; National Hollow, etc.. Co. v. Interchangeable, etc.. 
Co., 106 Fed. TOS, upholding Heln patcat No. 301,009, for metallic 
toktheam; Irwin v, Hasselman, 97 Fed. 9G8, holding Ryan patt«nt 
Xo, 579,334, for Improvements In bookbinding, Infrlngea. 

8fL 3 (XII, 206), Patent commissioner may correct mistake by 



l^ivored In Crown Cork, etc., Co. v. Aluminum Stopper Co., 
H« Fed» 850, upholding Painter reissue No. ll.tiSS, for bottle 
•'upper. 

^L 4 tXII, 20G). Inclusion of incidental function In reissue as 
*tlvsemeiit. 
Approved in Ide v. Trorlicht. etc., Co., 11*1 Fed. 147. holding 
^ daliQs 3. 4, and 5 of Ide reissue No. 11,730, for lubricating 
r ^*»Jce for steam engines. 

^ 8yl 5 <XII, 207). Reissue may be broader than original 
^ Approved to Fay v. Mason, 120 Fed. 510, iipUolding Fay reissue 
^^«. 1KCG4. for collar^ironing machine; Pfeaniiiger v. Heubner. 91) 
fd 443, holding Pfenninger reissue No. 11.439. for Improvement 
s ovens, void for laches and fraud in applying for reissue; 
T. Meyberg, 97 Fed. 970, holding unexeused delay of twelve 
in Applying for reissue constitutes laches invalldatlog reissue. 

HyL C (XII, 207). Patents — Time to allow reissue. 
approved In United Blue-Flame Oil Stove Co. v. Glazier, 119 
ISO, holding Everett reissue No. 11.607. and Jeavous reissue 
11,60 1, each relating to blue-flame stoves, void for laches. 
M. D tXII. 20T>. Reissue — Review of commlssioner'a decision. 
Approved in Hobbs v. Beach. 180 D. S. 395. 45 L. 593, 21 Sup. 
^X il4, upholding Beach reissue No. 11,167, for machine for ap* 
W^P^g utays to box corners; Westinghouse, etc., Mfg. Co. v. Stan- 
M. ttc. Mfg. Co.. 115 Fed. 813. holding void Gaulard & Gibbs 
''^■we Kol 11,830, for system of electrical distribution, 
•ji 10 (XII, 207). TechnlealUy wlU not defeat patent 
^"Tof^ In F, c. Austin Mfg. Co. v, American Well Works. 
1 W. upholding Chapman patent No. 3S2,GS9, for apparatus 
"T linking welU. 



145 U. S. 175-225 Notes on U. S. Reports. 252 

Syl. 13 (XII, 207). Infringement — Discretion of lower court to 
increase damages. 

Approved in Kissinger-Ison Co. v. Bradford Belting Co., 123 Fed. 
94, refusing to increase damages allowed by lower court 

145 U. S. 175-191. Not cited. 

145 U. S. 192-205, 36 L. 672. LEHIGH VALLEY R. R. CO. v. 
PENNSYLVANIA. 

Syl. 3 (XII, 208). State tax on interstate shipments going outside. 

Approved In United States v. Lehigh Valley R. R. Co., 115 Fed. 
374, holding Federal court cannot mandamus railroad to charge 
same rate as to other shippers of same commodity when ship- 
ment is between two points In same State because line of road 
goes outside of State; People v. Knight, 171 N. Y. 303, 64 N. E;. 
155, holding cab service maintained in New York by interstate 
railroad is not part of interstate commerce transacted by rail- 
road so that capital invested in it is exempt from corporate fran- 
chise tax; Western Union Tel. Co. v. Reynolds, 100 Va. 405, 93 
Am. St. Rep. 973, 41 S. E. 857, applying principle In enforcing 
penalty for failure to forward message from relay office where 
messnj^e i>assed In part over another State. 

Distinguished In Hanley v. Kansas City, etc., R. R. Co., 187 U. 
S. 021. 2:J Sup. Ct. 215. 47 L. 33(*. affirming 100 Fed. 359, 3C0, hold- 
ing State cannot regulate railway charges for carriage of goods 
between two points in State where course of transportation must 
bo for considerable distiince through another Territory or 8tate. 

145 U. S. 205-224. Not cited. 

145 U. S. 224, 225, 30 L. (185. CLAY CENTER v. FARMERS' LOAN, 
ETC., CO. 

Syl. 1 (XII. 201)). Appellate amount dependent on Judgment. 

Approved In Holt v. Indiana Mfg. Co., 170 U. S. 72, 44 L. 377, 
20 Sup. Ct. 27:>. (Icnyinj; Circuit Court's jurisdiction to restrain 
colltHtion of tJix(?s not exceeding: $2.(K)0; Purnell v. Page, 128 Fed. 
40v^. denying Circuit Court's jurisdiction to restrain enforcement 
of personal State tax amounting to $80, though it constituted cloud 
on complainant's realty valued at over $2,000; Oregon R. & Nav. 
Co. V. Shell, 125 Fed. DSO, denying Circuit Court's jurisdiction 
over suit to correct ambiguity In deed of railroad right of way 
and to restrain removal of gates where value of realty and dam- 
age to adjacent property is less than $2,000; Battle v. Atkinson, 
115 Fed. 387, holding since Arkansas action of unlawful detainer 
Is merely to restore possession. Federal court In that State has no 
Jurisdiction where complainant states value of premises at $5,000, 
with rental value of $25 per month. 



Notes on U. SL Reports. 145 U, S. 22(1-284 



I 
I 



m V. & S2S-2il. 36 L. 685. FREEMAN t. ASMUS. 

Bfl 2 IXII, 200), Time to seek patent reissue, 

Ajjprored Id tJnlled Blue-Flame Oil Stove Co. v. Glazier, 119 
FrL lt)0, boldlDg Told Ewert reiastie No. 11.G07. aod Jeavons re- 
i«T5»* Na 11,601, for blue-flame oil atoves; Pfennlnger v. Heubner, 
5® Fed. 443. holding Pfenuinger reissue No. 11,439, for improve- 
mmt in tuaJter^s oyens, void for laches and fraud in applying for 

J45 U. S. 241-246. Not cited. 
m a 8, 247-263, 36 L. <393, EARNSHAW v. OADWALADER, 
»jL 1 (XII. 210). Duty on iron ore — Weight. 
AppTored In Downing v. United States, 109 Fed, 886, determln- 
ftig mode of ascertaining dutiable weight of cotton yarns dyed, 
fined and flnlahed, undei' customs duties act of ISOT, par. 302. 

110 XJ* S. 263-284, 36 U 699, IXTEIlisTATE COMMERCE COMM, 
T. BALTIMORE. ETC., R. R. 
67L 1 (XII, 210), Commerce — Common-law rule as to discriml- 

Apfyrov^ed In dissenting opinion in Missouri Pacific Ry. Co. v. 
^Blted StJites^ 18» U. S. 290, 23 Sup. Ct 511, 47 L. 816, majority hold- 
la^ imder interstate commerce act of 19*)3, § 3,decri^^ grautlng i*eilef 
pnjred for In suit by government to enjoin discrimination against 
localities, wbieb was unauthorized because brought before passage 
of atscfa act must be reversed. 

By I* 2 (XII, 210). Purpose of interstate commerce act 
Afiprored In Western Union Tel. Co. v. Call Publishing Co,. 181 
U, S. 1U2, 45 L. T70, 21 Sup. Ct. 565, applying rule to State regiilJi- 
XUm of Interstate telegraph company which dl.serimlnates against 
ac«raiiapers in same State; United States v. Norfolk & W. Ry. 
Oot, 1<© Fed. 836, holding if system of coal car distribution which 
laHnMul lias applied In given field, If reasonable and fair and ap- 
W all alike» affords no ground of complaint on part of any 

(Xn, 211). Carriers — Party rate tickets not dlscrlinlna- 

Apfirored In United States v, Chicago, etc, Ry.. 127 Fed. 789, 
7W, TUL holding refusal of railroad to give goirernment same rates 
ai It iSom to theatrical troupes and sporting clubs for party Uciwets 
!■ Iota of ten or more is not discrimination. 

»yi & (XII, 2U). Carriers — Discrimination defined. 

Afiprofed In Ohio Coal Co. v, Whltcomb. 123 Fed. 364, holding 
railroad track along dock was owned partly by one rail- 





145 U. S. 285-300 Notes on U. S. Reports. 254 

road and partly by another, and by agreement whole track used 
Jointly, extra charge of $2 made to one shipper from point on docks 
In addition to published schedule from city, where no extra 
charge was made to any other shipper, was discrimination; Louis- 
ville & Nashville R. R. Co. v. Commonwealth, 108 Ky. 041, 57 
S. W. 512, holding railroad may charge less for hauling coal use<I 
for manufacturing purposes than for hauling coal used for domestic 
purposes. 

Distinguished in dissenting opinion in Louisville & Nashville 
R. R. V. Commonwealth, 108 Ky. 654, 57 S. W. 51C, majority hold- 
ing railroad may charge less for hauling coal used for manufac- 
turing purposes than for hauling coal used for domestic purposes. 
Syl. 6 (XII, 211). Commerce act construed like English act 
Approved in Norfolk, etc., Ry. v. Old Dominion Baggage Co., 90 
Va. 114, 37 S. B. 785, holding railroads may exclude from stations 
and grounds one engaged in baggage transfer business. 

145 U. S. 285-300, 3G L. 70G, MUTUAL LIFE INS. CO. V. HILLMON. 

Syl. 1 (XII, 212). ConsolidaUon of actions. 

Approved in Connecticut Mut. Life Ins. Co. v. Hillmon, 107 
Fed. 842. holding where two actions by same plaintiff are consoli- 
dated, parties are entitled to as many peremptory challenges as If 
actions tried separately; Connecticut Mut Life Ins. Co. v. HIU- 
mon, 188 U. S. 210, 23 Sup. Ct 295, 47 L. 448, arguendo. 

Syl. 3 (XII, 212). Peremptory challenges by joint defendants. 

Approved in Connecticut Mut. I^ife Ins. Co. v. Uillmon, 107 Fed. 
842, holding where two actions by same plaintiff are consolidated, 
parties are entitled to as many peremptory challenges as if ac- 
tions tried separately; Waggoner v. Dodson, 00 Tex. 0, 7, 08 S. 
W. 814, holding each of several defendants who have common 
defense, though separate controversies among themselves, is en- 
titled to six peremptory cliallenges. 

Syl. (XII, 212). Intent, how proven. 

Approved in Fidelity Mut. Life Assn. v. Mettler, 185 U. S. 321, 
40 L. 031, 22 Sup. c:t. (>r»7, holding erroneous admission, in action 
on life policy, of testimony of repute in family of insured con- 
cerning death and manner thereof, not ground for reversal where 
It tended to rebut evidence of fraud; Cuddy v. Clement, 115 Fed. 
:i02. :>03, holding presumption that no maritime lien arises for 
supplies fnrnlslurd on order of owner of vessel is not overcome 
merely by i)roof of undisclosed belief or understanding when 
contract made tliat person furnishing such supplies would be en- 
titled to lien; Rogers v. Manhattan Life Ins. Co., 138 Cal. 291. 
202, 71 Pac. 3.'»(>, holding In action on life policy where insunMl 
boardeil steamer and was never seen again, letters left in stateroom 
indicating intention to commit suicide admissible; Seifert v. State, 



Notes on U. S. Reports. 14o U, S. 300-31(5 

160 Iiid 470, 67 N. E, 102, applying rule In abortion prosecution; 

mmi T. StJite. 154 Ind. 602, 0G3, 57 X. E. G39, 640. holding where, 

tB prw^ution for murder, dying declaration stated that woman 

m murderer rather than defendant, defendant could show that 

»otnaD had had revolver repaired shortly prior to nnirder and 

tAit 00 evening of killing she was seeu disgnised as man; Mathews 

r. Great Northern Ry., 81 Minn, sm, M N. W. 102. holding in per- 

•poai injtiry case declarations of person aa to purpose In doing acts 

ot<le at or about time of act are admissible; State v. Mortensen, 

M Utah. 336v 73 Pac 570, admitting evidence of decedeura wife 

Itot on night of murder he said he was going to defendant's home 

t» coUect money^ where In murder prosecution State claimed de* 

'^:3daQt induced decedent to come to his house. 

1« D. & 300-302. 36 L. 712, SOUTH SPRING, ETC, MIN. CO. Y. 
AHAl>OR^ ETC., MIN. CO. 
Bji. 1 (XII, 213). Appeal — Interests ceasing to be adverse. 
Approved In Hatfield v. King, 18-1 If. S. 105, 46 K 483, 22 Sup. 
Ct, 478. reversing decree entered against person not served with 
but for whom unauthorized appearance entered hy at- 
Bjr: Wedeklnd v. Bell. 20 Nev. 413. CO Pac. 014, holding where 
i partleis to appeal settle controversy appeal wiU be dismissed though 
bJia been argued and submitted. 

tJ. 8. 302-510. 36 Lr. 713, HUVT r. HORNE. 
ftjrL 1 (XII, 213). Patents — Evasion — Application by former 



^▼ed In Standard, etc., Scale Co. v. Computlug Scale Co,, 

^tSS Fed* 640, construing computing scale patents; Singer Mfg. Co, 

r. Cramer. 109 Fed, 6^*5, construing Cramer patent No. 271^420, for 

«eirmir roachlne treadle; Gaisman v. Gallert, 105 Fed. 958, uphold- 

tsc Cintsman patent No. 542,306, for improvement in waist bells. 

UjrL 2 (XII, 213). Infringement — Substituting mechanical 

0^T|||Ofli. 

Ar't»f«»ved In Julius King Optical Co, v. Bilhoefer. 124 Fed. 52I>, 
:& IX' Wells patent No. 412,442, for eyeglass guard. InfringiHl 

b> itii^iiij^ of K03t patent No. 695.681; Adam v. Polger, 120 Fed. 
96I« oi^oldliig Polger patent No. 680 J69, for water lieater; Metal- 
Be Extra ctlou Co. v. Brown, 104 Fed, ^53, hold log Brown patent 
%t, 471^1, for ore roasting furnace, valid and Infringed by 
fsmmee oC Rupp patent No. 532,031. 

l« U. a. aJlO-^ii, 30 L. 716, PICKERING v. LOMAX, 
8ft t (XII, 214). President's delay in sanctioning Indian con* 

Animvni In Lyklns v. McGrath, 184 V, S, 170, 4G L. 486, 22 Sup. 
Ct 4Sl, 462, holding secretary of interior's consent to conveyance 



145 U. S. 317-^5 Notes on U. S. ReporUf. 256 

by Indian patentee, though given after Indian's death, relates 
back to date of conveyance; Dunbar v. Green, GO Kan. 504, 72 Pac. 
245, holding where land of Shawnee Indian is sold while he Is 
minor by guardian appointed by Probate Court, Indian cannot 
attacli deed twenty-four years after attaining majority on ground 
that proceedings on which it was based were without Jurisdiction. 

145 U. S. 317-335, 3G L. 719, FELIX v. PATRICK. 

Syl. 3 (XII, 214). Trusts — Acquisition of title by artifice. 

Approved in Midway Co. v. Eaton, 183 U. S. Gil, GIG, 4G L. 354, 
35G, 22 Sup. Ct. 2G7, 2G8, holding powers of attorney to locate 
Sioux hnlf-breod scrip and to sell the lauds located therewith, 
do not amount to assignment of such scrip in violation of act of 
July 17, 1854. 

Syl. 8 (XII, 215). Delay in enforcing constructive trust 

Approved in Morau v. Horslty, 178 U. S. 208, 44 L. 1030, 20 Sup. 
Ct. 857, holding State decision sustaining defense of laches against 
assertion of right to mining claim after its abundonment for four- 
teen years, during wliieh apparent title had been obtained under 
patent to probate Judge as part of town site, is based on ground 
independent of Fi'cU'ial questiou; Kinibell v. Chicago Hydraulic 
Press Brick Co., Ill) Fed. lOG, holding ten years* delay bars suit 
by stockholder to cancel stock and to charge holder as trustee 
with amount of dividends received, on ground that Issuance of 
stock was ultra viics; De Roux v. Girard's Exr., 112 Fed. 90, hold- 
ing suit by lieirs of mortgagor to impeach mortgage for fraud 
barred where claim not asserted until thirty-three years after 
foreclosure, during wliich time mortgagee was in possession, and 
mortgagor never made any adverse claim; Dunbar v. Green, 66 
Kan. 5G0, 5U1, D^kJ, 72 l*ac. 244, holding where land of Shawnee 
Indian was sold by probate guardian while he was a minor, he 
cannot, twenty-<me years after attaining majority, attack deed on 
ground of invalidity of proceoillngs upon which it was based; Jop- 
ling V. Chachere et al., 107 La., u3G, 32 So. 249, holding existence 
of defect in tax sale, resulting from defect in assessment of prop- 
erty, does not deprive sale from being made basis of ten years' 
prescrii)tion where defect latent; Schrimpscher v. Stockton, 183 
U. S. 29G, 4G L. 2<m;. L>2 Sup. Ct. 110, arguendo. 

Syl. 9 (XII, 21.J). Concealment excusing laches — Silence. 

Approved in Damold v. Simpson, 114 Fed. 370, holding mere fact 
that debtor concealed his fraudulent conduct and that creditors 
knew nothing of situation until short time before bringing action, 
does not excuse ten years* delay on part of creditors in bringing 
action; Callan v. Callau, 175 Mo. oGl, 74 S. W. 0G9, holding where 
brother induced sister to take land in lieu of interest In father's 
estate, representing that land was worth $G,0(X), whereas it was 
worth only $1XJ0, suit for damages barred iive years later. 



Notes on U. 8. Reports, 145 U* S, 335-548 



(XU, 214), Jliscellaneous. 

Cited to y-Ta-Tah-WaU v. Rebock. 105 Fed. 259, upliotdlng Fed* 

•^ Jttriadlctioo over suit by tribal ludiaa lirlug on reservation, 

•> iwoirer diunages for his arre,st by defendajjts for violation of 

>>Mt^ statute on ground that such statute not applicable to plain- 

if; Bim-Way^Bir-Nesa 7, Esheiby, 87 Minn. 114, 91 N. \V. 203, 

Mag tribal Indian may sue in State courts to recover possession 

■■! aadlrtded interest in section of land lying outside of any reser- 

*ttoa aiid which he Is In possession of citizens; Rfrd v. Winger, 

2i Wash. 276, CH Pac. IS*), holding Superior Court has Jurisdiction 

*0 dtCermine questions between Indians n^gardhig ludiau iaiid-s 

wttMn Slate which have been allotted under treaties and stat* 

mm of United States. 

im V. B. S35-^48» 36 L. T2T. THE CORSAIR, 

^L 1 (XUt 210), Joinder of proceeding in personam with one 
n rem. 

Al^oved In Morris v. Bartlett, 108 Fed, G7!3, holding decree dis- 

mSmiog libel Id rem against vessel to recover for repairs does 

M cofisUtute adjudication of noiillabiilty of owners who, under 

idiiilralty rule 12, could not he joined, and did not intervene; 

I^Haloro T. Perkins, 101 Fed. 3I>G, arguendo. 

SjL 2 (XII, 216). Damages for mental sufTerlng. 

Anitvved Id Hastings Lumber Co. v, Garlaiitl, 115 Fed. 20, liold- 

iQf in ftctioD for death of locomotive engineer caused by ex]i;o8iim, 

»li«« It merely appeared that explosion had occurred and dece- 

^ififi body found 200 feet away with no signs of mangling, it was 

trror U> submit ls«ue of physical suffering as element of dii mages; 

at LotiiB, etc., Ry. v, Dawson, 08 Arlv. 4, 50 S. W, 47, holding ver- 

0tt for f4,tJJ0, In action by administrator to recover for pain and 

4aff«riac endured by deceased, will be set aside where interval 

Buffering between injury and death was only a 



%]» 1 (Xll, 216). Libel of vessel for death where no Hen by local 



la The Albert Dumois. 177 U. S. 258, 44 L, 761, 20 Sup. 
lien on vessel for loss of life of passenger, not 
bf L&, Civ. Code, art 3237, subd. 12, providing privilege 
or dminsge ciiused to person or property by negligent man- 
ifMittst of Teeaei; The Energia, 124 Fed. 846, holding, under Ball. 
<Wash.> CodM, II 5953, 5954, charterer of vessel to carry cargo 
WflahlDgtOD port has lien thereon for her failure to load 
tnrgOt which may lie enforced by suit in rem in admiralty; 
Th# Robert Dollar, 115 Fed. 224, holding Hill's ( Wasli,) Code, | 1078, 
et^ry master, consignee, or person having charge of con- 
%'oI. 111 — 17 



145 U. S. 349-568 Notes on U. S. Reports. '2rj^^ 

struction, repair or equipment of vessel, agent of owner for purpose " 
of contracting debts on credit of vessel, is applicable to foreign ves- 
sels obtaining repairs or supplies in State port; Schooner Robert 
Lewers Co. v. Kekauoha, 114 Fed^ 851, holding right of action for 
damages for death of person lies in Admiralty Court in Hawaii; The 
Lida Fowler, 113 Fed. 007, upholding admiralty Jurisdiction to enforce 
liens on vessels for pilotage under Pa. P. L. 230; The Onoko, lOT 
Fed. 986, holding suit in rem for wrongful death of person kiUea 
in collision, based on water-craft statutes of Illinois or Wisconsin, 
cannot be maintained in admiralty against vessel at fault; The 
Carrie L. Tyler, 106 Fed. 427, holding suit under N. C. Code, 8 3519. 
to recover penalty for piloting without license, creates no lien on 
vessel; dissenting opinion in Workman v. Mayor, etc., of New York. 
179 U. S. 587, 45 L. 330. 21 Sup. Ct. 225. majority holding city 
liable, by maritime law, for negligence of servants in charge of 
lin^boat while hastening to fire, in consequence of which boat 
collides with and injures another vessel; The S. L. Watson, 118 
Fed. 952, arguendo. 

145 U. S. 349-308. 36 L. 732, PEWABIC MIN. CO. v. MASON. 

Syl. 1 (XII. 217). Discretion to set aside Judicial sale. 

Ai)proved in Bass v. McDonald, 29 Ind. App. 003, 04 N. E. 037. 
rcaflirniing rule. 

Syl. (XII, 218). Stockholder's bidding at sale of corporate 
property. 

Approved in McMillan v. Harris, 110 Ga. 83. 78 Am. St. Rep. lOJ. 
35 S. E. 338. holding persons who will be entitled to proceeds of 
land sold by (executor under decree, may engage third person to 
run property up to certain figure with understanding that if it Is 
knocked down to him it will be taken off his hands. 

Syl. 7 (XII. 218). P>iuity — Time for exceptions to master's sale. 

Approved in CJodchaux v. Morris, 121 Fed. 484, reaffirming rule: 
Nevada Nickel Syndicate v. National Nickel Co., 103 Fed. 394. hold- 
ing failure to give re<iui.site notice of sale of realty reciuired by 
27 Stat. 751, duos not render sale void where sale is confirmed after 
due notice to defendant without objection from him. 

Syl. 8 (Xll, 218). Setting aside Judicial sale — Inadequate con- 
sideration. 

Approved in Fidelity Ins., etc., Co. v. Roanoke St. Ry. Co., 98 
Fed. 470, reafiirming rule; In re Shea, 120 Fed. 155. holding sale 
of bankrupt's estate may be set aside where would-be bidders, 
though having seasonably notified trustee of intention to bid, are 
prevented from doing so; Files v. Brown, 124 Fed. 137. upholdlUR 
sale of Judgment securiKl by collateral apparently worthless but 
which later turned out valuable; Blanks v. Farmers* Loan, etc.. 
Trust Co., 122 Fed. 851, holding opinion by afflanU that larger 



3» Kotes on U. S. Reports. 145 U. S, 36&-376 

l*t mlj^ht be obtained on resale, are not sufficient to authorize 
'^i islde sale. 
W, 217). Miscellaneous, 

Oted in Coltrane \\ Baltimore, etc.. Loan Assu., 126 Fed. 840, 
*tof when confirmation of Juilloial sale is desired, better practice 
■toierre on counsel notice tliat at time and place stated decree 
^ wB be moved for; Talbot v. Mason. 125 FerU 102, and Masoo 
^. P^wabtc MIn, Co.. lOU Fed. 34<X both reciting history of case; 
^>tlinuitee Tnist. etc.. Co. v. Delta, etc., Co., 104 Fed. 9, holding 
^4hi1 equity court has no jurisdiction to Itself transfer title to 
"*Mi in aoother State by sale and con\*eyanee made through Its 



HV.B, 36^-37a 36 L, 738, GALLIHER v. CADWELL. 

8yl 2 (XII. 218). Laches not question of years. 

Ipprored Id Hancbett v. Blair, 100 Fed. 827, and Taylor v. 

Bitef, 21 R- L 109, 41 AtL 1003, both reatfirming rule; Ward v. 

AennaD. 102 V, S. 176, 24 Sup. Ct. 230, holding wliere holder of 

4i^talted mortgage on land and cattle accepts property In pay- 

o«!Jit of debt and enters into possession, former owner cannot, after 

Cto» yean, rescind contract and treat vendee merely as mortgagee 

IB pooession; New York v. Pine, 1S5 U. S, 99. 46 L. 823, 22 Stip. Ct 

3e5w ipplytng rule in suit by riparian owners to restrain construe- 

tlDii by city of dam in aid of its water supply, by which waters of 

liTtr are diverted from flowing through riparian owner's lands, 

wl>© delayed two years after commencement of construction before 

■iitag: Monm v. Horsky, 178 U, S, 208, 44 L. 1039, 20 8up. Ct. 857, 

ipbaidlitg State decision against assertion of right to mining claim 

mhim llM abandonment for fourteen years, during which time It 

tad been patented to probate judge as part of tow^n site; London. 

de. Bank v. Horion, 120 Fed. GOl, holding six years' delay In fore- 

ctalii^ mortgage not laches where delay attributable as much to 

4if0fidiuta as to plaintiff; Kessler v. Ensley Co=, 123 Fed. 5C7. 

MdliLg four years* delay by stockholders before suing to set aside 

ftflegifd fraudulent conveyances by corporation not excused by gen- 

«mJ kick of knowledge of fraud until three months prior to suit, 

vltiloilt ftbowing inquiry made and wbere means of knowledge 

wamsihUf; American St. Car Advertising Co. v. Jones, 122 Fed. sm, 

applylUK rule in suit by assignee of patents to recover roynlties 

ittd»r parol license assigned to him; Potts v. Alexander, 118 P^ed. 

^* denying leave to flle replication nunc pro tune where pluiutlfT 

fvj^ of biebes in bringing suit; Hendryx v. Perkins, 114 Fed. 812, 

SS8, 82!7» holding neither bill to vacate decree for fraud nor bill 

•C iVTiew can be maintained after laps«? of nine years, during iill 

i< wUell time complainant hud knowledge of decree; Guarantee 

, t«CH Ce. ¥- Delta, etc., Co.. 104 Fed. 15, denying relief where 




145 U. S. 376-393 Notes on U. S. Reports. 200 

defendants in suit to quiet title to unoccupied lands and for can- 
cellation of deeds as clouds on title, claim through conveyances 
based on tax sales, executed from nine to twenty-five years 
previously; Morgan v. King, 27 Colo. 550, 63 Pac. 419, holding in 
action by stockholder to set aside fraudulent transfer of mining 
stock to certain directors, he is not chargeable with laches for 
failing to discover transaction by examination of books, when delay 
caused no injury to defendants; Heirs of Ledoux v. Lavedan, 52 
La. Ann. 333, 27 So. 205, applying principle in suit to have prop- 
erty confiscated by government and sold, brought into estate of 
former owner who has been pardoned; St. Louis Safe Deposit Bank 
V. Kennett Est., 101 Mo. App. 398, 74 S. W. 483, holding where, on 
erection of defendant's building, plaintiff, an adjoining landowner. 
objected to construction of smokestack which extended into private 
alley between adjoining property, as breach of contract for main- 
tenance of alley, mere delay in suing to restrain maintenance of 
smokestack is not laches; Gay v. Uavermale, 27 Wash. 398, 67 
Pac. 800, holding fact that judgment creditors had knowledge of 
conveyance by their debtor more than seven years before action 
to set it aside, is not laches where no facts in evidence impute 
inequity to plaintiff or injury to defendant; Upman v. Lowther' 
Oil Co., 53 W. Va. 510, see 44 S. E. 437, applying rule In suit for 
specific performance of sale of land. 

145 U. S. 376-393, 36 L. 741. COX v. HART. 

Syl. 1 (XII, 220). Refusal of continuance is discretionary. 

Approved in Pacey v. McKinney, 125 Fed. 679, upholding refusal 
of continuance to obtain testimony of agents where complaint 
which had been on file six months, alleged contract with defendant 
through his agents, and at any time thereafter defendant might 
have obtained names of such agents; Coltrane v. Templeton, 100 
Fed. 376, holding refusal of equity court to continue hearing upon 
agreement of demurrer and plea not assignable as error on appeaL 

Syl. 4 (XII, 220). Extrinsic evidence to explain deed. 

Approved in GreiMiIiold v. Mclntyre, 112 Ga. 696, 38 S. E. 46, 
holding where landowner died and several years thereafter such 
land was levied on and sold for city taxes, in suit by heirs to re- 
cover land from purchaser at tax sale, in which latter relies as 
defense on tax deed, he and heirs claim under common source of 
title though tax sale void; dissenting opinion in Johnston v. Case,. 
131 N. C. 498, 42 S. E. 900, majority holding where mortgagee con- 
veys land, vendee gets only equitable title, and deed of sheriff 
to purchaser at sale under execution against vendee of mortgagee 
conveys no title. 

Syl. 5 (XII, 221). Trespass to try title — Compensation for Im- 
provements. 

See 81 Am. St Rep. 175, note. 



aa 



Sotes on U. S. Reports. 145 U. S. 393-109 



115 r. S. 389^-409. 3(J L. 748, ST. LOUIS, ETC, R. R. t. TERHB 

HAtTE, ETC., R. R. CO. 

Kri 1 (Xri. 221). Railroad lease for 909 years. 

ippforedln Cnmberlatid TeL. etc.. Co. v. EvansvlUe, 127 Fed. 192, 

fciMIWi; under iDdiana statute autlifirizing formatloii of telephone 

cofponitjoiie. company cannot sell all its property or fraoclilses, 

V^ngh city which granted franchise to use streets recogiilxes such 

Buffer; Seattle Gas & Electric Co. v. Citizens* Light, etc., Co., 

IS Fed. 593, holding New Jersey corporation* organized under 

fBUfmJ incorporation laws and not under gas act, cannot engage 

i»gi» business In another State; Central Trust Co. v. Indiana, etc., 

bS. IL Co., 08 Fed. 670. holding railroad not brought within 2 Burns' 

I Ind Rer. Stat 1894, § 521tj, anthovizing company w^Iiose line of 

nilwaj extends across State in either direction to become guarantor 

«f hoods of railroad of adjoining 8tate, by fact that It operated 

Ittfed road across State; Georgia K. R. Co. w Maddox, 116 Ga. 69, 42 

& C3L 317, upholding charter right of railroad to lease Its franchises 

fir traii&portatiOD of freight and passengers?; Chicago Union Trac- 

ClMi Ca T. Chicago, 199 III. 543, 65 N. E. 4BS, iioldiag where street 

lallroiid leased other roads, which by their charter and contract 

wllk dty were entitled to charge certain fares, which city could 

not reduce, it thereby waived their charter right to charge fares 

flXid therein; First Nat, Bank v, American Nat. Bank, 173 Mo. 

WK T2 & W, ltH>l, holding national bank may plead ultra vires to 

contract, by which it agrees that draft drawn by customer 

' ijioth^' national bank on one of its own customers will be paid. 

Sft 6 <XIU 222 J. Affirmative relief against illegal contract. 

Apl>roved In Savings, etc., Co, v. Bear Valley Irr. Co., 112 Fed. 
holding where corporation executes deed and delivers posses* 
of all Its property to another corporation, which in cousldr 
assumes and discharges debts of grantor, such corporation 
nut be permitted to assert want of powder to make couveyance 
nptjike property; Brown v. Sehleier, 112 Fed. 5811, holding where 
ttk iCASed ground for ninety-nine years and erected building 
part of which it occupied and rented remainder, and by 
contract it surrendered building to owner and lease 
canceled, receiver subsequently appointed cannot recover 
i^xpended on building on ground that lease w^as ultra vires; 
IkKUH-lly r. Reus, HI Cal. 61, 74 Pac. 435, hohling Civil Code. 
I 2224, antljorbtea relief where there was no fraud or undue intlu- 
Micr* IfUt violation of trust assumed in accepting property; Drinltall 
f. lloflDS State Bank. 11 N. Dak. 17. «8 N. W. 727, 05 Am. St. 
8«pi, 43901 holding Indorsement and delivery of cashier's check by 
puir to gambler In payment of chips to be used In game, does 
gambler bolder in due course. 





( 



145 U. S. 409-121 Notes on U. S. Reports. 202 

Syl. 8 (XII, 220). Relief against executed Invalid contract 
Approved in Metcalf v. American School Furniture Co., 122 Fed. 
124, holding contract by corporation for sale of its property can- 
not be rescinded at suit of stocliholder suing In right of corporation 
on ground of ultra vires where it has been fully executed. 

145 U. S. 409-417, 36 L. 755, HANCOCK v. LOUISVILLE, ETC., 
R. R. 

Syl. 1 (XII, 222). Lease of branches making continuous line. 

Approved in Georgia R. R. Co. v. Maddox, 116 Ga. 75, 42 S. E. 
320, holding A. & W. P. Railroad had charter right to accept lease 
of property and franchises of another road. 

Syl. 2 (XII, 223). Right of subscribing county to vote stock. 

Approved in Gross v. Kentucky Board of Managers, 105 Ky. 844, 
40 S. W.460, holding, under act of January 19, 1893, Kentucky Board 
of Managers of World's Columbian Exposition is public corporation, 
liable for breach of its lawful contract. 

Syl. 3 (XII, 223). State may form corporation In any way. 

Distinguished in dissenting opinion In Gross v. Kentucky Board 
of Managers, etc., 105 Ky. 849, 49 S. W. 460, majority holding, 
under act of January 19, 1893, Kentucky Board of Managers of 
World's Columbian Exposition Is public corporation, liable for 
breach, of Its lawful contract, 

(XII, 222). Miscellaneous. 

Cited in Southern Ry. v. Wilcox, 99 Va. 408, 39 S. B. 147. hold- 
ing rule that no recovery can be had on illegal contract applies to 
contracts in violation of interstate commerce law. 

145 U. S. 418-421, 30 L. 709, EARKFETZ v. HUMPHREYS. 

Syl. 3 (XII, 223). Contributory negligence of railroad yard em- 
ployee. 

Approved in Smith v. Atlantic, etc.. Ry.. 131 N. C. 618, 619, 42 
S. E. 977, holding in action against railroad for injuries to employee, 
who was painting switch target near track, engineer of engine 
which struck him had right to assume that employee would step 
out of danger; Wal)a8h R. R. v. Skiles, 64 Ohio St 472, 60 N. E. 580, 
holding where railroad employee, without looking or listening, steps 
on track from place of safety on platform immediately after pass- 
ing of train and in front of backing engine, he Is guilty of con- 
tributory negligence. 

Syl. 4 (XII, 223). Direction of verdict where contributory neg- 
ligence uncontroverted. 

Approved in Marande v. Texas & Pac. R. R. Co., 184 U. S. 191, 
46 L. 490, 22 Sup. Ct. 347, holding (luostion whether cotton stored 
near track was set on fire by sparks from locomotive is for Jury; 
Patton V. Texas & P. R. R. Co., 179 U. S. 660, 45 L. 303, 21 Sup. Ct, 



Notes on TJ. S. Reports. 145 U, S. 421^27 



1761 ophoJdlng dlrectloD of rer^lict In aetion by locomotive fireman 

for lojnrJes sustained by turning of loose step on engine which he 

m-*i cI»*anlog, aod step, roU and nut were In good condition at be- 

ginning of trip and inspectors were competent; Chicago, etc, R. R. 

€4K r» Rossow, 117 Fe<L 493, holding verdict should have been 

iilr^ed where farmer drove direetiy across railroiid traclc without 

kokhtg or listening; Dolphin v. New York, etc., R. R„ 182 Mass. 

2U, d3 X. £. S21i holding hrakeman, worlcing in yards at night, 

wt<K after seeing engine on track, starts to cross without looking 

to see if engine is moving, turns his back to It and is struck, can- 

»fi recaver; Street v. Norfolk, etc., R, R., 101 Va, 750, 45 S. E, 285. 

««rtyli>lf rule where employee engaged In *' pinching *' raJlroad cars 

oa pier stood on rail, tho^agh platform provided for him to stand on, 

Attd he hud been repeatedly ivarned not to stand on mil. 

Diatingulshed in Wastl v. Montana, etc., Ky., 24 Mont 171, 61 
Pftc 13, holding nonsuit properly denied where hostler on dark 
ai^tit. after ordering plalntitf to turn switch without customary 
Mgiuil, started engine toward switch to avoid approaching train and 
cmn oTer plaintiff. 

1-15 tr. 8. 421^21, 36 V. 750, MILLER v. AMMON. 
8yt 1 (XII. 224), Following State decisions. 

Ai^gvrored In Warburton v. White, 176 IT. S. 496, 44 L. 559, 20 Sup. 
CL 409. applying rule in fiustaiuing claim to community property 
by beira of surviving wife under Washington deciisions. 
Syl. 2 (XII. 224). Contract in violatioa of statute void. 
Approved in Ei parte Reaves, 121 Fed. S5U, holding 21 Stat. 3, 
Itln^ enlistment of minors in navy wltlKuU consent of parents, 
minor no status in naval service, which can be asserted by 
SDTecnment to punish son for desertion; City Trust, etc., Co. v. 
Glaneore Granite C<i., 113 Fed. 180, applying rule in sustaining 
©f a£9daTit of defense in action on surety, on bond con- 
to pay judgment; Diamond Glue Co. \\ United States Glue 
Oik, 108 Fed, 8^59, holding, under statute prohibiting foreign corpo- 
ntSoii from doing business without filing copy of charter, and mak- 
ing MMf cODtract void unless it complied with statute, where cor- 
fiontloii^ after enactment of statute but before it took effect, en- 
tand Into contract, statute was good defense for breach of contract, 
UoQlliart V. Congdon, 197 III. ^54. m Am. St. Rep. 170, 64 N. E. 
M^ lioidlng. under city ordinance prohibiting hrokers from doing 
without license, note given broker for services rendered 
broker acted wltliout license is void; dissenting opinion in 
Baxter Nat. Bank v. First Nat. Bank, 109 Fed. 435, majority 
where national bank president has his note discounted by 
oat I anal bank for benefit of his hank, so as to evade hank- 
^ UWK bank cannot aet up illegality of transaction as defense. 



145 U. S. 42^-434 Notes on U. S. Reports. ! 

Distinguished in Connolly v. Union Sewer Pipe Co., 184 D. 
548, 46 L. 685, 22 Sup. Ct 435, holding violation of Sherman ai 
trust act by formation of combination In restraint of trade, d 
not preclude company thus illegally formed from recovering 
collateral contracts for purchase price of goods. 

145 U. S. 428-434, 36 L. 762, BENSON MIN., ETC., CO. V, 
MIN., ETC., CO. 

Syl. 3 (XII, 225). Public lands — Payment of price passes t^KJ 

Approved in Neilson v. Champaigne, Mining, etc., Co., 119 1— ■ ' ^ 
125, reaffirming rule; Fulkerson v. Chisna Miu., etc.. Imp. Co., 
Fed. 780, holding, under Alaska Code, § 475, one in possessioi^B. ^ 
mining claim in Alaska, under valid location, has such title as ^^^ 
support action to quiet title agaiust adverse claimant; TelleKZ- " 
United States, 117 Fed. 581, holding payment of purchase i>x-r3 
vests title to land, including right to timber cut, as of date of aE>^^K- 
cation to purchase; Teller v. United States, 113 Fed. 280, 282, hio- ^ 
iiig occupant of mineral claim who has applied for patent befo^^ 
purchase price is paid and before he receives certificate, has i^^ 
right to cut timber on such claim with intent to export or remoi^^ 
same, and license from him to so cut timber gives no protecUo. ^ 
to licensee as agaiust government; Neilson v. Champaigne MiiL..*^ 
etc., Co., Ill Fell. G50, holding, after entry of mining location ic:^ 
land olllce, relocation of premises cannot be made by another sc^ 
loMj; as that entry stands; Olive Land, etc., Co. v. Olmstead, VX^ 
Fed. r>T5, holding riglits of one selecting lieu lands, under forest 
reserve act of June 4, 1S!)7, not affected by fact that it has surface 
indications of oil or that it is select(^d with view to its possible 
value as oil land, wh<»ro no oil discovery has been made thereon; 
Hash V. Cascade Min. Co., liJ) Wash. 53, 54. 69 Pac. 403, holding 
wliero vendor of mining claim, who has entered, paid price, and 
obtained certillcat(» of purchase from government, tenders deed in 
pursuance of contract of sale, vendee cannot refuse deed and re- 
scind contract bcvause vendor has not obtained patent. See 87 
Am. St. Kep. 4i:>, note. 

Syl. 4 (XII, 22.")). Delay in issuing patent does not affect rights. 

Approved in Cranes Gulch M. Co. v. Scherrer, 134 Cal. 3r>3, 66 
Pac. 488, holding certificate of purchase of placer mining claim, 
issued under placer act of 1S7(». conferred on purchaser vested 
right to patent which was not subjcvt to section 11 of general mining 
act of 1872, so that rescTvation in patent for such claim, issued after 
passage of latter act. of all known lodes, was void; Murray v. 
Montana, etc., Mfg. Co., !>.•) Mont. 22. 03 Pac. 721, holding, In eject- 
ment to recover mining: claim patented to plaintiff, defendant may 
Bhow that he had purchased i)ri(»r claim thereto, but that his vendor 
had wrongfully relinquished claim to government, which enabled 



Notes on U* S. EepCH^a. 145 U. S. 435-453 

to obtain patent; Murray v. Polglaee, 23 Mont. 421» 5!} 
^^«c, 4H holding wbere re<;eiver's receipt showing that entryman of 
■* fciain g claim Is entitled to patent, is subsequently annulled for 
^"^flCtnd in obtainlDg it^ and entryman has failed to do annua.1 work, 

Ifllin la subject to relocatiou. 
Byl 5 (XXI, 225). Setoff of cost of mining by treepaBser, 
Approved in United States v. McKee, 128 Fed. liX>4, holding 
^efe defendants took bark from trees on pyblic land under 
iw III ipprehenston as to true boundary of township, they were liable 
i^ol^" for Btumpage value of bark; Sweeney v. Haulej^ 12G Fed, lOa, 
VBDldixig where majority owner of mine excludes cotenant and Is 
ng mine and retaining proceeds under elalm of sole owuer- 
.uder deed obtained by fraud, he is liable for gross value at 
:^n:fle of cotenant's share of ore produced without deduction for 
^•^ni of mining; Powers v* United fci^tates, 119 Fed. 507, folding one 
i^^TongfuIly cutting timber from public mineral lands, wbicli* be 
l^ ^flvgfted into lumber and sold for purposes permitted by Comp. 
"fla^Ut 1901, p. 1528, not liable for added value of timber due 'to 
fcl* Ubof, merely for failure to keep record required by land office 
"^•tov he acted in good faith; United States v. Homestake Min. 
17 Fed, 482, applying principle where timber wrongfully cut 
' Dhlic lands; Gentry v. United States, 101 Fed. 54, holding, in 
Dvi»nian by government for timber alleged to have been wrong- 
oit from public land, where defendant justilles under belief 
[tell* was exercising lawful right under 20 Stat 88, liability Is 
Biaitecl lo timber in its original place; Golden Reward Min. Co. v, 
BqxIoo Mill. Co., 97 Fed. 422, holding Comp. Laws Dak. 1S87, 
I won dtlng damages recoverable for conversion of personalty, 
f09«nii in actions In Federal courts lu that State for trespass to 
■iliiiif olalm, where only damage litigated is value of ore converted. 

» U. a 435-444, Not cited. 

U, S, 444-453, 36 L, TGS. SHAW v. QUIXCY MINING CO. 
ISjL I rXn. 21hlK Courts — '* Inhabitant" means citizen. 

In Gale v. Southern Bldg., etc., Assn., 117 Fed. 734, 

aiicging that complainant is resident of or lives at 

place, does not state his citizenship, necessary to give 

court Jurisdiction. 

3 iXII, 226)* Venue — Limitation on Circuit Court's Juris- 



Appr»T<4 Ui Foulk v. Gray, 120 Fed. 157, 1G:j, balding where suH 
Imiilllit bi coort of State where neither party resides, and defend- 
■ar lllii pHition for removal to Federal court, he cannot there- 
fi%i<*ct to Federal court's jurisdiction; Lengel v. American 
«te., Co., 110 Fed. 20, holding stockholder, who Is citizea 



145 U. S. 444-453 Notes on U. S. Reports. 

and resident of Pennsylvania, cannot sue in Federal court in N< 
Jersey a New Jersey corporation, and its directors and third 
who are citizens of another State; Whitworth v. Illinois Cent. R 
Co., 107 Fed. 558, holding plaintiff, after removal, is not entii 
to have cause remanded on ground of lacli of jurisdiction of 
cuit Court, in that neither plaintiff nor defendant was resident 
State in which suit was brought; Bowers v. Atlantic G. & P. 
104 Fed. 889, holding infringement suit cannot be malntai] 
against individual who is not alleged to have Infringed excepi 
otticial capacity as officer of corporation charged to have commii 
the infringement, and which is not shown to be insolvent; W 
v. Franz, 100 Fed. 683, holding, under Arl^ansas statute provl 
that on appeal from probate decree admitting will to probate a 
shall be tried de novo in State Circuit Court, proceeding in 
court is not suit of civil nature at law or in equity within Judlc 
act 1888, §§ 1, 2; Pennsylvania Co. v. Leeman, 160 Ind. 21, 66 NS 
50, holding, under U. S. Comp. Stat. 1001, p. 510, providing 
defendant desiring removal must file petition at or before 1^ 
required to answer or plead in State court, plea In abatemec: 
an answer; Thompson v. Southern Ry., 130 N. C. 142, 41 S. 
liolding, in removal petition, it is not sufficient to allege that 
tioner is corporation originally created under laws of another ^ 

Syl. 4 (XII, 227). Corporation's domicile is State of Inco) 
tlon. 

Approved in Roberts v. Pacific, etc., Ry. & Navigation Co.» 
Fed. 790, and Roberts v. Pacific, etc., Co., 104 Fed. 579, both B 
ing allegation in removal petition that petitioner is foreign c^3K 




ration is sufficient allegation that it was citizen of such count^"^ 
time action commenced; Eddy v. Casas, 118 Fed. 365, holding 
by citizen against alien residing in State where suit brought;, 
removable by defendant on ground of alienage under 25 Stat. 
Gale V. Southern Bldg., etc., Assn., 117 Fed. 734, holding, 
24 Stat. 552, restricting districts in which personal transitory BC -^^^^t- 
may be brought, suit may be maintained against foreign colt ^ r^ f] 
ration in district of plaintiff's residence where there has b^— ^'^^ 
service on corporation's agont appointed under Va. Code, | 1X^ -^*^ 
United States v. S. P. Shotter Co., 110 Fed. 2, 3, holding corpc^'^^®'' 
tlon of one State is not, for purpose of Federal jurisdlctioa un ^^^^^ 
act of 1887, as amended In 1888, an inhabitant or resident of anot::^^** 
State in which it has usual place of business; Shaw v.^Ameri^ ■■'^^■^ 
Tobacco Co., 108 Fed. 844, holding, under 29 Stat. 695, suit ^^ 

infringement of patent can be maintained only In district of wb^ -^^^ 
defendant is an inhabitant, or where he has committed act of '^* 
friugoment and has regular place of business; Piatt v. Ma^^^" 
chusetts Real Estate Co., 103 Fed. 707, holding compliance by cO*^ 
poratiou with statute of another State, as condition of doing htUf^ " 



Notes on U. S. Reports. 145 U. S. 444^53 

^^^^ therein^ to appoint attorney upon wboni all procesii may be 
^*^Tri^, Is not conseDt to suit In Federfll court of that district 
^^*^ plaintiff re^tdent of anotber dlstrlrt; Eldred v. Am*^r1can Palace 
^^f Co., 103 Fed, 211, holding Jurisdletlon of defendant corpora* 
not resldejit In district where suit brouglit, not actiulred Dy 
Tice oo resident director when not alleged that property In 
■troTerey was within district; Howard v. Gold Reefs of Georglji, 
l¥mL 057, holding where pleadings of plaintiff show that defend- 
I is foreign corporation, fact that It Is nonresident of State need 
be alleged In petition for removal; Wilson v. Railway Co., U4 
C 168, 36 S. E. T03, holding foreijcu railroad doing husineas in 
I State as domestic corporation under 22 Stat. 114, may remove 
t broQ^ltt by citizen of this State. See 85 Am, St. Itep, 019, note. 
^L 5 tXII, 227). Corporate members are citizens of State whert; 
(imtiHl. 

DlMlo^uisUed in Hancbett v. Blatr, 100 Fed. S22, holding there is 

|pr«9un»pti4>u that an individual who sues a corporation is a 

1 of same State because he is stockholder In such corporation. 

SyL 7 (XII, 228). Place of suit by nonresident against foreign 

Btiou. 

Ai^tiTDved in Occidental, etc., Co. v. Comstock, etc., Co., 120 Fed. 

► U*. upholding Circuit Court's Jurisdiction of suit where plaintiff 

M <!»«ffndaiit are citizens of different States when defendant 

to merits; City Water Supply Co. v. City of Ottumwa, 120 

I », holding in suit by taxpayer against city to enjoin it from 

atlDg debt beyond constitutional limit by carrying out coulract 

' witb corporation, latter is not ludlspetisflble party; Reiliy v. 

^■n»Mi4pUia Sc 11. Ry. Co., 109 Fed. S'jO, holding service of proc- 

<^e^M m director of foreign corporation found in district, but who 

wmmitihtr transacts any corporate business therein nor Is eiiargell 

'^■ntk *ny business of corporation, does not give Federal court j«- 

^'^■Al'tJoo over t?orporation, Pacific Mut. Life Ins. Co. v. Tompkins, 

^*^ f«l, 544, denying jurisdiction of suit ngainst California corpo- 

^■■^^ by one who had been resident of West Virginia and who 

'**<iT«<l to Virginia, where he resided and voted for three years, 

*^ wliifh he determined to return to West Virginia and rented 

"^ Uvtre. but before actual removal commenced suit in West 

r uraX court. See 85 Am. St. liep. 923. note, 

nd in Mexican Cent. R, R. Co. v; Eckman, 187 U. S, 

>ui». Ct. 213. 47 L. 247, holding citizenship of guardian ixuJl 

vn\Ti\ rfelermlnes Federal jurisdiction when, under State 

n has right to bring suit in own name; Whitworth \\ 

"*r t;. R. Co., 107 Fed. 550, holding defendant who appears 

^ *^«rti of State In which neither plaintiff nor defendant resided 

**^il»ibond and removal petition, cannot remand on ground of 

■^^jurisdiction In Federal court. 




145 U. S. 454-487 Notes on U. S. Reports. ^^ 

145 U. S. 454-459. 36 L. 773, BRO\«N v. SMART. 

Syl. 1 (XII, 228). States may pass Insolvency laws. 

Approved In Hanover Nat. Bank v. Moyses, 186 U. 8. 187, — 
L. 1119, 22 Sup. Ct 860, upholding bankruptcy law of July 1, IS^^^ 
Binder v. McDonald, 106 Wis. 337, 82 N. W. 157, holding Rev. Sta^ 
Wis., § 1694a, providing that if insolvent debtor makes voluntar^^ 
assignment within ten days after his property attached, such attacJ^ ' 
ment shall be dissolved, not superseded by bankruptcy law of 188fi^^ 
so long as no actual bankruptcy proceedings involving debtor con^^ 
menced. 

Syl. 2 (XII, 229). States may regulate disposition of property. 

Approved in Binder v. McDonald, 106 Wis. 339, 82 N. W. 158,.**' 
holding Rev. Stat. Wis., § 1694a, providing that if Insolvent debtor*^ 
makes voluntary assignment within ten days after his propertr 
attached such attachment shall be dissolved, not superseded bank- 
ruptcy act of 1818, so long as no actual bankruptcy proceedingt 
involving debtor commenced. 

(XII, 228). Miscellaneous. 

