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 0 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
PfftoFtid 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

decwcd^ 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.

Approred !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, 0 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,

0 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
■flit 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.

0 (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 0 (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,
iwidtag trustee in pledge of securities for payment of interest on
<gtiicates may enforce payment on default regardless of method
praylded 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 worthy 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
gutWWlMuaetit 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
iBifcJteU 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
cifpocitlop, 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. 0 (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^ profictty 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, 0 (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
itftuMrtrtloai 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 0 (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
IRwifteenfli 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 0 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. 0 (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. 0 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
■ccurcd 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\mmmA — 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

guiycity 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, 0 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. 0 (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. 0 (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
■* fciaing 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
<i1lP>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»ciyfcpiaUop,

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

***me 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
iilbit<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 0 (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 0 (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 aftGLja
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 0 {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
agrcciDent 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
prgcgi'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-
iMiiflit €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. 0 (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,
^ ttoogh 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-
"^^Juice 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

5>-

■<T.

<a

^^ ^*f 'Jo*»8 °° to lot co^ ^.^,58. ^

•»4» «• »• *^ «i 1> «^* Mo taVWte o« yea. 9^* ccVtoin^ .,

i;ot«e^ tba^^^e c«e^^^ > i^^^ / >' .IvW ^^«^ ^ mdVcte** ^

^<t"^ -«^j;:. ecu - ^^,,,ea t-- ^^

. pptoveA 1 deoi^"^ .„t State ^ta ^i, 45 \-,pea\«a *1. cot»rt

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. 0 (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 construe void contract for fire-alarm
system as one giving company implied franchise to operate system
for own benefit

Syl. 5 (XII, 438). Equity will not determine excess.

Distinguished in McGillivray v. Joint School Dist, 112 Wis. 863.
88 Am. St Rep. 976, 88 N. W. 314, holding contract by school dis-
trict increasing its indebtedness beyond constitutional limitation
is valid up to such limit where contractor has performed; Herman
v. Oconto, 110 Wis. 681, 86 N. W. 688, holding contract for sewer
construction per foot according to size and material used is divisible
and valid to constitutional limit of indebtedness.

(XII, 438). Miscellaneous.

Cited in Montgomery v. City Council, 99 Fed. 829, holding toI-
unteer paying taxes to city on property of another is not subro-
gated to city's rights agaimst property.

150 U. S. 193-201, 37 L. 1049, LANE, ETC., CO. v. LOOKS.

Syl. 3 (XII, 439). License presumed from development by em-
ployer.

Approved in D. M. Steward Mfg. Co. v. Steward, 109 Tenn. SCO,
70 S. W. 812, holding manager of corporation cannot recover
royalties on gas-tips invented by him and manufactured by coci>ora-
tion at his request prior to patent

M Notes on U, S. Reports. loO U. S. 202-23€

?yL 4 (XII, 439). Patent — Twelve years* delay bars relief.
Api>roved in Adrlance v. National Harrow Go., Ill Fed. fj3t),
Miibg owner of patent cannot be enjoined fri>m issuing in gt>ocl
Mth circulars alleging infringement and notifying infringers that
tbey will be sned; Meyrowltz Mfg. Go. v. Eccleston, 98 Fed. 439.
iW, lioldtag complainants iMtlfySng defendants of infr!ngenien«t wlio
denied same cannot after ten years' delay maintain suit for in-
fiiniement

8yL 5 (XII, 430). UnexpIainecJ delay bars equitable relief.

Approved In Taylor v. Slater, 21 R. I. 106. 41 Atl, 1002, holding
^e of senior partner suing on note of partnership twenty yeai-s
after tt was given and ten years after deatb of last solvent part-
ner is barred by laches,

ISO U* 8. 202-209, 37 U 1052, MISSISSIPPI MILLS v. COHN.

Syl 2 (XII, 440). Federal equity jurisdiction independent of
State laws.

Distinguished In Jones v. Mutnal Fidelity Co., 12;J Fed. 518, hold-
In? Federal court of equity will enforce remedy of Delaware statute
ifsrch 25, 18DI, for appointment of receivers for insolvent
corporations.

Syl. 6 ^XIL 400). Supreme Court considers Circuit Court's
jortsdictlon.

IppfOTed in National Surety Co. v. State Bank, 120 Fed. GOO,
holdllkc Federal Circuit Court In equity cannot enjoin judgment
' for errors or irregularities in proceedings.

I 150 U. S. 209-220. 37 L. 1055. McDAID v. OKLAHOMA.
t SjL 2 (XII, 441). Townslte trustees hold for government
■kAmiroTed Ln Bockflnger v. Foster. lUO U. S, 121, 122, 23 Syp. Ct.
HH 83^, 47 L, 978* holding homestead claimant cannot maintain

iiiit against Olf^lahoma towusite trustees who hold as trustees for

|)OTeniment onder act l«iX.».

150 U. S. 221-230, 37 L. 1059, KNAPP v. MORSS.
SyL 1 (Xll^ 441). Claim limited by part rejected.
Approved in Hubbell v. United States, 179 U. S. 80, 45 L. 08, 21
iqn Cl- 25, 28, holding Hublieli patent No. 212,313, with vents In
position, not Infringed by patent with vents differently
Stoices Bros. Mfg. Co. v. Heller. 101 Fed. 2GD, bolxliug
patent No, 397,254, for improvement in rasp-cutting macbine
41 liiilteil, not infringed.
^l 2 iX.ll, 441). Old combination without new result uon-

in Goodyear Tire, etc., Co. v. Rubber Tire, etc., Co., lift
FM* Sm, liolding ¥oid Grant patent No. 554,675, for rubber tire
mhmL

150 U. S. 231-249 Notes on U. S. Reports. 400

Syl. 3 (XII, 441). Means, not end sought, is patentable.

Approved in National Hollow, etc., Co. v. Interchangeable, etc,
Co., 106 Fed. 708, holding function or result of operation of machine
cannot be monopolized by patent; Hickory Wheel Co. v. Frazier,
100 Fed. 102, holding void Elliott's patent No. 494,113, substituting
pneumatic tire wheels for higher wheels formerly used in sulkies.

Syl. 4 (XII, 442). Adapting old device not patentable.

Approved in Noonan v. Chester Parlj, etc., Co., 99 Fed. 93, hold-
ing Thompson patents Nos. 332,762 and 367,252, for improvements
in gravity switch-bacl^ railways and elevated railways respectively,
not infringed; Excelsior Needle Co. v. Morse-Keefer Cycle-Supply
Co., 97 Fed. 629, holding Dayton patent No. 474,548, for swaging
machine, void for anticipation and lack of novelty.

Syl. 5 (XII, 442). What would infringe anticipates if earlier.

Approved in Bracewell v. Passaic Print Works, 107 Fed. 472,
holding Whitehead patent No. 499,689, for improvement in aniline
black resists using "zinc compound," anticipated by prior use;
National, etc., Co. v. Interchangeable, etc., Co., 99 Fed. 772, hold-
ing device claimed to be infringed by similar later device is antici-
pated by similar earlier patent; Plumb v. New York, etc., R. R. C<K,
97 Fed. 647, holding void, for anticipation, McKenna patent No.
348,289, for air-brake attachment.

Syl. 6 (XII, 442). Claim when limited to specific combination.

Approved in Peifer v. Brown & Co., 106 Fed 940, holding Peifer
patent No. 411,226, for Improvement in metallurgical furnaces con-
fined to construction shown, not infringed; Reineke v. Dixon- Woods
Co., 102 Fed. 353, holding Ballard patent No. 465,911, for gas stove,
as construed, not infringed; National, etc., Co. v. Interchangeable,
etc., Co., 99 Fed. 764, holding Hein patent No. 361,009, for brake
beam containing truss rod running through caps or plugs, must be
strictly construed.

Distinguished in Nat Hollow, etc., Co. v. Interchangeable, etc.,
Co., 100 Fed. 714, holding Hein patent No. 361,009. for brake beam
as to truss rods penetrating caps or plugs, should not be confined
to such devices.

150 U. S. 231-245, 37 L. 1063, THOMPSON y. SIOUX FALLS NAT
BANK.

(XII, 443). Miscellaneous.

Cited in United States v. Homestake Min. Co., 117 Fed. 486. hold-
ing test determinative of willfullness or innocence of trespasser if
belief and intention at time of act

150 U. S. 245-249. 37 L. 1068, ELLIOTT v. CHICAGO, ETC., RY.

Syl. 1 (XII, 443). Except when evidence conclusive, negligence
for Jury.

Approved in Marande t. Texas & Pac. R. R. Co., 184 U. S. 191,

Notes on U. S. Reports. 150 U, S. 245-249

^ L i%, 2lr Sqp. Ct 347, holding question of rallroatrs negligence
la storing or watching cotton to prevent fire was for Jury; Patton v.
teiu & P. R. R. Co,» 179 U. S. m), 45 L. 363. 21 Sup. Ct 276, hold-
to^ W^art properly directed for defendant where plaintiff fireman
w» Injored while cleaning engine at end of trip without waiting
ftjf Infspectlon ; Gentry v. Singleton, 128 Fed. 680, holding where evi-
J^iice showed defendant's alleged vendor was not partner but plaln-
tiTs servant verdict was properly directed for plaintiff In suit for
owiTersion; I^uterer v, Manhattan Ry.^ 128 Fed. 542. holding pas-
KO^ attempting to board car on elevated rallrofld after gate tias
hua dosed assumes risk; Swift v. Langhein, 127 Fed. 114, holding
latere plaintiff was unaware of dangerous opening in street he was
Mt Jiecessarily guilty of contributory negligence; Marqimrdt v,
Stfl Engine Co., 122 Fed. 377» holding direction for defendant
proper In action for death caused by breaking of valve where
fenlict for plaintiff must have been set aside; Hagsdale r. South-
ern E, R. Co., 121 Fed. 920, sustaining direction for defendant In
mit for setting fire where evidence showed that engine ran down
fnde with steam shut off; Chattanooga, etc, Ry. v. Downs. IOC
Fed. $43, holding person not a passenger visiting express office in
defendant's ground for express package and stepping on track in
fuU Tiew of approaching engine is contributoriiy negligent; Neln*
Ittfv ▼* Cowan, IQl Fed, 790, holding court properly directed
nrdJct for defendant where plaintiff drove upon portion of street
whete view was obstructed and crossed track wlthoxit stopping,
iMUas or listening; Western Gas Const. Co. v. Donuer, 97 Fed. 889,
Wlflng, where question whether plaintiff was warned of danger is
to dispute contributory negligence is for Jury; Bohl v. Dell Rapids,
15 8. Dak. 624, 91 N. W. 317, holding person knowing of dangerous
ifflte In sidewalk trying to cross sidewalk on dark night is guilty
oC contributory negligence; Ketterman v. Railrand Co., 4S W. Va.
118^37 g. E, 686, sustaining direction of verdict for defendant where
daoiSMd was killed by car running away where no evidence was
•ddneed to show defective brakes as claimed; dissenting opinion
la Sontberu I*ac, Co, v. Harada, 109 Fed. 385, majority holding
wliert plaintiff observed headlight of engine standing on another
Hack tad after crossing track was sfrwck hy engine which had
•wttcbed^ question Is for Jury.

SfL 2 (XII, 444 K Crossing track without looking Is negligence.

AuikToved In Louisville, etc., Ry. Co, v. McClish, 115 Fed. 273*

tetdlng defendant entitled to charge of contributory negligence

\ deceftsed, a trespasser, was walking on railroad track when

McCajm v. Chicago, etc., Ry. Co,, 105 Fed, 4S4, holding

lulmred while staudlog between tracks where space was

twinQr iQchett when train passed was guilty of contributory negll-

e; Kelninger v. Cowan, 101 Fed. 791. holding driving upon track

Vol 111—26

150 U. S. 24^-342 Notes on U. S. Reports. 4C^

without stopping to looli or listen from street from whicb view w^fe:
obstructed constituted contributory negligence; Stowell v. Erie n:~
R. Co., 98 Fed. 523, holding plaintiff driving upon doable tra^ ,
without looliing immediately after train passed on first track
negligence; Wabash R. R. v. Skiles, 64 Ohio St 472, 60 N. B. 5ttu
holding employee crossing tracks while engaged In work withers
looking or listening for trains is contributorily neglige: -^
Galveston, etc., Ry. v. Brown, 96 Tex. 5, 63 S. W. 307, holdK: ,
engineer killed after pulling train on to main track on orders ^^
conductor, after second instead of third section of passenger l^K
passed, was guilty of negligence.

Distinguished in Southern Pac. Go. v. Harada, 109 Fed. ^— —
\ioldiug question whether plaintiff struck by train swltching^s^
another track than that on which plaintiff saw it, was negUezr^^
was for jury.

150 U. S. 249-286, 37 L. 1071, UNITED STATES v. ROGERS.

Syl. 2 (XII, 445). Ship in Detroit deemed in owner's country.

Approved in State v. McDonald, 109 Wis. 517, 85 N. W. 506, txc:^:
ing counties bordering on Green Bay have jurisdiction in comm^^
of offenses committed on Green Bay within Wisconsin limits.

150 L). S. 287-310, 37 L. 1085, UNITED STATES TRUST CO.
WABASH, ETC., RY.

Syl. 1 (XII, 446). Assignee has reasonable time to elect

Approved in Johnston v. Kobuck, 114 Iowa 532, 87 N. W. 49^^
holding receiver surrendering leased premises is not liable for rev ^
accruing thereafter; Wilder v. McDonald, 63 Ohio St 395, 59 N. 0^
108, holding assignee for benefit of creditors by accepting the tni»'^
does not become personally liable on covenants of lease but ma^
reject lease.

Syl. 2 (XII, 44G). Receiver adopting lease must pay rent

Distinguished in Stokes v. HolTman House. 167 N. Y. 562, 60 N.
E. 670. holding receiver of business of corporation in possession
during foreclosure does not incur legal liability for rent

Syl. 6 (XII. 447). Mortgagee entitled to no profits before poi-
sossion asserted.

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 219. holding
pie<lge of income does not become effective so long as mortgagor
remains in possession receiving and disbursing earnings; American,
etc., Co. v. Home Water Co., 115 Fed. 176. holding authority it
against proposition that mortgagor may recover rents before mort-
gagee goes into iwssession or before receiver appointed.
150 r. S. :U0 312. Not cited.
150 r. S. 312 a4L\ 'M L. lOia STURM v. BOKER.

Syl. I (XI 1. IITl (^>nsli;:ninent at shipper's risk is bailment

See 94 Am. St. llv^. iMT, note.

Notes on U. S. Reports. IDG U. S. 342-348

Sj-l. 2 (XII, 447). Printed bill-bead cannot vary elear contract
See W Am, St Rep. 241, note.

Dirtittguished In Yorston v. Brown, 178 BInss. 107. 59 N. E. 655.

admissible in suit for coat of steel engravings advertlse-

mt of plaintiflT that defendant's portrait was to appear in a boolc.

W- 5 (XII, 448). Bailment requires return of specific article.

Approred in Tbe Barnstable. 181 U. S, 469, 45 L. Q57, 21 Sup, Ct
P86^ holding liability for crew's negligence not Imposed upon owner
use in charter-party reqylring latter to pay Insurance on the
; In re Galt» 120 Fed, 6T, holding contrai^t whereby mauiifac-
appolDted agent agreed to furnish him with wagons for sale,
election as to disposal of those on hand in one year, was one of
llaent; Furst v. Commercial Bank, 117 Ga, 475. 43 S. B. 729, hold-
where goods are transferred for sale, no sale to occur as he-
wn original parties until sale by ti'ansferee, such sale is con-
^-^^tiwi precedent to passing of title; dissenting opinion In Flut v.
^Htfti, 201 111, ei9. 94 Am, St Rep. 192. tJti N. E. S07, majority
***ldlag acceptance of wholesale dealer^s otter to consign goods to
^bajidled for his account prnceeds to be held In trust tiU settle-
•o>t. constituted no sale.

8yl 9 (XII, 448). Bailee may enlarge common-law liability.

AnpfiiTed IQ Sun Printing & Pub. Assn. v. Moore, 183 D. S, 654,
**L;JT5, 22 Sup. Ct 245, holding absolute obligation to return
ndit Imposed by charter-party providing for return In original con-
^ikm les* wear and tear fixing damages at ?alue of vessel.
^l U OQI, 448). Insurance *' for whom it may concern,'*

^vd In Virginia, etc., Chemical Co. v. Sundry Ins. Cos., 108

' holding policy effected for account of whom it may con-

i^i interest may appear, inures for benefit of person Intended.

•^;j 12 <XII, 448), Matter of opinion is not binding.

ippit)ired in Mutual Life Ins. Co. v. rhinney. 178 U. S. 342, 44 L.

W5, 20 Sup. Ct Oil, holding expression of opinion by agent of

iimnore company as to New Yorlt, both parties being equally

<fi»B!«W^ with knowledge, cannot be false representation; Cnihtree

r. Ilt0k, im Tenn. 492, G7 S. W. 800, hnldiiig equitable estoppel to

dlllli irlief against sale of land under invalid levy cannot arise

f^lD acquiescence where both believed sale was valid.

if I 1$ (Xn, 44S). Where signature genuint?, writer must dls-
piTcliody.

m Am. St Hep. 129. note.
mU.B. 342 348. Not cited.

150 U. S. 349-^61 Notes on U. S. Reports. 404

150 U. S. 349-361, 37 L. 1107, GARDNER y. MICHIGAN CENT.
R. R.

Syl. 1 (XII, 449). Nonsuit no bar to new action.

Approved in Gilbert v. American Surety Co., 121 Fed. 502, hold-
ing dismissal for want of prosecution is no bar to new suit;
Atlanta, etc., Ry. Co. v. Hooper, 105 Fed. 551, holding mandate
ordering reversal and new trial to sustain plea of limitations does
not make new trial compulsory, plaintiff may elect to take nonsuit;
Railroad v. Bentz, 108 Tenn. 675, 676, 91 Am. St Rep. 766, 767, 69
S. W. 319, holding reversal on appeal is not res Judicata to preclude
acceptance of nonsuit or remand and prosecution of second suit;
Hooper v. Railroad, 107 Tenn. 722, 65 S. W. 408, holding Circuit
Court of Appeal's decision holding limitation a good plea, remanding
and ordering new trial was not res Judicata as to limitation pre-
venting second suit.

Syl. 3 (XII, 450). State decision on general law not binding.

Approved in Gilbert v. American Surety Co., 121 Fed. 502, hold-
ing Federal court will not follow State decision as to effect of
invalidity of contract on rights of parties to suit.

Syl. 4 (XII, 450). Master must supply suitable appliances.

Approved in Hodges v. Kimball, 104 Fed. 752, holding railroad
company not liable for death of employee caused by own negli-
gence although company had failed to provide handholds as
required; Green v. Western Am. Co., 30 Wash. 109, 70 Pac. 318,
holding employee does not assume risk from insufficient timber-
ing of mine where statute imposed duty on owner to furnish suf-
ficient timber.

Syl. 5 (XII, 450). Negligence is question of law when facts
undisputed.

Approved in Dunworth v. Grand Trunk, etc.. Ry., 127 Fed. 309,
holding street car conductor standing on track looking for railroad
train being struck by train coming from behind is negligent in
law; Preferred Ace. Ins. Co. v. Muir, 126 Fed. 929, holding stepping
upon car platform for purpose of vomiting when train was travel-
ing fifty or sixty miles an liour is not negligence in law; Northern
Pac. Ry. Co. v. Tynan, 119 Fed. 293, holding where company was
negligent in not providing cars with new couplers, brakeman^s
contributory negligence in coupling same was for Jury; Southern
Pac. Co. V. Ilarada, 109 Fed. 383, holding where plaintiff observed
train approaching on south track of double track and was struck by
same train which switched to north track, question was for Jury;
Nelson v. New Orleiiiis, etc., R. R. Co., 100 Fed. 738, holding
railway laborer carrying mortar across track where view was ob-
structed by standing cars not guilty of negligence In law when
struck by engine greatly exceeding speed limit; Stowell v. Erie R.
R. Co., 98 Fed. 523, holding plaintiff crossing double track im

M

Notes on U. S. Reports.

150 U. S. 361-^7

mediately bebind train passing on first track without observing
tmla approaching on other track Is guilty of negligence In law;
Adolff V. Columbia, etc., Co,, 100 Mo. App. 207, 73 S. W. 323. hold-
iog question whether girl hired to operate small pretzel -cutting
ffiaphine assumed risk of injury wbei3 ordered to operate dough-
laeading machine was for jury,

Dlitlngiiisbed Id Bryce v. Southern Ry. Co., 122 Fed. 713. hold-
tug Insufficient^ under S, C. Code» § 163, complaint agaJnst railroad
iai engineer and conductor for derailment of train, containing omly
genera] allegation of negligence against latter.

IfiO U. S. 361^70, 37 L. 1111, EXJSTIS v. BOLLES.

SyL 1 (XII, 451). Federal review requires Federal queatloai ad*
retiely decided.

JLVprtrved In Lowry v. Silver City Gold & Sliver Mining Oo,,
1I» U. S. lOa 45 L. 152, 21 Sup. Ct. 105. holding Supreme Coxurt
will dismiss writ of error to State court whei^ ground of estoppel
wftt f ancient to sustain Judgment

^l 2 (XII, 451). State decision on nonfederal ground non^
rerlewable.

Approved in Lyon v. Gombret, 189 U* S. 508, 23 Sup. CL 853,
il L. 922; Wall v. Old Colony Trust Co,, 187 U. S. 637, 23 Sup.
Ct SM, 47 L. 344; Camahan v. Connolly, 1ST U. S. 636, 23 Sup.
Ct 543, 47 L. 343, and Armstrong v. Mayor, 183 D. S. 693, 22 Sup.
Ct 983, all reafarmlng rule: Moran v, Horsky^ 178 U. S, 208, 44
L 1089, 20 Sup. Ct. 857, holding State dedslon eustalnlng defense
of laches to asserted mining claim Is not based in Federal question.

8yL 3 (XII» 452). State decision tha;t creditor waives discharge
sQiireTlewable.

Appfored In Hale v. Lewis, 181 U, S. 480, 45 L, 962* 21 Sup. OL
•81^ holding State decision that corporation Is estopped to set up
UnriUdity of statute cannot he reviewed on writ of error.

(Xll, 451). Miscellaneous,

Clt^ in Bunker Hill Mln. Co. v. Pascoe, 24 Utah, 62, 66 Pac,
^♦5, boMiag In equity case to determine adverse claim Supreme
t^ourt will look Into evidence to determine correctness of decree.

120 t. 8. 3n-387, 37 L. 1113, HOLLINS v. BRIERFIELD COAL.
ETC., CO.
SyL I (XII, 452). Simple contract creditor cannot Invoke Federal

1

Ap^ved In Peacock. Hunt & West Oo. v. Williams, 110 Fed,
M, bokUng equity has no jurif*dictJon of suit by creditor whose
rtiiiB resis on notes not reduced to Judgment for receiver for cred-
pfofierty; Strang v. Richmond, etc.. It. R. Co., 101 Fed. 51G.
contract for construction of road, payment to be made

150 U. S. 371-387 Notes on U. S. Reports. 406

In bonds issued by defendant, gave no lien on bonds in defaidant*s
possession.

Syl. 2 (XII, 453). Federal courts distinguish law from equity.

Approved In Land Title, etc., Co. v. Asphalt Co., 127 Fed. 19,
holding Federal court will enforce according to its own procedure
remedy of N. J. Laws 1806, p. 298, for appointment of receiver for
Insolvent corporation.

Distinguished in Andrews v. Mather, 134 Ala. 366, 32 So. 741,
holding creditor of banljrupt may, under Code, § 818, maintain suit
in equity to subject to his debt property fraudulently conveyed
by debtor.

Syl. 3 (XII, 453). Simple contract creditor may intervene in
foreclosure.

Approved in Farmers* Loan, etc., Co. v. Louisville, etc., R. R.
Co., 103 Fed. 115, holding agreement between bondholders and
officers of company to reorganize company on purchase at f<Nreclos-
ure sale does not Invalidate foreclosure.

Syl. 4 (XII, 453). Existing defenses may be waived.

Distinguished in Hutchinson v. American Palace Car Co., 101
Fed. 185, holding equity will not appoint receiver at suit of minority
stockholders to represent corporation in suit in another districL

Syl. 5 (XII, 453). Decree in case of equitable cognizance valid.

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 225. holding all
parties to suit in which receiver was appointed are bound by
decree against him in foreclosure suit against corporation.

Syl. 6 (XII, 453). Legal remedy must be alleged in limine.

Approved in Highland Boy Gold Min. Co. v. Strickley, 116 Pod.
854, holding party consenting to try case at law cannot thereafter
object that cause was equitable; Enos v. New York, etc., R. R. Co.,
103 Fed. 47, holding decree api>olntlng receiver will not be set aside
on motion where no objection was made that petitioning^ creditor
had no execution Issued.

Syl. 7 (XII, 454). Corporation assets are not trust fund.

Approved in Wyman v. Bowman, 127 Fed. 276, upholding trans-
action whereby four ddrectors In good faith advanced to company
in advance of assessment and took assignment of claim against
stockholders; New Hampshire Sav. Bank v. Richey, 121 Fed. 969,
960, 901, holding general creditors of corporation cannot pursue
dividends received by stockholders until claims have been reduced
to judgment; American Exch. Nat Bank v. Ward, 111 Fed. 787,
holding insolvency of corporation does not render void trust deed
pi-ef erring bona fide creditor also director; State Trust Co. v. Tur-
ner. Ill Iowa 608, 073, 82 N. W. 1030, 1032, holding assignee of
payee of note taken from corporation with knowledge that stock
was exchanged for overvalued property cannot bold ertockbolder

Notes on U. S. Reports* 150 D, S. 387-401

wi Jud^meot against corporation; Klllen v. Barnes, 106 Wis. 572,
82 y. W. 545» bolding officers of corpora don are not triistiees of Its
pfoperty for its creditors. See 72 Am* St. Rep. 52, note.

Syl 8 (Xn, 454). Wlien corporation insolvent property In trust.

Distingoisbed in In re United Staitea Car Co., m N, J. Eq, 517,
43 Ati. 673, holding, under New Jersey statute^ license fee assessed
ifilJUt &8seta of Insolvent corporation after appointment of receiver
It entitled to priority.

8jl 10 (Xn, 455). Corporations hold property as Individuals.

Approved In Roberts v. Cent Trust Co.» 128 Fed. 880. holding
drier directing treasurer of railroad to pay sum from proceeds of
lale of first bonds sold creates no lien on property before bonds
teaed: Jofnes v. Mutual Fidelity Co., 123 Fed. 5ia 517. holdiug
Fijderal court will enforce remedy of Del. Stat 1891, authorizing
t|^»ointmeut of receiver to take charge of Insolvent corporations;
Ote V. AUen, 114 FcmI. Oil. holding corporation while a going
eoocern, though insolvent, may lawfully execute mortgage to secure
exttffwion of prior lndebtedne3» and further advances; Chick v.
Ptiller. 114 Fed. 29, 30. upholding coiporation mortgage given bomi
ftde while corporaUoa was going concern, but insolvent, to secure
turtebtedness to banks having largely common stockholders; Merced
B*lil£ r. Ivett, 127 Cal. 136. 50 Pac. 394, holding, under Civ. Code,
I M32, providing that debtors *' may prefer creditors, corriora-
ifciM may give preferences; Hawkins v. Donnerberg, 40 Or. 108,
•8 Pic tj95. holding corporation creditors cannot enforce stock-
fcoWtt'ft liability for unpaid subscriptions where oorporaition would
^btrred by statute from so doing.

SyL 11 (XII, 455). Corporation officers as fiduciaries respecting
pr(>perty.

Ai»pro?ed in Lawrence v. Greenup, 97 Fed. 909, holding receiver
^ n&titmal bank cannot recover from stockholder sum received In
pood fatiJi during voluntary liquidation where bank still solvent.

(Xn, 452>. mscellaneous.

Clte^i In United States Shipbuilding Co. v. Conklin, 126 Fed. 135.
^Wtifs mortgage bondholders and stockholders of In sol vent cor-
P^ntioD having Uesn on property by express contract ai'e entitled
to flp^toiatiiient of receiver In Federal court; McNulty v. ML Mor-
rt« El. L. Co.. 172 N. Y, 415. 65 N. E. 107. holding equity has no
JwWlction of suit to restrain nuisance where by vacating premise*
Pi^tiflt tfl entitled only to damagea

^ U. 8. 387-^392. Not dted.

150 U. S. 393^01, 37 L. 1120. IN RE LENNON.
Ryl. 3 (\7I, 450). Habeas corpna governed by act 1891,
AppRnrd in Woey Ho v. United States, 191 U. S. 558. 24 Snp.

Ct. bU, reaffirming rule; Rice v. Ames, 180 D* S. 374, 45 L, 581^

150 U. S. 401-115 Notes on U. S. Reports. 408

21 Sup. Ct 407, holding Court of Appeals act 1891 autborlzes ap-
peal from decision of district Judge denying api^eatlon for dis-
charge on habeas corpus; Wright v. MacFarlanev etc, Ck>., 122
Fed. 775, holding, under Judiciary act 1891, Circuit Court of Ap-
peals has no Jurisdiction of appeal from Hawaiian courts on con-
stitutional questions; St Clair Co. v. Interstate Sand, etc., Oo., 110
Fed. 785, holding, under Court of Appeals act, § 5, Circuit Court
of Appeals is without jurisdiction to review cause Involying con-
stitutionality of State statute; Ex parte Jacobi, 104 Fed. 681, bold-
ing appeal from Circuit Court on application for habeas corpus can
only be taken to Supreme Court

(XII, 456). Miscellaneous.

Cated in Chow Loy v. United States, 112 Fed. 359, holding right
of appeal, provided in Chinese exclusion act of 1888, U to district
Judge as special tribunal.

150 U. S. 401-415, 37 L. 1123, ROOT v. WOOL WORTH.

Syl. 3 (XII, 457). Equity can enforce unreversed decrees.

Approved in Banli v. Kingman, 62 Kan. 575, 64 Pac 66, holdins
equity will eoitertain suit to foreclose mortgage held in prior de<
cree to be prior to Judgment previously rendered; State v. EvanM
176 Mo. 327, 75 S. W. 919, holding court of equity has power tm
issue writ of assistance to place purchaser in possession afteM
foreclosure sale. See 93 Am. St Rep. 157, note.

Distinguished in United States v. Northern Securities Co., 12t:
Fed. 810, holding court will not allow intervention to raise further
questions, where decree was wholly prohibitory, hence enforces*
itself until violated.

Syl. 4 (XII, 457). Assignee may enforce assignor's decree.

Approved in James v. Central Trust Co., 98 Fed. 493, holdin,.
Judgment creditor of railroad company may enforce judgment ix
State court, although cause of action arose after sale by Federa.
court in foreclosure proceedings; Emerick v. Miller, 159 Ind. 322^
325, 64 N. E. 30, 31, holding assignee of purchaser at foreclosure
sale has same rights to writ of assistance as his grantor had.

Syl. 0 (XII, 458). Circuit Court may entertain ancillary bill.

Approved in New Orleans v. Fisher, 180 U. S. 196, 45 L. 492,
21 Sup. Ct 352, holding plea to Jurisdiction of Circuit Court on
ground of citizenship is immaterial where suit is merely ancillary;
Bottom V. National R. Y. Bldg., etc.. Assn., 123 Fed. 745, holding
Circuit Court npi>ointlng receiver in suit to wind up loan associa-
tion has Jurisdiction of suit to foreclose mortgage against stock-
holder regardless of citizenship; Central Trust Co. v. Western North
Camlina K. K. Co., 112 Fed. 47G. holding Circuit Court after fore-
closure sale free from claims of mortgagor may enjoin suit in State
court to subji^t-t property to execution; RiverdaJe, etc.. Mills t.

Notes on U. S. Reports. 150 U. S. 415-424

ilftkiina, etc., Co*, 111 Fed, 432, holding Circuit Court peoMiliig ap-

M trom Its decree may restrain party thereto from prosecuting

•mt In anotlier State Involving same matters; Motz v. Henry, 8

^^ App. 421, 54 Pac. 798, holding writ of assistance wiU Issue

^ Iilaoe assignee of pureliaser of mortgaged premises In possession

'ZQder sherllTB deed.

I>lstlii|raished In Alabama, etc., Mfg, Co. v- Riverdale Cotton

^HJs, 127 Fed. 505, holding Federal court In Georgia cannot en-

^ert^in suit against purchaser of Alabama property of corporation

*« «iMrillarj to foreclosure decree where corporation waa citizetn of

tHHJi StUites.

tSyL 10 (XII, 458). Until notice holding not adverse,
^.pproved In Du Pont v; Bridge Co., 65 S. C. 537, 44 S. B. 80, bold-
^^1^ easement of right of passage over bridge barred In twelve
where bridge company during such time denied plaintiff's
and charged toil.

U. S. 415-117, 37 L. 1127. JACOBS v. GEORGE.
^ ^jL 1 (XII, 458). Citation unnecessary in appeal during term.
H ^A^pprored in McNulta v. West Chicago* etc Comm., 99 Fed.
^^S0» holding citation unnecessary where appeal allowed in open
^pt^^ajt during same term at which decree waa rendered.
H ^jL 2 (Klh 458). Citation may issue at ensuing term.

1E>1stiiigul9hed In Edgeli v, Felder. 99 Fed. 328, holdlag on merits
tp*i»«llants should not be allowed to take out new bond and perfect
iV^»«a] by gtving requisite notice

Byl 4 (XII» 458). Appeal inoperative wbcn citation unduly
4^Uye<L

Api>ro7ed In Bloomlngdale v. Watson, 12S Fed. 2C9, boMlng ap-
V^ becomes Inoperative as to partieH not served wltli citation
^flw md of next ensuing term of coyrt; Fenider v. Brown, 120
^ 48T. holding writ of error Inoperative where citation not is-
•*4 before expiration of term next after entry of Judgment; Ber-
^^m Gramophone Co. v. Reaman, 108 Fed. 716, 717, holding elta-
tim^ though necessary to perfect appejil, may Issue during term
■■bMQuent to entry of order appealed from.

iS) U. 8, 417-420. 37 L. 1128, SALTONSTALL v. BIRTWELL.
SjL 1 (XII, 459). Defective finding cannot support judgment
filitlnguished In Interntate Com. Comm. v. Southern Pac. Co.,
^t^Ftd, 602, holding finding of commerce commission that practice
owed by railroad of routing freight effected a pooltng agree-
•npported lawfulness of order agalnat such practice.

a 8w 42(M24« Not cited.

150 U. S. 424-467 Notes on U. S. Reports.

150 U. S. 424-432, 37 L. 1130, McALEER v. UNITED STATES.

Syl. 4 (XII, 459). Parol cannot vary clear written contract.

Approved in Montgomwy v. JEtna Life In^. Co., 97 Ped. \
holding parol evidence is inadmissible to engraft upon clear writ
agreement to give agent commission on annual renewal premii
a warranty of amount thereof.

150 U. S. 433-442. 37 L. 1134, POWELL v. BRUNSWICK CO.

SyL 1 (XII, 459). Supreme Court determines jurisdiction
review.

Approved in Home for Incurables v. New York, 187 U. S. 158
Sup. Ct 86, 47 L. 119, holding cerUflcate of chief justice of Si
insufficient to confer Federal jurisdiction where record does not
close Federal questions; Hinkei v. Cincinnati, 177 U. S. 171, 44
721, 20 Sup. Ct 573, holding certificate of chief justice of S
Supreme Court, that Federal question was decided, cannot coi
jurisdiction; South Carolina v. Virginia-Carolina, etc., Co.,
Fed. 730, holding suit by State to subject foreign corporatloi
penalties under State statute without mention of Federal la^
not removable.

Syl. 3 (XII, 460). Federal question must have been necessai;

Approved in Lufkin v. Lufkin, 192 U. S. 601. 24 Sup. Ct. 1
Rodley V. California, 183 U. S. 694, 46 L. 393, 22 Sup. Ct. 934,
Baltimore, etc., Ry. Co. v. Mayor, etc., 179 U. S. 681, 45 L. 384
Sup. Ct. 918, all reaffirming rule; Mutual Life Ins. Co. v. McGx
188 U. S. 309, 23 Sup. Ct. 379. 47 L. 485, holding Federal quesi
must be disclosed by record, it cannot be supplied by judl
knowledge; Mountain View M. & M. Co. v. McFadden, 180 U. S. I
45 L. 657, 21 Sup. Ct 489, holding court cannot take judicial no
of Federal laws for purpose of sustaining Federal jurisdiction wl
plaintiff's statement does not disclose same; Yazoo & M. V. R. R.
V. Adams, 180 U. S. 48, 49, 45 L. 418, 419, 21 Sup. Ct, 258, 259. boW
certificate of State chief justice that State statutes were drawt
question as repugnant to Federal law is Insufficient to coi
jurisdiction.

150 U. S. 442^60. 37 L. 1137, HICKS v. UNITED STATES.

Syl. 3 (XII, 460). Judge should not make hostile comments.

Approved in Mullen v. United States, 106 Fed. 895, hoW
adverse comment by court in criminal case upon character
accused where no evidence was presented is reversible error.

150 U. S. 460-467, 37 L. 1144, COLUMBIA MILL CO. v. ALCO

Syl. 1 (XII, 461). Trade-mark must distinguish from like arti-

Approved in Church, etc.. Co. v. Russ, 99 Fed. 278, holding tr

mark used by owner on packajros of soda and saleratus is

fringed by use of same trade-mark on baking powder; WatJ

m

Notes on U. S. Reportfi, 150 U, S. 468-475

Medical Co. y. Sands, S3 :Minn. 330, m N. W. 342, holding words
"Vegetable Anodyne Linimeat'* cannot be utilized as trade-marl:.
See m Am. St, Rep. 91, note.

Distinguished in Thomas G. Plant Co. v. May Co,, 105 Fed. SI!,
"joining defendant from using plaintiff's trade- mark ** Queen '* on
«boes or upon labels affixed thereto or In any way inducing belief
tbat Its shoes were made by plaintiff, and attirmiug 100 Fed, 74,

SyL 3 (XII, 462), Priority of appropriation determines right

Approved In Welsbach Light Co. v. Adam, 107 Fed, 465, holding
owner of registered trade-mark " Yusea ** for gas mantles entitled
to pr<»liminary injunction against previously conceived name U* G*
A. finb«e<juently registered,

SjL 4 (Xll, 4G2). Words designating localities not valid trade-

Approved Ln Elgin Nat Watch Co. v. Illinois Watch Case Co*,'

*<^*U. S. «73, 45 L. 371*. 21 Sup. Ct 273, holding geographical name

't-lgin** cannot be lawful trade-mark; Allen B. Wrisley Co. v.

lovra Soap Co., 122 Fed. 797, holding " Old Country " cannot be

^^ u technical trade-mark for soap; Computing Scale Co. v.

^indard, etc., Co., 118 Fed. yG7. holding term *' computing '* can-

*ot be appropriated as trade-mark for scales; Brennan v. Emery,

^^ Dry Goods Co., lOS Fed. G27, holding words *' Steel-shod "

*Ji>Jled to boots and shoes cannot be exclusively appropriated as

^^de-Biark; Weyman v. Soderberg, 108 Fed. 07; holding no right

^mde-mark can be acquired in name *' Copenhagen; " Continental

Co. V. Continental Fire Assn., 101 Fed. 257, holding exclusive

of term ** Continental *' cannot be protected by injunction;

Cbem. Co. v. Stern, 170 N. Y, 30, 68 N. E. 6G, holding term

hsaiUt'* is not proper term for exclusive trade-mark. See

«a, 85 Am, St Rep. 108, 113.

' "^*'ngnlshed in Shaver v. Heller, etc., Co., 108 Fed, 826, 832,

. : use of term ** American ** in connection with ball or wash

'*^ ny other than manufaetnrer entitled, will be enjoined.

P"^^ U. S. 4<]S^^75. 37 L, 1148, CONNECTICUT MUT. LIFE INS.

I CO. T. AKENS,

P^^L 1 (XII, 462). *'Sntcide'* must understand moral nature of

feet U Am. St. Rep, 54G, note.

^jt 5 <XII, 4C3). Presumption Is against sanity of suicide.

^Jistiiignished in Clark v. Equitable Life Assur. Soc, 118 Fed. 377,

►l4llii^ there can be no recovery under policy es eluding risk of

flf ♦if^tnirtion sane or insatie " %vhere insured took own life

. : SeiUiuger v. Mudt-rn Woodmen, 204 III. G3, G8 N. E,

-; stUcide of insured while insane cannot warrant re-

> oil beneficial cortitiHite conditioned to b(? void if Insured,

"J ^>S own hand sane or insane.

\

150 U. S. 470-577 Notes on U. S. Reporta. 4:

150 U. S. 476-483. 37 L. 1150, LEES y. UNITED STATES.

SyL 1 (XII, 463). District Court enforces statutory penalties.

Approved in Helwig v. United States, 188 U. S. 610, 23 Sup. C
429, 47 L. 616, holding District Courts have exclusive Jurisdicti<
of suit for penalty recoverable from importer under customs a
ministrative act 1890 for undervaluation of entry; Rosenberg
Union Iron Works, 109 Fed. 845, holding under Rev. Stat, | 56
District Court has Jurisdiction of suit for penalty under 23 Sta
332, for importing foreign laborer under contract; Falk v. Curt
Pub. Co., 100 Fed. 78, holding Circuit Court has Jurisdiction and
Rev. Stat, § 629, of suit to recover penalty for infringing cop!
right engravings.

Syl. 6 (XII, 463). Defendant need not testify in penalty rait
See 75 Am. St Rep. 323, note. *

150 U. S. 483-^24. Not cited.

150 U. S. 524-550„ 37 L. 1169, LATTA T. KILBOURN.

Syl. 1 (XII, 465). Reference does not afTect finality.

Approved in Mercantile Trust Co. v. Chicago, etc., L. Ry. OB
123 Fed. 392, holding decree on intervening petition against
ceiver directing delivery of property, referring matter to mnMt
to determine value thereof. Is not final; Deitch v. Staub, 115 F»
317, holding interlocutory decree adjudging that mortgage loe
were not usurious was not final so as to be appealable; Rost
Electric Lighting Co., 124 Ala. 207, 27 So. 268, holding confirmat.
of master's report as to property covered by mortgage does B
preclude court from including mortgaged property not enumerate

Syl. 3 (XII, 465). Partner cannot use firm assets privately.

Approved In Williamson v. Monroe, 101 Fed. 334, holding part=
concenling I^nowledge of possible contract until after dissolution
partnersliip must account on basis of profits derived therefc
afterward.

SyL 7 (XII, 466). Event contemplated must occur for parts
ship.

Approved in Sabel & Sons v. Savannah Rail, etc, Co., 185 -i
383. 33 So. 664, holding no partnership in engines arose where •
fendants purchasing same notified plaJntlfT to send check for bi
of price, to be then considered partners, where no reply made.

Syl. 9 (XII, 406). Partner must account for profits made.

Approved in Williamson v. Monroe, 101 Fed. 334, holding managi
concealing promise of contract and accepting same after dissoii
tion of partnership must account for profits received therefrom.

150 U. S. 551-577. Not cited.

^

Notes on V. S. Reports, 150 U. S. 578-610

l^Sa xj, S- 678-5SS, 37 L. 1IS9, TURNER v. SAWYER.
f ^L 4 (SlI, 46T). Common tenancy — Title inures to all,

Approved In Lockhart v. Johnson. 181 U. S. 530, 45 L. 986, 21
^Stip^ Ct- 670, holding partner cannot recorer In ejectment mining
^^^roperty alleged to have been relocated by defendants In conspiracy

Eitli plaJntifTs copartner; Van Wagenen v. Carpenter, 27 Colo* 45tJ,
. I*ac. 702, holding relocation of mining claim by part of cotenanta
ixres to plaintlfTs benefit as again fit purchaser without eon-
^pi43^«ration ; Cedar Canyon Con. Min. Co. v. Yarwood, 27 Wash. 2S0,
^^X Am. St, Rep. S47. 67 Pac. 752, holding interest in adjoining
y^rai-ning claim purchased by co tenant for benei^t and protection of
1X1 mo n property Mures to benefit of all. See noteSt 91 Am. St.

u S61, 863, Sa5« 866; S7 Am. 8t. Hep. 408.
Syt 5 (XII, 467). Wrongful patentee holds for true owner.
.A^pproved ia Bockfinger v, Foster, 190 U. S. 125. 23 Sup. Ct 839.
4T Xi. 97^, holding homestead claimants cannot maintahi ejectment
«Sai.Iii8t Oklahoma town site trustees, who until patent issues hold

IIb ^tTOSt for government for future occupants.
€^X1U 407). Mlscellaneoua.
OMted in Claris v. Herlngton, 186 V. S. 211. 46 L. 1131, 22 Snp. Ct.
8^^. holding suit for damages for breach of warranty in conveyance
^ .SEHUitee of railroad of indemnity lands open only under settle-
"^^^at laws ia cognisable in eourta.

^^^^ U, S- 5S»-597, S7 L. 1191, BELKNAP v, UNITED STATES.
^3rL I (Xll, 4<J7). New trial ordinarily not granted after term.
-^^pproved in Ex parte FuUer, 182 U. S. 571, 45 L. 1235, 21 Sup. Ct.
'•"^-fc holding under Arliansas statute In force in Indian Territory
^^**^€mJ ctmrt may grant new trial after term for newly discovered

ice
^^3CI1, 467). Miscellaneous.

^^ted m In re DikL of Columbia, 180 U. S. 253, 45 L. 517. 21 Sup.
3381 holding under Rev. Stat, £ 1088, Court of Claims cannot
i new trial on ground that later de<?ision has shown earlier
^ — ilOQ to be erroneous.

■ *0 U. 8 697-610, 37 L. 1195, WARD y. COCHRAN.

^1 %yi 1 (XII, 468)* Appellate court considering exceptions after

Approved In Reliable Incubator, etc.. Co. v. Stahl, 102 Fed. 593.

*^Wln| bill of exceptions presented after term should contain

of order extending time or of consent of other party.

^ 2 (XII. 468). Exception specifying legal propositions is

•iilident

%rored In Columbus Const Co. v. Crane Co.. 101 Fed. 58. hoid-

"H nUe 10 of geventh Circuit. Circuit Court of Appeals requires

150 U. S. 610-664 Notes on U. S. Reports. 414

statement of proposition of law excepted to with charge embodying
erroneous proposition.

SyL 3 (XII, 468). Adverse possession must be actual and
exclusive.

Approved in.Tyee Ck)nsol. Min. Co. y. Langstedt, 121 Fed. 712,
holding actual, open, notorious continuous possession with claim of
right, but neither exclusive nor hostile, is not adverse possession;
Hill V. McGinnis, 64 Neb. 190, 89 N. W. 786, holding public acquire
no prescriptive right to roadway through inclosed premises where
landowner used land for grazing and farming and changed road at
will.

150 U. S. 610-636. Not cited.

150 U. S. 637-653, 37 L. 1207, IN RB SWAN.

Syl. 1 (XII, 4(>9). Habeas corpus cannot supplant appeal.

Approved in In re Nevitt, 117 Fed. 449, holding habeas corpus
challenges Jurisdiction only and cannot be invoked to review errone-
ous rulings of court of competent Jurisdiction.

Syl. 5 (XII, 469). Contempt is specific criminal offense.

Approved in Chisholm v. Caines, 121 Fed. 400, holding contempt
in violating injunction against trespassing upon certain land is in-
dependent act of disrespect to court, punishable as such; Ex parte
Davis, 112 Fed. 142, holding decision of court having Jurisdiction to
punish for contempt cannot be reviewed on habeas corpus; In re
Ruse, 107 Fed. 948, holding habeas corpus proper remedy to secure
discharge of person held for contempt in violating injunction issued
in suit in which he was not party; Wayne Knitting Mills v. Nugent,
104 Fed. 536, ordering imprisonment of person refusing to make full
disclosure to referee of facts as to receiving money from bankrupt

Syl. 6 (XII, 470). Habeas corpus cannot discharge entire ex-
ceasive sentence.

Approved in Ex parte Davis, 112 Fed. 142, 143, holding where
court has Jurisdiction to punish for contempt its finding against
IK^rson so charged cannot be reviewed on habeas corpus; De Bara
V. UuiU^ States, 99 Fed. 947, holding prisoner cannot be released
on habeas corpus for excessive sentence while serving portion of
sentence within power of court to impose. See 87 Am. St Rep.
180. note.

150 U. S. G53-GG4, 37 L. 1211, IN RE HOHORST.

Syl. 1 (XII, 470). Foreign corporation suable where service pos-
sible.