Cited in Strouse v. American Credit-Indemnity Co., 91 Md. 261, 
40 Atl. 331, to point that insolvency Is a status; Weston v. Ralston, 
48 W. Va. 189, 30 S. E. 454, to point that decision of court is not 
a "law." 

145 U. S. 459-475, 3G L. 770, FRANKLIN TEL. CO. V. HARRISON. 

Syl. 1 (XII, 220). Equitable relief — Greater benefits than under 
contract 

Approved In Pacific States Savings. I^an, etc., Bldg. Co. T. 
Green, 123 Fed. 40, holding fact that by reason of default of bor- 
rowing membtT in building association or default of other members, 
he fails to realize benefits contemplated by contract, does not 
authorize equity to enforce it according to Its terms. 

Syl. 2 (XII, 220). Contract for right to use telegraph wire for 
term. 

Approved in Philadelphia Ball Club v. Lajole, 202 Pa. St. 220, 
51 Atl. 075. 90 Am. St. Itcp. 0o2, upholding baseball player's con- 
tract giving employer rijrht to renewal for three successive seasiHis 
by notice given at end of each season, and providing fop termina- 
tion on ten days' notice. 

Distinguished In I^rooklyn Baseball Club v. McGuIre, 116 Fed^ 
783, holding contract which plaintlflC has option to terminate at 
any time on ten days* notice will not be specifically enforced against 
other party. 

145 U. S. 475-487. Not cited. 



145 U. S. 512-^546 Notes on U. S. Reports. ^' 

145 U. S. 512-518, 36 L. 795, DOWLING v. EXCHAN6B BANK _ . 

Syl. 1 (XII, 231). Partnership — Liability on firm notes. 

Approved in Salt Lalte B. CJo. v. Hawlie, 24 Utah, 207, 06 V^xi 
1000, holding where managing partner told partner that they womaff 
need money to pay miners' checks on following day, and sugges^^*:: 
getting it from brewery with which they dealt, but partner ^scr 
jected, partner is liable for money so obtained by manager wht ^asC- 
partner did not notify brewery not to send It, 

145 U. S. 519-535. Not cited. 

145 U. S. 535-546. 36 L. 806, BARDON v. NORTHERN FA0^ 
R. R. 

Syl. 1 (XII, 232). What are public lands. 

Approved in Minnesota v. Hitchcock, 185 U. S. 392, 46 L. 96i : 
Sup. Ct. 657, upholding original jurisdiction over suit by State t^^ 
enjoin secretary of interior from selling school lands In Red Lakc^' 
reservation; United States v. Blendaur, 128 Fed. 913, holding Bitter- 
Root Valley lands, formerly occupied by Flatheads, were subject 
to 20 Stat 1103, authorizing president to set aside forest resenra- 
tions in public lauds; King v. McAndrews, 111 Fed. 869, 870, hold- 
ing Dak. act of March 7, 1885, including part of Indian reservation 
in city of Chamberlain, did not withdraw this land from entry, as 
it was not part of public lauds; M'Fadden v. Mountain View 
MIn. & Mill. Co.. 97 Fed. 680, holding 27 Stat. 62. restoring to 
public domain portion of ColvIUe reservation, does not operate of 
itself, in advance of president's proclamation, to give right to locate 
mining claims therein under mineral laws; Oregon Short Line E. R. 
v. Fisher, 26 Utah, 183. 72 Pac. 932, holding grant to railroad of 
right of way over public lands does not include lands which at 
time of grant are subject to existing uncanceled homestead entry. 

Syl. 2 (XII, 232). Pre-empted lands abandoned before location. 
of railroad. 

Approved in Oregon, etc., R. R. v. United States. 190 U. 8. 190, 
23 Sup. Ct 675. 47 L. 1014, holding lands on which settlement 
made under Oregon donation act and abandoned, not " reserved 
from sale" with Oregon Central grant of 1866; Southern Pacific 
R. R. V. United States, 189 U. S. 452, 23 Sup. Ct 569, 47 L. 000, 
holding indemnity selections cannot be made by Southern Pacific 
from lands within indemnity limits of its grant of 1871, which are 
also within forfeited place limits of Texas Pacific grant; Barker t. 
Harvey, 181 U. S. 490, 45 L. 968. 21 Sup. Ct 694, holding Mission 
Indians claiming right of permanent occupancy of land in California 
under Mexican grant, must present same to commissioners within 
two years; M'Cune v. Essig, 118 Fed. 279, holding patent to widow 
of homesteader, on her making final proof, vests title in her to ex- 
clusion of husband^s children; Teller v. United States, 117 Fed. 581, 



-71 



Notes on U. S. Reports. 1^5 U. S. 540-593 



''Mug na parment of price for governiDeiit laud title relates back 

*" ^nc* of application, Including ties cut from land after that date; 

^^ikt v. United States, 113 Fed. 280, lioMing oecnpant of mineral 

"^"^itu who has applied for patent before purchase price is paid and 

^'lo«ie he receives certificate, has no right to cut timber tliereon. 

^^ U. 8. 5445-561, 36 L. 812, JENKINS v. COLLARD. 

9ji 2 (X:il, 233)* Amnesty proclamatloii has force of law — 



Approved In Smith v. City of Shalsopee, 103 Fed. 241, holding 
*<tml«lty courts take judicial notice of regulations of light-house 



SyL 3 tXIl, 233)* Rebel's warranty deed passes reversion on 

ippTOved in Helr« of Ledoux v. Lavedan, 52 La. Ann. 323. 27 So. 
H tpi>iying rule In action to bring into succession property con- 
tattd by government where owner was afterward pardoned; dis- 
inting opinion In Boykin v. Springs, 66 S. C. 373, 44 S. E. 038. 
^Joitty holding where husband executes covenant for exchange of 
tadi^ ind after going into possession conveys equitable interests 
tWl warranty to another, and court orders lands conveyed to 
putev. hia title la not such as gives wife dower. 

M U, S. 501-570. Not cited, 

145 U, K 5T1-5T8, 36 L. 821, CROSS 7, UNITED STATES. 
9jl t (XII. 234). Supreme Court's criminal appellate jurisdlc- 



Ap^rovcKl in Sinclair v. District of Columbia, 1L>2 U. S, 10, 24 
*€!K CL 213, denying^ Supreme Court's jurisdiction to review ou 
^tm, criminal jadgment of Court of Appeals of District of Colum- 
fc^ BiUler Code of District, § 233; dissenting opinion in Stare v, 
l^ifir, 168 Mo. 54. 55. 58 S. W. 14, 15, majority holding appeal lies 
fir tftfeodant from conviction of misdemeanor on Information in 
<i1l P>i coort of Jackson county. 

IC V. 8. 578-5Ur?. 36 L. 824, OTERI v. SCALZO, 

i!fl 1 IXII, 234). Equitahle rescission of contract Induced by 
» t»ciyfcp iaUop, 

A^piTored Id Macklem v. Falea, 130 Mich. 71, 80 N. W. 584, set^ 
HBf adde mortgage which corporate directors, who also claimed 
% it cfvtSltors, executed to one of their number, ostensibly to secure 
tktir dafnis and those of other creditors, where latter made no 
4iiADil for mortgage and alleged Indebtedness to directors did not 




145 U. S. 593-60S Notes on U. S. Reports. 

145 U. S. 593-608, 36 L. 829. TEXAS, ETC.. RY. v. COX. 

Syl. 1 (XII, 235). Courts — Suit against Federal receiver. 

Approved in Gableman v. Peoria, etc., R. R. Co., 179 U. S. 
45 L. 224, 21 Sup. Ct 174, holding mere fact that Federal c^ 
appointed receiver does not give him right to remove suits w3 
his appointment was made under general equity powers, and 
bility rests on general law; Kirk v. United States, 124 Fed. 341» 
Joining pendente lite marshal from enforcing execution Issue 
scire facias to forfeit bail bond; Winters v. Drake, 102 Fed. 
holding suit against Federal court receiver may be removed the 
plaintifl! omit in his pleadings to state by what court defen * 
appointed receiver; Files v. Davis, 118 Fed. 4G6, upholding Fec^U 
jurisdiction over suit on attachment bond, executed In suit pen 
in Federal court. See 74 Am. St. Rep. 280, note. 

Distinguished In Marrs v. Felton, 102 Fed. 770, holding 
Federal receiver Is properly joined in State court' with codeJC"3t-:f 
ant, who has no right of removal, and suit does not iiivolve 'S 

arable controversy, receiver cannot remove; Gableman v. P^*^^»e< 
etc., Uy. Co., 101 Fed. 3, 5, 7, holding action in State court as^.^^K.'^a: 
railroad receiver to recover for negligence in operation of X"=it to 
causing Injury, is not removable solely on ground that receiver* *" vi 
appt)inted by Federal court where he was appointed under gezrza^ixiej 
equity powers; State v. Frost, 113 Wis. 046, 89 N. W. »20, hoi- -^K7(tf^ 
information in equity by State to enjoin Federal receiver from W^ te^ 

ing up railroad in order to sell materials composing It, pursuax -^t {^ 

order of court, is removable. 

Syl. 2 (XII, 230). Suit against Federal receiver without leai=^e. 

Approved in Erb v. Moraseh, 177 U. S. 585. 44 L. 898, 20 ^^^iftn 
Ct. 820, holding re<*eiver is liable to suit in court other than tha^"^ by 
which he was appointed, for disregard of official duty which ca^ '"''" 
injury to party suing; In re Gutman, 114 Fed. 1010, holding w^l^®** 
mortgagee of bankrupt thereafter taking possession of mortgft- -*** 
property, no rights of his are invaded by trustee taking possess- -^^ 
See 74 Am. St. Rep. 290, note. 

Syl. 4 (XII, 230). Demurrer waives jurisdiction of person. 

Approved in Fosha v. Western Union Tel. Co., 114 Fed. '^^^' 
holding general appearance by defendant waives objection c- -^** 
action between residents of different States is not brought lo ^^^ 
trict of residence of either party; Scott v. Hoover, 99 Fed. 250. \i^^^ 
ing, under Cal. Code Civ. Proc. § 390, providing that if coiu ^^^ 
in which action commenced is not proper county for trial, it x^^ 
be had there unless defendant, when he appeals and answers 
demurs, files affidavit of merits and demands trial in proper cou^^*^* 
objection is waived by demurrer without such affidavit and demf^^^ _* 
Lowry v. Tile, etc., Assn., OS Fed. 823, holding general appear»^ 
by demurrer going to merits of case waives objection of misjolxm' 



^ 



Notes on U. S. Reports, 145 D. S, 593-608 



^^^m other defendants are not Inhabitants of district; Wliite v. 

Xf Grtuide, etc*. Ry.. 25 Utah, 358, 359» 71 Pac. 5D7, applying nile 

ictlon for damages for death of aon; State t. Frost, 113 Wis. 

S!) S. W. 924, holding renulremeut that suits in Federal courtB 

ft dtireus of other States sliall be brought In district of their 

ice, is mere personal priv^ilege which may be waived, 

^I $ (XII, 237). Limitations run from suit — Amendment 

red In Cincinnati, etc, R. R. Co, v. Gray, 101 Fed. 631, 
amendments to petition against railroad receiver to recover 
death of employee, do not constitute new suits for purpose of 
^.-inltalJODs where substantive cause of action iu l)oth original and 
k-SOded petitions was negligence of receiver; Jl'Donald v. State of 
iSdnska, 101 Fed. 177. holding Circuit Court could amend petition 
li!d by State treasurer In official capacity by suhstitition of name 
Stute as plaintiff. 

7 (XII. 237). Circuit Court enforces another State's statute. 

ipprored Id Burrell v. Fleming, 109 Fed. 490. applying rule In 
ID against ship for wrongful death of carpenter employed by 
edores to make repairs to ship, where he fell through hatch- 
on deck; Maher v. Union Pac, etc, Ry., lOG Fed, 310, holding 
passenger fireman lojured by collision of passenger tram 
fivight, injury caused by negligence of freight crew in faU- 
to send flag along track on which they knew passenger train 
» tppnoachlng and on which they were backing; Davis v. Mills, 
piP y#d, 41, 42, holding Mont. Cotnp, Laws, p. 728, $ 4CS0. requiring 
mJBK{t9\uiioaM to annually file financial reports, and making trustees 
«^ lot which does not liable for Its debts, la not penal statute so 
^•tfi^feTent enforcement out of State of trustee's liability thi*re- 
»•<«. See 87 Im, St, Rep, 622, note, 

tlWiifTilshed lu Blair v. Newbegin, 65 Ohio St. 440, 62 N. E. 
^ boMlng Judgment creditors of dissolved Kansas corporation 
•»T aiilntain action in Ohio to enforce stockholder's liabUity 
'^w making corporation a party, 

l> (XII* 238). Nonsuit — Direction of verdict 

^M In United States t. Copper Queen Consolidated Mln- 

m U, S. 408, 46 L. 1010. 22 Sup. Ct, 763, holding Judgment 

OB Terdlct of Jury will not he reversed on error on ground 

** there is absolutely no evidence to sustain It, where hill of 

**W«to doee not show that evidence contained therein is aU tlie 

"^^tliat waa given on trial; Northern Pac, Ry, Co, v. Tynan, 

^ M 293. applying rale In action by brakeman for pergonal 

^^^: Ntshiia Sav. Bank v. Anglo- American, etc., Co., 108 Fed. 

"* boldlag in action by foreign conioration against stockholder 

•*fl?fr itoek assessment where record does not purport to con- 

*■ ll aridence, question of error In refusing to direct verdict <,^an- 

ToL III — 18 



145 U. S. 608-625 Notes on U. S. Reports. 

not be considered; Bethlehem Iron Co. v. Weiss, 100 Fed. 66, 
Ing question of contributory negligence of employee who did 
speak English was for Jury, where his duties required hii 
wheel barrow across track every night and he had been empl 
but three nights and engine had only passed once. 

SyL 9 (XII, 239). Receivers — Cars causing Injury to propen 
others. 

Approved In New Orleans, etc., R. R. Co. v. Clements, 100 
422, holding where at night cars of another road arrived in y 
and after inspection foreman had engine attached to move " 
down tracks, and on noticing brakes set he jumped on ear 
grabbed brake wheel, which came off and injured him, he wai 
negligent in failing to examine wheel. 

(XII, 235). Miscellaneous. 

Cited in Powell v. Sherwood, 162 Mo. 615, 63 S. W. 487, hoi 
under fellow servant law of 1897, receiver appointed by Fe 
court is liable to damages for injury to employee to same e: 
as corporation would have been had no receiver been appoint 

145 U. S. 008-611, 36 L. 834, MEAGHER v. MINNESOTA, i 

MFG. CO. 

Syl. 2 (XII, 239). Judgment reversing and remanding not fLm 

Approved in White v. Wright, 189 U. S. 507, 23 Sup. Ct 852 

L. 1)22, reaffirming rule; Nolan v. Smith, 137 Cal. 363, 70 1 

1(>7, holding judgment for costs is not final Judgment. 

145 U. S. 611-625, 30 L. 835, ME EH AN v. VALENTINE. 

Syl. 2 (XII, 240). Nature of partnership. 

Approved in McMurtrie v. Guiler, 183 Mass. 453, 67 N. B. 
roafflnuing rule; Donald v. Guy, 127 Fed. 232, and Fleminf 
May, 109 Fed. 954, both holding where tugowners formed assc 
lion, selecting manager who handled receipts and managed 
vessels, collected all earnings, paid expenses and distributed pr< 
among members in proportion to agreed value of vessels o^ 
by each, association Is partnership; H. B. Claflln Co. v. Gi 
tl2 Fed. 388, holding contract reciting that firm of two des 
more capital and that another of signers had already indo 
firm's paper and fourth was willing to indorse and that each si] 
should receive certain weekly salary, and that at end of 
years assets be dlvidtnl among four signers, rendered signers i 
ners; Moore v. Williams, 20 Tex. Civ. 146, 62 S. W. 979. hob 
question of existence of partnership from participation In pr 
is for jury. 

Syl. 4 (XII, 240). Partner — Lending to firm for excess profit 

Approval in Ilnzcll v. Clark, SO Mo. App. 84, reaffirming r 
Geutry v. Singleton, 128 Fed. 082, holding mere employee enga 



-15 



Notes oa U. S. Reparts, 



HG U. S. l-a-l 



'o mtdet serrke Ld conducting business, though he la to receive 

* **m e of profits as compensation, is not partner and cannot sell 

P^'Cjwtr; American Suretj Co. v. Lawrencevllle Cement Co,, 110 

723, holdiDg creditor of contractor for public work whose 

! ft not secured by statutory bond given by contractor cannot 

' ^abrogated to security taken by surety to Indemnify It against 

! bjr reason of suretyship. 

^XII, 240). Miscellaneous. 

Clt«a In Union Selling Co. v. Jones, 128 Fed. 077. to point that 
Kjol ift Jnadmisslble to vary legal intendment of written contract 




CXI.VI UNITED STATES. 



r' 



«U. 8, X-42, 36 Lu 8€9, McPUERSON v. BLACKER, 

8jL 1 (Xll, 241). Ambiguity renders coutemporaueoua constmc- 

nmtToHing. 

Apjiryv€d In Falrbank v. United States. ISl U. S. 308, 321, 45 

^ R 878, 21 Sup, Ct. 658, 0(33, liolding void stamp tax imposed 

^ foreiim biU of lading by 30 Stat. 448. § G, as ht-ing tax on 

baltimure City v. Jolinson, m Md. 743, 54 AtL a48. hold- 

m Baltimore stock exchange not being property within 

ill of rights, act 15, or revenue laws, it is not liable 

1 1 and taxation. 

*ft i (Xn. 241). Courts — State decision in mandamus sulL 

' 'Vi^ in American Express Co. v. Miehlgan. 177 U. S. 4*J6, 

^li, 2t) Sop. Ct* f^j, holding proceeding for mandamus is 

w II bin meaning of Rev. Stat,, § 700, relating to Jurisdietion 

^me Court on error to State courts; dissenting opinion in 

JnUgi'S of The Registrnlion, 170 U. S. 411, 45 L. 255, 

^ ('L 208. majority boldUxg olijection that Massacbiisetts 

y^^ land net deprives pcri^on of prc*perty without due process 

*"> it prorides for adjudication of rights of ctTtain classes 

^'ti» who are notified only by posting notices or pnhiiraUon 

^^'tv raised by one wbo Is not affected by such provisions. 

^CSw 42-^,3, 3<5 L. 880, VAN WINKLE v. CROWELL, 
^i<Xn, 212). Parol evidence to var>' ivriting. 
^•fM In Union Selling Co. v, Jones. 128 Fed. <177. holding 
'''ftctmtinct for sale of binder twine contained words " quailiy 
^'wiM,*' porol U Inadtnlssible to show that such warranty 
^ nii^ of i)flor nt»goiIalion8 between parties was intended to 



14G U. S. &1-S8 Notes on U. S. Reports. 270 

Include certain representations as to quality; Morris v. Chesapeake 
& O. SS. Co., 125 Fed. 67, holding where contract by steamship 
company for carriage of cattle on certain specltied vessels '*all 
sailing" during certain months maizes no distinction between the 
several vessels named, it cannot be changed by parol to exempt 
one vessel; Armington v. Stelle, 27 Mont. 20, 69 Pac. 117, holding, 
under Civ. Code, § 2186, and Code Civ. Proc, | 3132, evidence 
of contemporaneous agreement between parties to a written sub- 
iease of a mining claim, that In case sublessors should buy prop- 
erty lease should be extended, was inadmissible. 

Syl. 5 (XII, 2-^2). Detinue pending foreclosure of lien. 

Approved in Anthony v. Slayden, 27 Colo. 150, 60 Pac. 828, 
holding where plaintiff alleges contract and its breach and snes 
for damages for such breach he cannot by amendment change 
Ills cause of action to one in equity asliing that certain deeds 
made by him be set aside on account of fraud and the property 
bo reconveyed to him. 

146 U. S. 54-60. Not cited. 

146 U. S. 00-70, 36 L. 887, EARNSHAW v. UNITED STATES. 

SyL 4 (XII, 243). Appeal from discretionary orders. 

Approved in Coltrane v. Templeton, 106 Fed. 377, decision of 
judge that he is not disqualified to enter formal or preliminary 
ordfTs In a case or that the party objecting has by his own con- 
duct waived the right to object is not reviewable. 

146 U. S. 71-76, 36 L. 890, UNITED STATES v. PERRY. 

SyL 1 (XII, 243). Tariff — Stained glass not dutiable as paintings. 

Approved in Amerman et al. v. United States, 124 Fed. 209, 
holding antique mythological paintings consisting of a ewer and 
tray, made of copper and enameled by a lost process, are dutiable 
under paragraph 454, schedule N, § 1, chap. 11 of tariff act of 
1S97; Unit(Ml States v. Richard. 01) Fed. 270, holding painted tiles 
are dutiable und(T paragraph 94 of tariff act of 1800 as ** tiles glazed, 
painted or vitrified." 

146 U. S. 76-82. Not cited. 

146 U. S. 82-88, 36 L. 80(>, CROSS v. BURKE. 

Syl. 2 (XII, 244). Value of dicta. 

Approved in Louisville Trust Co. v. Knott, 191 U. S. 236, holding, 
under Judiciary act of 1891, where Circuit Court has Jurisdiction 
and appoints a receiver question of Jurisdiction cannot on inter- 
vention of State court receiver be certified directly to Supreme 
Court to determine priority of jurisdiction. 

SyL 3 (XII, 244). Criminal appeals from District of Colombia. 

Approved in Sinclair v. District of Columbia, 192 U. 8. 19, 24 
Sup. Ct 213, reaffirming rule. 



Notes on U. S. Reports. 146 U. S. SS-llC 



$yl ^ (SII, 245). Habeas corpus — Amount In dispute* 

ApliroTed In Woey Ho v. United States. 101 U. S. 55S, and Camp- 

beil t. Walte, 180 U. S, 035, 47 L. TOO. 21 Sup. Ct. 920, both re- 

$BrmiDg rule; Hoadly v. Chase, 12(3 Fed, S23, holding Federal 

«art wiJJ not on habeas corpus review right to custody of insane 

pirtoo where proceediug brought In State court of competent Ju- 

Jl«dlctIon between 'citizens of diflerent States to determine sanity 

«r ilieged lunatic and right to custody; State v. Superior Court, 

S WisJi. 146, 72 Pac. 1041, appeal from order remanding applicant 

ior Ji«beaa corpus is ineffectual as a stay of proceedings where 

ao appeal bond has been file<l within five days after notice of 

*PpiAl, as required in civil actions by Ball. Codet | 0505; State v. 

fia€cin, 110 Wis. 221, 85 N. W. 1052. holdiug a private attorney 

tan a|ip€flr at request of officer at private expense to represent the 

lncf«it8 of the State in habeas corpus proceedings. 

m u. a 8^102. 36 u sm, foster v. mansfield, btc.» 

SyL 2 (XII, 245), Rebuttal of presumption of laches. 
Apiirored In Ametican St. Car Advertising Co. v. Jones, 122 
Fed. 809, holding suit for royalties not barred by laches where 
twigfiee of patent had no knowledge of parol license until paten- 
tte assigned to him claim for past royalties, and on refusal to 
pay Immediately sued for accounting, and patentee having died 
CMfpiftinant could not show why suit had not been brought sooner 
Ijr him; Potts v. Alexander, 118 Fed. 887, refusing application to 
ffl« rpplieation nunc pro tunc after order dlBmlsslDg cause for 
fAlliire to file the same where plalntiflTs claim barred by laches; 
TiMMh r, lngall8» 101 Fed. 648, holding suit to charge railroad re- 
c«lt«r IIS trustee with a sum which might have been recovered at 
Uw fOT0^ed by State Statute of Limitations; Herald v. Barlow, 
IT W. ViL 764, 36 S. E. 13» holding suit to overthrow a conveyance 
1* iiref<*rence barred where it was on record and there was over 
four j«ar«* delay In bringing suit 
SyL 4 tXII. 24*5), Amendment of old equity decree. 
J^iiDroved In Tyler v, Aspinwall, 73 Conn, 40S, 47 All. 750, up- 
teldlQg refusal to set aside divorce decree which was obtained 
^ ftitiil years before, upon application of sti^angers whole rigiits 
«t Bot tflected by the Judgment. 

MCr. S. 102^116. 36 U 004. WARE v. GALVESTON CITY CO. 

W- 2 (HI, 246). Bill to cancel for fraud — Diligence. 

4pfroTed In Damold v. Simpson, 114 Fed. 370, holding mere 

(Met tliai debtor concealed his fraudulent conduct and that cred* 

llBl inew nothing of the situation until short time before bring- 

cannot talce cause out of Statute of Lirultatlons where 

on part of creditors would have enabled them to secure 



146 U. S. 117-153 Notes on U. S. Reports. 

property in payment of their debts; Callan v. Gallan, 176 Mo*. 
74 S. W. 909, applying rule in action by suit to set aside exeha 
of lands made with brother in settlement of litigation gro^ 
out of father's will. 

146 U. S. 117-119, 36 L. 910, BELLAIRE v. BALTIMORE, El 
R. R. 

Syl. 2 (XII, 246). Removal for separable controversy. 

Approved in MacGinniss v. Boston, etc., Silver Min. Co., 
Fed. 101, holding State court suit by stockholder of domestic 
poration, who is citizen of same State, against such corpora 
and a foreign corporation to enjoin latter from controlling f<^ 
corporation, does ti«t give foreign corporation right of reiKi 
on ground of separable controversy; Colorado F. & I. Co. v. 
Mile Ry.Co., 20 Colo. 94, 66 Pac. 903, holding in condemn, j 
proceedings against domestic corporation as owner and foi 
corporation as trustee for holders of bonds secured by mortga^ 
premises foreign corporation cannot remove cause. 

146 U. S. 120-139. Not cited. 

146 U. S. 140-153. 36 L. 917, MATTOX v. UNITED STATED 

Syl. 1 (XII, 248). Reviewability of new trial. 

Approved in Board of Comrs. v. Keene, etc., Bank, 108 
516, following rule; Youtsey v. United States, 97 Fed. 947, sl; 
ing rule where application for continuance raised issue as to 
tal competency of defendant to have issue tried. 

Syl. 2 (XII, 248). Testimony of jurors as to misconduct. 

Approved in United States v. Ogden, 105 Fed. 374, and MoX" 
Montana Ore-Purchasing Co., 105 Fed. 345, both holding 
mony of juror admissible on question whether or not he 
newspaper articles causing «rlleged prejudice, but not as to wli 
or to what extent he was influenced thereby; State v. Rig^s- 
La. 516, 34 So. 657, holding affidavits of jurors as to overt 
of intimidation admissible, though verdict thereby vitiated; HT 
ton V. State, 111 Wis. 145, 86 N. W. 602, holding conduct of j" 
while outside of courtroom, impeaching their verdict, ma3 
shown by their own affidavits. 

Distinguished in United States v. Davis, 103 Fed. 467, ho^ 
allowing juror, under eye of officer having jury In charge, t^ 
into lavatories, to go to stores, to ask marshal for supplies 
to speak to men in courtroom in hearing of marshal is not ^ 
separation as creates presumption of prejudice. 

Syl. 5 (XII, 240). New trial — Reading newspapers to Jury. 

Approved in Morse v. Montana Ore-Purchasing Co., 105 1^ 
346, holding where newspaper articles calculated to prejudice a 
influence public sentiment against one of the parties were re 
by Jurors there is ground for new trial. 




Notes on U. S. Reports. 14r, U, S. 153-179 



W* 8 (Xn, 249), Review of refusal of new trial — AffldavItH 

» jtaTDfB. 

Approred in Ogden v. United States, 112 Fed. 526, holding refusal 
' fedpraJ court in criminal case to permit filing of motion for 
^w trfah offered In time, or to consider tlie s&me, may tie re- 
fi'wed on error* 

Sjl g tXlI. 249). Dying declarations — Impending deatb. 

Approred in Iowa v. Dennis, 119 Iowa, 690, 94 N. W, 236, f©l- 

w\Dg rule; Newlierry v. State, m Ark. 357, 58 S. W. 351, admit- 

: statement implicating defendant as dying declaration wliere. 

^Ue decedent was lying on ground mortally wounded, graiid- 

Itlber requested bystanders to " listen to blm while lie tells how 

tkJip|»e&ed. before be dies.'' 

Sjl 9 (XII, 249), Dying declarations received with caution. 
Approved in State v. Jeswell. 22 R. I. 140, 46 AtL 407, admit- 
\ statement made to coroner as dying declaration which com- 
' I. A. B.. being In fear and exp€M?tatIon of death do 
^■ttde the foUowing statement as my dying declaration/' etc. 

■^«^. a 15S-1G2, 36 U 922. ROBY v. COLEHOUR. 

H SfL 1 (XII, 249>. Record must show Federal iiueKtion. 

^^ft Approred In Home for Incurables v» City of New York, 187 U. 

^■B]fi6, 2:^ s^up. €t 84, m, 47 L. 119, upplying rule where State Judg- 

^^iPttt alle^i'd lo deny Federal right. 

*il C. 8, IC^im 3C L. 925. MORLEY v. LAKE SHORE, ETC., 
HT, CO. 
m 1 jXII, 250). Impairment of contract — Reduction of loterest 

Alproted Id Swann v. Mutual Reserve Fund Life Assn., 100 

^^K®, holding fact that State laws required foreign Insurance 

^■5wi» licensed to do business in State to subject themselves 

'•*il therein does not give policyholder right to sue In State 

^*l If Ur Ucenae revoke<i; State Sa\ings Bank v. Matthews, 123 

^ eo, 81 N, W. 919, holding act No. 200, Public Acts 181KJ. 

^•filOf foreclosure law by sbortenfng time to decree sale and 

•^ «f ledempUon does not Impair existing contract; Wyoming 

^Bwik ▼, Brown, 9 Wyo. 156, 61 Pac. 465, holding as to judg- 

^^exlftlng when act of 1895, reducing Interest on judgments, 

'"luied, new rate applies only from time of passage of law. 

W. 5 iXn, 250). Courts — State courta construe State statutes. 

proved In Blackstone v. Miller, 1S8 U. S, 203, 23 Sup, Ct. 277. 

[* 1444, upholding Imposition of tax under New York Inheritance 

t itw, on transfer under will of nonresident of debts due de- 

by re«Ident8 of that State; Richardson v. Woodw^inb 104 

^ holding bankruptcj courts In determining claims of 



146 U. S. 162-179 Notes on U. S. Reports. 

bankrupts to exemptions under State laws will follow State const 
tion of such laws; Southern Ry. Co. v. North Carolina, etc.. Cod 
99 Fed. 165, holding where Federal has independently of S^9 
court rendered decision different from State decision In detercza 
ing implied repeal of State statute It will recall decision in ^m 
erence to later State decision; Clari^sburg, etc., Co. v. Clarksb ^ 
47 W. Va. 747, 35 S. E. 997, holding, under West Virginia stalr^^ 
governing cities, grant by city of nonexclusive privilege of <^ 
pying streets for conveyance of electricity for public use is ^p^ 
contract 

Syl. 3 (XII, 250). Interest depends on statute in absenc^H 
contract 

Approved in Palmer v. Laberee, 23 Wash. 421, 423, 63 Pac. 
221, holding where note drew interest at 1 per cent per m^= 
without any provision therein for interest after maturity, and :^ 
ment entered thereon without recital as to interest, judg :^c: 
draws interest at legal rate which varies according to altera^ ^ 
in statute. 

Syl. 5 (XII, 251). Judgment not contract within contract cL ^ 

Approved in Read v. Mississippi Co., 188 U. S. 739, 23 SuE^* 
849, 47 L. 677, affirming 69 Ark. 367, 63 S. W. 808, holdings 
March 21, 1893, providing that county warrants or other evid»^= 
of county indebtedness shall not thereafter bear interest do^J^ 
impair contract obligations. 

Distinguished In Cassard v. Tracy, 52 La. Ann. 847, 27 So- 
holding Const. 1808, conferring jurisdiction on courts of &<= 
over questions of fact, did not operate retrospectively so 3.- 
requlre such courts to sot aside judgments previously rendered. 

Syl. 6 (XII, 251). Interest on judgments not dependent on 
tract. 

Approved in Stanford v. Coram, 28 Mont 293, 294, 72 Pac. ^ 
upholding Laws 1899. p. 116, reducing rate of Interest on Judgm^^ 
so that judgment rendered prior to Its passage bore reduced ^^ 
after its passage. 

Distinguished In dissenting opinion in Evans-Snyder-Buel 
V. M'Fadden, 105 Fed. 306, majority upholding 29 Stat. 510, cl^ 
136, amending Mansf. Dig., § 4742, as in force in Indian Terrlt-^ 
and validating recorded chattel mortgages on property of n^ 
residents, though retroactively applied. 

Syl. 7 (XII, 251). Due process — Changing interest on pt^ 
judgment 

Approved in Evans-Snider-Buel Co. v. M'Fadden, 105 Fed. ^ 
300, upholding 29 Stat, 510, chap. 136, amending Mansf. Dig., S ^^ 
as in force in Indian Territory validating recorded chattel mo* 
gages on property of nonresidents, though retroactively applie(^ 



^ 



Notes on D. S. Heports. 146 U. S. 179-195 






*Ml 25!i), Miscellaneous. 

Cited la Gates v. Parmly, 191 U. S. 557, dlsmlsslag for want of 

--^r. & 179-183, 36 L, 033, HARDEE v. WILSON. 

$rl 1 (XII, 251), All parties must appeal from Joint judgment 

Approved In Loveless v. Ransom, 107 Fed. 627, reaffirming lule; 

'taJkner t* Hutcbins, 126 Fed. 363, holding separate appeal by 

party from joint decree against blm and others cannot be 

itained witbout notice to otber defeodauts; Kidder v. Fidelity 

etc., Co., 105 Fed, 823. ti is mis sing appeal by one of several 

iterreners wbere only complainant and receiver of one of several 

^endanta cited; Ayers v, Folsdorfer, 105 Fed. 739, dismissing ap- 

by one of defendants In ejectmeat under State sl^tnte author* 

iog joinder of oJl persons claiming title in land and plaintiffs 

title In themselves by distinct titles; The New York, lOi 

5€3» holding sureties on stipulation for release of vessel smzed 

coiUsiou suit need not be joined in appeal taken by claimant; 

Island, etc. R. R. Co. v. Sweeney, li>3 Fed. 347, holding. 

S. Dak. Seas. Laws 1803, chap, 116, § 4. relating to foreclosure 

mechanics* liens, all defendants must be Joined in appeal; Capi- 

WC. Investment Co. t. Babcoek, 28 Tex. Civ. 472, 67 S. W. 429. 

where one of several defendants who have Identical inter- 

iB^^ la reversing judgment appointing receiver, flies transcript 

^iTtir mbmlssion of appeal by another, costs will be taxed against 

Utt Uiough other appeal reverses Jiulgmeiitj In re Luscombe*s 

'^^IW Wis. 194, 195, 85 N. W. 343, 344, holding one of two execu- 

^'^ aay alone appeal from order of distribution by making co- 

•*^tor party defendant; In re Key. 189 U, S. 85, 23 Sup. Ct. 

^** L T21. arguendo. 

f^Ungulsbetl in In re JeraJson Mercantile Co.. 112 Fed. 9a0, bold- 

^'ii'Te creditors* petition for adjndlcatlon of bankruptcy basi 

^ iliflnStsed, and several other creditors Join in petition for 

^i^^^ft 'Nttifmeat, one of such creditors may, under bunkruptcy act, 

'«^ petition for review of order of denial without joining others. 

^*tr.&. 183^195^ ae l, 934, cook v. uart. 

^^ 1 (XIl, 252), Courts — Taking prisoner by force to another 

%wrttS to People v. Hyatt. 172 N, Y. 181, 04 N. E. 826, 92 

* 8t Hep. 708» holding fact that person not actually present 

^'MeitUnje of commission of alleged crime was sulKsequenliy 

tto8tate for single day nearly a year before in»litulion of 

pP*Mla|9 against him, does not make him fugitive; Scbmulbach 

^%^ SO W. Va, 568, 40 S. E. 430, lioldlng where presiding 

' «f llfsi branch of municipal council has sergeant-at-arms 



14(5 U. S. 19G-210 Notes on U. S. Reports. 

bring in unwilling members of that branch to joint session, 
cers elected by majority of all members of joint session are le 
elected though majority of first branch refuse to vote. 

Syl. 3 (XII, 253). Habeas corpus before trial. 

Approved in Minnesota v. Brundage, 180 U. S. 502, 45 L. 64 
Sup. Ct. 456, dismissing application for habeas corpus \< 
accused imprisoned under State judgment has not exhausted I 
remedies. 

Syl. G (XII, 253). Federal habeas corpus — State remedies. 

Approved in Davis v. Burlie, 179 U. S. 402, 45 L. 251, 21 
Ct. 211, holding Federal court will not grant habeas corpus v 
no claim of Federal question made in State court or no ha 
corpus sought there. See 92 Am. St Rep. 732, note. 

Distinguished in Hyatt v. Corkran, 188 U. S. 715, 23 Sup. Ct 
47 L. G62, holding one who was not in demanding State at 
stated in indictment nor at any time when acts were commi 
is not fugitive from justice. 

Syl. 9 (XII, 254). Extradition — Determination by gov«m 

Approved in People v. Hyatt, 172 N. Y. 188, 65 N. E. 829, 92 
St Rep. 714, holding action of governor in issuing warran 
extradition is reviewable on habeas corpus. 

(XII, 252). Miscellaneous. 

Cited in People v. Hyatt, 172 N. Y. 184, 64 N. B. 827, 92 An 
Rep. 710, cited as being ah appeal from District Court. 

146 U. S. 196-201, 36 L. 940, STOTESBURY v. UNITED STA 
Syl. 1 (XII, 254). Finality of revenue commissioner's decisi 
Approved in American School of Magnetic Healing v. M*AnE 

102 Fed. 5GG, holding, under 2G Stat 466, order of postmastei 

eral directing all letters addressed to certain party to be reti 

to senders is not in excess of authority. 

146 U. S. 202-210, 3G L. 942, SOUTHERN PAC. CO. v. DENTC 
Syl. 1 (XII, 254). Allegation of residence not equjvalei 
citizenship. 

Approved in Gale v. Southern Bldg., etc., Assn., 117 Fed. 
holding, under amendatory judiciary act of March 3, 188' 
Stat. 552), suit may be maintained against foreign corporati< 
district of plaintiff's residence where there has been servic 
agent of corporation appointed under State statute; Pacific 
Life Ins. Co. v. Tompkins, 101 Fed. 545, denying juriJklictl< 
Federal court in West Virginia where plaintiff, who had 
citizen of West Virginia, moved into Virginia, where he re 
and voted for several years, and later decided to returp and r 
house, but commenced suit prior to actual removal. 



^ 



Notes on U. S. Reports. 146 U. S. 2C£-210 



^Jl 12 XU* 254). Jurisdiction over foreign corpo ration. 

^Wrored in Gastonla Cotton Mfg. Co. v. Wella Co., 128 Fed. 

**^ hoMlDg corporation which under its charter bas not jet been 

**%jiJid lawfully created caimot ruauitalu suit in Federal courts 

'^teUlttt foreign corporation; Eddy v. Casas, 118 Fed. 3r>5. holdiog 

^••iy citizen against alien residing Iti State in wUicli suit broiic^iit» 

*^ removable on ground of alienage under 25 Stat 434, § 2. See 

^ jUd. SL Rep. 919, note. 

9ji 3 iXlL 255). Waiver of objection to jurisdlctloa by appear- 
■*« qr answer. 

Approred In Fosba v. Western Union Tel. Co.. 114 Fed. 702. 
If general appearance waives objection to being sued In 
^ district under 25 Stat 433; Piatt v. Massacliusetts Ilea! 
fcitiie Co., 103 Fed. 706, holding compliance by corporation with 
^Ittute of another State, requiring corporations to appoint resident 
•Homey upon whom service shall be made, is not consent to suit in 
ted^ral court in such State by plaintiff who ia rc?sidcut of another 
telct; ^ott r. Hoover, 99 Fed. 250, hold lug demurrer on ground 
ttit complaint does not state cause of action is waiver of objec- 
ttai to Jtirlsdlction; Lowry v. Tile, etc., Assu,, 98 Fed. 822, 823, 
kiiding demurrer to merits as well as to Jurisdiction Is general 
ipS>ejinLiice. 

KyL 5 <XIl, 25i3). Answer after demurrer to jurisdiction over* 
nilfrd— Not waiver. 

Approved in Pacific Mut. Life Ins. Co. v. Tompkins, 101 Fed. 542, 
tiMlng objection that action not brought in district where either 
|»ny retides not waived by defendant by attending at taking of 
4ipci8ltloii8 Uy plaintiff before issues made; Lowry v. Tile, etc., 
Amml^ D8 FeiL 823, holding demurrer to merits as well as to jurisdic- 
Eioo U general appearance, 
SjrL 7 iXll, 25t»). Law requiring foreign corporation to surrender 

A|yprfiTed in Barnes v. Western Union Tel. Co., 120 Fed, 552, 
I corporation which is citizen of New York and carries on Its 
through agent In Georgia, may be sued tluue by citizen of 
and service may be made on local agent; Debnam v. 
iMtlMnv etc., Tel, Co.. 12ti N. C. 841, 30 So. 272, holding Acts 
UD9. eliap. 62, domesticated foreign corporations so that such cor- 
pvfttlotis cannot remove suits to Federal courts on ground of 
ilWM dtlienshlp. 
iyL 8 (Xll^ 256). Deprivation of corporation's right to remove 




Approved in In re Magid-Hope Silk Mfg. Co., 110 Fed. 3S3, up* 
: tssTlce In bankruptcy proceedings against foreign corpora- 




14»J U. S. 210-251 Notes on U. S. Reports. 284 

tion on commissioner of coi'porations of State; Piatt v. Massachu- 
setts Real Estate Co., 103 Fed. 707, 708, holding compliance by cor- 
poration with statute of another State, requiring corporations to 
appoint resident attorney upon whom service shall be made, is 
not consent to suit in Federal court in such 3tate by plaintiff who is 
resident of another district; United States Life Ins. Co. v. Coble, 
08 Fed. 767, upholding Federal Jurisdiction over suit by insurance 
company for cancellation of policy, where it is shown that if 
attempts to remove State action brought on policy, it will, under 
State laws, forfeit license to do business in State. See 85 Am. 
St Rep. 919. 921, notes. 

Syl. 11 (XII, 257). State practice where Federal law exists. 

Approved in Mexican Cent. Ry. Co. v. Duthle, 189 TJ. S. 78, 23 
Sup. Ct. 610, 47 L. 717, upholding power of Chrcuit Court to per- 
mit petition to be amended after judgment entered. 

146 U. S. 210-227. Not cited. 

146 U. S. 227-232, 36 L. 951. WASHINGTON, ETC., E. R. CO. T. 
DISTRICT OF COLUMBIA. 

Syl. 3 (XII, 257). Amount in controversy. 

Approved in Oregon R. R. & Nav. Co. v. Shell, 125 Fed. 980. 
denying Circuit Court's jurisdiction over suit to correct ambiguity 
in deed to right of way and to restrain removal of gates at cross- 
ings, where value of realty and damages accruing to adjacent 
property do not exceed $2,000; Hutchinson v. Otis, Wilcox, etc., 
Co., 123 Fed. 10, arguendo. 

146 U. S. 233-230. 3(> L. 953, JUNGE v. HEDDEN. 

Syl. 2 (XII, 25S). Tariff — Word "article" defined. 

Approved in MeBrantuey v. United States, 99 Fe<l. 424. holding 
linen doilies under four and one-half ounces to square yard are 
woven fabrics of flax, dutiable under act 1897, par. 346, last clause; 
Unitetl States v. Eschwege, 98 Fed. 602, holding sheets of celluloid 
poli8he<l on both sides dutiable under clause 3, paragraph 17, tariff 
act 1807, as ** finished or partly finished articles." 

146 U. S. 240-251, 36 L. 956, THOMPSON v. ST. NICHOLAS 
NAT. BANK. 

Syl. 1 (XII, 258). Only government can forfeit banlc charter. 

Approved in Scott v. Deweese, 181 U. S. 211, 45 L. 827, 21 Sup. 
Ct. 588. holding where national bauli issued certificate of increased 
stocli without approval of comptroller, does not relieve shareholder 
who became such by paying amount subscribed by him, from 
Individual liability; Blodgett v. Tanyon Zinc Co., 120 Fed. S86, 
holding private citizen eanuot plead failure of foreign corpora- 
tion to comply with State statutes as defense to action on con- 



Notes on U. S. Reports. 14G U. S. 252-271 

; Battey t. Bank, 62 Kan, 392, 03 Pac. 439, holding If bank 

Lolder becomes liable to bank as principal, surety or other- 

fln debts not incurred on security of stock, bank entitled to 

<Ni his stock for such debts as are due and unpaid. 

Dtfitlngrulshed in Buffalo German Ins, Co. v. Third Nat Bank, 

1«2 N- X, 1G9, 175. 5G N. E. 523, 525, liolding national bank not 

fSiUtled as against bona fldc purchaser to equitable lien on Its 

for debt due by Ftockbolder to bank. 

'L S (XII, 259>. Effect of invalidity of bank's debt on security. 

kpvffoyed in Hallett v. New England Roller-Grate Co.. 105 Fed. 
221, boldlng where one purchases stock at iess than par value. 
iCatole prohibiting sale at less than par, may recover money paid 
certificate declared void; In re Worcester County, 102 Feci 
liolding violation of statutory provisioBS in regard to mode 
if making contracts by counties, designed for their protection, 
may be waived by county, and cannot be urged by other party to 
Meat contact; National Bank, etc.. Loan Co. v. Fetrie, ISO U< S. 
d 23 Sup. Ct 513. 47 L. 881, arguendo. 

we r. S. 252-258, 36 L. 961, TOPLITZ v. HEDDEN. 

$yL 3 iKII, 259). Objection to evidence must specify grounds. 

Approved In Merchants' Ins. Co. v. Buekner. 110 Fed. 340, and 
ir«neni Union Tel. Co. v. Burgess, H)9 Fed. 30, both reaffirming 
rakt; Peirsons v» Beling, 110 Fed. 878, holding mere interposition 
•f tlie word "objection" in depositions, or the statement that 
one or the other party excepts, la not sufficient to raise questions 
OB bearing. 

8jL S (XJI, 259), Tariff — Commercial designation. 

Approve In Nordlinger v. United States, 115 Fed. 830, holding 
kfiboni dtron classified as dried fruit under paragraph 704 of act 
Bf 1883, girlng it free entry; reversed In 121 Fed. 690. 

Btmngiiished in United States v. Nordlinger, 121 Fed. 092, hold- 
lag teghoro citron taxable as "fruits preserved in sugar" under 
mm act 1883, par. 302. 

m tJ, 8, 258-271, 36 L, 9<]3, HAMILTON GAS, BXa. CO. v. 
HAMILTON CITY. 

8yL 1 (XII, 260). Impairment of contracts — Unauthorized city 
wtiotnce 

Approved In 8t- Paul Gas Light Co. y. St Paul, 181 U. S, 148. 
I* L T92* 21 Snp. Ct 577» holding ordinance commanding removal 
«< |ii ttrcet-lamp posts which are no longer i3se4, and declaring 
teno iQtereat will thereafter be paid to gas company on account 
^ndl poata, does not impair obligation of contract whereh> city 
to pay interest on their cost; Mercantile Trust, etc., Co. v. 



146 U. S. 271-279 Notes on U. S. Reports. 286 

Collins Park, etc., Co., 99 Fed. 815, holding under Georgia Con- 
stitutlon, prohibiting legislature from authorizing construction of 
street railroad in city without consent of corporate authorities, 
ordinance granting franchise is law of the State within contract 
clause of Federal Constitution; dissenting opinion in Freeport 
Water Co. v. Freeport. 180 U. S. 609, 45 L. 692, 21 Sup. Ct. 502. 
majority holding contract giving water company right to charge 
certain rates for thirty years without Interference by new ordi- 
nances changing rates, not authorized by 111. acts of April 9, 1872. 
and April 10, 1872. 

Distinguished in American, etc., Co. v. Home Water Co., 115 Fed. 
178, upholding Federal jurisdiction over suit to restrain enforce- 
ment of city ordinances on ground that they attempt to annul 
franchise granted by prior ordinance; Southwest Missouri Light 
Co. V. City of Joplin, 113 Fed. 822, holding city ordinance passea 
under presumed authority from State, providing for erection of Its 
own lighting system in competition with private company In viola- 
tion of implied terms of contract made by prior ordinance granting 
franchise to such company, is law impairing contract obligations. 

Syl. 2 (XII, 2G0). Contract obligations — Empowering city to 
own gas-works. 

Approved in Riverside & A. Ry. Co. v. City of Riverside, 118 Fed. 
740, 743, upholding Federal jurisdiction over suit to enjoin city 
from carrying into effect resolution declaring intention to discon- 
tinue furnishing electric power to complainant under contract; 
Los Angeles City Water Co. v. City of Los Angeles, 103 Fed. 71G. 
upholding Federal jurisdiction over suit by water company to en- 
join municipal ordinance lixing water rates on ground of Impair- 
ment of contract, tlioiij^li contract has expired where it Is alleged 
to be still in force; Nowl)uryport Water Co. v. City of Newburyport, 
103 Fed. 587, 588, 390, holding where legislative franchise to erect 
water-works to supply city with water is not exclusive, subse- 
quent grant to city of ri^lit to i)uild competing works is not taking 
of corporation's property or franchise without due process. 

Syl. 3 (XII, 2(30). Acceptance of grant subject to reserved 
revocation. 

Approved in Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa. 
^57, 91 N. W. 1089, holdinjj where city could not legally grant 
exclusive right to furnisli water for longer period than twenty-five 
years, though company exercised right after expiration of term. 
city could collaterally attack existence of company's rights io 
injunction suit; Deposit Bank of Owensboro v. Daveiss Co., 102 
Ky. 187, 39 S. W. 1033. upliolding Ky. Const., § 174, changing mode 
of taxation of banks which had accepted provisions of Hewitt act 
of 188(5. 

146 U. S. 271-279. Not cited. 



2s; 



Notes on U, S. Reports. 140 U. S. 270-324 



m r. 8, 27MQ2, 36 L. 972, WILMINGTON. ETC., E. R. r. 
ALgBROOK. 
Sjl 1 IXII, 261). Tax exemption never presumed, 
ipproved in dissenting opinion in Jaclison v. Corporation Com- 
D, 130 N. C, 425. 427, 42 S. E. 137, 138, majority Voiding, 
■ Hts iOOl, cbap. 7, corporation commission wot reqyireti to 
- :: iiad franchises separateiy from tangible property before 
. "ku. aiKspuiiug opinion In Citizens' Banii v. Parlier. 192 l\ S. 87, 
-1 Sup. Ct. l&G, majority holding exemption of bank ebarter from 
raxation iDoIuded exemption from license tax. 
^jl, 4 (XII, 2«}2). Scope of tax exemption of main line. 
ApiJrored In Chicago Union Traction Co. v. Chicago, 190 III. 535, 
<B X, EL 466, holding corporation organized under general incorpo- 
ntion act to lease and operate street rail roads , cannot claim priv- 
Oli^ of exemption from rate regulation possessed by lessor. 
Sfl 7 (XII, 262K Judgment as res adjudlcata. 
Approved In Union, etc., Bank v. Memphis, 111 Fed. 570, hold- 
Iftg where by St.i.te law judgment was only conclusive for Identi- 
iml tAXt?8 adjudicated, State judgment construing bank cburter 
it cutiupt from taxation is not res ad judicata as to cLiim for 
i ilb i t <Hient taxes; Thayer v. Kttnsas Loan & Trust Co., ItiO Fed. 
KM, holding where-, in foreclosure by assignee of mortgagee, latter 
tted cross-bill for recovery of payments made for taxes and in- 
wriace opon premises, and plaintiff pleaded mortgagee*s guar- 
ifity to protect plaintiff from all defects in title, Judgment on cross- 
bill Iti favor of mortgagee Is bar to subsequent action against mort- 
Plfte on guaranty; City of Newport v. Commonwealtb, 1()G Ky, 
145, 450, 50 S. W. 84S, 51 S. W, 434, holding adjudication upon 
Eiihfltty for taxes for one year no bar to action for taxes for 
mtwwioeiit yeur, where its adjudication did not result from contract 
firtaption. 

»** U. a 30^-514, 36 L. 981, BUTLER v. GORELEY. 

^yl 4 (Xn, 203). Insolvency law ^Repeal of bauliruptcy act. 