Approved in Rlcordi v. John Church Co., 114 Fed. 1023, reaffirm-
ing rule; IMdy v. Casas, lis F(m1. 'M'A, holding citizen of foreign
country residing in Siatc in wliicli suit is brought against him
cannot remove same to Federal courts; Virginia, etc.. Chemical

m

Notea on U. S, Reports. 150 U. S. 665^73

Co, h Sondry Ina. Cos,, 108 Fed, 453, holding privilege of reqtiir-
iQg suit to be brought In district of residence inures only to eor-
poraiions of States of this country; Spears v; Flynn^ 102 Fed, 7,
hiding guJts in Circuit Court In patent and copyright cases may
he brought in any district where defendant may be served; Pacilic
Mat Life Ids. Co. v. Tompkins, 101 Fed. 544, holding pliiintifl
«■!» tiad lost Ills residence In West Virginia cannot sue Ofillforuia

wrpofttlon In Circuit Court for West Virginia. See notea, tM Am.

^t R^p. 538; 85 Am. St. Rep. 910. 923.
IMstinguished in Bowers v. Atlantic G. & P. Co., 104 Fed. 889,

BBO, tioUlln;? act March, 1897, limits suits for infringement of patents

ll Circuit Court to district in which defendant is inhabitant or

^ place of business.
Syl 2 (XII, 471)* Service cm financhil agent is sufficient
Sw notes, 85 Am. St Rep, 913, 923, 931.
Distingalshed In Reilly v. Philadelphia & R. Ry. Co., 109 Fed.

81, holding service on director found io distflet charged with no

boflUiees of corporalion is sufficient under N. Y. Code. § 432.

SyL 3 iXII, 471). Mandamus compelUng court to take jurisdiction.

Approved in Raleigh v. First Judicial Dist. Court, 24 Mont 313,
115, «1 Pac. 994, holding mandamus will lie where District Court
•wooeously struck from files a will contest becauBe of a former
««twt whjcb had been dismissed.

Wgttaguiahed in In re Grossmayer, 17T V. S. 50. 44 L, 6C6, 20
Sop. Ct 53f>, holding mandamus will not lie tx) compel Circuit Court
to lake jurijsdictjon wiiere no lawful service was had on defend-
iat: In r& West**rvelt, 98 Fed. 912, holding mandamus will not
'•oe to c&mx>el Circuit Court to strike out answer and sign decree
•Isttce appeal otfers full remedy.

150 C. 8, mo^73, 37 L. 1215, LEHIGH ZINC, ETC. CO. V* BAM-
rORD.

SjL 1 (XII, 471). Contract for lease of mine construed.

Apiiroved in Berwind-White Coal Mln, Co. v. .Martin, 124 Fed.
-JISv lioitlloff defendant abandoning ten-year coal lease, requiring*
miniBjf of 75.000 tons annually or paymeiut of royalties on such
'^'WWi, la liable for such royalties; Coal Creek, etc, Co. v. Ten-
*«»w. <*tc„ Co., 10(j Tenn, CTO, (S2 S. W. 168, holding royalty on
ft^aimiioa amount of coal defendant was bound to mine uuder con-
Tnct WAS hquidated damages oud not penalty.

*?1^-(XII, 471). Conveying impression of nonexisting knowledge

-Vpprored In Simon v. Goodyear Metallic R. Shoe Co., 105 Fed,
^1» holding false representations miide with purpose of procuring
f^«cr»*t In question without knowledge of U'uth or falsity is a false
^IcneniaUon.

^

150 U. S. 674-706 Notes on U. S. Reports. 416

150 U. S. 674-706, 37 L. 1218, BELDEN v. CHASSL
Syl. 1 (XII, 471). Aiypellate Jurisdictioii over maiitione torts

retained.
Approved In Chealey v. Nantasket Beach, etc., Co., 179 Mass.

471, 61 N. E. 51, holding fisherman in a boat anchoring in improper
place in steamer route in fog, and making no signals, cannot re-
cover against steamer properly signaling.

Syl. 9 (XII, 472). Rules departed from only " in extremis."
Approved in Obesley v. Nantasket Beach, etc., Co., 179 Mass.

472, 61 N. E. 51, holding fisherman anchoring boat near steamer**
route in fog, making no signal, cannot recover against steamer
making proper signals.

Syl. 10 (XII, 472). Vessel departing from rules must justify.

Approved in Chesley v. Nantasket Beach, etc., Co., 179 Mass.
472, 61 N. E. 51, holding fisherman anchoring boat near steamer**
route in fog, making no signals, cannot recover against steamer
making proper signals.

Syl. 11 (XII, 472). Vessel must show fault not causaL
Approved in The Albert Dumois, 177 U. S. 250, 44 L. 758, 20 Sap.
Ct 599, holding vessel ascending Mississippi not Justified under
facts in starboarding in violation of pilot rule 18; The Straits
of Dover, 120 Fed. 904, holding vessel at fault for failing to main-
tain speed as required by rules or to give danger signal; Tlie
Acilia, 120 Fed. 458, holding vessel at fault for attempting to
cross bows of approaching steamer in violation of inland mlea
of navigation, affirming 108 Fed. 978; Chesley v. Nantasket Beach,
etc., Co., 179 Mass. 472, 61 N. E. 51, holding fisherman anchoring
boat near steamer's route in fog, making no signals, cannot re-
cover from steamer making proper signals.

DiGrtlnguished in The Sakme, 118 Fed. 979, holding tug signaling
to pass starboard to starboard not at fault where collision occurred
where other vessel, though assenting, failed to follow signaL

CLI UNITED STATES.

151 U. 8. 1-50. 38 K 55, ANGLE V. CHICAGO. ETC., RT.

Sfl 5 CXH, 474), Liability for Interferkig with contra;Ct

Apiwoved In LoulsrlUe, etc., Ity. v. Bltterman, 128 Fed. ITS,
JMldlng railiT>ad company is entitled to Injutietion to restraiiQ
ticket broker from buying and selling tickets issued to persons
wba fuiTe contracted not to transfer the same; Delaware, etc.,
E. B. Co. T. Frank, 110 Fed. 694, holding ticket broker who induces
laoCher to Tiotate his contract by selling return portion of ticket
ifter he has agreed not to transfer it Is liable; Passaic Print
W«iDi V. Ely, etc., Dry-Goods Co., 105 Fed. 171, holding petition
which stated that defendants offered for sale certain calicoes
•t pilcefl lees than those stated by pKalntlff for the poirpose of
iBjttrtiig bUBlnefls of plaintiff does not state a cause of action; Hoi-
l«Qbeck V. Rlstlne, 114 Iowa, 3U7, 86 N. W. 381, holding one
(iimot adrise another to discharge an employee, accompanying
bli ftdriee with libelous charges, and escape liability; Moran v.
Dmipliy. 177 Masa. 487, 59 N. B. 12G, holding one who through
tortood brings about discharge of servant is liable in damages
» ierTODt; Raymond v. Yarrlugton, 06 Tex. 450, 73 S. W. 803,
hMliif where one knowingly Induces another to break his contract
k^Qr«d party has cause of action for damages; Martens v. Rellly,
W Wis, 475. 84 N. W, 844, holding conspiracy to secure breach
of contract is actionable in favor of third person Injured.

Syl G (XII, 474). Liability of sole stockholder.

Approved In Moffat v. Smltb, 101 Fed. 773, holding sole owner
oC corpomte stock who has secured all the assets and surrendered
il hte stock, pending aetion for tort against corporation, cannot
^Joill Judgment creditor from selling on execution the property
flieosTejed.
BfL 7 (XU, 474). Legislature's motives not for court
Approved in State v. Sux>erlor Ot of Milwaukee Co., 105 Wis.
[ ilf, SI fi. W, 1054. holding court has no power to enjoin passage
l«f onllimnee giving use of street to railroad under Wis. Rev< Stat.,

W(3fL lO (XII, 475). Involuntary trustee.

ijPUinifiil In Barnes v. Thuet 116 Iowa, 363, 89 N. W, 10S7,
where plaintiff was in the habit of cashing drafts drawn
VoLIll— 27 [417]

_]

151 U. S. 50-67 Notes on U. S. Reports. 418

by stock buyer on defendant and drafts were always paid by
defendant his refusal to pay the one in question, on ground that
buyer was indebted to him, constituted him trustee of funds for
plaintiff.

151 U. S. 50-56. Not cited.

151 U. S. 56-67, 38 L. 70, WILSON v. OSWEGO TWP.

Syl. .1 (XII, 475). Removal of causes.

Approved in Wirgman v. Persons. 126 Fed. 453, holding in action
to cancel deed where the requisite diversity of citizenship appears
removal cannot be prevented by joinder of nominal defendants;
Huntington v. Pinney. 126 Fed. 238. holding unless jurisdiction
appears on face of pleadings Federal court has jurisdiction of
suit removed from State court: Yamell t. Felton, 102 Fed. 370,
UM Fed. 162. holding on motion to remand cause to State court
because petition for removal was not filed in time court cannot
take judicial notice of rule of State court by which time to i^ead
may be extended beyond date fixed by statute; Broadway Ins.
Co. V. Chicago, etc., Ry. Co,. 101 Fed. 510. holding in action in
State court by insurance companies, who had paid losses occa-
sioned by fire to lumber comi>any, against lumber company and
railroad company, through whose negligence fire occurred, to be
subrogated to rights against railroad, railroad could not remove
oause.

SyL 3 (XI. 47G>.' Trustee of bonds is proper party.

Distinguished in Lake St. El. Ry. Co. v. Ziegler, 99 Fed. 122,
1-4, boKliug in action by corporation against holders of its stock
auii bonds for an a^vouutlnj; trustee in deed securing bonds is

not iuilispensablo pany.

Syl. 4 iXIl. 47t)». Removability of cause, how shown.

Approved In Hijrsrins v. nalrimore. etc.. Ry. Co., 99 Fed. 641.
holding action in State court against stoi.'kholder, where only
question is ownership of stock held by defendant action may
l»e removed to Federal court if diversity of citizenship exists, as
LH>rporation is not necessary pany.

Syl. o (XII. 47t>i. Default affo<.'ting right to remove.

Apprvn-cd in Williard v. Si>artanburg, U. & C. R. R. Co., 124
Fed. Si^J. hol.liu^ action by employee of railroad company operat-
ing road under lease as:aiust company and lessor Is removable
by losstv when it is i^^^rpo ration of another State: Lederer v. Sire.
liXV 1\h1. 530. holding whore one of two defendants in action in
State vvurt is citizen of same State as plaintiff his default will
t;ot render cause removable by codefendant on ground of diversity
^*r citizenship.

m

Notes on U. S. Reports,

151 V, a 68-79

151 E S. 6S-T3, 38 L. 7G. INGLEHART t. STANSBURY.

SyL 1 (XII, 4TT). Appeal by heirs of trustee.

Approred In Kidder v. Fidelity Ins.. etc.» Co., 105 Fed, 823,
holding where one of several intervenera appeals and cites only
complainant aod receiver of ore of several defendants appeal will
be diamiMed; Grand Islfmd, etc., R. R. Co. v. Sweeney, 103 Fed.
347, holding, under Sess. Laws S. Dak. 1893, cbap. 116, | 4, re-
qniiiDg plaintiff to make all persons claiming liens parties, persons
boldiog liens adverse lo plaintiff must be Joined tn appeal.

SyL 2 (XII, 477). Reason for nonjoinder must appear.

Approved In In re Jemlson Mercantile Co., 112 Fed. 970, hold-
lOf where creditor's petition for adjudication of bankruptcy has
been dismissed, and several creditors join in petition for reinstate-
n»nt of proceedings, one of tiie creditors may petition for review
Miter denying petition witbcmt being joined by tlie otliers; Love-
ten T. Bansom. 107 Fed. ti2T, holding wliere decree is joint all
ptrtleft against whom It Is rendered mui$t join in appeal unless
ttoe be BUtmnoos and severance; Ayers v. Polsdorfer, 105 Fed.
TIO, holding in ejectment, under statute authorizing joinder of
ill petioDfi claiming Interest In land as defendants, writ of error
bj ooe defendant, where other defendants were not Invited to
)^ iriU be dismissed.

151 IJ. a 73-79, 38 L. Xa TEXAS, ETC., RT. T. VOLK.
tjl 2 (XII, 47D. Negativing contributory negligence.
Approved in Jefferson Hotel Co. v. Warren, 128 Fed. 567, hold-
taf tH Federal court burden Is on defendant to prove contributory
liSUfeiice.
in S (XII, 477), Omission to instruct jury.
Approved in Frizzell v. Omaha St. Ry. Co.. 124 Fed. ISO, bold-
iof wbepe there is no error in charge given, omission to give other
JaiODctloiis Is Dot challenged by objection to instruction; Nortb-
«1 ftus. Ry, Oo. V. Tynan, 119 Fed. 293, holding duty of railroad
flPOpftoy toward its employees to use reasonable care to see cars
V9 lo good order; Hemingway v. Illinois Cent R. R. Co., 114
y^i. S4iV holding In action to recover for uegligeaee resulting in
dwth burden of proof in Federal courts is on defendant to prove
w&M negligent; Cass County v, Gibson, 107 Fed. 366, 367,
objection that instruction was not full cannot be consid-
vteo furtlicr instructions were not reijuested; Harrle v. At-
etc^ R. K.. 132 N. C. 163, 43 S. E. 5»0, holding court (s not
to give special charge in language of request.
SyL a (XII, 478), Frivolous appeals.

Approvctl tn O'Connell v. Mason, 127 Fed. 437, construing U. S.
1W)1, p. 707, relating to frivolous appeals*

151 U. S. 79-105 Notes on U. S. Reports. 420

151 U. S. 79-81, 38 L. 80, AZTEC MIN. CO. v. RIPLEY.
Syl. 1 (XII, 478). Jurisdiction over territorial courts.

Approved in Defiance Water Co. v. Defiance, 191 U. S. 195, hold*
Ing averment that if perpetual injunction is panted, water company
will be deprived of property without due process of law, will not
Justify assumption of Jurisdiction by Circuit Court; First Nat
Bank v. Klug, 186 U. S. 205, 46 L. 1128, 22 Sup. Ct 900, holding
appeal to Supreme Court from Judgment of District Court dis-
missing petition in banlsruptcy cannot be entertained; Union
Central Life Ins. Co. v. Champlln, 116 Fed. 859, holding Circuit
Courts of Appeals have no Jurisdiction to review decrees of Supreme
Courts of territories under act March 3, 1891.

Syl. 2 (XII, 478). Reviewing Judgment of Circuit Court of Ap-
peals.

Approved in Southern R. R. Co. v. Postal Tel. Cable Co., 179 U. 8.
645, 45 L. 357, 21 Sup. Ct. 251, holding writ of error cannot be
sustained when it is taken without waiting for any further proceed-
ings after appointment of commissioner in condemnation proceed-
ings and other proceedings.

151 U. S. 81-105, 38 L. 81, TEXAS, ETC.. RY. v. JOHNSON.

Syl. 6 (XII, 479). Suit by Federal receiver.

Approved in Robinson v. Mills, 25 Mont. 401, 65 Pac 117, holding
suit ngainst receiver may be maintained for failure to put street in
safe condition though excavation was made before appointment
See 74 Am. St. Rep. 293, note.

Syl. 7 (XII, 479). Jurisdiction In action by Federal receivers.

Approved in Gableman v. Peoria, etc., R. R. Co., 179 U. S. 339.
45 L. 223, 21 Sup. Ct. 173, holding fact that receiver was appointed
by Federal court does not make all actions against him, cases
arising under Constitution or laws of United States which he can
remove to Federal court; Malott v. State, etc., 158 Ind. 679, 64 N. E.
458, holding application tor mandamus against receiver which
fails to allege that be was appointed by Federal court, or that leave
to sue has been obtained, is demurrable; Malott v. Hawkins, 150
Ind. 131, G3 N. E. 309, holding under 25 Stat. 436 (Ind.), providing
for suits by Federal receivers, an action may be maintained in State
court against receiver for negligent killing of decedent; Lou. Soo.
Ry. Co.'s Receivers, etc., v. Tucker, etc., 105 Ky. 499, 49 S. W. 316,
holding railroad company is not liable for acts of receiver of road
in its operation; Pendleton v. Lutz, 78 Miss. 332, 29 So. 168. hold-
ing under act Cong. March 3. 1887, § 3, relating to suit by receivers.
where property has been attached before receiver appointed, re-
ceiver was not entitled to remove case to Federal court See M
Am. St Rep. 56, note.

121

Notes on U, S. Reports.

150 U. S. 105-13B

151 C. 8. l(»-10©. 38 U 90, TEXAS, ETC., RY. v. SAUNDERS.
SrL 1 (Xn, 480). Reviewing Judgment of Circuit Court
Approred in Ward v. Evans, 49 W. Va. 187. 3S S. E, 525, holding
^l of prohibition does not lie for error of judgment by Justice in
^dlng upon law and facts.
&jl 3 (XII. 48C>|. Objection to JuriBdiction.

Approved in Piatt v. Massachusetts Real Estate Co., 103 Fed,

^^ bolding compllflnce by corporation with statute of another

^late requiring it to appoint an attorney tberein upon wliom process

-Oimj- be served does not prevent it from insisting that It be served

to ^Igtrlct where it Is incorporated.

^S:t U. 8. UO-lll. Not cited.

V. S. 112-129. 38 L. 93. HARDENBURG v. RAT.
^jrL 1 (XII, 480). Change of parties after jurisdiction acquired.
pproved in Ritchie v. Burke» lDi> Fed. 10. holding in suit by
of different States based on Judgment in favor of corn-
it against one of defendants, court does not lose Jurisdiction
een codefendant by fact that Judgment is dischai'ged after
^:%mencemeiit of action.
^3yL 5 (XII, 481), General devise of realty,

^XDistingnlshed in WiJliams v. McKeand. 119 Mich. 510. see 78 N.
"^ 553, holding devise of *'all residue of property not enumerated
^ hereinbefore described " will not pass lapsed legacies or prop-
■^^ not speclflcaliy disposed of.

t^ U. S. 129-135. 38 L. 98. CENTRAL TRUST CO v. McGEORGE,

^Fl I (Xn. 4S1|. Waiving Jurisdiction in wrong district,

-Approved in Memphis Sav, Bank v. Houchens. IID Fed. 102. hold-

'**^^ liihlLltlon In Judiciary act August 13, I88S (25 Stat. 433, chap.

^^ii. .igainst bringing suit in any district other than one in which

'^^imlff or defendant resides, Is waived hy removal by defendant

*^rt>Bj State to Federal court; Empire Min. Co. v. Propeller, etc.. Co.,

^^Ked- 9i]>2. holding right given defeiuliint by Judiciary act 1887-

^te, to he sned in district w^here he or plaintiff resides, does not

^*v«iii removal from State court, as removal by defendant Is

^fer of jurisdiction; Virginia, etc., Chemical Co. v. Sundry Ins,

Cai'l 108 Fed. 453. holding action brought by Virginia corporation

IHlUft corporation of au other State Is removable lato Federal

tton at Instance of defendant; Whit worth v. Iliiuois Cent. R. R.

^" 1*»7 Fed, 559. holding defendant by appearing in State court

^-i r*.» neither plaintiff nor defendant residt-d, b^^ riling bond and

^ruuno to remove cause to l^Vderai court, waives his riglit to be

«iw! la difitrict of his residence under Judiciary act (25 Stat, 433);

PIttr T. Massachusetts Real Estate Co.. iri3 Fed, 70CS. holding

madt^ iieclton 1, Judiciary act 1SS7-1.MS8. relating to Jnrtfidi<?tl0D

tetweta dti^fiens of different States, general appearance waives

151 U. S. 135-149 Notes on U. S. Reports. 4

objection to jurisdiction; Pacific Mut. L. Ins. Oo. v. Tompkins, 1
Fed. 541, holding objection that action is brought in wrong d
trict is not waived by attending talking of deposition before iss
joined; Scott v. Hoover, 99 Fed. 250, filing demurrer to complai
on ground of insufliciency of facts is waiver of objection to Jor
diction.

Syl. 3 (XII, 481). Submission to jurisdiction by corporation^
Approved in Accidental, etc., Co. v. Comstock, etc., Co., 120 P<
519, holding Circuit Court has jurisdiction of suit where plaint
and defendant are citizens of different States, and defendant h
answered to the merits; Lewis v. American Naval Stores Co., 1
Fed. 306, holding Federal court has jurisdiction to appoint receii
for corporation of another State where corporation waives exea
tlon from being sued out of its domicile; Citizen*8 Bank, etc., CJo.
Union Min., etc., Co., 106 Fed. 98, holding when corporation defei
ant waives jurisdiction by appearing, stockholder intervener cam
raise question; White v. Rio Grande, etc., Ry., 25 Utah, 358, 71 Pj
597, holding right conferred by Const, art 8, § 5, Utah, to ba
action tried in county where it arose, was waived by failure
object.

151 U. S. 135-137, 38 L. 101, VOORHEES v. JOHN T. NOYE MF
Co.

Syl. 1 (XII, 481). Finality of decree for appeal.

Approved in Tullis v. Lake Erie & W. R. R. Co.. 105 Fed. 5
holding where by reason of motion for new trial entered at tei
when judgment was rendered, power of court over judgment
retained, bill of exceptions may be settled or time given for p
paring it when motion is overruled.

151 U. S. 137-138. Not cited.

151 U. S. 139-149. 38 L. 103, KEYSTONE MFG. CO. V. ADAMS.

Syl. 1 (XII, 482). General use of device.

Approved in Kiulock Tel. Co. v. Western Electric Co., 118 B
605, following rule; Farmers* Mfg. Co. v. Spruks Mfg. Co., 127 E
097, holding East patent No. 429,021, for ventilating barrel,
valid; Consolidated Rubber Tire Co. v. Finley Rubber Tire <
110 Fed. 634, holding Grant patent No. 554,675, for rubber t
wheel, is valid; Kalamazoo Ry. Supply Co. v. Duff Mfg. Co.. J
Fed. 269, holding where question of invention is fairly open
doubt practical success of device, and fact that It displaced devi
In previous use, is sutticient to sustain patent; Westinghoie
Electric, etc., Co. v. Union, etc.. Co.. 112 Fed. 421, holding Wee
ingliouse patent No. 306,362, and Thomas patent No. 508,65
relating to improvements in electrical converters, disclose Inventic
and are valid; Nat. Hollow, etc., Co. v. Interchangeable, etc.. Cc
100 Fed. 707, holding where Question of novelty is open for coi

Notes on U. S. Reports.

151 U. S. 149^170

Iteration under the law, fact that patented device has displaced
4<]ieTs and h&s gone into general use is evideace that it inyolTes
lUTentloa.

Sjl a (Xn, 483)* Recovering Infringer's profits.

Approved in Peters v. Union Biscuit Co., 120 Fe^. 684, holding
Damtgiag otticers of corporation who actuaily participated in use
i»y corporation of Infringing device, are liable for infringement;
KiQEflB City Hay Press Co. v. Devol, 127 Fed. 366, holding vs^here
piteai infringed is for improved* part of machine, byrden is on
mmplainant to separate' his damages from defendant's profits
tn?tweea patented and unpatenled features; Bradford v. Belknap
Motor COm 105 Fed. 65, holding court will not appoint master in
[ftient cause inhere damages will he trivial compared to expense
i^f taking the accounts.

151 tJ. S. 14^103. B8 L. 106, BATES v. PEEBLE.

8yl 1 pax, 483). Admissibility of books of account

Approved in Breese v. United States, 106 Fed. 685, holding hank

^en testifying to checks on It, may refresh his memory from

•Oirj^ In books though some of them were not made hy him;

^away Co. V. Coleman, 78 Miss. 186, 28 So, S29, holding witness

^iboat personal knowledge of transaction cannot testify from

**>^morandum made by another.

Syl. 4 (XII, 483). Inspection of books by Jury,
wipiiroved in Alaska Commercial Co. v. Dinkelspeil, 121 Fed. 322,
**^MiJig Inspection by Jury of receipt not introduced in evidence
•'^i cfTor*

Ujl 5 (XII, 483). Statute of Limitations.
I approved In Daroold v. Simpson* 114 Fed. 370, holding fact that
^^litf/f concealed his fraudulent conduct and that creditors knew
?^^^lbtag of Situation until short time before bringing action, is
[^^•nfllcient to take case out of Statute of Limitation where dlii-
|-^^?Dce would have shown situation.

I" tXir, 4S3). Miscellaneous.

Cited In United States v. Ng Young, 126 Fed. 426, holding fn
^«>5C*edlngs for exclusion of Chinese alien Qew trial will be denied
I ^^l»<*re delay in producing testimony is inexcusable.

^^l U. 8. 164^170, 38 L. 112, TUCKER v. UNITED STATES.
8yL 2 {Xlh 484). Impeaching witnesa.
^ 82 Am. St Rep. 49, note.
^}l 5 (Xll, 484). Reviewing Instructions.

Approvecl In Potter v. United States, 122 Fed. 55, holding in order
'ft rerlew ruling on admiaalbUity of evidence, exception must be

151 U. S. 171-209 Notes on U. S. Reports. 424

Syl. 6 (Xn, 484). Exception to Instructions.
Approved In Tlnsman v. F. B. Patch Mfg. CJo., 101 Fed. 875,
holding assignment of error In charge of court must be excepted ta

151 U. S. 171-179, 88 L. 115, CADWALDBR v. ZBH.

Syl. 1 (XII, 484). (Commercial meaning In construing of customs.

Approved In Nordllnger v. United States, 115 Fed. 882, 838, head-
ing Leghorn citron is properly olassified under paragraph 704 of
act 1883 (22 Stat 519)^ as dried fruit, and not unda: paragraph
302, page 504, as comfit, etc.

151 U. S. 179-186, 38 L. 119, SOUTHWORTH v. UNITED STATBS.

Syl. 1 G^II, 484). Fees In criminal cases.

Approved In Bartlett v. Eau Claire Co., 112 Wis. 248, 88 N. W.
63, holding Sanb. & B. Anno. Stat, chap. 65a, subd. 6a, Wis., re^
lating to tramps and their punishment does not fix compensation
of municipal Judge.

151 U. S. 186-209, 38 L. 121, MILLER v. EAGLE MFG. CO.

Syl. 1 (XII, 485). Patents for prior invention.

Approved in Steinmetz v. Allen, 192 U. S. 562, 24 Sup. Ct 422,
holding inventor is not estopped from insisting upon application for
patent in which were united process and apparatus claims; Thom-
son-Houston Elec. Co. V. Blaclt River T. Co., 124 Fed. 612, hold-
ing Van Depoele reissued patent No. 11,872, for traveling contact
for electric railways, Is void; Industrial Mfg. Co. v. Wilcox, etc.,
Mach. Co., 112 Fed. 537, Vlgelow patent No. 263,467, for sewing
machines, covered trimming device in patent No. 341,790, and ren-
dered it void; Western Electric Co. v. Williams, etc.. Electric Co.,
108 Fed. 955, holding Gray patent No. 309,617, for Improvements in
telephone call boxes, is void; Thomson-Houston Electric Co. v.
Jeffrey Mfg. Co., 101 Fed. 122, holding Van Depoele patent No.
495,443, for traveling contact for electric railways, is rendered in-
valid by patent No. 424,G1>5, for same device.

Syl. 2 (XII, 4S(5). Patents described in prior one.

Approved in Westinghouse, etc., Co. v. Dayton, etc., Co., 106 Fed.
T26, holding Tesla patents No. 511,559, and 511,560, relating to elec^
tr* power transmission, are valid.

Syl. 5 (XII, 480). Splitting Invention.

Approved in Otis Elev. Co. v. Portland Co., 127 Fed. 559, 562.
hoMiug two patents may be for same invention though one claims
only special machine; American Bell Tel. Co. v. National TeL Mfg.
Co.. 100 Fed. 1033, holding Berliner patent No. 463,569, for com-
bined telejjrraph and telephone, is void.

Syl. G (XII, 48G). Patentee of prior device.

Approved in Dayton, etc., Co. v. Westinghouse, etc., Co., 118 Fed.
573, holding Tesla patent No. 511,559, for method of operating

Notes on IT. S. Reports, 151 U. S. 18l^-209

electric motor. Is valid; National Hollow, etc., Co. v. Interchange--
Mt, etc., Co.» 106 Fed. 706, 70d, 711, holding Hien patent No.
361«009 Is valid.

SyL 7 (XII, 486). Anticipating patent.

Approved in Milwaukee Carv. Oo. v, Brunswick, €tc.» Co., 126
Fed. 183, holding Smith aaid Post patent No. 443»S02, for carving
machine not infringed; Eames v. Worcester Polytechnic Institute,
123 Fed- T2. holding Walker patent No. 425.839, for Improvement
on turtst-drill grindiag machine, is valid; Powell v. Leicester Mills
Cot, 10^ Fed. 4ST, holding Powell patent No. 510,934, for Improve-
In webholder actuating mechanism for automatic knitting
ies, not Infringed.

Byl 8 (XII, 487). Range of equivalents.

Approved In Fay v. Masons 127 Fed. 333, holding Fay reissued
tent No. 11,664, for machines for ironing edges of collars and
K Dot infringed; Henry Huber Co, v. J. L. Mott Iron Works,
IV^ Fed, 602, holding Beaumont patent No. 555,OS3, for improve-
ment In hot-water bath fixtures, not infringed: M*Sherry Mfg*
Co. V. Dowaglae Mfg. Co., 101 Fed. 721, 722, holding Hoyt patent

I£o. 446,230, for improvement in graiu drills, valid; KlDg Ax Co* v.
Inhbard, ^7 Fed. 803, holding Taylor patent No. 500^084, for tm-
|t<ovements io manufacture of axes, is valid; Cleveland Target Co.
^ Kinph'e Target Co., OT Fed. 73, holding letters patent No. 301,1>OS,
br Improvements In seDdiiig-traps for flying targets, susrtained.
► Syl U (Xn, 488). Determining infringement.
Approved in McCarthy v. Westfleld Plate Co., 124 Fed, 898, hold-
^ lieCarthy patent No, 478,108, for improvements in casket-
_ ludlcfl, not Infringed; American Pneumatic T, Co, v, Philadelphia
Pttencmtic T. Co.. 123 Fed. Sm, holding Bates patent No. 3r>4,081,
tvf pneumatle driilliig tool, is entitled to only narrow construction
*a*S *» not infringed by Keller patent No. 647,41a; Ryder v, Schllchter,
i21 Fe<j. 100, holding Harder patent No, G27,7o2 must be limited
t» ipftclnl form of braces described, and is not infringed by SchJichter
Ht^ot No. 053,967: OUs Elevator Co. v, Portland Co., 119 Fed. 931,
^^ holding Bassett patent No. 453,955, for elevator controlliEig
i"*?ciitm«m. Dot Infringed; Plttsbnrg Meter Co. v. Pittsburg Supply
^■' lOS Ped, 051, holding Youngs patent No. 473,544, for gas-meter,
••iwtlafrtnged; Norton v. Wlieatoo, 97 Fed. 644, holding McKenna
P*Kiii No. 348,289, for an air-brake attachment, is void.

biftJuguiiihed in Electric Storage, etc., Co. v. Buffalo, etc.. Car
'^Co., 117 Fed. 315, holding where validity of pateat has been
^■^W and Infringement Is clear, court should not refuse pat-
*^t^ l(n»timlnary Injunction been use patent wlE soon expire or
^^ defendant otters to give bond*

«

151 U. S. 209-221 Notes on U. S. Reports. 426

(XII, 485). Miscellaneous.

Cited in Simplex Ry., etc., Ck). v. Wands, 115 Fed. 521, holding
parol evidence is admissible to show state of the art as bearing
on manner in which doctrine of mechanical equiyalents should be
appHed to aid court in construction.

151 U. S. 209-221, 38 L. 131, CHICAGO, ETC., BY. v. LOWELL.

SyL 1 (XII, 488). Violation of rules as negligence.

Approved in Owen v. Washington, etc., Ry.. 29 Wash. 213, GO Pac
759, holding where passenger who knows where platform 1^ gets
off on opposite side, question of negligence is for Jury; dissenting
opinion in Dawson v. Chicago, etc., Ry. Co., 114 Fed. 874, majority
holding where brakeman was killed while riding on brake-beam
while he might have used hand-holds on side of car with safeity.
he was guilty of contributory negligence.

Syl. 2 (XII, 488). Negligence, presumption.

Approved in Southern Pac. Ck>. v. Harada, 109 Fed. 383, holding
where plaintiff is injured by engine which passed onto switch
which sharply curved, question for negligence is for Jury; North
Chicago, etc., R. R. v. Kaspers, 186 111. 249, 57 N. B. 851, holding
evidence that passengers during crowded travel of morning ran
after and Jumped on cars, and that conductors assisted them on
was competent to show negligence of company; (Dolex v. North
Carolina R. R., 129 N. C. 414, 40 S. E. 198, holding negligence for
railroad company to use drain-pipe which gave way while being
used, but which should sustain weight of 1,000 pounds.

Syl. 3 (XII, 488). Crossing railroad tracks.

Approved in Chesapeake, etc., Ry. Co. v. King, 99 Fed. 254,
holding where passenger is obliged to cross railroad tracks after
alighting from train, he may presume that trains will not be op-
erated to make exit dangerous.

Syl. 4 (XII, 489). Enforcement of railroad rules.

Approved in Sweetland v. Lynn, etc., R. R., 177 Maaa. 680, 08
N. E. 444, holding where passenger was injured while riding on
front platform of car and signs were posted on cars forbidding
passengers to ride on front platform, but defendant made no ob-
jection to passengers riding there, negligence waa question for
Jury.

(XII, 488). Miscellaneous.

Cited in dissenting opinion in Lewis v. Clyde Steamship Co^ 182
N. C. 922, 44 S. E. 672, majority holding evidence not sufficient to
sustain allegations of express contract for services in saving vesselr
to take issue to Jury.

C7

Notes on U. S. Reports. 151 U. S, 221-262

151 n. S. 221-229, 38 L. 137, WOOLENSAK t. SARGENT-

8yl 2 (Xll, 480). Pateota — Lack of novelty.

Approved In Ttumb v. New York, etc.. R. Co., 97 Fed. &48, hol<3-
tog McKt^nua patent No. 348,289, for air-brake attacbthent. Is
void for lack of novelty,

SyL 3 (XII, 489). Where novelty mnst exist

Approved in United Blue Flame Oil Stove Co. v. Glazier, 119 Fed.

', botdin^ Blackford reissue patent No, 11,592, for vapor burner,
infringed as limited; Hickory Wbeel Co. v. Frazier, 100 Fed.
102, holding Elliott patent No. 494,113, for improvements In sulkies,
to Ttoid for want of novelty,

151 U. S. 229^238, 38 L. 141, HALrUDAY v. STUART. *

SyL 1 (XU, 489). Authority of attorney.

Approved in American Surety Co. v. Ball man, 115 Fed. 21*3,
Swldlng where company paid judgment against it without indemul-
tof s coaaent, the company was estopped from claiming any bene-
ftt igainfit Indemnitors.

151 U. S. 238-242. Not cited.
151 U. S. ^42-^202, 38 L. 149, IN RE BONNEE.
Sjt 1 (XII, 480). Federal sentence to State penitentiary*
Approved \n Jackson v. United States^ 102 Fed. 490, holding
•^tence to Imprisonment in penitentiary for term prescribed in
•tatute as not cruel or unusual punisliment; Haynes v. United
SttUa. 101 Fed. S20. holding, under Rev. Stat, | 5541, an offense
iSiiiiit the United States is not punishable in penitentiary unless
■Hltnice is for more than one year.

Syl 4 (XII» 490). Criminal Judgment for excessive imprison-
ment

Approved Id De Bara v. United States, 99 Fed. 946, holding prior

to tiut part of term of imprisonment that court eould legally im-

W*, prisoner will not be discharged on ground that excessive

KitMunent bad been imposed.

8yL C (XII, 490). Criminal punishment at wrong place.

Approved In Murphy v. Massachusetts, 177 U. S. 157, 44 K 713,

30 Sup, Ot 640. holding sentence of conviction under Mass. Acts

l&l, ciiap. 87. Pub. Stat, chap. 187, § 13, after reversal of former

Mfmeot, does not invalklate constitutional provision against

doQtile Jeopardy; In re Welty. 123 Fed. 125, holding court had au-

tboilQr in criminal ca^e to amend sentence by Including hard lat)or;

Iji re Graves, 117 Fed. 7W, holding, after sentence to house of

correciion, court had autljority to recall prisoner and Impose

ihorter •enlence to different place; Whitworth v. United States, 114

fad. 3(H, boldlng, under liev. Stat, § 974, court may Impose costs

151 U. S. 262-294 Notes on U. S. Reports. 428

of prosecution on defendant; Breese v. United States, 106 Fed.
689, holding when record In misdemeanor case does not show de-
fendant was present at sentence, case will be remanded; In re
Casey, 27 Wash. 689, 68 Pac. 188, holding, under 2 Ball. Anno.
Codes & Stat., § 6669, Wash., providing that Justice or Jury shall
assess punishment, on Jury's failure to do so, Justice may fix It

161 U. S. 262-271, 38 L. 153, DAVIS v. UTAH.
Syl. 1 (XII, 491). Indictment need allege killing *' unlawf uL"

Approved in Hulz v. New Mexico, 10 N. Mex. 130, 132, 61 Pac.
126, holding omission of word ** unlawful," in Indictment for
murder in Utah, is not fatal; State v. Campbell, 24 Utah, 106, 66
Pac. 772, holding information charging killing by shooting to have
been done unlawfully, willfully and intentionally, feloniously and
with malice aforethought, is sufficient

Syl. 2 (XII, 491). Indictment need not indicate degree.

Approved in State v. Haworth, 24 Utah, 404, 68 Pac. 167, hold-
ing indictment for murder need not charge degree.

161 U. S. 271-281, 38 L. 157, GOTTLIEB v. THATCHER.

Syl. 2 (XII, 401). Fraudulent conveyances.

Approved in Shea v. Hynes. 89 Minn. 425, 96 N. W. 216, holding
burden of proving transfer from father to son is fraudulent ia on
creditor. See 90 Am. St. Rep. 499, note.

151 U. S. 282-285, 38 L. 1G2, HAUGHEY v. LEE.

Syl. 2 (XII, 491). Infringer.

Approved in Excelsior Needle Co. v. Morse-Keefer Cycle Supply
Co.. 97 Fed. OS'S, holding Dayton patent No. 474,548, for swaging
machiue, is void,
ini U. S. 285-21)4, :iS L. 104, SHEFFIELD, ETC., RY. v. GORDON.

Syl. 1 (XII, 491). Exception to master^s report

ApprovtHl in Nt»al v. Hrijrgs, 110 Fed. 478, holding exceptions to
n^\)on of ninstor lii eiiulty in Circuit Court of United States should
set out spiHilieully the errors relied on; In re Covington, 110 Fed.
14r>. holdinic exception to lindinjrs of fact by referee in bankruptcy,
equity rule 8;^ re<iuires errors to be specifically pointed out; Co-
lunihus, S. & II. U. U. Co. Appeals, 109 Fed. 219, holding findings
of fact by nwuster are supported by strong presumpti(m of corrects
ness: M N:iniara v. Home Land, etc., Co., 105 Fed. 204, holding
exception to master's report must first be submitted to him for
consideratimi.

Syl. 4 (XII. 492). Presumption on appeal.

Ai)proveil in In re Carver, 113 Fed. 138, holding where no ex-
ceptions to n^port of referee in banl<ruptcy are filed as required by
rule S:^, findin^rs of fact are conclusive.

Notes on U. S. Reports. 151 U, S. 2f>4-317

m V. 8, 2M-302, 38 L. 167, FORT WORTH CITY CO, v. SMITH
BRIDGE 00.

Sjrl. 4 (Xll, 4D2I. DetermlnatloD of corporate powers.

Approved In Richmond Guano Co. v. Farmers, etc.. Ginnery, 119
fed. 711, holding corporation organized to make fertilizers has no
power to sell fertlUzer made by another,

Di9diigiil8bed in Northslde Ry. v. Worthlngton, SB Tex, 572, 30
S. W. 106S, holding where tvro corporations were organized for
different purposes by same persons, and Joint bonds were issued to
pty off debts of one company and construct line of railroad for the
<Aher, tn so far as eacb comi>any helped the other* the bonds were
oltni Tlr«s.

L^l U. S. 303^17, 38 L. 170, HICKORY v. UNITED STATES.
^V^jl 1 (XII, 493). Comparison of bandwrittng.

Approved ia People v. Molineux, 1G8 N. Y. 320, 61 N. E. 308.

loldhig comparisons wHh standards of handwriting produced in

CMSrt may be made by the witnesses or by jury.

8yL2 (XII. 493). Admisslbiilty of liandwrlting.

Approved In Witbaup v. United States, 127 Fed. 535, holding in

Federal courts of Colorado, on trial for forgery, only standards

of eojuparison are genuine relevant documents In the case; Coppock

t^ UmpklD. 114 Iowa, 6tJ6, 87 N. W. GGO, holding, under low^a Code,

I 4fl30, authorizing comparison between band writings, it is com*

P*tt!rt to compare admitted signature of husliaod with signature to

CQ&tnct signed by wife for purpose of showing that name was origl*

^f written by husband and aftel•w^ard altered so as to appear to

b« that of wife; People v. Mollneux, 1*58 N. Y. 330, 61 N. E. 307, hold-

'^g genuine bandwrltlng produced by defendant at the Inquest is

Mmlsaible as standard of comparison; dissenting opinion In People

^. Weaver, 177 N, Y. 453, 09 N, E, IIW, majority holding when

4efaulant la accused of forgery, it was error to penult Indorser to

*«Wy otber Dotes executed by defendant and claimed to be forged,

'tei Uiey were not Indorsed by him,

IfL 4 (XU. 493)* Impeachment of witness.

Anprored In In re De Gottardl. 114 Fed. 334, holding party's

ittlieM may be Impeached by showing inconsistent statements only

^km wltnefls has given damaging testimony against party catl^

iog tklmi Tacoma Ry., etc., Co. v. Hays, 110 Fed. 498, holding party

fHto haM been surprised by testimony of bis own witness may show

ttit he nas tnade difTerent statement previous to trial; Oarpenter'a

IppiuU, 74 Conn. 435, 51 Atl. 128, holding right of party who iu

fporprliied at adverse testimony of his owd witness, to show con-

trttdlctory irtatement made at anotlier time, Is In discretion of court;

Vmw^nltj of IlllDola V. Spalding, 71 N. H. 173, 51 AtL 732, hold-

iCbig not admitted to be gentiine, after having been proved

151 U. S. 317-389 Notes on U. S. Reports. 430

to be genuine, may be admitted for purpose of connparison with one
in question. See 82 Am. St Rep. 57, 58, 59, note.

151 U. S. 317-323. Not cited.

151 U. S. 324-328. 38 L. 179, MAYNARD v. HBCHT.

Syl. 2 (XII, 494). Review by Supreme CJourt

Approved in Felsenhedd v. United States, 186 U. S. 134, 46 L.1089,
22 Sup. Ct 743, holding questions which may be certified by Circuit
Court to United States Supreme Court under Judiciary ax:t March 3,
1891, must present clear point of law; Arkansas v. Schlierholz,
179 U. S. 600, 45 L. 337, 21 Sup. Ot 231, holding certification of
question of jurisdiction by Circuit Court to United States Supreme
Court is not made by order allowing appeal from decision that
special agent of land office is entitled to discharge from custody of
a sheriff and stating question court should discharge or remand
him; Huntington v. Laldley, 176 U. S. 676, 44 L. 634, 20 Sup. Ot
529, holding direct appeal from Circuit Court to United States
Supreme Court on ground that Jurisdiction is in issue may be sus-
tained when record shown that question of Jurisdiction was only
point involved; Watkins v. King, 118 Fed. 531, 532, holding fact
that construction of Constitution of United States incidentally
arises in action in Circuit Court, does not deprive Circuit Ooort of
Appeals of Jurisdiction to review case on writ of error.

151 U. S. 329-333. Not cited.

151 U. S. 333-360. 38 L. 183. MEDDAUGH v. WILSON.
Syl. 3 (XII, 495). Expenses of administering trust
Approved in Read v. Memphis G. Co., 107 Tenn. 439, 64 S. W. 771,
holding under deed of trust conferring power for protection of bond-
holders, trustee is authorized to employ counsel in defending suit
assailing trust deed.

151 U. S. 3G0-3G8. Not cited.

151 U. S. 308-389. 38 L. 195. MERCHANTS' COTTON PBB88,
ETC.. CO. V. INSURANCE CO.

Syl. 4 (Xll, 497). Voluntary Joinder of parties.

Approved in Lake St. El. Ry. Co. v. Ziegfler, 99 Fed. 122. 124,
holding in action in State court by corporation against holders of
its stoi'k and l)onds. residents of other States, for an acccounting,
trustees in deed securing bonds were not necessary parties and their
Joinder did not dei>rive Federal court of Jurisdiction.

Syl. r> (XII, 497). Joinder determined by pleadhigs.

ApproviHl in Cireen v. Heaston, 154 Ind. 128, 56 N. B. 88^ holding
(K'titiou for removal of cause alleging residence at time of filing

Ql

Notes 00 U. S. ReportB, 151 U. S. 389-420

compfaint Instead of diverse citlzenslilp at thne of commencement
of action. Is Insufficient where citizenship is not shown by plead-
ing

Ssl tS (XII, 497). Removal of separable controversy.

Ai>iirored in Yaraell r, Felton, 102 Fed. 370, 104 Fed. 162. hold-
tag, mder act Congress 1S87-S8, providing for removal of causes
tnm State to Federal courts on account of diversity of citizenship,
Wlioation by one of two defendants of different citizenship from
plaintiff wIU not entitle party to removal,

87I 7 (Xn, 497). Removal by alien.

Approved in Paris inaon v. Barr, 105 Fed, 84, holding where there
li no separable controversy, It is not removable under judiciary act
1^7-88* on ground of diversity of citizenship, unless aU defend-
lati are nonresidents of State where action is brought; Roberts v,
Pacific, etc., Co., 104 Fed. 577, hoidlnjjf in euit against two defend-
tou where one is resident of different State and other is an atienj
Federal court has jurisdiction.

151 U. S. 3SQ-306, 38 L, 206, CALIFQRXIA POTV^DER WORKS V.
DAVIS.

SyL 2 IXII, 49S). State decision on nonfederal question.

Apjiroved in Gates v. Parmiy, 191 D, S. 557, 558. and Northern
C«t Ry. Co* V. Hering, 1S6 U. S. 481, 46 L. 1259. 22 Sup. Ct 944. both
folWwlDg rule; Hooker v. Los Angeles. 188 U. S. S17. 23 Sup. Ct.
8^ 47 L. 490, hoicliixir decision by Slate court that adverse claim
that under Mexican and Spanish grants owners were entitled to
ttpafiao rights Involves no Federal question: De Lamara Nevada
ii.il, Co. ▼, Nesbit, 177 U. S. 527, 44 L. 874, 20 Sup. Ct. 717, holding
lict ibut defeDdaut, In suit to qiiiet title to mining claim, claims
till* uuder loi'atlon under mining laws of United States, does not
ni*e Federal question which will sustain writ of error from United
^ten Supreme Court.

%l 4 (XII » 498J. Mexican land patent decision.

Approved In Chrystai Springs Lfiud, etc, Co, v, Los Angeles. 177
C. «. 1C9. 44 L, 720, 2u Snp, Ct. 573, holding suit to establisli wiiter
rIffMa connected with lands tncludiHl in Mexican grant claimed
wlilila protection of treaty wilJi Mexico, Involves no Federal quea-
tkm

151 U, S. 39^-420, 38 L. 208, POINTER v. UNITED STATESL
SfL I (XII, 4US\. Coustruction of Rev. Stat. § 1024.
DI«tJ]|giilftheil in Uoiled States v. Davis. 103 Fed. 471, holding
om ettftTK^ with conspiracy under Rev, Stat. U. S., § ijSOS, and
wttJi snitrder in connection therewith, may be acquitted of murder
■ad eonvfeted of conspiracy.

151 U. S. 42(M43 Notes on U. S. Reports. 432

Syl. 4 (XII, 499). Qualifications of Federal Jurors.

Approved in United States t. Davis, 103 Fed. 465, holding Federal
courts are not bound to follow practice of State courts in respect
to challenges in criminal cases.

Syl. 8 (XII, 499). Motive in criminal cases.

Approved in State v. Lucey, 24 Mont 300, 61 Pac. 996, holding
where State's theory was that homicide was committed for purpose
of robbing deceased of money, which defendant knew to be in
bank, amount of deposit was admissible to show motive.

Syl. 11 (XII, 499). Name of crime in sentence.