Approved In Carling v, Seymoyr Lumber Co., 113 Fed. 4.S8, 180, 
*^diDg proceed! ngB under Georgia insolvency law. providing for 
^K«<rtbiiilon of assets of insolvents, are void after iMssafze of 
teairuptcy act; In re Worcester County, 102 Fed. HUX holding. 
cfi*I^f bankruptcy act 18D8, §g 1, 64, county in Massachusetts whicb 
ie Insolvency laws la made preferred creditor of insolvent. 
- -hnUwI to priority as to claim due county from a banlirupt. 

I«U. 8, 814-.^4, 3« L. asn. HALLINGEU v. DAVIS. 
»|t. 1 <X1I. 2C3). State law waiving jury triaL 

'^^ved in Mallctt v. North Carolina. 181 U. S, 5(10. 45 L. 102O, 
Ct 734, ophotdmg N. C. act of March G, 18i>9, allowing 



14G U. S. 325-338 Notes on U. S. Reports. I 

appeal to State from court of one district but not from anot 
district of the State, in case of the grant of new trial to an accui 
person; State v. Tucker, 36 Or. 294, 61 Pac. 895; Maxwell v. D< 
176 U. S. 584, 44 L. 598, 20 Sup. Ct. 450, and Boiler v. Nebraska, 
U. S. 86, 44 L. 383, 20 Sup. Ct 288, all upholding prosecution 
felony by information; dissenting opinion in Scran ton v. Whec 
179 U. S. 180, 45 L. 144, 21 Sup. Ct. 64, majority holding govemm 
pier on land submerged under navigable water, title to whieb 
owned by riparian owner, when erected* to improve naviga 
water, though it destroys owner's right of access to naviga 
water, does not entitle him to compensation. 

Syl. 3 (XII, 264). Plea of guilty of homicide. 

Approved in West v. Gammon, 98 Fed. 429, upholding convict! 
under Rev. Stat., §§ 3279, 3281, on plea of guilty; People v. Che 
Lan Ong, 141 Cal. 552, 75 Pac. 187, upholding Penal Code, S 111 
conferring power on court to determine degree of crime upon pi 
of guilty. 

146 U. S. 325-338, 36 L. 991, BENSON v. UNITED STATES. 

Syl. 1 (XII, 264). State may cede jurisdiction. 

Approved in United States v. Lewis, 111 Fed. 631, followl 
rule; Nowcomb v. Rockport, 183 Mass. 78, 66 N. B. 589, holdi 
town having provided on mainland sufficient school facilities for 
children entitled to attend public schools, is not bound to bu 
schoolhouse on an island oflC coast. 

Syl. 3 (XII, 265). Federal jurisdiction over Fort Leavenworth. 

Approved in United States v. Tucker, 122 Fed. 521, uphold! 
exclusive Federal jurisdiction over crime committed on lock No 
on Green river, Kentucky. 

Syl. 7 (XII, 2G5). Joint defendant as witness after severance. 

Approved in Williams v. State, 42 Fla. 207, 27 So. 899. boia 
accomplice jointly indicted, and as to whom judgment is pend. 
can testify against codefendant who is being separately tr- 
People V. Van Wormer, 175 N. Y. 194, 67 N. E. 301, holding 
jointly indicted with other defendants on trial for murder is c: 
potent witness for prosecution against them where he is no'^ 
trial at time, though indictment against him is still pending; 
senting opinion in Wolfson v. United States, 102 Fed. 146, majC3 
holding, under 20 Stat. 30, one of two defendants jointly inrfl< 
and tried may, at his own request, be examined as a witness by 
government. 

Distinguished in Wolfson v. United States, 101 Fed. 438, 4 
holding, under 20 Stat. 30, one of two defendants jointly indlcl 
and tried may, at his own request, be examined as a witness 1 
the government. 



Kot€8 on tJ. 8. Reports. 14a V, S. 33S-3S7 

C, I 338-S54. 36 L. 99G, UNITED STATES v. DUNNINGTON, 

5jlT(Xn. 265), Deposit in court by government. 

ippwFed In United States v. Elsenbeis, 112 Fed, 19i), holding 

*W of award in condemnation proceedings In government 

^^ gate effect to State judgment rendered in favor of third 

i^OB uid agalnat landowner to recover land, 

'<« U. S. 354^359. Not cited. 

tl*» U. a 3C0-362, 36 L. 1007, McilULLEN v, UNITED STATES, 
FBjl 1 (Xll, 266). ** Session ** — Compensation of marsbal 
Uwroved In United States v. Nix. 189 U, S. 203. 23 Sup, Ct. 407. 
1 1 777. holding where Federal court is opened for business by 
**<Jf of Judge, marsbal attending Is entitled to compensation there- 
ft». wbetber judge be present or not; United Stales v, Dietrich. 126 
^iW>, holding, under Rev. Stat,, | 1038, Circuit Court has juria- 
Woa to proceed with cause remitted at current term. 
%l 3 (XII. 266). Revlewabiilt J of marahars allowed account 
Al>proved In United States v. Nix. 1S9 U. S. 206. 47 L, 777. 23 
% Ct 407. holding marshal's account uiay be impeached for error 

^tJ' 8. 363-^70. Not cited, 

' ^^ 8. 370-3S7. 36 L. 1011, LEWIS v. UNITED STATES, 
pyJ- 3 iXlI, 267)* Record — Presence of prisoner when jurj 

%»?«! hi United States v, Davis, 103 Fed. 460, holdings after 
^*ttl beMi accepted by both sides and has tiiken his seat In 
^ *•**. lie may. on announcing himself as feeling disqualified to 
*^ **P»nlally, before being sworn, he directed by court to stand 



' i (Xll, 267). Federal courts follow State statutes In select- 

^»ed In United States v. Davis, 103 Fed. 4m, holding, after 
riiu been accepted by both sides and has taken his seat in the 
' ^ ttHif. upon announcing himself as feeling disqualified to 
^ ^INirtlally, before being sworn, be directed by the court to 
^*uide. 
[^T(XU, 267). General exception to method of choosing jury. 
I^W In Baggs V. Martin, 108 Fed, 34, following rule; 
V. Hall Capsule Co,, 101 Fed, 548, holding general 
to charge as whole which does not direct attention of 
f to particular portions to which objection Is made, raises no 
^ for review. 
Vol 111 — 19 



146 U. S. 387-476 Notes on U. S. Reports. 

146 U. S. 387-i76, 36 L. 1018. ILLINOIS CENT. R. R. v. ILLIN 
Syl. 1 (XII, 268). States admitted equally with original. 
Approved in Mission Roclc Co. v. United States, 109 Fed. 
holding title to tide lands in San Francisco Bay passed to Califi 
on its admission to Union, with right to grant right to use t 
Syl. 3 (XII, 268). Sovereignty over lands under Great Lak 
Approved in Mission Roclc Co. v. United States,- 109 Fed. 
holding title to tide lands in San Francisco Bay passed to 
fornia on its admission, with right to grant to others right t:< 
them; dissenting opinion in Kean v. Calumet Canal Co., 190 
481, 482, 23 Sup. Ct. 660, 47 L. 1146, majority holding pate 
Indiana under swamp land act, which describes lands as wlic 
fractional sections enumerated in official plat, convey to extei 
full subdivisions land under navigable waters on which sucb 
tious border. 
Syl. 5 (XII, 269). Illinois Central's rights to lake front 
Distinguished in Chesapealie, etc., R. R. Co. v. Walker, 100» 
84, 85, 40 S. E. 638, 639, holding canal company could acquire 
to land by accretion where it had previously become riparian o« 
through condemnation. 
Syl. 12 (XII, 269). Right of riparian owner to wharf out 
Approved in Sullivan Timber Co. v. City of Mobile, 110 ' 
197, holding city of Mobile, having given implied license to ripa 
owners to construct wharves, is estopped from asserting claini 
tide lands which would dispossess such licensee; dissenting opi 
In Scranton v. Wheeler, 179 U. S. 179, 45 L. 143, 21 Sup. Ct 
majority holding riparian owner not entitled to compensation 
cause government pier erected on submerged land, owned by 
for improvement in navigation, destroys his access to navig 
water. 

Distinguished in Cobb v. Commissioners of Lincoln Park, 
111. 435, 67 N. E. 8, holding riparian owner has no right to € 
wharf on submerged lands which, by Laws 1895, p. 282, f 
granted by State to Lincoln Park commissioners. 

Syl. 13 (XII, 270). State's title to lands under navigable wat 
Approved in United States v. Mission Rock Co., 189 U. S. ' 
23 Sup. Ct 609, 47 L. 870, holding grantee from California to i 
merged lands in San Francisco Bay had good title to lands gran 
except Mission Rock; Illinois Cent. R. R. v. Chicago, 176 V. 
659, 44 L. 627, 20 Sup. Ct. 514, submerged lands along Bhon 
Lake Michigan not included in grant to Illinois Central by cha 
authorizing it to enter upon and use "any lands, streams, 
materials of every kind;*' Bliss v. Ward, 198 111. 114, tf4 N. H. 
holding neither armory nor other erections could be placed on U 



Hi 



Notes on U. S. Reports. 146 V, S. 387-476 



*^Uke Park; IIUdoIb, etc.. Co. v. Bilot, 109 Wis. 427, 84 N, W. 

^i M\ng on admission of Wisconsin it took in trust title to 

'■•^eoirered by high-water msLVk. 

%^MiXn, 270). States grant lands under navigable waters. 

-ippfOT^d Ui lUinois Cent H. R. 7. Chicago, 176 U. S. (M50, 44 L. 

^^. 3B8up. Ct. 514, holding submerged lands along shore of Lake 

^^ciJgsn 0ot Included in grant to I!lluois Centra! by charter 

•Otiflrtiiag It to enter upon and use *' any lands, streams and 

^■^terillfl of every kind;" Stoekley v. CIssna, 119 Fed. 836, hold- 

■^^rmiit by State of land under bed of Mississippi, which became 

^to? hj ftudden change in course of river, Is void as not being 

'•^oitland within Tena. Acts 1S47, chap. 20; Sullivan Timber Co. 

^* Qty af Mobile, 110 Fed. 194, holding city of Mobile, having 

K^T« license to riparian owner to construct wharves. Is estopped 

***at««rting claims to tide lands which would dispossess such 

■«»«e; Shepard's Point L. Co. v. Atlantic Hotel, 132 N. C. 525, 

^8.E41. holding where State granted riparian owners lot In 

^•JW In front of their lands between high-water mark and deep 

^*^, gnntees took only easement to erect wharves and got no 

^tobed of harbor. 

^<«UngaIshed in Mobile Transportation Co. v. Mobile, 187 IT. S, 
*^. at Sup. Ct 175, 47 L. 272. holding Alabama act of January 

* 1881, conveying to city of Mobile shore and soil under Mobile 
^. does not Impair vested rights of owners of grants bordering 

• Ui*il(? river; Lamprey v. Danz, 86 Minn. 322, 90 N. W, 5S0. 
^^'•dtof graL&t by State of lands granted to it by government as 
"•wsp Iftnde, which lands were not meandered, and were useless 

^tH ^'^ for banting. 

;pB 'niSfXlI, 27H. Rtate cannot abdicate public trust 
1^1 %0Ted In Snouffer v. C. R. & M. City Ry. Co., 118 Iowa, 305, 
*-'^'. W, 86, holding where city ordinance ordered street railway 
**»toi>Te tracks to middle of street to ballasted strip elevated 
w"8 drt^eways on either side, it eould later repeal ordinance and 
^ tnckfi lowered to grade: State v. I^ike St Clair Fishing, 
^-Shooting Club. 127 Mich. 504, 505, 506, 598, 87 N. W^ 123, 124, 
^'^^ whfTe swamp land granted to State limitations did not 
•19*toftm In favor of adverse holder until date of their survey; 
^'•Wflw V. State. 114 Wis. 186, 89 N. W. 844, 91 Am. St. Rep. 
^W<Miig void traws 1901, chap, 470, prohibiting taking of ice 
^Wj laeAtidereil lake except on payment of license fee: dis* 
•"*% 0(Uaion In I^ulsvllle & Nashville R, R. Co. v. Commoii- 
^•Itfc, 108 Ky. 649, 57 S. W. 514, majority holding railroud may 
'^•Jlf len for hauling coal used for manufacturing purposes than 
^ *i)ti QMd for domestic purposes. 
^tOfulahed in McConnell t. Arkansas Brick Xlfg. Co., 70 ArL 




146 U. S. 476-499 Notes on U. S. Reporte. 2 

580, 591, 593, 69 S. W. 563, 567, 568, holding contract by sup< 
intendent and financial agent of penitentiary, approved by pej 
tentiary commissioners, to furnish convict labor, not invalid becan 
for period exceeding terms of such officers. 

Syl. 16 (XII, 271). Police power — Use of submerged lands. 

Approved in Portland v. Montgomery, 38 Or. 224, 62 Pac. It 
holding city may prohibit establishment of wharf beyond certa 
line where such line is within line fixed by war department. 

Syl. 18 (XII, 271). Chicago's riparian rights on lalce. 

Approved in Bliss v. Ward, 198 111. 109. Ill, 64 N. E. 705, 7C 
holding neither armory nor other erections could be placed on laa 
of Lalie Parlt; Shirlc v. Chicago, 195 111. 310, 63 N. E. 198, holdk 
Chicago is owner of fee of street dedicated to and accepted 
town prior to incorporation of city. 

(XII, 2G8). Miscellaneous. 

Cited in United States v. Rio Grande Dam & Irrigation Co., 
U. S. 424, 46 L. 023, 22 Sup. Ct. 431, holding where record does 
contain evidence of material character without which final de^ 
upon record cannot be rendered without injustice, cause will b^ 
manded with leave to adduce further evidence; Illinois v. Illi 'm 
Cent. R. R. Co., 184 U. S. 78. 79, 87, 89, 46 L. 441, 442, 445, 44L5 
Sup. Ct 300, 301, 304, discussing history of litigation and explain: 
decision; Jaquith v. Alden, 118 Fed. 272, holding where record ^ 
to show facts essential to enable to decide cause, it will re^< 
and remand of its own motion; Shirk v. Chicago, 195 111. 3(X), • 
63 N. E. 194, 105, in statement of facts; Alston v. Limehousc 
S. C. 507, 30 S. E. 101, discussing what are navigable waters. 

140 U. S. 470-483. Not cited. 

140 U. S. 4S3-100. 3(5 L. 1054, COMPANIA BILBAXA DE NAV 
(JATIOX V. SPANISH-AMERICAN LIGHT, ETC., CO. 

Syl. 3 (XII, 272). Charter-party — Invalidity of one clause. 

Approved in Bo wen v. Hart, 101 Fed. 381, holding where OJ 
enp>Kt*d i» loolving up lands owned by another wrote to own 
proposing: tluit he j;et for services one-half of lands or one-thii 
and Ills expenses, otTer not aeeepted where owner answered to | 
ahead and after work finished satisfactory settlement would 1 
made. 

Syl. r> (XI 1, 272). Waiver of objection to charter-party. 

Approved in Ronalds v. Leitcr, 109 Fed. 908, holding wbe 
vessel warrantetl Keawin-lliy brolce down from unseaworthinc 
and charterer al)an(ionetl her for charter purposes and returned I 
to home port and repaired her, charterer not liable for hire aft 
breakdown. 



Notes on U. S. Reports. 146 U. S. 490-^13 

t E R 49M13, 36 L. 1059, SCOTT \r. ARHSTKOXG. 
$jlt {XII, 273). Bonk receiver Is trustee for creditors. 
Apprt>Ted In Lease v. Barscliall, 106 Fed. 763, holding any loss 
ilikt receiver of national bank may sustain by investnjt»nts. In 
[ttdetforlof to save debts of bank, oaunut be made subject of 
i assessment; An ten v. City Electric St Ry. Co., I<i4 Fed. 
<0H boldJng corporation receivers are subject to all claims or 
^itimm which could have been asserted against the corporation; 
t»w Lumber Co, v. Glasgow Invest. Co., ItU Fed. 807, holding 
toUiient of receiver for property upon which buildings are being 
under contract with owner, docs not relieve contractor 
1^ necessity of complying with requirements of mechanic's lien 
Inr. 

J>iittegulshed In At water v. Strom berg, 75 Mltin. 278, 77 N. W. 
Ndlng, In action by national banli receiver on note, after 
^ becomes Insolvent and rights of eredltora vested* defeudaut 
^*«totset up secret agreement with bank president that ho was to 
^^ option of surrendering stock for which note issuedi when 
"ote matured, and having it returned. 
8jL 5 iXII, 273K Equitable set-off. 

Approved In Hutchinson v. Le Boy, 113 Fed. 2tJ4, holding equl- 
*>^fct-otr permitted in bankruptcy proceedings; In re Meyer, 106 
^ SSt holding where bankrupt's assignee disallowed cJalni for 
^wnaiwdatlon notes which had been paid by party who had 
I^^Wthem, such party could not follow proceeds of moneys whlcli 
^Mpaid on iLs own debt to banlvmpt in hands of trustee; Scba- 
Nr T. McDonald, tJO Nobr. 5C»2, 83 N. W, 740, holding satisfaction 
•'JWipinF^nt obtained by national bank receiver In suit to collect 
^MQKfnts satisfies the obligation regardless of the disposition 
^^ of the proceeds of assessment by receiver. 
Itoifulslied in Wiley v. Bunker Hill Nat. Bank. 183 Mass. 
^•i KL E, 656, holding where at time of dishonor of depositor's 
*Mi by bank no insolvency proceedings commenced or asstgn- 
Nl made, bank could not set ofT unmatured notes of such 
%«itlor against Its liability for damages for such refusal. 
jW-T i\U, 274>. Bunks — Set off of account against note. 

pved iQ Nix V. Ellis, lis Ga. 348, 45 S. E. 40*], holding right 

ine claims and use same as set-off agn Inst action by re- 

insolvent corporation, continues up to time of filing of 

Uiion to>T appointment of rei»elver; Colton v. Drovers' Bldg. 

^Jid. 92. 7S Am. St Rep. 435, 45 Atl. 25. holding bank 

ly set off amount of his deposit agjilnst hLs note held 

al which did not njaiure until after npiKiintment of receiver; 

^^«avtan v. Union Trust Co., 130 Mich. 5(nJ, 511, tKJ N. W. 205, 

^<^4las d«*iK>sitof In lusolvetit bank may set off deposit staJidlujir 



146 U. S. 5ia-524 Notes on U. S. Reports. 2U 

to his credit when bank closed Its doors, against his notes payald« 
to the bank but not yet due. 

Syl. 10 (XII, 275). Legal and equitable claims In Federal CQurtc 

Approved in Security Trust Co. v. Blackrlver Nat Bank, 19 
U. S. 237, 23 Sup. Ct. 61, 47 L. 158, holding Federal court cannc 
extend time for presentation of claims beyond time fixed by Pr» 
bate Court where no application for extension made before fin: 
settlement; Langtry v. Wallace, 182 U. S. 550, 45 L. 1225, 21 Soi 
Ct. 583, holding fraudulent representations Inducing one to becom 
stockholder in national bank no defense to action at law by receiv^ 
to enforce stockholder's liability; Jones v. Mutual Fidelity Co., 1:. 
Fed. 518, upholding Federal jurisdiction to appoint receiver for ■ 
solvent corporation on petition of unsecured creditors who have sk 
reduced claim to judgment under 19 Laws Del., chap. 181; Highlai. 
Boy Gold Min. Co. v. Strickley, 116 Fed. 854, holding In ejectme 
in Federal courts equitable defense cannot be presented. 

Syl. 11 (XII, 275). Circuit Court cannot set off at law. 

Approved in Arkwright Mills v. Aultman, etc., Mach. Ck>., %1 
Fed. 196, holding Federal court in Massachusetts will. In sal 
against foreign corporation which had previously brought svf 
against plaintiff, allow judgments to be set off under Rev. Lawi 
Mass., chap. 170, §§ 2, 3. 

146 U. S. 513-514, 36 L. 1064, MITCHELL V. NEW YORK, ETC 
R. R. CO. 

Syl. 1 (XII, 275). Direction of verdict 

Approved in Neininger v. Cowan, 101 Fed. 790, upholding dipw 
tion of verdict in action for injuries at railroad crossing where ev! 
dence disclosed contributory negligence. 

146 U. S. 515-517, 36 L. 1068, BRINKERHOFF v. ALOE. 

Syl. 2 (XII, 275). Patents — Combination of old element*. 

Approved in West Coast, etc., Faucet Co. v. Jackson Brewin 
Co., 117 Fed. 298, holding Anthony and Savage patent No. 468,14 
claim 4, for faucet bushing and valve for barrels, void for antic 
pation; Kmerson Electric, etc., Co. v. Van Nort Bros., etc., Co., 11 
Fed. 977, upholding Weston patent No. 622,247, for improvement 1 
lubricated bearings; Gooclyear Tire, etc., Co. v. Rubber Tire, etc 
Co., 116 Fed. 370, holding void Grant patent No. 554,675, for rublx 
tire wheel. 

146 U. S. 517-524, 36 L. 1070, NATIONAL TUBE WORKS ▼. BAl 
LOU. 

Syl. 1 (XII, 276). Allegations in creditor's suit to reach equltab 
interests. 

Approved in Barber v. International Co., 73 Conn. 593, 48 At 
761, following rule; Frye Bruhn Co. v. Meyer, 121 Fed. 535, h<^4 



Notes on U. 8. Reports. 14G U. S, 524-5GtJ 



^ffasIilBgtan assigned judgment cannot be made Uen on tlefeuci- 

tnCi propertj In Alaska without suit brought and Judgment re- 

^^ftid thereon; In re Remington Automobile & Motor Co., 119 

'''^ +i5, enjoining judgments bj creditors of insolvent New 

^^^'^j" corporation against stockholders, after proceedings In bank* 

^tcj: h^gun; Hilliker v. Hale, 117 Fed. 225, holdUig re<?elver 

V/)oiiiti?(i to enforce and collect judgments against stockljolders of 

^^*oli'eflt cori>oradon and to enforce statutory liability against uon* 

"•W^fjt Ktockbolders» cannot sue stockholder at law In anotlier 

i*^^^dictioni Strang v. Richmond, etc., R. R. Co., 101 Fed* 516. 

***iflllij bllJ alleging existence of contract by which plain tiff was to 

**>»truct railroad for defendant, and Its breach by defendant in 

'^Oilag to allow plaintiCf to proceed In its execution* states no 

Stilted for relief In equity. 

^« E 8. 524-533, 36 L, 1073, ROYER r. COUPE. 

SrL 2 (XII, 277). Strict construction of patent for improvements. 

Approved in Hale v. World Mfg, Co,, 127 Fed. 9(j7» construing 
B»le patent No. 634,556. for water still; Campbell Printing, etc, 
Cc, T. Duplex Printing, etc Co., 101 Fed. 2D5, holding Stonemetz 
piteit Xo. 370.05*3, for web-printing machine, not pioneer inven- 
tim and not Infringed by press made In accordance with Cox 
mm No. 478,503. 

Syi 4 (XII, 277). Patents — Claims abandoned In application. 

Approved In Safety Oiler Co. v. Scovll Mfg. Co., 110 Fed. 205. 
««i»tnilng HLrscb patent No. 521,514, for safety extension oiler. 

I4fi C. SL 533-538, 36 L. 1077, CAMERON v. UNITED STATEIS, 
9jl 2 (XII. 27T). Federal question, 

I Applicability of Federal statute. 
Approved in United States v. Ware. 180 U. 8. 508, 23 Sup. Ct 853, 
41 L 822, reaffirming rule. 
^ tJ. a 536-^69, 36 L. 1070. McGOURKEY v, TOLEDO, ETC., 
BT. 
tfl 1 (XII, 277). Finality of foreclosure decree referring to 
•liter for execoiioiL 

Ai^proved In West v. East Coast Cedar Co., 113 Fed. 743, hold- 
iBt decree dismissing bill upon which injunction pendente lite bas 
Nm lttiied« Is final and appt^alable notwithstanding reference to 
■tncT to a8<?erlaiJi damages by reason of Injunttion. 
W* 2 »Xn, 278). Floallty of foreclosure decree — Reference. 
Apprt»!red In Covington v. First Nat Bank, 185 U. S. 277. 40 L. 
W, 22 Sup. Ct. 648, holding decree in suit to enjoin collection of 
**!, liy which collection of taxes years prior to passage of certain 
•<l Wta enjoined, but which retained for future determination 
tJito to enjoin collection for subsequent years is not final; Parmele 



^ 



146 U. S. 570-614 Notes on U. S. Reports. 2 

V. Schroeder, 61 Nebr. 561, 85 N. W. 5G5, holding foreclosure orde 

ing sale and directing sheriff to report deficiency if any, and tbi 
on confirmation of report mortgagee entitled to deficiency Jndt 
ment, is not final appealable judgment 

Syl. 5 (XII, 278). Finality — Reference of damages to masters 

Approved in Southern R. R. Co. v. Postal Tel. Cable Co., " 
U. S. 643, 45 L. 356, 21 Sup. Ct 250, holding decree appointing c» 
missioners to assess damages in condemnation proceedings is 
final decree from which error lies; Kemp v. National Bank of 
Republic, 109 Fed. 50, holding decree determining invaliditis 
trust deed is final and appealable as to trustee and l)enefi.<= 
in such deed, although it is interlocutory only as to other ma_ 
involved in the suit in which such parties have no interest; O" 
City V. Weaver, 108 Fed. 567, holding decree determining invci.1 
of contract and referring case to master to state account ±m 
final adjudication pleadable in bar. 

Syl. 8 (XII, 279). Reference for accounting — Finality. 

Approved in Mercantile Trust Co. v. Chicago, etc., Ry. Co— 
h'od. 391, holding decree on intervening petition against rec^ 
directing him to deliver certain property to petitioner, or in de--^ 
to account for its value, and also to pay value of its use or r^ 
while used by him, and refers to master to determine value 
its rental is not final. 

Syl. 9 iXII, 279). Final and interlocutory judgments. 

Approved in Sanders v. Bluefield, etc., Co., 106 Fed. 592, holC^ 
decree definitely rejecting theory of plaintiff's case as. made by 
pleadings being final and appealable, becomes conclusive a^ 
expiration of time for appeal. 
, Syl. 13 (XII, 279). Mortgage of after-acquired property. 

Approved in Contracting, etc., Co. v. Continental, etc., Co., " 
Fed. 3, holding locomotives delivered under lease warrants maf: 
ing at montlily intervals up to specitied date, with option on \w 
of lessee on payment of last warrant of purchasing locomoU " 
on payment of one dollar, passed under after-acquired proper 
clause in mortgage. 

146 U. S. 570-014, 3G L. 1091, UNITED STATES V. SOUTHE : 
PAC. R. R. 

Syl. 2 iXII, 280). Grants in pra3seuti effective on filing locaC 
map. 

Approved in Werling v. Ingersoll, 181 U. S. 138, 45 L. 786„ 
Sup. Ct. 573, holding grant of March 2, 1827, to Illinois of al' 
nate sections in aid of canal from Illinois river to Lake Michi^ 
granted by implication right of way through reserved sectic 
but not to ninety feet on each side; United States v. Oregon, c 
R. R. Co., 176 U. S. 43, 47, 44 L. 304, 3GG, 20 Sup. Ct. 260, h< 



Notes OE IT. S. Reporta. 14G TT* S. 570-614 



'^'offfiap of general route of Northern Pacific did not prior to 
•IT IMP of definite, constitute such disposal of lands within 
*'!'ilyf lines of that route to preclude grunt of lands to another 
'■'^mayi M'Fadden v. Mountain View Mln. & Mill Co.» 07 Fed. 
^- M«iin^ act of July 1, IS92, restoring to public domain por- 
olville reservation did not in advance of presidential 
■'Ion open same to mineral location; Wilson v. Southern 
IL R. Co,, 135 Cal. 423. 426. 427, 67 Pac, 6SS> 690, holding 
-viroad sold land claimed as part of land grant and con- 
procure patent therefor with reasonable diligence, and 
■^*^t ir patent could not be procured it would return purchase 
^^ctt, purchaser cannot rescind where railroad continued to use 
**^Mgn»iM'e and prosecuted litigation to procure patent 

^Tl* 3 (XII, 281). Railroad grants — Later grant to another road, 

Approved In Tnited States v. Southern Pac. B. R, Co.. 98 Fed, 

ri»vit*wing decistoDS involving rights of Southern Pacific to lands 

OAllToraia within Umlts reserved under Atlantic and Pacitic 

C^^tic and holding Southern Pacific acquired no rights in such 

'•Hill tmder either its main line or brajich line grants. 

8^ 5 (XII, 281). Atlantic and Pacific grant 

-^Ilprored in United States v, SouUicrn Pac. R. R. Co., 98 Fed. 

*^ ferlewlng decisions Involving rights of Southern Parific to 

nil In California within limits reserved under Atlantic and Pa- 

^<? grattt and holding Southern Pacific acquired no rights in such 

-^Oa ander either its main line or brajjch line grants. 

*^L « <XU. 281), Repeal of grant — Vesting title in other road. 

' -^proved In Southern Pacific R. R. v. United States, ISO U. S. 

^» 451, 23 Sup. Ct 5»i8, 569, 47 U 899, W(\ holding forfeiture of 

Pacific grant by act of February 28, ISSu. did not vest 

it^KTO Pacific with lauds, but forfeiture inured to benefit of 

»ti«l States; Laud, etc., Water Co. v. San ,Tose Ranch Co., 18lt 

' ^« ^ lai. 23 Sup, Ct, 489, 47 L. 7G8, holding one who ou oomply- 

' irlth act of Congress would have right to purchase public lands. 

t who has not complied with act cannot demand adjudication 

^t litu tllie is valid as agaiust one in possession; United States 

*omii*Tn Pac. R, R. Co., 98 Fed. 35, 40, reviewing decisions 

^"«i»liif right of Southern Pacific to lands In California within 

^*^"*^ti ti^sened under Atlantic and Pacific graut and holding 

^•■^Wifni Pacific acquired no rights in such lauds under either 

^* Btiia line or branch line grants; Owen v. Pomona L. & W. 

^**^ 121 Cai, 537, 63 Pac. 852, holding where vendor in contract 

** •»!* daimed title as grantee of railroad and honestly misrepre- 

•«^tii title us good, whereas railroad's title was void, such defect 

^ ^il* when dlijcovered Is ground for rescUijion by purchaser. 



1 *"- 



lA&i 



14C U. S. 615-619 Notes on U. S. Reports. 2d8 

Syl. 7 (XII, 281). Railroad grants operate at fixed time. 

Approved in Van Kirk Land, etc., Co. v. Green, 132 Ala. 352, 
31 So. 4S5, holding fact that Mobile and Girard railroad was not 
completed within time prescribed In grant did not operate to forfeit 
title to lands granted; San Jose, etc., Co. v. San Jos6 Ranch Ca, 
129 Cal. 678. 62 Pac. 271, holding act of Congress of 1886, restor- 
ing lands granted to Atlantic and Pacific to public domain con- 
tlrmed existing water rights previously acquired by appropriation 
in 1870; Nortliern Pac. Ry. Co. v. Nelson, 22 Wash. 530, 61 Pac. 
706, holding, under act of July 2, 1864, granting lands to Northern 
Pacific, order of land commissioner that company had filed map 
of general route withdrew lands so that they are not open to 
homestead, though claimant settled thereon prior to definite loca- 
tion of road. 

Syl. 8 (XII, 282). Scope of Southern Pacific grant 

Approved in United States v. Southern Pac. R. R. Co., 117 Fed. 
552, holding none of lands within thirty-mile limit of grant to At- 
lantic and Pacific by act of July 27, 1886, passed to Southern 
Pacific by virtue of grant made to that company by Joint resolu- 
tion of June 28. 1870, and act of March 3, 1871; United States ▼. 
Southern Pac. R. R. Co., 98 Fed. 32. reviewing decisions involving 
rights of Southern Pacific to lands in California within limits 
reserved under Atlantic and Pacific grant and holding Southern 
Pncitic acquired no rights in such lands under either its main line 
or branch line grants. 

Distinguished in Southern Pac. R. R. Co. v. United States, 183 
IT. S. 521, 528, 5:30, 533, 46 L. 309, 312, 313, 314, 22 Sup. Ct. 155, 
158. 159, 160, holding United States and Southern Pacific each 
have eiiual undivided moiety in all odd-numbered sections withlc 
conflicting place limits of grant to Atlantic and Pacific and Southen 
Pacific by act of July 27, 1866. 

(XII. 280). Miscellaneous. 

Cited in Tarpey v. Madsen, 178 U. S. 227, 44 L. 1047, 20 Sup. Ct 
853, holding mere occupancy of entryman who does not file his 
declaratory statement is insulllcient to protect his claim against 
railroad grant. 

146 U. S. 615-619, 36 L. 1104, UNITED STATES V. COLTON 
MARBLE, ETC., CO. 

Syl. 1 (XII, 283). Selection necessary to title to indemnity lands. 

Approved in Werling v. IngersoU. 181 U. S. 138, see 45 L. 786. 21 
Sup. Ct. 573, holding by act of March 2, 1827, granting to Illinois 
alternate sections to aid in construction of canal, did not grant strip 
ninety feet wide on each side of route of canal. 

Syl. 2 (XII, 283). Scope of Southern Pacific grant 

Approved in Southern Pacific R. R. Co. v. United States, ISO 
U. 8. 449, 23 Sup. Ct 568, 47 L. 899, holding when grant to Texas 



Notes OD U. S. Reports. 146 U. S. 620-G45 



P&cUIc wan declared forfeited by act of Febrimry 28. 1S.S5, forfeit- 
are did not vest Soutbero Pacific witb title, but forfeiture Inured 
t0 benetit of United States; affirm tug 109 Fed, 917; Land, etc. 
Water Co. v, San Jos6 Ranch Co., ISl* U. S. 181, 23 Sup. Ct. 4S9, 
<T L. 768. holding party who on*complybig with act of Congress 
mcmlA have right to purchase land part of public domain, but 
nho bas not compiled with act, not entitled on showing of mere 
rtgtit to purchase to demand that its title be adjudged valid and 
(bit other party be adjudged to have no interest; Soutbern Pac. 
tL B- Co. T. United States, 183 U. S. 521. 52a 530, 46 L. 309, 312, 
113w 22 Sup. Ct 155. 158, 159; holding by forfeiture act of July 
^ 188S, United States and Southern Pacific bold equal undivided 
iB0ielie8 In odd-numbered sections lying within conflicting place 
t5mjt» of grant of Jnly 27, 18643; United States v. Southern Pac. 
It R, Co., 117 Fed. 552, holding none of lands within thirty-mile 
limit of grant made to Atlantic and Pacific by act of July 27. 1886, 
puaed to Southern Pacific by virtue of Its grants of June 28, 
WO. and March 3, 1871; United States v. Southern Pac, R. 11. Co.» 
88 Fed. 82, 35. 40, reviewing decisions Involving rights of Southern 
Pacific to lands in California within limits reserved under Atlantic 
&od Pacific grant and holding Southern Pacific acquired no rights 
iu inch lands under either its main line or branch line grants; 
OWfO T. Pomona L. & W. Co.. 131 Ca]. mi, 63 Pac. 852, hoUiing 
wte» Tendor In contract of sale claimed title as grantee of rail* 
Twd and honestly misrepresented title as good, whereas railroad's 
tttlt waa void, such defect In title when discovered is ground for 
MKlnlon by purchaser; San Jos6, etc., Co. v. San Jose Ranch Co.. 
lai Cai «T8, 02 Pac. 271. holding act of 18<S6, restoring lands 
mated to Atlantic and Pacific to public domain, conflrmed water 
righiB prevloaaly acquired by appropriation in 1870. 

mC. 8. «20-6^, 36 U 1107, MEAXS v. BANK OF RANDELL. 

8|yL 4 rXII, 2S4). Uen — Advancements on bill of lading, 

Appnxed In Millhlser, etc., Co. v. Gatlege Mills Co., 101 Va. 
BW. 502, 509, 44 S. E. 7*34, 765, 767, holding bona fide bolder of 
wiivhouae receipts has priority over claimant asserting lien for 
•appUwi furnished after U'ausfer and delivery of such receipt. 

8jL 6 *XII, 284). Ruling on continuance not appealable. 

Appfored in Lyman v. Warner, 113 Fed. 88, and Dexter v. KlI- 
•ttL lis Fed. 48» both reaffirming rule; Metropolitan St Ry. Co. v. 
^Tlt, 112 Fed. 634, holding denial of motion to open default not 
WTlcvihle. 

M«ll, 8. e3a-«45, 36 L. 1111, LLOYD v. PRESTON. 
9fl 2 (Xll, 284). Exchange of overvalued property for stock, 
ApVMJVed In McClure v. Paducah Iron Co., DO Mo. App. 577, 

ttASute Troat Co, v. Turner, 111 Iowa. 069. 82 N. W, 1031, both 



146 U. S. &i6-689 Notes on tJ. S. Reports. : 

holding where property Is •received by corporation at excess 
valuation In payment for stock, owner of such stock is liable 
creditors for difference between true value of property and i 
value of stock. 

Syl. 6 (XII, 285). Appeal — Errors not excepted to. 

Approved in Home Life Ins. Co. v. Fisher, 188 tJ. S. 72S 
Sup. Ct. 381, 47 L. 669, holding in action on life policy wher^ 
fense was false answers in application, verdict could not l>^ 
viewed except as to correctness of instructions, where que^ 
as to whether answers were warranties was immaterial; The 
York, 108 Fed. 107, holding draft of decree presented to Dl^* 
Court by respondent in collision suit to be entered on manda^^ 
Supreme Court, which was refused as not conforming to man^iC 
cannot be brought into record as application for recoupmen '^ 
matter arising subsequent to ma^ndate. 

146 U. S. 646-657. Not cited. 

146 U. S. 657-689, 36 L. 1123, HUNTINGTON v. ATTRILL. 
Syl. 1 (XII, 286). Denial of credit to Judgment by State cour^ 
Approved In Jacobs v. Marks, 182 U. S. 587, 45 L. 1244, 21 ^ 

Ct. 867, upholding jurisdiction to determine whether record • 

proceedings in Michigan court received full faith and credi'C: 

Illinois courts. 

Syl. 2 (XII, 286). Enforcement of foreign penal laws. 

Approved In Kilton, etc., Co. v. Providence Tool Co., 22 It- 
614, 48 Atl. 1041. holding action to enforce stockholder's liabii^ 
for debts of corporation Is not penal, and outlaws in twenty yea 
under Gen. Laws, chap. 234, § 4. 

Syl. 3 (XII, 2<Sf;). What Is penalty. 

Approved in United Statos v. Nash, 111 Fed. 528, holding Re" 
Stat, §§ 4426, 4i3()0, providing penalty for navigating steam c 
gasoline vessels without licensed engineer or licensed pilot, on 
navigating gasoline launch without licensed engineer may be h 
dieted and prosecuted tlierefor; City of Atlanta v. Chattanoog 
Foundry, etc., Co., 101 Fed. 002, 903, holding action under ant 
trust act of July 2, 1890, § 7, is not action for penalty or forfeltui 
within Rev. Stat., § 1047, prescribing five years' limitation, bi 
is governed by limitations of State where suit is brought; Amei 
can, etc., Co. v. Ellis, 156 Ind. 220, 59 N. E. 682, holding Be 
Stat 1881, §§ 3863-38(>5, liroviding for liability of corporate office 
publishing false report of financial condition of corporation. Is a 
penal and does not outlaw in two years; Farr v. Brlggs, 72 V 
228, 47 Atl. 794, holding statute making such corj'K)rate directo 
as assent to creation of debts beyond prescribed limits liable 
creditors for debts so created Is not penal. 



:oj 



Kotes on U. S. Reports. 14G U. S. GuT-GSU 
Nature of wrong determines whether law 



% 4 fXn, 286). 

■^P^ved In Atlanta v, Chattanoojija Foiiudry, etc., 127 Feci, 29! 

*^'<lifi^ anti-trust law, § 7» Is iwt penal hiw; Newgold v, American, 

^ Mfg. Co., 108 Fed. 343, holding in qui t^m nctiou under Rev, 

^•t* ( 4901, to recover penalties thereby imposed for falsely 

**Hcliif an article as patented, defendant cannot be compelled, 

**'fcf f 724, to produce bool^s or papers containing evidence 

*Wjist himself* either for use in evidence or for the Inspection of 

^lnUS before trial; Boston, etc. R R. v. Hurd, 108 Fed, 119, 

■<**aiag P^b, Stat Mass. 1882, chap. 112, | 212, punlsblug rail- 

r^*^ ^or negiigence causing death, recoverable by indictment 

^ beoefit of widow and next of kin, not strictly penal, so that 

^'^NlcnU courts may enforce It; Nebraska Nat. Bank v, Walsh, US 

-^^^ 440. 59 S. W. 954. holding Sand. & H. Dig., $ 1347, making 

^" allien t and secretary of corporation who neglect or refuse to 

*** annqal certificate of assets and liabilities, liable for corporate 

^^s* does not create penalty, and limitations to suit to enforce 

^*' ty is three years, 

X , sh^d In Mason v. Adoue, 30 Tex. CIt. 279, 70 S. W. 348, 

act May 25, 1899 (anti trust law), is penal, so that right of 

based thereon dies with corporation* 

SfL (XII» 280). Action to redress wrong done In another State. 

.JIppFOved In Mejtlcan Nat R. R. Co. v. Slater, 115 Fed. 604, 

F<*deral court in Texas cannot enforce liability of defend- 

t for wrongful death under laws of Mexico; Davis v. Mills, 99 

wl 41^ tjolding Corop. Laws Mont, p. 728, § 4tJ0, requiring cor- 

itkma to annually file financial reports, and making trustees 

one not doing so liable for its debts, being penal, cannot be 

roveed outside of State; Clark v. Russell, 97 Fed. 902. uphold- 

*»! Fedrral jurisdiction to enforce Comp. Stat Nehr,, chap. 72, 

I Z» providing for liability of railroads for injuries to passengers; 

iMSmore, etc., R. R. Co. v. Reed, 158 Ind. 29, 92 Am. St Rep. 

^ 82 N, E. 489, holding Burns* Rev. Stat, H 7083-7087, making 

*^ployt^rs liable for injuries resulting from negligence of fellow 

*«rTuiti^ has no extra-territorial effect, so that complaint alleg- 

H ■och Injury In another State is bad. See 85 Am. St Rep. 923, 

8|l 9 (XII, 287). Object determines whether law penaL 
Ajiproved In Boston, etc., K. R. v. Hurd, 108 Fed. 121, holding 
^^ Slat Masa. 1882. chap. 112, | 212, punishing railroads for 
•f^ittnce causing death, recoverable by IndJctment for benefit of 
•^w and next of kin, not strictly penal, so that Federal courts 
■«y roforeo U; Davis v. Mills, 99 Fed. 42, holding Comp. Laws 
'■•■^t, 1^ T28, ft 400, requiring corporations to annually file financial 
and making trustees of one not doing so liable for it^ 




146 U. S. 657-689 Notes on U. S. Reports. 802 

debts, being penal, cannot be enforced outside of State; Claric ▼. 
Russell, 97 Fed. 903, upholding Federal Jurisdiction to enforce 
Comp. Stat. Nebr., chap. 72, § 3, providing for liability of railroads 
for injuries to passengers; Brown v. Glow, 158 Ind. 411, 62 N. E. 
1009, holding action against directors of manufacturing corpOTa- 
tlon, under Burns* Rev. Stat. 1901, §§ 5060, 6076, providing penaltj 
for assent of its provisions, is penal and barred in two years. 

Syl. 10 (XII, 288). Stockholder's liabiUty enforceable outside 
State. 

Approved in Whitman v. Oxford Nat Banlc, 176 U. S. 567, 44 
L. 502, 20 Sup. Ct. 480, upholding Federal Jurisdiction to enforce 
stockholder's liability under Kan. Const., art 12, { 2; Kirtley t. 
Holmes, 107 Fed. 6, upholding Federal court's jurisdiction to en- 
force stockholder's liability under Ohio Constitution, where cor- 
poration insolvent and stockholder domiciled in another State; 
Howarth v. Lombard, 175 Mass. 5/5, 56 N. E. 890, holding bank 
receiver appointed in Washington may recover in Massachusetts 
amount of assessment laid by court of former State on stockhold- 
ers; Farr v. Brlggs, 72 Vt 231, 47 Atl. 795, holding statute mak- 
ing such directors as assent to creation of corporate debts beyond 
prescribed limit liable to creditors for debts so created, is not 
penal; Finney v. Guy, 106 Wis. 266, 82 N. W. 598, holding Minnesota 
statute, providing for enforcement of stockholder's liability. Is 
exclusive. 

Syl. 11 (XII, 288). Supreme Court— Judicial notice of State 
laws. 

Approved in Mexican Nat R. R. Co. v. Slater, 115 Fed. 600, 
holding Feileral court will not take judicial notice of laws of 
foreign country. 

Syl. 13 (XII, 288). Judgment does not change nature of action. 

Approved in Peterson v. Smith, 72 Vt 294, 47 Atl. 1090, holding 
discharge in insolvency does not affect nature of judgment for 
conversion. 

Syl. 15 (XII, 280). Enforcement of foreign penal judgment 

Approved in First Nat Bank v. Weidenbeck, 97 Fed. 900, up- 
holding Federal jurisdiction over action to enforce liability created 
by statute of State of Its creation against corporation's officers; Hunt 
V. Searcy, 1G7 Mo. 181, 67 S. W. 213, holding judgment of Insanity 
without notice to the person adjudged insane and without appear- 
ance is void, whether statute requires such notice or not See 88 
Am. St Rep. 617. 

Syl. 16 (XII, 289). Full faith and credit — Penalties. 

Approved in Atherton v. Atherton, 181 U. S. 160, 45 L. 799, 21 
Sup. Ct 546, holding where matrimonial domicile was In K&k- 
tucky and wife abandoned husband and went to New York, divorce 
decree in Kentucky is bar to divorce suit in New York. 



Notes on U. S. Eeporta. 



147 V. S. i-14 



SyL 17 (XII. 2S9). 
estlotL 



Foreign judgmeots not enforceable by exe- 



Jipprored Id Anglo- American Prov, Co. v* Davis Pro v. Co., IGO 
S. T. 515, 51i 62 N. E. 589, 590, upholding Code Civ. Proc., fi 1780, 
ppoWbftIng actlonB by one foreign corporation against another, 
ticeptijig In certain specified cases. 

(XHi 2SSl. Mlscellaneoua, 

Cited to HlUlker v. Hale, 117 Fed. 225, holding receiver appointed 
to eaforte and collect statutory liability, stockholders of Insolvent 
corporation cannot sue atockholder In another Jurisdiction to en* 
force luch llablUty. 

m u. a e8&.706, 36 l. 1135. potts v. wallach. 

^14 IXII, 289). Tender of unpaid stock subscription, 

iLppctDved In West v. Topeka Sav. Bank, 66 Kan, 533. 72 Pac, 
S^ Mding when corporation becomes insolvent, limitations begin 
Bo nm at once on stockholder's subscriptions to stock, to be paid 
it iBterrals upon call of directors, and then subject to call, even 
tt^ocgh no call be made. 

8yL 5 (XII. 289). Insolvent corporations* agreement to execute 
■tockholder. 

Approved In Fouche v. Merchants' Nat Bank, 110 Ga. 841, 36 
& H 2fl2f holding mere recital in stock certificate that shares are 
"foJlpald and nonassessable," will not protect owner from liability 
ftif unpaid subscription If he purchased with knowledge that sub- 
•enptlon was due. 



CXLVII UNITED STATES. 



W U. 8. 1-14. 37 L. 55, IOWA v. ILLINOIS. 
67I 2 (XII, 291). "Mld-chaanel" and *^ middle of stream.** 
Approved in Albany Bridge Co. v. The People, 197 111. 204, 64 
K. S. SS2, holding where Island In Mississippi river, In fact In 
UUiioIb, was erroneously surveyed as part of Iowa, and patented 
i* laad in Iowa, and congressional act recited facts and ratified 
ptteot, boundaries of township In Illinois not thereby changed; 
T. Hodges, 112 Iowa, 717. 84 N. W. 951, holding where 
troae In 1857 near middle of navigable river boandtng Iowa, 
It did not paas under Rev. Stat, § 2479, granting swamp and over- 
hrnds to States; State v. Keane. 84 Mo. App. 131. 132, 133, 
where defendant's saloon located west of center of old 
channel of Missouri on west boundary of Platte county, 




J 



147 U. S. 14-59 Notes on U. S. Reports. 304 

act was committed in Kansas; Roberts v. Fullerton, 117 Wis. 226, 
93 N. W. 1112, holding Minnesota cannot enforce its fish and game 
laws on Wisconsin side of main channel of Mississippi. 

147 U. S. 14-36, 37 L. 60, IN RE MORRISON. 

Syl. 2 (XII, 291). Mandamus cannot operate as writ of error. 

Approved in The Union Steamboat Co., 178 U. S. 319, 44 L. 1065, 
20 Sup. Gt. 905, holding mandamus does not lie to review decision 
of inferior court upon any matter left open by mandate of higher 
court 

Syl. 4 (XII, 291). Nature of proceeding to limit liability. 

Approved in Oregon R. R. & N. CJo. v. Balfour, 179 U. S. 66, 
45 L. 84, 21 Sup. Ct. 29, holding proceedings to limit liability of 
shipowners are admiralty cases; In re Eureka No. 32, 108 Fed. 673, 
holding proceeding in admiralty for limitation of liability under 
Rev. Stat., §§ 4284, 4285, should not be entertained where there Is 
but one known claim. 

147 U. S. 36-47, 37 L. 68, STREETER v. JEFFERSON CO. BANK. 

Syl. 1 (XII, 292). Bankruptcy — Right to prove debt on setting 
execution aside. 

Approved in United States Rubber Co. v. American Oak Leather 
Co., 181 U. S. 452, 45 L. 947, 21 Sup. Ct 677, holding in Illinois 
insolvent debtor may prefer one creditor to another by giving 
judgment notes. 

147 U. S. 47-51). 37 L. 72, MONROE CATTLE CO. v. BECKER. 

Syl. 1 (XII, 21)2). Evidence necessary to prove fraud. 

Approved in .Tiu"ol)s v. Van Sickle, 127 Fed. (59, holding allega- 
tions of bill cliarjxing fraud cannot be considered proved where 
tljoy are specifically denied by verified answers, and only testi- 
mony of complainant is that of defendants, who, as witnesses. 
Hiipport answers; Harvey v. Sellers, 115 Fed. 760, holding written 
contract by which complainant agreed to aid in exploiting patent 
ri^lits owned by defendants in consideration of one-third of net. 
profits entitles him to maintain suit for accounting. 

Syl. 2 (XII. 202). Time— Last day being Sunday. 

See 78 Am. St. Rep. 377. 

Syl. 6 (XII, 292). Compelling conveyance by patentee to equitable 
owner. 

Approved in Clark v. Ilorington. 186 U. S. 211, 46 L. 1131, 22 
Sup. Ct 875, holding, und(T act March 6, 1868, granting lands to 
Union Pacific, even-numlH»red sections could not be turned over 
by land department as indemnity lands. 

Syl. 7 (XII, 2l).'{j. (Joveniment alone forfeits grants. 

Approved in Roc-kfinger v. Foster, 190 U. S. 125, 23 Sup. Ct. 839, 
47 L. 979, holding one claiming under homestead laws of United 



805 



Notea on U. S, Reports. 



147 U. S. 50-57 



St^ct caoDot malntalQ suit against Oklahoma townslte trustees 
to direst them of title to land held in trust for towoslte occupants, 

SjL 8 (XII, 2d3). Initials no part of name. 

Approved in Sllngluff v. Gainer, 49 W. Va. 9, 37 S, B, 772, apply- 
tug rule where service of process was bad on wrong person, hav- 
iBf nine loltlala of christian name as defendant intended, 

m U. SL 50-71. Not died. 

Ill r, S. 72-87, 37 U 84, THE CITY OF KEW YORK, 

SyL 1 (XII, 294). Findings conclusive on appeal. 

Approved in Rehberg v. Grelaer, 24 Mont. 403, 63 Pac, 43, re- 

ilBnniDg rule; United States v. Bishop, 125 Fed. 183. holding where 

li dose of trial eacli party requests peremptory instruction, and 

csiiit graata one request, parties are estopped from claiming that 

uj qaestiOQ should have been submitted; King t. Smith, 110 Fed. 

97, holding queatlon of sufficiency of evidence to prove facta found 

%f Cinrnit Court In law action may be considered on error. 

Bjl 4 (XIU 294). Sailing vessel presumed to have held course. 