Approved in Long v. United States, 42 Fla. 516, 28 So. 777, hold-
ing, under section 2893, Rev. Stat Fla., it is not error to refuse
to quash indictment upon ground that it charges several distinct
felonies in several counts; People v. Murphy, 188 111. 148, 58 N. B.
985, holding verdict in murder case which read " We the Jury find
the defendant guilty in manner charged In the Indictm^t," Is
sufficient

(XII, 498). Miscellaneous.

Cited in United States v. Dietrich, 126 Fed. 670, holding two
persons cannot be severally charged in same indictment under
U. S. Comp. Stat. 1901, p. 1212, one with agreeing to recelTe and
the other to give bribe.

151 U. S. 420-436, 38 L. 218, GARNER v. SECJOND NAT. BANK.

Syl. 1 (XII, 499). Preference to wife in insolvency.

Approved in In re Neiman, 109 Fed. 116, holding where wife
places marriage portion received from her father In the hands of
her husband shortly before his insolvency, he holds the same in
trust for his wife; Blair State Bank v. Bunn, 61 Nebr. 469, 85 N. W.
529, holding where debtor sold land to one of his creditors for
value, subsequent sale to debtor's wife is valid.

Syl. 3 (XII, 499). Wife's lands in husband's name.

Approved In In re Garner, 110 Fed. 125. holding where wife
furnished one-half the money with which husband purchased farm,
and bond for deed was assigned to husband, upon Insolvency of
husband wife is not estopped from establishing her claim to half.

151 U. S. 436-443, 38 L. 224, LINCOLN v. POWER.

Syl. 2 (XII, 500). Reviewing motion for new trial.

Approved in Graves v. Sanders, 125 Fed. 693, holding denial of
motion for new trial by Circuit Court cannot be reviewed by Cir-
cuit Court of Appeals.

Syl. 10 (XII. 501). Charging Federal Juries.

Approved in Texas, etc., Pacific Ry. Co. v. Behymer, 189 U. 8.
4(i9, 23 Sup. Ct. 622, 47 L. 906, holding InstrucUon that It wus the

m U, S. 4I3-4T0 Notes on IJ. S. Reports.

433

f duty of injured employee to submit to all treatment that a reason-
able person would haye submitted to, Is not objectionable; Western
1 UttJoo TeL Co. r. Burgess, 108 Fed, 33, holding Rev. Stat, | £>14,
I reqolriijg practice In Federal court to conform to State statutes,
^^Ms not make statute that jury shall take on Its retirement all
^^pHtten tostmctlona, binding on Federal courts McLeod t. Spokane,
^wWtah. 349» 67 Pac. 75, holding charge tbat if ctty had ordlnanee
proTldlog for protection of cellars, it was duty of, to keep same pro-
tected, 1a not objectionable,

151 U, S. 443-452. Not cited.

181 U. B. 452-470. 38 L. 231, IMPERIAL FIRE INS, CO, v. COOS
CO.
Syl 1 (XII, 502). Insurance conti-act.

Approved In Delaware Ins. Co, v. Greer, 120 Fed. 921, holding
dted of clause ** loss If any payable to mortgagee as his Interest
loiy ^)pear,** Is to make mortgagee appointee of mortgagor; Petit
T. Genoaii Ins. Co., 96 Fed. d03, holding provision of insurance
|K>Ucy by which insurer warrants to keep 100 feet space cleair
rouDd building. Is not waived by knowledge that eoodltlon Is not
wrtaplled with; Boyer v. Grand Rapids Fire Ins. Co., 124 Mich. 460,
® N. W, 126, holding provision In Are policy agalust keeping
luollae <m premises is void if used in gasoline stove.
Syl. 2 (XII, 502). TermlDation of contract

Approved in National Surety Co. v. Ix>ng, 125 Fed, 802. holding
^ who commits first breach of contract cannot maintain action
Mvimt other party for suhsequeiit failure to perform; Union Cent,
life Ina, Co. r. Berlin, 101 Fed. 677, holding recovery on life la-
wffMce policy cannot be had whea insured failed to pay premium
ftoti it agreed.
Syl. 3 (XII, 502). Court cannot malte contract
Approred In Gross t. New York, etc., S8. Co,. 107 Fed. 520, hold-
^ ooort haa no powej to substitute ** prior in day of date to date
«f tBtry or report under this policy," for " prior in day of date
to UtU policy/* in insurance policy.
8yL 4 (XI t 502). Construction of ambiguous i>ollcIes,
Ap^rored In Ferrenbach v. Mutual Reserve Fund, etc., Aasa.,
121 Fed. IM8, 953. holding In conMrulng Insurance policy word
"notice" In clause that assessment should be payable ** withir
thirty <i«y» from date of each aotlce," means date from which Ii
liAVe been received; McMaster v. New York Life Ins. Co,, m
S78* holding where Interpolated clause in life insurance policy
leti stipulation in application which insured never saw.
ftttci will be given to provisions most favorable to Insured; Nor-
T. Thurlngia Ins. Co., 204 IlL 341, 346, 08 N. E. 553, 555. held-
VoL III— 28

151 U. S. 470-i83 Notes on U. S. Reports. 43^>^

ing where policy provided that it should be void if gasoline wa^ ^
kept on premises, insurer was not bound to show to relieve itselt^s
that loss resulted from such breach; Hoover v. Insurance Ck>.,
Mo. App. 118, 69 S. W. 44, holding under policy providing that i
should be void if building should be vacant for ten days wltho^
agreement, policy was void where building was vacant for mor
than ten days, after which it was occupied; Gardner v. Souther
R. R.. 127 N. C. 297, 37 S. E. 329. holding bill of dading containii
reduced valuation clause In action for loss of shipment by carri^ j
being unreasonable is void; Hinkle v. Southern Ry., 126 N. G. 939, "iT*
Am. St. Rep. 689, 36 S. E. 350, holding where contract for shipmeHr -s
of cattle provides that shipper will give notice of damage Deforce
removal from destination, failure to give the notice where he sign^ __i
receipt at destination under protest, will not preclude recover-^^
Grabbs v. Farmers*, etc., Ins. Co., 125 N. O. 398, 34 S. E. 590, hodZI
ing in construing insurance contract, construction most favorable
insured should be given; dissenting opinion in Insurance Co.
Burget, 65 Ohio St. 126, 61 N. E. 714, majority holding stiinilatiE ^s
in policy of fire insurance that it shall become void if any char^^M
takes place in location of property, may become subject of col^c^
struction over word ** void." See 80 Am. St Rep. 309, note.

(XII, 502). Miscellaneous.

Cited in dissenting opinion in Phenix Ins. Co. v. Guarantee Ca, -^^
115 Fed. 969, majority holding answer in application to surelji ^
company for bond that cashier would be indorsed ** For deposit,** '^
and deposited in bank, was complied with where employer exercised
reasonable diligence in having them done.

•151 U. S. 470-483. 38 L. 238, COLUMBUS SOUTHERN EY. T,
WRIGHT.

Syl. 3 (XII. 503). State taxation of railroad property.

Approved in American Supir Refining Co. v. Louisiana, 179 U. S.
D5, 45 L. 105, 21 Sup. Ct. 46, holding manufacturer engaged in re-
fining sugar is not denied equal protection of the law because
La. Const. 1879, art. 206, imposes license tax on him and exempts
those refining products of their own plantations; Kansas City. etc..
U. R. Co. V. King. 120 Fed. 623, holding where assessment of rail-
road property by State is valid on its face, and assessment becomes
iion. Federal court has Jurisdiction of suit to inquire into validity
of assessment; Oregon, etc.. R. R. v. Jackson Co.. 38 Or. 606, Gl
Viu\ 312, holding value of railroad track for taxation can only be
ilotermined by looking to elements on which financial condition of
company depends; .Tackson v. Corporation Comm., 130 N. C. 420, 42
S. E. 135, holding under niacliinery act (Pub. Laws 1901, chap. 7>,
5§ 43, 50, providing for assessment of railroad property, duty of

%

Notes on U. S. Reports. 151 U. S. 4S3-520

oration commissloD in fixing method of asseaftment Is not dls-
sdooaij; Standard Oil Go. v. SpartaDburg, 66 S. C. 44, 44 S. E.
?» bolding ordinance requiring dealers In oils to paj license, bnt
tempting dealers handling oils on which license has been paid,
tmcons ti tn tl onaL

.1 U. S. 48^-406, 38 L. 244, De ARNAUD v. UNITED STATES.

SyL 1 (XII* 504). Receipt to government as bar.

As^nyred Id Chicago, etc., Ry. Co. w Clark. 178 U. S. 360. 44 L.
:0r* 20 Sup. Ct, 930, holding receipt in full ig bar to any further
in abaeDce of allegation that it was given in Ignorance of
m purport-

Syt 4 (XII, 504). Statute of Liniiratians.

.Apiprofred In McCutchen t. Currier, 94 Me. 3tI3, 47 Atl. 923, hold-
^ when party was not insane when cause of action accrued, plaln-
^'% action is not taken out of general rule of limitations by Me.
ST. Sut.. chap. 81, § SS.

Kl U. S. 496^20, 38 L. 248, GALVESTON, ETC., RY. v. GON-
ZALES,

SyL I (XII, 504). Reviewing — Circuit Court's jurisdfcUon.

Approved In Rlcordl v. John Church Co., 114 Fed. 1023, reaffirm-
^ruie,

?yL 3 (XII, 5(>4). Citizenship of corporation.

A|»proved in Weiler v. Pcnosylvania R, R. Co., 113 Fed. 503,

^dlag corporation incorporated in Colorado 1b Dot *' Inhabltaat "

*f*ll8lrict of Colorado within act Cougi^ess March 3, 18U7, relat-

to saitB for infringements of patents; Piatt v. Massachusetts

Eitate C3o., 103 Fed. 707. holding corporation which has com-

Wllh law of another State by appoint lug person therein upon

process may be served, does not txK'ome citizen of tliat State

purpose of jurisdiction.

Syl, 5 (Xn, 505). Jurisdiction in suit against corporation.

Approv^Kl In Eddy v. Cases, 118 Fed, 3fi4, 3G5, holdlag suit by

<iti»en of United Slates ajsainst citizen of foreign country, residing

in iJtaie of suit, is not removal>le by defendant on ground of

•Jkm^ under Judiciary act of IHST (24 81jiL rM2); Pacihc. etc., Ins.

Co^ V. Tompkins, lol Fed. 544, holding pi a In tiff who had previously

r«ildf«d In Wc«t Virginia but who subseiiueutly niovetl to Virginia

SBd aflifrvranS determined to teturn to West Virginia, but Itefore

hiB rtiODfiil commenced an action in Circuit Coiu^t of United States

iJi Wf*t Hgnliist California coriionition, was not a rcriident

of W«c aoyd V. Blue Rld^^e Ry., 05 S. C. 328, 43 S. E. Sl^

milrooU conjpanj may De jsncd in county in which president

161 U. S. 620-571 Notes on U. S. Reports. 430

and auditor have their offices in absence of evidence that prin-
cipal place of business is elsewhere. See 86 Am. St Rep. 923, note.

161 U. S. 620-4527, 38 L. 257. HEDDBN v. ROBERTSON.

Syl. 1 (XII, 505). Customs duties.

Approved In Knowlton v. Moore, 178 U. S. 93, 44 L. 990, 20
Sup. Ct 768, holding progressive rate features of war revenue act
of June, 1898, §§ 29, 30, is not unconstitutional.

151 U. S. 627-542. 38 L. 269, NEWPORT LIGHT CO. V. NEWPORT.

Syl. 1 (XII, 505). Court's cerUficate.

Approved in Home for Incurables v. New York, 187 U. S. 158*
23 Sup. Ct. 80, 47 L. 119, holding certificate of chief Justice of
State court that Federal question is involved, is insufficient to
confer jurisdiction on United States Supreme Court

(XII, 505). Miscellaneous.

Cited in Hibben v. Smith, 191 U. S. 325, holding finding of State
Supreme Court that assessment is voidable, is conclusive on United
States Supreme Court.

151 U. S. 542-555. Not cited.

151 U. S. 550-571, 38 L. 2G9, NEW YORK, ETC.. R. R. V. BRISTOU
Syl. 2 (XII, 506). Abolition of railroad grade crossing.
Approved in New Yorlv, etc., R. R. Co. v. McKeon, 189 U. S. 509,
23 Sup. Ct. 853, 47 L. 922, reaffirming rule; Wheeler v. New York,
etc., R. R. Co., 178 U. S. 324, 44 L. 1087, 20 Sup. Ct 950. holding
condemnation of property under special statute for abolition of
grade crossings Is not taking of property without due process of
laws because city must pay part of the expense and number of
tracks Is Increased by the statute; New York, etc., R. R. Co. v.
Wheel er, 72 Conn. 488, 45 Atl. 17, holding legislature has power to
compel removal of grade railroad crossings, and the power to com-
pel the payment of the exi)ense of the removal either by the railroad
or the city; Fair Haven, etc., R. R. Co. v. Pair Haven. 75 Conn. 453,
53 Atl. 1)G5, holding Spec. Acts 1895, p. 505, Conn., requiring street
railroad company to pave nine feet of width of street Is within
power of suite to amend Its charter; Chicago v. Jackson, 196 UL
502, G3 N. E. 1015, 1135, holding municipality has right to require
railroad to elevate its tracks so as to avoid grade crossings on
streets; Providence, etc., SS. Co. v. Fall River, 183 Mass. 542, 67
N. E. tVlS, holding Statute 1890, p. 463. chap. 428, relating to rail-
road grade crossings. Is constitutional; Detroit, etc., R. R. v. Com-
missioner, 127 Mich. 234, .% N. W. 846, holding, under Mich, act 1893,
No. 171, § 5, authorizing railroad commissioner to provide safe

la;

Notes on U. S. Reports.

151 U. S, 572-586

fuanls at railroad crossings, where steam railroad crossed ao exist-
tfif ftreet railroad, commissioner mnj require street railroad to
p«f portion of expense of building safeguard.

SyL 4 (XII, 507). GoTernmental power of self-protection.

Approved In Macon St R. R. t« Macon, 112 Ga. 7S7, SS S. E. 62.
Iiolding city has power to compel street railroad company to remove
its tracks from the side to the center of the street

SjL 5 (XII, 5<y7). Reservation of power to alter <rharter.

Approved In Stanislaus Co. v. San Joaquin, etc, Co., 192 IT. S.
212, 24 Sup, Ct 245, holding reduction of water rates so as to give
laaoil Income of 6 per cent, on then value of property, does not
UMMmt to a taking of property without due process of law; Looker
T. Miynard, 179 U. S. 52, 45 L. 82, 21 Sup. Ct 23. holding statute
permitting each stockholder of corporation to cijmulate his votes
npoD one or more candidates for directors (Mich. Pub. Acts 18S5,
p. llti), is within power reserved by State Constitution to amend
or repeoJ fnture acts of Incorporation; Union Pac. Ry. v. Mason
Dty, etc.. Ry., 128 Fed. 238, holding reservation of power to change
cbtrtsr, authorizes legislature to make any change which does not
^ vested rights; Newburyport Water Co. v. Newburyport, 103
^s7, holding where franchise to private corporation to erect
witerworks to supply city with water is not exclusive, subse-
quent grant to city of right to build competing works Is not tak-
iDf property without due process of law; Matthews v. Board of
OtarponitJon Comrs., 97 Fed. 4(M, holding N. C. act of 1899, creating
itite corporation commission, giving It the right to regulate rall-
rotd rates, operates as a repeal of charter pro tanto which vests
camptiiy with exclusive power to fix its rates; dissenting opinion
I8 State T. Hann, 61 Kan. im, 50 Pac. 347, mmjority holding chap-
tff 145. Laws 1897, Kan., relating to payment of wages of laborers,
It aot exercise by legislature of power to alter corporate charters.

!» a 8. 672-576. Not cited.

m a S. 57T-586, 38 L. 27G. UNITED STATES V. THOMAS.
8yL S (XU. 50S), TlUe of school lands.

Ai^prored In Minnesota v. Hitchcock, 185 U. S. 392, 46 L. 9^,
S Slip. Ct 068, holding State of Minnesota has no Interest in any
^ the lAOds Included In the cession by Chippewa Indians in Miu-
0f all their title and interest In unsurveyed and unallotted
Suite V. Columbia George. 39 Or. 136, 137, 65 Pac. HOT,
under act of Congress March 3, 1885, providing for trial of
committing murder within limits of any Indian reservif-
lo Federal courts, an allottee of Umatilla reservation charged
vltb intirder could only be tried In Federal courts.

151 U. S. 586-638 Notes on U. S. Reports. 438

151 U. S. 586^7, 38 L. 279, MAXWELL LAND-GRANT CO. T.
DAWSON.

Syl. 5 (XII, 509). General repute in adverse possession.

Approved In Lush v. Pelter, 101 Va. 794, 45 S. B. 334, holding
party claiming by adverse possession may show that land was
generally reputed to belong to him.

Syl. 6 (XII, 509). Burden of proof in ejectment

Approved in, Waggoner v. Dodson, 96 Tex. 421, 73 S. W. 618,
holding where subsequent deed recited loss of former deed. It can-
not be presumed that prior deed was to grantee in subsequent deed;
Virginia Coal, etc., Co. v. Keystone Coal, etc., Co., 101 Va. 730, 45
S. E. 293, 294, holding where plaintiff in ejectment claims under
Junior patent from State and defendant claims under senior patent
including excepted lands, burden is on plaintiff to locate excepted
lands. See 95 Am. St Rep. 672, note.

(XII, 508). Miscellaneous.

Cited in In re Taylor, 102 Fed. 730, holding where answer to
petition in proceedings in involuntary bankruptcy alleges bank-
rupt is not insolvent and case is submitted on pleadings, adjudlcft*
tion of bankruptcy is error.

151 U. S. 607-026, 38 L. 286, SHAUER v. ALTBRTON.

Syl. 1 (XII. 509). Assignment of error.

Approved in Atchison, etc., Ry. Co. v. Phipps, 125 Fed. 480,
holding in order to reverse Judgment for rejecting evidence It
must be shown that ruling was injurious.

Syl. 3 (XII, 510). Notice to grantee of fraud.

Approved in Southern Bldg., etc., Assn. v. Miller, 110 Fed, 3d.
holding where mortgagee insured property upon failure of mort-
ga^ror to do so, loss by fire and insolvency of company, the facts ^
con»tituted no defense to a foreclosure; Columbus, S. & H. R. R. «
Co. Appeals. 109 Fed. 206, holding under facts of this case purchaser^
was put ui)on his inquiry as to title of vendor.

Syl. 4 (XII, 510). Scrutinizing transaction.

Approved in Vanslckle v. Wells, Fargo & Co., 106 Fed. 24, hoid-.^
ing debtor may give preference to member of his family to wboiKis
he is Justly indebted by conveying property to him, although incx:
solvent: tStuderbaker Bros. Mfg. Co. v. Zollars, 12 S. Dak. 30#-^
81 N. W. 20:^. holding chattel mortgage given to relative for bon^^cj
fide Indebtedness is valid as against Judgment creditor.

151 U. S. 626-<»S. 38 L. 292. BUGKSTAFF v. RUSSELL.

Syl. 5 (XII. 510). Exclusion of answer of witness.

Distingulsheil in Farwoll Co. v. McGraw, 13 CJolo. App. 472, 50
Pac. 2:^{. holding in attachment action on issue as to tmth of
attachment affidavit that defendant had fraudulently disposed of

19 Notes OD U. S. Reports. 151 U. S. a3&-ST2

hii property It Is not error to Biistain objection to qiiestloD as to
whether defeudiLDt bad made sales for less than cost from stock
owned by him prior to purcbase from plaintiff.

151 D. S. 639-658, 38 L. 297. BRYAN v. BOARD OF EDUCATION.
SjL 3 (XII. 511). Supreme Courrs coastruction of contract
Approved In Stearns v, Minnesota, 179 U. S. 233, 45 L. 170, 31
8opk Ct 77. holding competency of le^slature to make contract
tan meaning thereof are matters which United States Supreme
Owrt miiBt determine for itself on writ of error to State court

ISl U. 8. e58-6rr2, 38 L. 305, DOWER t* RICHARDS.
8yl 1 (XII, 511). Mineral lands.

Approved In Larned v. Jenkins, 113 Fed, 637, holding one who
dtecttvers and locates lode mining olalm, under act of IStiG, tliereby
ri^uoimoea all rights to follow his lode on Ita course beyond exte-
rtor liaes of patented claim when he locates upon surface; Cleary
T. Skimch. 28 Colo. 368. (55 Pac, 61, SO Am. St Rep. 211, holding,
ofliler aection 2333, Rev. Stat, describing " known lodes." It must
*ppear that lands embrace veins known at the time of grant to
fe wifflciently valuable for minerals to Justify expenditures for
otnctioQ.
8yl 2 (XII. 511). Reviewing facts by Supreme Court
Approved In Nashua Savings Bank v. Anglo-American Co., 1S9
^' »S. 232. 23 Sup. Ct 519, 4T L. 787. holding where bill of excop-
^ dot's not show that it contains all the evidence, presumptiou
^ tiiat there was evidence to supply any defect in respect to
Wnt lii:volved; Elliott v. Treppnor. 187 U. S. 334, 23 Sup, Ct
^ 47 L, 203. holding Judgment that person la not a bank-
et entered on verdict of not guilty under 30 Stat at Large,
^i chap. 541. U. S. Com p. Stat ItXH. p. 3429. is reviewable
^^ by writ of error; Bement v. National Harrow Co,, 186 U,
^ 83. 46 U 1066. 22 Sup. Ct 752. holding findings of fact in
^*1^ la equity In State court are conclusive upon Supreme Court
,^^ writ of error to that court; VVeetern Union Tel. Co. v. Call
^blkhlng Co,, 181 U. S. 103, 45 L, 771, 21 Sup. Ct 565. holding
^^ttttoHA of fact once settled In State court are not subject to re^
^1«w In United States Supreme Court on writ of error.

8jL 3 (XII. 511). Writs of error and appeals.
UMfifcred In Simooson v. Stnshelmer. 100 Fed. 429. holding on
BVPvfoxm order adjudging defendant a bankrupt appellate court
I ^>iy review law and facts.

' IXII. 512) Facta not reviewable on error.
ved Id Gardner v. Bonestell, 190 U, S. 370. 45 L. 577, 21
'*i^op. Ct 402, holding Supreme Court of United States wiE not
rtrtew decision of State court on qnestloos of fact

151 U. S. 673-710 Notes on U. S. Reporte. 440

Syl. 7 (XII, 512). State decision reviewable by Federal court
Approved In De Lamar's Nevada G. M. Co. v. Nesbitt, 177 U.
S. 529, 44 L. 874, 20 Sup. Ct 718. holding mere fact that defend-
ant in suit to quiet title to mining claim claims title, under loca-
tion made under general mining laws of United States, is not suffi-
cient to raise Federal question which will sustain writ of error.

151 U. S. 673-710, 38 L. 311, MARTIN v. BALTIMORE, BTC!, R. R.
Syl. 2 (XII, 512). Nonresident under act 1887.

Approved in Winkler v. Chicago, etc., R. R. Co., 108 Fed. 300.
holding, under act March 13, 1887, "nonresident of that State ••
for purpose of removal must be citizen and resident of another
State.

Syl. 5 (XII, 513). Removal by corporation.

Approved in Goodwin v. New York, N. H. & H. R. R. Co, 124
Fed. 358, 361, holding corporation incorporated in MassachuBetts
and Connecticut cannot be sued in Massachusetts by a dtixen
thereof; Seattle Gas, etc.. Electric Co. v. Citizens' Light, etc.
Power Co., 123 Fed. 5^, holding New Jersey corporation having
no charter to engage in manufacture of gas has no power to en-
gage in such business in another State; Howard v. Gold Reefs
of Georgia, 102 Fed. 658, holding fact that corporation Is corpora-
tion of a particular State and that it carries on business there
does not overcome presumption that It is nonresident thereof and
entitled to remove suit against it by citizen of the State; SIdwaj
V. Missouri Land, etc., Co., 101 Fed. 488, holding court of equity
in Jurisdiction where foreign corporation has situs for transaction
of business is without jurisdiction to appoint receiver; Wlllson
V. Winchester, etc., Ry. Co., 90 Fed. 644, holding action between
citizen of West Virginia and railroad company citizen of Maryland,
brought in West Virginia', is removable to United States courts;
Debnam v. Southern, etc., Tel. Co., 120 N. C. 840, 36 S. B. 274,
275, holding foreign corporation which has become domestic cor-
poration by compliance with N. C. Pub. Laws 1890, cannot re-
move cause to United States Circuit Court when sued by resident
of North Carolina; dissenting opinion in Calvert v. Railway Co.,
64 S. C. 154, 41 S. E. 968, majority holding corporation Incorpo-
rated under laws of another State is nonresident of South Caro-
lina for purpose of removal, although it has complied with act
March 19, 1806. See 85 Am. St. Rep. 921, note.

Syl. 7 (XII, 513). Time for filing removal petition.

Approved In Mutual Reserve, etc., Assn. v. Phelps, 190 U. 8.
159, 23 Sup. Ct. 710, 47 L. 995, holding Federal court is without
jurisdiction to enjoin State court in removal proceedings where
such proceedings are regarded by State court as supplemental to

Ml Notes on U* S. Reports* 161 U. S, 673-710

execntJoo: Hodge v* Chic&go, etc., Ry. Co*» 121 Fed. 51, holdiRg
designation of district as southern instead of eastern in petition for
remoTal U Immaterial; DInet v. Delavan, 117 Fed. 979, holding
petldon for removal cannot be amended wiiere record does not
liiow grooxid for removal: Fidelity, etc., Co. v. Hubbard, 117 Fed.
96>1, 952, holding, under 24 Stat 554 and 25 StaL 435, regulating
itnusml of causes, and Code Va. 1887, |f 3260 and 3284, providing
for fiUng plea In abatement, etc, petition for removal after nisi
)Qdpnent is too late; Head v. Selleck, 110 Fed. 786, holding, under
dedilons of Supreme Conrt of Connecticut, petition for removal
flUM be filed on or before opening of court on day following re-
tail day of writ; Winkler v, Chicago, etc., Ry. Co., 108 Fed. 307,
folding, under Laws Indiana, petition for removal after demurrer
OTsniled is too late; Case v. Oiney, lOG Fed, 4^4, holding, under ad
Coiigre»a^ August 13, 18S8, declaring when petition for removal must
be aied, and section 416, Code Civ. Proc, Cal„ declaring voluntary
ippearance equivalent to service, after demurrer filed petition for re-
BOTal l8 too late; Pennsylvania Co. v. Leeman, ICO Ind. 21, m
X. E» 50, holding petition for removal, under Indiana laws, must
be tiled at or before time to plead; Olds v. City Trust Safe De-
PCiJt, etc^ Co,, 180 Mass. 2, 61 N. E. 223, holding, under Stat. U.
t lfi88^ ebap. 866. S 1, petition for removal filed more than thirty
^ji from return day Is too late; Springs v. Southern Ry., 130 N.
C 200, 41 S. B, 105, holding where petition for removal did not
^Ktttln necessary jurisdictional averments for removal amendment
thipeto to Federal court will not operate as a retention there;
Malr V. Preferred, etc.. Ins, Co., 203 Pa. St. 341, 53 Atl 159, hold-
^1 where State court makes order removing cause before expl-
nilon of time within which defemlant is bound to file aflidavit
«t defense ajid after expiration of such time rescinds order It can-
tot render judgment for ffiJlure to file affidavit.

iHitteguished In Dalton v. Milwaukee Mechanics' Ins. Co., 118
^•d, 862» 883. holding where petition for removal fails to show
^•^ Beeeflsary to divest State court of Jurisdiction amendment
•■ Ftderal court is not allowed.

M 0 (XII, 514), Defective Jurisdiction.

*ipI»roTed in Virginia, etc.. Chemical Co, v. Sundry Ins- Cos., 108
fni, 453, following rule; Great Southern, etc., Co. v. Jones. 177
r. & 454, 44 L. S44. 20 Sup. Ct. m2, holding limited partnership
•mditlOD created under Pa. Laws 1874, p. 271, Is not deemed
rittoB of that Stat© umler Federal Constitution which extends
ffderal jorlsdlctlon to controversies between citizens of different
iEllcv: Empire MIn, Co. v. Proijcller, etc., Co., 108 Fed. 902, hold-
tar rtlfht of defendant by Judiciary act of 1&S7-8.H, to be sued in
Alftrlct wbeiB he or plaintiff resides, la personal privilege which

151 U. S. 673-710 Notes on U. S. Reports. 442

he may waive; Hadfield v. Northwestern Life Assur. Co., 105 Fed.
532, holding removal from State to Circuit Court Is not defeated
by naming District Court in bond and petition and securing order
to District Court

Syl. 10 (XII, 514). Waiver of lateness of petition.

Approved in Guarantee Co. of North Dakota v. Hanway, 1(A
Fed. 374, holding time and manner of removal of suit from State
to Federal court are waived by proceeding to trial on the merits.

Syl. 11 (XII, 515). Survivor of cause of action.

Approved in In re Connway, 178 U. S. 426, 44 L. 1136, 20 Sup.
Ct i>53, holding where defendant dies after filing complaint execu-
tor may be made party by scire facias under C S. Rev. Btat.,
§ 955; Sanders v. Louisville, etc, R. R., Ill Fed. 710, holding,
under Shannon's Code, §§ 4025, 4026, Tenn., giving right of action
for wrongful death, action abates upon death of statutory bene-
ficiary; Y-Ta-Tah-Wah v. Rebock, 105 Fed. 265, holding, under
Iowa Code, §§ 3443-3445, all causes of action survive; Webber t.
St Paul City Ry. Co., 97 Fed. 142, 145, holding Gen. Stat Minn.
1894. § 5912, applies to cause of action arising on contract or tort;
dissenting opinion in In re Estate Mayo, 60 S. C. 425, 38 S. BL
042, majority holding, under Laws South Carolina, cause of action
for doath caused by wrongful act is not survival of action whidi
decedent might have brought, and proceeds are distributable as
part of his estate.

Syl. 13 (XII, 515K Survival of tort action In Vh^nia.

ApproviHl in Tarton v. Brady, 184 U. S. 612, 46 L. 716, 22 Snp.
Ct. 494. holding cause of action to recover from collector of In-
ternal revenue sum i>aid him under protest, to protect inroperty*
from unlawful seizure, .survives death of defendant onder Va.
Code 18S7. § 20Cm.

Syl. 14 (Xll, 5151. Survival at common law.

Approvoil in dissenting opinion in Southern Bell TeL Co. t. Caasin,
111 Ga. Git!. 3G S. E. 898. majority holding receipt of compensation
by husbnud for injuries from which he died does not defeat right
of notion by wife for death.

Syl. 15 (XU. 515). Dismissal of appeal — Plaint! flTs death.

Approved in Uank of Iron Gate v. Brady, 184 U. S. S68, 46 U
74<\ 22 Sup. Ct. Xii\ holding judgment in action in tort on appeal
will be revorstHi when defendant dies aftw cause has reached ap-
pellate wurt.

(Xll. 512K MisiH-llamM>us.

CltiHl in Continental Nat. Bank v. Buford. 191 U. S. 120, h<ddlng
Judgukont of Circuit Court of ApiH^ils is final and not subject to
review by United States Supreme Court in action by national bank

SLIvely v. Bowlby,

152 U. S. 1-5S

i#ihBt corpora tion of another State; Murphy t. Payette Alluvial
Gold Co.. 98 Fed. 322, lioMing where petition for removal of cause
tm BtAte to Federal court does aot disclose ground for removal,
after doclieting In Federal court, that court has no power to grant
le*?e to imend petition by stating facta allowing right to remove.

CLII UNITED STATES.

152 U. a 1-58, 38 K 331, Sm VELT t. BOWLBY.
87I 1 (XU, 516). Supreme Com-t — State decisions — Federal

Ai>proTed in Hardin v. Shedd, 190 U. S. 518, 23 Sup. Ct 6S5, 47
^ 1167, reviewing decision of State court denying claim of United
Btatea patentee to lands originally under nouaavigable lake; King
^' St Louis, 98 Fed. 642, entertaining Jurisdiction where action
iiiToIved right to accretion, patent describing lands as lying on
we«t bank of Mississippi; Washougal Transp, Co. v. Dalles, etc.,
Nat. Co., 27 Wash. 40b', (IS Pac. 70, holding Federal decisions bind^
Jnirtipon State court as to title or right passing under United States
r«iit

hlgilnguished in Sweriogen t. St Louis, 185 U. S. 41, 43, 46 L.
"*% 22 Sup. Ct. 570, 571, dismissing for lack of Jurisdiction dtie to
*littTloa formed outside boundary only question Involved.

^7l 2 fXIl, 51t>). Tide waters — Land below high-water mark.

Approved in Cobb v. Commissioners of Lincoln Park, 202 111. 431,
^ *T7 X. E. 6, denying lake shore owner's right to build wharf
Qpoa submerged lands uoilesB owning same or having permission
frwn one having tiUe thereto.

%l 3 (XII, 51G). Navigable waters — Sovereign grants ^ —
BouBihirles.

Approved to Scranton v. Wheeler, 179 U. S. 157, 45 L, 135, 21
top. Ct 54, denying riparian owner compensation where access to
i^UUlty lost by construction of pier upon submerged lands;
tiil» Cent. R. R. v. Chicago, 170 U. S. mxi, 44 L. G27, 20 Sup.
Ct 514, denying railroad under charter the right to take possession
•abmergcfl lands of Lake Michigan: Stoekley v. Cissna^ 119 Fed.
dm^larlng land department's grant of river bed, left dry by
mice of course, as vacant land void; Montgomery v. Shaver, 40
Or. 24T, 00 Pac, 1)24, limiting owner's rights to wharf privileges

152 U. S. l-n58 Notes on U. S. Reports. 444

to lines drawn at right angles to thread of stream and intersecting
boundary lines at high-water mark; Washougal Transp. Co. v.
Dalles, etc., Nav. Co., 27 Wash. 4d7, 68 Pac. 77, holding govern-
mental grants carry only to high-water mark, though tract de-
scribed as bounded by meander line of navigable water.

SyL 4 (XII, 516). Kavigable waters — Wharves below high-water
— Purpresture.

Approved in Scranton v. Wheeler, 179 U. S. 168, 45 Jm 135, 21
Sup. Ct 55, denying riparian owner compensation for loss of ac-
cess to navigability incidentally resulting from construction of
pier by Congress; Cobb v. Commissioners of Lincoln Park* 202 111.
434, 67 N. E. 8, denying lake shore owner right to construct wharf
upon submerged lands granted by State to Lincoln park commis-
sioners.

Distinguished in Sullivan Timber Co. T. City of Mobile, 110 Fed.
192, enjoining ejectment by city against riparian owner to recover
shore and submerged land occupied by wharf, city acquiescing
In use.

Syl. 6 (XII, 516). Navigable waters — State rights.

Approved in Bliss v. Ward, 198 111. U3, 64 N. B. 707, uphold-
ing lake shore owner's right to have land filled in in front of lots
kept free from structures; Sullivan v. Callvert, 27 Wash. 606, 08
Pac. 3G5, holding owner of Improvements upon tide lands entitled
to have Improvement separately appraised and lands divided into
salable tracts with reference thereto; dissenting opinion in Scran-
ton V. Wheeler, 179 U. S. 182, 45 L. 144, 21 Sup. Ct 64, majority
distinguishing and denying riparian owner compensation for loss
of access to navigability resulting incidentally from pier erected
by Congress.

Syl. 7 (XII, 517). Navigable waters — Rights of new States.

Approved in Mobile Transp. Co. v. Mobile, 128 Ala. 346, 34^, 30
So. G46, sustaining ejectment by city claiming under legislative
grant against government patentee to recover river shore to high-
water mark; State v. Lake St. Clair Fishing, etc., Club, 127 Mich.
593, 87 N. W. 123, denying defendants* exclusive rights by adverse
possession to certain submerged land of Great Lakes valuable for
flsliing and hunting; New Whatcom v. Falrhaven Land Co., 24
Wash. 499, 60 Pac. 737, enjoining municipality at instance of
lower riparian owner from diminishing flow, although waters used
for necessary public purpose.

Distinguished in dissenting opinion In Kean v. Calumet Canal
Co., 190 U. S. 481, note, 23 Sup. Ct 660, 47 L. 1146, majority hold-
ing local and common law same as to conveyance from United
States of land bordering upon nonnavlgable streams.

145

Sblvely v. Bowlby.

152 U. S. 1-5!

SjL 9 (Xn» 517). Waters — Ownership of accretions.

Approved in Sullivan Timber Co. v. Mobile, 110 Fed. 193, boMing
iccretioag and alluTlon belong to owner of land bounded on waters
Independent of law governing title in submerged soil.

8yL 10 (XII, 517). Navigable waters — Riparian rights — State
iaws.

Approved in Hardin v. Shedd, 190 U. S. 519, 23 Sup. Ct 6^, 47
I* 1157, holding under lUinoia law conveyance of upland on non-
MTigaljde lake does not carry adjoining lands below water line;
NortberD Pacific R* R. Oo. v. Townsend. 190 U, S. 270, 23 Sup.
Ct ti72, 47 L, 1046, holding homestead entries not including right
of iny granted to railroad, although description in grant Included
pm thereof; Sullivan Timber Co. v. Mobile, 110 Fed. 1&5, 190,
enjoiidng ejectment by city to recover submerged lands occupied
by riparian owner with wharf; Cobb v. Commissioners of Lincoln
Park, 302 111. 435. 43C, 67 N. E. 8, denying lalte shore owner right
toboUd wharf upon submerged lands granted by State to Lincoln
Piik commissioners; State v. Lake St Clair Fishing, etc., Shoot-
tog Club, 127 Mich, 596. 87 N. W. 124, holding Staters rights in
lubmerged land of Great Lalies not lost by adverse possession;
toenting opinion in Kean v. Calumet Canal Co., 190 C. S. 4S3,
«:.^ SDp. CL 661, 663, 47 L. 1140. 1148, majority holding Indiana,
ander swamp land act September 28, 1850, acquired by grant of
l»n4 bordering on nonnavlgable lake all land under water up to
Stiie line; dissenting opinion in Scranton v. Wheeler, 179 D. S.
195, 107. 178. 179, 181, 45 L. 13S, 139, 143, 144, 21 Sup. CL 58,
<3, 6i majority distinguishing, denying riparian owner compen-
tttioa. where aecesa to navigability lost by construction of pier
«pOD ffubmerged lands by Congress.

8yl. 12 (XII, 518). Federal government -- Plenary power over
IMtorle«.

ApDtOTed In Downea v. Bidwell 182 U. S. 290. 45 L. HOT, 21
Ifljt Ct 788, holding constitutional provision, providing for uul-
ftainlty of duttea. Imposts and excises throughout United States*
aot ftppUcabie to Porto Rico: Jackson v. United States, 102 Fed.
#IK ttutalnJng Alaalsa Indictment concluding with words against
the peace and dignity of the United States.

SjL 13 (Xn, 619). United States — Territories — Land below

UCli witer.

Approved Id Heckman v, Sutter, 128 Fed. 395, an-d 119 Fed. 88»

ctl0g« nnder congressional act, right of occupancy of small

(ft tide lands oo coast of Alaska used for fishing puriKJses:

rs V, Parker, 127 Mich. 391. m N. W. 990, enjoining public

booting game upon marshy Inud surveycMl by general ^overn-

it. conveyed to State aa swamp land, and by State to privates

152 U. S. 59-71 Motes on U. S. Reports. 446

Syl. 19 (XII, 519). Navigable waters — United States — Lands
below high water.

Approved in Pacific, etc., Co. v. Packers' Assn., 138 CaL 636,
72 Pac. 163, holding right of fishery in open sea or where tide
ebbs and fiows is a public right exercisable by any citizen; State
V. Longfellow, 169 Mo. 124, 69 S. W. 378, denying riparian ownet
right to extend building beyond low- water mark in Missouri;
Jones V. Oallvert, 32 Wash. 612, 73 Pac. 702, holding State, dis-
claiming title to swamp lands. Is without Jurisdiction to sell sudi
land when same patented by United States iHrior to State's ad-
mission.

(XII, 516). Miscellaneous.

Cited in Hardin v. Shedd, 190 U. S. 520. 23 Sup. Ct 686, 47 L.
1158, to point that common law as understood by Supreme Court
and local law of Illinois applies to grants bounded by navigable
waters; United States v. Mission Rock Ck)., 189 U. S. 404, 23 Sup.
Ct 608, 47 L. 869, referring to prin(:ipal case for elaborate con-
sideration of title and dominion State acquires to lands under
tide waters by virtue of sovereignty; Leavy v. United States, 177
U. S. 630, 44 L. 918, 20 Sup. Ct 800, to point dam conatructed
under State authorization across nonnavigable stream, without per-
mission of secretary of war, is not illegal; concurring opinion in
Downes v. Bidwoll, 182 U. S. 304. 306, 45 L. 1113, 1114. 21 Sup.
Ct 793. 794. to point that inhabitants of territory acquired by
United States by discovery are not endowed thereby with citizen-
ship. See note, 92 Am. St Rep. 845.

152 U. S. 59-65. Not cited.

152 U. S. 65-71, 38 L. 35G, HUTCHINSON INVESTMENT CO. v.
CALDWELL

Syl. 1 (Xll, 520). Public lands — Heirs — Bastards.

ApprovtHl in Whitteubrooh v. AVheadon. 128 Cal. 152, 79 Am.
St. Uop. »54, GO Pac. GGo, holding United States patent to " heirs "
vests title in tliem in eiiual moieties without regard to Staters In-
Jioritaiico laws; Alston v. Alston. 114 Iowa, 32. 86 N. W. 56. sus-
taining partition suit by illejritimate child against lawful children
wlioro heirship not established in independent proceedings.

Syl. 2 (Xll, 520). Ileal property — Disposition governed by lex
rei sita\

Approved in lUythe v. Ilinoliley, 127 Cal. 436, 59 Pac 788. sus-
taining; State aet permitting aliens to inherit real estate within
its territorial tloniain.

(Xll. 52tn. Miseellaneons,

iMti^ in M'i'une v. Kssij;. 122 Feil. 590, refusing to remand suit
l\v uan^hter to recover interest in lauds patented, after death of
!5->niestead settler, to widow.

u:

Notes on U. S. Reports,

102 U, S, 71-107

152 U, B. 71'7T, 38 L, 358, PLANT INVESTMENT CO. T* JACK-

SOM'ILLE. ETC., RY.
Syl 1 (Xll, 520). Courts — Suits by assignees.

Approved in Virginia, eta, Cbemleal Co, v. Sundry Ins. Cos..
M Fed 455, 459, lioldlng action by B, upon policy issued to A.»
pajable to A, or B, as loss appears, A. disclaimiag interest, not
M actioa by assignee; Smitb v. Packard, 9S Fed. 797. entertain-
inf jurisdiction of action by plaintiff in attachment proceedings
upon bond taken by sheriff, autbough sheriff precluded on grounds
of cldieoship.

8yl 2 (XII, 520). Assignee within Federal court's Jurisdiction.

DIrtliigaished In American Colortype Co. v. Continentai Co., ISS
U. 8* 107, 23 Sup, Ct. 266, 47 L, 4U5. entertaining jurisdiction of
wit of New Jersey corporation^ assignee of Illinois corporation,
Sjainit Illinois employees upon contract of employment, employees
&«rreiag to substitution.

(Xn, 520)* Miscellaneous.

Cited tQ Cochran v. Cbilds, 11 Fed. 435, reversing decree sustain-
loj: 4enjurrer and dismissiug suit on merits where hill failed to
^n<*]re jorisdietioDal amount, and directing dismissal for want of
Ittnsdiction.

1S2 U. S. 77-81. Not cited,

152 U, S, 81-87, 3S L. 3fi3, LAZARUS v. PHELPS.

Sjl. 2 (XII, 520). Animals — OverstocUlDg — Liability for pas-
*w«j5e— Tfeias.

Approved in Monroe v. Cannon, 24 Mont, 324, 325. <il Pac. 805,
in lUawing recovery for pasturage, defendant's sheep herded upon
Piilii!ir« land; Cosgriff Bros, v. Miller, 10 Wyo. 223, t>8 Pac. 212,
tllowlog recovery where defendant willfully and Inlentionally drove
lift itocic upon anlnclosed lands of plaintiff and pasturing them
*4«W>li, See note, 81 Am, St Rep. 449. 450. 452.

bijfttaguighed In Walker v. Bloomiugcamp, M Or, 3I>2, 43 Pac,
1^ denying recovery, defendant permitting sheep in charge of
iMer to graze and pasture upon plain tiff's Inclosed lands.

252 U. S. 87^100. Not cited,

152 n, 8. 100-107, 38 L. 370, BELDING MFG. CO, v. CHALLENGE
COEXPLANTER CO.
8y!. 1 (Xll, 521). Patents ^ — Change in form, degree or propor-

tkUL

Aj/pfored lu Brammer v. Schroeder, lOG Fed, 921, holding patent

ftr Improvements in meaus of operating wasliing machine infrlitj^etl

If ilmllar combination of mechanical devices; National Hollow,

ftiu C<K T. Inierchangeable, etc.. Co., im* Fed, 711, holding Hlen*s

fstmt brmke-beam Infringed, although different form of caps used

L

152 U. S. 107-133 Notes on U. S. ReporiB. 448

and different devices employed to unite brake-head and brake-
beam; Plastic Fireproof Const Co. v. San Francisco, 97 Fed. 625,
holding substitution of sheets of expanded metal for woven wire
in artificial slate not involving invention.

152 U. S. 107-113, 38 L. 373, NORTHERN PAC. R. R. v. EVERETT.

Syl. 2 (XII, 521). Contributory negligence — Evidence — Jury.

Approved in Texas, etc., P. R. Y. Co. v. Swearingen, 122 Fed. 203,
holding switchman not chargeable with notice of iHroximity of
structure to track because open to ordinary obs^vation; Mason,
etc., R. R. Co. V. Yockey, 103 Fed. 267, holding defendant's negli-
gence in substituting imperfectly fitting wooden plug for valve
stem properly submitted to Jury; Klelne v. Freund's Sons' Shoe,
etc., Co.; 91 Mo. App. 106, denying recovery where servant injured
by hauling on frayed wire rope; Thompson v. Bartiett, 71 N. H.
176, 93 Am. St. Rep. 505, 51 Atl. 634, refusing to direct verdict
for defendant where plaintiff Injured by defective staging fur-
nished by employer; Linden v. Anchor Mln. Co., 20 Utah, 148, 58
Pac. 358, denying decedent guilty of contributory negligence in
failing to observe open chute.

152 U. S. 114-122, 38 L. 377, MISSOURI, ETC., RY. v. ROBERTS.

Syl. 2 (XII, 522). Indians — United States ~ Extinguishing pes-
sessory rights.

Approved in Lone Wolf v. Hitchcock, 187 U. S. 566, 23 Sup. Ct.
221, 47 L. 306, sustaining congressional action disposing of trilMU
land, although in manner contrary to provisions of former treaty.

Syl. 4 (XII, 522). Public lands set aside for Indians.

Approved in Minnesota v. Hitchcock, 185 U. S. 391, 46 L. 964,
22 Sup. Ct. 657, refusing to enjoin land office from selling Red
Lake Indian reservation, reservation not passing under school grant
to State.
152 U. S. 122-133, 38 L. 381. THE MAIN v.' WILLIAMS.

Syl. 1 (XII, 522). Shipping — Limited liability act

Approved in Pacific Coast Co. v. Reynolds, 114 Fed. 882, deduct-
ing ^,867.47, for prepaid freight, wharfage and advance charges
before benefit of limited liability statute secured.

Distinguished in In re La Bourgogne, 117 Fed. 264, 266, holding
owner, in limiting liability proceedings, need not deposit freight
money earned on preceding trip from Havre to New York, collision
occur^^ng on return trip.

Syl. 2 (XII. 522). Shipping — Freight — " Pending " defined as
compensation.

Approved in The Jane Grey, 99 Fed. 591, refusing to allow de-
duction from gross amount of freight and passage money pending
expense incurred for voyage.

m

Nates on U. S. Reports. 152 U, S. 133-144

{XH, 522). Mlfoellaneous.

Cltad to In re Eureka No. 32, 108 Fed. 674, to point that proceed-
io|v to Umlt liability are not malntfiinable where alngle claim

152 U. a 13S-144, 38 L, 385. LAWTON v, STEELE.

SjL 1 (XII, B23). Police powers detoed.

ipprored In Callforcia Reduction Co, v. Sanitary Reduction
^ork«, 126 Fed. 35* 39. sustaining city ordinance granting exclusive
rt^lit to prlrate corporation to remove garbage; Commoowealttj v.
fear, 183 Mass. 246, 66 N. E. 721, holding act authorizing city
^j&nl of health to require vaccination of all Inliabitants valid;
Mit« V. DaltoD, 22 R I. 80, 46 At!. 235, declaring act prohibiting
Me af trading stamps unconstitutional; St Louis, etc., Ry. v.
WUi. 20 Tex. Civ. 459, 49 S, W. G31. holding Tex, live stock
Itw and proper regulations thereunder by sanitary commission not
TWtdTe of Federal Constitution.