Jlpprored In The Northern Queen, 117 Fed. 914, holding steamer 

at full speed in dense fog at fault for collision with barge 

Its tug had anchored in wide channel oq account of danger. 

fljrL 5 (XII. 21)4). Duty of steamer hearing sailor's horn, 

Ififiroved in The George W. Roby, 111 Fed. 608, holding where 

ifimner in dense fog heard fog signals ahead, she waa at fault for 

a«t redoclng speed to mere steerageway, 

Sjt 6 (XII, 21>4). Collision — Doubt as to one vessel's fault 

Approved In The Livingstone, 113 Fed. 881, reafflrming rule; 

Ite Fliltllp Mlnch, 128 Fed. 583, applying rule where it was at- 

tiHp(t«d to condemn vessel to division of damages, for collision 

iMtwc^en steamer and barge in tow of another steamer; The North- 

125 Fed, 62, holding steamer making berth la river liable for 

with passing boat^ due to sudden starting of machinery 

created suction which drew boat toward steamer, where 

had no stern lookout; The John H. Star In, 122 Fed. 239, 

: steamer coming out of New Haven harbor In night at great 

Dot contributorlly liable for collision where channel SOO 

feet wVle and anchored schooner showed no light; The Australia, 

12D Fe4. 224, holding barge liable for collisioo with another barge in 

rtYir where it sheered back and fortli across channel; Mitchetl 

Ttutfl^ Co. ▼, Green, 120 Fed. 60, applying rule la case of collision 

steamer with one of two tows of another steamer; The 

US Fed. 132. holding schooner not guilty of contributory 

for 4!0imion with tow; The Banan, IIG Fed. 901, holding both 

At fault where steamer not maintaining proper lookout 

VoiUl— 20 




147 U. S. 87-101 Notes on U. S. Reports. 803 

collided with bark anchored dangerously near channel; The Colum- 
bia, 109 Fed. 667, holding where bark and ship were in tow of tuff» 
and ship, which was on shorter hawser, through negligent steering 
failed to follow course of tug and sheered across bark's hawser, 
when her hawser broke and she collided with bark, ship solely at 
fault; The North Star, 108 Fed. 444, applying rule where steamer 
overtaking another and attempting to pass; The William E. Fergu- 
son, 107 Fed. 157, holding tug at fault for collision with steamer 
moored to pier where tug disobeyed navigation rules requiring nav- 
igation in mid stream; The Lansdowne, 105 Fed. 448, holding 
ferry-boat solely liable for collision where she was guilty of breach 
of navigation rules; The Republic, 102 Fed. 999, applying rule to 
collision between two steamers crossing; The Minnie, 100 Fed. 134, 
holding where fault of one vessel is clearly established, reasonaUe 
doubt in regard to other vessel's conduct resolved in its favor. 

Limited in The Columbian. 100 Fed. 997, applying rule that 
where vessel was confessedly and grossly in fault for collision 
with schooner, by reason of her excessive speed in fog at place 
where danger apprehended, doubts as to fault of other vessel con- 
tributing to her injury resolved in her favor. 

147 U. S. 87-90, 37 L. 91, ALBUQUERQUE BANK v. PEREA. 
Syl. 2 (XII, 295)). Injunction of taxation — Tender of valid part 
Approved in Southern Ry. Co. v. North Carolina Corp. Comm., 
97 Fed. 514, holding North Carolina act March 6, 1899, creuling 
corporation commission, did not authorize commission to appraise 
and assess railroad property for taxation; Thompson v. Lexington, 
104 Ky. 170, 46 S. W. 4S2, holding Lexington street assessment, 
made under act April 19, IStM), § 3, cannot be enjoined without 
t(»n(ler of pro rata estimated on basis of two-thirds of cost; United 
States Trust Co. v. Territory, 10 N. Mex. 428, 62 Pac. 991, holding 
when railroad, part of wliicli is taxable, is assessed at given sum 
per mile, when number of miles taxable is ascertained, it Is 
separable, and nssossnient not void because it diflCers from number 
of miles in original assessment. 

147 U. S. 91-101, 37 L. 9.-5, KNOX COUNTY v. NINTH NAT. BANK. 

Syl. 1 (XII, 29r»). Conclusiveness of recitals in bonds. 

Approved in Willvca County Comrs. v. Coler, 180 U. S. 525, 45 L. 
a')2. 21 Sup. Ct. 465, holding recital in municipal bonds of wrong 
act as authority for tlu^lr boin;; issued, does not preclude- holder of 
such bond from showing that independently of such act there was 
power to issue bonds; City of r»eatrice v. Edminson, 117 Fed. 4X1, 
holclin^ where power to iss\ie municipal bonds has been vested In 
city, recital In bonds of statute which does not grant the authority 
is not fatal; Board of Comrs. of Wilkes County v. Coler. 113 Fed. 
728, holding recital in county aid bonds that they were issued 



m 



Notes on U. S. Reports. 147 U. S. 101-117 



toraUd act does not preclude Inquiry as to wtiether tbere 
»if any other valid statute autburizing their issuance; Board of 
Cttazn. of Stanley County t. Coler, 113 Fed. 707, 72;^, holding re- 
rtalf In county bonds, issued to pay for railroad stocic subscription, 
iftif they were Issued pursuant to statute authorizing tliem, estop 
cwjly to deny necessity for subscription, 
»jl i (XII, 295). Evidence — Presumptions, 

ApItfOTed in Felch v. Hodgman Mfg. Co., 62 Ohio St 317. 58 
X. E. 1020, holding where it appears that bill of exceptions was 
and signed hj trial judges within Hfty days after over- 
of motion for new trial given for that purpose, and by 
jotmai entry that bill was presented to court, and upou examhia- 
OOD found to be correct and signed, allowed and ordered made 
put of record. It is presumed to have been presented not less than 
Iff days before expiration of lifty days. 

$Tl 5 (Xn, 295), TwO'tJjirds vote means two-thirds of those 
Toting. 

IpproTed In Deposit Bank v, FYankfort, 191 O. S. 518, holding 

•here Htate court refuses to give effect to Federal judgment adjiidi- 

1 flOiiig that one of the parties has contract within obligation clause, 

[ItdeQiet rigbt secured by Federal Coustitution; Picicett v. Russell, 

Fta. 13&» 2S So. 771, upholding chapter 4:336 laws requiring 

rty of tbose voting at any election ttieteunder to determine 

ntaiter In the atfirmative; In re Denny, 150 Ind. 122, 112, 59 

. C 906^ 373, holding where at general election votes for governor 

6tM,000 votes, proposed constitutional amendment recelv- 

' SiO.OSl votes did not receive majority of electors of the State. 

iQji 7 iXIi, 295). Contracts — Interpretation by parties. 

[ApproTcd In Western Union Tel. Co. v. American Bell Tel. Co.. 

F#d. 687, construing contract for rents or royalties for tele- 

i; Chicago, etc., R, R, Co, v. Northern Pac. R. R. Co., 101 

5, coDStruing agreement for joint use of railroad track. 

a 101-U7, 37 L. 97, LAKE SHORE, ETC.. RY. CO. v. 

PBEXTICE. 

l/t 1 «XII, 21^0). State decision as to master's liability for 

art ii«*gllg*'nee. 

l>f<*d In dlf««enilng opinion in Mc(Jhee v. M'Carley, 103 Fed. 

•ity bokling. under Ala. Code, H 20, 27. personal repre- 

fttallvoi of deceased minor child, In action against receivers or 

to recover for death of Intestate through wrongful act of 

or tlielr servams, may recover punitive damages. 
lUbed In McGtiee v, MTariey, 103 Fed. 55, holdii^g. under 
II ^5, 27, personal representjitives of deceased minor, in 
•SftlJist receiver of railroad to recover for deatb of Intes- 



147 U. S. 101-117 Notes on U. S. Reports. 808 

tate through wrongful act of defendants or their servants, may 
recover punitive damages; Louisville, etc., B. R. Co. v. Lansford, 
102 Fed. 66, holding Alabama decision, construing Code Ala. 189G, 
S 27, as awarding exemplary damages In cases of wrongful Injury 
causing death, is binding on Federal court. 

Syl. 2 (XII, 296). When exemplary damages awarded. 

Approved in Gustafson v. Chicago, etc., Ry., 128 Fed. 96, holdla^ 
railroad not liable for exemplary damages for negligence of engineer 
in running by signals; Hindman v. First Nat. Bank, 98 Fed. 668 
upholding sufficiency of petition against banliL for deceit, wherel.i 
it is alleged that it made false representations to insurance coxae 
missioner by its cashier as to its paid-up capital and surplvaL- 
whereby third persons were induced to purchase its stock; Crav-^ 
V. Bloomingdale, 171 N. Y. 446, 64 N. E. 171, applying rule In ^^ 
tion against master for illegal arrest caused by servant. 

8yl. 3 ^XII, 296). Liability of corporation for agent's acts. 

Approved in Hindman v. First Nat. Bank of Louisville, 112 Et^^= 
940, holding bank liable for false statement in certificate ^i 
cashier to insurance commissioner as to amount deposited by ^H 
surance company where certificate made to Increase bank's bn 
uess; Pacific Postal, etc., Co. v. Bank of Palo Alto, 109 Fed. S^S 
holding telegraph company liable to bank for money paid out ^^ 
latter without negligence on telegram forged by telegraph operate:^ 
afiirming 103 Fed. 847; Hindman v. First Nat. Bank, 98 Fed. 60^^ 
holding bank liable for false statement made by cashier to lasa-^ 
ance commissioner as to its paid-up capital and surplus, wheretC^ 
third person induced to purchase stock. 

Syl. 6 (XII, 297). Railroad's liability for conductor's wanton acr^ 

Approved in Lexington Ky. v. Cozine, 111 Ky. 804, 64 S. W. 811^ 
and Haver v. Central R. R., 64 N. J. L. 314, 45 Atl. 593. both reafllnc^ 
ing rule; Davenport v. Southern Ry. Co., 124 Fed. 985, holdln^^ 
action against railroad and its servants for wrongful death caused 
by wantou and malicious acts of servant while engaged In duties 
of employment, is removable by company on ground of separable 
controversy; Warner v. Missouri Pac. Ry. Co., 112 Fed. 117, hol^-* 
ing in action against corporation for malice of Its agent In pnl^^ 
cation of libelous matter, declaration should connect corporatlc^ - 
with express malice of agent by substantive averment of anther 
Ization or ratification of acts; The William H. Bailey. 103 
800, holding exemplary damages not recoverable in suit In 
against a vessel for maritime tort; Tangner v. Southwest Missoi^^ 
etc., Ry., sr» Mo. A pp. 32. lioldin^ where carrier's servant wanto^^ 
assaults passenger in removing him from car, and the carrier tCT^ 
knowledge thereof retains servant in employ, he ratifies act an& It 
liable for punitive damages; Denison, etc., Ry. v. Randell, 29 Eto 



Notes on U. S. ReporU, 147 U. S. 118-150 

Qf, I83i 69 S. W. 1015, holding where railroad's manager was 

Mat It trial and conviction of one of Its condoctors for aaaault 

^pmenser, and paid his due and retained him in service there- 

•fte; there was ratification of conductor's assault; "Sua Life Asaur. 

I ^ f. Bailey. 101 Va. 451. 44 S. E. 605, holding Jn action against 

^tpatgtlon for damages tbrough libel published by agent, where 

*«W>eari that article neither authorized nor ratified, It is error 

* Iftitnict that In ascertaining damages standing of parties may 

*• cxnuldered; dissenting opinion In McGbee v. M'Carley. 103 Fed. 

^ Hilarity holding, under Ala. Code, §5 26, 27, personal repre- 

^^^^tttfrea of deceased minor child, in action against receivers of 

ftd to recover for death of intestate through wrongful act of 

Dts or their servants, may recover punitive damages. 

tJ. & 118-133. Not cited. 

^T U, 8. 133-147. 37 L. 109, FISHER v. SHROPSHIRE. 

9yL 2 (XII, 208). Vendor's lien by Implication of law. 
Jkppfoved In Columbus, S. & H, R. R. Co. Appeals, 109 Fed. 196, 
nnder reorganization agreement holders of floating Indebt- 
dld not get equitable lien In nature of vendor*s Hen which 
could enforce as anperlor to that of mortgage. 
^L 5 (XII, 29S). Parties whose presence ousts jurisdiction. 
Ipproved In Martin v, Chicago, R, L, etc., P. Ry. Co.. 123 Fed. 
holding defendant on whose petition cause removed to Federal 
cannot deny Jurisdiction of court to render Judgment against 
therein, unless on ground that State court was without Jtiris- 
SSctlon; Empire, etc., Co, v. Propeller, etc., Co., 108 Fed. 903, op- 
Federal Jurisdiction on removal of suit against nonresident 
dlatrlct, brought by several plaintiffs, one of whom Js non- 

at. 
6jL (XII, 298). Findings of master approved by court. 
Approved In Pollock v. Jones, 124 Fed. 1G7, holding mere promise 
^^ <k'htor at time debt waa contracted to give mortgage to secure 
*^ without specifying nature of mortgage or property on which It 
"^Hs to be given, does not create mortgage. 

U 8, 147, 148, Not cited. 
^4r a 8. 149, 150, 37 L, tlS, UNITED STATES w. WANAMAKER. 
Ijt 1 (XII. 298). Jurisdictional amount — Ollateral effect of 
McsMfflt. 

Approved In Oregon R, & Nav. Co. v. Shell, 125 Fed. 980, deny- 
IH Drcult Court's jurisdiction of suit to correct ambiguity In deed 
t» flfht of way and to restrain removal of crossing gates when 
^«« of realty and damage accruing to adjacent property from 
v^'i construction do not exceed $2,000. 




147 U. S. 150-104 Notes on U. S. Reports. 

147 U. S. 150-164, 37 L. 118, HOLMES v. GOLDSMITH. 

Syl. 1 (XII, 2d9). Record in suit by assignee of chose in actioi 

Approved In Virginia, etc.. Chemical Co. v. Sundry Ins. Cos., 
Fed. 455, holding where policy is issued to A., and loss is payabU 
A. or B. as interest may appear, on disclaimer by A. of intereft 
property, B. may sue in own name; Hoge v. Canton Ins. Office, 
Fed. 514, holding where action is brought in State court by 
purporting to be assignee of party to whom policy issued, but m 
complaint shows, is person to whom defendant promised indem 3 
removal petition need not show that assignor of cause of ac 
sued on is citizen of different State from defendant. 

Syl. 2 (XII, 299). Parol to vary note. 

Approved in Hoffman v. Hablghorst, 38 Or. 266, 63 Pac. 
holding where several parties have signed note as makers, 
some of them are In realty only sureties, true relation may 
shown by parol as against holder with knowledge of facts whet 
or not principars name appears on note; Ladd v. Chamber of Cc 
merce, 37 Or. 48, 60 Pac. 708, where plaintiff, being sued as Jo 
maker on notes, filed complaint in equity in nature of cross-b 
alleging he was mere surety and that holder was not bona t 
holder, cross-bill properly dismissed. 

Syl. 3 (XII, 299). Object of restriction on suit by assignee. 

Approved In Hoadley v. Day, 128 Fed. 304, upholding Jurlsdlctl 
to foreclose trust deed given to secure accommodation notes; B 
V. Columbia Southern Ry. Co., 117 Fed. 27, holding where plain 
and another as partners took contract, and by agreement betw< 
themselves plaintiff was to receive and disburse moneys and ? 
to account for net profits only, citizenship of partner immatei 
In suit to enforce mechanic's Hen; Brlgham-Hopklns Co. v. Gn 
107 Fed. 770, upholding Federal Jurisdiction over suit betw< 
diverse citizens to rocover amount in excess of $2,000, based 
separate claims, some of which were assigned to plaintiff, wb 
Joinder of claims permitted by State statute and no one of cla! 
is alone of requisite amount; Smith v. Packard, 98 Fed. 797, b* 
Ing Illinois statute, giving plaintiff in attachment right to sue 
forthcoming bond taken by sheriff, does not render him an assig 
within judiciary act. 

Syl. 6 (XII, 299). Reception of circumstantial evidence. 

Approved In American Nat. Bank v. Watkins, 119 Fed. 556, h< 
ing judgment will not be reversed for technical errors In rulings 
admission of evidence which were not prejudicial; Sackman 
Thomas, 24 Wash. G73, G4 Pac. 823, holding one offered as witn 
was merely party to original contract with deceased person, but 
not party to suit, is not Incompetent under Bal. Code, | 599L 



SI 



Notes on U. S. Beporta. Ul U. S. 165-1T7 



U: r. & 165-177, 37 L. 123, NOBLE v. UNION RIVER LOGGING, 
ETC, CO. 

Byt. 1 (XII, 299). Injunction to control eiecutiTe discretion. 

Approved in Cmlckshank v. BIdwell, 170 U, S. SO. 41 L. 381. 20 
Sl|iiCL283t denying jurisd[ction to restrain customs collector from 
«r«tlDf act of Marcli 2, 189T, to prevent Importation of Impure 
^ ofl ground of Invalidity of act, where sole ground is Inade- 
Wcy of remedy at law; Sheriff v. Turner, 119 Fed. 780, refusing 
•"a^n army offlcer. acting under oiders of secretary of war pur- 
^1 to statute^ from constructing sewer nt Instance of owner of 
tad Istng below projected mouth of sewer; American School of 
*hp«tlc Healing v. M*Annulty» 102 Fed, 5n6, denying power of 
*^ Id enjoin postmaster- general In ordering Issuance of fraud 
*%, 
^ll 2 rXII, 300). Judgments — Collateral attack — Lack of 

jTllvllrtloD. 

Ktifored In Johnson v. Hunter, 127 Fed. 226, holding where 
•^t for sale of land belonging to nonresident for non payment 
''itxw recited that defendants liad been summoned by publtcatiou, 
•tttwiot be collaterally attacked on ground of lack of evidence of 
iWldtion: Eltonhead v. Allen, 119 Fed, 127» holding where State 
^'ift li tuthorl2ed to Issue attachment of land on filing of atBdavit, 
Nr tllidavit is not re<iulred to be recorded, it Is conclusively pre- 
■Uaid Ihat affidavit made as required, though record silent as to It; 
J^|T» McAndrews, 111 Fed. 864, holding land patent Is impervious 
<ati>Uatena attack, 

DlillninjJshed In White v, Rio Grande, etc., Ry.. 25 Utah. 307, 71 

Nt 001, holding where District Court has jurisdiction of subject- 

- idant may waive right to have action tried in county 

of action arose, 

: iXlh 300). Public lands — Finality of secretary's deter- 



n 



edi In Jamentowu & Northern R, R. Co. v. Jones. 177 U. S. 
^ it U 700, 20 Sup. CL 570. boldlng definite location of right of 
*!/ «f milroad which entitles It to land grant of March 3, 1S75* 
^Me by actual construction of road though no profile mnp Hied; 
^too T, Haggart, 120 Fed, S2'j, holding patent by Arkansas to 
»»tiai> Umda cannot be collaterally attacked; Emblen v. Lincoln 
Uad Co,» 102 Fed. 563, holding secretary of Interior cannot annul 
^tliilo© of predecessor which determines rights of parties to con- 
fHi tor <?ntiy of public lands; Colorado, etc. Co. v. State Land 
^rA. U C^lo. App. 103, m Pac, 374. holding State land board 
<>uai ri^elnd lease of lands made by purchaser where nothing 
f^nilatd t<i b^ done except formal execution of lease, 

bl*tiugiilj;hed In Klrwan v. Murphy. 1S9 U. S. 5<3, 23 Sup. Ct. 
'^» i7 U 706, denying equitable relief against threatened survey 




147 U. S. 177-238 Notes on U. S. Reports. 312 

ander direction of land department of lands to which complainant 
claims title, but which department claims are nnsnnreyed lands. 

147 U. S. 177-189, 37 L. 128, MILES v. CONNECTICUT MUT. UFB 
INS. CO. 

Syl. 1 (XII, 301). Failure to pay premiums — Paid-up policy. 

Approved In Weatherbee v. New York Life Ins. Co., 182 Mass. 
344, 65 N. E. 383, holding where husband, without wife's knowledge, 
surrendered her " nonforfeiture ** policy for new pollcyt payable to 
his legal representatives, she could not recover face value of orig- 
inal policy where it had been forfeited for nonpayment of 
premiums. 

147 U. S. 190-209, 37 L. 132, ILLINOIS CENT. E. E. v. DECATUB. 

Syl. 2 (XII, 301). Tax exemption — Street assessments. 

Approved in Barfleld v. Gleason, 111 Ky. 612, 63 S. W. 968, up- 
holding Ky. Stat, § 2838, providing for original construction of 
streets at exclusive cost of abutting owners according to area; dis- 
senting opinion in Citizens' Bank v. Parker, 192 U. S. 87, 24 Snp. 
Ct. 186, majority holding charter tax exemption includes exemp- 
tion from license tax on occupation; dissenting opinion In French 
V. Barber Asphalt Paving Co., 181 U. S. 351, 45 L. 892, 21 Sup. Ct 
035, majority upholding apportionment of entire cost of street pay- 
ment upon abutting lots according to their frontage, without any 
preliminary hearing as to benefits, affirming Barber Asphalt Paving 
Co. V. French, 158 Mo. 543, 58 S. W. 937; dissenting opinion in Chi- 
cago, etc., Ry. V. Ottumwa, 112 Iowa, 317. 83 N. W. 1080. majority 
holding Code 1873, § 809, docs not authorize city to levy special as- 
sessment on railway right of way to pave abutting street. 

147 U. S. 209-230, 37 L. 138, DE LA VERGNE, ETC., MACH. CO. 
V. FEATHERSTONE. 

Syl. 3 (XII, 302). Patents pass to executor. 

Approved in Winkler v. Studebaker Bros. Mfg. Co., 106 Fed. 190. 
holding where part owner of patent died intestate and estate ad- 
ministered without disposition of interest in i)atent, title acquired 
thereto by assignment from next of kin is sufficient to support 
infringement suit; Fresno Home- Packing Co. v. Fruit Cleaning Ca. 
101 Fed. 828, holding on compliance with Rev. Stat., $ 4895, patent 
Issued to partnership as assignee of inventor's Inchoate right is valid 
though partnership is purely artificial and does not contain name 
of any partner. 

147 U. S. 230-238, 37 L. 145, SUTLIFF v. LAKE COUNTY 
COMRS. 
Syl. 1 (XII, 302). Estoppel to show bonds exceed limit 
Approved in Waite v. Santa Cruz. 184 U. S. 319, 46 L. 664, 22 

Sup. Ct. 333, holding recitals in refunding bonds that they arc 



aa 



NotM on U. S. Reports. 147 U. S. 230-238 



iMoed for authorized pi^rpose nod that all legal requisites have 

complied witli, estop city from denying validity of refunded 

lererslng Santa Cruz v. Waite. 98 Fed, 3!}1, 393, holding re- 

\ In bonds Issued tinder Cal, Stat 1803, p. 59, authorizing dtlea 

t» imie refunding bonds, do not estop city from proving InTalidlty 

«Cfiftoded bonda; Municipal Trust Co. v, Jolinson City, 116 Fed, 

Ml boldlng recitals Id railroad aid bonds Issued under Sban. 

Code Tenn^ §§ 1558-1573« of Issuance under such statute and of 

compliance with Ita requirements, estop city from denying that 

aidid ndlroad was domestic corporation; Burlington, etc.. Bank t. 

Qlnton, 111 Fed. 444, holding where Issue of bonds under Acts 23 

Geo. Assemb. Iowa, chap. 14, § 6, which were all sold to same pur- 

&uet, exceeds debt limit, purchaser is chargeable with notice of 

iocb fact; Geer v. School Dist No. 1, 97 Fed. T34, holding general 

ndtil of compliance with all requirements of law does not estop 

cltj from showing that legal limit exceedcHl where statute did not 

tnthorlxe officers to determine whether limit exceeded; Board of 

Cosui. T. SuUlff, 97 Fed. 278, holding where Colo. Laws 1S77, 

f. 218; et seq.. authorized issuance of county bonds and required 

Ueplii^af book showing financial condition of county, and no such 

book kepi, bonds reciting compliance with statute estop county 

from showing that debt limit exceeded; Kelly v. Cole, 63 Kan. 303, 

C5 PsjC. 675, holding unearned interest coupons attached to inunicl- 

ptl bonds caimot be included in amount for which refunding bonds 

Buy be tened under Laws 1901, chap. 28S, g 1; State v. Wichita 

Cc 68 Kan. 50Q, 64 Pac. 47, holding recitals In refunding bonds of 

(QOpUance with statute authorizing their Issuance and that debt 

flEfHaided is county bonds actually outstanding, county estopped 

fiPMS teaming that debt refunded was bonded indebtedness or 

tlttt IioiiiIb have been outstanding; National Life Ins. Co. v. Mead, 

J & Dsk. 4G, 47, 49, 78 Am. St. Rep. 880, 881, 882, 82 N. W. 79, 80, 

}la# certificates signed by mayor, auditor and city attorney, 

ing steps taken preliminary to Issuance of bonds, and as to 

Qclal condition of city, and used by person negothtting bonds, 

tble to predicate estoppel against city*s asserting that 

exceeded debt limit; dissenting opinion In Pierre v. Duns- 

cMiih. 106 Fed. 620, majority holding certificate on face of municipal 

bonds thAt they have been issued ptirsuant to legislative authority 

t» refimd Indebtedness, estop city from denying Talldtty of re- 

pmO/tA debt 

Otetlii^lshea in Independent School Dist v. Rew, 111 Fed. 9, 
rsdtals on face of municipal bonds that they have been 
pofsuant to legislative authority estop municipality from 
up that debt limit exceeded; Lake County v. Linn, 29 Colo. 
4§l^ 4S9w 68 Pac. 841, holding county records respecting county 
Insdmlssible ta show that legal debt limit exceeded; 





U 



147 U. S. 238-247 Notes on U. S. Reports. 814 

dissenting opinion in Santa Cruz v. Waite, 98 Fed. 396, 397, majority 
holding recitals in bonds issued under Cal. Stat. 1893, p. 59, an- 
thorizing cities to issue refunding bonds, do not estop city flrom 
proving invalidity of refunded bonds. 

(XII, 302). Miscellaneous. 

Cited in Board of Comrs. v. Sutiiff, 97 Fed. 272, reciting histoiy 
of litigation. 

147 U. S. 238-241, 37 L. 150, KOHN v. McNULTA. 

Syl. 3 (XII, 304). Negligence — Bralceman using differently con- 
structed bumpers. 

Approved in Johnson v. Southern Pac. Co., 117 Fed. 464, re- 
affirming rule; St Louis Cordage Co. v. Miller, 126 Fed. 605, 612. 
holding woman injured while working machine which she had 
tended for six months cannot recover; Kenney v. Meddaugh, 118 
Fed. 212, 213, 214, holding locomotive fireman who had been on 
road for long time assumed risk of proximity of mail crane to 
track; King v. Morgan, 109 Fed. 451, holding experienced man 
using iron bar for tamping dynamite assumed risks of employment; 
Hodges V. Kimball, 104 Fed. 751, 753, holding where brakeman 
ordered by conductor to make coupling used hands instead of 
stick furnished by company, latter not liable for his death; Loola- 
ville, etc., R. R. Co. v. Miller, 104 Fed. 126, holding railroad liable 
for injuries to inexperienced switchman making couplings whete 
danger not obvious to inexperienced man and yardmaster knew 
length of service of switchman; Moffet v. Koch, 106 La. 379, 31 
So. 44, applying rule where carpenter who acted as foreman hnrt 
while hoisting steel trusses for roof. 

Distinguished in Northern Pac. Ry. Co. v. Tynan, 119 Fed. 292, 
holding fact that brakeman killed while attempting to couple cars 
on side track on curve, was working from inside of curve, does not 
warrant instruction that he was guilty of contributory negligence, 
where evidence showed danger not greater than on outside. 

147 U. S. 242-247. 37 L. 152, BERNIER v. BERNIER. 
Syl. 2 (XII. 305). Trustees — Wrongful issuance of land paten^=: 
Approved in M'Cune v. Essig, 122 Fed. 590, holding suit b^r* 
daughter of homesteader to recover interest in land, which aft GLja 
his death was patented to his widow under homestead law, ~ 
removable; King v. McAndrews, 111 Fed. 864, holding remedy fi^^ 
errors of law as well as for mistakes of fact, in issue of land paterr^a 
is by bill in equity to correct them; James v. Germanla Iron C ^ 
107 Fed. 600, holding first applicant after local land officers offlciar 7 
notified of decision of secretary of interior that prior entry is vQi U 
entitled to decree changing title under patent to one making ea^^tiy 
prior to official notification, with trust for his benefit; Murray r. 



315 



Notes on U. S. Reports. 147 U. S. 24S^2S2 



MoiiUM, etc. Mfg. Co., 25 Mont, 21» 63 Pac. 720, holding lii eject- 
meot to recover mining claim, where defetidant offers evidence of 
miKfJor claim, and that plaintiff wrongfully obtained patent and 
boidi title in trust for plaintiff, not error to refuse to strike out 
erldeoct for Insufliclency, 

III U. S. 248-200, 37 L. 150, OSBORNE v. MISSOURI PAC. RT. 

CO* 

SyL 3 (XII, 305). Injunction — Suflicieiicy of le^^'at remedy. 

Approved In New York v. Pine, 185 U. S. 105, lUG, 4a L. S2G, 22 

Sup. Cl 597, holding ascextalnment and decree for payment of dam- 

i^w with Injunction In alternative. Is measure of relief in suit by 

riparian owner to restrain construction and maintenauee by city of 

dJUD by which waters of river are diverted; SL Paul, M. & M.Ry. Co. 

T, We«tem Union Tel. Co., 118 Fed. 5l[>, holding where telegraph 

company by ten years* agreement constructed Haes along railroad 

debt of way, equity suit lies, at instance of railway, on termination 

of contract, to restrain use of lines and to determine compensation 

tot use of right of way; General Electric Ry. Co. 7. Chicago, etc*, 

^y. Co., 107 Fed. 776, holding mere trespasser cannot invoke 

tqQlttble relief against appropriation of street adjacent to railroad 

4#|iat lo use of teams and wagons In loading aad unloading mer- 

dktiidlBe; General Electric Ry. Co. v. CbicngOp etc., Ry. Co., 98 

Ffd MO, holding abutting owner who would suffer special and 

Incptrabte injury from construction and operation upon street 

WMler ordinance alleged to be invalid, is entitled to injunction; 

Rlwlae f. Transportation Co., 27 Tex. Civ, 36, 66 S. W. 326, hold- 

iJif where street railroad had damaged property of abutting owneru^ 

tictnaot be restrained from use causing damage because it has not 

tttd« arrangements for compensation before the use began. 

UT U. 8. 2ei-2Ca 37 L. 1G2. NEW ORLEANS v, PAINB. 

9fl 1 {XII, 300). Reviewability of land officer's acts. 

Apl^nived in American School etc. v, M' Annuity, 102 Fed. 560, 
W«ilag to enjoin ijostmaster from enforcing fraud order made by 
fwhniiKt er-gen eral . 

Uiniled in Crulekshank v. Bldwell. 176 U. S. 80, 44 L, 381. 20 
% Cl 283, refusing to restrain customs collector from enforcing 
^ Mirch 2, 1897, to prevent Importation of Impure foods on 
^ni\ of Invalidity of act. 

*<^ U. S, 268-282, 37 L. 104, UNITED STATES v. HARMON. 
^11. 8 fXII, 307>. Marshal — Payments to constable* serving 

Afliroftd In Lovering v. United States, 117 Fed. 506, holding 
''•^•lul In entitled to $2 for each venire, aggregate not to exceed 
^ It Ukj term, for bringing In grand and petit Jnrora. 




fl47 U. S. 282-322 



Notes on U. S. Reports. 



SyL 6 (XIIp 3D7). Costs against marshal. 

Approved In Loverlng v. United States, 117 Fed, 56T» holding 
coats not allowed against marshal on petition for allowance of 
etiarges disallowed by comptroller, where some charges dlsaJ Lowed 
were abandoned on amended petition. 

147 U. 8, 282-^22, 37 L. 170, SHOEMAKER V. UNITED STATEJS. 

SyL 1 (XII, 308). Condemnation for public park. 

Approved In Attomey*General v. Williams, 174 Mass. 479, 55 
N. E, 78. upholding Stat 1898. chap. 452, prohibiting erection of 
buildings over ninety feet high on streets adjoining Copley Square 
in Boston. 

SyL 2 (XII, 308). Condemnation — Legislative and judicial que»> 
tlons. 

Approved in Webster v* City of Fargo, 9 N. Dak. 211, 82 N* W. 
734, upholding Rev. Codes 1895, f 2280, charging entire cost of 
paving streets on abutting owners Jn proportion to frontage. See 
88 Am. St Rep. 935, 941, note. 

SyL 3 (XII, 308). Ezerciie of eminent domain in District of 
Columbia. 

Approved In Wight v, Davidson, 181 U* S. 380, 45 L. 905. 21 
Kup. Ct. 020* upholding act March 3, 1S99, providing for assesament 
ou abutting owners In District of Columbia of one-half or more of 
damages for and in respect of land condemned for the opening 
of streets. 

SyL 7 (XII, 308). Cost of park — Property especially beneflftd. 

Approved In Wight v, Davidson, 181 U. S. 379, 45 L. 904, 21 
Sup. Ct. C*19, upholding act March 3, 1809. providing for assess- 
ment on abutting owners in District of Columbia of one-half of 
damnges for and in respect of land condemned for the opeJilng 
of streets; French v. Barber Asphalt Paving Co., 181 U. S, 342. 

45 L. 889, 21 Sup. Ct 632, upholding apportionment of entire co«t 
of street pavement upon abutting lota according to frontage, with- 
out preliminary hearing as to benefits. 

SjL S (XII, 30SL Damages in eminent domain. 

Approved In Louisville & N. R Co. v. Kentucky, 183 D. 8. 616wJ 

46 L. 305, 22 Sup. Ct 100. upholding Kentucky statutes prohJt 

I ting railroads from charging more for short thaa for long htLui 
ejccept by permission of railroad commission in special cases 
Investigation. See 90 Am, St Rep. 252, note. 

SyL 10 (XII, 309). Interest in condemnation proceedings. 

Approved In Benedict v. City of New York, 98 Fed. 792. holdij 
under Laws N, Y. 1883, chap. 490, authorizing condemnation 
lands for water supply for New York, In appraising propertj^ 
value taken as of time of filing oath by appraisers. 



^«^ 



Notes on U. S. Reports, 14T U. S. 322-370 



117 U R 322-336, ST L. 188, WEATHERHEAD f. COUPE. 

SjL 1 (Xn. 300). Patents. 

Ajjproved In American Fnr Refining Co. v. Cimiottl ITnliftirlng 
Uxch. Co., 123 Fed, 874, folding Suttoa patent No. 383,258. for 
michixie for plucking furs, not infringed by maclilne made under 
LAie English patent; Pittsburg Meter Co, v, Pittsburg Supply Co., 
MP Fed. 651. holding Young patent No, 473,544, for proportional 
fu ffieter. not infringed* 

HI tr. a 337^42, 37 L. 194, LUXTON v. NORTH RIVER BRIDGE 
CO. 

fiyL 2 (XII, 309). Mode of reviewing law actions, 
ApiiroTed In Village of Mackinaw v. United States, 120 Fed. 
258v holding lodgment In proceeding in Circuit Court by United 
iUtm to coDdemn land for public purpose can only be reviewed 
m €fror. 

8yL 4 (XII. 310). Finality — Appointment of condemnation 
commlsaloDera* 

App;t>ved in Railroad y. Atkinson, 53 W. Va. 541, 44 S. E. 774, 
mffirming role; Southern R. R. Co. v. Postal Tei-Cable Co., 179 
V. g. W3, 46 h. 356, 21 Sup. Ct 250, denying writ of error where 
It li taken after appointment of condemnation commissioners and 
iutilnlng of demurrer to an answer which is filed and a refusal 
to permit taking of testimony In support of answer^ Mercantile 
Trust Co. T. Chicago, etc., Ry. Co., 123 Fed, 3D1, holding decree 
00 Intervention against receiver directing delivery of property 
fo petitioner, or in default to account for Its value and also to 
jty rental, and referring to master to ascertain value and its ren- 
tal, l4 not final appealable decree; dissenting opinion in Tyler 
t, Jndge» of The Court of Registration, 179 U. S. 411, 412, 45 L. 
Wk 21 Sap, Ct 208, majority holding objection that persons may 
ht deprived of rights without due process by Massachusetts Tor- 
act cannot be raised by one who has requisite notice. 



147 U, a. 343^60. Not cited. 

147 U. S. 860-370, 37 L. 203, GLENN v. GARTH, 
8yL 1 (Xll» 310), Review of State decision construing foreign 

▲pproTed in East Building, etc., Assn. v. Williamson, 189 U. 
a 125. 2Z Sup. Ct 529, 47 L. 739, and Johnson v. New York Life 
l&s. Co., 187 C. S. 496, 23 Sup. Ct ltM3, 47 L. 275, both reaffirm- 
InC rule; Bnnhobser v. New York Life Ins. Co., 178 U. S. 406. 
¥m, U L. 1126, 1127, 20 Sup. Ct 975, holding decision of court 
flf aaotber State that premium notice required by N. T. Laws 
V8BB^ elup. 090t, I 92, In order to Justify forfeiture for nonpaymc'ut, 
li a0t required on maturity of instalment note when based on 



147 U. S. 370-374 Notes on U. S. Reports. 818 

authority of New York decision, does not deny full faltb and 
credit to the statute. 

147 U. S. 370-^374, 37 L. 206, WALTER v. NORTHEASTERN R. R. 

Syl. 1 (XII, 310). Injunction against taxes — Amount involved. 

Approved in Illinois C. R. R. Co. v. Adams, 180 U. S. 39. 45 
L. 414, 21 Sup. Gt. 255, holding bill for injunction against taxes 
by railroad against revenue agent who represents all parties in- 
terested is sufficient where it states that taxes amount to specified 
sum much larger than jurisdictional amount; Purnell v. Page, 128 
Fed. 498, denying Circuit Court's jurisdiction over suit to restrain 
enforcement of personal tax amounting to $80, though it would 
constitute cloud on title to realty worth over $2,000; Coulter v. 
Fargo, 127 Fed. 913, holding where in suit to restrain enforcement 
of franchise tax amounting to $3,000, and $1,117 of such amount 
was claimed by State and balance by municipalities, and bill not 
sustainable as to amount claimed by State, Federal court had no 
jurisdiction. 

Distinguished in City of Hutchinson v. Beckman, 118 Fed. 403, 
upholding Federal jurisdiction to enjoin enforcement of illegal 
license tax on business, which will result in direct loss exceeding 
$2,000. 

SyL 2 (XII, 311). Joinder for convenience — Amount involved. 

Approved in Wlieless v. St. Louis, 180 U. S. 382, 45 L. 585, 21 
Sup. Ct. 403, ronttirniing rule; Wisconsin Cent Ry. Co. v. PIklmiIx 
Ins. Co. et nl., lL*:i Fed. 989, denying Federal jurisdiction over 
action against several insurance companies liable for loss where 
allojxod liability of each did not exceed $2,000, though State stat- 
ute permitted joinder of causes of action; Jones v. Mutual Fidelity 
Co., 123 Fed. 510, upholdiiijr Federal jurisdiction over action by 
creilitors against insolvent corporation, under 19 Laws Del., chap. 
181, though claim of no one creditor alone equaled jurisdictional 
amount; MeDaniel v. Traylor, V2:i Fed. 339, denying Federal juris- 
diction over suit by heirs to set aside several judgments against 
several defendants where no one judgment exceed $2,000; Stemnilor 
V. M'Xeill. 102 Fed. (JOl, holding in suit to quiet title in which 
several defendants are joined as defendants, between whom no 
privity of title exists and each of whom claims title to separate 
part of trust, value of property in controversy between each 
defeinlant and complainant must exceed $2,000; Colston v. South- 
ern Home, etc., Assn., 99 Fed. 307, arguendo. 

l)istin;,'uislied in Louisville, etc., K. R. v. Smith, 128 Fed. 4. 
holdin;: in suit by railroad against number of landowners to en- 
join threatened intiTference with right of way, value of right 
sought to be protected constitutes value in controversy. 

f 



nit Notes on U, E. Reports. 147 U. S. 375-431 

M7 V, SL 373-306* 37 L. 200, COOKE v. AVERY. 
-'2 (XU, 311K CoQstruetioii of Federal statute as Federal 

Approred Id Kortbera Pac Ry, v. Soderberg, 188 U. S. 528, 23 
8^ CL aes. 47 U 581, holding suit o\*er ownersblp of realty to 
Wliieb ptainUITs title rests on interpretation of exception of minenil 
Itadl In railroad laud grunt Involves Federal question; State v* 
Ftttt m Wis. «H7» m N, W. 920, holding suit by State to enjoin 
F«d«nJ coart receiver from dismantling railroad and selling ma- 
Jtritia composing II in obedience to Federal court's order involves 
PlRSeiil question and is removable. 

8|1 {XJJ. 312). Federal question — Title dependent oa Federal 
MpDimt* 

Approred In Files v. Davis, 118 Fed. 468, 4C9, holding action on 

iOiclimeat bond executed in suit in Federal court Involves Fed- 

■y^Ht'sUon; Nevada Sinai Oil Co. v. Miller, 07 Fed. G90. uplioid- 

' leral jurisdiction where bill asserts rights based on miuiug 

I under Federal laws* 

iXlIt 311). Miscellaneous. 

: In Aldridge v. Pardee, 24 Tex. Civ. 257, 00 S. W. 791, 
- sole trustee of legal title may bring trespasa to try title 
iA own OS me. 

tiT U. S. 29IV-I13, 37 L. 216, HABMAN v. CHICAGO. 
SyL 1 (XIL 312). Commerce — Municipal license tax on towboat 
Alfproved In St Louis v. Consolidated Coal Co,, 158 Mo. 345, 
% 5w S. W. ICM, holding void ordinance exacting license from 
•wiiff of towboat licensed under Federal authority for privilege 
«f towti>g craft lu or out of harbor or from oae place to another 
wtt^a iiarbar. 

Ill C» a 41^^31, 3T L. 223. DOYLE v. UNION PAC. RY, 

SjL 3 iXlI, 313). Landlord — Warranty of fitness of premises 
km ocruiKiticy. 

Apg€oire4 in Schwalbach v. Shinkle, Wilson & Krels Co., 97 P'ed. 

#R. bDlding where leased premises unsafe for purpose for wliUb 

♦'i^>!. nnd such fact is apparent on reasonable inspection, lessor 

le for fujwriea by use of premises in unsafe condition; 

. v. Walsli, 92 Md. 530, 48 Atl. 93. holding landlord not liable 

fflT lojnr'^es to subtenant snstained by defect in premises in ab- 

of *»rldence of existence of deflect at time of lease or of 

rMge of defect on part of iamllord; 0"M«liey v. Twenty-five 

it«i, 178 Moss. 559» GO N. E. :)S8, holding iantiiora of tene- 

oot liable to employee of tenant for injury caused by break- 




147 U. S. 431-486 Notes on U. S. Reports. 320 

ing of hook attached to crane on building If he did not know book 
was defective. 

Syl. 4 (XII, 313). Trial court's opinion as to facts. 

Approved in Aerheart v. St Louis, etc., Ry. Co., 99 Fed. 910, 
reaffirming rule; Nome Beach Lighterage, etc., Transp. Co. v. Mu- 
nich Assur. Co., 123 Fed. 824, applying rule in action on marine 
policy on question of seaworthiness; Breese v. United States, 106 
Fed. 686, applying rule In prosecution of bank president for em- 
bezzlement. 

147 U. S. 431^48, 37 L. 231, UNITED LINES TEL. CO. v. BOSTON 
SAFE DEPOSIT CO. 

Syl. 4 (XII, 314). Judicial sale concludes only parties. 

Approved in James v. Central Trust Co., 98 Fed. 493, holding 
stockholder bound by decree of sale made In foreclosure against 
corporation. 

147 U. S. 449-467, 37 L. 237. HORNER v. UNITED STATES. 

Syl. 1 (XII, 314). Austrian government bonds are lotteries. 

Approved in Equitable Loan Co. v. Waring. 117 Ga. 614, 064, 
44 S. E. 327, 348, holding scheme whereby on payment of initia- 
tion fee and monthly dues for certain time, certain sum paid In 
cash, not lottery; Meyer y. State, 112 Ga. 24, 37 S. E. 97, holding 
merchant giving customers opportunity to secure by chance any 
article of value, additional to that for which such customer hai 
paid, violates Penal Code, § 407 (anti-lottery act); Quatsoe v. Egg- 
leston, 42 Or. 319, 71 Pac. 67, holding contract betw^n advertiser 
and merchant whereby latter for fixed sum is to be furnished 
with number of tickets to distribute to his customers, and adver- 
tiser is to procure pianos to be awarded to person receiving great- 
est number of votes cast by holders of tickets, not a lottery; State 
V. Dalton, 22 R. I. 90, 46 Atl. 239, holding anti-trading stomp act 
void. 

147 U. S. 467-476. Not cited. 

147 U. S. 476-480, 37 L. 247, BARNETT v. KINNEY. 

Syl 1 (XII, 314). Priority of assignment for creditors over at* 
tacbment. 

Approved in Memphis Sav. Bank v. Houchens, 115 Fed. 104; 
holding assignment executed outside of State conveying prox>ert7 
in Stato, which is valid where made and conforms to form pre- 
scril)ctl lor conveyances of realty under laws where It is situated* 
will bo lliere enforced, though not conforming to law, where 
controversy is wholly between nonresident creditors of assignor; 
Rolx^rts V. Norcross, GO N. H. 535, 45 Atl. 561, holding common- 
law jissijrnniont for creditors, executed in another State and valid 
tliorein. imsses title to debtor's property in this State as against 



3n 



Nates on U. S. Reports. 147 U, S. 480-507 



iiiliieqiient attacliment by dissenting creditor; Bloomlngdale v. 
WflL 29 Wash. 624. 627. 628. 70 Pac. 90, 100. holding foreign 
of foreign debtor cannot attacli debtor's realty in thla 
wbere debtor has made voluntary assignroent of all bis 
for benefit of foreign assignee, when such assignment 
k fiUd where executeo. 

117 U. a 48^-190. Not cited. 

H7 U* & 490-494, 37 L. 252, THORINGTON V. MONTGOMERY. 

8yl 1 (XU, 315). Fifth Amendment restricts only Federal gov- 
enunent. 

Approved In Maxwell v. Dow, 17C U. S. 597, 44 L. 603, 20 Sup. 
Ct 455, upholding prosecution for felony by proceeding by lufor- 
matJon; Southern By, Co. v. Bush, 122 Ala. 4SS, 26 So. 173, hold- 
*af In action against railroad to recover damages brought under 
'-odt^ I 27, •* to prevent homicide," answers of engineer In charge 
tif locomotive, causing death, in response to interrogatories pro- 
pounded to defendant filed for discovery; Republic Iron, etc., Co. 
% SUte, 160 Ind. 383, 66 N. E. 1000, holding void Laws im^, 
pL ISS, chap. 124, punishing failure of any one to refuse to ptiy 
Jaborera weekly; State v. Comer, 157 Ind. 613, 62 N. E. 453. hold- 
ttf lasvlBcIent plea In abatement to Indictment that when defend- 
flot called before grand Jury he was not Informed that he had 
hegM^ right to refuse to t^tify. 

MfT U. 8. 4tM-490, 37 L. 253, ARNOLD v. UNITED STATES. 

ByL 2 IXII, 315). Tariff — Knit woolen underwear. 

Approved In United States v. Eschwege, 98 Fed. 602, holding 
edlniold Id polished sheets dutiable, under tariff act 1897, par. 17, 
cL 3. as ** finished or partly finished articles/* 

IMstUifiilsbed In United States v. McBratney, 105 Fed, 769, hold- 
fcV doIUes and tray cloths weighing less than four and one-balf 
•qeneoB per square yard dutiable, at 35 per cent ad valorem, under 
pvai^pli 346 of tarifC act of 1897. 

IIT U. & 500^507. 37 L. 255. SCHUNK v. MOLINE, ETC., CO, 
llfL 1 (XU, 316), Courts — Valid defense reducing claim. 
JkppfWFtd In Manigault v. 8, M. Ward, etc., Co., 123 Fed, 712, 
^Vpljlilff Tuim In suit to enjoin erection of dam across creek; Mor* 
t. Bean, 123 Fed, 620, holding blU to enjoin diversion of 
la violation of complainant's prior right thereto, which 
li valatd it 12,000. and to recover damages In sum of $2,500, su8> 
i by reason of Joint action of defendants, shows Jurisdictional 
t: Board of Comrs. v. VandrEss, 115 Fed. 872. upholdrng Jurls- 
I OTtr action to recover on municipal bond coupons aggregating 
VoLIII — 21 




147 U. S. 60S-524 Notes on U. S. Reports. 

over $2,000, though plea of limitations sustained as to some 
coupons which reduces amount of recovery below that sum; Gr€ 
CJounty Bank v. J. H. Teasdale Comm. Co., 112 Fed. 802, ap 
ing rule in suit for discovery and accounting; Interstate Build 
etc., Assn. v. Edgefield Hotel Co., 109 Fed. 692, 693, applying i 
\jx foreclosure suit; Turner v. Southern Home Building, etc.. As 
101 Fed. 315, upholding Jurisdiction in foreclosure suit wl 
bond of borrowing stoclcholder was conditioned for payment 
loan of $2,000, and stocls dues in arrears exceeded $200, tho 
answer aslsed permission to have value of stocIiL credited on U 
by which amount remaining due was reduced below $2,000; Km 
V. Brown, 09 Fed. 595, upholding Jurisdiction when claim ac 
Jurisdictional amount made under mistal^e of fact, as subseqnei 
shown by evidence; Ung Lung Chung v. Holmes, 98 Fed. ! 
holding court not deprived of Jurisdiction because plaintiff's < 
evidence may not entitle him to recover Jurisdictional amoi 
where it is not of character to Impeach good faith of claim. 

147 U. S. 508^524, 37 L. 259, STANLEY v. SCHWALBY. 

Syl. 1 (XII. 316). Nonsuability of United States. 

Approved in Overholser v. National Home for Disabled Soldi 
68 Ohio St. 246. 67 N. E. 489, 96 Am. St Rep. 659, holding •' Nati< 
Home for Disabled Volunteer Soldiers" cannot be sued for 
torts; El Paso v. National Banlj. 96 Tex. 500, 74 S. W. 21, hol< 
limitations ran in favor of United States for land held by i) 
that title thereby could be asserted by its grantee, though Uo 
States not party to suit; dissenting opinion in Workman v. Ma 
etc., of New Yorli, 171) U. S. 5vS8. 45 L. 331, 21 Sup. Ct 226, majc 
holding city liable by maritime law for negligence of servant 
charge of tlreboat while hastening to fire. 

Syl. 2 (XH. 316). Right of United States to intervene. 

Approved in l»oiul v. United States. Ill Fed. 996, holding 
Code i'lv. Troe., fi loO'J, barring claims not presented to execi 
where pending suit defendant dies, not applicable to action 
govenuueut in Federal court on official bond; United State 
Ameriean Surety ('o., 110 Fed. 914, holding where United St 
sues on statutury eontraetor's bond which also secures oil 
of others aggregating amount exceeding penalty of bond, by 
•on of whieh surety is compelled to marshal claims, court 
stay action until Tnlteil Stattnj submits claim to equity for 
Justment; l*erey Siuumer Club v. Astle, 110 Fed, 490, permil 
Stato attorney-general to intervene in suit where complali 
claimtHl exeluHive tlshery and defendant defended trespass 
ground that lake t»elongeil to State; Salem Mills Ca v. Lord 
Or. 92. 69 rae. 1036, arguendo. 



m 



Notes on U. S. Reports. 



14T U. S. 525-&3: 



HT U. 8, 525-i5a0, 3T L. 266, IN RE HABERMAN MFG. CO. 

^l 1 (Xll, 317). Mandamtia to control discretionary action. 

AppfOFed in In re McKenzie. ISO U. S. 550, 45 L. (563, 21 Sup. 
^iU. holding Alaska Code, § 5€7, does not interfere wltli inher- 
*fi^]30wer of appellate court to supersede proceedings on appeal 
^ffl order appointing receiver, 

J<7 U. 8. 531-537. 37 L. 207. HAMBLIN v. WESTERN LAND CO. 

Syl. 1 (XII, 318). Federal question must be real, 

Afproted In Dobbs v. Kansas. 184 U. S. 607, 46 L. 764, 22 bup. 