Sjl 3 (XII. 523). Police regulation must he reasonable.

Approved In Jew Ho v. Williamson, 103 Fed. 20. holding quar-

tnttae established by board of health imreasoDable and unneces-

i»Tjr under circumstances of case; Fair Haven, etc., R, R. v. Fair

Hiven, 75 Conn. 451, 53 Atl. 9G4, holding act requiring street rail-

waji CO reimburse mnnieipailty for cost of pavlnj^ portion of street

•erupted by traclts constitutional; State v. Dalton, 22 R. I. SI.

-•8 Atl- 233, declaring act prohibiting use of trading stamps uncon-

idtttUonal; State v. Kreutzberg, 114 Wis. 539, 90 N. W. 1102. 91

Jlm. St- Rep, Wl, declaring iinconBtitutlonal statute prohibiting

I Alebftrge of an employee because a member of labor organization;

I mtB^ting opinion In People v. Butfaio Fish Co., 164 N. Y. 112. 58

t 3t E. 41, majority upholding State law prohibiting possession of

I certain flsb during close season only so far as applicable to fish

lialCeiL from waters within State.

iji. 4 (XU, 624). Police power not arbitrary.

Approved m Otis V. Parker, 187 U. S. 60S, 23 Sup. Ct 169, 47
L. 227, itist&inlng State constitutional provision declaring contracts
for sale at capital stock on margins void; Republic Iron & Steei
rCSot r. Bute. 160 Ind. 386» 66 N. B. ia>T. declaring unconstitutional
I act providing for weekly payment of wages and prescribing a pen-
I Ally for violation thereof; State v. Biggs, 133 N. C. 738, 46 S. E. 404,
htm prohibiting practicing medicine without license not
IBIP to cafle of one curing diseases by natural methods, such
■ge, etc.; Young v. Commonwealth. 101 Va. 870. 45 S. E. 331,
f toraild act prohibiting use by merchants of '* trading
!,•• See notes, 92 Am, St Rep. m; 78 Am, St Rep. 257.
Vol III — 2a

152 U. S. 145-156 Notes on U. S. Reports. 4

Syl. 5 (XII, 524). Fish nets — Unlawful use — Nuisances.

Approved In Lincoln y. Janesch, 63 Nebr. 710, 80 N. W. 281, decL
Ing valid, statute imposing upon lotowners duty of repairing sL
walks adjacent to premises; People v. Buffalo Fish Co., 164 N.
105, 79 Am. St Rep. 629, 58 N. B. 38, upholding law prohibit:
possession of certain fish during close season only so far as
pllcable to fish taken from waters within State; State v. Kie%
berg, 114 Wis. 549, 90 N. W. 1105, 91 Am. St Rep. 049, decdari
unconstitutional statute prohibiting the discharge of emploj
because he is a member of a labor organization. See notei, '
Am. St Rep. 245, 246.

Syl. 6 (XII, 524). Nuisances — Legislative discretion.

Approved in State v. Dow, 70 N. H. 287, 47 Aa 734. holdii
statute prohibiting persons from engaging in business of flshii
for trout within State waters constitutional; Railroad Go. y. Kelt
G7 Ohio St 2{M, 295, upholding section 3342, Rev. Stat Ohio, requ!
ing railroads to construct ditches to conduct away accumulat
water, when such water Is detrimental to public health. See noi
79 Am. St. Rep. 633.

152 U. S. 145-156, 38 L. 391, SOUTHERN PAC. CO. v. SELBY.
Syl. 1 (XII, 524). Negligence — Use of unblocked frogs.

Approved in Gilbert v. Burlington, etc., Ry., 128 Fed. 531, den
ing recovery, plaintiff negligent in making coupling, concedii
without deciding company negligent In permitting guard-rail
become unblocked; KUpatrlck v. Choctaw, O. & G. R. R. Co., 1
Fed. 13, denying recovery where sole ground relied upon was falln
of company to block frog; King v. Morgan, 109 Fed. 450, hold!
employee assumed risk in using tamping bar while engaged
blasting in mine.

Distinguished in Hunt v. Kane, 100 Fed. 260, hoidlfig ralhrc
liable where blocked frojrs used, but were allowed to become wm
out from want of proper repair.

Syl. 2 (XII, 524). Master and servant — Knowledge of defect
appliances.

Approved in St. Louis Cordage Co. v. Miller, 126 Fed. 500, 5i
512, holding woman barred from recovering for injuries received 1
uncovered cogwheel, where wheels uncovered for six weeks prt
to accident; Johnson v. Southern Pac. Co., 117 Fed. 464, and Hodfl
V. Kimball, 104 Fed. 752, both holding brakeman assumed cUk C
coupling cars of different construction; dissenting opinion in 9
Louis Cordage Co. v. Miller. 12() Fed. 519, majority holding womi
barred from recovering for injury to hand, cogs uncovered for il
weeks before accident.

\

:e52 r a isT-ieo. as l. smv, el paso watee co. v. el paso.

Syl 2 (XII, 525). Appeal — Jurisdictional amount affirmatively
appearing.

Approved In Caffrey v. Oklahoma, 177 U. S, 349. 44 L. 801, 20
Slip, Ct 06»j, d is In is sing appeal by county clerk wbo refused to
4btj nmndate to act u|H>n Increased assessment of board of equal-
iBtioo, clerk not pecuniarily interested; Elverside & A, Ry. Co. v,
Blrerslde, 118 Fed. 743, sustaining demurrer on Jurisdictional
ffomids where value of complalnant*s rights under contract not
ifflrmatiTely appearing; Slavens v. Northern Pacific R. R. Co., 97
Fed. 263, denying recovery; Beetionmau killed by landslide dye IQ
improper drainage, danger apparent

SjL 4 (X1I» 525). Master and servant — Assumed risks.

b Approved In Kenney v. Meddaugh, 118 Fed. 212. holding fireman
Kxned risk of proximity of track to mall crane.
_ I>t8tin^lshed in Northern Piie. Ry, Co. v. Tj'nan, 119 Fed. 292,
'UiUiniiig refusal to direct verdict for defendant^ coupllngB in poor
^Ir. old^ not generally In use and unusually dangerous to connect.

MV. 8. ieo-172, 38 L. 398, MONTANA CO. T. ST. LOUIS MIN,,
ETC . CO.
8yL 3 (XII, 526). Due process — Right of appeal, jury, bond.
proved In James v. Appel, 192 U. S. 137, 24 Sup. Ct 224,
'Oboldlog enactment providing that motions for new trial are
^aed overruled unless acted on before end of term.
Syl 4 (Xll, 526), States — Statutory power — Equity practice.
%ro^ed In State v. District Court 28 Mont 54ti, 7a Pac. 237,
•'totfllning court's power to elfectually carry out order of inspection
^ toaijMilling adversary to furnish appliances necessary to gain
■<^^ to mine.

'■ iLik'uished in dissenting opinion In State y. District Court
-' ^luut 547, 73 Pac. 237, majority sustaining court's power to
•ffectiiaJljr carry out order of Inspection by compelling adversary
** furnish appliances necessary to gain access to mine.
S;l. 5 (Xll, 52tJ). Mines — Laws allowing inspection.
ApUroted In Montana, etc.. Co, v, Butte, etc, Mfn, Co., 12d Fed.
J'B Iiolding petitioners not deprived of property by court's order
iruiirting ln8X»ectlon and survey of locus in quo pending suit to
^ia tr^ntmsses; State v. District Court 28 Mont 545. 73 Pac. 230,
^Rlinla^ traltdlty of order granting an examination, inspection
irvey of relator's mine.

ugulshed In United States v. Lynati, 118 U, S, 473, 23 Sup.
Ct 3ot^ 47 L. 549. holding government liable for compensation to
•watT of lands totally tlooded by construction of dam; State A. C.
E Coi V. DUtrlct Court, m Mont 403, 407, fi8 Pac. 573, m Pac. 103,

152 U. /^ 172-222 Notes on U. S. Reports. 452

annuU/ng, upon certiorari, lower court's order allowlnir inspec-
tion ¥nd 8iu*veying of underground workings of mine where sub-
stanrm prima facie interest not shown; State v. District Court, 25
Movt, 512, 65 Pac. 1023, issuing peremptory order directing lower
v<^vrt to annul order allowing defendants forty days to inspect
nine, where ores prima facie belonged to relators by commoiL-4aw
rights.

152 U. S. 172-177. Not cited.

152 U. S. 178^191, 38 L. 403, UNITED STATES v. SHEA.
. Syl. 1 (XII, 526). Shipping contracts — Demise or service.

Approved in The Del Norte, 119 Fed. 119, 123, holding charter
being a demise of vessel, owner discharged from liability to char-
terer for wrongful acts of master and steward, affirming 111
Fed. 544.

Distinguished in McCormIck v. Shippy, 119 Fed. 229, holding
although vessel demised, charterer relieved from liability for
negligence of master by stipulation in charter.

152 U. S. 191-199. Not cited.

152 U. S. 200-211, 38 L. 411, CINCINNATI, ETC.. GAS CO. T.
WESTERN, ETC., CO.

Syl. 4 (XII, 527). Damages — Breach of contract.

Approved in Fidelity Co. v. Bucki Co., 189 U. S. 142, 23 Sup.
Ct. ns."). 47 L. 751, holding sureties not liable upon attachment bond
for plnintifTs failure to deliver further mat^ials or for reflection oo
busliu'ss credit; lUehmoud v. Holman, 123 Fed. 736, denying sub-
stnutial damages for breach of contract, where market rate at
tlmo for delivery of vossel considerably less than charter rate;
('(Mitral, etc., Co. v. Hart man, 111 Fed. 98, refusing to sustain
vtM'diot for loss of proiits, holding, however, where evidence suf-
ficient^ loss of protlts from interruption of established boslnei
riH'ovorable.

152 U. S. 211-222, 38 L. 415. CAHA v. UNITED STATES.
Syl. 3 (XII. 527). Perjury — United States statutes — Territorial

limitation.

Approved iu Hoover v. Sailing. 102 Fed. 720, holding 'penon not
punisliable for perjury where affidavit made upon information and
belief.

Sy! «> (XII. 527). Perjury — Oath administered by land officer.

nistlnjruislied in Tniteil States v. Maid, 116 Fed. 051, 053, snt-
taiuiiiu' tleiuurrer to iudietnient for perjury, where affid&vlt In
relation \o entry of public land false only in matters prescribed by
departmental regulation.

14SZ

Notes on U. S. Reports.

ith» y* h^ 222-22B

S)l 8 {XII, 528). Departmental rules authorize.! by toBfTreBS.
ipproTed In Cosmos ExpIoratloD Co. v. Gray l\ag\e Oil Co., 190
C. a 309, 23 Sup. Ct GlHl. 47 L. 171, takln^^ ^udielai notice of
mles and regulations of land department regarding sale and ex-
fimge of pTibllc land; Van Lear v. Eisele, 126 I'ed. 827, sustaJn-
liif coagressiouaJ power to authorize secretary of Interior to pro-
molgtte rules as to use of ** Hot Springs," lioldmg, however, rules
praaiilgated unreasonable; United States v. Slater, 123 Fed. 122,
fiteiaiulng information for driTlng diseased anlmaiS from one State
to imotlier, without setting out rules and regulations of agricultural
ilepirtroent alleged to be violated; Dastervlgnes v. United States,
122 Fed. 35. sustaining rules of secretary of Interior prohibiting
pttturlng of sheep upon Stanialans reservatlou, afflrmiag United
SiBlet T. Dastervignes, 118 Fed. 201; Files v. Davis, 118 Fed. 468,
Voiding Rev. Stat., | 915, giving same remedies* by attachment in
rMeral court as in State courts, made Stiite statutes in that regard
rmied States laws; King v. M' Andrews, 104 Fed. 4:iS* taiilng notice
|«f questions under ruJes of land department required to be answered
" fcj htmi^tead applicant and witncBses; Smith v. Shakopee, 103 Fed.
-il. tnlfing Judicial recognition of regnlatlons of lighthouse boai'd
M to tumber and l£lnds of lights placed upon draw- bridges across
WHcuble streajns; Grady v. United States, 98 Fed. 239, holding
pmtlBUfter aud sureties liable on bond for money order funds mia-
WWpriated* altbougli money order business rested upon reg\ila-
tte of department; Whitney v. Spratt, 25 Wash. 05, CA Pac, 920,
•toiiltng. rnider land department rules, ex parte cancellation of
P«Mlf laud entry invalid where entryman's rights transferred and
firt^VDnieiJt had notic*e thereof.

I IS2 C. S, 222-229, 38 L. 419, KING v. AMY, ETC, MIN. CO.
«fl2 fXn, 528).^ Mines — Lines crossing strike of vein,
Approvpil In Bunker Hill, etc., Co. v. Empire State-Idaho M. & D.

[CV»M HJ9 Fed. 541, holding lines crossing vein being parallel are
I litun of claim regardless of locator's inteution at time of leca-

8yl 3 (XII, 528). Mines — Lines drawn where vein's course

ANhroved lo Cosmor>olitan Mio. Co. v. Foote, 101 Fed. 522,
yj, extra lateral rights, claim located across instead of along
i'T vria passing through location point.

SyL 4 (Xll, 529). Mines — Side lines when end lines.

l|i|ifOTed In Empire Milling, etc. Co, v. Tomiiatone Mill, etc..

ItiO Fed. 914, allowing owner, lode localcd across Instead of

*Joiig Tela, to follow dip of vein, having apex within surface hound-

Ueyoud vertical plane passing through lines; Parrot Silver,

152 U. S. 230-252 Notes on U. S. Reports. 454

etc., Co. V. Helnze, 25 Mont. 144, 147, 64 Pac. 328, denying locator
right to follow vein either in dip or strike beyond vertical planes
drawn through side end lines, vein crossing opposite side lines of
daim.

152 U. S. 230-244, 38 L. 422, LOUISVILLE, ETC., R. R. v. CLARKB.

Syl. 1 (XII, 529). Wrongful death — Suit by heirs.

Approved In Southern Bell Tel. Co. v. Cassin, 111 Ga. 684, 610,
36 S. E. 884, 898, holding widow and children barred from suing
for husband's and father's death where decedent settled with
wrongdoer in lifetime.

Syl. 2 (XII, 529). Wrongful death — Time for bringing acUoQ.

Approved in Southern Bell Tel. Co. v. Cassin, 111 Ga. 592, 36 8. BL
888, barring suit by widow and children for injury to husband,
five years after injury occurred, where decedent settled with wrong-
doer in lifetime.

Syl. 3 (XII, 529). Wrongful death — Action — Damages.

Approved in Hastings Lumber Co. v. Garland, 115 Fed. 19,
holding, under New Hampshire statutes and facts of case, error
to submit to jury issue of physical suffering as an element of dam-
age; Southern Pac. Co. v. Hall. 100 Fed. 765, admitting in action
for personal injuries evidence showing plaintiffs previous business
or occupation; Central Ry. Co. v. Perkerson, 112 Ga. 926, 88 S. B.
367, admitting evidence in action for homicide of railroad employee,
proof of usual earnings within reasonable period prior to death.

152 U. S. 244-250. 38 L. 426, DUNLAP v. SCHOFIELD.

Syl. 1 (XII, 529). Infringement — Proof required of patentee.

Approved in Bradner Adjustable Hanger Co. v. Waterbury, etc,
Co., 106 Fed. 736. holding complainant not barred from recovering
damages, although similar articles, differing however in operation,
wore sold by him without being marked " patented."

Distinguished in Gimbel v. Hogg, 97 Fed. 794, holding seller
buying infringing article in good faith from manufacturer and
reselling same not subject to penalty, although article marked as
required by statute; Metallic Extraction Co. v. Brown, 104 Fed.
354, denying upon appeal from decree awarding injunction and au-
thoiiziug accounting, no accounting actually had, any questioa of
damages arises.

152 U. S. 250-252. 38 L. 428, CARNE v. RUSS.

Syl. 1 (XII, 530). Appeal — Jurisdictional amount — Tax sale.

Approved in Purnell v. Page, 128 Fed. 498, denying jurisdiction to
restrain enforcement of personal property tax of $80, although con-
stituting cloud on realty of greater value than $2,000.

4S5

Notes on U, S. Reports, 152 U, S. 252-284

152 V. 8» 252-261, 38 L. 429, JOHNSON CO. v, WHARTON,
SjL 1 (Xllf 530). Judgment between same parties — Res ad-

Approved in Mitchell v. First Nat Bank. 180 U, S. 481, 45 L. 632,
21 Sup. Ct 421, holding decision of Stiite court aa to validity of
diim binding in Federai court In action between same parties;
Baldwin v. Maryland, 179 U, S. 222, 45 L, 162, 21 Sup, Ot 105,
holding final judgment in favor of Maryland as to taxes for 1893
tud 1^4 binding as to taxes for 1895, said taxes being within
terms of litigation; Wilcox, etc., Glliba Sewing Mactx. Co. v. Sher-
borne. 123 Fed- 878, holding defendant barred from pleading in
tecoQd suit to recover subsegiient royalties, contract termiaated hy
reason of Invalidity of patent; Chisolm v, Caines, 121 Fed. 402.
pimlsblDg for contempt one Icnowingly disregarding decree of
Cirmit Court although not a painty to suit; Norton v. House of
Mercy, 101 Fed. 386, holding Kentucky court^s declsloa as to in-
aUility of foreign corporation to take lands under will binding In
€0iin8 of another State to recover lands there situated.

152 D. 8. 262-284. 38 U 434, UNION PAC. RY. v. McDONALD.

SyL 1 (XII, 531). Negligence— Leaving slack-pit unfenced.

Approved in Mitchell v. llaleigh Electric Co., 129 N. C. 170, 39
Ab £. 802. holding absence of iuButation on electric light wire in
lion of ordinance prima facie evidence of negligence.

I' shed in M'Cabe v, American Woolen Co., 124 Fed. 285,

2feT :■ maintenance of unguarded canal with precipitous banks

thickly settled portion of town not negligence warranting re-

itery for death of child drowned therein.

Sjri, 2 (Xll, 531), Negligence — Unfenced slack-pit — Trespasser.

Approved in Koppiekom v. Colorado Cement Pipe Co., !« Colo.
Jkpp, 27T, 279, 64 Pac, 11M8. HMU, holding derendant liable for
ta juries to child caused by le«ving heavy pipe of large diameter
afid short length unguarded in vacant, u»feuced lot; Edgington v,
Bra-HngloD, etc., Ry., IIG Iowa, 421, 428, 445, 90 N. W. 09, 101,
I<W, holding railroad liable for Injuries to child playing upon un-
fu&rded turntable Sn vacant lot near public alley; International,
«r,, Ry- V. Richmond, 28 Tex. Civ. 524, 07 S. W. 1030, holding
railroad liable for stock killed entering upon track through hole
la ff-nce: dissenting opinion In Ryan v. Towar, 128 Mich. 484, 87
K. W. 651, 92 Am. St. Rep. 495, majority disapproving rule and
defendant not liable for injuries to child playing with un-
mnd unguarded machinery.

Denied In Smith v. Dold Packing Co., 82 Mo. App. 18, holding
piling ashes and cinders upon private grounds not liable
to tnfatit burnt while running over ashes to reach some boys
•wlmmHic; tAke Shore, etc., By. v. Llldtite, 69 Ohio St. BBS, 69 N. E.

t

1

152 U. S. 262-284 Notes on U. S. Reports.

657, denying recovery where boy six years of age crawled thro
hole in fence and was injured while trying to touch passing tr
Ann Arbor R. R. v. Klnz, 68 Ohio St 226, 67 N. h. 483, aok
defendant not liable for injuries to boy attracted to and witnesi
baseball game, bank caving in; Paollng y. McKendall, 24 B
437, 53 Atl. 270, denying recovery against occupier of private pi
ises by Infant allured upon premises and burnt by fire kindled th
SyJ. 3 (XII, 531). Negligence on part of Infant
Approved in Tully v. P., W. & B. R. R., 2 Pennew. (Del.) 541
Atl. 1020, holding court erred directing verdict for defend
whether plaintiff, a boy eight years old, was negligent should li
been submitted; Edglngton v. Burlington, etc., Ry., 116 Iowa,
90 N. W. 102, leaving question whether child seven years old
of sufficient age and intelligence to appreciate dangers of tomt
to Jury.

Syl. 4 (XII, 531). Contributory negligence — Degree of c
expected.

Approved in Baltimore & Potomac R. R. v. Cumberland,
U. S. 239, 44 L. 451, 20 Sup. Ct 382, holding where plaintiff a I
question of contributory negligence proper for Jury; M'Queen
Kondelin, 127 Fed. 77, holding instruction asked by defend
properly refused, where qualifying circumstances as to boy's i
etc., omitted.

Syl. 5 (XII, 531). Negligence — Children — Unguarded slack-

Distin;?uished in Marande v. Texas & P. Ry. Co., 102 Fed. :
denying defendant negligent where employee in excitement tur
on hydrant before uncoiling hose; McGinn v. McCormick, 109
401, 33 So. 384, holding plaintiff not guilty of contributory m
gence in failing to give proper signal, collision imminent; Kilpat
V. Grand Trunk Ry., 74 Vt 305, 93 Am. St Rep. 898. 52 AU.
holding question of employee's contributory negligence in fai
to act in emergency in way to prevent Injury one for Jury.
note, 92 Am. St Rep. 495.

Syl. 7 (XII, 531). Negligence — Nonperformance of statui
duty.

Approved in Kilpatrick v. Grand Trunk Ry., 74 Vt 298, 93 -
St Rep. 892, 52 Atl. 534, holding employee, using side laddei
freight car maintained in violation of statute, does not assi
risk of injuries caused by location thereof; Norfolk Ry. v. Corlc
100 Va. 359, 41 S. E. 741, holding violation of statute and
nicipal ordinances, regulating speed of trains, is evidence of n<
gence in suit by injured person.

Sj'l. 8 (XII, 532). Negligence — Court directing verdict

Approved in Toledo Brewin.ir. etc., Co. v. Bosch, 101 Fed. i
holding court properly instructed jury that the right to recc

Notes on U, S. Reports. 152 U. S. 284-317

irac

wu estBhllshed, oa dispute existing as to defendant's failure to
fumiaJ] safe appilances; Stowell v. Erie R. R, Co., 98 Fed, 523,
iolding platntlff precluded frora recover! ug where lie drove upon
iracJt immediately after train passed without waiting to see If
In was approaching from opposite direction,

V. a 284-^00, 38 L, 443. UNITED STATES v. NORTHERN
PAC. R. R.

%jl 1 (XII. 532). Railroad's authority to adopt eligible route.
Approved In Southern Pae. R. R. Co. v. United States, 109 Fed.
^, holding grant authorizing coustructloD of roail as near as
iWe to the thirty-second parallel of north latitude did not
ithorise construction near thirty-fourth parallel.
Syt 3 (XII, 533). Railroads — Grant of land.
Approved In Hewitt v. Schultz. 180 U. S. 146, 45 U 40S, 21 Snp.
311. holding until valid selection made fcy grantee of lands
thin indemnity limits, lands remain open to disposition of United
^^tes; United States v, Oregon, etc., R. R. Od^ 176 U. S. 43, 44 L.
165, 2() Sup. Ct 2G6, holding '.ands embraced within grant to
K^irtiiera Pacific property patented to Oregon company, line of
fenuer company not definitely flj^ed.
8yl. 5 (Xll. 533). Public lands granted to Oregon Central.
Approved In Kelson v. North Pass Ry. Co., 188 U. S. 116, 23
305, 4T L. 410 (dissenting opinion, 188 U. S. 151, 23 Sup,
r47 L. 423}. protect iug homestead settler occupying lands afte*'
iTbat before deHnite locaUon made; UaUed States v. Oregon,
H, a, Co.. ITi; U. S. 41. 44 L. 304, 20 Sup. Ct, 2LI5. holding laiids
hfar^ la grant to Northern Pacific properly patented to Oregon
•ffipany, line of former company not definitely fixed.

e t. 8. 301-317. 38 L. 450. KEOKUK, ETC.. R. R. v. MISSOURI,

4^L 2 (XII, 533), Ojrporatious — Effect of consolidation.

^ oates. 89 Am. St. Rep. GOO. OIC.

SyL 3 (XII, 534). Taxation — Exemption never presumed.

Approved In Adams v, Tombl|,4)ee Mills. 78 Mistj. 087. 29 So. 472.
l«f. under act 1882 exempting factories from taxation, excess
aarion of capital stock over amount invested In property. See
ai Am, St, Rep. 626.

S|L 4 (XII. 534). Corporations — Consolidation — New stock

Approved in Winn v. \Vabush IL II, Co., 118 Fed. 58, GO, denying
oiidnted company right to remove suit on gi'ound of citi:aenship,
and one of consolidating companies citizens of same State;
1, etc. Ry, v. Miller Co.. 07 Ark. 503. oH S. W. 928. holding
bled road limited by statute to right of way not exceeding

152 U. S. 301-^17 Notes on U. S. Reports. 45S

100 feet in width; Senn v. Levy, 111 Ky. 325, 63 S. W. 77a hold-
ing amending articles under new law in effect a reorganization
thereunder, subjecting stockholders to double liability to creditors.

Distinguished in State v. K & W. Ry., 153 Mo. 171, 77 Am. St.
Rep. 713, 54 S. W. 562, holding refunding bonds issued by county
for purpose of taking up other bonds are privileged to same exemp-
tions from taxation as attached to original bonds.

Syl. 5 (XII, 534). CJorporations — Consolidation — Exemption
from taxation.

Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S. 21, 43
L. 407, 21 Sup. Ct. 247, holding companies consolidating, issuing
new stock and taking new name subject to existing law regardless
of exemptions enjoyed by either. See note, 89 Am. St Rep. 634.

Syl. 7 (XII, 535). Res adjudicata — Taxes — Judgment for par-
ticular year.

Approved in Bancroft v. Wicomico Comity Comrs., 121 Fed. 875,
holding decree determining liability of company to taxation not
res Judicata as against mortgage bondholder; Union, etc., Bauk
V. Memphis, 111 Fed. 570, holding State court's Judgment In favor
of validity of exemption of corporation for taxes of previous years
not res adjudicata in Federal court as to taxes for subsequent
years; Mercantile Nat Bank v. Lander, 109 Fed. 24, holding decree
enjoining collection of taxes levied in one year not an adjudication
of complainant's liability for similar taxes in subsequent year;
Newport etc. v. Commonwealth, 106 Ky. 450, 451, 51 S. W. 434,
holding adjudication from taxation for one year not a bar to ac-
tion for taxes for subsequent years, adjudication not resulting from
contract exempting defendant

Modified in Kansas City, etc., Park v. Kansas, 174 Mo. 438, 74
S. W. 982, holding Judgment holding property exempt from tax-
ation for previous years a bar to subsequent suits where no change
has taken place as to law or facts, otherwise not

Syl. 8 (XII, 535). Res adjudicata — Points actually decided.

Distinguished in Newport, etc. v. Commonwealth, 106 Ky. 445,
50 S. \V. 848, holding adjudication from taxation for one year not
a bar to action for taxes for subsequent years, adjudication not
resulting from contract

Syl. 9 (XII, 535). Estoppel must be mutual.

Approved in Yazoo, etc., R. R. Co. v. Adams, 81 Miss. 122, 32
So. 948, holding State not estopped by court's erroneous decision,
holding charter exemptions valid w^hen rendered after property
acquired.

(XII, 533). Miscellaneous.

Cited in Corporation Com. v. Seaboard, etc., System, 127 N. C.
285, 37 S. E. 2G7, to point that corporation to take advantage of

Notes on U. S. Reports, 152 V, S, 317-555

ctiirter u & defense must Bpeciflcallj plead It, charter being a
prime statute.

1S2 t. 8. 31T-327. Not cited.

152 U. S. 327-346» 38 L. 463, DOWBLL T. APPLEGATE.

Syl 2 (XII, 536). Judgments — Collateral attack — Jiirlsdiction
not appearing.

ApKaved in Haug r. Great Northern Ry. Co., 102 Fed, 76, de-
Bjis^ judgment, altliough record fails to show proper citizenship,
open to collateral attack by party thereto*

Sfl S (XII, 536). Circuit Court judgments — Concluslfe unUl

Approved in In re Ives, 111 Fed. 497, refusing to entertain petl-

tioa. to set aside adjudication. Hied several terms after adjudiea-

t^n; Tliajer v. Kansas Loan & Trust Co., 100 Fed. 0O4. refusing to

ilecermine whether State court erred as to priority of Hen, plaintiff

fjiiLfog to secure reversal of judgment*

SjrL 4 (XII, 536). Judgments — Res judicata as to what matters.

Approved in National Foundry & Pipe Works v, Oconto City W.

Supply Co.. 183 U. S. 237, 46 L. 171, 22 Sup. Ct 120, holding vaimity

of tjtle bavlng been established, all other grounds* other than

pvund presented to establish invalidity, waived; Sweeney v. Hau-

15, 12tt Fed- 101. and Hauley v, Beatty, 117 Fed. 67. both holdin^'

nts barred from asserting ownership in ore on ground tliut

liad apex in other property; such claim if true should have

beeii set np In prior suit; Glencore Granite Co. v. City Trust etc..

Ok^ 114 Fed. 980, holding decree against corporation due to failure

to show right to sue In State bar to action in Federal court al-

IlKiiigti iiuch evidence introduced^ Union Saviogs & L. Assn. v.

Wjme, 114 Fed. 834, holding suit to quiet title a bar to subsequent

nit regardless of whether grounds relied upon In second suit were

presented in former: MaJihattan Trust Co. v. Trust Co. of North

Aflnerica, 107 Fed, 333, holding decree conclusive against subse-

qiwiii petition, claim made being same In both proceedings.

IS2 U. S. 346-355, 38 L. 470, WESTERN NAT. BANK v. ARM-
STRONG.

SyL 1 (XII, 536). Banks — Officers* authority to borrow.

Apfirored in First Nat Bank v. Michigan City Bank. 8 N. Dak.
ai. 612. 90 N. W. 768. holding defendant not liable for money
psM Iff plaintiff on forged notes upon cashier's promise to pay
mtfUmt when due.

9ft 2 (XII, 537). National banks — Power to borrow.

AppruTed In First Nat. Bunk v. American Nat. Bank, 173 Mo.
le; 72 B, W* 1062, allowing defease of ultima vires In suit agalust

mam

152 U. S. 355-377 Notes on U. S. Reports. 400

national bank upon contract to pay draft drawn upon one of Its
customers.

Syl. 3 (XII, 537). Bank loaning to other banks — OfBcer's au-
thority.

Distinguished in Aldrich v. Chemical Nat Bank, 170 U. S. 822,
44 L. 613, 20 Sup. Ct 500, holding bank using money fraudulently
obtained by vice-president liable to bank loaning same.

Syl. 6 (XII, 538). CJorporations — Officer's unauthorized act —
Liability.

Approved in Bullard v. De Groff, 50 Nebr. 790, 82 N. W. 6, holding
ratification of unauthorized acts of agent to be efficacious must be
done by person having power in first instance.

Syl. 7 (XII, 538). Banks — Officer's unauthorized acts — Liability.

Approved in Sturdevant v. Farmers' & Mer. Bank, 62 Nebr. 47&,
476, 477, 87 N. W. 158, denying bank estopped by reason of silence
of part of officers or by retention of indemnity bond, cashier's act
unknown to principal officers.

152 U. S. 355-362, 38 L. 474, ISRAEL V. ARTHUR.

Syl. 4 (XII, 539). Supreme Court— State court's decisions —
Review.

Approved in Dement v. National Harrow Co., 180 U. S. 83, 46
L. 1000, 22 Sup. Ct. 752, refusing to review findings of fact made
by State court in suit in equity.

152 U. S. 363-3G8. Not cited.

152 U. S. 308-373, 38 L. 482, MADDOCK v. MAGONB.

Syl. 1 (XII, 5,39). Customs — Commercial usage.

Approved in Nordlin^'or v. United States, 115 Fed. 830, holding
leghorn citron commercially designated and classified by import-
ers and wholesale dealers as dried fruit properly placed in free
list oi fruits, preen, ripe or dried; Woolworth v. United States, 113.
Fed. 1008, holding: testimony of employees of importing retail-house
insufficent to warrant finding that imports, otherwise not toys, are
commercially such.

Distinguished in United States v. Nordlinger, 121 Fed. 002. 603,
reversing Circuit Court, 115 Fed. 830, and holding leghorn citron
Included in list of " fruits preserved in sugar," trade meaning not
excluding.

152 U. S. 373-377, 38 L. 484, BERBECKER v. ROBERTSON.

Syl. 3 (XII, 5.'i0). Customs — Commercial usage of words.

Approved in United States v. Nordlinger, 121 Fed. 693, holding
lejrhorn citron, dutiable as ** fruit preserved in sugar," trade mean-
ing not excluding from such classification.

m

Notes on U. S. Reports. 152 U. S. 3T7-3S4

132 U. S. 377-3S4, 38 L, 485, DUNCAN v, MISSOURI,

Syt 2 (Xn. 540). Gonstitutlooal guarantees — Due process and
tqoftj protection.

Approved In Connolly v. Union Sewer Pipe Co., 184 U. S. 5G0, 4G

L 65ia, 22 Sup. Ct 439, declaring unconstitutional act permitting

iimciilturailsts and live stock raisers to do acts made criminal for

othm to do; Clark v. Kansas City, 176 U. S. Ill), 44 L. 397, 20 Sup.

Ct 2S6» iustalDJng statute permitting cities by ordinance to annex

ItDds when same not used for aisrrlciilturai purposes; Unloa Co.

y&l Bank t. Ozan Lumber Co., 127 Fed, 211, declaring State law

^oid, requiring negotiable instruments taken in payment of patented

macliiiLe to express eonsl deration on face exempting merchants

leiUng same In course of business; Dasterviguea v. United States.

122 Fed. 36, sustaining rules of secretary of Interior prohibiting

BAeep from pasturing upon Stanislaus forest reservation; Parks v.

Stale, 159 Ind. 217, M N. E. SG5, boldlng privileges and immanlties

elaose has no appilcatlon to denial of right to practice medicine

without a Ueense; Indiana, etc. Gas Co, v. State, 159 Ind. 520. 63

X. E. 220, holding gas company not authorized ntider town ordi-

nznce permitting "flat rate** or specitic charge per 1,000 feet, to

charsre single person a meter rate sui>8tant tally higher than flat rate;

Andrus r. Insurance Assn.. IGS Mo. 163, 67 S. W. 585, holding

practice of admitting proof of waiver of terms of insurance policy

without 6pe<:"ial plea not denying insurance companies equal pro-

leirnon of laws; Standai'd Oil Co. v. Spartanburg, m S. C. 44. 44

S. E. 379, declaring ordinance requiring dealers In oils to pay license

tn unconstitutional on groimd olasslflcatiou unreasonable; PInney

f, ProTldexjt L.. etc., Co., 100 Wis. 401. 82 N. W. 310, declaring stat^

ute Toid permitting service of process upon domestic private cor-

portUions by leaving copy with regis ti-r of deeds.

Distinguished in American Sugar Heauing Co, v. l/oulsiana, 179
U, 8. 96, 45 L. 1U5, 21 Sup, Ct 40, upliolding State statute Imposing
UetDte tax upon business of refining sugar and molasses although
cumptlQg planters and farmers refining their own sugar and

»jL 3 (XII, 540), Ex post facto laws — Procedure.

Approveil IB Mallett v. North Carolina, 181 U, S. 597. 45 L. 1019,
21 ^ap. Ct 733t holding act giving State right to apx>eal from
Soiwrtar to Supreme Court not an ex post facto law.

Bjt 4 (XII. 54«D), Ex post facto law defined.

Approved in Stjite v. Kyle, 166 Mo. 306» 65 S. W. 768, holding
Bmmdttwut to StJite Constitution making indictment and tnforma*
don concurrent remedies in prosecution of felonies not ex post

152 U. S. 384-^425 Notes on U. S. Reports. 462

SyL 6 (XU, 541). Ck>tirts — Federal question claimed after Judg-
ment

Approved in Layton v. Missouri, 187 U. S. 360, 23 Sup. Ct. 138,
47 L. 216, refusing to review final Judgment of State court where
State court merely refuses to pass on question because not raised In
trial court

(XII, 540). Miscellaneous.

Cited in National Surety Ckx v. McGormick, 186 U. S. 481, 46 Ij.
1260, 22 Sup. Gt ^5, dismissing for want of Jurisdiction upon
authority of ininclpal case.

152 U. S. 384-398, 38 L. 488, UNITED STATES v. ALGBB.

SyL 2 (Xn, 541). Statutes — Gontemporaiy practical construc-
tion.

Approved in Fairbank v. United States, 181 U. S. 308, 310, 45 Ij.
873, 21 Sup. Ct 658, 659, holding stamp tax on foreign bill of lad-
ing in effect a tax on articles.

152 U. S. 398-405, 38 L. 489, MURPHY v. PARKER.

Syl. 1 (XII, 541). Ejectment when maintainable in P^msylTanla.

Approved in Oliver v. Clarke, 106 Fed. 403, following State court
and holding deed of land therein expressly reserving a vendor's lien
not vesting legal title in vendee.

Syl. 3 (XII, 541). Property sold for taxes — Prior tax sale.

Approved in Feltz v. Coal Co., 203 Pa. St 167, 52 AtL 84, heading
title acquired by county, buying lands at tax sale, lost by sale
thereof for nonpayment of county taxes.

152 U. S. 405-411. 38 L. 493, CORINNE MILL, ETC., CO. ▼.
TOPONCE.

Syl. 1 (XII. 542). Corporations — Vice-president— Additional
duties — Compensation.

Approved in Bagley v. Carthage, etc., R. R., 165 N. Y. 182, 58
N. E. 800, holding president and director of company rendering
services outside of official duties upon promise of compensation by
directors is entitled to such compensation; Lowe v. Ring, 106
Wis. G55, 82 N. W. 574, holding president of bank acting as attorney
entitled to compensation for extra services upon implied contract

152 U. S, 412-425. 38 L. 495. HALSTEAD v. 6RINNAN.

Syl. 1 (XII. 542). Equity — Effect of laches — Circumstances.

Approved in London, etc.. Bank v. Horton, 126 Fed. 601, sus-
taining action by niortjragee to enforce mortgage, delay chargeable
to parties not exceiHling six years and defendants as much in fault
as plaintiff; Ciunnisou v. Chicago, etc.. Ry. Co., 117 Fed. 646, bap-

468

Notee on U. S. Keports.

152 U. S. 4^^-443

rial trustee and bondtioldera under mortgage from maJntainlng suit,
where do action taken for more than twentj years,

SyL 2 (XII, 542). Equity — Lacbes — Failure to enforce un*
known riffbts.

Approved In Ritchie v. Sayers, 100 Fed. 537, austainlng bill to set
asWe conve3'ance on ground of laches, where bill fixes time of dls-
covery of facto entitling plaintiffs to recover and alleges necessary
itvG iB'e^ thereafter.

152 U. S. 425-430, 38 L. 500. MORGAN ENVELOPE CO, T, ALBANY
PERFORATED, ETC., PAPER CO.

8jL 1 (XII. 542), Patentee acquiescing in rejection of claim.

Approved in Hubbell v. United States. 179 U. S. 84, 45 U 90, 21
Sup, CL 27, 28» holding patentee accepting patent with narrower
diljD cannot claim part rejected or disclosed by prior devices;
Sifety OUer Co. v, Scovil Mfg. Co., 110 Fed. 205. construing patent
Ittoed on amended application, by limitation in^rted in applica-
ttan for patent by aujendment after rejection; Peifer v. Bi^own *&
Co., 106 Fed. 940, holding patent for improvement In metallurgical
famaces limited to particular metliod employed, not in f rinsed by
iUZerent method to accomplish same result; Lepper v. Uaudall,
106 Fed. 977» holding patent for improvement in ham-l>oiling
wrappers not infringed by wrapper having fastenings of straps ana
buckle. Instead of lacing cord: Itelneke v, Dixon -Woods Co., 102
J^c<d. 353, holding patent covering construction where aBliestos is
aitiLfbed to burning surface in bunches not infringed by construc-
tion wtiere continuoiis strips of asbestos nre cemented on burning
•lirCice; Irwin v. Hansel man. 97 Fed, DOS, holding appellant ac-
qnfesclng in rejection and tiling substituted claim e estopped from
elaimtng portir-ular feature rejected although included as element
of fiibstltuted claim.

Limited in National Hollow, etc, Co. v. Interchangeable, etc.,
Co., im\ Veil, 7H, holding only limitation imposed upon patentee's
••?ooBd dnim by rejection of original was to estop patentee from
dalnilng devices disclosed In examiner's references,

^l, 3 (XII. 543). Purchaser of patented article — Power over.

Approved In Goodyear Shoe, etc., Co. v. Jackson, 112 Fed. 141>,
t^\ holding patent for combination of mechanism for sewing
laichfne not infringed by purchasers' reconstructing one or more
(J^nients when worn ouL

I>lstlngul»hed In National Phonograph Co. v, Fletcher. 117 Fed.
153, holding person guilty of infringement, securing patented mn-
fhioe from dealers, reconstructs same stibstituting new purls and
mnms machine to be sold as that of patentee,

153 U. 8. 43CM43. Not cited.

152 U. S. 444r472 Notes on U. S. Reports. 4G4

152 U. S. 444-454. 38 L. 507, SCHLESINGBR v. KANSAS CITY,
ETC., RY.
Syl. 3 (XII, 544). Deeds — Condition subsequent — Berestlng

tiUe.
See note, 79 Am. St Rep. 768.

152 U. S. 454r^72, 38 L. 511, TENNESSEE v. UNION, ETC.. BANK.

Syl. 1 (XII, 544). Circuit Court — Jurisdiction — Fed^al ques-
tion.

Approved in Bankers', etc., Co. v. Minnesota, etc., Ry., 192 U. S. 881,
24 Sup. Ct 328, lioldlng in action by citizen of one State against rail-
road, citizen of another State, fact relation of railroad to goyem-
ment involved did not put in controversy Constitution or any law
of United States; Vicksburg Water- Works Co. v. Vicksburg, 185 U.
S. 08. 46 L. 810, 22 Sup. Ct 586, holding Circuit Court had Juris-
diction of bill seeking to restrain city under subsequent legislatioQ
from impairing contract rights of water company to supply city
with water; Western Union Tel. Co. v. Ann Arbor R. R., 178 U.
S. 242, 44 L. 1054, 20 Sup. Ct 869, remanding cause, bill seeking
to compel railroad to permit maintenance of telegraph line, sncli
right not existing independent of contract; Houston & Texas Cent
R. It Co. V. Texas. 177 U. S. 78, 44 L. 680, 20 Sup. Ct 649, holding
Federal character of suit not established where reply to defence
interposed alone sets up matters of Federal nature; South Caro-
lina V. Virginia-Carolina, etc., Co., 117 Fed. 729. holding action
by State to subject foreign corporation to State penalties not re-
movable where neither complaint or statute refers to laws or Cor-
stltution of United States; Central Ohio R. R. Co. v. Mahoney
114 Fed. 734, holding action against lessor and receiver of lessee
of railroad improperly removed on petition of receiver alone,
plaintiff's petition presenting a joint and not separable controversy;
Peabody, etc.. Min. Co. v. Gold Hill Min. Co., Ill Fed. 822, deny-
inj? jurisdiction bill seeking to establish Federal question by set-
ting forth contention probably raised by answer; Mayo v. Dockery,
U>8 Fed. 81>8, holding action against United States marshal In
State court for trover not removable, complaint not declaring de-
fendant a United States marshal or act done in official capacity;
Ualya Marlcet Oo. v. Armour, 102 Fed. 537, holding on motion for
relicaring cause of removal does not exist because defendant claims
Stiite statute confers jurisdiction over nonresidents by service on
agent; Aultman & Taylor Co. v. Bumfield, 102 Fed. 15, dismisslDg
bill seeking to enjoin State treasurer from proceeding In State
court to recover back assessment on ground State statute In
conflict with United States Constitution; Broadway Ins. Co. ▼.
Cliicago, etc., Ry. Co., 101 Fed. 510, remanding to State court
where sug^restion of constitutional question made only in petition
for removal and answer; Shields v. Boardman, 98 Fed. 455, hold-

Notes on U. S. Reports.

152 U. S. 454-472

talp petition Id State court based upon State statute, challenged
h; defendant by demurrer upon Fe^leral grounds, not dlscloalng case
removable by defendant: Yazoo, etc.^ R. It. Co. v. Adams, 81 Miss.
IWi 32 So, 040, denying removal of equitable suit to subject prop-
erty to State taxes, although iDferable from complaiiit that defenses
bvoJTliig Federal quefillons may be made; Debnam v. Southern,
etc. TeL Co,, 126 N. C. 837, 30 S. E, 271, holding under act provld-
ifif for foreign corporations becoming domestic a corporation com-
i>lyjnf with act not entitled to remove suit in State court to Fed-
m\ courts; State v. Frost 113 Wis. (M6, 80 N. W. 910* holding
liifonnatfon presenting for determination powers and duties of
receiver and special master of Federal court presented Federal
question.

Umited in Winters v, Drake, 102 Fed. M6, &47, 54S. hold-
la? pUUntlff cannot prevent removal of suit against receiver of
Federal court by omitting to specify court defendant receiver of.
Distinguished In Spencer v. Duplan Silk Co.. 101 U. S. 528, hoid-
mg removal absolute where trustee in bankruptcy commences ac-
tloD In Pennsylvania State court against defendant a citizen of
New York, although declaration set forth no Fe^ieral question;
Rirerside & A. Ry, Co. v. Riverside^ 118 Fed. 742» holding bill
fciifBcient for Jurisdictional purposes alleging in good faith exist-
ence of contract and impairment thereof by State In violation of
C4>ni*atntion.
Syl. 2 (XII, 545). Federal courts — Removal.
Approved in Gablemau v. Peoria, etc., R, R. Co., 179 U, S. 342»
45 L, 224, 21 Sup. Ct. 174, holding receiver of State corporation
appolated Federal court riot entitled to remove suit on sole ground
of Federal court appointment; Wetdon v. Fritzlen, 128 Fed. 613*
reuumdlog action brought by mortgagee against mortgagors and
their creditor* to foreclose mortgage* action removed by nonresl-
dasol mortgage creditor of codefendant mortgagor on ground of
lofAl prejudice; Manigatiit v. S. M. Ward. etc.. Co., 123 Fed. 711,
»ti»tjiinlag Jurisdiction where bill alleges act of legislature under
wWcb defendants are proceeding is in violation of United States
CSowrdtution; Kentucky v. Chicago, etc., Ry. Co., 123 Fed. 458, hold-
luff ictlon by State to enforce tax imposed by State statute not
removable, although petition demurrable for reasons found in
Federal amstltutlon; Foulk v. Gray, 120 Fed, 162. lt;3. holding
«alt brought In State w^here neither party resides is not remov-
able to Federal court on ground of diversity of citisienshlp; Eddy
^. Camis. 118 Fed, 364, holding suit by United States cltlsen
Affftisst foreign citizen residing in State where suit brought is
Hfli removable; Virginia, etc.. Chemical Co. v. Sundry Ins, Cos.,
108 Fed* 454. holding action by B., Virginia cori>oratlon, against
cofpomtioa of another State upon policy Issued to A., loss payable
Vol. Ill— 3*»

d

Jt52 U. S. 454-472 Notes on U. S. Reports.

to A. or B., as interest appears, removable, citizenship of A.
appearing; Whitworth v. Illinois Cent R. R. Co., 107 Fed.
denying plaintiff's motion to remand on ground neither plaintiff i^ ^
defendant a resident of State where suit brought; Terre Haute -
EvansYllle, etc., R. R., 106 Fed. 549, remanding condemnation pr ^^k
oeedings where no such diversity of citizenship exists as to c^^
fer original jurisdiction; M'Kown v. Kansas A L. Coal Co., ZT

Fed. 658, denying right of plaintiff to remove suit commenced ■

State by reason of counterclaim pleaded by defendant; Duff ^^
Hildreth, 183 Mass. 441, 67 N. E. 357, sustaining removal of ^^m
in equity by proprietor of unpatented machine for violation ^
rights, petition containing averment that matter in controv^^^
exceeds $2,000; Adams v. Railroad, 77 Miss. 315, 28 So. 956, d^^^
ing petition to remove where application not made before plea
under laws and practices of State.

Distinguished in Pepper v. Rogers, 128 Fed. 991, allowing defa^^
ant a resident of New Yorlt, to remove suit brought against -I
by Federal receiver in Massachusetts State court; Union Tern^A j
Ry. Co. V. Chicago, B. & Q. R. R. Co., 119 Fed. 214, holding o:^
demnation proceedings, under Missouri statute, removable by i3^c=
resident defendant although plaintiff could not have institi/r ^
Kuit owing to limitations of State statute; Myers v. Chicago A
W. Ry. Co., 118 Iowa, 322, 91 N. W. 1080, holding condemnati^ ^
proceedings removable to Federal court where amount Involved e-**"^
coeds $2,000.
Syl. 3 (XII, 540). Federal courts — Jurisdiction — Judiciary act^^
Approve<l in (Jnbleman v. Peoria, etc., R. R. Co., 179 U. S. 2ST^
45 L. 222, 21 Sup. Ct 172. holding receiver appointed by FederaJ
court of State corporation not entitled to remove when sued In
StaU^ court; McDonnell v. Jordan. 178 U. S. 238, 44 L. 1052, 20
Sup. Ct 88J), remanding where application to remove not filed before
or at topui at which cause could first be tried; Myers v. Chicago
& N. W. Uy. Co., 118 Iowa, 318, 319, 91 N. W. 1078, holding con-
doiniiatiuu proceedings removable to Federal court where amount
involvod exceeds ;F2,(HX); Tliompson v. Southern Ry., 130 N. C.
142, 41 S. E. 10, holding i>etition for removal insufficient merely
alleging petitioner is a corporation originally created under laws
of another State.

Syl. 4 (XI 1, 54G). Kecoivors appointed by Federal court — Suit
Approved in Marrs v. b'elton, 102 Fed. 770, denying removal
by rtM'civtT apiM)inttHl by Fe<leral court of suit in which receiver
liroperly jointni with codefendant having no right of removal, con-
troversy joint.

Syl, 5 (XII, 54G). Circuit Court — Jurisdiction — Plaintiff's aver-
ment

ApprovtHl In Hnnkers'. vtc, Co. v. Minnesota, etc., Ry., 192 U.

m

^^* -SSS, 24 Sap. Ct 320, boldlng where cause of action not referable
^^^ United States laws or depending upon fact tliat defendant Is
^^*- Tnited States officer, sucb belDir matters of defense, pliiintiff
^^"^^^aJd not resort thereto to j^Ive jurisdiction; Boston, etc., Mining
<I5«»u r. Montana Ore Co., 188 U. S. m9, (342, 23 Sup. Ct 43T, 4^8,
-*^'y Lw 032^ 633, holding in action for cod version of ore Federal
^^-CK^fftlan not Involved by plaintiff anticipatiog defense of defetid-
&nd setting np answer thereto; Ariiauaas v. Kansai? & T. Coal
►„ 183 V. S. l&S, 46 L. 146, 22 Sup. Ct 49, holding waut of Fwl-
question In plaiutilTa statement cannot be aupplied by coui't
-«i^»3£ing Judicial notice of facts not relied upon and brought iuto con-
-c::y-^z^^ersy; Florida Cent, etc., R. R. v. BgH. 176 U, S. 33<i, 44 L.

r.,^£>0. 20 Sup. Ct 402, reversing judgment and remanding case with
,«^i x^'ections to dismiss where plain tilT's declaration discloses no Fed-
^*,f-^U question; Joy v. St rvouis, 122 Fed. 525, denying juiisdietion
^^^ ejectment to recover land claimed under SpaEiish grant where
^^S^^LlntUTs rights depend wholly upon whether land is within bound-
s^X-^«s of grant; Wichita v, Missouri, etc., K. Telephone Co., 122
^i^^^^L 100, remanding case, no allegation !u bill that plaintiff's
lit was based on any law or on Constitution of United States;
: hiol V. Tomey, 110 Fe<l. &T6, holding allegation in complaint
ejectment that defendant was in possession by direction of
L nlUfd States Insufllclent to confer jurisdiction; South Carol! ua
r* Vlfginla'Carolina, etc., Co,, 117 Fed. 732, holding suit by State
W» subject foreign cori>oration to State penalties not removable
wbtfe neither complaint or statute refers to Constitution or laws
^ Ignited States; American, etc., C-o. v. Home Water Go., 115 Fed.
^^^ holding i^etition setting forth that city council's action aiinni^
"ftj? water company's contrarl and franchise, without a hearing,
• to contravention of constitutional provisions states a Federal

U^il. Mil Miscellaneous.

Cited ia Boarrl of Conncflmen, etc. v. State Nat Bank of Fraulc-
^ort 1^ u. 8. Gm, 22 Sup. Ct 940, and Chrystal Springs Laud,
^■* Co, 7, Jxm Angeles, 177 IT. S. lill>, 44 L. 720, 20 Sup. tt.
'>T^ hoth dismissing liill for want of jurisdiction upon authority
"^ rflGcipal case

f^tr. S, 473-490, 38 L. 518, McKITTRlCK v. ARKANSAS CENT.

^yl 4 <XII, 54T). Corporations — Foreclosure — Officers purchas-
^m nroperty,

AM^mved In Rothchild v. Memphis, etc.. It R. Co., 113 Fed. 481,
^<'<fflug stDcli holder owning miijority of stock may ptirchnse cor-
fc^ I 'riiion^ property at judiriiii sah» for his ow^n benefit; Stauiliu'tf

■ I ' iiriv^a, etc., Co, v. Excelsior Reflniug Co., lUS La. 81, 32 So. 224.

Notes on TJ. S. Reports. 152 U. S. 173-499

152 U. S. 499-616 Notes on U. S. Reports. 468

allowing stockholder and director of corporation advancing money
to corporation for corporate purposes to rank as ordinary creditor.

162 U. S. 499-505, 38 L. 528, MACLAY v. EQUITABLE L. ASSUB.
SOC.

Syl. 1 (XII, 647). Guardians — Powers of.

See notes, 89 Am. St. Rep. 281, 287, 291, 292.
152 U. S. 505-512, 38 L. 632, MANUEL v. WULFP.

Syl. 2 (XII, 547). Mining claims — AUenation.

Approved in McCulloch v. Murphy, 125 Fed. 164, holding where
evidence establishes validity of mining location and shows required
work done for one year a relocation in following year is void;
Lohmann v. Helmer, 104 Fed. 181, holding under laws of Oregon
an alien may inherit mining claim located upon government land.

Syl. 3 (XII, 548). Mines — Capacity of alien to take.

Approved in McKinley Creek Mining Co. v. Alaska, etc, Oo.,
183 U. S. 571, 572, 46 L. 334, 335, 22 Sup. Ct 87, sustaining k>ca-
tlon of placer claims by aliens against attack of private IndivlduaUi;
Tornanses v. Melsing, 109 Fed. 711, denying right of subsequent
locator to recover possession of claim located by alien on gronnd»
of alienage; Tidwell v. Chiricahua Cattle Co., Ariz. , 63 Pac
104, holding validity of conveyance by settler to corporation on
ground of corporation's alleged incapacity to take questioned only
in direct proceeding by United States; Strickley v. Hill, 22 Utah,
2GG, 2G7, 62 Pac. 805, 896, holding rights of citizen locator oC
mining claim and subsequent grantees unaffected by fact colocator
an alien; Sherlock v. Leighton, 9 Wyo. 312, 313, 63 Pac. 934, on pe-
tition for rehearing, holding mere failure of defendant to prove
citizenship not authorizing award of property to adversary.

Syl. 4 (XII, 548). Mines — Alien's naturalization before contest
terminated.

Approved in Sherlock v. Leighton, 9 Wyo. 309, 63 Pac. 683, hold-
ing mere failure of defendant, an alien, to prove citizenship will
not authorize court awarding property to adverse claimant.

(XII, 547). Miscellaneous.

CitM in Strickley v. Hill, 22 Utah, 268, 270, 62 Pac. 897, to point
that alien serving in army, and honorably discharged therefrom, is
strong evidence of intention to become citizen.

152 U. S. 512-516, 38 L. 534. CITY BANK OF FORT WORTH T.
HUNTER.

Syl. 1 (XII, 548). Api>eal — Failure to execute mandate.

Approved in The Union Steamboat Co.. 178 U. S. 319, 44 L. 1085^
20 Sup. Ct 905, holding new appeal and not mandamus proper
remedy where lower court refuses to allow mandate of appellate
court to be executed.

m

Notes on U. S< Reports.

152 U. S. 516-538

S;L 2 (Xn» 548). Appeal — CompllaDce vfith mandate — Man-

ApproTed In Koonce v. DoolJttle, 48 W, Va. S95, 37 S. E. 645,
iwardlQg mandamus to compel eireult Judge to can^ out mandate
of appellate court

SyL 3 (Kit, 548). Appeal — Decree awarding costa.

Dlftlngulshed In In re Mii!hlgan Cent R. R. Co.* 124 Fed. 732,
ioldlog Circuit Court decree allowing costs to clerk as matter of
poiltlTe law and awarding executJon therefor is appealable; South-
«ni Bldg.. etc., Assn. y. Carey, 117 Fe^. 327, court being of opinion
tliil appeals, even when taken for delaj, must be aJlowedL

132 U. 8. 516-520. Not cited.

152 V. 8. 521-52G, 38 L. 538, HERRMAN v. BOEERTSON.

87L 1 tXII, 549). Customs — Proteat not tecbnlcaL
Approved In In re Hagop BogliEriais Co., 104 Fed, 77^ holding
ptoitst sufficient stating goods assessable nnder certain act with-
<Wtt ^ecifying^ partlcuiar provisions.
fiyt 2 (XII, M»). Customs — Protest — Provision specified-
Approved In United States v. Bajersdorfer, 126 Fed. 735, 736,
otenuling protest for failing to refer to proper paragraph, although
twewaent erroneous; Battle & Oo. v. United States, 108 Fed, 220,
holding Importer must 6tan<l upon objectlonfl made In protest and
cAiiftot enlarge or vary them on trial or in petition for review.

Dijtingaished In United States v. Shea, etc., Co.. 114 Fed. 40,
holdlag, under customs administrative act of 1890, importer not
t^sned ft'om relfef because falling to designate correctly provisions

KMupOD.

IXII, 549)* Mfscellaneous.

Cited In Schlff v. United States. 99 Fed. 556, holding "gold
straw braids " and *' silver straw braids " assessable as manufac-
tnref ia part of metal.

152 U. 8. 527-638. 38 L. 540, HUNTLEY v. KINGMAN.

SyL 2 (XII, 540). Assignment for creditors.

Approved tn In re Williams. 120 Fed. 545, upholding mort;gag6
iJiiJe more than four montJis prior to bankruptcy proceedings to
€wer advances; Kemp v. Nntional Baak, 109 Fed. 50, holding, un-
<kr Laws of Virginia, 1896, insolvent debtor had right to prefer
cwlltoti,

Syl 3 (XII, 54D). AsBignment for all creditors.

ApfiTDved In Ontario Bank v. Hurst 103 Fed. 234, upholding
eoBTf^rance of property In trust with power to sell, and providing,
jkowevfT. that certain creditors he paid first aod surplus returned
10 d#titor.

152 U. S. 539-561 Notes on U. S. Reports. 470

152 U. S. 539-547, 38 L. 545, DEALY v. UNITED STATES.

Syl. 2 (XII, 549). Criminal law — Verdict overlooking certain
counts.

Approved in Hecbter v. State, 94 Md. 442, 50 Atl. 1048, sustaining
verdict of guilty upon first and second counts, verdict silent as
to tliird and fourth.

Syl. 5 (XII, 550). Indictment charging conspiracy — Homestead
laws.

Approved in United States v. McKinley, 126 Fed. 242, holding
indictment not demurrable where facts showing land In fact pub-
lic or subject to homestead entry not alleged; Wright v. United
States, 108 Fed. 80S, holding indictment sufi^cient, charging that
defendant " did conspire," without adding such words as " com^
bine," "confederate," etc.; Gantt v. United States, 108 Fed. 63,
holding indictment suflacient without alleging land subject to home-
stead entry.

Syl. G (XII, 550). Conspiracy — Indictment — Suflaciency.

Approved in dissenting opinion in Wright v. United States, 108
Fed. 815, majority holding indictment sufficient, charging that de-
fendant did ** conspire," without Using " words " combioe^'* con-
federate," etc.

(XII. 549). Miscellaneous.

Cited in M*Cune v. Essig, 118 Fed. 279, to point that homestead
settler's right before final proof an inchoate one.

152 U. S. 547-5G1, 38 L. 548, HARDT v. HBIDWEYER.

Syl. 2 (XII. 550). Equity — Ignorance as ground for delay.

Approved in Kessler v. Ensley Co., 123 Fed. 5G8, holding stock-
holder's dolay of four years to set aside conveyance by corporation
not excused by general allegation, " complainants without knowl-
edge of fraud " until within three months of suit; Hesndryx v.
Perkins, 114 Fed. 811, holding bill to vacate decree for fraud
cannot be maintained after lapse of nine years where sufiSclent
excuse not shown; Hale v. Cotfin, 114 Fed. 577, holding in suit to
charge legatee of stockholder mere allegation that complainant
a resident of Minnesota, was without knowledge of stockholder's
death insufficient to remove bar of limitations; Thayer v. Kansas
Loan & Trust Co., 100 Fed. 903, barring action for relief on ground
of fraud in absence of allegation and proof that fraud complained
of could not have been discovered within statutory time; Callan
V. Callan, 175 Mo. 301. 74 S. W. 909, holding where means of dis-
covering fraud was at hand, but not used, mere silence of adverse
party as to facts thereof insufficient to stop running of statute.

Distinguished in Gay v. Ilavermale, 27 Wash. 396, 67 Pac. 806.
holding laches not inferable from complaint showing lapse of eight
years from perpetration of fraud to commencement of action.

m

Notes on U. S. Reports.

152 U, S. 561^96

152 U. S. 501-570. 38 L. 653, SE ABURY y. AM ENDR

(XII, 550^ Miscellaneous,

Cited In Consolidated RuWier Tire Co. v. Flnley Rubber Tire Co.,
116 Fed. t;34, holding Grant's patent, for rubber-tire wheel, com-
bining old elements, producing new and useful results, valid,

132 U. S. 570-^77, 38 L. 55f>, SARLLS v. UNITED STATES.

5yl. 1 (XII, 551), Indians — Beer not spirituous liquor or wine.

Approved in Johnson v. Southern Pac. Co., 117 Fed. 468, holding
statute prohibiting use of car without automatic couplers not in-
fludiag engine unecitiipped with such couplers,

8yL 2 (XII, 551), Penal etatuteo— Construction — Popular
Qnniag.

Approved in United Stat^ y, Harris, 177 U. S. 310, 44 L. 782. 20
Snp, Ct Oil, holding receivers of railroad not withiu provisions
at act to prevent cruelty to animals while in transit by railroad
* otlier mciins of transportation; Johnson v. Southern Pac. Co.,
UT Fed. 4G7. holding act prohibiting use of cars without automatic
couplers not including engine unequipped -with such couplers,

152 tJ. S. 577-^1, 38 L. 559, PRESSON v. RUSSELL.
Sjrl, 3 (XII, 551). Customs — Protest — ^Designating act
Approved in United States v, Bayersdorfer, 126 Fed. 735, aver-
fuHug protest on ground of not referring to proper paragraph, al-
though assessment erroneous; Battle & Co. v. United States, 108
Fe<i. 220, refusing to allow importer to vary or enlarge objections
OD trial nur In petition for review.

132 U. S. 581-589, 38 L. 500, SEEBERGER v, SCHLESINGER.
8yL 4 (XII, 551). Customs — Classification ^^ Opera glasses in

Approved in United States v. Altman, 107 Fed. 10, classifying
Wititts, trimmed witji cotton-lace edgings, as wearing apparel made
wlwfljr or In part of lace or imitation thereof,

122 IT, 8. KlU-^m 38 L. 503, DAVIS v. MERCANTILE TRUST CO.
8fl. 1 (XII, 552). Appeal — Parties Interested to be heard.
Approved in Faulkner v. Hutchlas, 120 Fed. 363, dismissing ap-
jwil by single party from Joint decree, other defendant not notified;
i>ore(€Aii V. Ransom, 107 Fed. 027, dismissing writ where judg-
ment Joint and all parties not Joining in writ of errori Kidder v.
Fidelity Ins.. etc., Co.. 105 Fed. 823. dismissing where one of sev-
eral Intervcnora appeals from decree in etiuity and joins only com-
ptaiuiiat and receiver of one of the defendants; Ayers v, Polsdor-
f#T. TCi Fed, 739, dismissiug writ of error from judgment in eject-
ed ist several defendants pleading separate title, one of
_4rf;M 1 - not Joined; Grand Island, etc., R. R. Co. v, Sweeney^

152 U, 8. 596-627 Notes on U. S. Reports. 472

108 Fed. 345, 347, dismissing appeal where all defendants in actioo
to foreclose mechanic's lien not Joined in appeal.

Distinguished in Goler t. Allen, 114 Fed. 610, refosing to dis-
miss appettil from order dismissing complaint in intervention In
foreclosure suit because all parties to foreclosure suit not serred
with citation: The New York« 104 Fed. 563, holding sureties od
8rt)i>ulation for release of vessel seised in suit for collision not neces-
Mury parties to appeal taken bj claimant

8yl 6 (XII. 553>. AppcAl — Parties to record presumed interested.

Approved in Galveston, etc Rj. Go. v. House, 102 Fed. 114»
holding parties interested in decree, but not parties to suit; not
nectNi&^miry parties to an appeal from decree.

152 l\ a 5li^-4SS. SS U 565. NORTH CHIGAGO ROLUNQ-MILL
OlX T, ST, LOUIS ORE. ET1X CO.

Syt 5 iXll. 55$K See-off — Crws-domands In equity.

AiH^n>ved in Ft3re-Bnihn Coc v. Mejer. 121 Fed. 536» enjoining
d^<>^hiant fnooi sditisfiring judgment against plaintiff from monej
d^^vutiNl In cv^un until plaintiff's lights established and plaintiff's
J\Kii:iu<«it made an offs^K: TvUer t. United States, 113 Fed. 404,
hvvldiuj: jxkUnuent ajpfti;i5t Unitied States cannot l)e diqMMed of
i\v |^rv^v^^ct |^'kTyT1uuect s^fctmi: off against It cross-demand against
juxU^'^^^nc p£at:i:iff: H\>i(^>a t. E^ris^ Ui|^ Fed. 14Si, swttalnlng jnrl*-
aic::vHX \>( tcvHirt of <^;u;;j to ecjocn deftendant firom aTmlUng liim-

\^-,*v.:t3P-»i«>i '•- A=>frv*s $;:«««. eocu Ool t. Cbesapcmke, etc,
K\vi. k\\. i:t^ Vcxi <C^ b.vit3^ vli> admlraltj will not take
»;lv''^^^^'*,vci o^ ,"«?«.: ^^TCviTsv :: rcv*^^ cii tt* bmdest eqnitatrie
V>i vx V w ** r.^ r-Mr^fc to^ »: .,i s*«:-ctf r^f^ire«: In le Meyer. 106
>\\l xV, x'.,^^x*.-i .x*crf.:r^:c > rrj;:^:. ^ir.f^.f^g lemm of coDsigned
ivssls. v.'.vc ^^ .*> ivt.c >JLi i:jl«5* jbiTaac«&. to set off against
A,'Aiv,x-ts vr.r.jt .:::vvil vc:-*t :,*c 7*fc^nttl »Kvm»«datioa of factor.

5\>' ^ AV, Na.^. >^<-:5 ry'-t<T;3:^ atfiawg cacomcionable Jndg-

vvv-vx%v. > X^-v ^ V : .\f\: S::x:^*k rS* IVrf. *il. Hmtnj Injnne-

, V-. ,v..V\v.' v .V -v><i-% ; ,^if Tiitrsihi: ::^hil CKforciBg execntUm

:■* > --iTiT* — r*rtc-»CL

-V i-:. 3L 3L. 52 W, Ya. 4». 44 8.

v- • K ^••ri*ix ««T«raI eUna^a.

' ^ ':'*? r. S. li;L 44 L. 414.
-..» . a .L 4i^:\.'tf «f stfOL^ae most pre

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m

Kotea on tr. S. Reports. 152 U. S. 528-684

TiUorer words of general description; United States v. NordUnger,
121 Fed. 602. taxing leghorn citron as fruit preserved In sugar
^d not as dried fmlt not specifically enumerated.

^^ U, 8, 628-633. 38 L. 576, SA1.T0NSTALL v. RUSSELL.
Byl 1 (XII, 554), Pleading -^ Submlttiog agreed ease.
Appmred In Brown v. Brown, 12 S. Dak. 508, 81 N. W* 884^
refo^ng to disturb Judgiuent where facts presented to court by
ttipalfttloD, and stipulation with material part of pleadings Bupporta
Jadpieot

152 D, 8. 634-671, 38 L. 578, BURCK v, TAYLOR.

SjL 1 (XII, 554). Contracts — ^Stipulation against asslgn^meat —
riiit<?d States.

Approved in American Bonding & Trust Co. y. Baltimore & O.
8* W. R. R, COm 124 Fed. 872, holding contract by which one party
bcv^ame obligated to the other Is assignable unless intended other^
wlie. See notes, 88 Am. St Rep. 2m, 204, 205.

iyi 3 <Xn, 554). Ck>ntracta — Stipulation against assignment

Approved In Order of Heptasophs v. Dalley, 61 N. J. Eq. 150,
IT Atl, 279, holding life insurance certificate of beneficial society
iK>t assignable by beneficiary to creditor of Inaured, assignment
forbidden by by-law of order.

Syl 4 (XII, 554), Contracts — Stipulation against aBslgnmeait —

Approved In State v. Kent 98 Mo. App. 286, 71 S. W. 1067, siis-
tiialDg provision En contract of employee with miinlclpallty against
tadgnlng claim for wages*

^l 5 (XII, 555). Building contracts ^ Stipulation against as-
tamciiL

A;>pfoYed In Tlfton T., etc, G. Ry. Co. v. Bedgood Go,, 116 Ga.
9W, 43 S. E. 254, holding contract to construct side track to lumber
Brtll and tmnsport lumber over line not assignable; Mueller v.
Xorthwfslem University, 11)5 111. 250, 88 Am. St Hep. 195, 63 N.
K. US, Buntalnlng payments made to assignor to furulsh building
iwtirltl where contract provided against assignment

IS2 D. 8. 671, 672, Not cited.

l^t C. 8, 673-684, 38 L. 502. ROBERTSON T. CHAPMAN.

SjL 2 (XH, 555). Agent — Trustee for principal.

See DOtes, 80 Am. St Rep. 564. 565.

SyL 4 (XII. 555). Agency — Prlnctpal^a rights against diahonest
Mgmv
9m Mtes, 80 Am. St Bep. 557, 5a&

4

152 U. S. G84-G91 Notes on U. S. Reports. 474

Syl. 5 (XII, 555). Agent buying after agency terminated.

See note, 80 Am. St Rep. 566.
152 U. S. 684-691, 38 L. 507, UNION PAC. RY. v. DANIELS.

Syl. 1 (XII, 556), Trial — Nonsuit — Defendant waiving excep-
tions.

Appdied in Sigafus v. Porter, 179 U. S. 121, 45 L. 116, 21 Sup. Ct
3<5, reaffirming rule; Tamblyn v. Johnston, 126 Fed. 271, waiving
benefit of demurrer, defendant proceeding with evidence; Walton
V. Wild Goose Mining, etc., Co., 123 Fed. 214, and Fulkerson ▼.
Chlsna Min., etc., Imp. CJo., 122 Fed. 784, both holding exception
waived, defendant introducing evidence; M'Crea v. Parsons, 112
Fed. 918, exceptions waived, defendant introducing evidence and
not renewing motion; Bopp v. New York, etc., Transp. Co., 177
N. Y. 3G, 09 N. E. 123, where, after motion made by one defendant
denied, defendant puts in evidence and cross-examines codefend-
ant's witnesses.

Syl. 2 (XII, 556). Master and servant — Appliances.

Approved in Westinghouse, etc., Mfg. Co. v. Heimlich, 127 Fed
93, 94, holding defendant not liable for injuries caused by break-
ing of new derrick chain; In re California Nav. & Imp. Co., 110
Fed. 073, holding company liable for death of fireman where proper
inspection not made to make drum safe; New Orleans, etc., R. R.
Co. V. Clements, 100 Fed. 422, holding company liable for Injuries
to employee received from defective car, inspectors neglecting to
muke proper inspection; Faulkner v. Mammoth M. Co., 28 Utah,
442. 60 Pac. 801, holding company liable for injuries to miner
received while excavating under overhanging bank after informed
by foreman place was safe.

Syl. 3 (XII, 556). Master and servant — Delegating duty to in-
spect.

Approved in The Troy, 121 Fed. 904, denying recovery for in-
juries to deck-hand, evidence failing to show vessel InsuflSciratly
o(iuipped, or unsuitableness of place to work; In re California Nav.
& Imp. Co., 110 Fed. 074, holding company not relieved for Injuries
received from explosion of drum by delegating duty of inspection;
Port Blakely Mill Co. v. Garrett 97 Fed. 539, holding company nm
relieved from liability for injuries received by breaking of stakes
on ground stakes furnished by coemployee; Carroll v. Tidewater
Oil Co., 07 N. J. L. 084, 52 Atl. 277, holding company liable for
injury to laborer received while moving punching machine, flywheel
dropping off.

Distinguished in Hodges v. Kimball, 104 Fed. 752, holding com-
pany providing for inspection of cars at divisional points not liable
for injuries to employees unless shown duty of inspection ciire>
lessly complied with.

Notes on U. S. Reports,

153 D. S. 1-U4

liS2 D. 8. mi-^m, 38 L. 601, SCHOENFELD t. HENDRICKS.

8yll (XII. 567). Customs — Su!U against collector.

WltljiruiBhed In De Uma v. BidweU, 182 U. S. ITS, 45 L. 1049.
21 8up, Ol 74€» allowing siiit against collector to recover duties
9^ Qoder protest upon goods allegecl to Uave been brought from
«e toestic port to another.

132 U. 8. e05-TC7. 38 L. 603. WORXmNGTON v. BOSTON.

(XII, 557). Miscellaneous.

Cited In Marslmll, etc., Co. v. City of NashviHe. 109 Temi. 512,
tl S, W. 819» holding ordinance requiring union label upon print-
^i noIaHou of charter provision requiring prUiting to be let to
lowest bidder.

CLIII UNITED STATES.

1S3 tJ. 8. 1-^H2, 38 L. 015, LOWNDES v. HUNTINGTON.

%l 1 (XII » 55S). Federal courts — State court decisions — Iioe&l
qQeidoofi.

Apfjnftred in National, etc.. Pipe Works v, Oconto City, etc.,
SJipply Co., 113 Fed. 79<1, following State decision that property
<^ water- works not subject to mechanic's Hen.

^Jl 9 (XII, 5a8). Adverse possession must he exclusive.

Approved in Tjee Consol. Mtn. Co, v. Langatedt, 121 Fed, 712,
d«<'iarlng finding in ejectment defendant in '* actual, opea and
ftotwlotis poBsessioQ " Insufficient.

153 U. S. 32-n38, 38 U 624, SEEBEllGER v. CASTRO,
8fL 2 (XII, 550). Customs — Cigar clippings not manufactured

CKrtf&gQlsbed In Myers v. United States, 110 Fed. 942, classify-
iBf tmtll pieces of mica, falling ofiF In thumh-trlmming process,
tt DmQQfactured mica and not as waste.

ta tJ. 8. 31M8, 38 U 627, WILSON v. HALEY LIVE STOCK CO,
Syt ] (XII, 550K Trial — Waiving exception to ruling.
Ariproved III M'Crea v. Parsons, 112 Fed. 918, defendant Intro-
tfiiclBg evidence, after motion to find in his favor overruled.

m V. s. is-m, 38 L, c;ji. united states v. fridgeon.

SjL ^ (XII, 600J, Excessive acnlence^^ — Void (is to excess.
M^igrw^ in In re Welty, I'J;^ Fed. 123. holdlug sentence valid,
olCkoOffli ** bard labor" o^iittcd therefrom as prescrihed by stat-

J

153 U. S. 64-^ Notes on U. S. Reports. 476

ute; Jackson y. United States, 102 Fed. 489, correcting upon writ
of error sentence adding "hard labor" to confinement In peniten-
tiary; De Bara y. United States, 99 Fed. 947, denying habeas corpus
where sentence excessive, legal part unsored. See note, 87 Am. St.
Rep. 195.

Syl. 6 (XII, 560). Habeas corpus — Jurisdiction not shown.

Approved in Ex parte O'Neal, 125 Fed. 969, refusing to review
alleged errors committed in proceedings punisliing relator tar con-
tempt in assaulting trustee in banlu-uptcy; In re Welty, 123 Fed.
128, denying habeas corpus vrhere territorial court found to have
jurisdiction; Ex parte Davis, 112 Fed. 142, 143, refusing to review
punishment of an attorney for contemrt of court; Rose ▼. Roberts,
93 Fed. &i9, holding military authorities not deprived of Jurlsdie-
tian to carry out sentence by imposing fine and imprisonment, and
by same judgment dismissing from army.

Syl. 7 (XII, 560). Habeas corpus — Writ of errw.

Approved in In re Nevitt, 117 Fed. <449, refusing to discharge
judges of State court confined for contempt in refusing to obey
mandate of Federal court; Deming v. M'Claughrey, 113 Fed. 6S0,
discharging upon habeas corpus volunteer officer sentenced bj
court-martial composed wholly of regular army officers.

153 U. S. 64-77. 38 L. 637, THE MARTELLO.
Syl. 1 (XII, 560). Collision — Speed in fog.

Approved in The Charlotte, 128 Fed. 39, affirming 124 Fed. 990,
lH>th holding steamer in fault entering fog bank at speed of ten
miles an houn The El Monte, 114 Fed. 799, holding both steamen
in fault entering fog and continuing at more than half speed after
hearing each others fog signals; The Yarmouth, 100 Fed. 672,
holding vessel in fault proceeding in fog through narrow channel
at speed over eight knots.

i>yl, 6 (XII, 561K Collision — Burden of proof.

Approved in Chesley v. Nantasket Beacli, etc., Co., 179 Haas.
472. 01 N. B. 51. holding upon all evidence plaintiff not entitled
to recover, fog signals not given as required by statutory regulation.

153 U. S. 78-88. 38 L. 643, WEST v. CABELL.

Syl. 1 (XU, 561>. False imprisonment — Warrant — Person not
named.

Approved in United States v. Doe, 127 Fed. 984, dedsxing indict-
ment void, charging John Doe with illegal landing of Chinese,
indictment showing on face name fictitious, and grand Jury un-
able to identify person: Johnson v. Williams, 111 Ky. 294, 63 8.
W, 7tX>. holdins: i^ace officer liable for damages for killing another
under belief that such i>erson was named in warrant of arrest
charging felony. See note, 1>1 Am. St Rep. 540.

m

NoteB on U. S. Reports.

153 U. S, 88^109

DddBgDiBKied in Cox v. Durhanip 12S Fed. 874» holding officer
protected arresting James T. Cox, kBown as J. T. Cox, utider war-
rant cooimaDdlng arrest of J. I. Cox.

153 C. S. 8fi-92, 3S L. 645, UNITED STATES v. SHIELDS.
Sjl 2 ^Xn, 5&2). Officer's fees depend upon strict law.
AppA>?ed In United States v. Van Duzee, 185 U. S. 281, 46 L.
&iO, 22 Sup. Ct G4t>» refusing to awiird compensation to clerk for
iUiD^ records of Circuit Court commissioners upon retirement;
tfilted States v. Marsh. 103 Fed. 47 7 » denying court's authority to
AQtbofise clerk to charge fees for making up record where same
not provided for,

133 U. S. 93-104, 38 L. 647. UNITED STATES v. KLINGENBERG.

Sjt 1 (Silt 562), Foreign coins — Secretary fixing value.

Approved in Dowls v. United States. 113 Fed. 146, refusing to
review secretary's decision as to amount of bounty bestowed by
foFfigii country on exportation of me re band Ise.

Distinguished In United States v. Lucius Beebe, etc,, Sons, 12'J
Fed, 7T0, sustaining jurlf^lctloo of bt^-rd of appraisers to review
collector's action In reliquldadng entry upon legal tender and not
baliiott value; United States v. Beebe, 117 Fed". 671, 672, 676, re-
viewing secretary's order for reliquidatlon based upon exchange
T^oe of foreign coins, tariff act providing for pure metal basis;
United States v, Beebe, 103 Fed, 787, denying secretary's authority
to liquid Ate upon exchange value of foreign coins, tariff act requlr*
iDf Tslue sstimated by director of mint and proclaimed by secre-

8yL 2 (Xn» 662), Customs — Appraisers reversing collector's
txeluslve action.

Approved In United States v. Brown, 127 Fed» 796, affirming
Ci^:ull Court decision affirming decision of board of appraisers
r*T€r>lTig assessment of duty by collector; United States v, Beebe.
HT Fed. 674, affirming decision of board of appraisers reviewing
■«Tptiry*s order for reiiquidation based upon exchange Instead
^ pure metal value of foreign coins.

8yL 3 (XII, 562). Customs — Circuit Court— Rev lewfaag appeal
<o iiTtn-ntsers.

Apin-ored in United States v. Brown, 127 Fed, 797, affirming
Circuit Court decision affirming board of appraiser's decision re-
nnlog ftisessment of duty by collector.

158 tJ. 8, 105^109, 38 L. 651. LUTZ v. MAGONE,
^fl I (XII. 5t>3). Customs ^ — Construction of words,
J^pproved In Heller & Merz Co. v. United States, 124 Fed, 300.
coal tar preparations consisting of phtalic anhydride and
spbtallc anhydride, known as and performtug functlouii

153 U. S. 10^155 Notes on U. S. Reports. 478

of acids, classified as such; Hempstead v. Thomas, 122 Fed. 540,
holding tungsten ore, primary extracted product thereof nsed as
mordant in dyeing cloth, while another extraction used to make
high grade steel, not dutiable under section embracing *' crude
minerals;" Merchants' Dispatch Transp. Ck>. v. United States, 121
Fed. 443, holding article assimilating to albumen of egg not classi-
fied as ** egg albumen " but as albumen, not specifically provided
for; Farbenfabriken, etc. v. United States, 102 Fed. 606, holding coal
tar colors or dyes, not derived from anthracene, not artificial ali-
zarin dyes within tariff laws.

163 U. S. 100-120. Not cited.

153 U. S. 120-129, 38 L. 657, MORGAN v. DANIELS.

Syl. 2 (XII. 564). Patent oflice decision — Priority of tnvciitloD.

Approved in R. Thomas, etc., Oo. v. Electric, etc., Mfg. Co., Ill
Fed. 029, holding decision of patrat oflice, aflirmed on appeal, con-
clusive between parties on second interference proceedings, new
evidence not introduced: John R. Williams Ck>. v. Miller, etc., Mfg.
Co., 107 Fed. 293. holding presumption of validity arises from
decision of patent oflice in favor of later of two patents; dissenting
opinion in Tecktonius v. Scott. 110 Wis, 4^, 86 N. W. 676, majority
holding judgment decreeing band fastener infringed by device of
another adjudicated that the latter device ii an equivalent of the
former.

(XII. 563>. Miscellaneous.

Citeil in Swain v. Holyoke Mach. Co., Ill Fed. 409. to point
bunion rests upon invention Installing invention for practical ««(*
by pun*ha. er to show use expe^'imental. by proofs " full, nneqnlTocml
and oouvinoing."

l.V» U. S. KUV-i.M. ;W L. tU». THE BRITANNIA.

Syl. 4 (Xll, r»(M>. Cv^llision — Rules for vessris crossing.

Ai»prv>vtMl In The .VllHMt Duniois. 177 U. S. 254, 44 L. 760, 20 J^uf
Cr, Ti^U. lilvliiluj: liabiUtY where descending steamer, under ^iV"'
spiHM. obsorvlnj: faulty inoveinent of approaching steamer. falUni
ti» stop and reverse: The i^hioa?:o. 125 Fed. 717. holding privileged
vessel, maintjiinin); sihhhI of eisrht miles an hour, not in fault where
i^thor vt^sol faih^l to stv priviU^ed vessel until too late and then
attenipitsl to on^ss ahead.

Syl. T (Xll. oiK^K iVlIision — Ktvping course.

Appri»Y<Hl in The Minnie. UX^ FtM. 133, holding tug liable where
master saw selioouer iu lime to avoKi collision but failed to take
nieasur\\«4 to avoid same.

Syl. 0 (Xll. :»»0>. iVllision — Vessel violating rules — Liability.

ApproviM in Tlie Albert Pumois. 177 V. S. 250, 44 L. 758. 20 Sup.
Ct i>UU, hoMinj;. under fa^u of case, special circumstance not

%79 Notes on U» S. Reports. J53 U. S. 155-198

exiadBg rendering dei>artiire from rule of navigation necessary to
ttTold coUlsion; The Straite of Dover, 120 Fed. EMM, holding vessel
in fault failing to keep conrse and maintain srpeed as required by
rule: Chesley v. Nantaslcet Beaeh, etc., Co., 179 Mass. 472, 61 N. E.
&1. holding plaintiff not entitled to recover \vltliout showing that
failure to ccwnply with fog signal regulation did not contribute to
accident.

{Xlh 501>. Miscellaneous.

Cited in Smith v. Sbakopee, 103 B'ed. 242, dividing dajnages v/here
boib parlies In fault

13a V. S, 155-182. Not cited.

ISa 0. S. 183-192, 38 L. 680, GOUBKO v. UNITED STATES.
Syl. 2 (XIl. 5643). Homicide— Previous arming.
Approved in Iowa v. Bone, 114 Iowa, 549, 87 N. W, 511» holding
charge defendant without right to arm for self-defense unless
tnUcipatiag assault under circumstances rendering avoidance
thfr*^f ioipossible without danger to life erroneous.

153 D. S. 192-198. 38 L. 685. HANHICK v. HANRICK.

8yl 1 (XII, 566). Circuit Courts — Judiciary acts 1887, 1S8S.

Approved in McDonnell v. Jordan, ITS tl. 8. 238, 44 L. 1052. 20
i^up. Ct. 889, holding petition for removal for prejudice or loc«l
i&flutDtf musrt be filed before or at term cause first triable and be-
ttwt trial thereof; Weldon v. Fritzlen, 128 Fed. 615, denying re-
ttwvai of «iuit against mortgagors and creditor by nonresident mort-
s»^t creditor of eodefendant mortgagors on ground of local preju-
m**: Dougberty v. Yazoo, etc.. M. V. R. R. Co.. 122 Fed. 208,
y^Uiz wbere complaint states joint action against railroad and
ar company, palace-car company not entitled to remove,

- tuilant being citizen where action brought; Foulk v. Gray,
l^> Fed. 163. holding where action brought In State court where

' r party a resident is removed by del'endiuit, plaintiff waives

- Ui object by consenting to orders relating to matters iu con-
t/^vcTTijf; Parkinson v. Barr* 105 Fed, 83. remanding cause removed
•»fl croiind of diversity of citizenship, where cause not separable and
lU ilcfeDdants uot nonresidents, although plaintiff citizen of different
•^tatp from any of defendants: Fife v, Whittell. 102 Fed. 530. deny-
■^n petiiJon to remove on ground of diverse citiKcnshlp, where

'*>■'' t'ltizrnshlp and residence alleged, hut not that defendant

^ .1? ii'»tin-sident of State; Yarneli v. Felton, 102 Fed. 370, 104 Fed.

♦C di^nylng removal upon application of one only of two defend-

aau wtere citizenship of one only differs from plaintiff; Wahl v.

J^rmnat, lOf* Fed. 683, holding proceedings for probate of will on

•yi^eil In State ennrt not removable by eon tes taut, a nonresident.

153 U. S. 199-216 Notes on U. S. Reports. 4S0

on ground of prejudice; Thompson y. Southern Ry., 130 N. G. 142,
41 S. E. 9, holding petition for removal insufficient merely alleging
corporation originaUy created under laws of another State.

SyL 2 (XII, 566). Removal — Local prejudice between defendants.

Approved in Chicago, etc., Ry. Co. v. Martin, 178 XJ. S. 248, 44 ij.
1056, 20 Sup. Ct 855, denying removal of action against railroad and
receivers for wrongful death of plaintilTs intestate upon petition
of receivers.

Syl. 3 (XII, 567). Costs — Party wrongfully removing cause.

Approved in Dougherty v. Yazoo, etc., M. V. R. R. Co., 122 Fed.
211, taxir.? costs of Ckcuit Court and Circuit Court of Api»eals
upon party wrongfully removing cause.

(XII, 566). Miscellaneous.

Cited in Columbia Wire CJo. v. Boyce, 104 Fed. 174, to point tiat
act amending original section, without reference to prior amend--
ments, repeals prior amendatory acts.

153 U. S. 199-216. 38 L. 688, THE EDWIN I. MORRISON.

Syl. 1 (XII, 567). Shipping — Unseaworthiness — Ordinary asaf»
and weather.

Approved in The Tjomo, 115 Fed. 922, attributing loss of cattto
to perils of sea, evidence falling to establish unseaworthiness or
negligence in stowage of cattle.

Syl. 3 (XII, 567). Shipping — Seaworthiness — Obarterer an
insurer.

Approved in The Southwark, 191 U. S. 6, holding breaking down
of refrigerator within three hours of sailing raises presumption of
unseaworthiness; Dene SS. Co. v. Munson, 103 Fed. 986, holding
cariiage of asphalt being within charter terms, damage to vessel
thereby falls upon owner.

Limited in Lake Michigan Car, etc., Transp. Co. v. Crosby, 107
Fed. 725, holding warranty not implied of fitness of barge for iiar-
ticulnr service or that it was equivalent in capacity and slrueluro
to stone scow.

Syl. 4 (XII, 567). Shipping — Seaworthiness — Burden of proof.

Approved in The Southvarlk, 191 U. S. 16, holding own^, burden
of proof not sustained, refrigerator breaking down within three
hours of sailing; Nord-Deutcher Lloyd v. President, etc, 110 Fed.
426, holding due diligence not exercised to make lighter seaworthy,
seaims improperly call^ed, opening and admitting water when boat
rocked by slight swell; The Manitoba, 104 Fed. 157, holding Tessel
sailing with port open, proper diligence not shown in tnaini-*if|iny
watch dui'iug loading.

Notes on U, S. Reports. 153 O. S. 216-239
\fl B (XH, 568). Shipptng-- Excepting perils of sea — Negll-

iPOTcd In Tbe Palmas* 108 Fed, 80. holding ship llaMe when
water In ordinary winter weather entered chain locker and
cargo of fiugar,

3SjL 6 (XII, 568). Shipping— Duty of Inspection,

^^pprored In The Friesland* 104 Fed. 100. hotding evidence failed
sbow proper Inspection, cargo damaged bj sea water entering
fc^B^rongb hole made by corrosion.

U. S. 21G-22a 38 L. m^, RUNKLE v. BURNHAM.

SyL 1 (XII, 568). Trial — Waiver of motion for nonsuit

-Approved in Sigafus v. Porter, 179 U, S. 121. 45 L. 116, 21 Snp.
^^t^ 36. holding defendaat could not asaigo as error refusal to dls-

E evidence put in after refusal; Walton v. Wild Goose Mining.
Co., 123 Fed, 214, holding defendant, introducing evidence after
on denied, cannot assign Bame as error; M'Crea v. ParBons. 112
91S, defendant introducing evidence after motion overruled
»tid not renewing same at close of testimony.

8yl 5 (XII, 568). Appellate court — Fhiding of fact

Approved In Dooley v. Pease. 180 U. S. 132, 45 L. 400, 21 Sup. Ct
331, refoslng to review errors alleged in finding of facts, some evl-
dwoe supporting same; Bradley Timber Co. v. White. 121 Fed. 7S5,
Wldtog both parties concluded by facts foend, court directing
TfiPllct for one, upon motion of both for peremptory Instruction:
iiaaitel v- Brown, 99 Fed. 596. holding finding of fact In action at
^w, Hied by stipulation without Juryi binding where any evidence
wppwts It

SjL 6 (XII, 56&). Presumption — Production of wealter evidence.

ir»proved in In re Kellogg. 113 Fed. 130* holder of mortgage fail-
tojf to call original holder or person in whose favor mortgage made,
^ clear transaction of usurious character; American Bell TeL Co. v.
XiCloiuU TeL Mfg. Co., 109 Fed. 10X8. holding absence of witnesses
wlu» could testify upon important issue Justified presumption that
i9tk lettif&ooy would be unfavorable.

m V. a. 228-230. 38 L, 698, BURKE V. DULANEY.

1^ 4 (XII, 509). Evidence — Rule excluding parol evidence.

Apprf>Ted In Keene Mach. Oo. v. Barratt, 100 Fed. 594, holding

did not become effective where materially altered after

out of plaintiff's hands; llurlburt v. Duseubury; 26 Colo.

^•C 67 Pac. S61. and Reiner v. Crawford, 23 Wash. 071, 03 Pac. 517,

admitting parol evidence to show written contract inoperative

of separate oral agreement constituting condition precedent;

Vol 111 — 31

153 U. S. 239-286 Notes on U. S. Reports. 482

Southern Adv. Oo. v. Metropole Co., 91 Md. 68, 46 Atl. 515, adnalt-
ting parol evidence to show parties never intended written Instm-
ment to be binding; Catt v. Olivier, 98 Va. 584, 36 S. E. 981, admit-
ting evidence to show notes delivered upon conditions not fulfilled.
Syl. 5 (XII, 569). Parol evidence — Bills and notes — Incomplete
delivery.

Approved in Hartford Fire Ins. Oo. v. Wilson, 187 U. S. 474, 23
Sup. Ct 192, 47 L. 26^, holding insurance company not liable, policy
delivered upon understanding policy not binding mitil company
inspected premises and accepted risk.

153 U. S. 239-245. Not cited.

153 U. S. 246-252, 38 L. 705. IN RE CITY NATIONAL BANK.

Syl. 1 (XII, 570). Appeal — Mandamus proper — Mandate dis-
obeyed.

Approved in State v. Dickinson, 63 Nebr. 872, 89 N. W. 432, awara-
ing mandamus to compel lower court to vacate restraining order
and to proceed to hearing in accordance with mandate of appellate
court; State v. Norris, 61 Nebr. 463, 85 N. W. 436, denying writ,
lower court not disobeying mandate, refusing to render judgment for
interest mandate merely directing judgment for amount found due;
State V. Omaha Nat. Bank, 60 Nebr. 235, 82 N. W. 850, awarding
mandamus, District Court misconstruing mandate of appellate court.

Syl. 2 (XII, 570). Mandamus — Remanding — Correcting lower
court's errors.

Approved in The Union Steamboat Co., 178 U. S. 319, 44 L. 1085.
20 Sup. Ct 905, holding where lower court refused to give effect
to mandate as contended for by party, remedy is by appeal and not
l)y mandamus; dissenting opinion in State v. Omaha Nat Bank. OD
Nebr. 244, 82 N. W. 853, majority awarding mandamus, low^ court
misconstruing mandate of appellate court.

153 U. S. 252-273, 38 L. 706, NORTHERN PAC. R. R. V. CLARK.

Syl. 2 (XII, 571). Injunction to restrain tax collector.

Approved in Southern Ry. Co. v. North Carolina Corp. Comm., 97
Fed. 514, compelling complainants to tender and pay into treasury a
tax measured by assessment plainly legal.

153 U. S. 273-286, 38 L. 714, MANN v. TACOMA LAND CO.

Syl. 1 (XII, 571). Navigable waters — Title to tide lends.

Approved in Pacific, etc., Co. v. Packers* Assn., 138 Cal. 638, 72
Pac. 1G3, holding right of fishery in ocean, whether in open sea or
where waters ebb and flow over tide land. Is a puWic right; dissent-
ing opinion in Scranton v. Wheeler, 179 U. S. 167, 45 L. 139, 21 Sup.
Ct 58, majority holding riparian owner not entitled to compensation
for loss of access to navigability by erection of pier restiiig upon
submerged lands.