^ WO, and Wisconsin v. Commissionere of Public Lands, 183 

'^^ 8, 683. 22 Sup. Ct »34, both reartirming rule; Sawyer v. Piper, 

^** U, S, 156, 23 Sup. Ct 634, 47 L. 759, denying Federal Jurls- 

^^^^tlott oTer claim that rigbt under Federal Constitution would 

"* d«ii!ed by rendition of State foreclosure decree, unless leave 

^ Gle supplementary answer sbould be granted; New Orleans Water- 

^'orkf Ca v. Louisiana. 185 U. S. 345, 46 L. 941, 22 Sup. Ct 694, 

**^«ijlng existence of Federal question wliere State court after 

' ^^^Ml hearing on qua warranto forfeited corporate charter for vlo- 

^taoo of its terms; Pblnney v. Sbepard, etc., Hospital Tru3tees» 

^'^ D. S. 170, 44 L. 720. 20 Sup. Ct 574, holding stranger to con- 

**^fcct cannot raise question of its impairment for purpose of cre- 

mtSa^ Federal question; Walsh v. Coliimbus, etc.. R. R. Co., 176 

C* &. 4T6, 44 L, 552, 20 Sup. Ct 3^6. holding State decision that 

; of May 24, 1828, granting land to Ohio for canal con.structlon, 

I aot cOQ&tltute contract for perpetual mjilntenance of such canals, 

I thit contract thereby made was not impaired by Ohio act May 

^^ 1BH abandoning and leasing canal, raises Federal question. 

titatitifulshed in King v. St Louis, 98 Fed. G42, holding action 
^**^flng right to accretions along river front by owners whose 
'• \m derived through patent issued pursuant to provisions of 
tlonal act la which lands are described as " lying on west 
[ of Mississippi." presents Federal question. 
*yl 2 (XII, 31S). Acceptance of line of location withdraws 

^PfjroTrd in 0*Connor v. Gertgens, 85 Minn. 490, 89 N- W. 809, 
^nj f<»peal of 13 Stat 526, | 7, raaliing it duty of secretary 
^ tuterior to withdraw lands in aid of railroad grant, by 26 Stat. 
^ i 5, did not annul previous order withdrawing lands: Northern 
'Viftt By. T. Kelson. 22 Wash. 532, 61 Pac. 707, holding con^ 
*^l6njil act of July 2, 1864, authorizing withdrawal from sale 
^mry of lands along Northern Pacific, excludes such lands from 
"••■^ti^il entry; dissenting opinion In Hewitt v. Schultz, ISO U. 
' 1^, 45 L. 473, 21 Sup. Ct 316, majority holding, under Nortb- 
^ I^dic grant of 1SG4, land department not authorized thereby 

" 



147 U. S. 638-571 Notes on U. S. Reports. 

to withdraw from the settlement any lands within indemc 
limits of grant upon the mere receipt and approval of map of defli 
location. 

147 U. S. 638-550, 37 L. 272, PLBITAS v. RICHARDSON. 

Syl. 3 (XII, 319). State appellate practice not controllins 
Federal courts. 

Approved in West v. East Coast Cedar Co., 113 Fed. 741, hole 
harmless error for Circuit Court to Incorporate in transcript 
timony excluded on trial and which is not contained in blL 
exceptions; dissenting opinion in Wahl v. Franz, 100 Fed. 
majority holding where, under Arkansas statute, on appea. 
State Circuit Court from probate decree sustaining validity of * 
cause there tried de novo, proceeding on appeal not *'8uit of i 
nature at law or in equity,*' within sections 1, 2 of judiciary ae 
1888. 

(XII, 318). Miscellaneous. 

Cited in In re Gaylord, 113 Fed. 135, holding relation betw< 
stocl^brokers and customers maintaining running accounts w 
them and buying stock on margin is that of debtor and credit 
within bankruptcy act, § 57g, relating to surrender of preference! 

147 U. S. 550-556, 37 L. 276, FLEITAS v. RICHARDSON. 

Syl. 1 (XII, 319). Liability of husband's property for wife's pi 
phemalia. 

Approved in In re Talbot, 110 Fed. 924, 925, holding in Mai 
chusetts where claim of wife against husband's estate for mo: 
lent is void, such claim cannot be proved as debt in bankruptc] 

147 U. S. 557-571, 37 L. 279, HAYES v. PRATT. 

Syl. 5 (XII, 319). Effect of State law on Federal probate Jo 
diction. 

Approved in Brigham v. Hospital, 126 Fed. 797, upholding ti 
devise to pay annuities and unexpended balance at end of twei 
five years to hospital to which residue was devised; Seen 
Trust Co. V. Dent, lOi Fed. 386, holding Minnesota statute 
quiring creditors of decedent to present claims within such tl 
not less than six nor more than eighteen months from gran 
of letters, as Probate Court shall allow, does not deprive FeJ 
court of jurisdiction of action by nonresident creditor In less t 
full eighteen months; dissenting opinion in Wahl v. FranJE, 
Fed. 698, majority holding where, under Arkansas statute^ 
appeal to State Circuit Court from probate decree sustaining rt 
ity of will, cause there tried de novo, proceeding on appeal 
" suit of civil nature at law or in equity/' within sections 1« 2 
judiciary act of 1888. 



Notes on U. S. ReportB. 147 U* S. 571-590 



^^ C. & 571-500, 37 L. 284. WASHINGTON, ETC., R. R. v. HAR- 

UOK 
^/L 1 (XII, 319). Contrlljutory negligence wliere facts disputed. 
-Appfored in Pennsjlvanla Co. v. Paul, 120 Fed. 15D, applying 
*^il« where Injured passenger was riding on platform of over- 
cixiwded car, 

€yL 2 tXII, 320). Burden of proving contributory negligence, 
approved Id Gadonney v. Northern O. Ky.t 128 Fed. mi, hold- 
ing wliere answer contains only general averment of contriliutory 
^tc^igimce motion lies to make it more specific; Hemingway v. llll- 
»«ii Cfent R. R. Co.. 114 Fed. 846, applying rule In action by 
^^Aer for death of minor son at railroad street cross ing. 
^yt 3 (Xn, 320), Passenger must have opportunity to alight 
Approved in Texas, etc., Ry. Co. r. Nuna, 98 Fed. Wd, holding 
wtooid liable for negligence of servants in starting train after it 
M stopped at station before passenger bad bad time to alight and 
^ mddenJy stopping it again, by which passenger thrown while 
^i3!king to car door. 

^rl 4 (XII, 320), Passenger must have opportunity to alight. 

Approved In The Steam Dredge No. 1, 122 Fed. 686* holding 
"•iHgiflce of libelant rightfully on dredge as inspector In plac- 
^hloifelf In position of danger does not bar recovery for injury 
*>* to breaking of bitt through negligence of man in charge of 

?rl5tXII, 320). Future damages following from negligence. 

%roted in In re Stern, llli Fed. OOG, holding damages for 
"*«ch of contract to furnish Ice for period of years are provable 
^3n» flnder bankruptcy act 18»S. $| 59, 63; Denver, ete.. R. R. 
^^ T. fioUer, 100 Fed. 750. holding damages for personal injuries 
^t If Injury Is permanent, include compensntlon for such pain and 
■•(^rtag as it Is fair to believe will result in the future. 

^ 7 (XII, 320). Interest on tort Judgments of District of 

Approved In The New York. 108 Fed. lOS, applying principle 
**Jo0^ment under Michigan statutes, 

B?L S iXIl, 320). Appeal — Ueuiittitur of erroueous interest, 
Approved in District of Columbia v. Camden Iron Works, 181 
C. 8. 4tW. 45 L. 1154, 21 Sup. Ct 084, holding Interest oa price 
*it inkles delivered In part performance of contract when no 
it»i vsauce made for pf^niiliiea or forfeiture, and further perform- 
tiVf [, waived, not limited to period after swit brooght* 



^ 



147 U. S. 691-C23 Notes on U. S. Reports. 

147 U. S. 591-623, 37 L. 292. NEW YORK, ETC.. R. R. v. ESTJ 
Syl. 1 (XII, 320). Service on agent of foreign corporation. 
Approved in Smitli v. Empire State, etc., Devel. Co., 127 : 
465, upliolding service of process on secretary of foreign corp 
tion maintaining principal place of business in WashingtoD 
authorized by 2 Ball. Code, § 4875; Gale v. Southern Bldg., 
Assn., 117 Fed. 735, holding, under 24 Stat. 552, suit may 
maintained against foreign corporation in district of plaint 
residence where there has been service of process on cori)orat! 
agent appointed under Code Va. 1887, § 1104; Denver, etc., H 
Co. V. Roller, 100 Fed. 742, 743, holding, under Cal. Code Civ. P 
§§ 395, 411, foreign railroad doing business in State and ha 
managing agent therein, on whom service may be made, ma; 
sued In State courts for tort committed in another State. Se 
Am. St Rep. 741, note. 

Syl. 6 (XII, 321). Damages for injury to cattle shipped. 

Approved In Farmers' L. & T. Co. v. Northern Pac. R. R. 
120 Fed. 880, applying principle to through shipment by sped 
date; Cleveland, etc., Ry. Co. v. Patton, 203 111. 378, 67 N. R 
holding in action for injury to horses shipped measure of dami 
is difTerence in market value at time of shipment and on arr 
at destination. 

Syl. 7 (XII, 321). Appellate court will not weigh evidence. 

Approved in Baker v. Kaiser, 126 Fed. 319, holding wl 
ground relied on in appellate court to support Judgment other 
erroneous involves question of fact not fully developed at t 
to which attention of neither court nor opposing counsel 
called, judgment will be affirmed; Lesser Cotton Co. v. St Ia 
etc., Ry. Co., 114 Fed. 143, holding Federal appellate court will 
review questions not presented below. 

Syl. 8 (XII, 321). Carrier's liability for abortion of heifers. 

Approved in St Louis, etc., Ry. v. Ferguson, 26 Tex. Civ. 
64 S. W. 799, holding railroad liable for collision causing mil 
riage, though it had no knowledge of pregnancy of passenger. 

Syl. 9 (XII, 321). Carrier's liability for interest 

Approved in Southern Pac. Co. v. Amett 126 Fed. 80, uphol 
Instruction to allow interest from time of demand upon dam 
for breach of contract to transport cattle; Missouri, etc., Ry. 
V. Truskett 104 Fed. 732, holding interest recoverable In a< 
for delay in transportation of stock from time compensation tl 
for was demanded. 

(XII, 320). Miscellaneous. 

Cited in Tooth v. Coleman, 107 Fed. 50, and American Nat I 
V. Williams, 101 Fed. 947, both holding appellate court will, w 



Note« on U, S. Reports. 147 U, S. 623-061 



*xnount of erroneouB interest allowed below can be determined, 
U^qI loeli aJlawance and afQrm aa to balance. 

^^7 r S. 023-639, 37 L. 307. LOVELL MFG. CO. v. GARY. 

)?7l. 2 tXII, 321), Improving adaptability of process not Inven* 



Approved In Union Biscuit Co. v. Peters, 125 Fed. 609, hold- 

Toid Peters patent No. 021,074, for nietbod of and means for 

^fciUilng cracliers: Johnson Co. v. Tokdo Traction Co., 110 Fed. 

^Mt 893, boliling void Moxham patents Nos. 536;734 and 540,79«. 

^<Jt Improvement on railway switcb structure; De Lamar v. De 

X-iBJir MIn. Co., 117 Fed. 247» holding void Walstein patent 

^^5<k fl07,719, for process for extracting metals from cyanide solu- 

^tSoM by use of zinc dust; De Lamar v. De Lamar Min. Co., 110 

F'ed, M2, holding void De Lamar patent No. 60TJ10, for process for 

T^coTerlug metals from solution. 

^L 5 iXlI, 322). Patents — ^Application of old device to new 



Ajproved In Bettendorf Patents Co. v. J, R. Little Metal Wheel 
^ 123 Fed. 435, liolding void Bettendorf patent No. 55U.S15, 
tor method of securing metal spokes to wheel hui>s; Standard 
Ciller, etc., Co. v. Caster Socket Co., 113 Fed. 105, holding Berkey 
it Xo. 318,533. for caster socket, anticipated by Kane & 
'A piitent; Electric Smelting, etc.. Co. v. Pittsburg Reduction 
^^.Ul Fed. 752, holding Bradley patents Nos. 464,033 and 4*j8,148, 
•^Itlive to process for reducing aluminum ores, not Infringed bj 
Wwi^i of Hall patent No. 400,766. 

*^tl.a 64<MH6, 37 L. 313, TAYLOR v. BROWN. 

?yi 1 (ICn, 322). Fractions of day not considered* 

^ 78 Am. 8t Rep, 382, note. 

8jL 8 (XII, 322). Time restricting Indlan*s right of alienation. 

Approved in Aultman, etc, Co. v. Syme, 163 N. Y. 62, m, 78 Am. 
*^ Kep. 571. 57 N, E. ITl, 173, holdiag term of five years witliin 
'liicli execution may be issued on Judgments without leave is 
*^ptlted by including within that term day upon which Judgment 
*•« entered. 

1^, 322). Miscellaneous. 

Cited (n Frasee v. gpokane Co., 29 Wash. 284, 60 Pac. 7S1, hold- 
H Intllan entitled to homestead patent, under act of July 4, 1884* 
^t 10 wliom government ottlcei's erroneously issued patent under 
ttoUer law, not thereby deprived of benefits of that act 
J«7 C. % W7-061, 37 L. 316, BAUSERMAN v. BLUNT, 
9ji 8 rXII, 323). Federal courts foUow State limitation statutefl. 
inn^v^ *n Security Tnist Co, v. Blackrher Nat Bank. 187 U. 
& ^ 2& Sup. Ct. 59, 47 L. 156, bolding, under Minnesota Btat* 



147 U. S. 661-e63 Notes on U. S. Reports. 82 

utes relative to limitations on claims against estates of decedenti 
foreign creditor cannot sue in Federal court after time fixed b; 
Probate Court for presentation of claims; Hale v. Goflin, 120 Fed 
474, holding Rev. Stat Me.» § 87, proTiding that where clain 
against estate of decedent not filed claimant may have remed 
against heirs or devisees wiihin one year after it becomes due^ ' 
enforceable in Federal court; Keyser v. Lowell, 117 Fed. 4JC 
holding void Colo. Sess. Laws 1899, chap. 113, barring suit agaix 
residents on foreign Judgments, based on cause of action, bain 
in Colorado, but not in State where Judgment rendered; Ratft.4 
V. Terminal R. R. Assn., 114 Fed. 668, holding State limlta.^ 
statutes govern actions based on interstate commerce act; G-^m 
Western, etc., Mfg. Co. v. Harris, etc.. Ill Fed. 42, holdlnsr 
tion to charge defendant as corporation officer for misfeasance 
management of corporation governed by limitations of la^^ 
forum; Stem v. La Compagnie Generale Transatlantique, 110 £ 
999, applying rule, under New Jersey statute, relative to aetl. 
for wrongful death; Hanchett v. Blair, 100 Fed. 826, holding, 
der Gen. Stat. Nev., § 3G51, foreign corporation cannot plead U 
tation as bar to foreclosure on property in State; Brunswick, e< 
Co. V. National Bank, 99 Fed. 637, applying rule to Ga. Code, 1* 
§ 2916, with respect to action to enforce stockholder's Uabili 
National, etc., Pipe Works v. Oconto City, etc., Supply Co., • 
Fed. 796, arguendo. 

Syl. 5 (XII, 323). Limitations — Subsequent disability. 

Approved in King v. Pomeroy, 121 Fed. 297, holding llablU 
of stockholder in national bank whose affairs are in liquidatiO 
does not mature until court fixes amount which shareholder mu 
pay and fixes time of payment; McGovney v. Gwillim, 16 Colo. Ap- 
288, 05 Pac. 348, holding where no effort made to prove dal:. 
against estate nor to secure permission to foreclose within oc 
year, a deed of trust by which debt secured, fact that holder « 
note thereby lost his right to foreclose, until Sess. Laws 18^^ 
p. 253, adopted, does not stop limitations; West v. Topeka Sa" 
Bank, GO Kan. 527, 72 Pac. 253, holding when corporation sni 
ponds business limitations begin to run at once on stockholder* 
subscription, to bo paid upon call of directors, and then subjec 
to call, even though no call be made; Fox v. First Nat Bank, 1 
Kan. App. 23, 57 Pac. 243, holding creditor of insolvent corpora 
tion must institute proceeding to enforce stockholder's Uabllit; 
within period of limitations from time he first could have eo 
forctHi his demand. 

147 U. S. G61-C63, 37 L. 321, UNITED STATES v. TANNER. 

Syl. 2 (XII, 324). Practical construction of statutes. 

Approved in Fairbank v. United States, 181 U. S. 308, 310, 4 
L. 873. 874, 21 Sup. Ct. 058, 659, holding void 30 Stat 448, impoi 



Notes on U. S. Reports, 147 U. S. 664-085 



i^ituDp tax 00 foreign bill of lading as being tax on exports; 

lu tt Brodie, 128 Fed. 672, construing army regulations relative 

fo confinement of military prisoners; Deming v. M*Clauglireyp 113 

J^ed 641, holding regular army officers cannot try officers or sol- 

dien of ToJuDteer army: Deweese v. Smith, 106 Fed. 445, applying 

mii to construct ion of banliing laws by comptroller; Johnson v> 

^TfDtiCli, 17a Mo. 467, 75 S. W. 1009, construiug act of Congress 

1SI7, granting military bounty warrants to Mexican war 



mi a a 664-668. 37 L. 322, united states v. FLETCHER. 

^XL 4 (XIl^ 324). Judicial action on claima pending departmental 
termination. 

Ifpored In Marvin v. United States, 114 Fed- 228, balding where 
of clerk*8 fee bill are suspended by department *' for expla- 

rtioo," court will not Interfere to enforce allowance thereof until 
lAKBptmneotal determination; Smythe v. United States, 107 Fed. 
SS^ lioldlng mint superintendent in action for loss of moneys, not 
^■titled to credit where claim not shown to have been presented 
B«* lOHmatlog officers and disallowed in whole or In part 

^^lU. 8, 0e»-6T2» 31 L. 324, UNITED STATES v. PITMAN. 
Syl. 2 {XII, 325^». Fees of marshal for attending court. 
AppmTed in SwJft v. United States, 128 Fed. 7ti6. and United 
• Cabe, 122 Fed. 653. both following rule; United States 
^, ...i U. S. 203. 23 Sup. Ct 497. 47 L. 777, holding marshal 
••^'tieil to fees for attendance at court whether Judge present 
*'«»t;Uoited States, t. Dietrich, 126 Fed. 6G0, holding, under 
^•Stat, I 1038, Circuit Court has jurisdiction to proceed with 
**** remitted aa provided therein at the then current term; di«- 
<«% opinion in United States v. Finnell. 185 U, S. 247, 251. 
^lm,22 Sup. Ct 637, majority holding District Circuit Court 
^ witltled to fees for days when he entered decrees and or- 
^ tboQgh judge not present, where orders and decrees mailed to 
^'7 Judgea. 

*7 1. 8. 672-676, 37 L. 325, UNITED STATES v. JONES. 
<I1I* 325i. Miscellaneous, 

^-ti'4 iQ United States v. Marsh, 106 Fed. 483. as to right of 
•^'^ io charge for affixing seal, 

M? C. 8, €r76-6S5. 37 L, 328, UNITED STATES v. KING. 

W ^ (XU, 326). Clerk's fees — Attendance at different places. 

tUltlikgtiJshed In Swift v. United States, 128 Fed. 764, TCS hold- 
■V Btarylttl entitled to allowanre for per diem compensation pn!d 
ti iddltional bailiffs in excess of three, but not exceeding six, In 



ikltai 



148 U. S. 1-21 Notes on U. S. Reports. 330 

attendance on Circuit and District Ck>urts where such courts held 
by single Judge at same time. 

147 U. S. 685-687. Not cited. 

147 U. S. 687-691, 37 L. 332, UNITED STATED v. PAYNE. 

Syl. 3 (XII, 327). Cleric's fees on scire facias. 

Approved in Kirlc v. United States, 124 Fed. 333, restraining 
marshal pendente lite from enforcing execution of scire faciofl 
CD bail bond. 

147 U. S. G91-695. Not cited. 

147 U. S. 605-701, 37 L. 337. UNITED STATES v. TAYLOR. 

Syl. 2 (XII, 328). Cleric's fees — Seals. 

Approved in United States v. Marsh, 106 Fed. 483, reaffirming 
rule; Loeb v. Trustees of Columbia Township. 179 U. S. 483, 45 
L. 287, 21 Sup. Ct 179. to point that opinion of State court no 
part of record. 



OXLVIII UNITED STATES. 



148 U. S. 1-21, 37 L. 345, THE J. B. RUMBELL. 

Syl. 1 (XII, 330). Supply liens prior to seamen's wages. 

Approved in Knapp, Stout & Co. v. McCaffrey, 177 U. S. 642, 44 
L. 924, 20 Sup. Ct. 820, upholding State court's Jurisdiction to fore- 
close common-law lieu upon raft for towage services; The Sleepy 
Hollow, 114 Fed. 368, holding admiralty lien for towage is inferior 
to statutory lien for repairs, where it was performed more than 
six months before, without effort to collect it till after the repairs; 
The John T. Williams, 107 Fed. 751, holding where materialman 
entitled to lien on schooner for repairs permitted vessel to depart 
from port wherein he might have libeled It and perfected llen« 
his laches give subsequent prior supply claimants priority; The 
Iris, 100 Fed. Ill, 112, holding where vessel sold, and after part 
payment of purchase price Is delivered to purchaser under agree- 
ment by which he is authorized to make alterations at own ex- 
pense, purchaser may charge vessel with Hens. 

Syl. 2 (XII, 330). Contract for building ship not maritime. 

Approved in The John B. Ketcham, 2d, 97 Fed. 880, holding 
lien given by State statute for materials for building ship may be 
enforced in State court. 

Syl. 3 (XII, 330). Admiralty — Liens for supplies in home port 

Approved in The Underwriter, 119 Fed. 751, holding under char- 
ter whereby charterer shall pay for all coal used no lien exists in 



331 



Notes on U. S. Reports. 



148 U. S. 1-21 



faTor of llbelflDt, with knowledge of ciiorter, who furBlshes coai 
fD (oreign port across river from home port. 
Sjl 4 (XII. 330). Local lieu for siipijlles ia home port 
approved in The llobert W. Pai-suDs, 101 U. S. 2-t, upholding 
idmimity jurisdiction to enforce lieu iu rem for repairs made in 
Sew Yorlc to canal-boat engaged iu traffic on Erie canal; The 
Botnoke. 189 U. S. 194, 23 Sup. Ct. 492, 47 L. 773. holdhig void 
2 BalL Waah. Codes. || 5953. 5954, giving absolute Hen upon for 
e%zi vessels for work done or materials furnished at request of 
eootzmctor or subcontractor and mfiking oo provision for protec- 
£Jao of owner who has paid contractor before notice of subeon- 
~ oKs claim; The Energia, 124 Fed. 846, holding Ball. Wash. 
li 5953* 5954, in so far as they give lieu on all vessels for 
'ormance of charter to carry cargoes from one port in State 
another, Is enforceable In admiralty against foreiga vessels; 
The Underwriter. 119 Fed. 745, 7G2, holding under charter whereby 
^Atterer shall pay for all coal used no lien exists In favor of 
Mtelaiit, with knowledge of charter^ who furnishes coal in for- 
ego port across river from home port; The Robert Dollar, 115 Fed, 
SZ3> applying rule under Washington statute; The Li da B'owler, 
113 Fed. 007, holding Federal Admiralty Courts may enforce lien 
created by Pa. Pub. Laws 230. making all sums due for pilotage and 
penalties Imposed for violation of its provisions lien on vessel 
chargeable therewith: The Iris. 100 Fed. lOG, holding where ves^ 
tel l» sold and after part payment of price Is delivered, under 
agr c ciD ent by which he is authortzed to make alterationa at own 
tspcnae, purchaser may charge vessel with liens. 

BfL 9 (XII. 331). Admiralty — Priorities to funds from sale of 



Apfiroved In The St Johns, 101 Fed. 470» holding Admiralty Court 
baviiig fund arising from sale of vessel in limitation of liability 
prg c g i' dlogs may determine contlletiug claims to such fund be- 
owners of injured vessel and insurers who claim subroga- 
txy r^son of having paid insurance, 
8jL U (XII, 332). Decisions binding in admiralty. 
^Sip8X>Ted tn Workman v. Mayor, etc., of New York, 1T9 U, S. 
46 L. 321. 21 Sup. Ct. 21(5, holding, under maritime law. ctty 
for negligence of Us aervnuts In charge of fireboat colliding 
wHh md injuring another vessel while rushing to fire; The Falls 
M KdtJe. 114 Fed. 358, holding where one of libelants of foreign 
0§p li mn American, admiralty will incidentally hear and decide 
cut at to foreign collbelants. 

DfiEtlngiilahed In dissenting opinion in Workman v. Mayor, etc., 
of New fork. 179 U. S. 5SG, 45 L. 330, 21 Sup. Ct. 225, majority 
Ma^ dty liable, under maritime law. for negligence of its ser- 



148 U. S. 21-49 Notes on U. S. Reports. 332 

vants in charge of fireboat colliding with and injuring another 
vessel while rushing to flr^. 

Syl. 12 (XII, 332). Nature of local maritime lien for supplies. 

Approved In State v. Westoll, 106 Fed. 237, holding -vessel not 
liable for death of stevedore, who knowingly remained on hatch 
after beam supporting adjoining hatch, struck while being taken 
out by a steam winch and ordered additional steam applied to 
force out the beam; The Iris, 100 Fed. 113, holding where vessel 
is sold and after part payment of price is delivered, under agree- 
ment by which purchaser authorized to make alterations at own 
expense, purchaser may charge vessel with liens. 

148 U. S. 21-31, 37 L. 350. MOELLA v. SHERWOOD. 

Syl. 4 (XII, 332). Quitclaim purchaser as bona fide. 

Approved in Boynton v. Haggart, 120 Fed. 823, holding bona 
fide purchaser of lands owned by grantor in certain State, with- 
out more definite description, may avail himself of registry stat- 
ute to estop holders of real title under prior unrecorded decree from 
asserting it against his title to all lands which grantor appeared 
to own by records when he made his purchase. 

148 U. S. 31-49, 37 L. 354. UNITED STATES v. CALIFORNIA, 
ETC., LAND CO. 

Syl. 2 (XII. 333). Equity — Special defense plea. 

Approved in Giberson v. Cook. 124 Fed. 987, holding Federal court 
cannot determine suit to quiet title to mining claim, submitted 
on bill and answer, when bill alleges possession in complainant, 
but answer denies such allegation and alleges possession in de- 
fendant; Eveleth v. Southern Cal. Ky. Co.. 123 Fed. 838, holding 
where proofs sustain averments of plea, sufficiency of which has 
been previously adjudged, bill must be dismissed; Miller, etc.. Lux 
v. Richey, 123 Fed. 007, holding plea may contain an averment of 
several facts, but they must all conduce to a single point of de- 
fense; Soderberg v. Armstrong, IIG Fed. 710. holding filing of 
general replication to plea in bar is not an admission of the suflS- 
ciency of the plea; United States v. Peralta. 99 Fed. 624, holding 
where demurrer to petition which alleged necessity of certain 
action by court to enforce prior decree avers omission of certain 
prior orders which are omitted in petition, and pleads such orders 
In bar, demurrer treated as special plea; Daniels v. Benedict, ©7 
Fed. 374, holdinjr complainant by failing to set down plea for argu- 
ment and by tiling general replication thereto, and going to hear- 
ing on issue tlius made, admits legal sufficiency of plea, so that If 
facts pleade<l are established, defendant Is entitled to dismissal. 

Syl. 5 (XII, 334). Who is bona tide purchaser. 

Approved in United States v. Southern Pac. R. R. Co., 98 Fed. 
43, holding, under act of March 2, ISOO, directing bringing of 



Notes on U. S. Reports. 



148 U. 8. 49^j0 



for recovery of lands erroQeously patented nnder railroad 

aU bona fide purchasers who bought In belief that they 

wHt obtain good title from railroad of lands which have been 

psteoted to It are protected whetber patents Issued before or 

mtter comioeJieeQxeDt of suit. 

SyL 6 (XII. 334). Conclusiveness of decisions on delegated 
questions* 

Approved In United States v. Southern Pac. R. R. Co., 98 Fed, 
42. holding, under act March 2» ISl^G, directing bringing of Bulls 
f6r recovery of lands erroneously patented under railroad grants^ 
all bona fide purchasers who bought In belief that they will ob- 
ULio good title from railroad of lauds which have been patented 
to It are protected whether patents issued before or after com- 
mencement of suit. 

Syl* 8 (XII, 334). Quitclaim purcliaser — Bona fides — Successor. 

Approved in Boynton v, Haggart, 120 Fed. 823, 824, 825. hold- 

^^k subsequent purchaser of lands conveyed to him by warranty 

^^Bid not chargeable with notice of unrecorded decrees by fact 

r tluit some prior deed In chain of title is quitclaim deed. 

L iXn, 33aK MlsceUaneoue. 

I Cited in dissenting opinion in United States v. California, etc., 

' Land Co,. 192 U. S. 362, 24 Sup* Ct. 269, reciting history of litigation. 

148 U. 8. 4a 37 L. 362, UNITED STATES v, DALLES MILITARY 
ROAD CO. 
flty^L 6 (XII. 334). Conclusiveness of decision on delegated ques- 



Approved in United States v. Coos Bay Wagon Eoad, 110 Fed. 
ari^eodo. 

UB U. 8. 5(M]0. 37 L, 363, COMMERCIAL BANK v, ARMSTRONG. 

Byt 1 iXn. 335). Agency of bank collecting for otker* 

See note, 86 Am. St Rep. 7S9. 

i^L 2 (XU, 335), Indorsement for collection. 

See notes* SO Am. St. Hep. 785; 77 Am. St Rep. 614. 

8||1 5 fXII, 335). Banks — Proceeds collected by agent's receiver 

Aplprored in Richardson v. New Orleans CoCTee Oo., 102 Fed. 
S^ holding depositor may recover from receiver money deposited 
li iMiili on day on which it closed its doors* and when It was 
ksaamu by officers that It was insolvent See 86 Am. St Rep. 798, 
7M,iiot«L 

9tL t (XII, 336). Banl£S — Suhagent applying proceeds of col- 



in American Ex. Nat Bank v, Theummler, 105 111. 
lOOL m Am. 6t. Bep. 182, G2 N. E< 93G, holding where bank having 



148 U. S. 60-80 Notes on U. S. Reports. 884 

draft for collection sent it to correspondent who collected it and 
applied proceeds to overdrawn account oiP first bank, correspond- 
ent not liable to owner where first bank had suspended paym^it 
and correspondent had no knowledge of first bank's agency. See 
86 Am. St. Rep. 790, note. 

Syl. 7 (XII, 336). Collecting bank — Remitting at intervals. 

Approved in Peters Shoe Co v. Murray, 31 Tex. Civ. 261, 71 8. 
W. 978, holding where draft sent to bank for collection and It 
makes assignment for creditors, turning over to assignee more 
money than amount of such collection, drawer not entitled to fol- 
low funds in hands of assignee. 

148 U. S. 60-71, 37 L. 368, MAY v. TENNEY. 

SyL 1 (XII, 336). Binding efTect of State decisions. 

Approved In Sullivan Timber Co. v. City of Mobile, 110 Fed. 
190, upholding rights of riparian owners along Mobile river to 
construct wharves. 

Syl. 2 (XII, 337). Assignment for creditors or chattel mortgage. 

Approved in Anniston Iron & Supply Co. v. Anniston Rolling 
Mill Co., 125 Fed. 976, holding direct transfer to creditors without 
intervention of trustee is not assignment for benefit of creditors. 
constituting act of bankruptcy. 

148 U. S. 71-80, 37 L. 373, LEHNEN v. DICKSON. 

Syl. 1 (XII, 337). Court's findings not reviewable. 

Approved In Green v. Western Union Tel. Co., 118 Fed. 1016; 
Wolff V. Wells, Fargo & Co., 115 Fed. 34; Ogden City v. Weaver, 
108 Fed. 506; Consolidated Coal Co. v. Polar Wave, etc., Co., 106 
Fed. 799; Syracuse Tp. v. Rollins, 104 Fed. 961, and Hughes 
County V. Livingston, 104 Fed. 320, all reaffirming rule; Bradley 
Timber Co. v. White, 121 Fed. 785, holding where both parties 
move for peremptory instruction, and court directs verdict for 
one of parties, both are concluded by the facts found; Interstate 
Com. Comm. v. Southern Pac. Co., 123 Fed. 602, applying prin- 
ciple to findings of interstate commerce commission; Davis v. 
Daugherty, 105 Fed. 771, applying rule in action to recover amount 
of Internal revenue on brewery. 

Syl. 2 (XII, 338). Scope of review where findings general. 

Approved in West v. East Coast Cedar Co., 113 Fed. 739, re- 
affirming rule; Corliss v. Pulaski County, 116 Fed. 291, applying 
rule in action on county railroad aid bonds; McMaster v. New 
York Life Ins. Co., 99 Fed. 870, applying rule in action on life 
insurance policy where sufficiency of pleading not brought to 
attention of lower court 



Notes on U. S. ReporU. 



14S U. S. 80-4»2 



I 



SifL S (SIl, 338). Ag:rmi state meat same as spec [a 1 finding. 
Ajifvored in Grattan Tp. v. Cblltou, 97 Fed. 150« reafflrmlng rule; 
MoUbI Life Ins. Co. v. Kellj, 114 Fed, 271, applying rule In action 
4m Hfc insurance policy; Wilson r. Merchants* Loan* etc., Co», 
W Fed, €Sil, applying rule In action by national bank receiver 
til recorer assessments on shares. 
SyL 5 (XII. 33S). Recital of testimony not special finding, 
Approred in Wilson v. Merchants* Loan & T. Co., 183 U. S. 
128^ 44J I*. 116. 22 Sup. Ct 58, holding agreed statement of facts 
frfaicb la so defective as to present, lii addition to certain ultimate 
fartB, otber and evidential facts upon which material ultimate 
tact might have been but was not agreed upon, Is not require- 
nent wltb Rev. Stat., H 649, TOO. 

UB U. 8. 80-S4, 37 L. 376, ASTIAZARAN v. SANTA RITA MIN. 
CO. 

EjL 1 (Xll, 339). Private rights — Change of soverefgnty. 
Approved In Barker v. Harvey, l&l U. S. 487, 45 L. DGT, 21 Sup. 
CL 680. holding California Mlssioo Indians* claiming right of per- 
iMiifli t €K?cupancy under Mexican laws, abandoned rights by failing 
tt» present claims to com mission for confirmation: Page v. Pierce 
Ool, 25 Wash. 10, 64 Pac. 803» holding lands of Indian reservation 
•ad those assigned in severalty, pursuant to treaty, are exempt 
from State taxation where they have been deeded under act of 
Gooigress to purchasers from whom deferred payments are due. 
SyL 2 iXII, 339). Matter pending in other tribunal. 
Approved In Lockhart v. Leeds, 10 N. Mex, 600, C3 Pac. 53, 
hiWIng bill allegiog partnership to prospect for minerals and set- 
Uftf Up fraud In partner in not having location recorded so that 
4i€eiidants could locate cannot, under Conip. Laws, g 4010, be sits- 
tateMi as bill to aniet tlile. 

DlMLoguished In Lockhart v. Johnson, 181 U, S, 524, 45 L. 084, 
:i Sop. Ct 668. holding, under private land claims act, public 
lamls beUmging to United States, though within claimed limits 
9(t Mflifrlin grant, became open to entry and sale. 

.«5 U. 8. S*-SJ2. 37 L. 378. UNITED STATES v. FLETCHER. 

SyL 1 (Xll» 340). President's signature to court-martial sentence. 

A^^proved In In re Brodie, 128 Fed. tltiS, 070, applying rule to 
An^f Ri^lations, par. 940, relative to confinement of prisoners 
Bte icataiice of court-martial. 

tfL 2 (Xll, 340). Collateral attack on court-martial's order 
A^pfOTsd In Carter v. McClaughry. 183 tJ. S. 400, 46 L. 253, 
% CL 195, upholding order that embezzlement waa to preju- 
Qf good order and military dlsclpliue. 




148 U. S. 92-124 Notes on U. S. Reports. 33a 

148 U. S. 92-107, 37 L. 380, ST. LOUIS v. WESTERN UNION TBH 
CO. 

SyL 1 (XII. 340). Review of refusal to direct verdict 

Approved in Green v. Western Union Tel. Co.. 118 Fed. lOlll, 
reaffirming rule. 

Syl. 2 (XII, 340). Fixed city charge for poles not tax« 

Approved in Western Union Tel. Co. v. New Hope, 187 U. fi, 
427, 23 Sup. Ct 205, 47 L. 244, upholding borough license fee on 
each pole and on each mile of wire of electric light, tdegraph ' 
and telephone companies; City of Toledo v. Western Union TeL 
Co., 107 Fed. • 14, holding interstate telegraph company, which 
accepted provisions of Rev. Stat, §§ 6263-^268, not entitled to 
erect and maintain lines over city streets without complying with 
city regulations and without permit 

Syl. 4 (XII, 341). Rent charge for use of streets for poles. 

Approved in Plattsburg v. People's Tel. Co., 88 Mo. App. SIB* 
holding city may charge telephone company for use of its streets. 

Syl. 6 (XII, 341). Federal telegraph franchise — Private rights. 

Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. 
S. 163, 23 Sup. Ct 818, 47 L. 1000, holding telegraph company, 
though engaged in interstate commerce, may be compelled to pay 
city license fee on poles and wires. 

Syl. 6 (XII, 341). Rental for exclusive use of streets. 

Approved in Western Union Tel. Co. v. Pennsylvania R. R. Co.* 
120 Fed. 366, holding telegraph company, which under contract for 
term has maintained its lines on railroad's right of way, acquired 
no rights by its tenancy which would support condemnation suit 

Syl. 7 (XII, 341). Cities — Imposing new burdens — Constito- 
tlonal law. 

Approved in Mercantile Trust etc., Co. v. Collins Park, etc., 
Co., 99 Fed. 817, holding city ordinance granting street railroad 
franchise, which is passed under authority delegated by State, it 
law of State within contract clause of Constitution; Hot Springs 
Elec. Light Co. v. Hot Springs, 70 Ark. 303, 67 S. W. 762, hold- 
ing where electric-light company obtained franchise to erect poles 
in streets for twenty years and entered into lighting contract 
with city, latter cannot require company to pay rental for use 
of ground occupied by poles. 

148 U. S. 107-124, 37 L. 386, VIRGINIA v. PAUL. 

Syl. 1 (XII, 342). Federal Jurisdiction over crimes against States. 

Approved in In re Laing, 127 Fed. 216, upholding Federal juris- 
diction to Issue habeas corpus where Federal officers were indicted 
by State court for killing prisoner they were seeking to arrest at 
command of marshal. 



Notes on D. 8. Reports. 148 U. S. 124-1S3 



Sjl 8 CXII, S42). Removal occurs on filing petition. 
Approved In Sparkman v. Supreme Council, 57 S* C, 21, 35 S. 
& 382, holding In order to remove cause on £rroun(]s of prejudice 
ir loettl Influence, defendant must obtain order from Federal court 
tm' mnoval and file it In State court and take from It a transcript 
ajid file it in Federal court. 

SjL 5 <X1I, 342). No removal before Indictment. 
|vl>ivtlzigi]i8bed In In re Strauss, 126 Fed. 330. upholding sufficiency 
Idavlt, under Ohio statute, to sustain extradition proceedings. 

US U, S. 124-133, 37 L. 3»2, UNITED STATES v. POST. 

BjL 1 (Xlh 342). Overtime pay for letter carriers. 

Approved In United States v. Moaes. 126 Fed. 63, holding la* 
ItorerB or mechanics working overtime for government not entitled 
f» extrm pay. 

148 U. 6. 134-142. Not cited. 

14S U. 8. 142-148, 37 L. 399, ROSENTHAL v. COATE3. 

BjL 1 (XII, 343). Time to seek removal. 

Appn^ved In Pennsyivanla Co. v. Leeman, 160 Ind. 22, 66 N. 
E. S>, holding where on appeal from order denying removal it 
wppemi^ tiiat petition for removal not made until after amended 
complBlnC filed after answer, and original complaint not In rec* 
preanmed that complaints are not so different as to authorize 
at such time. 

SjL 2 (XIl, 343). Eemoval for local prejudice. 

Approved In Holmes v. Southern Ry. Co., 125 Fed. 302, hold- 
tof. mder judiciary act of 13SS, § 2, any one defendant who Is 
fitlsen of another State, though Joined with citizen of same State 
tt Dttlntiff, may remove for local prejudice, though no separable 
nmtnttiwy exists. 

I« U. 8. 148-162. Not cited. 

l«l V. a 162-166, 37 L, 400, IN RE SCHNEIDER, 
SyL 1 QQIt 343). Habeas corpus — Overruling challenges for 



See 87 Am. St Rep. ISO, note. 
1« U. a 187-172. Not cited. 

m U. 8. 172-185. 37 L. 410, MARX v. HAUTHORN. 
Mft. I (XII, 344). Tax sale must follow statute. 
Approved In Eaton v. Bennett, 10 N. Dak. 349, 87 N. W. 189, 
no TSlld tax can be extended against property where re- 
oeot lias not annexM thereto amdavit required by 




148 U. S. 186-214 Notes on U. 2S. Reports. 53fi 

Syl. 4 (XII, 344). Conclusiveness of tax deed. 

Approved In Turpln v. Lemon, 187 U. S. 59, 23 Sup. Ct. 23, 47 
L. 74, upholding W. Va. Acts 1882, chap. 130. relative to sale of 
land for unpaid taxes; Car^y v. Cagney, 109 La. 83, 33 So. 91, hold- 
ing where original owner remains in actual corporal possession 
of property, holder of tax title under invalid sale does not set 
prescriptive title by limitation; Denver v. Comwell, 10 N. Dak. 
130, 86 N. W. 231, holding tax sale void for failure to give proper 
notice of sale as required by Rev. Codes, § 1255; Sheets v. Paine* 
10 N. Dak. 106, 8G N. W. 119, holding assessment void for de- 
fective description of land; Tax Title Cases, 105 Tenn. 253, 60 & 
W. 261, holding without due certification of list of lands strock 
off to State treasurer at tax sales no title passes. 

Syl. 6 (XII, 345). Names — Idem sonans. 

Distinguished in Green v. Meyers, 98 Mo. App. 443, 72 S. W. 
129, holding Judgment abstracted against ** E. G." Is sufQcient notice 
of the full Christian name " Eleanor 6." 

148 U. S. 186-195, 37 L. 415, UNITED STATES v. ALEXANDER 
Syl. 1 (XII, 345). Interruption of use of property as taking. 
Approved in Lowndes v. United States, 105 Fed. 839, holdinir 

government diverting stream in improvement of navigation must 

compensate riparian owners who for over 100 years have used 

waters to flood rice plantation. 

Syl. 2 (XII, 345). Government's liability for Incidental destruc- 
tion. 

See 85 Am. St Rep. 303, note. 
148 U. S. 196. Not cited. 
148 U. S. 197-214, 37 L. 419, PETTIBONE v. UNITED STATER 

Syl. 2 (XII, 345). Indictment must state necessary facts. 

Approved in United States v. Greene, 100 Fed. 947, reaffirm! .__r 
rule; Dalton v. United States, 127 Fed. 546, applying rule to l 

dictment, under Rev. Stat., § 5480, for using mails to defra^^Hm< 
M'Kenna v. United States, 127 Fed. 91, holding void indlctm^^sn 
under Rev. Stat., § 5508, punishing conspiracy to Intimidate ^bbblii 
citizen in free exorcise of constitutional rights or privileges, wkr^Bic 
fails to state what particular right or privilege is meant; Un^Site 
States V. M'Leod, 119 Fed. 410, holding assault on United St«=^t« 
commissioner who some months prior thereto had held det^^^od- 
ant to answer in criminal case is not within Rev. Stat, § 5^Ftt^.* 
Kitselnian v. Kokomo Fence Much. Co., 109 Fed. 042. appl^p?^'W 
rule to indictment, under Rev. Stat., § 5480, for using maili^ ^ 
defraud; Salla v. United States, 104 Fed. 545, 546. holding In^uf- 
ficient, under Rev. Stat., § 3993, indictment charging defend^D^* 
with conspiring "to unlawfully, willfully and knowingly" delay 



Notes on IT. S. Reports. 148 U. S. 214^228 



and olisTmct passage of railway car, which said car was then aod 
fbcfte carrjing and transporting mails of United States; Banks 
», State, 157 Ind. 197, CO N. E, 1089. holding information for at- 
MflnptlJig to bribe one who had previously been designated as 
lo election officer must show^ by whom alleged officer waa de.slg- 
listed for appointment; dissenting opinion in Rieger v. Unite*! 
StitM» 107 Fe<L 034, majority holdiog indictment for willful mis- 
•ppropriatlon of funds of uational bank, under Rev. Stat., § 5209, 
•iksed to have been committed by discounting notes, sustained 
by proof that defendant bank president, without knowledge of 
directors, discounted note which he knew to be worthless, and 
cre^iited proceeds to maker, 

Disriuguished in United States v. Greene, 115 Fed. 353, holding 
tDdictment for conspiracy to defraud governmi>nt by presentation 
ol fmudnlent claims need not specify particulars in which sucto 
cklms were frnadulent. 
8yl. 4 (XII, a4C). Conspiracy defined. 

^AfiproTed in dissenting opinion in Wright v. United States, 108 

814, mnjority upholdiug indictment for conspiracy, under 

8tat.. I 5440, charging that defendants "* unlawfully did 

t^fisplre to defraud the United States/' followed by statement of 

•iiore und object of conspiracy and the acts done to affect Its 

«t]fCt 

8|l 5 (XII, 346). Indictment for conspiracy must show purpose, 

Approved In Conrad v. United States, 127 Fed. &)Q, holding in- 

^Wuueni for conspiracy to obstruct mails in violation of Rev. 

*^^ 1 3Di95, must allege that defendants con spired to " knowingly 

^ »lllfully " obstruct the mails. 

^tJ 8.214-222, 37 L, 426. PASSAVANT v. UNITED STATES. 
^l 34T). Miscellaneoaa. 
'^In Helwig v. United States, 188 U. S. 619, 23 Sup. Ct 432. 
' 'jID, arguendo, 

'^^ 8. 222-228, 37 U 429, IN RE SANBORN. 

^^ 2 IXII, 348). Imposing nonjudicial functions on courts. 
^ -fprovtHl In South Dakota v. North Carolina, 1D2 U. S. 320, 24 
^^ '-\ 2T(1, upholding Supreme Court's jurisdiction in action 
2^^ State against another for foreclosure and sale of security 

*^*IXII, 348). Fiuality of Court of Claims' decision. 
^^\v^ In District of Columbia v. EsHu, 1S3 U. S, 66, 40 L. 
J'^^up. Ct 18, denying Jurisdiction to review decision of Court 

^'IftlQui Against District of Columbia whej'e pending appeal act 



^^m 16, iSftlO, waa repealed. 



148 U. S. 228-244 Notes on U. S. Reports. 

148 U. S. 228-244, 37 L. 432, GAINES v. BUGO. 

SyL 1 (XII, 348). Discretion of lower court as to mandat 

Approved in Murphy v. Utter, 186 U. S. 00, 46 L. 1074, 22 2 
Ct 777, reaffirming rule; White v. Bruce, 100 Fed. 364, hol< 
where mandate from Circuit Court commands execution Cir 
Court cannot entertain defense there sought to be set up, base^ 
invalidity of original judgment; Koonce v. Doollttle, 48 W. Va. 
37 S. E. 645, holding mandamus lies to compel circuit Judge 
court to comply with appellate mandate. 

Syl. 4 (XII, 348). Proceedings in lower court on reversal 
part. 

Approved in Balelgh v. First Judicial Dlst Court, 24 Mont 
61 Pac. 004, holding where District Court erroneously struck i 
files contest of will, on ground that it was inadmissible, bee 
of former contest which had been dismissed as hot stating grm 
of contest, mandamus lies to compel court to take Jurisdiction^ 

SyL 5 (XII, 340). Appeal — Mandate. 

Approved in State v. Burbridge, 41 Fla. 460, 26 So. 1019, 1 
ing mandamus does not lie to set aside interlocutory decr« 
equity suit whereby order of publication and publication the 
and service on nonresident defendant administratrix sought thei 
are set aside. 

Syl. 6 (XII, 340). Mandamus to correct erroneous constme 
of mandate. 

Approved in Illinois v. Illinois C. B. Co., 184 U. S. 92, 40 
447, 22 Sup. Ct 306, holding on second appeal only errors not m 
sldered on first appeal are noticed; The Union Steamboat Co., 176 
S. 310, 44 L. 1085, 20 Sup. Ct 005, refusing mandamus in collis 
case where Supreme Court directed decree dividing damages betw 
two vessels and allowing owners of cargo of one vessel full 
covery against other vessel, and lower vessel refused to aL 
latter vessel to recoup against other one-half damages to cai 
Buck!, etc., Lumber Co. v. Atlantic Lumber Co., 128 Fed. : 
holding where mandate directed award of new trial and Issuai 
of execution for costs on appeal, and lower court granted e 
of execution, mandamus lies to set aside stay and proceed v 
new trial; Southern Bldg., etc., Assn. v. Carey, 117 Fed. 
holding Circuit Court cannot refuse to allow appeal on groi 
that decree sought to be appealed from was entered on a a 
date from the Circuit Court of Appeals; Warren v. Boblnsom 
Utah, 444, 61 Pac. 30, holding where nonsuit is set aside on 
peal and cause remanded with directions to proceed In accords 
with opinion, and neither opinion nor mandate requires trial 
novo, court may proceed with trial in same manner as If no n 
Buit had been entered. 



«1 Notes on U. S. Reports, 148 V. S. 24&-2ei 

^^a a 215-255, 37 L. 438, HUME v. BOWIE. 
W 1 (XII, 34^)» Appeal — YacadoD of new trial. 
Approved In Macfarland v. Brown, 187 U. S, 244, 23 Sup. CL 
^^. 47 L. 161. holdiEg decree of Court of Appeals of District of 
^^BlSmbia, reversing order in condemnation proceedings and re- 
■'•ading for further proceedings, Is not final Judgment reviewable 
^ Supreme Court; Rlchardson*8 Guard la nship, 39 Or. 254, 64 
^«c. 393, holding order of County Court requiring guardian to 
account with ward made after guardian has heen released on 
'^ard attaining majority Is appealable. 

Bjl 2 (XU, 350). Settling exceptions after term. 
Approred in Weatem Dredging, etc., Co. v* Heldmalcr. 116 Fed. 
^^2, holding where cause tried before Judge of another district^ 
•ltd at termination of time allowed for signing bill of exceptiona 
WaI Judge was absent and bill signed by judge of district, and 
*^ wma afterward suppressed by appellate court, trial Judge at 
ineot term could sign bill nunc pro tunc. 
jtB (XII» 330). New trial where exceptions not settled. 
Approved In Tubman v. Baltimore, etc., R. E. Co,, 190 U. S, 
^. 23 Sup. Ct 778, 47 L. 947. holding Judgment dismissing case 
'*"' want of prosecution cannot, in absence of fraud, be set aside 
^ application made after close of term at which entered. 

Syl. 4 (XII, 350). New trial — Loss of bill of exceptions — Death 
^ Itidge 

^^proTed In Manning v. German Ins. Co.» 107 Fed. 54, holding 
•^■i^T for new trial where application made In due time is proper 
^^^i*dy for incapacity of judge who tried case to settle and sign 
^H ct exceptions; Spinney v. HaUiday, 115 Iowa, 423, 88 N. W. 
^^. holding where shortliand notes of evidence were talten by 
«•% taaistant official reporter, a eertiflcation of the longhand ex- 
^•••loo by the official reporter is not compliance with Code, f 3749, 
^^^Ulllfig evidence to be taken by one appointed by judge and 
**P«n certified by such reporter, 
^yl 5 iXll, 350), Prolonging term for settlement of exceptions. 
Approved In Dees v. State. 78 Miss. 255, 28 So. 850, holding, 
Code, I dl2. where special term not limited In call. It may 
Id session so long as business requires, without reference 
^Ittfth of r^nlar terms fixed by law. 

^U 8. 255-261, 87 L. 441, PENNSYLVANIA CO. v. BENDER. 

8ji Z (XU, 351). Removal by filing petition in State court. 

%roved In Sparltman v. Supreme Council, 57 S. C. 20, 35 S. E. 
^ boldlng In order to remove cause on ground of local prejudice, 
Mm^MXkt must obtain order from Federal court for removal, file 
«% to Sute court, and take from it a transcript and file it in 



148 U. S. 262-aOO Notes on U. S. Reports. 842 

148 U. S. 262-266, 37 L. 443, HOHORST y. HAMBURG, ETC.. 
PACKET CO. 

Syl. 1 (XII, 351). Appeal — Dismissal as to one defendant. 