483

Notes on U, S, Reports. 153 U. S. 287^308

11)01]

I

BjrL 2 (XII, 5T1). Public lands — Acts of Congress — Tide lands.
Approved in Barker v. Harvey, 181 U. S, 490, 45 L. 968, 21 Sup.
Ct- 6W, holding lands burdened with rlpht of permauent occupancy
part of public domain subject to full disposal by United States;
adden v. Mountain View Min. & illll Co., 97 F^. flSO, holding
iTlUe reservation restored to public domain not open to explora-
af mlDerals and location of mining claims in advance of presl-
ifi proclamation*
Distinguished in United States v. Blendanr, 128 Fed. 913. hold-
Ins lands of Flathead Indians, made by congressional acts subject to
■de and homestead laws, became part of public domain subject to
•iCt setting apart "public lands ** as forest reservation.
Syl. 3 (XII, 571>- Public lands not Including tide lands.
Approved In Minnesota v. Hitchcock, 185 U. S. 392, 46 L. 964, 22
Sup. Ot 657, holding lands known as Red Lake Indian reservation
did not pass under school grant to State; Stockley v» Clssna, 119
Fed. 836, holding act providing for granting ** vacant lands *' not
Applicable to Misslsaippl river bed becoming dry by change of course,
8yL 4 (XII, 571), Public lands — State dlsdalmlog tide lands.

Approved in Jones v. Callvert 32 Wash. 612, 73 Pac. 702, denying
Stite ri;;ht to sell tide lands with la Indian reservation and patented
to loilividual members of tribe.

153 U. 8. 287-2S9, 38 L. 718, BAER v. MORAN.

S5I 2 (XII. 571). Evidence — Judicial notice-*" Mud flats,"

8^ note, 82 Am. St Hep, 440.
153 tl, 8. 289-308, 38 L, 719, BRENNAN v, TITUS VILLiB.

Syl 1 (XII. 571). United States — Conflict of laws.

Approved In Lowry v. Tile, etc., Assn., lOG Fed. 43, holding aa-
•ocliHoa of tile dealers formed to restrain trade between San
Frtndsco and eastern dealers illegal and violative of anti'trust
ict

SyL 2 (XXI, 572), Interstate commerce — Police power of State.

Aj)()roved In Pabst Brewing Co. v. Terre Haute, 98 Fed, 334,

iflldiikf city ordinance, attempting to Impose tax upon depot maiiv

tilaed by brewing association of another State, Invalid; State v.

Skkff^ G4 Kan. G52, (*8 Fac. 36. holding State law, placing sub-

•tiBttoi restrict ions upon nonresident salesman taking orders for

llqmrs to be purchased in and shipi>ed from another State, invalid;

Adkins V. Richmond, 9S Va. 97, 34 S. B. 9tt9, denying right of State

to txz ft£ent of Donresidc^nt, sollctlng orders by sample, receiving

inuBlMlon therefor.

0llllBsiiIsbed In Atlantic & Pacific Tel Co. v. Phlladclpliifl, 190
CT. 8. 1«S2. 23 Sup. Ct 818. 47 L. 999. siistainlng city ordiniince Im-
posiog f^a^onable license fee upon telegraph company far enforce

153 U. S. 30^^18 Notes on U. S. Reports. 484

ment of local goyernmental supervision, leaying question of reason-
ableness to jury.

Syl. 3 (XII, 572). Interstate commerce — License tax on nonresi-
dent agent.

Approved in Norfolk, etc., Ry. Co. v. Sims, 191 U. S. 450, deny-
ing right of State to tax Importer receiving goods from another
State in original packages upon payment of agreed price; Galdw^
V. North Carolina, 187 U. S. 628, 630, 631, 23 Sup. Ct 231, 47 L. 340,
341; Stockard v. Morgan, 185 U. S. 36, 46 L. 704, 22 Sup. Ct 580;
Ex parte Green, 114 Fed. 960; People v. Bunker, 128 Mich. 162, 87
N. W. 91, and Adkins v. Richmond, 98 Va. 100, 34 S. E. 970, all deny-
ing right of State to tax agent soliciting orders for nonresident upon
commission; Stone v. State, 117 Ga. 294, 296, 43 S. E. 741, 742,
holding State law, making it a misdemeanor to peddle without a
license, not applicable to agent of nonresident manufacturer al-
though agent, upon receipt of goods, breaks original packages and
distributes same among customers; Commonwealth v. Pearl Laun-
dry, etc., Co., 105 Ky. 266, 49 S. W. 28, denying right of State to
impose license fee upon person collecting and forwarding clothes to
foreign laundry upon commission; Talbutt v. State, 39 Tex. Cr. G5,
44 S. W. 1091, holding occupation tax upon sale of lightning rods,
manufactured outside State upon orders taken by traveling sales-
man, unconstitutional; State v. Willingham, 9 Wyo. 293, 87 Am. St.
Rep. 950, 62 Pac. 798, declaring municipal tax void against agent
soliciting orders for pictures and frames for nonresident manufac-
turer. See notes, Saulsbury v. State, 96 Am. St Rep. 850, 851.

Distinguished in Racine Iron Co. v. McCommons, 111 Ga. 540, 543,
36 S. E. 867, 869, upholding license tax upon traveling agents of
nonresident principals receiving goods in original packages, break-
ing same and distributing contents to customers; Williams v. Fears,
110 Ga. 589, 35 S. E. 700, upholding tax upon person, known as
" emigrant agent," hiring laborers within State to be employed with-
out State; State v. Caldwell, 127 N. C. 525, 37 S. E. 139, sustaining
ordinance taxing agent who receives ** knock down " pictures and
frames from nonresident puts them together and delivers them to
customers.

(XII, 571). Miscellaneous.

Cited in United States v. Swift 122 Fed. 531, holding agreement
between large number of defendants to refrain from bidding against
one another in purchase of cattle combination in restraint of trade.

153 U. S. 308-318, 38 L. 725, BLITZ v. UNITED STATES.

Syl. 3 (XII, 574). Appeal — Motion for new trial.

Approved in Waterhouso v. Rook Island, etc., Min. Co.. 97 Fed.
477. holding, under United States practice, order overruling motion
for new trial not reviewable.

M Notes on U. S. Reports. 1^ U. S. 31S-S31

Syl 5 (XII, 574). Indictment following statute — Nature of
ftceusatlon.

Ai>proTed In Dalton t. Unfted Stutes, 121 Fed. 546, holding Indict-
ment for uslDg mails for jjurpose of fraud must set out facts con-
rtltating scheme or artifice In direct acd positive averment i United
States V. Green, 115 Fed. 352, and 100 Fed, »4T, holding indictment
diarging conspiracy to defraud United States by presentation of
fraadnlent claims insufficient where it fails to show In wiiat respect
dalm frandulent

(XII, 574). Miscellaneous.

ated In Logan v* United States, 123 Fed. 2!M, to point that two
offenses cannot be created out of same criminal act l)y charging
forgtag of note In one count and forging signatures In other.

153 U. S. 31S-331. 3S U 729, McBROOM v. SCOTTISH M0E1\,
ETC., INVESTMENT CO.

8yL 3 (XII, 575). Usury — Statutes not forfeiting princlpaJ and
taterest

Approved in Talbot v. First Nat. Batik, 185 U. S. 181, 46 L, S62,
22 8ui>. CL 61t). allowing recovery of legal interest wliere greater
mte charged; Petterson v, BeiTy, 125 Fed. 906, holding in action
npofl mortgage bearing 12 per cent, interest, executed when laws
United rate to 10 per cent, not open to defense of usury where
Itwi pawed prior to suit fixed rate at 12 per cent; Hamilton
V. Fowler. 99 Fed, 24, holding innocent purchaser for value be-
fore maturity unaffected by fact that unlawful rate of interest!
iodude^ In principal of note; dissenting opinion in Citizens' Nat,
BadJc t. Forenaan, 111 Ky, 222. m S. W. 757, majority holding
atttonai baolia at once forfeit all Interest when tliey contract for
tammt at usurious rate.

SyL 4 (Xn, 575). Criminal law — Statutory remedies and pen-
attiea.

iW>roved in Central Stoclsyards Co. v. Louisville, etc, R. R. Co.,

112 Fed. 826. refusing injunction to compel common carrier to niTord

^Bal and proper facilities, Interatate commerce act providiui: for

^ioiages only for such refusal; Allen v. Petty, 58 S. C. 244. 'M S. E.

fi67, Itoldlng coort cannot allow a penalty not found in statute;

dlneiitlDg opinion In CitlKcns' Nat Bank v; Forma n. 111 Kj-. 223,

® S. W, 758, majority holding debtor s right of action, under lie-

rl*wl Statutes of United States, to recover double amount of usuri-

OM interest paid, not applicable when note discounted.

$jL 5 (XIl, 575). Usury — Penalty for usury — Recovery.

Clltd 111 Citizen's Nat. Bank v. I^^ormnu, 111 Ky, 212. 217, 63 S. W.

4S6i €57, denying riglit to recover penalty for usury, unless payment*

153 U. S. 332-^6 Notes on U. S. Reports. 4SG

specifically applied by debtor to usurious Interest; Haa^ltlne t. Bank,
155 Mo. 68, 69, 74, 56 S. W. 895, 896, 898, denying suit to recover
twice the amount of usurious interest paid where borrower has not
paid or offered to pay principal of note. See note, 85 Am. SL Rep.
539.

Distinguished in Louisville Trust Co. v. Kentucky Nat. BanK,
102 Fed. 446, holding where national bank discounts note at usurious
rate, maker upon payment of note entitled to recover double amount
of discount thus taken; Citizens' Nat. Bank v. Donnell, 172 Mo. 418,
72 S. W. 935, denying national bank right to apply excessive usu-
rious Interest to payment of loan, under United States statute,
entire amount of interest forfeited.

153 U. S. 332-352, 38 L. 734, GATES IRON WORKS v. FRASER.
(XII, 575). Miscellaneous.

Cited in Neptune Meter Co. v. National Meter Co., 127 Fed. 567,
declaring patent void for lack of invention where same principle
applied in old way to accomplish old result; Johnson v. Chisholm,
115 Fed. 632, declaring pea-hulling machine void for lack of patent-
able novelty in view of prior art; dissenting opinion in Justi v.
Clark, 108 Fed. 609. to point that changes made in prior mechanism
were so slight and obvious that nothing beyond ordinary mechanic's
skill was employed.

153 U. S. 353-560, 38 L. 742, SOUTH CAROLINA v. SEYMOUR.

Syl. 1 (XII, 576). Supreme Court — Jurisdictional amount.

Approved hi United States v. Ware, 189 U. S. 508, 23 Sup. Ct. 853,
47 L. 922, reaffirming rule; Butters v. Carney, 127 Fed. 623, hold-
ing In ejectment amount in controversy is not value of defendant's
claim but value of whole property daimed by plaintiff in complaint;
State V. Frost, 113 Wis. 643. 89 N. W. 918. allowing receiver to
remove suit, brought by State to enjoin destruction of road by dis-
mantling same, where materials composing road are salable for
many thousand dollars,

153 U. S. 361-361;. 38 L. 745, MASON v. PEWABIC MIN. CO.

Syl. 1 (XII, r>7tH. Supreme Court — Jurisdiction — Appeal from
solicitor's allowancos.

Approveii in TallH>t v. Mason. 125 Fed. 102, holding claimant ac-
cepting smaller sum l>arred from prosecuting appeal from order dis-
allowing claim: In re Michigan Cent. R. R. Co.. 124 Fed. 733, hold-
ing appeal lies from decree of Circuit Court allowing fees to clerk aa
a matter of iH»sltive law.

Syl. 2 (XII. 576^. Ap|H^l — Mandamus to compel execution of
mandate.

Approved in James v. Central Trust Co^ 108 Fed. 931^ denying

W Notes on U. S. Reports. 153 U, S. 307-390

miDdamas where Circuit Court errs In construing order of appel-^
late court remanding cause for modiflcation; The New York, lOS
Fed. 105, affirming lOi Fed. 566. Circuit Court of Appeals enter-
UlDlag appeal from decree eutered by District Court after receipt
of mandate as to matters left open by mandate; State v, Dlclchisoa,
US Xebr. 872, 89 N, \V» 432, granting mandamus where lower court
fitraius one party from proceeding in pursuance with mandate of
f ippeUate court: State v. Norris, 61 Nebr. 41*3. 85 N. W. 430, holding
maodaxDOB appropriate remedy to make niimdate of reviewing
com effective; State v. Omaha Nat Bank, 00 Nebr. 235, 82 N. W.
851 (dissenting opinion, 60 Nebr. 244. 82 N. W. 854). majority en-
fortlng obedience where lower court misconstrued mandate of ap-
peilAte court

153 U. S. 367^79, 38 L. 74T, ROBERTS v, LEWIS,
Syl 1 (XII, 577). Federal courts — State statutes — Construction.
Approved in National, etc., Pipe Works v. Oconto City, etc.,

Supply Co., 113 l^ed. 796, following State declBions and huldtug

tmder State statute water-works property not subject to mechanlc*8

Ueo.

SjfL 3 (XII, 577). Wills — Power to convey.

Approved in Woodbrldge v. Jones, 183 Mass. 552, 67 N. E. 879,
IwWing will devising property to wife as lon^ as she lives, with
power to dispose same, remaioder to go to heirs, created life estate
^fh power of absolute conveyance; Honaker v. DufiF, 101 Va, 0S3,
^ 8, E. 902, holding life estate not enlarged by power to dispose of
f*inilnder at death.

DlstingnlBhed In Schimpf v. Rbodewald, C2 Nebn 111. 86 N. W,
^10, laoidlng will devising to wife all testator's property with con-
trol over same as long as she lives devises life estate only.

153 U, S. 380-390. 38 L. 751, MERCHANT v. PENNSYLVANIA

8yl 1 (XII, 577). Supreme Court— State decisions. State law.
Approved in Clarksburg, etc., Co. v. Clarksburg, 47 W. Va. 747, 35
8' E. 9t>7, following decision of State court that town counsel under
'•barter and State law was witliout power to grant private corpo-
riUoa excluslTe franchise to use street for definite period,
Sjl 2 (XII, 577>» Constitutional law — Due process.
Approved in Weston v. Ralston, 48 W, Va, 187. 3B S. E. 454, deny-
^IT pemoD Instituting action to enjoin municipal atithorities from
nsDOVlDg obstructions In street rigbt, upon adverse decision ren-
ftired, to complain of undue process; dissenting oplnioo in Hendry x
r Perkins, 114 Fett 824, majority refusing to vacate decree Imsed
»pon facta not submitted and upon wrong papers through mistake.

153 U. S. 391-110 Notes on U. S. Reports. 488

Syl. 3 (XII, 678). Constitutional law — Ck>n8equential injnry —
Compensation.

Approved in Austin y. Augusta Terminal Ry., 106 Ga. 679, 694, 34
S. B. 855, 861 (distinguislied in dissenting opinion, 108 Ga. 725, 84
S. B. 873), majOTity holding railroad not liable to prop^ty-owner
for diminution in market yaiue, resulting from making ot noise and
sending forth smoke.

DisttQguished in United States y. Lynch, 188 U. S. 473, 23 Sap. Ct
:ir)8, 47 L. 550, holding riparian owner entitled to compensation
where govemment by erecting dam floods lands, totally destroying
tlieir value.

Syl. 4 (XII, 579). Constitution — Bqual protection of laws.

Approved in Austin v. Augusta Terminal Ry., 108 Ga. 684, 34 S. Bl
s,j7, holding railroad not liable to property-owner for depreciation
in market value due to smoke and noise; State y. Whitehouse, 95
Me. 185, 49 Atl. 871, upholding statute imposing punishment upon
guardians embezzling property of wards; State y. Montgomery, 94
Me. 206, 47 Atl. 169, holding statute providing that any citizen of
United States may obtain license to peddle, excluding alien from
obtaining like privilege, void; Pinney v. Provident Loan, etc, Co.,
106 Wis. 401, 82 N. W. 310, declaring statute void, providing that
service may be made upon domestic corporation by leaving process
with register.

153 U. S. 391-410, 38 L. 757, BRASS v. NORTH DAKOTA.

Syl. 1 (XII, 578). Commerce — Regulation of grain elevator rates.

Approved In Cottlng v. Godard, 183 U. ». 84, 86, 46 L. 90, 100,
•J2 Sup. Ct. 33, upholding power of State to regulate stockyards
company, but holding particular statute Invalid, attempting to regu-
late one company and not all engaged in like business; State y.
Jacksonville Term. Co., 41 Fla. 406, 412, 27 So. 234, 236, upholding
regulations made by rnilroad commissioners, requiring terminal
company to admit railroad company to benefits of terminal facil-
Jtles; State v. Kiuloch Tel. Co., <J3 Mo. App. 359, 67 S. W. 686, issu-
ing mandamus to compel telephone company to rent plaintifT a tele-
phone instrument and funiish him service thereon; Andrus v. In-
surance Assn., li;8 Mo. KU^, 07 S. W. 585, holding insurance com-
panies not denied eciual protection of laws by practice of admitting
proof of waiver of policy terms, without special plea of waiver.

Distinguished in State v. Associated Press, 159 Mo. 450, 60 S. W.
102, refusing to compel the Associated Press to furnish to the Star
Publishing (^onipany hudpet of news collected by the former; Falls-
burg, etc., Co. V. Alexander. 101 Va. 100, 43 S. E. 198, denying legls-
lature's rljrht to autliorize corporation to condemn private property
to locate plant for water power, heat or lijjht

Notes on U, S. Reports. 153 U. S. 411-435
Syl 3 (XII, 579). Carriers — Warehouseman — Statu tor j regula-

Diatiii^ahed In Dodge v. Mission Tp., 107 Fed. 833, declaring
township bonds. Issued for tlie promotion of ml Us and factories to
Bumufactore sorghum cane into sugar^ vold^ pui^iose private.

128 U. 8. 411^435, 38 Ix 7W, NEW ORLEANS v. BENJAlVnN.

SyL 1 {XII. 579). Federal court — JurlsdlcUon — Suits ouder
Coo^tutJon.

Approved In Chrystal Springs Land, etc., Co. v. Los Angeles. 177
r. 8. 189, 44 L. 720, 20 Sup. Ct 573, dismissing for want of Jurlsdlc-
Koa ap<m authority of principal case; Elkins t. Chicago, 110 Fed,
910. denying jurisdiction of action tietweeu city and street railway
lA to terms of grant although city council passes resolution fixing
explradon of franchise and advises measures for dispossession of
rotl

SyL 2 (XIl, 579). Suprecoe Court — Constitution — State court.

Approved in Cincinnati, Hamilton, etc., Ry. Co. v, Thlebaud, 177
U. S. 620, 44 L. 913. 20 Sup. Ct 824, dleniissing writ of error, cer-
Ulictte showing constitutionality of State statute not raised or cou-
^d<red hi Circuit Court hut presented for first time In Circuit Conrt
^ Appeals.

Syl Z (XII, 580). State abolishing police organization.

Approved in Emshetmer v. New Orleans, 116 Fed. S94, 8£^5, hoM-
ifig &ct aljolishing police board did not relieve New Orleans from
Jl*blllty for expense of policing district

Syl 4 (Xn, 580). Circuit Court — Jurisdiction by averment

Apiiroved in Bankers', etc., Co. v, Minn., etc.. Ry.» 192 U, S.
586, 24 Sup Ct 330, holding la action against railroad for loss of
Bta, fact suit Involved relatloas of railroad to government did not
Wt la controversy construction of United States laws or Coostitu-
ttefi; Defiance Water Co. v. Defiance. 191 U, S. 101, holding record
Bimt i^ow by statement in legal and logical form, as required in
! leading, that suit depeaids upon construction of United States
-r CoQStttutioo.

Syl 7 (XU. 5S0). Circuit Court — Jurisdiction — Suit by assignee.

Approved in Smith v. Packard, 9S Fed. 797* asaumini? Jurisdiction
*i suit bj plaintiff in attachment on forthcoming bond taken by

cut, bW. Miscellaneous.

CK«d in Defiance Water Co. v. Defiance, 191 U. S. 104, to pre-
OUhfUlOxi that State courts will do what United States laws and
Orartftntlcni require; Carter v. Roberts. 177 V. S. 5m, 14 L. .S(i3.
m Bup, Ot 714, to point that where case involving construction of

J

153 U. S. 43&-464 Notes on U. S. Reports. 400

United States Constitution is appealed to Circuit Court of Appeals,
such court may decide whole case or certify constitutional ques-
tion and afterward proceed to Judgment or decline Jurisdiction:'
dissenting opinion in American Sugar Refining Co. y. New Orleans.
104 Fed. 5, majority holding Circuit Court of Appeals should de-
cline Jurisdiction where controlling question in case Involves con-
struction of United States Constitution, although question not
raised by plaintifiTs pleading; dissenting opinion in City of Dawson
V. Columbia Ave. Saving Fund, etc., Co., 102 Fed. 209, majority
denying appeal to Circuit Court of Appeals from order granting in-
junction, where municipal ordinances are claimed to violate Con-
stitution and other question involved.

153 U. S. 430-446, 38 L. 773, ASHLEY v. RYAN,

Syl. 3 (XII, 580). Foreign corporations doing business under
State laws.

Approved in Winn v. Wabash R. R. Co., 118 Fed. 65, denying
foreign corporation's right to remove cause of action, arising within
State, on ground of diverse citizenship; Ashland Lumber Co. t.
Detroit Salt Co., 114 Wis. 78, 89 N. W. 908, upholding validity of
act declaring corporation's contracts, affecting personal liability
made before complying with statutory requirements, wholly Toid.

Syl. 4 (XII, 580). Corporations — Statutory conditions for doin^
business.

Approved in Jones v. Mutual Fidelity Ck>., 123 Fed. 532, declaring
contract of foreign corporation, made before complying with statu-
tory provisions, unlawful and void as to contractual rights; Chicago,
etc., R. R. v. State, 153 Ind. 145, 51 N. E. 928, upholding act estab-
lishing fee for filing articles of incorporation and enjoining railroad
from doing business until same paid.

Syl. 5 (XII, 581). Commerce — Foreign corporations — State tax.

Approved in Purdy v. Erie R. R., 162 N. Y. 49, 56 N. E, 510, sus-
taining mileage-book acts when limited to railroad transportation
wholly within State.

ir»3 U. S. 440-450, 38 L. 778, EAGLE INS. CO. V. OHIO.

Syl. 3 (XII, 581). Corporations — Withdrawal of privileges.

Approval in Powlby v. Kline, 28 Ind. App. 664, 63 N. E. 724. op-
hoUling constitutionality of act, providing that notes, etc., of build-
ing and loan nssoi'intions shall not be negotiable without order of
Circuit Court or Judge.

• 153 U. S. 45r^-404, 38 L. 781. STEWART V. BARNES.

Syl. 1 (XIL 581). Internal revenue — Appeals to commissioner.

.Approval In Clioscbrough v. United States. 192 U. S. 262, 24 Snpu
Ct 2(»5, holding subsequent application to commissioner to refund

^2

Notes on U. S« Reports.

loS U. S. 4fi5K-509

tofsffldent and act equivalent to a protest made or notice given at

lime of purchase of stamps.
S7L 4 (XII. 581). Damages — Money withheld — I ntere^,

Apjjrored In Maloy v. Comity Comrs., 10 N, Mex. 6*}8» (i2 Pac.
1X1 4» holding interest accrues from time county treasurer fails to
pflj over to successor balance of public funds.

153 D. 8. 4€5-48e, 38 L. 785. GROVES v. SENTILL.

SyL 11 (XII. 582). Costs — Party interpleading — Solicitor's fees.

Approved in Provident etc.. Assur. Co. v. Loeb. 115 Fed. 35D.
mtiiinlng bill of interpleader wbere complainant averred right to
dwJuct certain amount from policy for semi-annual premium;
McNjimara v. Provident Sav. Life. etc.» Soc, 114 Fed. 012. 91-I.
Mding insurance company, filing bill of interpleader, depositing
UMKmt due In court, entitled to solicitor's fee. See note. 01 Am.
fit Rep, 506,

DlBtlngruished in Stevens v. Life Ins. Co., 26 Tex. Civ. ICO. C2 S. W.
W allowing Insurance company, liling bill of interpleader, cost
uad attorney fees aa against claimant awarded full amount of
prmiuiuM paid,

153 1. S. 48^-^9. 38 L. 703. MOBILE, ETC., R. R. v. TENNESSEE.
SyL 1 (XII, 582). Federal courts — State court upholding State
Itwa

Approved In Wilson v. Standefer, 184 U. S. 412. 46 L. 6ia 22
*op, Ct 389. reviewing and sustaining Texas Supreme Court's
»leil«toa that State not precluded by contract from changing mode
of procedure aa to purchasers in defaiilL

4*)L 2 (XII, 582). Supreme Court — Impairment of contracts.

Approved In Stearns v. Minnesota, 179 IJ. S. 233. 45 L. 170, 21 Sup.
^ 77, holding legislature changing rate of taxation of raih-oad
l^wperiy impaired the obligation of contract; Hunt v. Searcy, 107
^0. 181, 67 S. W. 213» holding, under Constitution 1S20, judgment of
'^^lifty without notice to or ap|>earauce of person adjudged insane
riM, regardless of whether statute requires notice or not,

**^3i 3 (Xll. 583), Supreme Court's jurijjdictlon unaffectctl by
***t^ court

Approved In Deposit Bank v. Frankfort, ini U. S. 518, holding
Fidfiral court's adjudication, establislilug exemt>tion from taxation.
tiMd Qpoa State eoarfs decision, unaHeeted by subsequent reversal
«f laid decision.
(Xn, 5821. Mlseelianeoua.

Cited In Terre Haute, etc.. R. R. Co. v. State» 159 Ind. 461. m
1L £. 40f>, deducting interest allowed to siihacribers and discount
^pd purchaser* of bonds to ascertain capital stock actually iu-
ID road.

153 U. S. 509-«4 Notes on U. S. Keports. 492

153 U. S. 609-523, 38 L. 802, SLIDE, ETC., GOLD MINES v. SEY-
MOUR.

Syl. 3 (XII, 584). Vendor's Hen — Abandonment — Presumption.

Approved in Roenbaum y. Hayes, 10 N. Dak. 327, 86 N. W. 979,
holding defendants failed to establish waiver of factor's lien, mort-
gages taken being additional secm'ity.

153 U. S. 523-525, 38 L. 807, SEYMOUR v. SLIDE, ETC., GOLD
MINES.

Syl. 3 (XII, 585). Foreign corporations — Right to hold realty.

Approved in Sanders v. Thornton, 97 Fed. 864, denying recovery
of i>os8e8sion of lands by one holding legal title in trust for defend-
ant lacking citizenship to hold such lands.

153 U. S. 525-534, 38 L. 808, LUXTON v. NORTH RIVER BRIDGE
CO.

Syl. 1 (XII, 585). Congress — Powers — Organizing corporations.

Approved in Overholser v. National Home for Disabled SoldierSt
68 Ohio St 247, 67 N. E. 489, 90 Am. St Rep. , upholding con-
gressional iwwer to establish National Home for Disabled Volunteer
Soldiers.

Syl. 3 (XII, 585). Commerce — Congress — Interstate bridges.

Approved in dissouting opinion in Southern, etc.. Bridge Co. T.
Stone, 174 Mo. 44, 48, 73 S. W. 404, 4G5, majority allowing Illinois
bridge company licensed in Missouri to condemn right of way for
bridge across Mississippi river.

1-53 U. S. 5.-55-530. 38 L. 812, MILLER v. TEXAS.

Sj-l. 3 (XII, 58(>). Supreme Court — Federal question not claimed.

Approved in Wettiner v. Bishop, 191 U. S. 501, reaffirming rule;
Weber v. Koajjan, iss U. S. 14, 23 Sup. Ct. 204, 47 L. 305, refus-
injC to consider proceediiiKs to compel commissioner to convey lands
where State decision declarcMl act discretionary with commissioner;
Erie R. R. v. Purdy, isn IJ. S. l.>4, 40 L. 851, 22 Sup. Ct. 007, dis-
missing suit wliere SUite court declined to pass ui)on Federal ques-
tion not raised in trial court

153 U. S. 540-554, 38 L. 814. ANVIL MINING CO. V. HIMBLB.

Syl. 3 (XII, 580). Damafjes — Breach of contract — Profits.

Approved in Fidelity Co. v. Bui ki Co., 189 U. S. 142, 23 Sup.
Ct 5S5, 47 L. 751, holding sureties on attachment bond not liable
for damai^e caused by j)laintiff's failure to deliver materials or
for reflection upon delcndant's ( ivdit; Hichhorn, Mack & Co. v.
Bradley, 117 Iowa. 1 :'>'.». DO N. W. 505, admitting evidence of sales
of cigars after l>rea<-b, wliere contract appointiug plaintiiT agent
to sell cigars illegallj' revolved.

m

Notes 00 U. S. Reports.

153 U, S. 554-€0S

Sjl 4 (XI1» 586). Contracts — Stopping performance — Action

Approved to Hichborn v. Bradley. 117 Iowa, 141, 90 N. W. 595,
admitting evidence of sales of cigars raade after breacti, conti*act
ippointfjig plaintiff agent iJlegaliy revolced.

8yl 6 (XII, 586). (Contracts — Preventing: performance — Action.

Apiiroved to Roebm v. Horst 178 U, S. 15. 44 L. 059, 20 Sup. Ct.
J8Sk holding suit maj be immediately instituted by injured party
vliett ttotiee given contract would not be performed: H. D. Wil-
UimSt etc, Co, v. Scofield, 115 Fed. 123, holding where plain tl ft
broke contract and bought from other dealers defendant had right
to refuse fortber delivery and resciad contract; Bonnano v. Tweedle
Trading Co., 117 Fed. 94^4, refusing to cancel charter where char-
tew by Abstractive tactics prevents owner from entering vessel
%X custom before time required in charter; Clark v. American, etc.,
lUn, C<K. 28 Mont. 476, 72 Pac. 980, denying plaintiff, failing to
perform, return of instalments, contract silent thereto; Moore v.
Guartian Trust Co.,, 173 Mo. 245, 73 S. W. 151, holding lessor,
wrongfully enjoining lessee from subletting premises, not entitled
to rent flrom lessee or sublessee.

153 U. 8. 554-564. 38 U 819, CHICAGO DEPOSIT VAULT CO. r.

McNITLTA.

8jL 1 (XJI, 587). Receivers ^ — Power to Incur expense.

Approved to Farmers' Loan & T. Co. v. Eaton, 114 Fed. 16, hold-
tof receiver under authority of court may lease property; Jones v.
Boaeb, 21 Tex. Civ. 303. 51 S. W. 551, holding in absence of proof
«f limitation of power receiver has authority to contract to send
Bi««age lo end of own line and there deliver It to another.

Dlatingulfihed in Bra man v. Farmers' Loan & Trust Co., 114 Fed.
21, dinilowing |2,952 for hotel bills alleged paid by receiver while
to Xiw York on receivership business.

15a IT. 8l 564-583, 38 L. 822. LOUD v, POMONA LAND. ETC,, CO.

SyL 3 (XII. 588). Contracts — Dependent and independent co ve-
lum ts — Cooatructlon.

Approved to Warner v, Cochrane, 128 Fed. 557, holding lessor,
hiring refused to renew, not entitled to differential payment pro-
fldfd for; Mutual Life Ins. Co. v. Kelly, 114 Fed. 277, construing
BDtufll covenants and holding covenant against suicide to poOcy
limited to two years* period.

US3 U. 8. 584-^8. 38 L. 830, EVANS v. UNITED STATES.
MfL 1 (Xll, 588), Indictment following statute ^ Statutory mis-

red to In re Beilah, 110 Fed. 73, holding petition in invol-
iMiDluruptcy. averring defendant received specLded aunJt

153 U. S. 5S4-608 Notes on U. S. Reports. 4M

which sum ''he has ever since concealed;** etc, sufficiently particular;
Johns T. State, 159 Ind. 416. 65 N. E. 2SS, holding information for
bunco-steering, ^charging defendants by ** duress and fraud " accom-
plished crime, without setting f(»th nature of duress and fraud,
insufficient.

SyL 2 (XII, 5S8). Crime — Charging with precision and certainty.

Approved in United States t. Melfi, 118 Fed. 904, holding indict-
ment to defraud United States, by fraudulently conspiring to re-
ceive certificates of citizenship, fatally defective, where object
of conspiracy not set forth; United States r. Dimmick, 112 Fed.
353, holding on motion to arrest Judgment indictment sufficient
alleging defendant feloniously failed to deposit public money on
certain date; Milby v. United States, 109 Fed. 641, holding indict-
ment insufficient failing to allege defendant did not int^id and
would not send counterfeit money upon receipt of price.

Syl. 3 (XII, 589). Criminal law — Indictments for misdemeanora.

Approved in dissenting opinion in Rieger y. United States, 107
Fed. 934, majority holding indictment sufficient charging willful
misapplication of funds of national bank, without alleging money
actually withdrawn.

Syl. 4 (XII, 589). National banks — Biisappropriation of funds —

Indictment,

Approved in McKnight v. United States, 115 Fed. 985, holding
averment, charging that fraudulent transaction was without con-
sent of officers, need not be proved where transaction one to which
directors presumed not to consent; United States v. M*Clure, 107
FiHl. 271, sustaining indictment for aiding misapplication of
national bank funds, distinctly charging '* embezzlement " by cashier
of bank for benetit and gain of defendant; Bliss v. United States,
11V5 Fed. 510, sustaining conviction of defendant indicted for aid-
ing and abetting another in counterfeiting notes, without proving
or alleging conviction of principal.

Distinguished in dissenting opinion in Rieger v. United States,
107 Fed. 933, majority holding indictment sufficient charging wlU^
ful misapplication of funds of national bank, without alleging
money actually drawn from bank.

Syl. 5 (XII, 5S0). Criminal law — Counts — Repeating elements
of offense.

Approveil in United States v. Greene, 115 Fed. 352, reading, m
construing indictment for conspiracy to defraud United States,
statement in first count of general scheme, puri)ose intended, man-
ner of accomplishment and powers of alleged conspirators as
United States officers into everj- count

Notes on U, S. Reports. 1^ 11. S. 608, 609

SyL B (Xn, 589). Indictment — Negativing IncoDsistent tbeoriee.

%mred in Lehman v. United States, 127 Fed, 48, upholding

'Wictment for conaplracy to defraud by use of maila, charging

jP Uffle count conspiracy to defraud ** by dealing and pretending

detl In ** green articles " and "spurious notes.''

^7L 7 (XII, 580). Criminal pleading — Anticipating or negativing

-A^pproved In McKnlght v. United States, 115 Fed. 0S7. holding

"••"tacffe preeumption of authority not raised by allegatioBB and proof

^^ EBisapplJcatJon of funds, accused relying upon such defense must

f^^OTe It
^yL 8 (Xn. 589). Criminal pleading — General words.
-A^pproTed In Rieger v. United States, 107 Fed. 027, holding suf-
^i^ni to allege generally that misapplication was for use, benefit
•-SU1 advantage of accused, without alleging conversion of funds or
c'^dlt; Breese v. United -States, KXj Fed, 688, holding indictment
^^^irglng president with embezzling, abstracting and misapplying
^■•ocyi* funds and credits need not specify how much was moneys
wit much funds, how much credits.

m 12 (XII, 590). Criminal pleading — Fraudulent Intent es-

Approved In McKnlght v. United States, 111 Fed. 736. holding
indJctment charging embezzlenient of national bank funds must
*ll«je that act was done " witii Intent '* to injure or defraud as-

irlitton.

Sjt 10 (XII, 59€). Criminal law — General verdict — One count

i^Lj^proved In Lehman v. United States, 127 Fed. 44, sustaining

BrlctioD for conspiracy to defraud by pretending to deal in

'green articles*' and ** spurious treasury notes," oae count sus-

Ztined by evidence; Carter v. IVFCiaughry, 105 Fed. G2l>, holding

iMcoce. In grosa by court-martial upon conviction of several

ftarstts; anaiTected by setting aside convict Ion as to some of

dttf^BBB; Tubbs v. United StJites, 105 Fed. Gl, holding one good

miftit itlfBclent to support sentence, sentence not exceeding that

witlcti could be lawfully Imposed on such count: Hsiynns v. United

UtAli-si. 101 Fed. 819, sustaining j«entonce, under general verdict

*ti guilty, indictment containing several counts, one of which bad;

Ji^vett T, United States, 100 Fed. 83G, sustaining conviction, sen-

lence Imi^oeed less than maximum under either count

1S8 O- 8w eOSv GO-J, as U 839, EVANS v. UNITED STATES.

SyL 1 (XII, 590). Crimlmil ia*v^ General verdict — One count
1 fRod.

Apfir^Ted la Tubbs v. United States, 105 Fed. til, and Haynea

3

.a.

otes on U. S. Reports.

Fed. 819, both holding one count sufficient
sentence not exceeding that which could be
such count.

ot cited.
i L. 841, STARR v. UNITED STATED

Arrest — Pruvlous conduct — Resistance. -^^

a V. PhiUIps, 118 Iowa, 684, 92 N. W. 884. hold- Ldib.

ailing to instruct that Jury must And that de-
should have known arrest was sought by lawful
thout personal violence.

)1). Criminal practice — Federal Judge — Opinion.
ichols V. United States, 106 Fed. 678, holding charge ^**

.nt guilty ** if he received and retained possession ^

ut placing required stamp thereon " fatally defective. •

ind manner In which defendant came into possession

ed in Nyback t. Champagne Lumber Co., 109 Fed.

where question of fact properly submitted to Jury

stating Jury not Justified in finding fact as alleged by

II, 591). Criminal practice — Law and facts,
i in Ching v. United States, 118 Fed. 542. holding Judge.
what verdict should be, did not err. Jury subsequently
s for them to finally determine whether offense proved.
XII, 591). Criminal practice — Judge's opinion of accused.
*ed in Mullen v. United States, 106 Fed. 895, holding
ejudlciai for court to comment unfavorably upon general
er of accused and to intimate that accused was not of good
:er, no evidence thereto.

S. 028-649. Not cited. ^

. S. 049-670, 38 L. 854, LYON v. WOODS. — >

1. 1 (XII, 592). Statutes — Validity of passage — Courts. ..- -'

^proved in Milwaukee Co. v. Isenring. 1U9 AVis. 20. 85 N. W. -.^^ ^ -

examiuin}? origiual bills to ascertain whether published laws ;« ^'

r the same title. ^.

til, 592). Miscellaneous. -i^-V^''^

ited in Murphy v. Utter, ISO U. S. 106. 46 L. 1077, 22 Sup, Ct :,,-!, -' '-

, to i)oint that wliere two acts deal with same subjt^ct. latter ; *^ ^

embraciug all provisions of first, together with new provisions
. imposing diflereut penalties, operates as a repeal of first.

:<x

'IJ

Notes on U. S. Reports. 15S U. S, 871-TOO

■-^5.3 V, a 671-684, 38 U 801, METCALF v. WATERTOWN,

Sjl 1 (XII, 593), Federal courts -^ State Statutes of Umltatloas.
.A|»i»roved in Eaticao v. Tenuiual R. R. Assn., 114 Fed. 668,
►Idlog action to recover damagea, under Interstate commerce laws,
Terned as to limitation of actions by State law.
TSjl 2 (XII, 593), Circuit Court 3 udgmeata — Credit
Approved in Union & Planters' Bank v. Memplils, 189 U, S. T5,
_; Sup, Ct 606, 47 L. 715, denying in United States court under
M^is-cigions of Tennessee State court, the doctrine of res judicata
tax judgments for years other ttian tliose involved in priucipal
Hancock Nat Banlc v. Farnum. 176 U. S. 645, 45 L, 622, 20
^^^p. Ct. 508^ boldlng Supreme Court of Rhode Island, denying
tiff, judgment creditor of corporation in Kansas, right to main-
soil against stockholder failed to give proper eCTect to Kansas
ienL

153 U. S. 6S4-6S9, 38 L. 867. MoKANE v. DURSTON.
3jl 4 (XII, 593). Criminal law -= Appeal — Due process of law.
Approved In Reetz v. Michigan. 188 U, S. 508, 23 Sup. Ct 392,
4T L 566, upholding ^tate statute giving to board of regfstration
&aai determination of legal question^ Murphy v. Massachu^^^tts,
K7 D, S. 158, 45 L. 713. 20 Sup. Ct C>40, holding reseutenclug ae-
nued, where partJy served sentence reversed becattse uncoustltn-
tkmMl, not placing him twice in jeopardy; In re Strauss, 126 Fed»
B3^ folding allowance of habeas corpus to test validity of tempo-
nrj eommltment by magistrate no bar to snbsequetit extradition
proceedings before governor; dissenting opinion in State v. Thayer,
158 Mo. 54, 58 S. W. 14, 15, mfijority allowing appeal from a mis-
defoeanor conviction In Circuit Court upon an information,
(XII, 583). Miscellaneous.

CItfid in Herold v. Frank, 191 U. S. 559, dismissed for want of
jvriadlctlOD upon authority of principal case.

18 U. 8, 680^-991. 38 L. 869, CONNECTICUT v. WOODRUFF.

gyt 1 (XII, 5M). State decision broad enough to exclude Federa!.

pproved in Bernard v. People of Michigan, 184 U. S. 897. 46 L.
22 Sop. Ct 940, reamrmlng rule.

153 U. S. 092-700, 38 K 871, POSTAL TEL, CABLE 00. v.
CHARLESTON.
BjL 2 (XII. 594). Commerce — Foreign corporations — Munici-
pal taxation.

Approved In State v. Northern Pac, Exp. Co., 27 Mont 424, 71
Vmc, 406, declaring express company transacting interstate anfl
tttcrmstate baslnesa not subject to occupation tax; Postal Tel. CO.
Vol III— 32

154 U. S. 1-51 Notes on U. S. Reports. 408

Y. Richmond, 99 Va. 107, 86 Am. St Rep. 881, 37 S. B. 791, deny-
ing right of municipal corporation to impose npon Intestate t^e-
graph company general license tax.

Distinguished in Kehrer v. Stewart, 117 Ga. 975, 44 S. E. 857,
holding resident conducting for nonresident a domestic business
subject to occupation tax; Postal Tel., etc., Co. v. Norfolk, 101 Va.
129, 131, 132, 43 S. E. 209, sustaining city ordinance, Imposing privi-
lege tax on busin)ess of telegraph company, expressly excepting
foreign and Interstate business.

OLIV UNITED STATES.

154 U. S. 1-34, 38 L. 883, PRIMROSE v. WESTERN UNION TEL.
CO.

Syl. 7 (XII, 596). Telegraph may confine liability to price.

Approved in De Ford v. Maryland Steel Co., 113 Fed. 75, hoW-
ing in action for breach of contract to complete and deliver ves-
sels on time confined to interest on payments previously made.

Distinguished in Beatty Lumber Co. v. Western Union TeL Co.,
r,2 W. Va. 412, 413, 44 S. E. 310, holding stipulation on blank
message limiting liability to price of transmission invalid to ex-
cuse complete nontransmlssion of dispatch.

Syl. 9 (XII, 590). Contract damages limited to usual course.

Approved in Globe Refining Co. v. Landa Cotton Oil Co., 190
U. S. 544, 23 Sup. Ct 75G, 47 L. 1173, holding mere notice to scaler
of oil tiiat buyer must bring tanks from distance does not Increase
damages on breach of contract to sell; Colt v. Western Union Tel.
Co.. 130 Cal. 001, 63 Pac. S4, upholding sUpulation in contract for
standing uurepeated message, limiting liability for mistakes or
delays, to amount received for sending same.

154 U. S. 34-51, 38 L. 896, SCOTT v. McNEAL.

Syl. 1 (XII, 597). Fourteenth Amendment covers executive and
iudicial acts.

Approved in James v. Bowman, 190 U. S. 138, 23 Sup. Ct G7»,
47 L. 982. holding U. S. Rev. Stat., § 5507, for punishment of per-
sons, preventing citizens from voting, cannot be sustained under
Fifteenth Amendment, which is directed against State action;
Uiverside & A. Ky. Co. v. Riverside, 118 Fed. 743, holding suit to
enjoin city from enforcing council resolution to discontinue fur-
nishing of electric power, under prior contract, involves Federal
question: American, etc., Co. v. Home, etc., Co., 115 Fed. 178,
holding suit to restrain enforcement of city ordinance, declaring

Notes on U. S. Reports.

151 U. S, 34-51

forf<ltiire of prior exclusive franclibe to use streets, involves Fed-
eral queetJon.

DUtloguished In Indiana, etc.. Gas Co, v. State, 158 Ind. 522,
•3N. E^222. upholding retiulrement of city gas eomi>any authorized
by town ordinance to charge rate per 1,000 cubic feet, that one
inBlomer should pay meter rate while others pay per flat.
$jl 2 (XII, 507). State decision on due process not binding.
Approfed In dissenting opinion In Hnrtigan v. Board of Regents,
^» W. Vtt, 00. 38 S. E. 717, majority holding notice aud hearing
uot required in proceeding by board of regents of West Virginia
'uilTerslty in removing professors,
8yl 3 (Xn, 507), Due process requires jurisdicdon and notice.
Approved in Moredock v. Kirhy» 118 Fed. IM, liolding invalid, aa
jppiled to actions In personam, Civ. Code Prac. Ky., § 51, provlil-
lAg for services upon manager In person In charge of business of
BftOfOident; Hunt v. Searcy, 167 Mo. 180. 67 S. W. 213, holding ia-
*«Ud Rev. Stat 1&45. p. 503, authorizing County Court in its dis-
cuetioii to cause insane persons to be brought before It without
rmtoos notice; ilatter of Killan, 172 N. Y. 567, 05 N. E. 5(M, hold-
iof void, as to brother of deceased living In foreign country and *
ufltdted to appear, judicial setiiement of accountji of administrator
•sf l&testate's estate; dissenting opinion in HartliJjin v. Board of
Kepmta, 49 W. Va. 58, 38 S. E. 717, majority holding notice and
b«ffnj? not required In proceedings by board of regents of West
Viixinia university for removal of professor.
Syt 4 (XII, 597), Due process of law deHned.
Approved in dissenting opinion in Taylor v. Beckham fNo. 1),
ITS r, S. «0O. r»03, 45 L. V2m, 20 Sup, Ct, 1015. 1017, majority hold-
ftif decision of State court advei^e to claimant to ofKce of gover-
oer deprives blm of no right under Fourteenth Amendment.
SyL g (XII, 508). Probate Court without jurisdiction over living.
In White V. Tacoma, 109 Fed. 34, holding levy of specijU
by appropriate lioard to cover cost of street assess-
csunot staud if found to be in fact disproportionate to
taieflts: Carr v. Brown. 20 II. 1. 222, 78 Am, yt. Hep, Si>l, 81)2.
3S AtL m, 11. holding Invalid Pub. Laws 1882-85. chap. 298, pro-
ildtog for administration upon estate of one who ha« been absent
ami it»li4>nrd of for seven years. See notes. 81 Am. St. Rep. 54.'].

ma.

D^lsbed in Winter v. Supreme Lodge K, of P., 9G Mo. App.
60 H. W. 6*j5, holding presymjition of death from long absence
sol tin{»eratlve rule of hiw where circumstances permit differ-
4*ttt lufcTpnce; Cunnlus v. School Dist, 206 Pa. St 472. 5tJ Atl. 17,
ii|»J)oldlug act June 24. 18S5, reiating to grant of letters of admin
[limtian c»n estates of persons long absent, giving court jurisdiction
line fact of deatlu

154 U. S. 51-115 Notes on U. S. Reports. SOO

154 U. S. 51-102. 38 L. 903, CONSTABLE v. NATIONAL SS. CO.

Syl. 1 (XII, 599). Limited liability act exempts nonnegligent ship-
owner.

Approved in In re Old Dominion SS. Co., 115 Fed. 848, holding
in proceeding in District Court, under Rev. Stat, § 4282, to limit
shipowner's liability for loss by fire court will det^mine questiOQ
of negligence; Cunard SS. Co. v. Kelley, 115 ITed. 686, holding gen-
eral clause in bill of lading exempting shipowner from liability
for loss of goods on quay or by loss by thieves does not include
negligence and is valid; Gardner v. Southern R. R., 127 N. C. 296,
37 S. E. 320, holding common carrier cannot exempt itself from
loss occasioned by negligence by unreasonably reduced valuatioa
clause.

Syl. 4 (XII, 599). Stipulation against liability after unloading U
valid.

Approved in Parker v. Railroad, 133 N. C. 339, 45 S. E. 609,
holding contract with shipper of perishable fruit, " subject to
delay," if intended to cover delays from carrier's negligence, woold
be inoperative.

Syl. 5 (XII, 599). Delivery must follow usage at port

Approved in Herbst v. The Asiatic Prince, 97 Fed. 845, holding
ship's delivery of dutiable goods to customs authorities, as required
by law and usage of port, is good delivery.

Distinguished in Pacific Steam Whaling Co. v. Grismore, 117
Fed. 71, holding steamship liable for delay in landing passeng^s
baggage after voyage to Nome where vessel visited other ports
before returning to unload same; Saunders v. Southern Ry., 128
Fed. 19, holding common carrier may contract for reasonable limi-
tation of common-law liability for nonnegligent loss of freight
or baggage; Barker v. Pullman's Palace Car Co., 124 Fed. 567,
holding creditor of selling company may enforce against purchasing
corporation agreement to satisfy indebtedness of former; Rowe
V. Moon, 115 Wis. 5<>0. 92 N. W. 263, holding sureties on appeal
bond of one of three partners, paying Judgment on afllrmance <rf
order, may obtain satisfaction from another of the partners.

154 U. S. 103-111, 38 L. I>24. DUNHAM v. DENNISON MFG. CO.

(XII. 600). Miscellaneous.

Cited in Crown Corli, etc, Co. v. Aluminum, etc., Co., 108 Fed.
858, upholding Painter reissue patent No. 11,085. for bottle-stopper,
containing claim broader than original, but within the invention.

154 U. S. 111-115, 38 L. 927, MORRISON v. WATSON.

Syl. 1 (Xll, COO). Federal right must be properly presenteil.

Approved in Erie R. R. v. Purdy, 185 U. S. 1S4, 46 U «51, 21
Sup. Ct 607, holding Federal question insufficiently raised \^hcr»

SOI

Notes on U, S, Reports. 154 U. S. 116-134

not pretented ta lower State court and where appellate court de-
clined to pasa upon It

m E 8, U6-lia 38 L. 929, IN RE LOCKWOOD.
8li 3 (Xll, mih Practice of law eot Fedeml privilege.

Apf^roved In Hoboken v, Goodman, 68 N. J. L. 221, 51 Atl. 1093,
vpboldins city ordinance prohibiting employment of women In
cwmection with sale of intoxicating liquors; State v. CurreoSp 111
WifL 434, 87 N. W. 5C2. upholding Rev. Stat 1S98, § 1435b» reqiiir-
Ing certain course of study and passage of State medical examlna*
ta u prerequisite for practice of medicine,

154 tJ. S, 118-129. 38 L. 930, THE HAYTIAN REFUBOO.

8yL 1 (XII 601). Plea of "action pending/' when allowed.

Apfifored In Richardson v. Opelt, 60 Nebr. 188, 82 N, W. S80,
hMng plea of action pending Is insufficient where first action
iioo ftrst mortgage, while second suit is for euforccment of second
cbAttel mortgage.

SyL 3 (XII, 601), Court recall tng bonded ship for appral semen t
Approved In The Cleveland, 98 Fed. 632, holding vessel released
te^m seizure upon libel upon giving bond to secure libelant In
iliteQce of fraud cannot t>e arrested second time for aame cause.
^L fl (XII, 601). Judgment concludes all necessary Incidents.

Approved in Glencove Granite Co, v. City Trust Safe Deposit
*fHL, Co». 114 Fed. 980, holding defeat of foreign corporation In
•etioo on lien bond in State court for failure to produce evidence
of rtglit to operate within State bars second suit tn Federal court.

LH a 8. 130-134, 38 L. 934, NORTHERN PAC. R. R. CO. v- PAT-
TERSON.

Byt 1 (XII 602). Land possessed eolorably Is taxable.

Af»proved In Hlbernla, etc.. Soc, v. San Francisco, 139 CaL 20S,
72 Paa 921, holdhig Rev. Stat U. S., | 3701, prohibiting State taxa-
tkm of Federal obligations, does not exempt orders <m Federal
treMnry for Interest due on United States consols; Railway v.
K^j, etc. 52 La, Ann. 1751. 28 So. 216, holding Indemnity landa
•electM by grantee, under direction of secretary of Interior, are
iiobj«ct to State taxation; Dry Dock Co. v, BalUmore, 97 Md, 99,
100, 54 Atl. 624, holding taxable land conveyed to dry-doc It com-
pany by government on condition that It should build dry dock
U»efeoa within two years.

Di*dii«nil8bed In Steams v. Minnesota, 179 U. 8. 251, 45 L. 177,

Sii|>. Ct 83, holding Minn. Acts 1805, chap. 2, exempting rall-
from all other taxes in consideration of percentage of gross
la contract aubject to impairment

154 U. S. 134-190 Notes on U. S. Reports. 602

154 U. S. 134r-155, 38 L. 936, ST. CLAIR v. UNITED STATES.

Syl. 3 (XII, 602). " Willful " applied to two acts charged.

Approved in Iowa v. Wood, 112 Iowa, 413, 84 N. W. 521, sus-
taining indictment charging that defendants "did willfully, de-
liberately premeditatedly and with malice aforethought, and with
intent to commit murder ** did strike plaintiff.

Syl. 6 (XII, 603). Acts of those Jointly charged, when admissible.

Approved in Musser v. State, 157 Ind. 433, 61 N. E. 4, holding
where evidence tended to show presence of persons at commission
of crime, any evidence connecting them with crime is admissible;
State V. Prater, 52 W. Va, 145, 43 S. E. 235, holding where evidence
shows common design of several to commit murder evidence of each
is admissible against others.

SyL 7 (XII, 603). Federal court rule of individual challenge.

Approved in United States v. Davis, 103 Fed. 465, 4G6, holding
State entitled to challenge Juror peremptorily after both sides have
accepted him, but before he is sworn.

Syl. 13 (XII, 603). Refusal of instruction must be excepted ta

Approved in Western Union Tel. Co. v. Burgess, 108 Fed. 32,
holding Rev. Stat, § 914, for conforming Federal practice to State
practice, does not make effective in Federal court State statute
requiring Jurors to take written instructions.

(XII, 602). Miscellaneous.

Cited in Lindstrom v. International Nav. Co., 117 Fed. 171, hold-
ing right of action for death of person negligently permitted to
be washed overboard from vessel registered at New York governed
by State law.

154 U. S. 155-103, 38 L. 944, MISSOURI PAC. RT. v. McFADDEN.

Syl. 1 (XII, 003). Carrier's liability begins only on delivery.

Distinguished in Cuuard SS. Co. v. Kelley, 115 Fed. 684, holding
bill of lading does not effect constructive change of possession, but
is merely recedpt subject to explanation.

Syl. 3 (XII, 604). Bill of lading may be inquired into.

Approved in The Isola Di Procida, 124 Fed. 943, holding master
has no power to bind owners or ship by bill of lading false aa to
date.

154 U. S. 163-177. Not cited.

154 U. S. 177-190, 38 L. 953, BALKAM v. WOODSTOCK IRON CO.

Syl. 1 (XII, 604). State construction of limitation statutes
binding.

Approved in Taylor v. Union Pac. R. R. Co., 123 Fed. 156, fol-
lowing Supreme Court of Nebraska to point that foreign corpora-
tion can plead Statute of Limitations, providing it had agent upon

Notes on U. S. Reports. 15i U. S. 190-203

whom seirice could be made; Rat lean v. Terminal R. R, Assn.,
m Fed- 668, bolding Statute of Limitations In actions based on
ifltemiit^ commerce act are statutes of States la which such action
ij brought: Natiomil, etc.. Pipe Works v. Oconto City, etc., Supply
Co.. m Fed. 79a holdiug direct ruling: of State Supreme Court
opoo exact question under consideration establishes constriictloa
toHUng on Federal coerti HIggins Oil, etc., Co. w Snow, 113 Fed.
436. folJowing Texas rule of decision, that when complainant basing
cittm to relief In equity upon legal title doctrine of laches does
iwt apply; Bmnswick, etc., Co. v. National Bank, 99 Fed, 637,
•Pflyiag Georgia Statute of Limitations In action In Maryland
lEpiinat stockholder In Georgia corporation to enforce srtatutory
liability.

IMU, S. 190-203, 38 L. 958. NORTHERN PAC. R. R. y. BABCOCK.
5jl 1 (Xn, G04). Law of place governs damages for death.
Ajjproved In Texas & P. R. R. Co. v. Humble, 181 U. S. 01, 45
L- 75iJ, 21 Sup. Ct. 528, holding where place of injuries and of suit
tifonght was In Arkansas, Arkansas law governed; Maher v. Union
^ac.. etc., By., 106 Fed, 310, holding fireman on passenger train
iDjured by negligence of engineer and conductor on freight train,
fdlow servants, cannot recover; St. Louis, etc., E. R. Co. v. Brown,
*yi Ark. 301, 54 S. W. 807, holding fireman injured by negligence
of switchman, being fellow servant cannot recover In Indian Ter-
ritory where common law obtained; Thomas v. Western Union Tel.
Co, 25 Ter, Civ, 400, 61 S. W. 503, holding right to recover dam-
ifes for mental anguish, caused by nondelivery of message, gov-
<nied by law of Stale, and if not allowed there cannot be enforced
€l«ewhere. S^e notes, 91 Am. St Rep. 730; 87 Am. St Rep. 622.

D£stlngolsbed in Blair v. Kewbegin, 65 Ohio St 440, 62 N. E,
1013, holding action may be maintained in Ohio against stockhold-
I of dlsaolTed Kansas corporation u?pon whom service can be had

etllL

fL 3 (XII, 605). ServaM protected after notice of defects,
^ Approve tn Choctaw, Oklahoma, etc., R. R. Co. v, McDade, 191
U-r 8, 68^ 24 Sup. Ct 20, holding brakeman does not assume risk
oC tDJiuT from waterspout overhanging track, in dangerous proxim-
ity Uiereto; Adolff v. Columbia, etc., Co., 100 Mo. App. 207. 73
S, W, 323, holding question whether minor employeii to run pretzel
Dg machine, directed by forelady to operate large loieading
t&lae requiring skill and strength, assumed risk la for jiiry;
ej T. Railroad, 71 N. H. 434, 52 Ad. 1100, holding where fore-
mmn of repair shop, on complaint of engineer, promised to tighten
cQT€r of "arm hole*' on locomotive, question of engineer's care is
for ivrji Oulf Ry. V. Garen, 96 Te.x. 615. 74 S. W, SaS, hold-
ims *lii*«tlon whether fireman knew or should have known of non-
ivpmJr of 8tep deiicnded upon whether he acted with ordinary pru-

154 U. S. 204-223 Notes on U. S. Reports. 601

dence; Virginia, etc., Wheel Co. v. Chalkley, 98 Va. 68, 34 S. B.
978, holding plaintiff did not assume risk of defective pulley where
on his complaint defendant assured him same would be repaired
immediately; Green v. Western Am. CJo., 30 Wash. 109, 70 Pac
318, holding, under Wash, statute, fi 3178, requiring coal mine-
owners to furnish sufficient timber to keep mine safe, operator
falling to do so cannot plead assumption of risk.

Distinguished in Mayott v. Norcross Bros., 24 R. I. 198, 52 AtL
898, holding plaintiff Injured while attempting to handle heavy
marble slabs, where he was aware of danger, will be deemed to
have assumed risk.

(XII, 601). Miscellaneous.

Cited in Denver v. Porter, 126 Fed. 295, holding invtnictions to
jury must be considered In their entirety; Mexican Cent Ry. Co.
V. Henderson, 114 Fed. 895, holding instruction to find for defendant
if jury believed it was engineer's duty to Inspect engine that he
did not, that inspection would have shown defect was no with-
drawal.

154 U. S. 204-223, 38 L. 962, COVINGTON, ETC., BRIDGE CO. T.
KENTUCKY.

Syl. 1 (XII, 606). State power over commerce discussed.

Approved in Crawford v. Railway Co., 56 S. a 150, 34 S. E. 8S,
holding Rev. Stat 1893, $ 1678, providing thait no railroad company
shall overload its cars, is not regulation of commerce violating com-
merce clause.

Syl. 7 (XII, 607). Congress exclusively controls national commerce.

Approved in St Clair Co. v. Interstate Transfer Co., 192 U. 8.
457, 405, 470, 24 Sup. Gt. 300, 303, 305, holding unconstitutional
111. Rev. Laws 1874, chap. 55, penalizing operation of ferry without
license as applied to transportation of frel^t cars from Illinois to
Missouri shore of Mississippi; Hanley v. Kansas City South Ry. Co.,
187 U. S. 620, 23 Sup. Ct 215. 47 L. 330, holding Arkansas railroad
commission cannot fix freight rates between Arkansas points where
line lies largely in Indian Territory, affirming Kansas City, etc.,
Ry. v. Board of R. R. Comrs., 106 Fed. 356; Lowe v. Seaboard Air
L. Ry., 03 S. C. 250, 41 S. E. 208. 90 Am. St Rep. 680, holding la-
valid as applied to goods from another State 22 Stat at Large,
p. 120, penalizing carrier for shipping by route other than that
designated by sbii)por: dissenting opinion In Austin v. Tennessee,
179 U. S. 375, 45 L. 238, 21 Sup. Ct 144, majority upholding
Tenn. Acts 1807, chap. 30, prohibiting importation or sale of
cigarettes or cigarette paper.

Syl. 9 (XII, 007). Interstate bridge is instrument of commerce.

Approved in Lottery Case, 188 U. S. 352, 23 Sup. Ct 325, 47 L.
499, holding carriage of lottery tickets between States by inter'

900

Notes on U. S. Reports.

154 U. S. 224-288

stitt express carrier la Interstate cammerce: St Clair County v.
Interstate Car Transfer Co., 10£> Fed* 744, holding invalid State
statute exacting license fee for operation of ferry whose only prop-
erly within the State is Its landing place; Reilly T, Unite<3 States,
m Fed. 903. holding act March 2, 1895, against carriage of lot-
tery tickets into or between States, prohibits carriage between State
of ticket representing chance In policy game; State v. Atchison*
Hl\ Ry,, 17«5 Mo. 714, 75 S, W. 781, holding quo warrajito will not
lie to prevent railroad companies having switch tracks within
dty from charging for delivery of cars upon other tracks.

Distinguished in Canble v. Craig» 94 Mo. App, 680, 69 S. W. 50,
Imldiag license from County Court to operate ferry across Miss-
l«rtppJ does not avoid necessity of license from city of third clast
Jtutborteed to regulate ferries.

154 t. S, 224. Not cited,

151 r, S. 225-244. 38 L. 971, UNITED STATES V. ILLINOIS,
ETCm R, IL
fcyl 1 (XII, 607), GoTemment deeding land is governed by State

Approved in Roljerts v. Mathews, 137 Ala, 530. 34 So. 625, hold-
ing Laws 1828. p. 31. providing that township trustees may cause
•cbooi sections to be surveyed to command highest price, authorizes
Wcation of streetg therein,

IW a S. M4-256, 38 U 976, HIGGLES v, ERNEY.

Syl 1 (XII, 608), Selling lands takes case from statute.

DUtlnguIsbed In Gary v. Newton, 201 111, 181, 66 N, E. 270, holding
«juity wUl not enforce oral agreement whereby heir agreed to re-
!«»« espectancy in ancestor's property in consideration of advance,

15* D, S, 256^288. 38 L. 981, MORAN v. STURGES/
SjL 2 (XII, 608). CJontt respects constructive possession In mi*

XpftroTed in Fanners* Loan, etc., Co, v. Lake St. R, R, Co,, 177

C JSL 61. 44 L, 671, 20 Sup, Ct. 568, holding injunction against fore-

proceedings In Federal court Orst aegulriug jurisdiction

pmpt'rty will not be graeted by State court; Texas Cotton

Co, V, Stames, 128 Fed. 1S4, holding where plaintiff, after

of suit In Federal court, brings second suit for small

to State court. Federal court will not enjoin same; Knott v.

Post Co., 124 Fed. 354, holding receiver of Federal court

ftnt obtalDlBg possession of insolvent corporation's property will

not •urrender same to State receivers subsequently appointed; The

lomMM H. French, 119 Fed. 462. 463, 464, holding vessel In poeses-

of receivers fipi>olnted by Circiiit Court etiiinot be sel7,ed on

from District C^ourt to enforce prloi; Hen; Caiiliig t. Fey-

154 U. S. 25G-288 Notes on U. S. Reports. 606^^

mour Lumber Ck>., 113 Fed. 490, holding where assets are !n hands oWt^
receiver of another court, comity requires that application be mad^^
to such court by court entitled to possession; Phelps y. Mutual Rcg^
serve, etc., Assn., 112 Fed. 465, 468, holding Federal court will nc^:^
enjoin receiver appointed by State court of concurrent jui^sdictioK^^:
from acting on ground that State court has no jurisdiction; Star: ,m^
V. Chicago, etc., Ry. Co., 110 Fed. 7, holding Federal court having .0:3
issued preliminary Injunction restraining enforcement of schedule ^
of rates will restrain State suit to enforce rates; Oliver v. Parlin ^
Orendorff Co., 105 Fed. 275, holding where State court has Issue^^.
writ of sequestration in foreclosure proceedings by transferee c^
trust deed, Federal court will not enjoin proceedings; In re Gerde^^
102 Fed. 320, holding State court decreeing foreclosure and sale bd]V
fore filing of banliruptcy proceedings has jurisdiction to determir .K
rights of mortgagee in property; Aultman & Taylor Co. v. Bnimflnr^-
102 Fed. 11, dismissing bill of taxpayer brought in Federal rnr ^
to enjoin action previously begun in State court by treasurer
recover bacls taxes; Bear v. Chase, 09 Fed. 926, holding Banknipl^ —
Court haa jurisdiction to enjoin attaching creditors from prosecutK:=^
of attachment suits; Colston v. Southern Home Bldg. & Loan As^^a^
09 Fed. 312, holding Federal court will not entertain stockbold^^^a
suit for appointment of receiver while suit for same purpos^?^ —
pending in State court; Leathe v. Thomas, 97 Fed. 139, hold_ ^
Federal court will not enjoin sheriff from collecting execution Ist^^l-h
from State court

Distinguished in In re Lengert Wagon Co., 110 Fed. 927, hol^B Wr
banltruptcy properly instituted vests Bankruptcy Court with •►
elusive jurisdiction over estate of bankrupt and ousts State receL i ^^

ssyl. 3 (XII, 609). District Court has exclusive civil admiral -«
jurisdiction.

Distinguislied in Knapp, Stout & Co. v. McCaffrey, 177 U. S. 6**-^
44 L. 924, 20 Sup. Ct. 827, holding bill to enforce lien for towage -

raft of lumber, brought against individual defendants, is suit
enforce common-law remedy properly brought in State court.

Syl. 4 (XII, 009). Act creating District Court's admiralty pow^^^
construed.

Approved in Knapp, Stout & Co. v. McCaffrey, 177 U. S. 644, ^^
L. 925, 20 Sup. Ct 827, holding bill to enforce lien for towage cC^
raft of lumber brought against individual defendants is for commo^^^
law remedy and properly brought in State courts.

Syl. 8 (XII, 609). Maritime liens not enforceable at common \ni^^
Approved in Cuddy v. Clement, 113 Fed. 456, holding contract ^

between owner of vessels and coal dealers for furnishing of co^^

did not raise implied lien upon vessels.

Notes on U. S. Reports. 154 U. S. 28S-349

i*M

w^M

Bjl 13 (Xn, 610), State court cannot oust Federal court
Distinguished in In re Macon Sash. Door, etc., Co^ 112 Fed. 333,
elding, after adjudication of bankruptcy under national btnk-
ptcy act appointment of receiver of assets by State court is
nullity,

U. S. 288-349. 3S L. 992. BARDBN v. NORTHERN PAG. R. R.
SyL 2 (XII. 610). Congress reserves mineral lands In railroad
tmntL

Approred In Cosmos Exploration Co. v. Gray Eagle Oil Co.. 104
ed. 4?, holding lauds selected as forest reserve lieu lands art*
ibject to section 2302. Rev. Stat,, providing that no mineral lands

be liable to settlement thereunder.
8fL 4 (Xn, 611). Surveyor's determination not always conclusive.
ApproTed In Cosmos Exploration Co. v. Gray Eagle Oil Co.. IM
'«L 48; holding determination of questions of mineral lands is
^^^or land department and siirveyor*a return i& simply evidence; Col*
■l ^tt, etc.. Mining Co. v. Rogan. 96 Tex. 461, 68 S. W. im, hold*
^^^% mider act 1889, reserving mineral lands from settlement and
^^ idling them to purchase, lands may be sho'vvn to be mineral landa
^^— ^*io«gh excluded from geological survey,

SyL 5 (XII, 611). Land department* s determination of facts con-

Ajijiroved In Boyuton v. Haggart, 120 Fed. 829. holding patent of

^tlitor and governor of .irkansas issued for swamp laud granted*

^K^3*^nr*uaiit to 9 Stat 519, is not open to collateral attack; Kiag v.

— ^^-lo.Vjidrews, 111 Fed. 8G1, 8G5. holding patent within Jurisdiction of

^ ■*nd department is impervious to collateral attack; James v. Ger-

^^^^aaalt Iron Co., 19T Fed. UOl, holding court will not consider depart-

'^^^Offnts finding of fact ualess party attacking alleges and proves

"^C^i^auti and places before court evidence on which department acted;

^^=>^nrTiM.ni Pac. R. R, Co. v. Soderberg. 104 Fed. 427, holding land

*^^«?fljr valuable for granite suitable for quarrying In mineral land

"^*'ithjn exception of grant of 1864; St Paul, etc., Ry. Co. v. Olson,

^^^ Uiun. 121. 91 N. W. 296. 94 Am. St Rep. 697, holding courts have

**<> Jurisdiction of controversies over title to public lands while

••tt* are pending Ln land department, hence statute does not run.

8yl 7 (XII, G12). Grant of 18€4 excepted all minerals.

%rDved in United States v. Oregon, etc., R. R. Co., 176 U. S, 45,

^ t 3C5, 20 Sup. (X 2G6, 267. holding fillug of map of general

^uu« of Nortliem Pacific did not preclude subseQuent disposal of

'Wemniry lands to another company.

^ r^Utiagulnlied in Toltec Ranch Co, v. Cook, 191 U, S. 538, 540,
''<-. 1*4 Sup, Ct IGS. 109, holding thirty years' adverse possession
*rf iaad within len-mlle limit of grant of 1864 to Central Pacific

154 U. S. a4d^61 Notes on U. S. Reports. 606

company conyeyed title, although patent had not been Issued;
dissenting opinion in Nelson y. Northern Pac. By. Co., 188 U. S.
152, 23 Sup. Ct 318, 47 L. 424, majority holding lands within in-
demnity limits of railroad grant were subject to occupancy In
good faith after filing of general route map.

(XII, 610). Miscellaneous.

Cited in United States v. MuUan Fuel Co., 118 Fed. 664, hold-
ing United States cannot maintain action for value of timber cut
from unsurveyed land within limits of grant to railroad company;
Clipper Mining Co. v. Eli M. & L. Co., 29 Colo. 383, 68 Pac. 288,
93 Am. St Rep. 92, holding land department decision rejecting ap-
plication for mining patent on ground of lack of proof is not de-
cision that land was not placer ground.

154 U. S. 349-361, 38 L. 1009, NORTHERN PAO. R. B. V. HAMBLY.

Syl. 1 (XII, 612). Relation of parUes is test

Approved in Chicago House Wrecking Co. v. Blmey, 117 Fed. 70,
holding superintendent of wrecking company, hiring and dischars-
Ing men, was not fellow servant but vice-principal; Weeks t.
Scharer, 111 Fed. 335, holding shift-boss, directing labor of gang
of men under him, is their fellow servant and notice to him of
fellow servant's incompetency is notice to them; Stuber ▼. Louis-
ville, etc., R. R. Co., 102 Fed. 423, holding machinist employed to
care for company's pumps and tanks is not fellow servant of en-
gineer of train on which former was riding; New Orleans, etc^
R. R. Co. V. Clements, 100 Fed. 422, holding night foreman in switch-
yards not contributorily negligent in not inspecting loose brake
wheel before catching hold of same in climbing ui>on moving car;
Brush El. L. Co. v. Wells, 110 Ga. 202. 35 S. B. 369, holding engineer
of light and power company is fellow servant of lineman killed by
negligent turning on of current; dissenting opinion in 8t Louis,
etc., R. R. Co. V. Furry, 114 Fed. 904, majority holding under Sandf.
& H. Dig. Ark., $ G248. establishing department test of fellow
service, fireman and train despatcher are not fellow servants;
dissenting opinion in Missouri, etc., Ry. Co. v. Elliott 102 Fed. 112,
majority holding fireman and train despatcher not fellow servants
to preclude recovery against company for negligence of despatcher
causing fireman's death. See 75 Am. St. Rep. 625, note.

SyL 4 (XII, 613). Section hand and conductor are fellow servants.

Approved in Dishon v. Cincinnati, etc., Ry., 126 Fed. 196, hold-
ing section hand living in section-house killed after working hours
while passing between cars on track was fellow servant of train
operatives; Ix)ulsvllle, etc., R. R. Co. v. Stuber, 108 Fed. 938, hold-
ing foreman of water supply is fellow servant of engineer of en-
gine on which he was riding from station to station; TomUnson v.
Chicago, etc., R. R. Co., 97 Fed. 253, holding company's bridge

w

Reagan v. Farmers* Loan, etc., Co. 154 U. S. 362-413

baflder attaching bis cars to company's trains Is fellow servant of
emplojrees in charge of such trains; Grattls v. K. C, P. & G. Ry..
15a M(x 402, 77 Am. St Rep. 735, 55 S. W. 114, holding conductor and
«ig<Deer and fireman of freight train are fellow servants; Wlskie v.
MoDteUo. etc., Co., Ill Wis. 450, 87 N. W, 464. holding quarry fore-
mim conducting blasting Is fellow servant of employees working
witli him and Latter cannot recover for lils negligence in prepar-
i&C blast

Di«tJnguJahcd In Peterson v. Seattle Traction COm 23 Wash. 620,
<53 Pac. 541, holding track layer, with transportation as part con-
tldemtioD, 1b not, while so riding from work, fellow servant of
thflie in charge of car.

IM U. S. 362-413, 38 L, 1014, REAGAN T, FARMERS* LOAN,
ETC., CO.
SjL 1 (XII, 014)» Officers exempt when State la real party.
Approved In Western Union Tei. Co. v. Myatt, 98 Fed. 357, hoJd-
%iaH in Federal conrt against members of Kansas court of vlsi-
tidoa to enjoin enforcement of rate schedule is not suit against
Stita

8yl 2 (Xtl, 614). Officers wrongfully administering law are
nuMe.

Approved In Prout v. Starr, 188 U. S. 543, 23 Sup. Ct 400, 47

L 5S7, holding suit against Nebraska board of transportatlou to

prevent enforcement of maximum rate act Is not suit against State;

Misaouri, etc., Co, v. Missouri R. R, Corars., 1S3 U. S, GO, 4t> L.

9k ^ Sup. Ct, 21, holding State is not real party plaintiff In suit

MitBsonri railroad commission against railroad to enjoin violation

F rate order; Union Trust Co. v. Stearua, 119 FetL 794, holding suit

Igalntt attorney-geueral to prevent institution of cdraina! proso-

cvtlofu for violations of act regulating hours of labor on street rail-

vKjft Is not suit against State; Huntington v. New York, 118 Fed.

bolddng location of tunnel by rapid transit commissioners en-

outside limits of location authorized by pian was not au-

by rapid transit act, hence was not State act: StaiT v.

etc, Ry, Co., 110 Fed. 7, holding suit against State ollicers

[prvrent enforcement of unconstitutional Nebraslca freight rate

Is not suit against State; Haverhill Gas Light Co. v. Barker,

Fed, 695, hol^llng suit by gas company against gas commissi mi

attorney-general to enjoin enforcement of statute and to det-Iarv-

ttm tancoQStltntloiiallty is not suit against State; MiuDeapolis Brew-

Ittf Ca ▼* M'GUHvray, 104 Fed. 270, holding suit to eojoin State

4l0cers from enforcing unconstitutional State statute regulating

» oC liquors is not against State so as to preclude Federal Juris-

People V. District Court 29 Colo. 232, C8 Pac. 233, holding

Im Mlt U> enjoin State board of assessors from assessing property

154 U. S. 362-413 Notes on U. S. Reports. 510

of transportation companies, distributing assessment among differ-
ent counties, question is jurisdictional; Wilson v. Perrault, 6 Idaho,
182, 54 Pac. 618, holding Idaho Const, art 15, $ 6, prohibits
legislature from afQxing ** reasonable maximum rates '* for water
under sale or rental; dissenting opinion in South Dakota v. North
Carolina, 192 U. S. 331, 24 Sup. Ct 282, majority holding Supreme
Court has jurisdiction of foreclosure by South Dakota as donee
of bonds issued by North Carolina and secured by railroad mort-
gage.

Distinguished In Davis, etc., Mfg. Co. v. Los Angeles, 189 U. 8.
218, 220, 23 Sup. Ct. 500, 501, 47 L. 780, 781, holding subcontractor
cannot maintain suit for injunction to restrain enforcement of
municipal ordinance preventing erection of gas works within cer-
tain limits; CouUer v. Weir, 127 Fed. 905, holding bill against
State auditor to restrain collection of franchise tax levied pur-
suant to Kentucky statute is suit against State and not maintain-
able without consent

Syl. 3 (XII, 615). Diverse citizenship enables Federal suit pro-
tecting property rights.

Approved in Hickman v. Missouri, etc., Ry. Co., 97 Fed. 116, 118,
120, holding suit by railroad commissioners against railroad to en-
force obedience to rate order not suit in behalf of State and Is
removable; Morgan v. New York, etc., Assn., 73 Conn. 155, 46 Ati.
878, holding Pub. Acts 1895, chap. 96, providing that dissolution ^'
proceedings against corporation shall dissolve attachments entitlln;:^
creditor to recover costs, applies to Federal courts within State.

Distinguished in Smith v. Reeves, 178 U. S. 442, 443, 444, 44 I ^
1144, 1145, 20 Sup. Ct 021, 022, holding consent of State to be sue-^
in State court given by Cal. Pol. Code, $ 3669, does not authorl;^^
Federal suit against treasurer for taxes.

Syl. 6 (XII, 615). State commission may regulate railroad ratc^.^^
Approved In TrammeJl v. Dinsmore, 102 Fed. 799, uphold!' ^^^
Georgia Constitution and statutes pursuant thereto and rates est
llshed by railroad commission when such rates do not require <
riage without reward; Morgan's Tx)ulslana, etc., SS. Co. v. Railrcrrza^,
Comm. of La., 100 La. 202, 33 So. 219, holding railroad commisa— Mqi^
is administrative board organized to carry into effect will of St..^/^
as expressed in its legislation; Carson v. Brocton, 175 Mass. ^^
56 N. E. 2. upholding Stat. 18J)2, chap. 245, authorizing city council
to establish just annual charges for use of common sewers; dl».
senting opinion in State v. Johnson, 61 Kan. 843, (50 Pac. 1081.
majority holding unconstitutional Kan, Laws 1898, chap. 28, cre-
ating court of visitation empowered to fix and enforce rates, con-
ferring upon it legislative, judicial and administrative functloM.

Distinguished In Cotting v. Godard. 18^^ U. S. 85, 46 L. 90, 22 Snp.
Ct. 33, holding State power to regulate rates does not extend ti^

511

Reagan t. Farmers' Loan, etc., Co. 154 U. S. 362-413

deatal of eqaal protection of laws bj Kan. act March 3, 1S9T,
r(*iniliiting charges of stockyards company; LoulSTrllle, etc.. R. R.
Co. r. ifChord, 103 Fed. 221, holding uneonstitutioaal Ky. act
March 10, 1900, authorizing railroad eonimisslon to determine matter
<rf eiorbltant rates, to fix reasonable ratea and to punish violations.

Sjl 6 (XII» 616). Valid portion of statute may be oper/j tlve.

Approved ta Monroe W. C3o. v, Monroe, 110 Wis. 17, 85 N. W. 687,
holdiag InvaJldiij of exclusive grant to water company because
ultra vire^ the city is no defense to action by company for hydrant

Sjl 10 (XII, 616). Ckiurts cannot revise commission's rate
schedule.

ipproved In Western Ualon Tel. Co, v, Myatt, 98 Fed, 343, holding
^<xjii8trt«tional Kansas statute creating court of visitation, con-
^«TlDg upon It power to fix rates, to determine their validity and to
enforce tbem; State v. Johnson, 61 Kan, SI 7, CO Pae. 1073, bold-
^? tiuconstitutional Kan, Laws 180S, chap, 28, creating court of
^»lUUoa. with legislative and judicial funotiuns, consisting in
tiling and enforcing rates; State v. Atchison, etc., Ry., 170 Mo.
•11,75 S. W. 780, holding, under Rev. Stat 1SD9. chap. 12, estab-
liiliiBg raJ4road commission, giving recourse thereto, or to State
^^rt*. quo warranto will not lie to prevent charges for transferring
^5Wi to ajjother track; Corporation Comm. v. Sealx>ard, etc., System.
^-2T X, c. 288. 37 S. E. 20.8, upholding freight rates fixed by corpora-
^^u eommissioD, declaring that 20 per cent, more might be charged
* «p kss than carloads, load to consist of ten tons.

Distinguished in Janvrin v. Revere Water Co., 1T4 Mass. 517, 55

^- B. dS2, upholding water supply act, giving recourse every fifth

^ear to courts to revise water rates fixed by water companies.

8yl. 11 IXII, 017), Courts may inquire whether rates reasonable.

Ani^roved In Chicago. Milwaukee, etc., Ry. v. Tomplcins. 170 U. S.

^^^ 44 U 420, 20 Sup. Ct 338. holding court must determine

•betber ftdiedttle of rates Is reasonable: Wallace v. Arkan^na Cent.

.4 Co., 118 Fed. 424, holding railroad entitled to enjoin rnilroad

^WBltoalon from enforcing rate^ which reduce earnltijrs below op-

••Wlfijf expenses, tajces and fixed clmrges; Kunsas City, ete,. Ry.

^* Botrd of R, R. Comrs., 100 Fed. 357* holding court must enjoin

^otcement of tariff fixed by commission where rate fixed for do-

'^'Bic tariff gives owners no profitjs; Louisville, etc. R, R. Co. v.

^"Qwd. 103 Fed. 210, holding question of reason ab leu ess of rates

^'fwUroad transportation Is eminently a qtiestion for Judicial iii-

^enlfiliofi;TrammelI v. DInsmore. 102 Fetl. 8W, boldinf? power and

^^J of courts extend to luijuiry into reasonaldeness of rates cfc*-

^WiibwJ by State rallrond commission and to injunction against

'^«rce!nt*at If found nnreasonfible; Western I'ulon Teb Co. v, Mbitt,

^ JTtfd. 342, holdiug unLoustitutiuuiil Kansas statute creating

I

Li

m

154 tJ. S. 362-41S Notes on U, S. KepoilB.

court of visitation with power to ftx rates and determine their
validity and to enforce them; Mobile v. Bienville, etc., Co.. 130 Ala.
3S4p 30 So, 447, bonding equity will enjoin city from charging same
for use of city sewers as for sewers and city water, thus compelliDg
customers of plaintiff water company to transfer to city water;
Kennebec Water DlsL v. Waterville, 97 Me. 2m, 207, 54 AtL
14, 15, holding reasonableness of rates depends upon fair value or
property and value of service rendered; Janvrlu, Petldoner, 174
Mass. 517, 55 N. E, 382, upholding Mass. water supply act 1885.
providing that persons aggrieved by price charged by water
companies may every fifth year apply to courts for revision of
rates; State v. Associated Press, 159 Mo. 44S, 60 S. W. 102, holdlni?
mandamus will not Issue to compel news-gathering ageocy to
furnish news to relator on same terms as others.

DlsUnguIshed in Louisville & N. R. R. Co. v, Kentucky, 183 U, S.
511t 46 L. 303, 22 8up. Ct 99, upholding Kentucky Constitution and
I&WB prohibiting greater charge for shorter haul except on pennla-
Bion of railroad coinnilsslon given after investigation; Cedar Rapids
Water Co, v. Cedar Rapids, 118 Iowa, 250, 91 N, W. 1090, holding
ordinance fixing water rates which gives net returns of 5 per cent.
on estimated capital does not warrant Judicial Interference; Railroad
Comrs. V. Grand Rapids, etc., Ry. Co., 130 Mich, 250, 89 N, W. 967,
holding new company organized on foreclosure sale of old, as pro-
vided by Laws 18y7, Is subject to railroad law ttxlng rates, though
old company exempt therefrom. ^^^^^i

Syh 16 (XII, 018). One class cannot suffer for another's gain.

Approved In Cottlng v. Godard, 183 U. S. 87, 4U L. 100, 22 Sup. ^^^ *-
Ct. 34, holding unconstltiitional Kan. act March 3, 1897. ]lraitIng^^^*^^R
amount of charges to be made by stockyards company wlthou*'.^^ ^-^'ig
limiting charges of smaller companies; Newburyport Water Co. v-^ ^^^

City of Newburyport, 103 Fed. 587, holding threatened cornpes^, — *' ^•
tition by city by building water- works inducing sale to citj oc:^
private plant is not a taking without compensation. See 90
St. Rep. 248, note.

8yL 18 (XII, 618). Texas commission's rates held unreasonable.

Approved in Abern v. Newton & B. St Ry. Co., 105 Fed. 7<i::^'^7^
refusing preliminary injunction against enforcement of
regulating street railway fares when stockholder showa no
reparable Injury to corporation stockholders.

pen, 614). Miscellaneous.

Cited In Spring Val. Water- Works v. San Francisco, 124 Fed.
holding In suit against municipality and Its officers to enj«i^/jj
enrorcement of rate ordluance. ratepayers are represented iher^fy
and are bouud by decree; Bavls. etc., Mfg. Co. v. Los Angeles, IZf
'ed. 531X 540, holding court of equity without juHsdIctloii to enji

-^

€ia

Notes on U. S. Reports. 154 U. S. 413-438

crioiiafll proaecutlonR under alleged unconstitutional ordinance:
Sin Diego Laad, eta, Co. v, Jasper. 110 Fed. 713, folding suit by
witer oannpftny to test validity of rates fixed by supervlBors Is
jroperly brought against tbe board whlcb represents the public;
<3Wca^o, etc. Ry. Co. v. Smith, 110 Fed. 475, 476, holding unrea-
voQAble State relation reducing rates which give net earnings
Iwathaji half enough to pay interest on mortgage debt of road: State
^.CWcago, etc., R. R., 61 Nebr. 549, 85 N, W. 557, holding Injunction
l«0€d by Circuit Court cannot prohibit attorney-general from suing
Mix p«Ba1tiea claimed by State under maximum freight law.

3S4 U. 8. 413^-120. Not cited.

mW U. S, 421^38, 38 L. 1031. PITTSBURG, ETC., RY, v. BACKUS,

SyL 2 (Xn. C20). Notice of assess^ing tward'B meeting sufficient.

ApproTed in Glldden v. Harrington, 189 U. S. 259, 23 Sup, Ct 576,

'^ L 801. upholding practice under State statute providing for

^iNtsment to trustee of aU persouaJty held In trust and for valua-

^SoQ of assessor to be fioal If after public notice owner made no

*ttuni; Central Fac. Ry. v. Evans, 111 Fed. 11, upholding Nev. act

'^(iftb 16, lOOlf providing for annual meeting of county assessors

^ix fixing uniform valuation on aU property throughout State;

%Qt>bftrd T. Goss. 157 led. 490, 62 N. E. 38. upholding Indiana stat-

^*titfof assessment of lands requiring assessor to give each land-

[^fcwnrr notice of valuation of his lands and notice of meeting of

*»OMd of review; Slonticello Co. v. Baltimore City, 90 Md. 428, 45 AtL

^^U» holding invalid Acts 1892, chap. 704, requiring persons having

^^TWtody of distilled lltiuor to report same to State commissioner,

'^^^oie valuation \& final and nonappealable. See 94 Am. St Rep.

*yl 5 (Xn, 020). New trials not easentlaJ to due process.
Approved In James v. Appel, 192 U. S> 137, 24 Sup. Ct, 224, up-
•^^ItlliiK Ariz. Rev. Stat 1887, par, 837. discharging motion for new
^^^4! by operation of law If not acted upon at same term.
SyL 6 (XII, 020). Number of hearings may be different
proved in Rutz v, Michigan, 188 U, S. 508, 23 Sup, Ct 392, 47
^^ W, upholding Mich. Pub. Acts 1899, for registration of appli-
^^^*»t« to practice medicine, although providing no special meajis
^•Jt hearing for applicants, notice of meetings being given: Meyer-
^tticr V. Minnesota, 176 U. S. 557. 44 L. 586, 20 Sup. Ct 488, aua-
^*iWiif reasseasment of undervalued property where opportunity to
^ fceird la glTen during proceedings.
'^yl T (XII, 621)* State cannot tax beyond its territory.
'Approved in In re Appeal of Union Tank Line Co., 204 Dl. 350,
"^ X. E, 505, holding cars of packing corporation domiciled in
i^otliff State, such ears being In transit with Interstate commerce,
"wwt be tasted In Illinois,
VoL Ul — 33

154 U. S. 413-438 Notes on U. S. Reports. 614

SyL 10 (XII, 621). True cash vaiue of property construed.

Approved in Hart v. Smith, 159 Ind. IW, 64 N. B. 665, holding
honest determination by board of tax commissioners that shares of
stock are taxable cannot be questioned by the courts; Citizens' St.
R. R. Co. V. Common Council, 125 Mich. 688, 85 N. W. 101, hold-
ing, in determining cash value of street railroad, the tangible prop-
erty, location of easements, period of use and other exceptional
privileges should be considered; Erickson v. Cass County, 11 N. Dak.
507, 92 N. W. 848, holding action of board of drain commissioners
in determining what lands are benefited and apportioning cost Is
not open to collateral attack; Oregon, etc., R. R. v. Jackson Co., SS
Or. 005, 606, 64 Pac. 312, holding cost per mile of roadbed cannot
be taken as true cash value, the proper basis being amount for
which property would sell at voluntary sale; dissenting opinion In
Jackson v. Corporation Commission, 130 n: C. 420, 42 S. B. 13S,
majority holding assessment of realty of railroad made by com-
mission in 1900 covered realty and personalty, hence cannot be
taken as value of tangible property.

Syl. 11 (XII, 621). Mileage plan of assessment is fair.

Distinguished in Coulter v. Weir, 127 Fed. 010, holding erroneous
assessment upon shares of express company where board of Talus-
tion ignored company's claim that investments of profits were not
used in business.

Syl. 14 (XII, 622). Assessment board presumably considered
all facts presented.

Approved in Missouri v. Dockery, 191 U. S. 170, holding judgment
of board of equalization will not be revised on strength of allega-
tions of undervaluations on mere use of unsupported term " fraudu-
lent;" Kansas City, etc., R. U. Co. v. King 120 Fed. 621, 622, 623,
sustaining method of assessing railroad property adopted by board
within powers conferred by statute where valuation is not excessive
though method different from usual; United States Trust Co. ▼.
Territory, 10 N. Mex. 428, 02 Pac. 991, upholding valuation of
$0,500 per mile placed by territorial board of equalization upon
railroad, at meeting held pursuant to law.

Distinguished in Coulter v. Weir, 127 Fed. 909, 910, holding er-
roneous assessment by board of valuation on express pn^^rty ig-
noring company's claim that certain invesunents of surplus were
not used in the business.

(XU, 019). MisceUaneous.

Cited in Atlantic & I'acific Tel. Co. v. Philadelphia, 190 U. S. 1(B»
23 »up. Ct 818, 47 L. 990, holding municipality may impose rea-
sonable license fee upon interstate telegraph company to cover
cost of local government supervision over lines; Hart ▼. Smith, 159
Ind. 197. 64 N. E. 000, holding proceedings of State board of tax

lif Notes on U. S. Reports. 154 U. S. 4SS-490

conimtsstoners are open to collateral attack tliougb no iBflrmity
ippeiir on the record,

IH U. S. 438-447. Not cited.

IM U. S. 447-490. 38 L. 1047, INTERSTATE COMMEKCB COMM*
T. BRIMSON.
SfL 1 (Xll, 623). Congress controls interstate and International
ciNDiDerce.

Approved in Atlantic & Pacific TeL Co. r. Philadelphia, 190 U. S.
162, 23 Sup. CL 818, 47 L. 9^, holding Congress, under Conatltu-
tiOQ, has exclusive power to regulate commerce with foreigii na-
tkms and among States when subjects ai^e national in character.

SyL 5 (XII, 624). Commerce commission petitioning courts to
enXoree orders.

Approved In Interstate Commerce Comm. v. Phlladelpbia, etc.,
fi. fiy., Co., 123 Fed. S>70. holding on petition by individual against
nOroada for discrimination in anthracite coal rates, coal company
owtied by defendant railroad may he required to produce contracts;
Matter of Davies, 168 N. Y. 105, 108, 61 N. E. 122, 123. upholding
lotl'mooopoly law 1809. chap. 090, requiring justices of Supreme
Ooort to order examination of persons for testimony needed by
iftomey-general for complainte.

Diatinguisbed in In re Kinney, 102 Fed, 468, 473. holding Rev.

Sue, I 3173, authorizing collector to summon for examination

persona charged with returning *' objects subject to tax/' gives no

to force testimony nnder oleomargarine law : dissenting opin-

to Matter of Davics. 168 N. Y. 113, 114, 115, 61 N. E. 12o, 12G,

"ritj- upholding anti-monopoly law 1899, chap. 690, requiring

fine Court Justices to order examination of persons when re»

by attorney-geDeral for evidence needed in complaints.

8yL l> (Xn, 624). Witnes.^ before commission refusing to answer*

ApproTed In Downes v, Bidwell, 182 U. S. 289, 4S L. 1107, 21

Sup. Ct 788. holding limitation imposed by Constiti»tion upon power

operates upon and confines every action on suhjecta within its

initlonal limits.

Ished in WyckolT v. Wagner Typewriter Co., 99 Fed. im,
keldhl^ whether wellness is justified In refusing to answer question
Rev. Stat. SCO. is question for court.
SxL 10 (Xll, 024). Congress cannot give courts nonjudicial func>

Approved to District of Columbia v. Eslin, 1S3 U. S. 66, 40 L. 86, 22
Wnp, Ct IB, holding repeal of act February 13, 1S95, prevents Sn-
pr«ine Court from taliing jurisdiction of appeal by District of
Oolumbttt from Judgment allowing claims.

154 U. S. 624->656 Notes on U. S. Reports. S18

154 U. S. 624-629. Not cited.

154 U. S. 629, 24 L. 926, CORRY v. CAMPBBIiU

(XII, 632). Miscellaneous.

Cited in Oskamp v. Lewis, 103 Fed. 909, sustaining asseesment
of property, without notice to owner, where by Rev. Stat. OhkN
$ 5848, the owner is expressly given right to test validity of same.

154 U. S. 629-G31, 24 L. 680, HUTCHINSON v. THE NORTHFIEDD.

Syl. 1 (XII, 632). Vessel may rely upon other.

Approved in The Chicago, 125 Fed. 717, holding privileged vess^
should maintain her course and speed In absence of distinct indi-
cation that burdened vessel Is to fail In her duty.

154 U. S. 631, 632, 24 L. 705, CLARK v. BEECHER.

Syl. 1 (XII, 632). Decree adjudging rents against wife inyalld.

DisUnguished in Bigby v. Warnoclt, 115 Ga. 391, 41 S. B. 624.
holding wife being fraudulent grantee of husband Is liable person-
ally to creditors of husband and cannot plead disposition of prop-
erty or debt due from husband.

154 U. S. 632-635, 24 L. 664, STRONG v. UNITED STATES.

Syl. 2 (XII, 632). Charterer may discharge ship for nonr^mlr.

Approved in The Ely, 110 Fed. 573, holding charterer's Tlolation
of charter by going on unauthorized trip does not render him liable
for damages from marine perils not caused by such trip; Sutcliff
V. Seligman, 110 Fed. 562, holding injury to launch by breaking
of eccentric pin due to its insufficiency while launch was engaged
In trip on stream different than that mentioned In charter was not
breach thereof; Konulds v. Leiter, 109 Fed. 907, holding where
ship was not seaworthy as warranted charterer might discharge
vessel for chaj-ter puri)ases and recover cost of repairs and towage
charges.

154 U. S. 6:^5-055. Not cited.

154 U. S. G5G, 25 L. 980, GAGE v. CARRAHER.

Syl. 1 (XII, 634). Removed cause remanded where no deter-
minable controversy.

Approved in Raphael v. Grask, 118 Fed. 779, holding in suit to
restiain partnership acting for itself and as agent for stockholders
from selling railroad stock all partners are necessary parties; Yar-
nell V. Felton. KM Fed. 162. 102 Fed. 370, holding where there are
several plaintiffs or defendants every necessary party cm (me side
must have citizenship different from every necessary party on
other; Green v. H oast on, li>4 Ind. 128, 56 N. E. 88. holding removal
petition alleging diverse residence at time complaint filed is insufll-
cient where pleadings do not show diverse citizenship^

m

Notes on U. S. Reports, 154 U. S. 657-676

15i U. 8. 057, 25 L, 771, THE LOUISVILLE v. HALLIDAT,

SjL 2 (XII, 634). Admiralty appeal proceeds de doto.