Approved in Menge v. Warrlner, 120 Fed. 817, and Carmichael ▼. 
Texarl^ana, 116 Fed. 846, 847, both holding decree dismissing de- 
fendants who are charged to be Jointly liable with other defend- 
ants is not final appealable decree. 

Syl. 2 (XII, 351). No appeal until whole controversy settled. 

Approved in Dowagiac Mfg. Co. y. Superior Drill Co., 115 Fed. 
890, reaffirming rule. 

Syl. 3 (XII, 351). Finality of decree — Separable parties. 

Distinguished in Hooven, etc., Co. v. John Featherstone's Sons, 
111 Fed. 85, holding decree in suit to enforce mechanic's Hen that 
complainant tal^e nothing and that it is entitled to no lien against 
certain defendant is appealable by complainant, though another 
necessary party who was never served and never appeared was 
named in petition and summons as a defendant 

148 U. S. 266-270, 37 L. 445. COLUMBUS WATCH CO. V. BOB- 
BINS. 

Syl. 1 (XII, 352). Sufficiency of certificate of division. 

Approved in Felsenheld v. United States, 186 U. S. 134, 46 L. 
1089. 22 Sup. Ct. 743, holding certificate of division must present 
distinct proposition of law; Qerman Ins. Co. v. Hearne, 118 Pe<i« 
135, holding Circuit Court of Appeals cannot certify question (^"C 
law to Supreme Court on motion of party unless Judges consld^^ 
such question doubtful. 

148 U. S. 270-292, 37 L. 447, HUBER v. NELSON MFG. CO. 
Syl. 1 (XII, 352). Patent after lapse of foreign patent 
Distinguished in Societe Anonyme, etc. v. General EUectrlc C^^S- 
97 Fed. 605, holding provisional foreign patent which mer^ .^ 
secures applicant against effects of publication for three yean ^^^: 
entitles him to definitive patent on making certain proofs wlt_ "Mn 
that time does not affect subsequent American patent for Be^m^m: 
invention under Rev. Stat, § 4887. 

148 U. S. 293-300, 37 L. 454, WASATCH MIN. CO. T. GRESGES.?^ 
MIX. CO. 
Syl. 4 (XII, 353). Objection for variance too late on appeaL 
Approved in Paanhan Sugar Plantation Co. t. Palapala, 127 W^^ 
922, holding where in admiralty suit in personam defendant made 
no objection that by reason of plaintiff's minority he cannot 8MM^ 
alone, objection cannot be first raised on appeal; The McCall Co. "^• 
Jennings, 26 Utah, 464, 73 Pac. 640, applying rule in action foJE* 
balance of purchase price of goods sold; Jennings v. Pratt, 19 Utall# 



si:t 



Notes on U. 8. Reports. 14^ LL «, aoi-Hir. 



133» 515 Pac 9C2, holding objtM^tions to suffleioney of pleadings will 
aot for &rst time be con8id(?red on appeal in determining question 

of HOQBQit 

148 U, 8. 301-311» 37 L. 459, CAMERON v* UNITED STATES. 
^L 3 (XII, 353), Defense to ejectment from public I&ndB. 
Approved In Tidwell v. Cbiricabua Cattle Co. (Ariz.), r»3 Pac. 190. 
bolding nnder act Congress February 25, 1SS5, relative to unlaw- 
ful tocJositre of public lands, defendant In eject ment could uot 
atike lawful entry on tract less tban 1€0 acres wblcb had been 
iadofied by tbe original settler, as Incident to bis settlement, all 
«f wlileh was In actual use and beid by pialntifif under record con- 
Teyajices from original settler and his grantees. 
S|l 4 iXII, 353). Color of title— Ejectment from public lands. 
Approved In Scbrlmpsber v. Stockton, 183 U, S. 298, 4G L. 206, 
a Sop. Ct 111, holding deed valid on face made by one bavlng 
title to land when received by one bona fide purchaser is color of 
utle; raited States v. Green, 185 U. S. 2T0» 4tJ L. 905. 22 Sup. Ct. 
•545, arguendo. See 88 Am. St. Rep. 703, TOO, notes. 
5jL 5 (XII, 353). Adverse possession — Color of title, 
8<# 88 Am. St. Rep. 710, note. 
*1U, 353). Miscellaneous. 

Cited In Oregoo» etc., R. R, Co, 7. United States. 190 U. S. ISCi, 23 
*^Ct 675, 47 L, 1013, to point that railroad grant does uot nttacH 
**lUids which at time of definite location of land have been sold, 
*'^«nipted or reserved or otherwise disposed of for any purpose. 

'** U. 8. 312-345, 37 L. 463, MONOKGAHELA NAV. CO. v. 
UNITED STATES. 

^5"L I (XII. 354). Eminent domain — Necessity for compensation. 

^|?pin?ed in Richmond, etc., R, R. v. Chambiio. 100 Va. 405, 41 
^^^ 751, holding in condemnation procee^lings injury to access 
"^^ Increase of difficulty and co^ts of handling freight on residue 

^sad ire proper elements of damage to be considered. 
^^3ri 2 (XI I« 354), Eminent do man — Compensation besides 

Approved in Postal Tel., etc. Co. v. Chicago, etc., R. R. Co., 3o 
'^^ App. f>J2, 6d N. E. 021, holding telegraph company may ac- 
_^^ right of way for Its lines over and along right of way of rail- 
id when sach use will not materially interfere with use for 
^^Idi l&nd was originally condemned by railroad. 
C||i 3 (XII, 354). Compensation in condemnation is judicial 

iVpfVred In United States v. Honoltilo Plantation Co., 122 Fed. 
K iMikiliig in proceedings to condemn portion of tract of land, 



^ 



148 U. S. 312-^345 Notes on U. S. Reports. a 

taking of which did not affect the value of remainder, evidence 
value of improvements of remainder is inadmissible; Newbnry^i 
Water Co. v. City of Newburyport, 103 Fed. 586, upholding Ma^ 
chusetts acts authorizing city to build own water-worlis, and ot^ 
ing city to purchase works of water company having franco 
at price fixed by appraisers; Kennebec Water Dist. v. Watenr ! 
07 Me. 214, 217, 54 Atl. 18, 19, determining value of plant of w ^ 
company sought to be taken by eminent domain. 

Syl. 4 (XII, 355). Eminent domain — Dam — Earnings 
franchise. 

Approved in Spring Valley Water- Works v. San Francisco* 
Fed. 601, holding in determining reasonableness of rates to 
charged by water company, amount and value of bonds and st= 
of corporation, if not in excess of real value of property, majr* 
considered; Kennebec Water Dist v. Waterville, 97 Me. 202, S 
54 Atl. 13, 16, determining value of water plant sought to be tsT- 
by eminent domain. 
Syl. 6 (XII, 355). Congressional authority over navigable ri?0P 
Approved in United States v. Lynch, 188 U. S. 471, 23 Sup. » 
357, 47 L. 549, holding government diverting stream in improvem^ 
of navigation must compensate riparian owners who have for o^ 
100 years used waters to flood rice plantations; Dowues v. Bidw9 
182 U. S. 289, 45 L. 1107, 21 Sup. Ct. 788, holding merchaud*. 
brought from Porto Rico since passage of Foraker act is not ^ 
empt from duty; Falrbank v. United States, 181 U. S. 300, 45 
809, 21 Sup. Ct. 655, holding void, as tax on exports, 30 Stat 4^ 
imposing stamp tax on foreign bill of lading; United States 
Bellingham Bay Boom Co., 170 U. S. 216, 44 L. 441, 20 Sup. Ct 8^ 
holding log boom which completely blocks channel of navlgaV 
river, not being authorized by 1 Hill Wash. Stat, § 1592, not » 
empt from prohibition of river and harbor act of 1890, § 10; disse^ 
ing opinion in Scranton v. Wheeler. 179 U. S. 184, 45 L. 145, 
Sup. Ct. 65, majority holding where government pier erected 
submerged lands in front of lands of riparian owner permaneE0 
destroys owner's access to navigable water, he is not entitled. 
compensation. 
Syl. 7 (XII, 355). Franchise to take tolls vested right 
Approved in Gulf & Ship Island R. R. Co. v. Hewes, 183 U. I 
77, 46 L. 91. 22 Sup. Ct 30, holding privilege tax upon a railroad cop 
poratlon is a tax on property; Davenport v. Bufflngton, 97 Fed. 28^ 
holding Cherokee Nation which dedicates land within town site foi 
park purposes cannot revoke such dedication and sell land aftci 
town settled; dissenting opinion in Pickens v. Coal Riv. Boom, etc 
Co., 51 W. Va. 454, 456, 90 Am. St Rep. 828, 41 S. E. 403, 401, ma 
Jority holding erection of boom in close proximity to mill wlthoQ 



Notea on TJ* S. Beports. 148 U, S. 345-371 



at of owner thereof, so as to Impede flow of water, creates 
nee Kfidering owner liable to millowner for damages. See 90 
-*-«»* fit Bep, 828, note. 
^l 9 (XH, 355). Taking lock Is taking francliise for tolls. 
approved In Scranton v. Wheeler, 179 U. S. 1^. 45 L. 134, 21 
*^p. Cl 54, holding where government pSer erected on submerged 
**^>d in front of lands of riparian owner permanently destroys 
^c<*«g to navigable water* he Is not entitled to compen^iatloa; 
**>tliig VaL Water- Works v. San Francisco, 124 Fed. 594, holding, 
^^ dfCerminlng reasonableness of rates to be charged by water 
^^^ViPttQjr, amount and value of bonds and stock of corporation, If 
•«*t la excess of real value of property, may be considered; Ken- 
Water Dist V. Waterville, 97 Me. 213, 54 AU. 17, determine 
rmlne of water plant sought to be taken by eminent domain. 

I ^^S Xr. 8, 345^59, 37 L. 475, AUKENY v. CLARK. 

^yK 3 (XII, 306). BepUcatfon departing from complaint 
^I>lkroTed in Crown Cycle Co. v. Brown. 39 Or. 288, G4 Pac, 452, 
^^oMln^ where action Is brought to recover value of goods sold and 
^^Uvered, and defendant pleads that they were purchased under a 
•P^dai contract, by terms of which price is not due, reply alleging 
*^*«t epeclal contract was procured through fraud Is not departure. 
^Tl* 4 tXII, 356). Objection as to variance between complaint 
•*<i replication. 

Approved In Patillo v. Allen West Commission Co,, 108 Fed. 731, 
^^boldlng sufficiency of complaint in action on account stated. 
SyL e iXIl, 356). Title of assignee of unpaid railroad land, 
Ol^tlngnSshed in Toltec Ranch Co. v. Cook, 191 U. S. 538, 539, 
_HkSitig adverse possesrsion under claim of right for period pre- 
^b^Uy Utah statute, after act granting land and before Issuance 
Pmteat to railroad for part of Its land grant within that State 
tm within Its right of way. prevails against putent 

^'^ t. S, 3130-371, 37 L, 480, JOHXt^TON v. STANDARD MIN. Ca 
*TV I (XII, 357), Laches — Failure to demand reconveyance. 

^PpfVTed in Horner v. Lowe, 159 Ind. 411, 64 N. E. 220, hotd- 
*l <lBfiTiidant In action on note which he gave to plaintiff in con- 
"^lloa of delivery of deeds which plaintiff held as security for 

^^ ptrty's debt cannot, after fifteen ye^irs' delay, defend on 
i^'iaad tliat deeds did not include all laads intended to be conveyed 
**<W be never offered to reconvey. 

W. I (XII. 35TK Laches — Institution of suit 

AWflBred In O'Brien v. Wheelock, 184 U. S. 482, 46 L. 652, 22 

''^ (X 306, reatBrmlng rule; Coleman v. Aiiers, 87 Mian. 494, 92 

plaintiff wha neglects to enter default judg- 



148 U. S. 372-388 Notes on U. S. Reports. S46 

ment for nearly eight years after service of summons upon defend- 
ant Is not sufficiently diligent 

Syl. 4 (XII, 357). Laches — Knowledge obtainable by inquiry. 

Approved in Darnold v. Simpson, 114 Fed. 370, holding mere fact 
that debtor concealed fraudulent conduct, and that creditors knew 
nothing of situation until short time before bringing action, does 
not talve case out of Statute of Limitations, where diligence would 
have enabled creditors to secure the property In payment of their 
debts. 

Syl. 5 (XII, 358). State claims to property of uncertain yalue. 

Approved in Kessler v. Ensley Co., 123 Fed. 567, holding four 
years* delay by stoc]£ holders seeking to set aside corporation's con- 
veyance for fraud on part of grantee not excused by general allega- 
tion of lack of knowledge without showing that inquiry made prior 
to ascertainment and where means of knowledge was accessible; 
Mantle v. Speculator Min. Co., 27 Mont. 478, 71 Pac. 607, denying 
plaintiff's right to restrain defendant from working mine barred by 
laches; Hatch v. Lucky Bill Min. Co., 25 Utah, 418, 71 Pac 868» 
holding stockholders of mining corporation whose stock has been 
sold under void assessments, who with full knowledge make no 
objection for more than ten months after last sale, are estopped, 
as against innocent purchasers, from setting up invalidity of sale. 

148 U. S. 372-388, 37 L. 48G, AMERICAN CONSTRUCTION CO. ▼. 
JACKSONVILLE, ETC., RY. 

Syl. 2 (XII, 358). Appeal — Interlocutory order on receiyersbip 
or injunction. 

Approved in Heinze v. Butte, etc., Min. Co., 107 Fed. 168, deify- 
ing appeal from order dismissing application to set aside order 
enjoining applicant from interfering with receiver's possession. 

Syl. 3 (XII, 359). Mandamus not used to review. 

Approved in In re Key, 189 U. S. 85, 23 Sup. Ct 624, 47 L. 721,^ 
refusing mandamus to Court of Appeals of District of Columbia t^^ 
reinstate cause dismissed on appeal; In re Grossmayer, 177 T7. ^_ 
49, 44 L. (>GG, 20 Sup. Ct. 530, holding where Circuit Court, aftte*- 
sufiicieHt service on defendant, erroneously declines to take jari^ 
diction, mandamus lies to compel it to proceed to determinatloo ; 
Kiml)erlin v. Commission to Five Civilized Tribes, 104 Fed. 6IM^ 
holding mandamus does not lie to compel commission of five cirJI- 
ized tribes to enroll woman as citizen. 

Syl. 8 (XII, 300). Certiorari to review Circuit Court of Appeals. 

Approved in White v. Bruce, 109 Fed. 364, reaffirming rule; 
Motes V. United States, 178 U. S. 400, 44 L. 1153, 20 Sup. Ct IWa 
holding, under judiciary act of 1891, any criminal case Involving 
construction or application of Constitution can be brought up 
directly from Circuit Court 



Notes on U. S. Reports. US IT. S. 3Sn-ll2 



Ui» rr. S. 3S&, 37 li. 493. WOLFE v. HARTFORD LIFE, ETC. 
IXS. CO. 
Sjt. 1 (XII, 360). Allegation of residence Insufficient to show 
\ dttxensblp. 

Approved in Corel v. Chicago, etc., Ry. Co., 123 FeJ. 454, boldhig 
wliere unmarried man^ living in Missouri witb mother, filed on bome- 
Rettd elalm in Oklahoma* wblch at end of fourteen mouths He 
vred up and sold, and where he had built ciiMu oo place and 
ftde several short trips there, he had co such domicile In Oklahoma 
Ived Federal court in Missouri of action against foreign cor- 
lEioii; LIttell v. Erie R. R. Co., 103 Fed. 539, upholding sufficiency 
ition that plaluUCP Is citizen of United States nnd au actual 
iem of a State named; la re Plotke. 104 Fed. 907, holding where 
tnrfadlctjon of Bankruptcy Court rests solely on allegation that 
iMkBknipt had place of business In^ district %%*ithin preceding six 
■lODtlia, and that it appears that she made assignment under State 
lava four months prior to petition, it cannot be assumed that 
aaBt^nee continued business for more than one month thereafter. 

118 V, & 390, 391. Not cited. 

1« tr. 8w 301. 3r»2, 37 L. 494, NORTHERN PAO. R. R. v. WALKER. 
Syt 1 (Xll^ 361). Injunction against tax sales — Amount 
Approved In McDaniel v. Traylor, 123 Fed* 339, denying Circuit 
>Uft*« Jurisdiction over suit by heirs to set aside probate Judgments 
.•'.inn estate as fraudulent, where oo one of Judgments exceeded 
and defendants not alleged to be Jointly liable, 
'ngnished in Hutchinson v. Beckman, 118 Fed. 403, uphold- 
inf Kedural court* s Jurisdiction of suit to enjoin enforcement of il- 
ijljil U^fase tax Imposed on business, and enforced by daily arrest 
f waployeea, which alleges direct loss resulting from such inter- 
*ftr«ftce of over 12,000. 

^U. S. 303-307, 3T L. 495, BARNUM v. OKOLONA. 

8jL I iXII, 301). Length of time of municipal bonds. 

H'tirwed lu Campbensvllle Lumber Co. v. Hubbert, 112 Fed. 
^i TUTi, holding, under Ky. act February 27, 1882, authorizing 
^ In which judgment is recovered on Taylor county bonds to 
••■^ and collect rax to pay sucl* Judgments, making them lien, 
**l ^vldlng that bonds Issued thereunder shall contain stlpula- 
*il 00 Ui«lr face that holders shall be entitled to remedies for 
*ttWoo tn such act provided, only holders of bonds containing 
^ adpiUatlon are entitled to such extraordinary remedies, 

Nir. a.3!rr-4i2, 37 l. 408, people v. cook. 

^ 3 <XII, 362), Tax exemption must be clear 
A|pnir«d in Adams v. Tomblgbee Mills, TS Miss. 6S7, 20 So. 472, 
9Ndlaf Laws 18&I2, p. 84, to encourage establishment of factories 



148 U. S. 412-481 Notes on U. S. Reports. 

and to exempt them from taxation; Territory v. Building < 
Assn., 10 N. Mex. 343, 62 Pac. 1100, holding neither shares c 
uor mortgages to secure loans of building and loan asso^ 
are exempt from taxation; dissenting opinion in Citizens 
V. Parker, 192 U. 8. 87, 24 Sup. Ot 186, majority holdin 
charter exempting from taxation Included exemption from 
tax. 

Syl. 4 (XII, 862). Withdrawal of special privileges frc 
poration. 

Approved in Adirondack Ry. v. New York State, 176 U. S. 
L. 408, 20 Sup. Ct 463, holding ralhroad*s right to take la 
eminent domain, so long as It Is unexecuted except by merd 
map of proposed route, is not vested so as to make condemns 
State for other purposes operate as impairment of contract! 
buryport Water Co. v. City of Newburyport, 103 Fed. 687, 
ing Massachusetts statutes empowering city to erect own 
works and to purchase plant of company which had been gr\ 
franchise, at price to be fixed by appraisers; Minor y. Brie 
171 N. Y. 571, 64 N. E. 455, holding mileage-book act is v 
applied to railroad thereafter reorganized under law of 1882, 
It succeeded to rights of old company, one of which was to 
specified fare. 

148 U. S. 412-427. Not cited. 

148 U. S. 427-481, 37 L. 509, UNITED STATES v. OLD SBTTl 

Syl. 2 (XII, 362). Judicial question — Statute inoperat 
fraud. 

Approved in Taylor, etc. v. Beckham, etc., 108 Ky. 296, 
St. Rep. 300, 50 S. W. 181. determining right to office of g< 
after contest In legislature. 

Syl. 5 (Xll. 303). Courts — When Federal right arise*. 

Approved in United States v. Choctaw Nations, 179 U. 8. 
L. 307. 21 Sup. Ct. 104, construing Choctaw treaty of April 2 
relating to lauds of leased district. 

Syl. (Xll. 303). Court of Claims — Scope of Uiquiry of 
claims. 

Approved in dissenting opinion in Pam-To-Pee v. United 
187 r. S, 300. 23 Sup. Ct, 150. 47 L. 229. majority holding Ju 
of Court of Claims. dis(H>siug of fund for Indians in claim 
United States, is final. 

Syl. 7 (XII. 3tK^). Parties — Few suing for all. 

Approved in Chisolm v. Caines, 121 Fed. 400. holding m 
knowingly dlsreganiing iujuuotiou restraining all persons 
soever from trespassing on laud is guilty of contempt 



Notes on U. S. Reports. 148 U, S. 482-52S 

m U. S. 48S-4flO, 37 L. 52». NATIONAL HAT-POUNCING MA- 
CHIXB CO* V. HEDDEN. 

Sjl 1 (XII, 3G3). Patents — Combinations — Anticipation. 

Approved in Dececo Co. v, George E. Gllclirlst Co,, X25 Fed, 
3Wl 2», upholding Frame and Neflf patent No. 425,410, for water 
^iam; aiorrlD v. Law lor, 99 Fed. 980* construing Morrln patents for 
tDprorementa In steam geueratora. 

1«U. 8. 49(K$02, 37 L. 533, SMITH v. TOWNSEND. 

8|l 1 (XII, 363). Doubtful statutes — Surrounding clrcnm- 
■tuices. 

Amntrred In Daniel 7, Simma. 49 W, Va. 5(16, 39 S. E. 695. con- 
ttraiag Code, chap. 3, f 34, and holding that voter must deface 
•fl columns on ballot other than tliat on which he places names 
Ji tbofte for whom he wishes to vote. 

IrL i (Xn, 3^). Entry by one rightfully on land before time. 
Ipproved In Winebienner v. Forney, 189 U. S. 153, 23 Sup. Ct. 
_ . 47 L. 757, construing presidential proclamation of August 19, 
MW» relative to opening for settlemeat of Clierolsee outlet; Black 
^JtcksoQ, 177 U. S* 365, 44 L. 807, 20 Sup. Ct. 054, arguendo. 
" shed In Potter v. Hail, 189 U, S. 294], 29T, 2DS. 23 Sup. 

47 L. 819, 820, holding ruling of land department that 
fftor going Into prohibited territory by entryman who had retired 
•4 tiken part within race did not disqualify entry was not re- 
liilWe. 

W8C,8. 503-528» 37 K 537, VIRGINIA v, TENNESSEE. 
^rt.2(Xn, 364). Agreements between States. 
Approved In Steams v. Minnesota, 179 U. S. 246, 45 L. 175, 21 
% Ct 82, holding Minnesota act of 1S96. repealing former laws 
''•Wlrtlag railroads from taxation and providing for taxation or 
^ pioted to railroads, impaired obligation of contracts. 
M. 4 (XII. 364). Statutes — Noscltur a soclis, 
V':iroTiM In Louisiana v. Texas, 176 U. S. 17, 44 L. 354, 20 Sup. 
ondroversy between State and citis^ens of another 
.,,,. ^^ ^.ast, art. 3, S 2, not created by enforcement of 
•'Mae regulations by State health officer acting under valid 
^'^^ ^0 damage of citizens of another State, 
^l 8 (XII, 365). State boundary long acquiesced In. 
A>pwv«d in Stevenson v. Fain, 116 Fed, 154, applying rule under 
^'^^IfQl of States of North Carolina and Tennessee, confirming 
^Miry line between two Slates as run and mariied by commis- 
si BMlng V, Hebard, 103 Fed. 542, determining boundary be- 
*•*» Tennessee and North Carolina. 

?nlsbed In McMillan v. Hannah, 106 Tenn. 694, 61 S. W. 
oidlng acqntesence by county for fourteen yeaxa In Illegal 



148 U. S. 529-556 Notes on U. S. Reports. 

claim of another county to portion of its territory under 
statute does not estop, county to assert its right to such terri 

148 U. S. 529-536, 37 L. 546, CHICOT CO. v. SHERWOOD. 

Syl. 3 (XII, 365). Courts — State laws prescribing mod 
redress. 

Approved In dissenting opinion in Wahl v. Franz, 100 Fed. 
704, majority holding where, under Arl^ansas statute, on a] 
from probate decree sustaining validity of will, case tried de 
in State Circuit Court, proceeding on such appeal not ren 
under judiciary act 1888, §§ 1, 2. 

Syl. 4 (XII, 366). Pleading — Conclusions of law in answex 

Approved in Green v. Indian Gold Min. Co., 120 Fed. 716. 
ing, in action by servant for injuries, allegation that it was dm 
defendant to provide reasonably safe place to wofk and to 
same in reasonably safe condition, which arises by implication 1 
facts alleged elsewhere, is surplusage. 

148 U. S. 537-547, 37 L. 549, LASCELLES v. GEORGIA. 

Syl. 2 (XII, 3G6). Extradition — Trial for other offense. 

Approved in In re Little, 129 Mich. 455, 456, 457, 89 N. W. 
39, holding person arrested in one State, charged with Federal ci 
Yn another State and transported to latter State to await ac 
of Federal grand jury there, may be turned over to authoritie 
latter State for infraction of its laws without being allowed i 
to return to first State; In re Wallter, 61 Nebr. 812. 813, 816, 80 N 
513, 514, holding defendant extradited in good faith may be arre 
on capias issued in bastardy proceeding; State v. Clough, 71 N 
600, 53 Atl. 1089, holding wliere affidavits in support of requisi 
for fugitive from justice show that person charged fled after < 
mission of some of crimes charged but before others, they 
sutfieient to show he was a fugitive; People v. Hyatt, 172 N 
181, 04 N. B. 826, 92 Am. St. Uep. 708, holding fact that pe 
not actually present in State at time of commission of alleged © 
was subsequently present in State for single day, nearly a 
before institution of prosecution, does not mal^e him fugitive. 
87 Am. St. Rep. 191, note. 

148 U. S. 547-550, 37 L. 552, GRANT v. WALTER. 

Syl. 3 (XII, 307). Patents — Change in degree. 

Approved in Standard, etc., Scale Co. v. Computing Scale 
126 Fed. 049, construing patents for computing scales; Eamc 
Worcester Polytechnic Institute, 123 Fed. 74, upholding Wa 
patents Nos. 411,845 and 425,8:J0, for twist grain drills; Ui 
Blue Flame Oil Stove Co. v. (ilazior, 119 Fed. 162, holding 
Jeawns reissue No. 11,001, for blue flame oil stove; National Ch 



551 



Notes on U. S. Reports. 148 U, S. 55&-581 



cil ttci, C(K T. Swift & Co.. 104 Fed. 89, boldlng void Van Ruym- 
<)^piteatNo. 367.732» for fertilizer from contents of water <anks, 

J«1J, 8. 556-562. 37 L. 558» KREMEXTZ v. S. COTTLE CO. 

Syl. 2ixn, 367). Patents — Popular use in case of douDt. 

^Plffoted in Kalamazoo Rj. Supply Co. v. Duff Mfg. Co., 113 
^«2m» opholding Barrett pittent No. 312,816, for lifting jack; 
^ Briss Works v. General, etc., Ck)., Ill Fed. 400, uptioldiiig 
**toiiMi patent No, 412,15o, for improvements in electric railroad 
*>fll^; Beer v. Waldbridge. 100 Fed. 460, wpbolding Beer patent 
^•'2flOJ37, for fire-proof fabric; Irwin v. Hasselman, 07 Fed. Ons, 
"^din^ Ryan patent No. 379.334, for ImprovemeiitB in l>ook 

''^^Isbed In Stajidard Caster, etc., Co. \\ Caster Socket Co., 
^^^*«1 165, holding Oerkey patent No. 318.533» for caster socket. 
**^/piated by Kaiu and Brown patent. 
^fl 3 (XII, 36S). New combination of old elements with new 

^DDroted In Sanders v. Hancock, 128 Fed. 434, npbolding Hardy 
*^*«>t No. 556,972, claim 2, for disk plow; Peters v. Union Biscuit 
^^ l2t) Fed. (SS4, upholding Peters patent No. 021.074, for method 

***d meflns for packing crackers, 
^^•Hisgoiebed In Plumb v. New York, etc., R. R. Co., 97 Fed. G4T^ 
*^***g Toid McKenna patent No. 348,280, for air-brake attacbuient. 

^ ^, 8. 562-572, 37 L. 5G0, UNITED STATES v. UNION PAO, 

P'^i- S (XII, 369). Statutes — Contemporaneous executive con- 
in. 

^rovtd In Falrbank v. United States, 181 U. S. 308, 45 L. 873, 
^tip, Ot. 65g. bolding 30 Stat. 448, $ 0, imposing stamp tax on 
vpt bill of lading, void as tax on exports; Nunn v. Cerst Brew- 
Co^ 90 Fed. 942, holding wbere beer stamps, under Rev. StaL, 
^"^^l. Were purchased July 24, 1807, but before signing by presi- 
^'^^ <if ntufndment, purchaser entitled to discount though stamps, 
• '^iit course of business, were used later. 

^''^ ^. a 573-581. 37 L. 504, GERMAN BANK v. UNITED STATES. 
*I^2(XH. 360), GoverniDenrs liability for ofHcer*s acts. 

%«?«d to Blgby r. United States, 188 U, S. 406, 23 Sup. Ct 
H4TL 523, denying government's liability for Injuries to person 
^mtd la ^levator In government building. 

^5(XII, 360). Clean hands necessary to subrogation. 

%m?iNl hi Larson v. Gisefos, US Wis. 372, 05 N. W. 400, hold- 
^ *hjcre portion of land included iu contract was sold under 
^'^^^itbii Against Tctudee, part not sold being homestead, and after- 




148 U. S. 581-615 Notes on U. S. Reports. 352 

ward contract foreclosed by vendor, purchaser at execution sale 
did not, on payment of amount due on contract, become subro- 
gated to vendor's rights as to all land covered by contract 

148 U. S. 581-501, 37 L. 569, LONERGAN v. BUFORD. 

Syl. 4 (XII, 360). When payment is Involuntary. 

Approved in Pembroke v. Hays, 114 Iowa, 578, 87 N. W. 402, 
holding where action is brought on note alleged to have been given 
under duress, plaintiff may testify as to consideration for note. 

148 U. S. 591-603, 37 L. 573, ATCHINSON BOARD OP EDUCA- 
TION V. De KAY. 

Syl. 1 (XII, 370). Bonds — Misrecltal of statute. 

Approved in Beatrice v. Edminson, 117 Fed. 432, holding where 
power to issue municipal bonds has been vested in city by ap- 
propriate legislation, recital on face of bonds of statute which does 
not grant the authority is not fatal to the securities. 

Syl. 3 (XII, 370). School board issuing bonds for city. 

Approved in Thompson v. Village of Mecosta, 127 Mich. 526, 86 
N. W. 1046, holding bond entitled ** Public Improvement Bond of 
Village • • •/* reciting issuance under statute authorizing 
village trustees to issue improvement bonds, and by which ** board 
of trustees of village*' promised to pay, and signed by president 
and clerli of village and sealed with village seal, was bond of 
village. 

Syl. 4 (XII, 370). Cities — When resolution vaUd. 

Approved in Board of Mayor, etc. v. East Tenn., etc, Co., 115 
Fed. 307, holding charter power to grant privileges and franchises 
for use of streets by ordinance cannot be exercised by resolution 
amending ordinance malving such grant; Ogden City v. Weaver, 
108 Fed. 509, upholding city contract entered into by resolution 
where statutes governing city do not require its execution by 
ordinance; People v. Mount 186 111. 573, 58 N. E. 364, holding 
power given council by city and village act, art 5, | 1, pars. 4, 46^ 
to regulate and license sale of liquors, can be exercised only by 
ordinance; Smitli v. The State, 64 Kan. 733, 68 Pac. 642, holding 
council may empower city attorney to appear in pending suit and 
confess judgment 

148 U. S. C03-615, 37 L. 577, SWAN LAND, ETC., CO. v. FRANK. 

Syl. 3 (XII, 371). Corporation indispensable party where rights 
affected. 

Approved in Hale v. Coffin, 114 Fed. 573, reaffirming rule; Red- 
field V. Baltimore & O. R. K. Co.. 124 Fed. 930. holding in suit by 
stoclvlioldor of corporation of same State against corporation an«l 
foreign curi>oraUou, to charge latter as trustee because of acts 



Notes on U* S. Reports, 14S U, S. 61EM327 

wlilcb ft o majority stockholder, en need formeT to do. domestic 
corporatioQ camiot be aligned with complainant to glre requisite 
dlrerslty of citizenship; Talbot J. Taylor^ etc., Co, v* Soutbeni 
Pac» Co*, 122 Fed, 154, holding in suit to enjoin voting of sto<*k 
tqr stockholder, corporation owning stock Is indispensable party, 
^ tto ogh same persons constitute majority of directors in both cor- 

iHODS, 

IsUngQlabed Id Homestead Mln, Co. v. Reynolds, 30 Colo. 332, 

TO Pac 423, holding In action to set aside conveyance as frandu- 

IcBt as to creditors, where grantor baa parted with entire Interest in 

fffoperty conveyed, he is not necessary party. 

Syl. 5 (XII, 371). Damages against corporation as legal remedy. 

Approved in Strang v. Richmond, etc, R. R. Co., 101 Fed. 516. 

Mdiag bill alleging existence of contract by which plaintifT was 

tft coDitmct railroad for defendant and Its breach by defendant In 

Rflaing to allow plaintiff to proceed states no ground for equitable 

8^ 6 (XII, 371). Dismissal not on merits is without prejudice* 
Approved In Bradford Belting Co. v. Klsinger Iron Co., 113 Fed. 
IQSi boldlng in absence of any statement therein to contraiy, de- 
cree dltDiisfling bin on general demurrer presumed to he on merits; 
Xitlmml, etc., Works v. Oconto, etc., Co.» 105 Wis. (JS. 81 N. W. 
U2, boldlag where facta pleaded constitute a defense without any 
Wfiaent decreeing affirmative relief, not error to adjudge afflrm- 
■tltly existence of such fact if established, though there be no 
fim for affirmative relief in answer, 

MS U. a ei&-«27, 37 L, 582, CASEMENT v, BROWN. 
W» 1 <X11, 371). Contractor hiring own servants Is Independent 
Appfoved in Sallotte v. King Bridge Co., 122 Fed. 380, hold- 
l>| wbere contract for municipal bridge was sublet in part by con- 
**wi6r, and work was done under direct supervision of engineer 
*Vtt«Dtlag owners, contractor not liable to adjoining landowner 
hf lUiEged negligent acts of subcontractor. See 76 Am. Bt Hep. 
V; SSi ootea, 

W. 2 (Xllp 372). Independent contractors liable for negligence. 
v.ippr9Ted In Toledo Brewing, etc.» Co. v. Bosch, 101 Fed. 532, 
mmster liable for Injuries to servant through dangerous 
of appliances, though sneh dangerous condition due to 
of Independent contractor See 76 Am. St Rep. 427. 
41 ft (XII« 372). Navigation of rlTer at high water as negligence* 
liytiiignlshed In Harrison r. Hughes, 325 Fed. SOS, aOlrmlng 
19 fVd. 555w holding both at fault for colltBlon between steamer 
iad bn^ water \n course of construction. 
Vol 111—23 



148 U. S. 627-^62 Notes on U. S. Reports. 

148 U. S. 627-648, 37 L. 587, HUMPHREYS v. PERRT. 

Syl. 1 (XII, 372). Liability of carrier for jewelry — Baggage. 

Approved In Saunders v. Southern Ry., 128 Fed. 20, apply 
principle where theatrical troupe's baggage and properties can 
under contract 

Syl. 5 (XII, 373). Liability for merchandise carried as bag^r' 

Approved in Trimble v. New York, etc., R. R., 162 N. Y. 97, 
N. B. 537, upholding direction of verdict that carrier had not 
that trunk contained samples where drummer had sample tru 
checked and employee designated it as sample trunk; Railroad 
Bowler, etc., Co., 63 Ohio St. 287, 58 N. E. 817, holding carrier n 
liable for loss of merchandise shipped as baggage where bagga, 
agent of connecting carrier had knowledge that it contained mt 
chandise. 

148 U. S. 648-657. Not cited. 

148 U. S. 657-6G2, 37 L. 599, GIOZZA v. TIERNAN. 

Syl. 2 (XII, 373). Citizens have no right to sell liquor. 

Approved in Hoboken v. Goodman. 68 N. J. L. 221, 51 AtL 10 
upholding ordinance prohibiting women from being employed 
connection with sale of liquor; Danville v. Hatcher, 101 Ya. 5 
44 S. E. 725, upholding liquor ordinances prescribing time wt 
saloons shall be closed and requiring removal of screens and « 
structions to view at such times. See 78 Am. St Rep. 253, note 

Syl. 3 (XII, 374). Effect of Fourteenth Amendment on pol 
power. 

Approved In Love v. Judge of Recorder's Court, 128 Mich. 5 
87 N. W. 788, upholding ordinance prohibiting making of pul 
address in any public place within half-mile circle of city hall wi 
out permit from mayor. 

Syl. 4 (XII, 374). Fourteenth Amendment does not requ 
uniformity. 

Approved in Florida Cent. & P. R. R. Co. v. Reynolds. 183 U. 
478. 4G L. 286, 22 Sup. Ct 179. upholding Florida statute providl 
for collection of taxes omitted in assessment-rolls of previous yea 
American Sugar Refining Co. v. Louisiana, 179 U. S. 95. 45 
105, 21 Sup. Ct. 46. upholding Louisiana statute imposing Ucei 
tax upon persons and corporations carrying on business of 6U| 
refiners, though it exempts planters refining own sugar; State 
Smith. 158 Ind. 557, 63 N. E. 30. upholding act 1889, authorizi 
deduction of mortgage Indebtedness not exceeding $700 from 
sessed valuation of realty, for purposes of taxation; Standard 
Co. V. Spartanburg, GO S. C. 44. 44 S. E. 379, holding void oi 
nance requiring dealer in oils to pay certain license tax and exen 
ing dealers in oil who have already paid the tax. 



Notes OB V. S. Reports. 148 U* S. 663-082 

l«r*8.fi63. 604, 37 L. 602, MARTIN v. SNYDER. 

Syl. 1 (XII. 374). Removal for diverse citizenship. 

Approved in Parkinson v. Bair, 105 Fed. 84, holding where there 
i« Do fiepamble controversy, cause not removable on ground of 
dJvene citizenship unless al! defendants are nouresldentB of State 
^bfife suit brought, notwithstanding plaintiff is citizen of dlffereni 
SUteffom any of defendants; Fife v. Whitteil, 102 Fed. 530, holding 
"^OTii petition alleging diverse citizenship and residence of parties, 
^^ bailing to allege that defendant is nonresident of State where 
Hit U brought Is Insufficient. 

^L 2 (XII, 375). Reversal and remand for improper removal. 

ApproTed Id Pellett v. Great Northern Ry. Co., 105 Fed. 195, 
***Wiftg Circnlt Court on remand may allow costs in favor of plain- 
^ todndlag attorney's docket fee» though cause remauded for 
^ ^t jarisdiction. 

1*8 P. 8. 664-674, 37 L. 1502. MEXIA v. OLIVER. 

*yi. 1 tXU, 375). Harmlessoess of error must be clear, 

^WitJved in United States v, HonoJulu Plantation Co., 122 Fed. 

^ ipplylng rule In condemnation proceedings; United States v. 

*^tiTi 119 Ped, 76, applying rule in action for damages for con- 

^lon of limber wrongfully cut on government land; Chicago 

ffoue Wfe<!klng Co. v. Birney. 117 Fed. 81, applying rule to charge 

*l4sinages recoverable in action for injuries to servant; Choctaw 

**• * 0. R, R, Co. V. Holioway, 114 Fed. 4f)o, applying rule in 

*tlofl for personal injuries against master by fireman running 

^^ bttckward at night; dissenting opinion in Choctaw, etc., R. 

^ Co. V. Tennessee. 116 Fed. 30, majority holding instruction 

^ It was duty of master to furnish servants machinery in rea- 

••*% safe condition and reasonably safe place to work, without 

^floition that only reasonable care required In that respect 

* tUnoJecs error, where proper rule given elsewhere; dissenting 

*1?liil(Mj In United States v. Price Trading Co., 109 Fed. 250, ma- 

^l! ai>holding direction of verdict for defendant In action to 

'^'^^^f value of timber wrongfully cut from government land; 

^^■•atlnf opinion In Heer v. Warreo, etc., Co.. 118 Wis. 67, 94 

3f. W, TU'J. majority admitting, in action by business man for 

f^mimi injuries, evidence of capital invested, help hired and aver- 

tpiMTly profits. 

J« CL & 674r<S2, 37 L. 000, SMITH v. WHITMAN SADDLE CO. 
<rl 1 (Xn, 375). Patent for design — Utility. 
Approved Id Westingliouse Electric, etc., Co, v. Triumph Elec- 
erle Go.. 07 Fed. 101. holding void Schmid patent No. 21,416, for 
of cotiflguradon of frame for electric machines. 




148 U. S. 674-705 Notes on U. S. Reports. 856 

Syl. 2 (XII, 375). Design patent must show originality. 

Approved In Bradley v. Eecles, 122 Fed. 876, upholding Bradley 
design patests No. 32,747, for design for thill coupling, and No. 
28,571, for design for washer for thill couplings; Eaton v. Lewis, 
115 Fed. 636, holding void Eaton design patents Nos. 30,518, 30,519. 
and 30,520, for designs for belt fastener plates; Rowe v. Blodgett, 
etc., Co., 112 Fed. 62, holding void Rowe design patent No. 26,587, 
for design for horseshoe calls; Buerlsle v. Standard Heater Co., 
105 Fed. 780, construing Buerlcle patent No. 29,584, for design 
for case for water heaters; Feder v. Stewart, Howe & May Co., 
105 Fed. 629, holding void Feder patent No. 29,350, for design for 
slilrt binding; Rowe v. Blodgett & Clapp Co., 103 Fed. 874, hold- 
ing void Rowe patent No. 26,587, for design for horseshoe calk; 
Cary Mfg. Co. v. Neal, 98 Fed. 618, holding void Cary design 
patent No. 28,142, for box-fastener; Meyers v. Sternhelm, 97 Fed. 
626, holding defendant in suit for infringement of design patent 
may introduce other design patents for purpose of showing prior 
state of art; Westinghouse Electric, etc., Co. v. Triumph Electric 
Co., 97 Fed. 103, holding void Schmid patent No. 21,416, for de- 
sign of configuration for frame for electric machines; Hammond 
V. Stockton, etc.. Works, 70 Fed. 717, holding void Hammond 
patent No. 21,042, for design for street cars. 

148 U. S. 674-690. Not cited. 

148 U. S. 691-705. 37 L. 613, PAM-TO-PEE v. UNITED STATES. 

Syl. 2 (XII, 376). Indians — Court of Claims distributing fund. 

Approved in dissenting opinion in Pam-to-Pee v. United States. 
187 U. S. 397. 23 Sup. Ct. 153, 47 L. 232, majority holding decision 
of Court of Claims, prescribing mpde of distribution of Indian 
fund in claims by Indians against United States, is final. 

(XII, 376). Miscellaneous. 

Cited in dissenting opinion in Pam-to-Pee v. United States, 187 
U. S. 384, 389, 301, 394, 23 Sup. Ct 149, 47 L. 229, 230, 231, reciting 
history of litigation. 



CXLIX UNITED STATES. 



149 U. S. 1-17, 3T L. 625. CHICAGO, ETC.. RX. v. HOYT. 
8fL 3 {XII, 377). Contracts — Impossibility of performanco fore- 



Approved to Middlesex Water Co. v, Knappmann, etc, Co.» 
W N. J, L. 248, 45 All, 095, holding company agreeing to furnish 
^tter with pressure eufflcient for tire purposes liable in damages 
wht*re property destroyed by fire by reason of lack of pressure 
doe to hreak in pipes* 

BjL 4 {Xlh 377). Contracts — Impossibility of performance not 
fcnceen. 

Approved in Buflfalo. etc., Co. v. Bellevue, etc, Co., 165 N, Y. 
S5i SO N. E. 7, holding agreenaeut of vendor of land» a part of 
<»o«f deration for sale to construct electric road and to run dally 
«ft every half hour, not broken where on account of heavy snow 
<*nnot rnn on certain days. 

1« tJ. a 17-^30, 37 L. t;31. BOGK v. GASSEHT. 

Syi 1 (XII, 377)* Waiver of denial of nonsuit 

AnjTOved In Barabasz v. Rabat, lU Md. 59, 46 Atl. 330, where 
•ftif clofte of plaintiff's evidence defendant's request for instruc- 
floB that there is not suliicletit evidence to recover Ib denied and 
b# qffew evldejice in defense, ruling on request not reviewable oa 

W 2 rXII. 377), Trial — ^ Prior parol evidence, 
Atrproved in Pitcairn v. Phillips Hiss Co., 125 Fed. 115. holding 
wrtnen contract for repair of house cannot, in action thereon by 
fWimctor, be modified by parol agreement made at time of sign- 
ing; diat work should be done to satisfaction of defendant's wife. 
Kyt 5 (XII. 378). General exception to charge. 
AwroTed in HJndman v. First Nat. Bank, 112 Fed. 934, and 
Coonty V. Gibson. 107 Fed. 3m, both reamrmlng rule. 

tm O- 8. 30-42. 37 L. G37. PAULSEN v. PORTLAND. 

SjrL 1 (Xll, 378). Curing defect in assessment ordinance. 

Approired In Glldden v. Harrington, 189 U. S. 259, 23 Sup. Ct. 

47 L«. 801. upholding Massachusetts personally tax statute, 

for assessment of trust property to trustee, for notice 

|i^ po«tlii£ and for application to a.ssessors for abatement of taxes 

l3^Tj 




1 

J 




149 U. S. 30-42 Notes on U. S. Reports. 

and for appeal to county commissioners; Turpin v. Lemon, 
U. S. 58, 23 Sup. Ct. 23, 47 L. 74, upholding West Virginia s 
utes relating to tax sales and malting sheriff's deed prima f* 
evidence of truth of recitals therein; King v. Portland, 184 IZ 
70, 46 L. 436, 22 Sup. Ct. 293, upholding Portland charter 
visions relative to street improvements; French v. Barber Aspi: 
Paving Co., 181 U. S. 339. 45 L. 888, 21 Sup. Ct. 630, uphoL 
assessment for street improvements, according to frontage, 
out any preliminary hearing as to benefits; Campbellsville 
ber Co. v. Hubbert, 112 Fed. 721, upholding Ky. act February 
1882, providing that commissioner appointed by court to sl^s^^ 
tax shall file his list and give notice by three weeks' publiea.^^3 
of such filing, and that any person interested may except the.-^^ 
within thirty days; Baltimore City v. Stewart, 92 Md. 545. — r -• 
Atl. 107, upholding general paving ordinance, article 48 of 'BsXUnC:^ 
Code, relative to street paving; State v. Board. County Con 
Pom Co., 87 Minn. 342, 92 N. W. 220, upholding Gen. Laws i8 
chap. 258, providing for drainage of wet and overflowed Ian* ^ 
Shannon v. Portland, 38 Or. 393, 62 Pac. 53, holding mere f^ 
that Portland city charter, § 122. relating to street Improvement^ 
did not provide for notice would not invalidate assessment the^'^ 
under where notice was in fact given. See 94 Am. St Rep. 6^^ 
note. 

Distinguished in dissenting opinion in French v. Barber Asph^^ 
Paving Co., 181 U. S. 358, 359, 45 L. 895, 21 Sup. Ct 638, majort-^ 
upholding assessment for street improvements, according to froi^ 
age, without preliminary hearing as to benefits. 

Syl. 2 (XII, 379). Municipal charter provisions as to powers. 

Approved in German Sav., etc., Soc. v. Ramlsh, 138 Cal. 12 
09 Pac. 93, upholding Stat. 1885, p. 155 (Vrooman act), and chao/ 
of grade act of March 9, 1893; King v. Portland, 38 Or. 417, i 
Pac. 5, upliolding Sess. Laws 1898, p. 151, § 128, providing th 
before any street improvements are made council shall pass re 
lution declaring its intention, which resolution shall be publisJ 
for ten days, and that property-owners may file remonstrar 
within ten days thereafter. 

Syl. 3 (XII, 379). Apportionment of tax discretionary with 
islature. 

Approved in Frencli v. Barber Asphalt Paving Co., 181 
340, 341, 45 L. 888. 21 Sup. Ct 031, upholding assessmei 
street improvements, according to frontage, without prelir 
hearing as to benefits; Webster v. City of Fargo, 9 N. Da 
82 N. W. 734, upholdiug Kev. Codes 1895, § 2280, charging 
cost of paving streets upon abutting owners in proper 
frontage. 




Notes on V. S, Reports. 



149 U. S. 43-4T 




"^^ U. a 4a-47, 37 L. 642, RICHMOND, ETC.» R. R. v. POWERS. 
^jL 1 (Xli^ 379)» N^llgence for Jtiry where evidence conflicts, 
-^Approved in Marande v. Texas & Pac. R, K. Co., 1S4 U. S. 191, 
L 496, 22 Sup. Ct 347, applying rule In aetloa for value of 
%toQ destrojeil by fire while lu railroad cars; Supreme LiOdge K. 
P. T, Beck» 181 U. S. 52. 45 L. 745, 21 Sop. Ct 533, upLioldiug 
^^■-■ittal of peremptory instruction for defendaut in action on In- 
" ^^J uice i>oncy where question was as to Buicide of insured; Pat- 
mi T. Texas & P. R. R, Co., 170 U. S. GOO, 45 L. 3G3, 21 Sup. 
276v upholding direction of verdict where fireman injured 
rough defective step on engine which had been hispeeted; Alaska 
:»lted Gold Mln. Co* v. Keating, lltj Fed. 5G7, holding where it 
cUKtomary in lowering men down mining shaft to lower five 
«Q at once in bucket, and tliat those who could not stand In 
ncket stood on cross-bar above which was no more dangerous 
staodiug in liucket, whether It was negligence to stand od 
te for jury; Northern Pac. Ry. Co. v, Adams, 110 Fed. 332, 
)]ytng rule where passenger thrown from train while passing 
tinvestihuled sleeper to dining car; Thomson v. Southern 
J. Co.* 113 Fed. 81, upholding direction of verdict in action for 
I. juries to boy while trying to save brother from being crushed 
p" turntable^ where only testimony was that plaintiff tried to hold 
table off to save brother and got fast himself; Taeoma Ry., 
^eu, Co. V, Hays, 110 Fed, 500, upholding submission to jury 
r-liere plalntifT, driving along electric railroad track In covered 
iK^agoa. started to cross without looking back, and was struck by 
cmr rannlng at high speed; Southern Pac. Co. v. Harada, 109 Fed. 
'^?!^, upholding submission to jui-y where plaintiff walked across 
^rmcks at street crossing and was struck by engine passing on to 
■ •!, Mason, etc, R. li. Co, v. Yockey, 10^ Fed, 207, upholding 
' !i.i--ir>n of tlreraan's negligence to j.ury where he went on en- 
• which was defective without his knowledge; Mexican Cent. 
^i. Co. T. Murray. 102 Fed. 271, applying rule In action by ser- 
^l for pt^rsonal injuries upon question of assumption of risk; 
OUfer T. Denver Trnmway Co., 13 Colo, A pp. 550, 5i> Pac. 82, ap- 
pljlag niJe in action for damages, being run over by street car; 
OkifQ, etc., R. R. V, Martin, 31 Ind. App. 310. 05 N. E, 51)4, 
iRpljliig rule Id action for negligence, causing death of employee 
ofitone quarry, In determining proximate cause of injury; Linden 
r. Auclior Min. Co., 20 Utah, 148, 58 Pac. 358, applying rule In 
ictloo for causing death of mine employee killed while using 
'ln*t* located in middle of car tracks of mine; dissenting opinion 
^ KJaf r. Morgan, 109 Fed. 454, majority holding experieneed 
tazuping dynamite with Iron bar assumed risks of employ- 
II; difiseDtlng opinion in Kichoias ?. Peck, 21 li. 1. 40H, 43 



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Notea on U. S, Reports. 149 D, S, 79-117 

14fi U. 8. 7&-96, 37 li. 657. CHANDLER v. CALUMETp ETC., 
Mm, CO. 

Syl, 1 (XII, 3S2). Parol to show lands swamp. 

Approved In Yonng v. Charnqiiist. 114 Iowa. 1J9, 86 N. W, 206, 
ItoldJng after accept! ag land certified to State as railroad land 
It could not claim that such land was swamp. 

^12 (Xn, 382). Failure to list lands as swamp. 

Approved In SmaU v. Lutz, 41 Or. 577, 69 Pac. 826, holding 
gfsiit by government to States, under swamp land act not grant 
^ ptteeeotj. and until Issuance of patent legal title remains In 
l"8Jieiil gOTernment 

^^U. a 95-117, 37 L. 663, THOMAS v. WESTERN OAR CO. 

8yL 1 (XII. 382). Receivers — Priority of car rentals. 

Approved in Southern Ry. v. Carnegie Steel Co., 176 U. S. 2S3, 

^^ 44 L. 470, 20 Sup. Ct 357, and Lackawanna, etc., Co. v. 

^annei*' Loan, etc.. Co., 176 U. S. 316, 44 L. 484, 20 Sup. Ct 370, 

^ih holding claims for rails used in reconstruction of road not 

**^rTetit debts not entitled to preference over mortgages in dis- 

tHbuiion of receipts of railroad in hands of receiver; Atlantic 

Trust Co. 7. Dana, 128 Fed. 227, 229, holding where receiver ap- 

l>oliited In suit by judgment creditors to which mortgagees are 

^^ parlies makes pernuinent improvements under order of court, 

^^ thereof not chargeable against Income accrulug after mort- 

Wgee of Income has intervened to foreclose; Louisville & N. R. 

^ Co. T. Memphis Gaslight Co., 125 Fed. 100, lioMing where, after 

^Tery of judgment for coal furnished gas company for use In 

^^ Easiness and return of executjoti oulla bona, assets sold by 

'^leei to pay mortgage bondholders, bill filed subsetiuently al- 

H\iig diversion of earnings to payment of interest on bonds with- 

'SitillrglDg dates does not give priority over mortgage; Soulliern 

^l Co. v. Ensign Mfg. Co., 117 Fed. 420, 422, holding one fur- 

*Wilfl| ctr-wheels under contract with railroad, knowing they are 

to tHt used In repairing equipment of leased road, not entitled to 

I'^ercoce over mortgages which do not include leased road; 

^Iftj Im,, etc., Co. V. Norfolk, etc., R. R. Co., 114 Fed. 3U'd, 

*o<dii»j Judgment against railroad after property placed In hands 

•f receiver, for tort committed prior thereto, not entitled to prior- 

^ of payiDent over mortgage from receivership earulngfc?; NUes 

r.^.J Works Co. V. Louisville, etc., Hy. Co., 112 Fed. 503, holding 

<U\iii for price of machinery used by mortgagor in construction 

of tliopA owned by another, under contract whereby mortgagor 

•eeorted their use by lease, not preferred to mortgage on forecloa- 

ttft where there was no surplus of income from receivership; Gregg 

r. Mc^'ftutlle Trust Co., 109 Fed, 223, holding claims for ties used 




149 U. S. 95-117 Notes on U. S. Reports. 302 

to replace decayed ones preferred in foreclosure proceedings when 
claims accrued within six months prior to receivership; Rhode 
Island Locomotive Works v. Continental Trust Co., 108 Fed. 8, 
holding claim for locomotives not preferred over mortgage where 
not shown that they were necessary to maintain road as going 
concern, but simply to enlarge capacity; Farmers*, etc.. Trust 
Co. V. American, etc., Co., 107 Fed. 27, 29, 30, 31, holding in- 
come accruing prior to appointment of receiver may be used to 
pay for engines furnished water company where prior receiver 
had applied income to payment of interest on mortgage; Lee v. 
Pennsylvania Traction Co., 105 Fed. 408, 409, holding claim for 
purchase price of rail-joints and track-bolts furnished within six 
mouths prior to receivership preferred to mortgage; Illinois Trust, 
etc., Bank v. Doud, 105 Fed. 142, 147, 149, holding loan to quasi- 
public corporation on mortgage of its income of money to be used 
to make necessary addition to its plant not preferred In distribu- 
tion of income to claim of prior mortgage covering all property 
and income acquired and to be acquired; First Nat. Bank v. 
Ewing, 103 Fed. 183, holding where at time of appointment of 
receiver, railroad partially completed, receiver's certificates issued 
to raise money to pay for its completion are liens superior to 
those of prior mortgages; New York Security, etc., Co. v. LouiBvllle, 
etc., R. R. Co., 102 Fed. 389, holding where receivers of consoli- 
dated railroads incur preferential indebtedness, complainant on 
subsequent foreclosure of various mortgages cannot have prefer- 
ential debt apportioned among several mortgage interests or to 
I'oquire accounting between several lines which would result 
in displacement of some of such mortgages In favor of its own; 
Maryland Steel Co. v. Gettysburg Electric Ry. Co., 99 Fed. 161, 
152, 153, holding debts created by railroad in rebuilding power- 
house destroyed by fire not preferred to prior mortgage where 
property sold on foreclosure; Van Frank v. Missouri Pac. Ry., 8B 
Mo. App. 470, 472, 47G, holding traffic balances accruing within 
year prior to receivership prior to mortgages. 

Syl. 2 (XII, 3^). Receivers — Interest on claims. 

Approved in Van Frank v. Missouri Pac. Ry., 89 Mo. App. 480; 
and People v. American L. & T. Co., 172 N. Y. 879, 65 N. B. 
201, both reaffirming rule; Solomons v. American Bldg., etc, Assn^ 
IIG Fed. 677, refusing interest where no attempt made to enforce 
preferred lien; Hutcliinson v. Otis, 115 Fed. 944, holding when 
creditor of bankrupt entitled to Hen, through oversight waived 
lien and allowed fund to be paid to trustee, and thereafter as- 
serted lieu in Bankruptcy Court, he Is not entitled to interest; 
First Nat. Bank v. Ewing, 103 Fed. 190, holding taxes accming 
against property of Insolvent railroad constitute preferred claim 
to be paid In full. Including interest, penalties and costs, before 



Notes on U. S. Reports. 149 U. S. IIT'143 

anj other claims, except judicial costs; Malcomson v. Wappoo 
mils, 99 Fed. 6313, holding receiver of insolvent corporation, wlio 
hBM properly withheld pajojejit of dividend to creditor until he 
could obtain Instructions from court, Dot personally liable for 
Interest tliereon. 

im U, 8. U7-12L Not Cited, 

1^ U. S. 122-143, 37 L. 673. CAIRO v, ZANE, 

^K Sfl 1 <XII, 384>. Municipality's wrongful act — Right of bona 

^Hde holders. 

^■^ Approved In dissenting opinion in Cbauncey v. Dyke Bros., lit) 
^^W. 15. majority holding, under Arlv. mechanic's lieu law of 
IW iDortgnge executed to raise money for improvements, por- 
tion of which only went to pay for labor or muterlals, balance 
Wnud over to mortgagor, not prior as to balance to liens of la- 
\iorm or materialmen, 
Sit 2 (XII, 385). Bonds — Coucluslveness of certificate of 

Approved In Stanley Co. v. Coler, 190 U. S. 450, 23 Sup. Ct. 
^K 4T L» 1134, holding recitals la county bonds that they were 
k»iiHl ander authority of N. C. Code, §§ l[Miti-lli9L^ to pay raii- 
w«<l stock subscription entitle purchaser to assume that con- 
■^cUon of road and Interest of county were such as were re- 
'laW to exist by section WM, affirming 113 Fed. 723, holding 
<^tlmy issuing negotiable railroad aid bonds In exchange for rail- 
»i4 8tocl£ Is estopped by recitals that they were issued by an- 
ttwlty of statute to deny necessity of subscilptiou to aid road; 
lBd«|ieodent School DIst. v. Rew, 111 Fed, 10. holding recital in 
Wftmdlng bonds that they were issued, under Iowa Laws 18.Sn, 
'Jwp. 5L estop muulclpallty from denying that they were Issueil 
t» fuBd valid debt; Ciapp v. Otoe County, 104 Fed. 481, hokliug 
cooflty commissioners empowered to divide county into precincts 
tlifcli defines boundaries of precinct, but fails to malve them 
**wr«poad with wards of city located upon portion thereof, find 
ipii fiYorable vote of electors Issues bonds and recites therein 
cosillftnce with law, estopped to deny that precincts legally es- 
tllilllM; Hughes County v. Livingston, 104 Fed. 315, holding 
^Wfitete of county commissioners that refunding bonds have 
^n issued Is compliance with statute authorizing their Issuance 
tmopt county from denying existence of fundable debt; Feck v. 
ff«aptt«ftil. 27 Tei. Civ. 87, (^ S. W. 657, holding where negotiable 
^ boodfi issued by mayor and city scN^retary, baving printed 
•© bseki thereof what purported to he order of council authoriz- 
ing imuince, but no such order ever issued, city not estopped to 
mlldfty as against bona fide purchaser, though city appro- 



149 U. S. 144-191 Notes on U. S. Reporta. 864 

Syl. 4 (XII, 385). Interest on bond coupons. 

Approved in Columbus, S. & H. R. R. Co. Appeals, 109 Fed. 194, 
holding, under New York statute, interest coupons of railroad bonda 
do not bear interest where they have not been detached; Board ot 
Comrs. V. Geer, 108 Fed. 482, holding interest coupons from mu- 
nicipal bonds bear interest under Mill's Ann. Stat Colo., S 2552. 

149 U. S. 144r-157, 37 L. 681, THE SERVIA. 

Syl. 1 (XII, 385). Collision — Usage relied on. 

Approved in The Phillips Minch, 128 Fed. 583, applying rule 
to collision between one of two barges in tow of steamer while 
passing berth of steamer coming out; The Newport News, lOG 
Fed. 394, holding collision between ferry-boat running betweea 
Washington and Alexandria, and steamer coming up river in fog; 
due to fault of ferry-boat in keeping to left of channel and is 
changing course to port after hearing steamer's signaL 

149 U. S. 157-164. Not cited. 

149 U. S. 164:-191, 37 L. 689, IN RE TYLER. 

Syl. 2 (XII, 386). Diverse citizenship in ancillary proceedings. 

Approved in Bottom v. National R. Y. Bldg., etc.. Loan Asscz: 
123 Fed. 745, holding Federal court, which has appointed receiv 
for insolvent building and loan association, has jurisdiction 
suit by him to collect from borrowing member and to forecldz 
loan, regardless of citizenship of defendant or situation of m<^M 
gaged property; M*Kechney v. Weir, 118 Fed. 809, applying rulfc 
suit for accounting and for appointment of receiver of partnera ' 
property. 

Syl. 4 (XII, 38G). Receiver's possession is that of court 

Approved in Carling v. Seymour Lumber Co., 113 Fed. ^ 
holding where banlvni^tcy trustee is entitled to assets of bankBcr- 
whicb are in possession of State receiver, trustee should first nzzm^ 
application to State court for order for possession of such assetSK 
re Reese, 107 Fed. 947, holding one not party nor bound by in^ "«. 
tional order not guilty of contempt on ground that he was p^^ 
bound by the order and that he was otherwise guilty in interf^:B 
with its enforcement; Bibber-White Co. v. White River Vei.M 
etc., K. U. Co., 107 Fed. 177, holding relief from interference '^^ 
assets belonging to receiver appointed by Circuit Court ma.y 
obtained by petition instead of by bill, whether they have t>^ 
in receiver's possession or not; Montgomery v. City Council* 
Fed. 829, holding one who voluntarily pays a tax to city, ^ 
which neither he nor his property is liable, Is not entitled to I 
subrogated in equity to rights of city as against property <^ ^t 
owner; Connor v. Alligator Lumber Co., 98 Fed. 158, upholdi^ 
Federal jurisdiction, regardless of citizenship, over suit by ^ts 
receiver to quiet title; Coiburn v. Yantis, 176 Mo. 684, 76 S. ^' 



:M>ies OE U. S. Reports. 149 U. S. Iii4-l^h 



m, iMrfdJng If property Is In hands of receiver wlien Judgment 
b rtTefsed, and It Is shown that there w^s an existing mortgage 
tad that neither receiver nor purchaser on foreclosure la party 
to luit, prevaElDg party on appeal ts entitled to possession as 
HUlUit Buch purchaser or receiver. 
Sjl 6 (X1I» 38T). Seizure of property in receiver's hands. 
Appmed in Campau v. Detroit Driving Glut). 130 Mich. 424, 00 
5*' W. 51, holding sale of property on execution without leave of 
"^ttit while property is In possession of receiver, is contempt of 
*«fft and void, 

Dlitiiigalshed in Wyman v. Baker, 83 Minn. 431, 86 N. W. 434, 

**^<Jlaf where owner of realty has made assignment for benefit 

"^creditors it Is not necessary that purchaser thereof at tax sale 

I^H jwUce to assignee or court of expiration of period of redemption. 

^yl. 6 (XIi; 3S8>. Following State construction of tax laws. 

'Approved Ln Morenci Copper Co. v. Freer, 127 Fed- 202, apply- 

^ rule In construing Acts W. Va, 1901. p. IIG, chap. 35, § 8, 

f^^ attorney's fee In suit by attorney-general to forfeit corpo- 

^^^ franchise; First Nat, Banii v. Evdng, 103 Fed. 1S8, holding 

"^^68 accruing ag-alnst property of an insolvent railroad are pre- 

^^*Bd claim and entitled to toe paid in full, Including Interest 

^^jiiaea, and costs, before any other claims, except the Judicial 

HKfL 7 (XII, 388). Restraint of seizure for Illegal taxes. 
^^^roved in Front v. Starr, 188 U. S. 543, 23 Sup. Ct 400, 47 
^BS8T, affirming Starr v. Chicago, etc, Ry. Co., 110 Fed. 7, up- 
swing Federal Jurisdiction over suit to enjoin attorney-general 
^*in proceeding in State court to enforce penalties against rail- 
^mC olllclai4B for failure to put rate schedule into effect, where 
^^t« officers in suit In Federal conrt by stockholders were en- 
^Ined from enforcing rates; Lalte Shore, etc., B. R. Co, v. Fel- 
^n, 103 Fed. 229, holding proceeding by receiver to enjoin an- 
^Ijtr from Interfering with his possession may be by petition in 
^^t In which he was appointed, though proposed defendant not 
^ny to sucJi suit; Western Union Tel. Co- v, Myatt, &S Fed. 357, 
Federal suit by telegraph company against memhers of 
conrt of visitation and State solicitor to enjoin proceed- 
^^1 to enforce rate schedule not suit against State, 
' lMi<lnfUl»hed In Whitehead v. Farmers' Loan & Trust Co., 98 
^«4 13, holding fact that realty sold for delinquent taxes is in 
P*i*«»loo of receiver as part of assets of Insolvent corporation, 
^* lioond for enjoining Issuance of tax deed to purchaser, 

IfI a IXII, 388), Federal courts — State law prescribing ex- 
^*t»e rtmedy, 

AppforiKi in dissenting opinion In South Dakota v. North Caro- 
Wfi U. 8, 331, 24 Sup. Ct 282, majority upiiolding Supreme 



149 U. S. 191-215 Notes on U. S. Reports. 86( 

Court's Jurisdiction over action by one State against anothei 
to foreclose and sell stock belonging to latter whlcb secure iti 
bonds owned by former, though bonds originally owned by indl 
vidual who donated them to State. 

(XII, 386). Miscellaneous. 

Cited in Flower t. Beasley» 52 La. Ann. 2056, 28 So. 323, li 
statement of facts. 

149 U. S. 191-194. Not cited. 

149 U. S. 194r-210, 37 L. 699, MEXICAN CENT. BY. v. PINKNEY 

Syl. 1 (XII, 389). Courts — Citizenship In amended petition. 

Approved in Desert King Mln. Co. v. Wedeklnd, 110 Fed. 877 
holding objection to jurisdiction of court for any reason not ap 
parent on face of bill must be taken by special plea and cannol 
be taken raised by motion. 

Syl. 2 (XII, 389). Review — Refusing leave to file plea to dtl 
zenship. 

Approved in Mexican Cent Ry. Co. v. Duthie, 189 U. S. 78 
23 Sup. Ct. 610, 47 L. 717, holding, under Rev. Stat, S 964, Cir 
cuit Court may permit amendment setting up plaintUTs citizen 
ship, fact having been established and residence only havlni 
been pleaded, where, if amendment not made. Circuit Court o: 
Appeals would have remanded with leave to amend; Yazoo i 
M. V. R. R. Co. V. Adams, 180 U. S. 9, 45 L. 402, 21 Sup. Ct 
242, holding where, in action in State court for taxes, cause wai 
remanded for new trial on appeal. Federal question raised at nev 
trial is too late. 

Syl. 3 (XII, 389). Service on "Joint agent" of corporation. 

Approved in Frauley v. Pennsylvania Casualty Co., 124 Fe^ 
263, 2G5, holding collection by Pennsylvania Insurance compan; 
of single renewal premium through cashier of bank in Wlsconsi 
did not make cashier agent of company on whom service of procee 
could be made. See 85 Am. St Rep. 913, note. 

Syl. 4 (XII, 389). Appearance — Binding effect of State law. 

Approved in Scott v. Hoover, 99 Fed. 249, holding, under Ca 
Code Civ. Proc, § 396, objection to trial where action is brou|^ 
is waived by demurrer without affidavit of merits and deman 
for trial in proper county; Emanuel v. Terris, 63 S. 0. 121, 4 
S. K. 25, holding where property once in this State has been tome 
over to foreign corporation which is trustee under will and b 
it taken outside of State service by publication on corporation i 
suit by resident cestui que trust is ineffective. 

149 U. S. 210-215. Not cited. 



Notes on U. S. Reports. 14!) U. S. 216-23T 



' U, 8. 21tt-224, 37 L. 707. DUER v. CORBIN CABINET-LOCK 
00. 

«jl 3 <XII. 390). Patenta -- Effect of popularity. 

Approved In Union Biscuit Co. v. Peters, 125 Fed. 609, hoimng 
n)ld Peters patent No. 021,074, for method of aud means for pack- 
toC CTickers; American Sales-Book Co. v. Carter Crume Co., 125 
Fel 500, and American Sales-Book Co. v. Bullivant, 117 Fed. 
29, both holding Beck patent No. 647,934, for manifolding salea- 
^HJk and holder, void for lack of patentable novelty; Standard 
Cuter, etc., Co. v. Caster Socket Co.. 113 Fed. 1C16, liolding Berkey 
mm No. 318,533, for caster socket, anticipated by Kane & 
BrowB patent; National Hollow, etc., Co. v. Interchaageable, etc., 
C^ lOa Fed, 707, npboldiug Heln patent No. 301,009, claim 2, 
f« ttitalllc brake beam; Gose Printing-Press Co. v. Scott, 103 
'ed. 657, holding void Firm patents Nos, 410,271, 415,321, and 
^M, relating to ImproYements in printing machines; P^alk Mfg. 
Ci*. 7. Missouri R. R. Co.. 103 Fed. 302, holding void Hoffman & 
filk imtfnt No. 545,040, for Improvement In rail joints, 

i^ 0. S. 224-231, 37 L. 710, UNDERWOOD v. GERBER. 

SyL I (XII, 391). Patent for copying paper not novel. 

Approved In Wisconsin, etc., Co. v. American, etc., Co., 125 Fed. 
'W. Mdlng Natlm patent No. 521,174, for carpet -cleaning macliine, 
*wt liif ringed by macbioe made In accordance with Thurman pat- 
^^ XoB, *334.042 and 6a5,983; Doig v. Morgan Mach. Co., 122 
^^ l«2, holding Smith & Doig patent No. 342,208, claims 5, 0, 
'tor tK)x-nalllng machine, void for lack of patentable novelty. 

^syt 2 (XII, 301). Patent describing but not claiming composition. 

ApiirovL*d In Thomson-Houston Elec. Co, v. Black River Traction 
C^ 124 Fed- 512, holding void Van Depoell reissued patent 
^^ 11,892, for traveling conduit for electric railroads; Writing 
^Ach. Co. r. Elliott, etc.. Typewriter Co., 100 Fed. 508, uphold- 
^ Crary patent No. 477,517, claim 1, for Improvements in book 
tJl*wrlter. 

^<»tJ, S, 231-237, 37 L. 713. PEARSALL v. SMITH. 

M. I (Xll, 301). Bankruptcy — Fraud suspending limitation. 

Approved In Darnold v. SimiKson, 114 Fed. 370, holding mere 

f*(i tlint debtor concealed, fraud and that creditors knew nothiog 

'^ »lruation until short time before action does not take case 

W &f lUnliattons where diligence ou part of creditors would 

enabled ihetu to secure the property in payment of their 

CMnm Co. V. Middlesex Bank Co., 113 Fed. 901, holding, 

Arkansas statutes, coutiuTiaiice of possession for seven years 

d«ed cxeeotetl on foreclosure sale regular on face and pur- 

to convey mortgagor's entire title confers on purchaser 



149 U. S. 237-265 Notes on U. S. Reports. 868 

and his grantee absolute title so as to bar action to redeem from 
mortgage; Lehman v. Crosby, 99 Fed. 544, holding bankruptcy 
act 1898, § 23b, does not apply to suit by trustee to set aside al- 
leged fraudulent conveyance by banlsrupt 

149 U. S. 237-242, 37 L. 717, TEXAS, ETC., RY. ▼. ANDERSON. 

Syl. 3 (XII, 392). Review of action conforming to mandate. 

Approved in Fuller v. United States, 182 U. S. 568, 45 L. 1234, 
21 Sup. Ct. 873, upholding grant of new trial for newly discovered 
evidence by court of original Jurisdiction after final decision in 
this court; White v. Bruce, 109 Fed. 364, applying rule where 
Circuit Court in conformity with mandate of Circuit Court of 
Appeals awards execution for costs against defendant and sure- 
ties on bonds, and sureties attempt to set up invalidity of original 
Judgment 

149 U. S. 242-248, 37 L. 719, HAGER v. SWAYNE. 

Syl. 1 (XII, 392). Assignment of right of action against collector. 

Approved in Thayer v. Pressey, 175 Mass. 235 (see 56 N. E. 7), 
holding where government passed special act making appropria- 
tion to pay Judgment recovered by- assignee of government claim, 
such assignment was valid between parties. 

149 U. S. 248-259, 37 L. 721, SCHAEFFER v. BLAIR. 

Syl. 1 (XII, 392). Fraud as depriving right to commissions. 

Approved in Paul v. Minneapolis, etc., Machine Co., 87 Mo. 
App. 054, holding where servant employed for definite time quits 
or is discharged for good cause or is guilty of fraud upon his mas- 
ter he cannot recover his salary. 

Syl. 2 (XII, 392). Partnership for purchase and sale of realty. 

Approved in M'Kinley v. Lloyd, 128 Fed. 520, holding agree- 
ment providing that certain land to be purchased should be held 
In equal Interests between plnintlfif and others, subject to charge 
for purchase price, or that it should be partitioned among par- 
ties, profits on such sales as made to be divided, is within Statute 
of Frauds. 

Distinguished in Hughes v. Ewing, 162 Mo. 302, 62 8. W. 477, 
holding agreement to participate in profits arising from purchase 
and sale of lands does not constitute parties to agreement partners. 

149 U. S. 259-261, 37 L. 725, CINCINNATI. ETC., R. R. v. McKEEN. 

Syl. 2 (XII, 392). Certificate of Circuit Court of Appeals. 

Approved in Emshelmer v. New Orleans, 180 U. 8. 42, 46 Lb 
1046, 22 Sup. Ct 774, reafilrmlng rule. 

149 U. 8. 261-265. Not cited. 



Notes on U. S. Reports. 149 D. S. 20<3-287 

M> U. 8. 260-27Z 3T L. 728, RICHMOND, ETC., R. R. v. ELLIOTT. 

SyL 1 (XU, 393). Damages — Possibility of promotion. 

ApjroTed In West Chicago, etc., Ry. v. Maday, lt*8 IIL 310, 58 N. 
E 8M. boliilng In action for personal injuries evidence of amount 
pitlDtlf had earned In employment he had abandoned five yeara 
pflor to Injury Is Inadmissible. 

Syl 3 mi, 394). Railroad's liability to stranger — Latent defecU. 

Approred in WestingtiouBe, etc., Mfg. Co. v. Heiialich, 127 Fed. 
H hoWiag master purchasing derrick chain from reputable chain- 
njiker, who represented It of highest quality and tested, not 
Utb]« for injury to employee caused by break due to crystaliza- 
tioo of Iron, where chain had bi?en subjected to careful visual 
Jflipectlon from time to time; Bishop v. Brown, 14 Colo, App. 
5*^ 61 Pac, 55, holding mere fact of the explosion of a stationary 
^'Bto l>oUer does not raise a presumption of negligence; Kent v. 
Wwtd, 77 Mi88. 408, 78 Am. St. Rep. 536, 27 So. C21, holding 
f^Unjftd employee cannot recover for Injuries caused by defects 
a tool used by him In customary manner where It was new one 
9f klod ttsed by railroads and had been inspected. 

l« V. 8. 273-277, 37 L. 732, UNITED STATES v, MOCK. 

hi 1 \Xll, 394). Damages — Trees cut on public lands. 

Approved In Powers v* United States, 119 Fed. 567, holding one 
fatting and removing timber from public mineral lands, which 
•^wmrerted Into lumber and sold for purposes permitted by stat- 
^ aot liable for added value of timber due to his labor merely 
tor failure to keep record prescribed by land office rules. 

SjL 2 (XII, 3f>4). Remarks by court — Cutting timber. 

Approved in Teller v. United States, 113 Fed. 277, holding on 
"^ of one for cutting timber on government laud, evidence of 
nartom in that locality knoiivn to general land otHce, of entering 
*» iind and cntUng timber therefrom before patent, la luadmls- 
•'We; Ctmntngham v. Metropolitan Lumber Co., 110 B^ed. 33<5, 
•"Wtaf homestead settler, who has not perfected his right 
** ta to entitle him to patent,, cannot cut and remove tim- 
NrfhUD land axid cannot give title to such timber as against the 

i« U. a 278p^87. 87 L. 734, UNITED STATES v. DUMAS. 
I^L I (XII« 3&4>. Conclusiveness of postmaster-general's order 
0lMlligiiliihed in Harvey y. United States, 97 Fed. 455, bolding 
AagaeBOiry transcript from treasury department's bocks, contain- 
^ metomsAM of former marshal which cover only part of his 
li Insufficient to sustain judgment against sureties in action 
If tlilrty-three years after term expired 
YoL 111—24 





149 U. S. 287-B14 Notes on U. S. Reports. 3 

149 U. S. 287-297, 37 L. 737, LEGGETT v. STANDARD OIL CO. 

SjL 4 (XII, 394). Patents — Lacbes in suing for infringement. 

Distinguished in Crown Cork, etc., Co. v. Aluminum, etc., C< 
108 Fed. 858, holding delay In obtaining patent after filing < 
application due to adverse rulings of examiners which necesf 
tate appeal will not worls abandonment of inventor's righ 
where he proceeds within time limited by statute. 

149 U. S. 29&-304, 37 L. 743, MOSES v. LAWRENCE CO. BANK. 

Syl. 8 (XII, 395). Note payable to maimer. 

Approved in Taylor v. Welslager, 90 Md. 412, 45 AtL 477, hoi 
ing promissory note executed by husband and wife, payable 1 
order of husband and by him indorsed in blank, is enforceable t 
holder against wife under Code, art 45, § 2. 

149 U. S. 304-307, 37 L. 745, NIX v. HEDDEN. 

Syl. 1 (XII, 395). Tariff — Judicial notice of commercial meanln 

Approved in Nordlinger v. United States, 127 Fed. 685, holdic 
canary seed is not free of duty, under tariff act 1897, chap. Z 
§ 2, free list, par. (>5G, but is dutiable under chap. 11, { 1, scha 
ule G, par. 254, covering seeds not specially enumerated; Hexa 
stead & Son v. Thomas, 122 Fed. 540, holding tungsten ore 
mitted free under section 614 of tariff act of 1897. 

Syl. 2 (XII, 395). Judicial notice of words. 

Approved in Martin v. Eagle Development Co., 41 Or. 456.. 
Pac. 219, applying rule where vendor of mine represented ^ 
land would yield gold not less than ten cents per yard " f "a 
grass roots down " and that he had ** prospected " land and k ^ 
value thereof. 

149 U. S. 308-314 37 L. 747, CALIFORNIA ▼. SAN PABLO, E& * 
R. R. 

Syl. 1 (XII, 396). Appeal — Want of controversy. 

Approved in Hatfield v. King, 184 U. S. 165, 46 L. 483, 22 1 
Ct. 478» holding question of want of controversy may be e^B^ 
Ined on motion supported by affidavits; Tyler v. Judges, 
179 U. S. 408, 45 L. •J54, 21 Sup. Ct. 207, holding petitioner ii3 
plication for prohibition to judges of Court of Land RegistreL'fl 
on ground that proceediugs in said court denied to parties H^ 
ested due process of law, must show personal interest in UtlgB^tz^ 
Thorp V. Bonnifield, 177 U. S. 19, 44 L. 654, 20 Sup. Ct 635, 
nying Jurisdiction to review where defendant has, by his ^^ 
action, reduced judgment against him by voluntary settlena^ 
and payment below the amount which necessary to give co*^ 
jurisdiction; Montgomery v. City Council, 99 Fed. 832. holdio, 
where purchaser at foreclosure of corporation's property, whlci 



rt T. Lambert, 52 W. Va. 250, 251, 43 S. E. 177. ITS. dismi 
error to Judgment avoiding mandamus to coaipel placing of 
e on ballot where pending appeal election has been held. 
U* & 315-327, 37 L. 749, DALZELL v. DUEBEIl WATCH. 
ETC., MFG. CO. 
^:^L I <XII, 396). Oral sale of right to obtain patent, 
^^liproved in Pressed Steel Car Co. v. Hansen, 128 Fed. 446» 
^-^Slrming role: Scbmltt v. Nelson Valve Co.. 125 Fed. T57, 759, 
■^^"laing 121 Fed. 98, holding inventor agreeing to assign patent 
^ conaid^'atioD, pending applk-ation, cannot sue for infringe- 
^^*t after refusal to assign; GooU v. Sterling Electric Co., 118 
*^M^ 47. boldlng oral agreement for sale of invention, founded 
^ood consideration, made pending application for patent, la 

defense to infringement suit after issuance of patent 
|L 2 <XII, 39*3). Employer's right to patents. 
^ppfoved in Pressed 8teel Car Co. v. Hansen, 128 Fed. 445, re* 
niag rule, 

rL3 iXU, 3961- Specific performance -^ Clear proof of contract, 
ovlhI In While v. Wausey, 116 Fed. 340, refusing specilic per- 
of contract for sale of real estate, where there is con- 
l evidence as to whether it was signed or not, and it wa3 
by bo lb parties that it should be acknowledged, but 
' refused to acknowledge. 
*al. I (XH, 397). Equity — Plea nnsopported by testimony. 
^^^red In Eveleth v. Southern Cal. Ky. Co.. 123 Fed. 838, 
^*^tof 00 hearing on plea, replicatiou and proofs, where proofs 
^Jliill aremients of plea, bill must be dismissed; Westervelt v. 
JE^Qiy Bureau. 118 Fed. 82B, holding equity rule 34 applies where 
JBP^idiiit desires to HDswer after Issue of fact joined on nlea has 




148 U. S. 346^68 Notes on U. S. Reports. 372 

the payee, he can, In action by payee to use of assignee, set oflT 
full amount of payee's note. 

149 U. S. 346-350, 37 L. 763, HEDDBN ▼. RICHARD. 
Syl. 1 (XII, 397). Tariff — Commercial designation. 
Approved in United States v. Massachusetts General Hospital 

100 Fed. 934, holding surgical instruments are exempt under para- 
graph 585 of tariff act of 1894, exempting scientific instruments. 

149 U. S. 350-355, 37 L. 764, CADWALADBR ▼. JESSUP, ETC, 
PAPER CO. 

Syl. 1 (XII, 398). Tariff — Old rubber shoes. 

Distinguished in Carberry v. United States, 116 Fed. 774, hold- 
ing second-hand bottles, capable of use as bottles, not admitted 
free as Junls under tariff act 1897, par. 588. 

149 U. S. 355-364, 37 L. 766, HOBBIE v. JENNISON. 

Syl. 1 (XII, 398). Patents — Owner for certain territory. 

Approved in Edison Phonograph Co. v. Pike, 116 Fed. 864, up- 
holding contract by which owner of patent granted license to use 
and vend patented articles and licensee agreed not to sell such 
articles for less than price fixed by licensor, and not to sell to 
any one who did not sign such agreement, and that as to any arti- 
cles sold in violation of terms license should be void and vendor 
should be an infringer; Goodyear Shoe, etc., Co. v. Jaclcson, 112 
Fed. 149, determining question of infringement where purchaser 
of patented machine repaired same. 

149 U. S. 3(54-368, 37 L. 7G9, MINNEAPOLIS, ETC., RY. v. 
EMMONS. 

SyL 1 (XII, 398). Penalty for failure to fence road. 

Approved in Gano v. Minneapolis & St L. R. R. Co., 114 Iowa, 
719, 87 N. W. 717. 89 Am. St. Rep. 388. upholding Code, i 2007, 
providing that railroads condemning land for right of way shall 
pay to landowner reasonable attorney's fees incident to the assess- 
ment of damages or appeal therefrom; Polndexter v. May, 98 Va. 
150, 34 S. B. 973, upholding fence law, requiring owner to inclose-^ 
land with lawful fence, as prerequisite to right to recover for* 
damages done by trespassing animals. 

Syl. 2 (XII, 398). Excluslveness of corporate charter duties. 

Approved in Detroit, etc., Ry. v. Commissioner, 127 Mich. 22^ 
86 N. W. 846, holding under act 1893. No. 171, S 5, wnere steam. - 
railroad has extended road across existing car line and subs^ 
quently erection of safeguards at crossing becomes necessary, ralK- 
road commissioner may require street-car company to pay portion 
of expense of constructing and maintaining such appliances. 






Baltimore, etc, R. R, v. Baugh. 

mV. a 36S'411, 37 L. 772, BALTIMORE, ETC., R. R. v. BAUGH. 
S^l I (XII, 990). BlBdlng effect of State decisions on fellow 

lAtB. 

A]ipiroTed In Kane v. Erie R, R., 12S Fed. 475, holding, nnder 
\l\Q Rer. Stat, i 33(55-22, railroad not liable to inferior servant for 
injuries tustained through negligence of superior servant; Western 
rmon Tel. Co. v, Sklar, 12(5 Fed, 298, holding, under Tean, Code, 
H1837, 183S. damages for mental suffering caused by unreasonable 
(Way in delivery of telegram not recoverable when not accom- 
pwUed by pecuniary loss or pliyslcal Injury; Carglll v. Duffy, 123 
^d. 733. holding under New York city ordinance relating to 
Ucemiiig of cabs and drivers, owner of licensed cab who lets same 
^ ^j to driTer to whom he also furnishes badge is liable to pas- 
unier for Injuries due to driver's negligence; Pennsylvania Co. v. 
nUitdt, 123 Fed, 472, holding in absence of State statute Federal 
wort applies Ita own rules In determining who are fellow servants: 
Keoe Five-Cent Sav. Bank v. Reld, 123 Fed, 226, holding Federal 
oonrts exercise independent Judgment In constniing note and mort- 
Pfe; Elliott V. Felton, 119 Fed. 279, holding State decision holding 
COOdDctorto be vice-principal not binding on Federal courts; Texas, 
•te« By, T. Carlln, 111 Fed, 780, holding, under Texas statutes, 
tentn of bridge gang not fellow servant of member of gang who, 
lidirhis orders, Is engaged In separate piece of work; Louisville, 
«*^ E, R. Co, V. Stuber, 108 Fed, 936, holding foreman of water 
wpply, injured in collision while riding on engine. Is fellow servant 
^ ttjioeer; American Surety Co. v, Worcester Cycle ^Ifg. Co., 
W Fed 44, holding, under Connecticut decisions, chattel mortgage 
Ji liiTalld as to after acquired property as against third persons 
OOJIM mortgagee has actually taken possession before other rights 
*«toT«iie; Brlegal v. Southern Pac. Co., 98 Fed. 9C2, holding flre- 
olllag turntable by direction of engineer fellow servant of 
*r; Haat r. Hurd. 98 Fed. 688, holding brakeman fellow ser- 
>t of section band, 

l>fitiogiilshed in Leazotte v. Railroad, 70 N. H. 6, 45 AO. 1084, 
where brakeman injured on defendant's railroad in Massa- 
brought suit in New Hampshire, defendant's liability 
P'^ed by laws of Massachusetts. 

W 2 rXII, 400). Master's liability for servant's negligence. 

Approved lo Patton v. Texas & P. R. R. Co., 179 U. S, 664. 45 L, 
■*. 21 8op. Ct 278. holding railroad not liable for injury to fire- 
•tt by reason of defective step on engine where engine had been 
^**WOflUj Inspected before trip; National Steel Co, v. Lowe, 127 
^4. 316^ folding store tender In steel works may recover for in- 
^Sm Ciiised by water block being freed from wall of furnace 
^■Wit bdAf repaired; St. Louis Cordage Co, v, Mlller» 126 Fed 




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Baltimore, etc., R. R. v, Baugb 



fit Id sockets on side of flat cars, tbougli supplied by coservaiu 
ofpoBon Injured; Frje v. Gas Co., 94 Me. 23. 40 AtL 8(J5, boldlDg 
iDiiiter liable to Jireman employed In boiler- room wbo fell into hole 
tint had been dug and left open in front of boiler by master's 
««aplQfee« who were making foundation for an economizer; Skinner 
i^> McUughJin, 94 Md. 530» 51 Atl. IIW. holding muster liable for 
'flJaiT to lal>orer employed by shipbuilder assisting in lowering 
'^v by helping with stubbing rope, when be was iuexperiem_ed 
iQd was not warned of dangerous character of work; Zellars v. 
^tooBri Water, etCi Co., 92 Mo. App. 12t*, holding where two 
^Hlftfl employed in eoglne-room and each shift had to keep place In 
^Hfftlr during period it was discharged, and their failure to notify 
f Sj^wnaa of second shift who was hurt though engineer notified, 
"^cannot recover, as members of two shifts were fellow servants; 
^^«rraU r. Tidewater Oil Co., 67 N« J. K 052, 6S4, 52 AtL 277. bold- 
^f master liable for injury to employee directed by superintendent 
assist In moving punching machine, tiy-wheel of which was 
k^<»ie and slipped off; Cerrillos, etc., R- R. v. Deserant, 9 X. Mex, 
^^^ 49 Pac 811, holding mineowner not litible for death of em- 
^Maj9e caused by explosion of gases; Faiflkner v. Mammoth M, Co., 
Cub, 442, 6«J Pac. 801, holding where miner ordered l>y foifman 
make excavations at place where miner thought overhanging 
^WDUnd looked " a little suspicious,'* but foreman atssured him it 
safe, there was no such obvious dancer as to create assump- 
D of risk; Pool v. Southern Pac. Co., 20 Utah, 210, 58 Pni\ 32^, 
iding railroad liable to car-repairer killed while under car wldch 
not repair track and was bumped by engine under direction 
t switch foreman who had actual know^ledge of deceased's post- 
m under car; Shannon v. Consolidated, etc., Mln. Co., 24 Wash, 
64 Pac. 173, holding master liable for injuries to mine employee 
^^ discharge of " missed shot," where one of shift, in addition to 
same work as other men, was charged with duty of notify- 
tacoming shift of existence of " missed shot;" dissenting opinion 
i^Mtrrland Clay Co. v. Goodnow, 95 Md. 349. 51 Atl 297, majority 
master not liable for injury to workman unloading clay 
^swDcars which were bumped by train of cars made up by servant, 
^"^trtliig down Incline^ where cars had defective brakes; dlssent- 
I *«at opinion In McLaine v. Head & Dowst Co., 71 N. n. 301, 52 
■^[^I^ majority holding master not liable for foreman's failure to 
^^pniAboi^r when load of dirt and stone was about to be dumped 
^Bb ti«ach where he was at work. See notes, 75 Am. SL Bep. 

M 3 iXIl, 402)*) Who are fellow eervanta, 

Appr^red IQ Pennsylvania Co. v. FIsliack. 123 Fed, 471, holding 
'VtfiBiater In charge of switch yards, who is subordiu/ite to 
**i«ll yirdmaater. who is in turn subordinate to trainmaster, and 
*^temperintendent, is fellow servant of switchmen; Hale v. Ean- 




149 U. S. 368-411 Notes on U. S. Reports. 87a 

sas City Southern Ry. Co., 120 Fed. 735, holding railroad not liable 
in Louisiana for injuries to member of train crew through negli- 
gence of another member of same crew; Southern Pac. Co. v.- 
Schoer, 114 Fed. 469, holding, under Utah Rev. Stat., SS 1342, 1343^ 
engineer not fellow servant of his fireman; M'Donald v. Buckleys 
109 Fed. 292, holding general foreman employed by contractors^ 
and having charge of work and of employees, with power to emj 
ploy and discharge, while employed in actual work of directing 
operations of pile driver, giving signals to engineer for fall o:^ 
hammer, is fellow servant of other members of pile driver gang^ 
Cincinnati, etc., R. R. Co. v. Gray, 101 Fed. 626, holding generam 
yardmaster and yard foreman in switch yards are fellow servants 
Browne v. King, 100 Fed. 365, holding helper and operator in min^ 
whose duty it was to look out for " missed shots " are fellow seK- 
vants; Thomas v. Cincinnati, etc., Ry. Co., 97 Fed. 249, 250, holc^ 
ing yardmaster of railroad who is made responsible for condltiGc: 
of yards, directs Incoming and starting of trains, and is authorise 
to employ and discharge men, who is subject to orders of sup^^ 

intendent and trainmaster, is fellow servant of foreman of ya:: 

switch gang; Southern Ind. Co. v. Martin, 160 Ind. 286, 66 N. 
888, holding one employed in unloading and hauling stone on ^c 
fendant's train is fellow servant of manager of train and wo^^ 
McQueeny v. Chicago, etc., Ry., 120 Iowa, 526, 94 N. W. 1126, h<^H 
ing foreman in charge of steam shovel while assisting in replac ^ 
chain on pulley of shovel, is fellow servant with servant who is t^m. 
engaged in replacing the chain; Knutter v. New York, etc., Co.^ 
N. J. L. 652, 52 Atl. 5G7, holding lineman fellow servant of disti::^ 
manager who had charge of business of telephone company ^e 
whose negligence while co-operating with lineman and at szim- 
tlme supervising work was cause of injury; Mast v. Kern, 34 
249, 75 Am. St. Rep. 581, 54 Pac. 951, holding superintendent ^s 
manager of quarry, having power to hire and discharge employee 
Is fellow servant In directing workman with whom he is engaged - 
blasting to put powder Into bole, without waiting for hole to c«»* 
after powder had exploded therein; Wiskie v. Montello, etc., C^^ 
111 Wis. 450, 87 N. W. 404, holding foreman who personally c<*=: 
ducts blasting in quarry is fellow servant of those who assist hi "^ 
in such work; dissenting opinion in St. Louis, etc., R. R. Co. 
Furry, 114 Fed. 904, 005, holding, under Arkansas statute of ISUS—^ 
fireman Injured by collision caused by failure of telegraph operated 
to deliver orders received by him from train despatcher not felloi^ 
servant of telegraph operator; dissenting opinion in Missouri, etc^<^ 
Ry. Co. V. Elliott, 102 Fed. Ill, majority holding train despatcher^- 
in giving orders for movement of trains, not fellow servant witS^ 
employees operating trains. See 75 Am. St Rep. 588, 697, eld. 
C25, 626, notes. 




Notes on U. S. Reports. 149 U. S. 411-451 

]>lstlti^ul8hed In Weeks v. Scbarer, til Fed, 331, 332, holding 

irt bosfi whose clotj it Is to direct raen wlien. where and how to 

or-lc. but \rho has no authority to hire or discharge men, being 

•^^^^Uo^ir seTT^ant of men Id shift, notice to him of Incompetence of 

"^ ^B^ noxr servant Is oot notice thereof to master. 

8yL 4 (XII, 405). Injury to fireman througli engineer's negligence. 

Approved in Southern Pac. Co. v. Sehoer, 114 Fed. 470, 474, hold- 

t-^r^£^ under Utah Rev. Stat, i§ 1342, 1343, engineer not fellow ser- 

^s- :^jii of blB fireman; Maher v. Union Fac, etc., Ey„ 106 Fed. 310, 

K:^. -wilding brakeman on passenger train, Injured Id collision with 

^•^^^^r^fljbt train, is fellow serrant of engineer and conductor of freight 

negligence caused the Injury; Dobson v. N. O., etc.. Ft. R. 

21ju Ann. 1136* 27 So. 674, holding plaintiff, who was foreman of 

mg engaged In hauling dirt with train, and sustained injury by 

oiUslon of train with cow on track, which was caused by con- 

iQCtor^B abandonment of train, is not fellow servant of conductor; 

inttls T. K. C, P. & G. Ry.. 153 Mo. 401. 402, 77 Am. St. Rep. 

^35, 56 S. 'W. 114, holding where fireman Injured by derailment of 

in caused by engineer* s negligence in disobeying rules as to 

ignals and obeying orders of conductor, he cannot recover as he 

fellow servant of engineer and conductor: dissenting opinion 

Ulasouri, etc., Ry. Co. v. Elliott, 102 Fed, 109, majority holding 

in despatches In giving orders for movement of trains, not 

".^Qow servant of employees operating such trains. 

(XIl^ 3Q9). Miscellaneous. 

Cited in Greene v. Owen, 125 N. C. 21S, 34 S. E. 42C, holding 
■^Ii0e county board of education established by act of 1807, chnp. 
L^KL was abolished by act of Ism, chap. 374, It was practically re- 
Li UTihUshed by act 1809, chap. 732. 

B -« U, 8, 4U-436, 37 L, 790, PATRICK v. BOWMAN. 
%yl 3 (XIL 406). Contracts — Revocation by mall. 
Approved in Sea Ins. Co. v. Johnston, 105 Fed. 201, applying rule 
*^ itTocation of Insurance by malL 

^m a S. 436-151, 37 L, 799, METROPOLITAN BANK T, ST, 
ions DISPATCH CO, 
^l 2 (XII, 406). Good wlU defined. 

Approved in Hart v. Smith. 159 Ind. 18T, 04 N. E. 6G3, holding 
W will of business not taxable under Burns' Rev. Stat 1001, 
.gtftg ^^*^^ I Wk\ taxing all property not expressly exempt, and § 8411, 
fgg ^^^ ^^ B J*oii4|jig that personalty shall include certain described property, 
**0Q^ wliich gr»od will not mentioned; Lawrence v. Times Prlnt- 
l^^^ii^B ■lCo^ 22 Wash. 402, 61 Pac. 109, holding Injunction lies at Instance 
^JMldal sale purchaser of newspaper, its plant and good will, 
H fMrmlli another newspaper company from usurping the good 
fin ail4jlQiilQv|xig a kindred name for paper published by It 



149 U. S. 451-i72 Notes on U. S. Reports. 87i 

Syl. 4 (XII, 406). Effect of limitations In equity. 

Approved In Hale v. Coffin, 120 Fed. 474, affirming 114 Fed. 57( 
holding equity suit to subject property of estate in hands of dlf 
tributee to debt of decedent, based stoclsholder's statutory lii 
bility is governed by Statute of Limitations; Higglns, etc., Fui 
Co. V. Snow, 113 Fed. 437, holding under Texas rule where title c 
complainant to lands, upon which he bases right to equitable reliej 
is legal one, capable of being established at law, doctrine of lache 
docs not apply, but rights are barred only by adverse possession. 

149 U. S. 451^65, 37 L. 804. GATES v. ALLEN. 

Syl. 1 (XII, 407). Setting aside conveyance by unsecured creditoi 

Distinguished In Jones v. Mutual Fidelity Co., 123 Fed. 621, 628 
holding Federal equity court may, under 19 Laws Del., chap. 181 
appoint receiver for insolvent corporation solely on ground of ill' 
solvency at suit of unsecured creditors who have not reduced claimi 
to judgment 

Syl. 2 (XII, 407). State laws blending law and equity. 

Approved In Postal Tel. Cable Co. v. Southern Ry. Co., 122 Fed 
IGO, holding on removal of condemnation proceedings to Federa 
court, proceeding prescribed by State law must be followed ii 
determining compensation; Peacoclt, Hunt & West Co. v. Williami 
110 Fed. 919, denying Federal equity jurisdiction over suit by cred 
itor whose claim Is evidenced by notes not reduced to Judgmeo 
for sequestration of debtor's property and appointment of recelvei 
though such suit authorized by State statutes; M*Guire ▼. Pensa 
cola City Co., 105 Fed. G79, denying equity jurisdiction over suit t 
recover realty by one having title though out of possession, wh« 
alleges that defendants obtained possession by fraud and by yoU 
judgments of State court; Southern Pine Co. v. Hall, 105 Fed. 8C 
upholding Federal jurisdiction over suit to quiet title by con 
plainant in possession, where such suit is authorized by State stat 
ute and it appears from record that defendant is not in possession 
Adoue V. Strahan, 97 Fed. 092, holding plaintiff out of possessioi 
and holding legal title cannot maintain ^111 in equity In Federa 
courts against defoudant in possession to cancel tax deed regula 
on face and which constitutes cloud on title. 

Distinguished in Jones v. Mutual Fidelity Co., 123 Fed. 521 
holding Federal court may, under 19 Del. Laws, chap. 181, appolD 
receiver for Insolvent corporation solely on ground of Insolvenc; 
at suit of unsecured creditors who have not reduced claims to Judg 
ment. 

149 U. S. 4(>5-472, 37 L. 810, ST. LOUIS v. WE^STERN UNTO: 
TEL. CO. 
Syl. 1 (XII, 408). Rental for use of streets for telegraph polet 
Approved in Western Union Tel. Co. v. New Hope, 187 U. 8. 427, 

23 Sup. Ct 205, 47 L. 244, following rule; Pikes Peak Power Co. ?. 



^m 



Notes on U. S. Reports. 



149 U. S. 473^811 



P^ty of Colorado Springs^ 105 Fed. 10. uplioMing grunt l\v city 
t^^fT coDsidemtion of use of city water and water system to produce 
l*ower to generate electricity; State, etc. v, Di. strict Court Ramsey 
tr^mity, 87 Minn. 151, 91 N. W. 302. holding St. Paul charter of 
k-^00. conferring on counciJ right to take private property for pnb- 
n^ use OD paying compeaBation» does not Yiolate home rule amend- 
tai^t of Constitution of 189S; Plattsburg v. Peoples' TeL Co., SS 
^^a App. 313. holding city may grant franchise to telephone com- 
"P^ay on condition that it pay percentage of gross earnings; Wasn- 
iHi^n, etc, R. E, v. Alexandria, 98 Va. 351* 30 N. E. 3S7, holding 
^ty may compel railroad to replace rails by others of different 
Etern though old rails had been approved by city in first instance. 

U. S. 473^80, 37 L* 815, PORTER v. SARIN. 

yL 1 (Xn, 409). Suit by stockholder against officer — Parties. 

[ApPTOred in Sarings^ etc., Co. v. Bear Valley Irr. Co., 112 Fed. 

holding stockholder cannot question corporation's deed in 

ibawice of showing that corporation itself baa failed, after proper 

_ippUcatlon to It, to bring suit to set deed aside; Lamm v. Parrott, 

t, Co., Ill Fed. 241, holding suit by stockholders against cor- 

■ratloD and another corporation, which has wrongfully obtained 

utrolllng Interest in first and has managed its business to detri- 

HI of stockholders and for its own benefit, is removable by 

Qd corporation on ground of separable controversy; Metcalf 

^ American School Furniture Co., lOS Fed. lUl, holding minority 

w^lcliolder may sue in equity in behalf of himself and all other 

K^itli^lders similarly situated to set aside unlawful transfer by 

titration, where corporation on demand has refused to sue; 

i!l»7 r. Casper, 100 Ind, 400, G7 N. R 105, holding taxpayer may 

' aailltor and county commissioners far restitution by former of 

^neya Illegally allowed him by latter in excess of legal fees, 

latter refused to pro<:eed against him. 

yt <X1I, 410). Recelver*s possefislon is court'i. 

An^roved Lq Brookfleld v. Hecker, 118 Fed. 942, upholding juris- 

of Federal court appointing ancillary receiver for corpQ' 

RJoa's property, over suit by him to protect property, irrespective 

^Jtifr'usbip; Western tlnloa TeL Co. v. Boston Safe Deposit, etc., 

IKi Fed. 3S, holding contract made by receiver appointed in 

are, with approval of court, leasing property pending Ita 

r tindlng on mortgagee thoiigb he is not formal party to suit; 

^ It Eodl. 90 Fed, 910, holding where constable under StMe proe- 

"elies personal property in posses-sioo of bankruptcy trustee. 

IH In held as assets of estate, he will, on motion of trustee, be 

T^ forthwith to restore the property to the possession of the 

Eh*r; [Vndletoo v, Lutz, 78 Miss. ,'^30. 2D So. ir>5, holding, under 

lF«d. 8tat. 433, suit atralnst Federal receiver is not ancillary to 

tte which receiver was appointed so as to give right of removal; 




149 U. S. 481-505 Notes on U. S. Reports. o^ 

Ounnlngham v. Wechselberg, 105 Wla. 362, 81 N. W. 416, holding 
stockholder cannot maintain suit to enforce rights of corporation 
in hands of receiver against defaulting oflScers, until court has 
refused to direct receiver to take proper steps in that regard. 

Syl. 4 (XII, 410). Receiver not suable without court's consent. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 222, 223, hold- 
ing where receiver Intervened in suit to foreclose mortgage om 
corporation's property, decree in such suit bound all parties, in- 
cluding interveners, in suit in which he was appointed; Montgomery 
V. Enslen, 12G Ala. 660, 28 So. 631, restraining, on petition of re^ 
ceiver, action of trover against receiver by claimant to property 
of corporation in hands of receiver; Ck)lbum v. Yantis, 176 Mo. 
684, 75 S. W. 656, holding where property is in possession of re- 
ceiver and neither receiver nor party acquiring title at foreclosure 
sale is made party to suit, prevailing party on appeal not entitled 
to restoration of possession as against receiver and purchase. Bee 
74 Am. St. Rep. 286, note. 

Syl. 5 (XII, 410). Federal Jurisdiction over State receiver. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 218, holding 
where, at commencement of foreclosure of mortgage covering all 
property and Income of corporation, property was in hands of 
receiver appointed in creditor's suit, mortgagee, by Intervening tn 
creditor's suit, acquired prior right to income as against creditors 
subsequently intervening; Knott v. Evening Post Co., 124 Fed. 854, 
holding where, in State suit by stockholder only relief grantable 
was order of Inspection of books, Federal court, in suit by creditor 
nllcjifing corporation's Insolvency, acquires priority where it appoints 
receiver who takes possession before appointment of receiver by 
State court; Murray v. Real, 97 Fed. 568, holding bill in equity 
brouglit In Bankruptcy Court by trustee to quiet title to assets of 
ostnte ns nj?alnst claim of defendant, must affirmatively show that 
right of action was one vesting originally In trustee or that it was 
one originally accruing to tlie bankrupt himself; Mishawaka Mfg. 
Co. V. Powell, 98 Mo. App. 540, 72 S. W. 725, holding replevin does 
not lie by claimant of property in hands of bankruptcy recelTer as 
property of bankrupt. 

149 U. S. 481-505, 37 L. 819, BIBB v. ALLEN. 

Syl. 4 (XII, 411). Order to broker — Usage. 

Approved in Clew v. Jamieson, 182 U. S. 481, 45 L. 1194, 21 Supi 
Ct. S53, holding where it appears from pleadings that sales and 
purchases of stock were in fact made subject to rales of stock 
exchange, all transactions reganling sales and purchases must be 
regarded as having taken place with direct reference and subject to 
those rules. 



Notes on U. S. Reports. 140 U. S. 505-550 

^t 5 fXII, 411). Futures — Understanding as to nondelivery. 

pprored in Marden v. Phillips. 103 Fed. lOii, liolding bill of sale 

«ntJed as security for loan of money to lie used in dealing in 

>reDceB In profits of whicli vendee Is to participate, is invalid 

ftfaliist trustee In bankruptcy of vendor. 

ISyl. 7 (XII, 411). Validity of contracts for future delivery. 

Approved In Clews v. Jamieaon, 182 U. S. 491. 45 L. 1107, 21 Snp. 

holding contract which is, on its face, one of sale, with 

"^^XSTlsion for future delivery, Is valid, and burden of showing that 

^^ Is cover for settlement of differences rests with party making 

^tieniertion; Board of Trade v. Christie Grain, etc.. Co.. 116 Fed. 

HT, holding since rules of Chicago board of trade prohibit gambling 

*ad Impose upon both parties to sale for future delivery obligation 

% deliver and receive the commodity sold, such board may sue 

'wi equity to protect Its market quotations, though members vloiate 

miea; Ponder v. Jerome Flitl Cottoo Co,, 100 Fetl 3T6» 377, holding 

▼ii^renote was executed to brokers, through whom, as their agents, 

tlkey had made contract for purchase of cotton for future delivery 

for amount of loss paid for them by snch broiserfl, defendant had 

ttrden of showing that they did not Intend to receive the cotton; 

teeotlDg opinion in Bartlett v, Collins, lOO Wis. 487, 85 N. W. TOO, 

Biijorlty holding In action on brokerage contract for sale of gram 

«li board of trade for future delivery, burden is on party elnlmiag 

« inch contract to show that actual delivery Intended. See 83 

Am. St Hep, 934, note. 

Sjl 11 (XII, ill). Statnte of Frauds — Executed contract 

Approved In McCarthy v. Weare Coram. Co., 87 Minn. 14, 91 

JH* W, 34, applying principal in action upon iiccount stated based 

M Clock transactions whereby defendant bought and sold certain 

Mdoi for plaintiff, and defendant by its manager reported orders 

€X9COtad In each case; Smith v. Putnam, 107 Wis, 1G3. 82 N. W. 

HM. Milorcing oral agreement to purchase and sell log lands and 

to diTlde profitB arising either from sale of lands or logs, where it 

letely executed and nothing remains to be done but division 



D^ished in Snyder v. Albuquerque, 10 N, Mex, 409, 62 Pac, 
hci^lng municipal corporation not liable on Implied promise to 
psj itrvtce alleged to be worth ^iSOO, where It was by statute limited 
to eoQtract orally for not more than $200, 

1« 17, S. 605-{»44. Kot cited. 

Hi IT* 8. M4-«50, 37 L, 840, HARTRAUFT v. MEYER. 

1 {XII, 413). Duties — " Chinas ** dutiable as hat trlm- 



tfnpttlshed in Robinson v. United States, 121 Fed. 205, holding 
\ gUM ^cxKla from four to twelve Inches wide and used directly 



149 U. S. 550-574 Notes on U. S. Reports. 882 

In these widths to trim hats, not dutiable as trimmings under para- 
graph 390, tariff act of 1897. 

149 U. S. 550-562. Not cited. 

149 U. S. 562-574, 37 L. 847, COATS ▼. MERRICK THREAD CO. 

Syl. 1 (XII, 413). TrademarlsB — Dressing goods to deceive. 

Approved in Elgin Nat Watch Co. v. Illinois Watch Case Co., 
179 U. S. 674, 45 L. 381, 21 Sup. Ct 274, holding word *• Elgin," 
having acquired secondary signification in connection with its use, 
it will be protected from imposition by fraud, though it Is not 
suspectlble of registration as trademark; Ohio Baking Co. ▼. Na- 
tional Biscuit Co., 127 Fed. 120, holding "In-er Seal" trademark 
Infringed by trademark with words " Factory Seal " printed on 
same colored labels; Faber v. Faber, 124 Fed. 612, enjoining use 
of word " Faber " on pencils by another man of that name where 
pencils had been widely known by that namt; Shaver v. Heller, etc., 
Co., 108 Fed. 826, 831, affirming HeUer & Merz Co. v. Shaver, 102 
Fed. 886, holding being manufacturer of "American Wash Blue" 
may enjoin use of name In connection with goods of another manu- 
facturer; Fairbank Co. v. Luckel, King & Cake Soap Co., 102 Fed. 
333, holding name " Gold Drop," used to designate washing powder, 
sufficiently similar to name " Gold Dust," previously adopted by 
complainant to deceive so as to constitute infringement; Rains ft 
Sons V. White Ilaucke. etc., Co., 107 Ky. 118, 52 S. W. 971, hold- 
ing tobacco manufacturer using brand " Rainbow Twist," may en- 
join another manufacturer from using words ** The Best Twist," on 
same kind and color of label; Drake Medicine Co. v. Gleesner, 68 
Ohio St 358, 07 N. E. 727, holding "Dr. Drake's German Croup 
Kem€Mly " infringed by words ** Dr. Drake's Famous German Croup 
Remedy." 

Syl. 4 (XII, 414). Trademark — Quality and length alone In- 
dicated. 

Approved in Searle, etc., Herith Co. v. Warner, 112 Fed. 676, 
holding Pancreopepsiue not subject of trademark. See 85 Am. St. 
Rep. IIG. 120, note. 

Syl. 6 (XII, 414). Trademark — Care not to deceive. 

Approved in Allen B. Wrlsley Co. v. Iowa Soap Co., 122 Fed. 798, 
holding ** Old Countrj- Soap " not infringed by brand " Our Coun- 
try's Soap," where defendant's product bore his name and place 
of manufacture and package was so unlike plalntllTs as not likely 
to deceive common purchaser exercising ordinary care; General 
Electric Co. v. Re-New Lamp Co., 121 Fed. 170, holding where 
manufacturer of electric lamps had affixed Its trademark to each of 
lamps on interior of tube in i)rocess of manufacture, defendant 
renewing such lamps when burned out and reselling same, not 



Notes un U. S. Reports. 



149 tJ. S. 574-580 



enjoined Id absence of proof of purpose of putting trademark 
wl«ir« It did; Centaur Co. v. Marshall 0" Fed* 780, holding wrappers 
tod libels ased by defendants, on bottles of Castoria made and sold 
\ij tbem, not so similar to complalnaots as t» deceive ordinary 
pttrcbMepg; Denntson Mfg. Co* T, Scbarf Tag, Label, etc., Co., 121 
Pfd. 317, arguendo. 

W U. 8, 5T4-580, 3T K 853, SHEFFIELD FURNACE CO. v. 
WITHEROW. 

8yL 1 (XII. 415). Demurrer without afladavit and certiflcate. 

Approved tn Dupree v, Leggett, 124 Fed. 701, holding, under 
«qttlt7 niie 31, demurrer to bill not supported by certllicate and 
•IMiAlt required by it is fatally defective, 

i*rL 3 <XII, 415). Equity will not aid delay In payment 

Approved In Rochester Germ. Ins. Co. v. Schmidt, 12G Fed. 1003, 
Mdliig where several insurers were only pro rata liable, and sev- 
8*1 Slate suits brought to which same defenses Interposed and 
••flM wilts removed to Federal court, both Federal and State suits 
«wiW be enjoined by bill In Federal court to have liability of In- 
■WW8 determined In equity, 

SyL 5 (XII. 415). Following State court enforcliig mechanic's 
Ha. 

Afipfoved in Jones v. Mntnal Fidelity Co., 123 Fed. 519, holding, 

■ ''> Laws Del., chap. ISl, Federal court mn}\ at anlt of uii- 

i f red! tors who have not reduced claims to Judgment, appoint 

f*^v$r for Insolvent corporation; Union Life Ins, Co. v. Riggs, 

121 Fed. 319, holding Rev. Stat Mo. 1890, g 781)0, providing that 

^Mlwr misrepresentation made in procuring life policy is material 

WJ be question for jury does not afifect Federal equity court's 

^siidfction over suit to cancel policy for fraud; HO! v. Nortlitrn, 

^. R. R, Co., 113 Fed. 917, holdlag one executing release to rail- 

f^ilfor clnlm for personal Injuries cannot avoid It for fraud, unles^s 

if Ilf»l relums or offers to return the money received as consid- 

•ntioo; Hooven, etc., Co. v. John Feather stone's Sons, 111 Fetl. SO, 

fcoiiliag consent to try equity suit as action at law Is no waiver of 

rtfbt to review procet»dli)gs by appeal; Connor v. Tennessee Cent 

By. Co.. 1(K) Fed. 938, holding purchaser of railroad at judicial 

may intervene In suit to enforce iiaforeeloaed lien, and assert 

to which he has succeeded; Hill v. Northern I'ac, Ry. Co., 104 

7**t», holding written release Intentionally executed by a plain- 

IC OD payment by defendant of agreed sum. cannot l>c Impeached 

In Federal court, on ground of fraud, though State statutes 

It it; Adams v. Shirk, 104 Fed. 01, hrdding objection that cause 

Ion jftated In declaration at law Is cogiiisiable only In equily, 

||^idered when first taken in motion la nrrest of judg- 

.4, etc., Co, V, Fcatherstone, liO Fed. 181, holding suit to 





149 U. S. 580-628 Notes on U. S. Reports. 884 

enforce mechanic's lien, being one in equity, on remoyal may be 
tried as such though instituted as law action as permitted by State 
practice; Adams t. Shirls, 117 Fed. 807, arguendo. 

149 U. S. 580-585, 37 L. 856. LOBBER v. SCHROBDER. 

Syl. 2 (XII, 415). Time to raise Federal question. 

Distinguished in Mallett v. North Carolina, 181 U. S. 592, 45 L. 
1018, 21 Sup. Ct 731, holding Federal question raised in State 
Supreme Court on rehearing is in time where State court disposed 
of such Federal question. 

149 U. S. 586-593. Not cited. 

149 U. S. 593-605, 37 L. 862, HILL v. UNITED STATES. 

Syl. 2 (XII, 416). Concurrent Jurisdiction of Court of Claims. 

Approved in Dooley v. United States, 182 U. S. 227, 45 L. 1080, 
21 Sup. Ct 764, holding Circuit Court, sitting as Court of Claims, 
has Jurisdiction of suit to recover duties illegally exacted upon 
goods alleged not to have been imported from foreign country. 

Distinguished in United States v. Lynah. 188 U. S. 458, 478, 28 
Sup. Ct. 352, 366, 47 L. 544, 551, upholding Circuit Court's jurisdic- 
tion over suit against government for damages for overflowing 
of lands, rendering them useless, caused by erection of dam acro«8 
river to improve navigation; dissenting opinion in Scranton ▼. 
Whooler, 179 U. S. 189, 45 L. 147, 21 Sup. Ct 67, majority holding 
riparian owner whose access to navigable water is permanently 
destroyed by government pier erected on submerged lands to im- 
prove navigation. 

Syl. 3 (XII, 416). Tort against government 

Approved in BIgby v. United States, 188 U. S. 405, 23 Sup. Ct 
470, 47 L. 523, denying Circuit Court's Jurisdiction over action for 
damages to one injured by fEill of elevator in government building; 
Adsit V. Kaufman, 121 Fed. 356, holding where defendant was in 
possession of realty claiming under third person adversely to plain- 
tiff, and no relation of contract existed between the parties, plain- 
tiff could not maintain assumpsit for use and occupation. 

149 U. S. 605-607, 37 L. 866, EVANS v. STEDTNISCH. 

Syl. 1 (XII, 416). Appeal — Errors apparent on record. 

Approved in Ilildreth v. Grandin, 97 Fed. 872, holding wliere 
motion is pre8ente<i to trial court, which raises issues of fact to 
be determined on evidence, action of court not reviewable in ab- 
sence of bin of exceptions embodying motion and proofs. 

149 U. S. 608-628. 37 L. 867, BYERS v. McAULEY. 

Syl. 1 (XII, 417). Court's possession cannot be Interfered with. 

Approved in Stevens v. Sniitli, 12G Fed. 709, holding legatees ana 
distributees are indispensable parties to Federal suit by heir to 



K Notes on D. S, Ueports. 149 U. S. 608-628 

•ec Bjlde provisions of will so as to leave decedent Intestate as to 
UTfeportioD of estate: Ivnott v. Evening Post Co., 124 Fed. 355» 357» 
haidla$ where iu action by stockholder in State court only relief 
wWch could be granted was inspection of corporation's books. Fed- 
«il court Id subsequent suit by creditor, alleging Insolvency of 
eoipontioo, acquires priority when it appoints receiver who takes 
p(Me«fiion of property before State court appoints receiver; Hall 
f. Bridgeport Trust Co., 123 Fed. 740, denying Federal jurisdiction 
oto fnlt for specific performance of contract by which intestate 
deeedent agreed to make complainant his sole heir, wliile his es- 
iitt is in process of administration as insolvent estate; Hale v. 
Coffin, 114 Fed. 575. holding where administration of estate com- 
pleted by State court Federal court may, by suit lu equity ♦ sub- 
ject property of estate in hands of distributee to payment of stock- 
IwWer's liability; United States v. EisenbeiSp 112 Fed, 197, holding 
▼li€r« in condemnation suit by govern men t In Federal suit, process 
Mt served until after service of State process In subsequent action 
tff third person to recover Interest In same land» State court bad 
Jikidty of jurisdiction, but Federal court could proceed with cou- 
4(ffllDitloQ; M*Farlan, etc., Co. v. Solanas. KM} Fed, 148, 140, 152, 
Mdlag where. In action In Circuit Court against bankruptcy trustee. 
(ililnttff recovers judgment declaring him to l>e owner of property 
«B tmstee's possession, and pending proceedings defendant sells 
ptrt of property, court could, on rule to show cause, compel defend- 
im to pay proceeds to plaintiff; In re Chambers, Calder & Co., 98 
IW. 865, holding where bankruptcy receiver enters upon occupancy 
tf tmUdlng leased by bankrupts to carry on their business, ejeet- 
Wsat in State court against bankrupt and receiver will be en- 
jolfted; Jordan v. Taylor, 98 Fed. 645, holding, pending adtniuistra- 
tloQ to State Probate Court, Federal court will not entertain bill 
bf cestui que trurt under trust fund comprising residuum of estate 
tt wet aaide executor's sale, and to take proceeds out of their 



BjfL 2 (Xn« 417). Administrator's possession is court's, 
Appcored In Mcpherson v. Mississippi Valley Trust Co.. 122 Fed. 
ttU 373, boldlng where proper distribution of estate has been de- 
ttnnlDed by Probate Court Federal court will not entertain suit 
administrator to compel him to deliver property to another 
Lt who was not party to State proceedings; Hale v. Cottin, 
IH WwdL 5T5, holding where administration of estate completed in 
Miort* Federal court may by equity suit subject property In 
ct dlsMbutee to payment of stockholder's liability; State v. 
OTDoy, €1 Or. 504, m Pac 545, holding beginning of escheat pro- 
IQ Circuit Court, under Hill's Anno. Laws, § 313ii, not in* 
to Interfere with or interrupt usual probate proceedings. 
VaL III — 25 



149 U. S. 608-^28 Notes on U. S. Reports. 38e 

SyL 4 (XII, 418). Determination of ancillary matters — Citizen 
ship. 

Approved in Hale v. Tyler, 115 Fed. 838, 839, upholding Federa . 
Jurisdiction o^er suit by creditor of decedent on behalf of aM 
creditors to set aside alleged fraudulent conveyance by decedent 
notwithstanding pendency of State probate proceedings, wher- 
State court has not taken possession of realty; Jordan v. Tajlo'n 
98 Fed. G46, holding, pending administration in Probate Gourr: 
Federal equity court will not entertain suit by cestui que tru_4 
under trust fund comprising residuum of estate to set aside c^ 
ecutor's sale and to take proceeds out of their possession. 

Syl. 5 (XII, 418). Federal court's probate Jurisdiction. 

Approved in Security Trust CJo. v. Black River Nat Bank, ^i:::: 

U. S. 227, 23 Sup. Ct 58, 47 L. 155. holding if foreign credltoi 

Minnesota decedent delays proceedings in Federal court until a^^ 
time fixed by Probate Court for presentation of claims has exp^M 
and estate distributed, ho is barred; Carrau v. 0*Calligan, 125 ^^ 
G70, 671, denying Jurisdiction of Federal court over suit to set a^ ^ 
probate of will under Washington ^statutes; Hale v. Tyler, 115 ^^H 
838, upholding Federal court's Jurisdiction over suit by credited si 
decedent on behalf of all creditors to set aside fraudulent ^ 
veyance by decedent notwithstanding pendency of State pro>'^= 
proceedings where State court has not taken possession of i^ — 
erty; Clark v. Guy, 114 Fed. 784, denying Federal JurlsdlctioK^Ei. 
removal of proceedings for administration of estate of deceiHV 
person; United States v. Elsenbeis, 112 Fed. 197, 199, holding wl_: 
In coudemnntion suit by government, process not served until a= 
service of State process In subsequent action by third person to ■ 
cover interest In same land, State court had priority of Jurisdlct^ 
but Federal court could proceed with condemnation; GalUvao -* 
Jones, 102 Fed. 427, holding, under Cal. Code Civ. Proc., i ICT 
where one of several executors was creditor of estate, cb^ 
should be prosonted to other executors, and if disallowed, m 
should be brought against them; dissenting opinion in Wahl 
Franz, 100 Fed. 093, (K>4. iK)5. 698. 099, majority holding whi 
under Arkansas statute, appeal from probate decree admitting ' 
to probate cause tried de novo In State Circuit Court, proceed 
on appeal not civil suit at law or in equity within sections 1 ai 
Judiciary act 1888. 

Syl. 7 (XII, 418). Binding effect of State decisions. 

Approved In 0*Callaghan v. O'Brien, 116 Fed. 936, reafD 
rule; Security Trust Co. v. Black River Nat. Bank, 187 U. \ 
23 Sup. Ct. 58, 47 L. 155. holding if foreign creditor of Mir 
decedent delays proceedings in Federal court until after tlDC 
by Probate Court for presentation of claims has expired 



lisbed In Donnell v. Araoskeag Mfg. Co.» 118 Fe^3. 19, 
lag where liott] parties to ILbel appeal, and oeitber maintains Its 
costs are not allowed. 



I 



L 645-648, 37 L. 882. McNULTY v. CALIFORNIA. 
(XII, 419). Dtie process of law— Prosecution by iJifor- 



liproTed in Maxwell v. Dow. 176 U. S. 584, 44 L. 598, 20 Sup. 
450; Bolln v. Nebraska. 170 U. S. 86, 44 L, 383» 20 Sup. Ct. 

and State v. Tucker, 36 Or. 294, 61 Pac. 805, all reaffirming 
; Darls v. Burke, 179 U. S. 404, 45 L. 252, 21 Sup, Ct 212. 
Bnf question whether coavlct sliall be executed by sheriff, as 

stood at time of trial and conviction, or by warden uuder law 
mb^equestlj amended, Inrolves no Question of due process of 
. See 78 Am, St Rep. 239, note, 

tJ, & e48» e49, 37 L. 884, VINCENT v. CALIFORNIA. 
IrL 1 fXII, 419)* Adjudged conformably to McXulty case. 
^ppfOTed In In re Jack Davis, a Idaho, 772, 59 Pac. 545. hold- 
I nuder Rev. Stat. 1887, | 159, person convieted of crime and 
Bteaced to deatli prior to repeal of a statute, must be punished 
' liiw existing at time of commission of offense. 

ett-^1, 37 L. 884, SHUTE v. KEYSEB. 

fXlI. 419). Appeal — Failure to return citation In time, 

ored in Berllnger Gramophone Co. v* Seaman, 108 Fed. 717, 
mere fact that citation Is not issued until after explra- 
time for appeal does not defeat jurisdiction of appellate 

hXII, 420)* Supreme Court's review of territorlfi! judgment. 




149 U. S. 652-763 Notes on U. S. Reports. 

149 U. S. 652-662. 37 L. 885, CARR V. QUIGLBY. 

Syl. 1 (XII, 420). Land within exterior of Mexican grant. 

Approved in Oregon, etc., R. R. Co. v. United States, 190 """ 
S. 189, 23 Sup. Ct. 675, 47 L. 1013, holding no right to perf^ 
claims, under Or. donation act of 1850, to lands abandoned t^fl 
fore completing requisite residence thereon, given by act of Jt— ^ 
26, 1894, giving donees right to make and file final proofs s^m 
fully establish their rights to donations. 

149 U. S. 662-679, 37 L. 890, CURTNER v. UNITED STATES. 

Syl. 1 (XII, 420). Government as nominal party. 

Approved in French Republic v. Saratoga Vichy CJo., 191 
S. 438, holding rule of nullum tempus cannot be invoked in 
courts in favor of foreign government suing for benefit of l^ :: 
vidual which is its lessee; United States v. Southern Pac. R- ^« 
Co., 117 Fed. 552, holding government may sue in equity t<^ 
aside patents erroneously issued to railroad under land t^^c 
and to test bona fides of purchasers of such lands; Mora's:^ 
Horsky, 178 U. S. 214, 44 L. 1041, 20 Sup. Ct 860, arguendo. 

149 U. S. 680-697, 37 L. 896, UNION PAC. RY. v. GOODRIDGB:^ 

Syl. 3 (XII, 421). Discrimination by carriers. 

Approved in Interstate Com. Comm. v. Chesapeake, etc, ^9 
128 Fed. 64, holding void, under interstate commerce act, I -^ 
contract whereby one railroad was to furnish coal to another ** 
fixed price, deliverable at latter*s bins, where cost of coal adC::^ 
to transportation charges exceeded price received by substant^' 
sum; Baltimore, etc., R. R. v. Diamond Coal Co., 61 Ohio St 2t:^ 
55 N. E. 617, holding railroad whose line extends to intersect!^- 
with canal cannot contract to repay to shipper portion of freic^^ 
paid by hira, It being regular rate paid by others; dissenting op^^ 
ion in Louisville & Nashville R. R. Co. v. Commonwealth, 1^ 
Ky. 047, 57 S. W. 514, majority holding, under Const, i 215, p^ 
hibiting discrimination in freight rates, railroad may charge I^-^ 
for hauling coal used for manufacturing purposes than for c^^ 
used for domestic purposes. 

Distinguished in Louisville & Nashville R. R. v. CommonweaC^ 
108 Ky. G58, 57 S. W. 517, holding, under Const, § 215, prol=: 
iting discrimination in freight rates, railroad may charge less 
hauling coal used for manufacturing purposes than for coal i^M* 
for domestic purposes. 

149 U.S. 09^763, 37 L. 905, PONG YUE TING v. UNITED STArT»8 
Syl. 1 (XII, 422). United States may exclude aliens. 
Approved In Fok Young Yo v. United States, 185 U. S. 302. 22 
Sup. Ct. 688, holding by Chinese treaty of 1894, privilege of transit 
across United States subject to regulations of United States; United 
States V. Yamaska, 100 Fed. 406, holding, under 26 SUt, cbip- 



"*>Q 



Notes OD U. 8. Report*. 149 IT, S, C9S-?e3 



tP 



*^^^, f 11 (contract labor law), secretary of treat^ury may cause 
_"^*^">ft tnd deportation of alien who becomes pauper within one 
tfter arrival, 
byl 4 (XII, 422 j. Exclusion of aliens Is political question. 
^ipproTed in United States \\ Lee Huen» 118 Fed. 455, reatlirm- 
rule; The Japanese Immigrant Case, 189 U. S. DL 100. 23 
p. Ct 613, 614. 47 L. 724, 725, bolding, under Immigration act 
Harcli 3, 18&1, and October 19, 1888, pauper aliens entering 
:3iUe<l States illegally may be deported at any time witliiu year 
landing; Li Sing v. United States, ISil U. S, -iDo, 45 L. 638, 
Snp. Ct, 453, upbolding exelusiion of Cblnese as witnesses In 
idoo proceedings under act of November 3, 1803, S 2; United 
&t€» V. Gue Lim, ITG U, S. 4<i4, 44 L. 547, 20 Sup. Ct. 417, 
wife and minor children of Chinese merchant who Is 
In Ibis country may, under act of 1884, enter without 
ite mentioned in act; In re JSing Tuck. 12G Fed. 388. 392, 
aL^<»lding Congress may commit question of citizenship of persons 
E^^siriug to enter to immigration officers to determine facts on 
^i^rUch cltiienship depends; Uni:*-d States v. Tuck Lee, 120 Fed. 
^HEU holding Chinese laborer who departed from port other than 
^a4ie prescribed In exclusion act of 1888, and without pornils.sJon 
^>f collector of customs, was subject to deportation on entering 
'^A^reafter at nondesignated point; United States v. Wong Soo 
^Sott, 112 Fed. 416, holding decision of customs officers denying 
«^bt of Chinese to enter Is conclusive agaioHt his right to remain 
'^hta inbseguently arrested for deportation, unless reversed on 
appeal to secretary of treasury; United States v. Wong Ctiow, ia8 
^«L 37S. holding, under esclusion act of 1894, where immigration 
^flliJer makes order of deportation, which has not been appealed 
too, court cannot review same on habeas corpus. 
m 5 (XII, 422K Statutes override treaties. 
Approved In The Kestor, 110 Fed. 448, holding act of December 
5l 1898, I 24^ prohibiting prepayment of seamen applies to pre- 
i*fBi«t OB AmiTlcau soil or In American waters of wage« of 
^^WOih subjects shipping on British merchatitmeji In American 

*rl. 7 «XII, 423). Removal of resident aliens. 

%mved Id Downes v, Bidwell, 182 U, S. 283, 45 L. 1105, 21 
% Ct 785, upholding Foraker act Imposing duties upon Imports 
^ Porto Kico; In re Yew Ring Hf, 128 Fed. 320. hnldfug Clilnese 
'*^^ttUf entering as merchant and who has lawfully practiced 
■ cilling for sometime thereafter, hut who !s not merchnnt at 
''^♦of arrest, cannot be deported, 

M 8 (XII, 423). Description of judge of Federal court. 

Approved m Cbow Loy v. United States, 112 Fed* 358, 359, hold- 
^ rtfbt of appeal given by exclusion act of 1888, § 13, pro v id- 



149 U. S. 69S-763 Notes on U. S. Reports. J 

Ing that any Chinese convicted before commissioner may, wltl 
ten days, appeal to Judge of District Court, is to Judge as spec 
tribunal and not to District Court 

Syl. (XII, 423). Legislature may prescribe evidence admissil 

Approved in Adams v. New Yorli, 192 U. S. 599, 24 Sup. CL 2 
upholding N. Y. Penal Code, §§ 344a, 344b, malting possession 
policy slips by person other than public officer presumption 
po^session Isnowingly in violation of law; Li Sing v. United Stat 
180 U. S. 493, 494, 45 L. 637, 21 Sup. Ct. 452, upholding act 
1892, § 3, casting burden on Chinese to prove right to rem 
in country; Chow Loy v. United States, 112 Fed. 355, holdl 
under exclusion act of 1888, § 13, providing for appeal fi 
commissioner's decision, appeal may be talsen by oral notice gi 
to commissioner within ten days and entered of record. 

Syl. 10 (XII, 423). Deportation not punishment — Fourte« 
Amendment 

Approved in Chin Bals Kan v. United States, 186 U. S. 19a 
L. 1125, 22 Sup. Ct. 894, holding lacls in complaint of pes.: 
averments of facts and as to official character of person ma.: 
it does not deprive commissioner of Jurisdiction in Chinese 
portation cases; United States v. Hung Chang, 126 Fed. 404, 1] 
irig proceeding for exclusion of alleged Chinese in so far as \ 
of issue as to whether or not accused is Chinese is concer 
being criminal in its nature, statements made by him to off 
while in Jail without admonition that they might be used agai 
him are inadmissible; United States v. Moy You, 126 Fed. S 
holding where, in Chinese exclusion proceedings, only evide: 
of citizenship was unsatisfactory and defendant refused to 
sworn in own behalf, finding against right to remain was proiv 
In re Ah Tai, 125 Fed. 796, holding district Judge to whom app» 
is taken from commissioner's order deporting Chinese, may i 
mit Chinese to bail pending appeal; United States v. Hills, 124 F» 
833, holding deportation decree entered by United States comm 
sioner is sufficient to Justify grand Jury in finding indictment : 
willfully bringing deported person in country in violation of • 
elusion act of 1884; Tsoi Sim v. United States, 116 Fed. 9 
holding, under exclusion act of November 3, 1893, Chinese wom 
who lawfully entered country before enactment of any exdns 
laws, but who failed to obtain certificate, cannot be deported, wh 
prior to her arrest she was married to citizen. 

(XII, 422). Miscellaneous. 

Cited in dissenting opinion in Downes v. Bidwell, 182 U. 8. 2 
45 L. 1107, 21 Sup. Ct. 787, majority upholding Foraker act i 
posing duties on imports from Porto Rico. 



CL UNITED STATES. 



^^30 U. & 1-15, 3T L. 975, UNITED STATES v. DENVER. ETC , 
RY. 
8ji. 3 (XII, 424). Timber may be used remote from source. 
Approved In Denver & R. G. R. R. Co. v. United States, 124 
^M. 102* holding order prohibitiug railroad from cutting timber 
^■aore than three miles from line of road will be modified; United 
*Ute» V. St. Anthony R. R, Co., 114 Fed. 724, holding timber cut 
^xx land from twenty to twenty-flve miles from road where same 
^ fienrest available timber to eyt from adjaeent land within act 
Mitch 3, 1875. 

Distinguished In United States v, St Anthony R. R., 192 U. S. 

«1, 536, 540. 24 Sup. Ct. 334, 336, 338, holding lands twenty 

'«Qm distant from railroad right of way are not adjacent within 

4xi March 3, 1S75, for cutting timber in adjacent lands. 

IXII, 424). Miscellaneous. 

~ Cited in United States v. Price Trading Co., im Fed. 242, 243» 

ildlDg railroad given right to cut timber for construction of 

line may ase any of such timber for construction of h ranch 



ISO U. 8. 16-ia Not cited. 
ISO tJ, S. 1&-23, 37 L. 981. WOOD v. BRADY. 
8fL 1 (XII, 425). Similar successive statutes may be differently 
■<iMiitTued. 

Approved in Weston v. Ralston, 4S W. Va. 190, 36 S- E. 455, 
Voiding purchaser from party who In previous suit admitted by 
P*** dedication of land In question as street cannot deny dedication. 

^V.B. 24-^0, Nat cited. 

*a g, 31-38. 37 L. QSQ, ASPEN MIN,, ETC., CO. v. BILLINGS. 

^ 3 (XII, 426). Appeal limitation suspeuded while rehearing 
mias. 

*I>proTed m Grsham v. Swayne, 109 Fed, 3C7, holding motion 
^^f opening of decree must be filed during term to which decree 
li ctttered and brought to attention of court; Tullls v. Lake, 
ft* 4 W. R- R, Co., 105 Fed. 557, holding bill of exceptions may 
^ lettM at same or subsequent term when motion for new trial 
^oteiml^; In ra Worcester County, 102 Fed. 810, holding time 
tot ippeal does not begin to run until petition for rehearing la 

[3&11 




150 U. S. 38-76 Notes on U. S. Reports. 392 

disposed of; Lincoln v. First Nat Banlj, 64 Nebr. 732, 90 N. W. 
877, holding In trial at law where judgment is rendered before 
presentation of motion for new trial time for writ of error runs 
from ruling on such motion. 

Syl. 8 (XII, 426). Certiorari lies to Circuit Court of Appeals. 

Approved in White v. Bruce, 109 Fed. 364, holding Circuit Court 
of Appeals cannot entertain appeal from decree of Circuit Court 
entered according to mandate of Court of Appeals. 

150 U. S. 38-57. Not cited. 

150 U. S. 57-62. 37' L. 996, MOORE v. UNITED STATES. 

Syl. 4 (XII, 428). Competent evidence may show another offense. 

Approved in Wolfson v. United States, 101 Fed. 434, holding ad- 
missible evidence. In prosecution for wrongfully extracting money 
from national bank, that person charged had long overdrawn 
account, though indicating another offense. 

Distinguished in dissenting opinion In Wolfson v. United States. 
102 Fed. 141, 142, majority holding admissible, in prosecution for 
wrongfully extracting funds from national bank, evidence showing 
that codefendant had long overdrawn account. 

Syl. 5 (XII, 429). Denial of new trial not error. 

Approved In Kellogg v. United States, 103 Fed. 201, holding 
appellate court will not reverse verdict of jury on question of In- 
sanity where evidence conflicting; Waterhouse v. Bock Island, etc., 
Min. Co., 97 Fed. 477, holding overruling motion for new trial is 
not assignable as error under Federal practice. 

(XII, 428). Miscellaneous. 

Cited in State v. O'Donnell, 30 Or. 226, 61 Pac. 893. holding er- 
roneous admission of evidence of larceny of calf other than that 
described in indictment where crime took place at different time 
and place. 

150 U. S. 62-65. Not cited. 

Too U. S. G5-69, 37 L. 999. UNITED STATES v. PATTERSON. 

Syl. 1 (XII. 420). Commissioner's fees allowable only as author- 
ized. 

Approved in United States v. Van Kluzee, 185 U. S. 281, 46 L. 
910, 22 Sup. Ct 650. holding clerk of Circuit Court not entitled 
to fee for tiling papers surrendered by Circuit Court commissioners 
under act 1896, abolishing their oflice. 

150 U. S. 70-76, 37 L. 1001, MAGONE v. HELLER. 

Syl. 3 (XII, 429). Term "expressly for manure" defined. 

Distingiiished 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 paragraph T.'^O of act ISfM^ as tapioca, and not dutiable as 
'•• preparation fit for use as S'tarcb." 



393 Notes on U. S. Reporta, 150 U, S. 16^09 

(in, 429)* Mi0cellaBeou8. 

Cited til United States t. Massachusetts General Hospital, 100 
Fed. 98i holding surreal Instruments for use tn general hospital 
maiJitaiQed for educational purposes are withtn free entry provision 
of ict 18d4. 

150 U. S. 7<J-S2, 37 L. 1003, HALL v. UNITEB STATES. 
SyL 2 (XII, 430). Failure to checic improper argument Is error. 
Approved In Massengale v. Rice, 94 Mo. App. 436» 68 S. W. 234, 
Mdlng allowing remarks by defendant's counsel, unsupported by 
erldeBce that plaintiff was cattle thief, was error; Dunn v. State, 
118 Wta. 88, 94 N. W. 64a holding error in falling to check prose- 
cuting attorney In commenting on defendant's failure to testify 
cw«d by charge that such failure cr^ited no presumption. 

130 U. S. 82, 83. 37 L. 1007, BU8HNELL v. CROOKE MIN., ETC., 
CO. 

Bjl 1 (XII, 430). Rehearing must be asked during t^m. 

Approved In Reynolds v, Manhattan Trust Co,, 100 Fed, 99, 
^ienylng motion to revoke mandate and to issue another directing 
different de<Tee, where motion made after end of term when decree 
»« entered. 

150 U. 8. 84-90, Not Cited. 

1» U, 8. 91. 92, 37 L. 10X0, HOLDER v. UNITED STATES. 
SSyL 1 (XII, 431). Disobeying exclusion order carries no dlsquail- 

DlaUBgaished In Johnson r, CJooley. 30 Tex. Civ. 5S1, 71 S. W, 37, 
Mdtog erroneous exclusion of witness from te^ti Tying because 
iifciHliiiit, after exclusion of witnesses from courtroom, informed 
wltn«8 In question bow plalntllf's witnesses had testified. 
Syl, S fXlI, 431). General exception to charge Is Insufficient 
Approved In Baggs v. Martin, 108 Fed. 34. holding insultlclejit 
tSCfl^tJon reading " To tlic refusing of which Instructions defend- 
181 bf his counsel duly excepted;'* M'Cntcheon v. Hall Capsule Co., 
W F*il. 548, holding single exception taken to charge, without 
dXrwilag attention to portions challenged, raises no questions for 
ftrlew. 
8/1 1 fXII, 431>. Ruling on new trial not reviewable, 
Agpnfrred In Waterhouse v. Rock Island, etc., Mln. Co., 97 Fed. 
477, tokUo^ nrerrullng motion for new trial ia not assignable as 
mwar Id Federal courts. 

m9 0, a M-W. Not cited. 




150 U. S. 9D-127 Notes on U. S. Reports. SIM 

150 U. S. 99-111, 37 L. 1013, WAGER v. PROVIDENCE INS CO. 
Syl.. 2 (XII, 432). Insurer Indemnifytng owner entitled to sub- 
rogation. 

Approved in Nord-Deutcher Lloyd v. President, etc., of Ins. Ca, 
110 Fed. 429, holding Insurer paying loss from sinliing of lighter 
loaded with grain is subrogated to shipper^s rights against carrier; 
Tue St. Jo'hns, 101 Fed. 473, holding rights of insiu-ers of vessel to 
subrogation after paying loss is subordinate to rights of damage 
claimants. 

Distinguished in Life Ins. Co. v. Parlcer, 30 Tex. Civ. 522, 72 
S. W. 622, holding settlement between employee and employer 
for former's injury is no bar to action for accident insurance. 

(XII, 432). Miscellaneous. 

Cited in Jones v. Silver, 97 Mo. App. 240, 70 S. W. 1112. holding 
where party to contract recovered Judgment against other party 
and his guarantor in Justice court in defense of fraudulent rep- 
resentations, such defense is res adjudicata. 

150 U. S. 111-118, 37 L. 1019, BALL & SOCKETT FASTENER 
CO. V. KRAETZER. 

Syl. 1 (XII, 432). Accidental adopting immaterial element not in- 
fringement 

Approved tn Kursheedt Mfg. 0>. v. Naday, 103 Fed. 950, holding 
where claim of new feature in patent is not mentioned in patent, 
such claim is closely scrutinized; Santa Clara VaL Mill, etc., Ca 
V. Prescott, 102 Fed. 506, holding claim cannot be enlarged by In- 
cluding feature of eonstructiooi shown in drawing not treated by 
patentee as essential. 

SyL 2 (XII, 432). Appellee must not unnecessarily incorporate 
papers. 

Approved in Teller v. United States, 111 Fed. 121, holding where 
pJaiutiff in error files no praecipe, clerk must see that transcript 
contains copy of everything required by rules. 

150 U. S. 11^127, 37 L. 1021, GRAVES v. UNITED STATES. 

Syl. 2 (XII, 433). Unproduced testimony creates adverse pre- 
sumption. 

Approved in In re Kellogg, 113 Fed. 130, holding failure to pro- 
duce first holder of mortgage and agent negotiating loan to dis- 
prove usury raises presumption against present holder; American 
BeU Tel. Co. v. National Tel. Mfg. Co., 109 Fed. 1018, holding fail- 
ure to produce witnesses who could testify as to experimental re- 
sults inconsistent with denial in claim creates presumption tliat 
testimony would be adverse; In re Henschel, 109 Fed. 865, hcMing 
reforee may reject vote for trustee on ground that It favors bank- 
rupt, where proxy claimed attorney's privilege when qnestioned 
and refused to answer; Waterhouse v. Rock Island, etc., Min. Oou, 



Notes on D. S. Reports. 150 U. S. 12S-144 



3T Fed. -HT. bolding absence of witness b.v assistance of one party 
wnrrimts presumption that his testlmouy would have favored other 
partj; Lee v. State, 156 Ind. MS, m N. E. 302, holding defendant's 
failure to produce as witness party who was with him on nlgrht of 
tll«jed assault created presumption that his testimony would be 
tdT«nc; Warsaw r. Fisher, 24 Ind. App. 4D, 55 N. E. 43, holding 
^ action for personal Injuries counsel may comment on plaintiff*B 
fillore to call attending physician; State v. Smith, 71 Vt. ^134. 45 
AU. 220, sustaining charge that jury might consider defeudanrs 
fillare to call certain witnesses if they helieved them capable of 
tftftifying as t» who kept llqucn- room; dissenting opinion in Brocl£ 
T. State» 123 Ala. 32. 26 So. 332. majority holding prosecuting ait- 
toreey't comment upon defendant* s failure to call as witness one 
j«tatlj indicted for adultery constitutes reversible error. 

8yl 3 (XIK 433). Remarking incompetent witness' ahsence, re- 
T^nihle error. 

Approved in dissenting opinion in Warsaw v. Fisher, 24 Ind. App. 
H 55 N. E. 45, majority holding in action for personal iinjuries 
<oims€l may comment on plaintiff's failure to call attending phy- 
Hciaa. 

150 U. S. 128-132. 37 lU 1025. RADEB v. MADDOX. 

(ni, 433). Mlscellaii^us. 

Clte^ In Hartford, ete, Co, v, Flymer, 120 Fed. 629. holding 
■Upertntendeot authorized by corporation to sell steamship may 
UK ordinary means and whether employment of broker is such is 
for jury. 

:50 U, S. 132-137. 37 L, 1028. MILLER v. SWANN. 

SyL 3 (XII. 433), Supreme Court following State construction. 

ApiiroT^ In Shoshone Min. Oo. v. Rutter, 177 U. S. 5<>S, 44 L. 
886, 20 Sap. Ot 727, holding suit tn support of adverse claim to 
BrtM nndi^ U, S. Rev. Stat» § 23'2o» does not Involve Federal 
qiiettlong; dissenting opinion In LoulsvMle & N. R. R. Co. v. Eubank, 
IM U. S. 44, 46 U 423, 22 Sup. Ct 283. majority holding iincon- 
ftitndonal Ky, ConsL. f 21S. prohibiting carriers from charging 
aore for short than for long haul to or from point t)eyond Stale. 

IfiO U. a 138^144. 37 L. 1030, COLORADO CENT,, ETC.» MIN: CO. 

T. TURCK. 

Sfl 2 (XII. 434). Clrcnlt Court of Appeals' decision final. 

Avproif^ In Bankers', etc, Oo. v. Minnesota, etc., Ry., 192 U, S. 

3Wk 31 Sop, Ot 320. holding Circuit Conrt of Appeals renders final 

In suit against InterstJite railway company for value of 

mall package; Spencer v. Dulplan Silk Co.. 101 U. S. 

n, £28. 530. 24 Sup. Ct 175. 176. holding Circuit Court of Apiwais 

fliiftj judgment in suit hy trustee In bankruptcy for eon- 

i of bankrupt's property, where suit wajs removed for diverse 



150 U. S. 13&-144 Notes on U. S. Reports. 896 

citizenship; Keyser v. Ix)well, 117 Fed. 402, holding Circuit Court of 
appeals has Jurisdiction to determine validity of State statute where 
suit was rested originally solely on diverse citizenship. 

Di9tinguished In Northern Pac. R. R. v. Soderbo-g, 188 XJ. 8. 
528, 23 Sup. Ot 366, 47 L. 580, holding suit over property, title 
to which depends upon construction of exception of nonmineral 
lands made In gramt of 1864, Involves Federal question. 

Syl. 4 (XII, 434). Circuit Court must dismiss where no Jurisdic- 
tion. 

Approved in American Sugar Ref. Co. v. New Orleans, 181 U. 8. 
279, 281, 45 L. 861, 862, 21 Sup. Ct 647, holding where cauae In 
Circuit Court rested upon diverse citizenship. Circuit Court of 
Appeals has Jurisdiction to render final Judgment although Federal 
question raised in defense; Florida Cent, etc., R. R. v. Bell, 17ft 
U. S. 328, 44 L. 490, 20 Sup. Ct 402, holding Federal jurisdiction 
cannot be supplied by allegation that defendant claims possession 
under Federal law. 

Distinguished in Loeb v. Trustees of Columbia Township, 17» 
U. S. 479, 45 L. 286, 21 Sup. Ct 177, holding, under section 5 of 
act 1891, Supreme Court's power to review final Judgment of Cir- 
cuit depends upon whether case involved State law alleged to vio- 
late Federal Constitution; Florida Cent, etc.. R. R. v. Bell, 176 U. S. 
325, 20 Sup. Ct 401, 44 L. 489, holding Circuit Court of Appeals 
cannot render final Judgment in suit in ejectment for land by 
patentee against railroad claiming under act of Congress. 

Syl. 5 (XII, 435). Jurisdiction resting on diversity citizenship 
retained. 

Approved in Ayres v. Polsdorfer, 187 U. S. 588, 595, 23 Sup. Ct 
197, 199, 47 L. 315, 317, holding writ of error will not lie to review 
Judgment of Circuit Court of Appeals involving Federal question, 
but resting solely originally on diverse citizenship; Huguley Mfg. 
Co. V. Galeton Cotton Mills, 184 U. S. 294, 46 L. 548, 22 Sup. Ct 
454, holding act March 3, 1891, § 6, for review of final decisk>ns of 
Circuit Court of Appeals ** by certiorari or otherwise," gives no 
right to appeal; Peabmly, etc., Min. Co. v. Gold Hill Min. Co., Ill 
Fed. 822, holding Federal question cannot be supplied in suit for 
trespass to mining property by anticipating probable defense. 

Distinguished in Owonsboro v. Owensboro Water-Works Co., 115 
Fed. 322, holding where plaintifTs pleadings disclose case resting 
on constitutional question, Supreme Court has exclusive Jurisdiction 
on appeal. 

(XII, 434). Miscellaneous. 

Cited in Spreckels Sugar Ref. Co. v. McOlain, 192 U. a 409, 24 
Sup. Ct. 379, holding decision of Circuit Court of Appeals in salt 
to recover taxes exacted under protest under war revenue act 1898.,. 
is not final. 



Notes on U. S. Reports. 



150 U. S. 145-181 



150 V. 8, 14S-14a Not cJted. 

150 U. S. 150-15G, 37 L, 1034, IN RE PARSONS. 

Sjrl 1 (XII, 435). Mandamus caiiDot control lower court*s d^ 
diJon. 

Approved In Kimberlla t. Commission to Five Civil I zed Tribes, 
M Fed. 655, holding mandamus will not issue to compel commls- 
tioa to five civilized tribes to enroll applicant as citizen In Cliicka- 
saw nation; Bobey v. PrLnce George's County, 92 Md. 15S, 48 Atl. 49. 
holding mandamus will not issue to command county eommisslouers 
tomake levy for fees of officers in criminal case. 

IW U. Sw 15&-158, 37 U 1037, MORSE v. ANDERSON. 
SjL 1 (S1I» 435), Judgment affirmed wbere exceptions unduly 

Approved In Reliable Incubator, etc., Go. v. Stabl 102 Fed. 593. 
ioldfDg^ bill of exceptions preeented after term should coMaln order 
of eiteiiaio«n of time or distinct statement of consent of otber party. 

Distinguished In Koewtng v. Wilder. 126 Fed. 474, holding order 
during term directing verdict for defendant and allowing sucli 
time OS counse) desired for bill of exceptions operated as extension 
of tiDfle; Western Dredging, etc., Co. v. Heldmaier. 116 Fed. 183, 
Mdlng where trial judge assigned from another district was 
Ateeot when bUl was presented be might sign nunc pro tunc order 
wtai again eKUng in such district, 
m V. 8. 15^164. Not cited. 

!» U. 8. 164r-170, 37 L. 1039. HOWARD v. DETROIT STOVB 
WORKS. 
Syl 1 (XII. 43U). Vague description defeats patenC 
Approved In Wolff v. E. I. Du Pont De Nemours, etc., Co., 122 
Fed- 958. holding Van Freeden patent No. 429,516. for process 
for making smokeless powder, not infringed by process of Du 
Bwrt ytgtmt No. S03.5S6; De Lamar v, De Lamar Mln. Co., Ill 
P»id. 248. holding invalid W aid stein patent No. 007 Jl 9, for process 
•bt extracting precious metals from cyanide soIutiouB; Standard 
Outer, etc. Co. v. Caster Socket Oo., 113 Fed. 165. holding invalid 
patent No. 318.533. for caster socket with Integral interior 
i; Overweight Counterbalance El. Oo. v. Henry Vogt Mach. 
Oa. 102 Fed. 961, holdhig void for anticipation Hlnkle patent 
9C«^ 7Si>7MZ, for Improvement in freight and passenger elevators. 

DMngnlahed In Hensel-Colladay v. Roeenau, 105 Fed. 9^, hold- 
tof Foyet patent No, 621,124^ for Improvement In skirt protectors, 
iiol void for tDdeflnitenese. 

15D IT, a 170-181, 37 L, 1041, CAREY V. HOUSTON, ETC., RY. CO. 

5jL 8 (XII, 437), Supreme Court reviews where Federal question 
eoQiTDninf. 

Approved In Watlilns v. King. IIS Fed. 531, holding Introduction 



150 U. S. 182-201 Notes on U. S. Reports. 393 

of Federal question as question of validity of State law offered 
in evidence as muniment of title does not prevent writ of error to 
Circuit Court of Api>eals. 

150 U. S. 182-192, 37 L. 1044, HEDGES v. DIXON CO. 

Syl. 1 (XII, 438). Municipality must return money for Invalid 
securities. 

Distinguished in Everett v. Independent School Dist, 109 Fed. 
702, holding equity may inquire as to excess of bond issue over 
constitutional limitations and award Judgment for amount within 
such limitations. 

Syl. 2 (XII, 438). MunicipaUty may deny constitutional authority. 

Approved in Geer v. School Dist, 111 Fed. 090, holding school 
district authorized to issue bonds for school purposes is liable to 
lender, although bonds were void where money was used to build 
schoolhouse; Travelers' Ins. Co. v. Mayor, etc., 99 Fed. 668v holding 
purchaser of bonds issued by city to railroad company where city 
had no authority to issue cannot hold city for amount of bonds; 
Thornburg v. School Dist No. 3, 175 Mo. 24, 75 S. W. 84, hcMing 
recitals in school district bonds issued without election or notice 
as required by law give rise to no estoppel. 

Syl. 4 (XII, 438). Void contract not enforceable in equity. 

Approved In Gamewell Fire-Alarm Tel. Co. v. Laporte, 102 Fed. 
420, holding equity will not