Ippfored In Chicago Ins. Co. v, Graliam, etc., Co., 108 Fed, 273,
iioiding adralraJty appeals are tried in Circuit Court of Appeals
on Dew evidence and new pleadings as formerly in Circuit Court;
GUchrist t. Chicago Ins. Co,, llM Fed. 571, holding act 1891, creat-
lOf Gfrojit Court of Appeals, does not alter previous practice that
idmiralty appeals bring up for trial de novo aU issues raised bj
pleadings.

154 U. S. 657-€61. Not cited.

IMU* S. 661-663, 26 U 178, WHITE ^. UNITED STATES.

8yL 1 (XII, 635). GoTernment not responsible for loss to cbar-
tefed Teasel

Approved in The Ely, 110 Fed. 573, holding unauthorized acta
oa Toya^ entail oo responsibility except for loss proceeding from
*rts themselves.

3M U. S. 663. 26 L. 176, McLAUGHLIN v. FOWLEIL

Bjt I (Xn, 635). Supreme Court looks beyond Federal question.

Approved In German Sav. Soc. v. Dorrnitzer, 192 U. S. 128, 24 Sup.

Ct 222, holding decree of divorce may be impeached collaterally

tn courts of another State by showing of no lurisdictlon In court

granting same.

154 U. 8. 6G4. Not cited.

IM U, S. 665, 666, 26 L. 438, SEWARD v. OOMEAU,

Syl 1 (XII, 635). Appellant cannot obtain, then complain of
removal.

Approved In Empire Min. Co. v. Propeller, etc,» Co., 108 Fed,
9U3, holding petition to remove is vralver of ail personal privilege
of salt only In district of residence;.

154 U* 8. 66(^76. Not cit«^

CLV UNITED STATES.

165 U. S. S-IO, Not dted.

155 U. S. lS-45, 39 L. 52, ROBB v. VOS.

Syl. 1 (XII, 637). Election of remedies manifested by acta.

Approved in National, etc.. Pipe Worlds v. Oconto City, etc., Co.*

113 Fed. 808, holding decision that water-\?orks property was not
subject to mechanic's lien precludes plaintiflT asserting same from
maintainhig second suit to redeem; Noyes y. Bdgerly, 71 N. H. 504,
53 Atl. 313, holding allegation of election is insufficient where It
fails to show that plaintiff was cognizant of bis legal right so as
to make an intelligent choice.

Syl. 4 (XII, 637). Circuit Ck)urt may grant equitable relief.

Approved in United States v. Beebe, 180 U. S. 352, 45 L. 509,
21 Sup. Ct 375, holding district attOTuey has no authority to ac-
cept compromise Judgment in favor of United States on representa-
tion of defendant that latter has no property; Hendryx y. Perkins,

114 Fed. 807, holding decree entered on bill to Impeach prior decrc^e
for fraud is final and appealable.

Distinguished in Evans v. Gorman, 115 Fed. 402, holding Kev.
Stat, § 720. precludes Federal court from enjoining sale of estate
lauds ordered by Arkansas Probate Court having exclusive Juria-
diction over such estates.

155 U. S. 45, 40. Not cited.

155 U. S. 47-54, 39 L. 04. WRIGHT v. YUENGLINQ.

Sji. 1 (XII, 038). Nonpioneer invention patent strictly construed.

Approved in American Fur Refining Co. v. Cimlotti Unhairing
Mach. Co.. 123 Fed. 874, holding Sutton patent No. 383,258, for fur-
plucking machine, not infriujrcd by machine with reciprocating In-
stead of fixed strct(h(?r bar; Levy v. Harris, 124 Fed. 71, holding
I^cvy patent No. tj()4,r>«^4, for (luill-prinding machine, not infringed by
machine oniittinjr screw used by former to adjust tension of spring;
l)e Lamar v. De Lamar Min. Co., 117 Fed. 241, holding void for
lack of novelty Waldstein patent G()7,71{>, for process for extract-
ing precious metals from cyanide solutions; Stokes Bros. Mfg. Co.
V. Heller, 101 Fed. liG7, holding Stokes patent No. 370,400, for
Improvement In rasping machine, is not pioneer invention and no'
Infringed.

151M)]

221

Notes on U, S. Reports.

155 U. S. 54-76

SyL 2 (XTI» 038). Gombtnatlon simply Improving not patentable.
Approved In Hlrsch v. Ualou Stoveworka, 126 Fed. 190, holding
Fennefisy patent No. 424,964, for central draft oil or gas burner* not
Infrtnged by patent greatJy varying proportion of area of perfora-
tioOB to area of cylinder; West Coast etc, Faucet Co. v. Jackson
Brewing Co,, 117 Fed, 296, holding void for anticipation Anthony
Md Savage patent No. 468444, for faucet bushing and vaJve for
bm^s] Pittsburg Meter Co. v. Pittsburg Supply Co., 109 Fed. 651,
toldlng Youngs patent 473*544, for gas meter, having a weighted
diaphragm, not infringed by meter dispensing with such diaphragm;
Campbell Printing, etc., Co. v. Duplex Prlntlog, etc., Co., 101 Fed.
2&4. holding Stonemetz patent No. 376,053, for web-printIng ma-
chine, limited to slight variation In odd elements nsedi Is not in*
fringed.

156 U, 8. 54-58, 39 L. 67. LEWIS v. PIMA CO.

SyL 1 (XII, 639). Territorial statute cannot require railroad con-
stmctlon indebtedness.

Dletlnguished In Murphy v. Utter, 186 U. S. 104, 46 I* 1076, 22
Sap. Ct. 779, holding valid bonds of Pima county, Arizona, issued
la exchange for railroad bonds, such being within protection of
act Jmie e, 1896; Sbuerman v. Arizona, 184 U. S. 351, 4e L. 584,
2Z Snp. Ct 409, sustaining Arizona funding bonds issued in place
of connty bonds, under act 18^, though county withdrew reijuest
before issue.

155 C. S. 58-T6. 39 L, m GREELEY v, LOWR
SjL 1 (XIX, 639), Partition bill brought where land lies.
Approved in Seybert v. Shainokin, etc., Ry. Co., 110 Fed. 811,
In suit of local nature to foreclose railroad mortgage non-
idtitt trustee must be served with order to appear and plead
at certain date.

SyL 3 (XU, 639). Federal courts enforcing equitable State
remedies.

Approved in CoFmoe Exploration Co. v. Gray Eagle Oil Co., 112
fM* 10, holding Federal court has no Jurisdiction of suit to deter-
vJae title to land In possession of defendant; Southern Pine Co.
T, HalL 105 Fed. m, 90, holding Federal court has Jurisdiction of
tide to QUlet title where neither party is in possession where State
itatute provides for such action.

8jL 5 (XII. 640). Allegation of resident true for Jurisdiction.

Appnrred In Jenkins v. York Cliffs Imp. Co., 110 Fed, 810, hold-
Injf Federal court has no Jurisdiction over defeudrmt resident of
8tal# otlier than those In which plalutiff and other defendants

155 U. S. 76-d9 Notes on U. S. Reports. 622

(XII, 639). Miscellaneous.

Cited in Ellsworth Trust Co. v. Parramore, 108 Fed. 907, hold-
ing Federal court acquires no Jurisdiction over Iowa corporation
whose principal place of business is in Iowa by service on agent
in IHinois.

155 U. S. 76-86, 39 L. 76, UNITED STATES v. COE.

Syl. 2 (XII, 640). Appellate Jurisdiction over Court of LAnd
Claims.

Approved in Chow Loy v. United States, 112 Fed. 359, holding
right of appeal, given by Chinese exclusion act 1888, is to district
Judge as a special tribunal.

155 U. S. 8C-S9, 39 L. 79, SIPPERLEY v. SMITH.

Syl. 1 (XII, 640). All parties must Join in appeal.

Approved in Loveless y. Ransom, 107 Fed. 627, holding all par-
ties against whom Joint decree is rendered must Join in appeal If
no severance; Kidder v. Fidelity Ins., etc., Co., 105 Fed, 823, hold-
ing where one of several interveners appeals from decree after
term he must include in appeal and serve with notice all record ^
parties directly involved in appeal; Grand Island, etc., R. R. Co. ^^
V. Sweeney, 103 Fed. 347, holding parties asserting liesis againtt^^
railroad property, but decreed to be inferior to plaintiff, must Joiii^
in railroad's appeal.

155 U. S. 89-99, 39 L. 80, NEW YORK v. END.
Syl. 1 (XII, 640). Federal court releasing prisoners before trlsi „^
Approved in Stevens v. Ohio, 179 U. S. 680, 46 L. 384, 21 Suf^siv*,
Ct. 917, reaffirming rule; Minnesota v. Brundage, 180 U. 8. 500^
45 L. 641, 21 Sup. Ct. 456, holding application for writ should T
denied where defendant did not question State law in State conm-m:^-
Anderson v. Elliott, 101 Fed. 613, holding Federal court will d.^^
charge United States marshal arrested by State authorities wh
executing writ of possession.
Syl. 2 (XII, 641). Federal should not interfere with State i
Approved in Reid v. Jones, 187 U. S. 154, 23 Sup. Ct 90. 47 ^^
117, holding defendant cannot question constitutionality of con*^ . ^
tion by habeas corpus where he has not talsen case to higl ^ le^
State court; Davis v. Burke, 179 U. S. 402, 45 L. 251, 21 Sup. Cfc
211, holding habeas corpus will not issue to stay sentence of S-~iC9/^
court where unconstitutionality of law not raised in State co^azrr;
Boski V. Comingore, 177 U. S. 466, 44 L. 849, 20 Sup. Ct 704, tMOld.
ing imprisonment of internal revenue collector is case of urgency
warranting writ of habeas corpus from Federal court; In re Blit*
thews, 122 Fed. 253, 257, holding petitioner arrested for shootfo^
deserter from army, while acting as city police officer, not entitled

Notes on U. S. Report*. 155 U. S. lOO-lOS

to discharge where autborlty and neceBsfty for shooting were
4otibtful.

155 U. S. 100, 101, 39 L. S4, PEPKE v. CRONAN.
^yl 1 <XIL 641 1 . Federal court dismissing habeas eori>u8'
Approved In Stevens v. Ohio, 179 U. S. 680, 45 L. 384, 21 Sup.
Ct. wr. reaffirming ruJe; Minnesota v, Brundage, ISO U. S. ^fl,
-^ L 641, 21 Sup* Ct. 450, holding ar^licatloa for writ should be
«3eiue<l where defendant imprisoned judgment of Municipal Ck>urt
*i» not qu-estioned constitutionality of law in State courts.

156 U. S. 102-108. as L. 85, CHAPPELL v. WATER WORTH.
8jL 1 (XII, ^1), Original declaration must show Federal queat-

improved In Arkansas v* Kansas & T. Coal Co.. 1S3 U. S. 1S.S.
3«t le L, 140, 147. 22 Sup. Ct 48, 49. holding Circuit CouJ-t can-
not take judicial notice to sustain jurisdiction that word ** Import,"
^ talt to restrain Importation of armed men, means briaginij
^iwa another State; Florida Cent., etc., R. R. T. Bell, 170 II. S.
^30^44 L. 490, 20 Sup. Ct, 402. holding mere assertion of title to
^Mult nnder Federal patent, states no sufficient Federal question;
^fly T. St- Louis. 122 Fed. 525, holding Federal jiirisdlction can-
not be conferred by allegation unticipatlng defense baaed upon
federal laws; Wichita v. Missouri, etc.. K. Telephone Co.. 122 Fed,
^^ holding suit purporting to rest upon Federal Constitution ean-
*»ot be removed from State court where bill discloses no such
«viind for relief; Filliiol t, Torney, 119 Fed. 970, holding alloga-
^Ofl that defendant in ejectment is in possession by direction of
Waited States is surplusage and cannot confer Federal jurisdic-
'^; South Carolina v. Virginia-Carolina, etc., Co., 117 Fed. 728,
^^ holding State suit against foreign corporation for r>enalties
^fllipoted by State statute^ purporting to have been enacted as po-
lice Qiefisnre, Is not removable; Maaio v. Dockery, 108 Fed. 8U8,
ItoWJng defendant United States marshal, cannot remove suit
^ugbt in State court, not alleging that he was marshal nor that
^tdOQe was ofllclal; Aultman & Taylor Co. v. Brumfteld, 102 Fed.
^\ holdtng defendant cannot remove suit involving Federal ques-
'^ Where plaintilT's statement of claim does not present It: Broad-
^ llia. Co. V. Chicago, etc., Ry. Co.. 101 Fed. 510. holding where
M^iodlTH statement of claim does not show sepmable controversy
^^ will be remanded; People v. Sanitary Dist., 98 Fetl. 15U,
^'fllag blU by State to enjoin building of canal on ground that
It w<mkl lower water In river which Federal law required State
^ Mntaln presents Federal quc^stlon; Stuart v. Bank, 57 Nehr.
^ "8 S. W. 200. holding State court has jurisdiction of aetdon
f^ deceit against national bank directors, and returns same pend-
NnmoTftl proceedings*

155 U. S. 109-U7 Notes on U. S. Reports. 624

Distinguished in Winters y. Drake, 102 Fed. 546, holding plaintiff
cannot prevent removal of cause against Federal receiver by omit-
ting to state by what court defendant was appointed.

155 U. S. 1(»-117, 39 h. 87, UNITED STATES v. JAHN.

Syl. 1 (XII, 643). Certified questions reviewed on certiorari.

Approved in Anglo-American Prov. Go. v. Davis, etc.. Go. (No. 2)»
191 U. S. 377, 24 Sup. Gt 94, holding plaintiflT cannot maintain
direct appeal to Supreme Court because jurisdiction of lower court
was tn issue where same was sustained; New Orleans y. Ems-
heimer, 181 U. 'S. 154, 45 L. 794, 21 Sup. Gt 585, dismissing appeal
from Circuit Court to review decree sustaining court's JurlsdicticMi
where appellant's demurrer for want of equity was sustained;
Cincinnati, etc., Ry. Co. v. Thiebaud, 177 U. S. 620, 44 L. 913, 20
Sup. Ct 824, holding writ of error from Supreme Court will be
dismissed where taken while case was pending on prior writ from
Circuit Court of Appeals; Garter v. Roberts, 177 U. S. 500, 44 L. ^
863, 20 Sup. Ct 714, holding direct appeal does not lie to Supreme^
Court after cause has been appealed to and decided by CircuitTj
Court of Appeals; St Louis Cotton Compress Go. v. Americac^^
Cotton Co., 125 Fed. 197, holding act March 3, 1891, gives Supreme ,cj
Coiut Jurisdiction to review Judgment of Circuit Court dismissintjc^
for want of jurisdiction; Excelsior Wooden Pipe CJo. v. Pacific Brid£^ j
Co.. 109 Fed. 498, holding appeal will not lie to Circuit Court o
Appeals from Circuit Court's dismissal on ground of no Jurisdi'^^
tion; Reliable Incubator, etc.. Co. v. Stahl, 105 Fed. 607, 608. hol*^^
ing assignment of errors determines scope of appeal, and wbe^^^j
errors other than jurisdiction are raised, " whole case ** is befoo'a
court on appeal; Evans-Snidcr-Buel Co. v. M'Casklll, 101 Fed. 6(^^31
holding Circuit Court of Appeals has no jurisdiction to review o
cision of Circuit Court where jurisdiction was in Issue and deci(E:» J
against plaintiff; dissenting opinion in American Sugar Refining ^
V. New Orleans, 104 Fed. 5, majority holding Circuit Court :=z
Appeals should dismiss writ of error where the controlling qin^^iq
tion involves consti'uction and application of Constitution.

Syl. 2 (XII, G44). Jurisdiction not sole issue appealable.

Approved In Mexican Cent Ry. Co. v. Eckman, 187 U. S. ^*CS;
23 Sup. Ct. 213, 47 L. 247, holding where guardian has right ^y
State law to sue in own name his citizenship and not that of
ward determines Federal jurisdiction; Wlrjrman v. Persons, 120
Fed. 455, 450, holding where whole case is appealed to Circuit
Court of Appeals tliat court may decide it or certify the Jurisdic^
tional (luestion; United States v. Lee Yen Tal, 113 Fed. 467, hold-
ing Circuit Court of Appeals will not consider question of JnriB'
diction of Circuit Court, but will certify same if defendant desires;
Watkins v. King, 118 Fed. 5ol, holding Circuit Court of Appeals

52S

Notes on U. S. Reports.

155 U. S. 117-136

iit3 JnrifldletloD to review whole case on error, though Involving
CQOstlttxtioiiallty of State law introcluced as muniment of title;
Cbamberlln v, Peoria* etc., Ry, Co., 118 Fed. 33. holding Circuit
Court falling to certify jurisdictional question daring term cannot
<io so thereafter; United States v. Lee Yen Tal, 113 Fed. 46t, hold-
In? Circuit Court of Appeals may entertain appeal Involving coti-
•trurtlon of treaty and otlier issues determining latter Issues and
certifying former to Supreme Court; Reed v. Stanley, 97 Fed. 524,
lioldiiii^ where right of appeal to Supreme Court from Circuit Court
^ lost by failure to certify questions during term appeal to Cir-
*^t Oourt of Appeals may be taken within six months.

[■ 8yL 4 (Xn, 644). Jurisdiction raised In Orcult Court of Appeals.
^Approved In Dudley v. Board of Comrg., 103 Fed. 209, dismissing
^Tit of error to Circolt Court where Circuit Court dismissed suit
^or want of jurisdiction.
SyL e (XII, 044). JurladlcHooal question sliould be first deter-
-Approved In Hays v. Richardson, 121 Fed. 537, holding jndg-
*Qeiit of Circuit Court dismissing attachment suit for want of
'l^irisdlctiOD cannot he reviewed by Circuit Conrt of Appeals; dis-
•««itln^ opinion in L. E. Watermau Co. v. Parker Pen Co., 107 Fed.
1-te, majority holding order vacating service on foreign corpora-
^on becaase not served at latter*s place of huslness Is not appeal
^ble to Circuit Court of Appeals; dissenting opinion in Dawaon
▼. Colmnbta Ave. Saving-Fund, etc., Co.» 102 Fed. 200. majority
^oldlD|r» under act February 18, 1895, appeal will not lie to Cir-
cuit Court of Appeals from order granting injunction in case In-
"^olTlng Impairment of contract.

156 U. S. 117-^124, 39 L. 01, ALLI8 V. UNITED STATES*

SjL 4 (XII, 644). False entrlefl — Condition of accounts admfs-
•tbie.

Ap{»raved in Bacon v. United States, 07 Fed. 42, boldlng In action

tciinflt bank president for making false reports to comptroller evl-

^icQce of prior report containing falie statements Is admissible.

8yl C (XII, 645). Federal Judge may express ophiion on evidence.

Jtpproved in Nome Beach Lighterage, etc.» Transp. Co. v. Munich

^tar. Co., 123 Fed. 824, holding where law is properly laid down

^ jury told to find fact from evidence, regardless of opinion ex-

P*«i«4 0ucb expression by court is not reversible error.

^55 tr. 8. 124-136v 39 L. 01, ERHARDT v. SCHROEDBB.
W. 1 (XII, M5>. Tariff act 1883 makes bale unit
Approved in Rothschild v. United States. 179 U. S. 4GT, 468, 45

t«S79ii 21 Snp. Ct 109, holding leaf tobacco suitable -for wrappers.

155 U. S. 137-196 Notes on U. S. Reports.

mixed with 85 per cent, filler tobacco, is nevertheless dutiable
under paragraph 213, act 1897, as wrapper.

155 U. S. 137-141. Not cited.

155 U. S. 141-156, 39 L. 100, OLIN v. TIMKBN.

Syl. 8 (XII, 646). Popularity cannot supply novelty.

Approved in National Hollow, etc.. Go. v. Interchangeable, etc,
Co., 106 Fed. 707, holding extensive use of machine clearly without
novelty will not sustain patent

155 U. S. 156-162. Not cited.

155 U. S. 163-180, 39 L. 108, SCltlLLINGBR T. UNITED STATES.

Syl. 1 (XII, 646). United States not suable without conaent.

Approved in Christie St. Comm. Co. v. United States, 126 Fed.
933, holding Circuit Court has Jurisdiction of suit to recover tax
illegally exacted under color of internal revenue laws; Bowker v.
United States, 105 Fed. 399, holding Admiralty Ck>urt cannot main-
tain cross-libel, alleging fault of government vessel for injorj of
which government, sues.

Syl. 2 (XII, G46). Court of Claims without tort Jnrlsdiction.

Approved in BIgby v. United States, 1S6 U. S. 406^ 23 Sop. Ot
471, 47 L. 523, holding Federal court has no jurisdiction, under
Tucker act 1887, of suit against United States for injuries from
negligence of employees running government building elevator;
Russell V. United States, 182 U. S. 530, 531, 45 L. 1215, 1216, 21
Sup. Ct. 904, holding Court of Claims has no jurisdiction of suit
against United States to recover for infringement of patent where
no implied contract to pay could be shown.

Distinguished in United States v. Lynah, 188 U. S. 458, 478, 28
Sup. Ct. 352, 300, 47 L. 544, 551, holding Circuit Court has Jnrl».
diction of suit against United States for value of rice plantation
destroyed by river improvements; Dooley v. United States, 182 U.
S. 228, 45 L. 1080, 21 Sup. Ct 704, holding Court of Claims baa
jurisdiction of action to recover duties illegally exacted under
protest on New York imports into Porto Rico.

155 U. S. 180-196, 39 L. 114, UNITED STATES T. BLACK
FEATHER.

Syl. 1 (XII, 647). Appellate court considers only errors assigne

Approved in Guarantee Co., etc. v. Phenix Ins. Co., 124 Fc
172, holding appellee who does not sue out writ of error or ta
appeal cannot bring up questions for review.

Syl. 4 (XII, 647). Government not liable for guardian's em?
Element

Approved in Blackfeather v. United States, 190 U. 8. 876, 23
Ct 775, 47 L. 1102, holding act October 1, 1890, gave Cow

j27

Notes OB U. S. Report!.

155 U. S. im-2AQ

Claims no jurlsdlctJon over claims of Individ iial members of Sbaw-
iwe tribe.

155 0. S. 19<V-21S, 39 L, 12a CHEROKEE NATION v, JOUEJ^KY-
CAKa
Syl 1 (XH, 64T). New tribesmen share com mom lands.

Approved In WinebreDner v. Forney, 189 U. S. 152. 23 Sup. Ct.
302, 47 L. 750, holding description In procianiatlon of Aognst 10,
IS08, opening Cherokee lands of 1110-foot strip* controls snbse<iuent
eliDses; Cherokee Nation v. Hitchcock, 18T U, S. 307, 23 Snp. C?t
13>. 47 L. 190. holding treaty of 1835 vested title In Cherokee nation,
oat iBdlviduals, and did not preclude congressional controL

155 tr. S. 218^222. Not cited.

115 U. S. 222-22a 3» L. 128, LLOYD v. MATTHEWS.
SyL 2 (Xtl, 648). Slater State laws must be proved.
Approved in Eastern Building, etc., Assn. v. Williamson, 189 U, 8.
125. 12H, 2:i Sup, Ct, 529. 530, 47 L. 739, 740. holding decision con-
8tni!ng effect of charter and statutes governing foreign corpora-
cion upon its promise to mature shares does not deny such stat-
utes full credit; New York Life Ins. Co. v. Orlopp, 25 Tex. Civ,
287, CI S. W, 338, holding where life insurance policy provides for
raemtmction according to foreign laws such laws become part of
coo tract.

^ StL 3 (XII, 648). State decision construing law nonrevlewable.
approved in Eastern Bldg., etc., Assn. v, Williamson, 189 U. S.
23 Sup. Ct, 520. 47 L. 7?!^, holding decision construing effect
charter and statutes governing foreign corporatioa upon its
^mmlse to mature shares does not deny full credit to such statutes;
JolUUoii v. New York Life Ins. Co., ISl Ih S. 49(1 23 Sup. Ct im,
47 L. 275, holding Iowa decision merely constraing New York stat-
oti*, requiring notice before forfeiture of policy, does not deny
vtamte full credit; Banholzer v. New York Life Ins. Co., 178 U,
8. 4*W^ 408. 44 L. 1120. 1127, 20 Sup. Ct. 974. 975. holding dedsion
cocwtniing New York statute 1S92, according to New Yorli decision,
dor* not deny statute full faith and credit

]5& C 8. 228-240. 39 L, 30. ORIGET v. HEDDEN.
pai, 648k Miscellaneous.

In Fidelity & Deposit Co, v, Courtney, 180 U. S. 361, 45
tlM» 22 Sup. Ct. 837, holding error In excluding cashier's cer-
lldrate In action on bank president's bond not cause for reversal
wbfre hwtnictlons were proiK^r and error not prejudicial; AtchiBon.
He^ Rj. Co. V, Phlpps, V25 I^ed, 4Hi>, holding exclusion of evidence
ia warrant reversal must be of material evidence, which exclusion
mlglbt hATe c&usod injury to party offering evidence.

155 U. S. 240-283 Notes on U. S. Reports. 628

155 U. S. 240-252, 39 L. 135, MUSBR v. MAGONB.

Syl. 1 (XII, 648). Valuation by proper officials is conclusive.

Approved in United States v. Beebe, 117 Fed. 679, holding order
of secretary of treasury for rellquidation of entry when resting
on proper basis therefor, under act 1894, is not reviewable.

Syl. 6 (XII, 649). Customs collector's decision cannot be Im-
peachea.

Distinguished in United States v. Loeb, 99 Fed. 732, holding, un-
der customs administrative act 1890, collector is sole Judge ot
whether appraisement is too low and may show that board of i^
praisers has no jurisdiction.

155 U. S. 252-265, 39 L. 139, THE BREAKWATER.

Syl. 1 (XII, 649). New York ferries have right of way.

Approved in The Hartford, 125 Fed. 560, holding tug with tow
violating rule requiring vessels to keep near middle of East river
at fault for collision on side; The City of Augusta, 102 Fed. 995.
holding running of steamship at ten knots an hour witliin 300 feet
of ends of piers on New York side of Hudson across ferry-slips is
negligent navigation.

Syl. 3 (XII, 649). Rules obligatory while precaution necessary.

Approved in The Straits of Dover, 120 Fed. 903, holding vessel
violating rule that vessel having other on starboard must keep
out of way is at fault

155 U. S. 265-270, 39 L. 144, WARREN v. KEEP,

Syl. 1 (XII, 650). Master's findings sustained by court conclusive.

Approved in Lilienthal v. M'CormIck, 117 Fed. 97, holding ap-
pellate court will not disturb findings of lower court on conflicting
evidence where not clearly opposed to weight of evidence; The
Providence, 98 Fed. 135, holding Circuit Ck)urt of Appeals will not
disturb commissioner's allowance for repairs and demurrage after
collision, where lower court confirmed same.

Distinguished in The Columbian, 100 Fed. 996, holding Circuit
Court of Appeals not bound by finding of fact made by lower court
in admiralty case where no reference was made.

Syl. 3 (XII, 650). Profits must come from patented part

Approved in Lattimore v. Hardsocg Mfg. Co., 121 Fed. 988, hold-
ing complainant on accounting for infringement of miners' lantern-
holders sold, attached to caps, limited to profits derived from hold-
ers only.

155 U. S. 271-283. 39 L. 146. THOMPSON v. UNITED STATES.

Syl. 1 (XII, 650). Discharge of jury not double Jeopardy.

Approved in Dwyer v. Illinois, 187 U. S. 86, 23 Sup. Ct. 33. 47
L. 86, holding discharge of Jury for inability to agree does not

Notes •& U. S. Reports.

155 U. S. 2S3-303

Entitle accused to plead double Jeopardy ; United States r. Jim Xjee.
123 Fed. 742, holding retrial after disctiarge of Jury for Inability
to t(Tw Is not double jeopardy; In re Ascher, 130 Micli. 551, 90
X. W. 422, holding accused not put tn Jeopardy by proceedings
^dTP. jury so mJsconducUng Its elf as to require judge to discharge
•ajDe aiid declare mistrial.

8yl 3 (Xll, 650). Threats by deceased cannot show malice*

ApjjfoTed in State v. Bone, 114 Iowa. 549, 87 N. W. 511, hold-
iDir erroueouB Instruction that accused could arm himself If he
feiiwj dan^eroua assault, and tJiat being armed was no evidence of
malice.

155 t. 8. 2SJ-286. Not cited,

155 U, S. 286-^OG, 39 L. 153, DEERING v. WINONA HARVESTER
WORKS,

SjL 3 (XII, 651). Nonploneer patent strictly coDstnied.
Approved In Electric SmeJting, etc., C!o. v* Pittsburg Reduction
Co.. Ul Fed, 757, holding Bradley patent Nos. 4tM,933 and 4t>S,148.
for process for reducing refractory metallic ores, being of doubtful
otlUty, ts closely construed; General Eleetrlc Co. v. Winsted Gaa
Ca, 110 Fed. 969, holding Eickemeyer patent No* 342,504, ciagneto-
•iectric machine, not entitled to broad construction, and as construed
not infringed; Branson v. Kut^s, 105 Fed. 975, holding Branson patent
Xo. 333:102, for improvement in knitting machines, strictly con-
stmed. not Infringed,
Syl 5 (XII» 651). Oral testimony of prior use Buspicioua*
Approved In Sacks v. Kupferle, 127 Fed. 570, holding where an
tletp«tor's application was filed first, burden is on other pa^ty to
•how priority in favor of his patent; Rod well Sign Co. v. Tuchfarber
Co., 12T Fed, 142, holding rule discrediting oral evidence does not
preclude court from accepting reliable oral evidence of anticipation
Vbere evidence la such as w^ould convince; Peters v. Union Biscuit
C<k* 120 Fed. 683, holding reproduction of box claimed as in use
flfleen years before constructed from witness* memory is of do
rrttlentlal value; Swain v, Holyoke Mach. Co., Ill Fed. 409, hold-
ing unsupported testimony twenty years afterward of applicant for
Ittteot that use two yearn prior to application for patent waa ex-
ptrtmeotal is insufficient; rational Hollo%v, etc. Co, v. Interchange-
aHle, etc., Co., 106 Fed. 703, holding flimsy oral evidence of prior
uae of patent brake beam Insufficient to prevail over presumption
(tarn pAtent; Brown v, £aut>ltz, 105 Fed. 242, holding oral testimony
BBMpported by patents or exhibits showing prior use, and Incon-
ililail with previous atatementa of prior user» la insufficient
Vol 111 — 34

155 U. S. 303-314 Notes on U. S. Reporti. I

Syl. 6 (XII, 651). Patent not affected by nnsnccessfnl exp<
ments.

Approved In R. V. Thomas, etc., Co. v. Electric, etc., Mfg. C
111 Fed. 927, holding unsuccessful and abandoned experiment d<
not operate as an anticipation of patent

Syl. 7 (XII, 651). Omitting necessary operative elements not fal

Approved in Canada v. Michigan Malleable Iron Co., 124 Fed. 4
holding reference cannot be made to specifications to add eleme:
not included in claim but only to explain same; Mayo Knittl
Machine, etc., Co. v. Jenckes Mfg. Co., 121 Fed. 114, holding pa
whose co-operative action is necessary to performance of fu
tion of the claim must be specified; Chinnoch v. Paterson, etc., 1
Co.. 112 Fed. 535, holding Van Depoele patent No. 495,443,
traveling contact for electric railways, anticipated by patent ]
424,695, of same inventor; Brammer v. Schroeder, 106 Fed. fl
930, holding claim for combination of devices is not Invalid
cause omitting mechanical devices which readily suggest tbemsel
to skilled mechanic; National Hollow, etc., Co. v. Interchangcal
etc., Co., 106 Fed. 716, holding one who appropriates new and i:
ful combination cannot escape infringement by use of differ
but common metallic devices to connect same.

155 U. S. 303-310, 39 L. 160, UNITED STATES v. LAMONT.

Syl. 1 (XII, 652). Mandamus unavailable to enforce discretionj
duty.

Approved in Farmers* Nat. Bank v. Jones, 106 Fed. 465, hold
bill in equity cannot be maintained to compel board of pal
officers to issue bonds; Kimberlin v. Commission to Five Civlli:
Tribes, 104 Fed. 658, holding mandamus will not issue to com
commission to five civilized tribes to enroll applicant for cltia
ship in Chickasaw nation.

Distinguished in Murphy v. Utter, 186 U. S. 101, 46 L. 1075,
Sup. C^ 778, holding change in personnel of loan commission
Arizona, a continuing body, does not abate mandamus proceed!
to compel issue of refunding bonds.

155 U. S. 311-314. 39 L. 1G4. PEARCE v. TEXAS.

Syl. 1 (XII, 652). Asylum State never considers indictmei
sufficiency.

Approved in State v. Clough, 71 N. H. 605, 53 Ati. 1092. hold
denial of constitutional rights of accused is not made by refi:
of asylum State's courts to determine constitutionality of stati
leaving same to demanding State.

Distinguished in Armstrong v. Van de Vanter, 21 Wash. 688,
Pac. 512, holding, on habeas corpus on requisition of fugitive, coi
should determine whether indictment charges crime against lawi
demanding State.

Notes on U. S. Reports.

155 V. S. 314-385

(XII. 652). MiscellaDQous,

Cited ba United States v; Yarborough, 122 Fed. 200, holding com-
ittiislozier holding preliminary examlDatlon sbould traDHuilt to judge
h«irlDg application a stiiteraont of proceedings.

m V. B. 314-333, 39 U IGT, WEHRMAN v. CONKLIN.
SyL 2 (XII, C53). Federal courts enforcing new State remedies.
Approved In United States Mining Co. r. Lawaon, llo Fed. 1007,
'Joldtng Federal court of equity will not enterliiln suit to determine
|| ^rene claim wliere bill neither shows that comi>laluant is In or
^Aat both are out of possession* See 94 Am. St. Kep* 552, note.
SfL 3 (XII, 653)a Equity intervening where equitable estoppel
bimdeqnate.

Approved in Sullivan Timber Co. v. Moliilo. 110 Fed. lOS, hold-
fc^ city long a^'quiescing In custom giving propi-rty-ow^ner implied
e^nse to erect wharves over aubmerged lands is estopped to de-
Woy property rights therein.
k::^lt, 652). Miscelljineous.

plated in Johnson v. Huiitep, 12? Fed, 223. holding, under Arkansas
^^^, Hen grantetl agalnf^i hind in levee district for taxes may he
l^'^rced against nonresident owner by notice by publication.

& U. S. 333-354, 30 L. 170, PENNSYLVANIA R. R. CO. v, JONES.

^^^jL 1 (Xn. i!r»3). Without agreemeiit, carrier not bound beyond

fc».xe.

|«^^pproved in dissenting opinion in St. Louis, etc., Ry. Go. v.

^^ ing, 114 Fed, 1020» majority uphold tug instruction that initial

^^"»t^ liable to passenger until delivery to connecting carrier;

^■*tiltto^ apinlon in Ireland v. Mobile, etc., R. R., 105 Ky. 410, 49

' "^V. 4.55, majority holding void stipulation in contract for througb

^ ^ment that Initial carrier shall not be liable for loss on connect-

ifc^ ctrrier.

k'^Sl, C53). Miscellaoeous.

felted in Lehigh Valley R. R. v. Dupont, 128 Fed. &1G, holding

^•xiltiant carrier liable for negligence of constituent cartiers in

^•'*tiige of passenger or freight,

* U, S, 354-^^lS5» 39 L, 183, LAKE SUPERIOR, ETC, CO. F.
CUXXTNGHAM.
®yl 1 <XIL 6541. Michigan laud grant w^as in prmsentl.
AiipiroToil in King v. McAudrews, 111 Fed. 8011 holtltug land whiel!
"••ptwed from United States or which is reserved or not disposed
^ ^y Congress la not within Jurisdiction of land department.
^yV 2 (XH, 054). Ijands pass to State on definite location.
%ruvnl in Man ley v. Tow, 110 Fed. 251, holding section 5 of
^^18ST wn« lutmdrd to give preference to clainiauts under home-
'^^'^ aiiil pre-emption laws, as to unearned railroad lands.

165 U. S. 386-403 Notes on U. S. Reports. . 532

Syl. 3 CS^II, 654). General terms not Including prior grants.

Distinguished in Cunningham v. Metropolitan Lumber Co., 110
Fed. 335, holding 25 Stat 1008, confirming title of bona flde pur-
chasers from grantees of forfeited raihroad land grant, merely con-
firmed claims as they then stood.

Syl. 7 (XII, 655). Bona fide homestead claim defined.

Approved in Benner v. Lane, 116 Fed. 411, holding entry on lands
known to lie within railroad grant and occupancy and improyement
thereof with knowledge of railroad's nonfulfillment of grant is
bona fide; Manley v. Tow, 110 Fed. 252, holding settler upon railroad
lands, knowing that land had been recalled but that grant was not
fufilled by company, hence that land would be reopened, is bona
flde.

Distinguished in Edwards v. Begole, 121 Fed. 5, 7, 9, holding 25
Stat. 1008, forfeiting unearned lands and confirming bona fide
claims of settlers in "actual occupancy," meant those in actual
residence on land.

155 U. S. 386-388, 39 L. 194, DONAHUE v. LAKE SUPERIOR.
ETC., CO.

Syl. 1 (XII, 655). Railroads taking undivided moieties at inter-
sections.

Approved in Southern Pac. R. R. Co. v. United States, 183 U. 8.
525, 46 L. 311, 22 Sup. Ct. 157. holding land included in conflicting
grants of 18G6 to Atlantic & Pacific and to Southern Pacific roads
belonged to them in equal moieties.

155 U. S. 389-392. Not cited.

155 U. S. 393, 394, 39 L. 197, HORNB v. GEORGE H. HAMMOND
CO.

Syl. 1 (XII, r>56). Cause remanded where no Jurisdiction.

DistiDguished in Mexican Central Ry. Co. v. Duther, 180 U. 8. 77,
23 Sup. Ct 610, 47 L. 717, holding Circuit Court may allow amend-
ment after verdict and Judgineut, inserting allegation of citizenship;
Littell V. Erie R. R. Co., 105 Fed. 539, holding suflicient allegation
tliat plaintiff now is and at all times hereafter mentioned was a
citizen of United States and an actual resident of New Jersey.

155 U. S. 394-^96. Not cited.

155 U. S. 39C>-4(>3, 39 L. 198, IN RE RICE.

Syl. 1 (XII, GoG). rroliibition — When of right or discretionary.

Approved in In re Key, 189 U. S. 85, 23 Sup. Ct. 624, 47 L. 721.
dismissing petition for mandamus to compel District of Columbia
Court of Appoals to reinstate appeal from District Supreme Court;
In re Uuguley Mfg. Co., 1S4 U. S. ;i()l, 4G L. 552, 22 Sup. Ct 456,
holding prohibition will not issue where appeal lies to Circuit
Court of Appeals from interlocutory injunction.

633

Notes on U. S. Reports. 155 V, S. 404-411

Dtetln^shed In Ex parte Jonig, 191 U. S. 102, refusing pro-
hJbitloD to Choctaw and Chickasaw citizenship court, after court
hid already acted and certifled its finding to commission.

8yL 3 (XII, 65tj). Mandamus cannot control Judicial discretion.

Approved in Klmberliji v. Commissloii to Five Civilized Tribes,
M Fed. 655, holding mandamus will not Issue to compel com-
mlaglon to ftve civilized tribes to enroll applicant for citizenship
la Chickaaaw nation.

SjL 4 (XI If 656). Mandamus cannot be substltutM for appeal.

Approved In In re Westervelt, 98 Fed. 912, denying petition for
nmadamus to compel Circuit Court to enter decree and to strike
from files answer of defend act.

155 tJ. S. 4(^-416. 39 L. 201, DICK v. FORAKEE.
SyL 1 (XII, 656). Federal court entertaining suit to remove cloud.
Approved In United States Life Ins, Co. v. Cable, 98 Fed. 764,
Qg equity will entertain suit by insurance company to cancel
Dce policy obtained by fraud. See 04 Am. St. Rep. 552, note.
Distinguished in Smith v. Reeves, 178 U. S. 444, 44 U 1144, 20
Sap. Ct 922. holding consent of State to be sued given, by Cal. PoL
Code, f 3669, does not extend to actions in Federal courts.
SyL 2 (XII, 657). Plaintiff must recover on own title.
Approved In Rlacon Water, etc., Co. v. Anaheim Union Water Co.,
Fed, MS, holding posting notice of appropriation of water as
by Civ. Code Cat, § 1415, gives no right to maintain suit
K^ determine adverse claim.
SyL 4 (XII. ^7). Plaintiff must have legal tlUe.
Approved In New Jersey, etc., L. Co. v. Gardner-Lacy, etc., Co.,
US Fed, 897, holding equity will not enjoin defendant for trespass
vte^ latter asserts claim In good faith, averring that Injunction
cause loss to timber being prepared for market and giving
to account; Hanley v. KansaB & T, Coal Co., 110 Fed. 69,
bol^ltng equity will not quiet title In favor of plaintiff out of posses-
•toa or who has not acquired legal title against defendant in poe*
■mloa claiming adversely; Guarantee Trust, etc., Co. v. Delta, etc.,
Co.. 104 Fed. 8. holding, under Miss. Code 1802, § 500, allowing pialu-
ivtf out of possession to maintain suit to remove cloud, plaintiff
wting la Federal court must have title,

Dtsttagulshed in Dairy m pie v. Security, etc., Co., 9 N. Dak. 314,
8* X. W. 248, holding, uBder Rev. Code. §| 5004, 5080, one having
Icfal or equitable interest or lien under tax sale may ma la tain
mkn to quiet title.

^ U. 8. 416. 417, 39 L. 2m, BOBB v. JAMISON.

^Tl I (XII, 657), Writ of error dismissed, following 152 U. 8. 377.

Approved In Eastern Bldg. & Loan Assn. v. Welling, 181 U, S.
IS, 45 U 741, 21 Sup. Ct. 531, holding Supreme Court %vill not enter-

1

155 U. S. 417-482 Notes on U. S. Reports. 534

tain error to State decision to consider Federal questions not raised
until State Supreme Court affirmed and remitted judgment to trial
court

155 U. S. 417-433, 39 L. 206, AUSTIN v. UNITED STATBS.

(XII, 657). Miscellaneous.

Cited in Chesapeake & Potomac Tel. Co. v. Manning, 186 U. S. 242,
46 L. 1146, 22 Sup. Ct. 883, holding proviso is generally inserted
to except something from granting clause or to exclude possible
grounds of misinterpretation.

155 U. S. 434-438. Not cited.

155 U. S. 438-448, 39 L. 214, POTTER ▼. UNITED STATES.

(XII, 658). Miscellaneous.

Cited in Roberts v. United States, 126 Fed. 905, sustaining in-
struction that "willful killing," within Rev. Stat U. S., S 5341.
means killing with evil Intent; Kletzing v. Armstrong, 119 Iowa.
508, 93 N. W. 501, holding word "willfully," in Code, $ 4852, de-
claring mortgagor of personalty willfully destroying property before
mortgage satisfied is guilty of larceny, implies bad intent.

155 U. S. 448-461, 39 L. 218, ALSOP v. RIKER.

Syl. 2 (XII, 658). Lapse of time depends upon circumstances.

Approved in Alaska, etc., Chicago Commercial Co. v. Solner. 123
Fed. 800, holding corporation receiving and applying proceeds of
sale of realty and personalty of corporation will be deemed to
have ratified act of agent in selling same; Hanchett v. Blair. 100
Fed. 827, holding complalnant*s inaction will not bar suit where
delay has worked no injury to any one.

155 U. S. 401-482, 39 L. 223, PLUMLEY v. MASSACHUSETTS.

Syl. 1 (XII, 659). Act 1886 authorizes no violation of State laws.

Distinguished in Racine Iron Co. v. McCommons, 111 Ga. 540, 36
S. E. 870, holding interstate commerce clause does not prevent
State from Imposing license tax upon traveling agents making
executory contracts for nonresidents.

Syl. 2 (XII, 659). Act 1886 not a commercial regulation.

Approved in Capital City Dairy v. Ohio, 183 U. S. 246, 46 U 176,
22 Sup. Ct. 123, upholding Ohio statutes prohibiting manufacture or
sale of oleomargarine containing any coloring matter; Austin t.
Tennessee, 179 U. S. 347. 303, 45 L. 228. 234, 21 Sup. Ct 134, 139,
upholding Tenn. Acts 1897, chap. 30, prohibiting importation or
sale within State of cigarettes or cigarette papers.

Distinguished in dlssoutiug opinion in Austin v. Tennessee, 179
U. S. 383. 45 L. 242, 21 Sup. Ct. 147, majority upholding Tenn. Acts
1897, chap. 30, prohibiting importation or sale of cigarettes or
cigarette papers.

Notes OD U. S. ReportB.

153 U. S. 4G1-482

SyL 3 (XII, 659). Commerce power learea State police power,
AppTOTed In L'Hote v. New Orleans, 177 U. S. 597» 44 L. 003, 20
J?ijp. Ct 791, upholding ralidlty of ordinance preseriWng limits
mMe of which no lewd woman should dwell; Iowa v, Schlenker,
112 Iowa, 651. 84 N. W. 700, upholding Code. §§ 4989, 4990, pro-
hibiting sale of adulterated milk, defining adulteration as addition
nf water or any other substance or thing; Westhelmer v. Weisman.
$ Ean. App. 78. 54 Pac. 333, upholding as a police regulation Gen.
^^tat 1880, par. 2550, as prohibiting nonresideDts from soliciting
orders for sale of intoxicating liquors; State v. Associated Press,
15» Mo. 455 (see 60 S. W. 104), holding decision In case should be
confined to its particular facts and not extended to causes not In
mind of court

SyL 4 (XU, 660). States may prohibit deception In trade.

Approved In Crossman v. Lurman, 192 U. S. 196, 197, 24 Sup.
Ct 237, upholding N. Y. Laws 1893, chap. 661, | 41, prohibiting sale
©f adulterated food products, as applied to products Imported from
foreign countries; CarglU Co. v. Minnesota ex rel. R. R. & W.
Comm., 180 U, S. 467, 45 L. 626, 21 Sup. Ct 429, upholding Minn.
Gen, Laws 1S95, chap. 148, reqnlrlUg licenses from warehouses and
elevators situated on railroad sidings or rights of way; Arbueitle v.
Blacltbum, 113 Fed. 625. 626, upholding Ohio pure food law (2 Bates*
Anno. Stat, |§ 4:200-42(B|, prohibiting manufacture or sale of adul*
t«fateil food; In re Scheltlin, 99 Fed. 274, 275, 276, upholding pro^
▼Woo of Mo. oleomargarine law 1895, p. 26, § 2, prohibiting manu-
facture or sale within State of any substance in imitation or sem-
blance of natural butter; State v. Rogers, 95 Me. 100, 49 Atl. 566,
QlMding section 3, chapter 128, Rev. Stat, prohihitinj? making or
•^Il&g of article in imitation of yellow butter or cheese not made
wholly of cream or milkT Crossman v. Liirman» 171 N. Y. 334. 63
N. E. 1000. upholding Laws 1893, chap. 661, | 41, prohibiting adul-
tirttSoii of food and detining same; Hathaway v. McDonald, 27
With. 668. 91 Am. St Rep. 668, 68 Pac. 379, upholding Laws 1899.
<^p. 43, I 30. prohibiting sale or keeping for sale of renovated
twtwr unleas marked as such. See notes, 85 Am. St Rep. 402.
^: 78 Am. St Rep. 258,

Dlitlngulshed In IdcAliister v. State, 94 Md 302, dm, 50 AH. 1047.
1<*<^ holding Invalid Code Pub. Gen. Laws, p. 489, so far as pro*
Wb*ting sale of oleomargarine in Imitation of yellow butter In
liflgiatl packages made elsewhere.

(III. 659). Miscellaneous.

Cited In Minnesota v. Brundage, 180 U. S. 504, 45 L. 642, 21 Sup.
<X 45T, holding writ of habeas corpus wili be denied person Im
prtioiied under judgment of Municipal Court where review of Stati*
I«w hi State courts not exhausted: State v. Collins, TO N. H. 218.
Ci Arl i(i^\ upholding, under State ConstltuUon, Laws 1895, ctjap.

155 U. S. 482-513 Notes on U. S. Reports. 636

115, § 1, prohibiting manufacture of product not produced tmn
milk or cream unless not of same color as yellow buttor.

155 U. S. 482-488. 39 L. 231, POSTAL TEL. CABLB CO. ▼. ALA-
BAMA.

Syl. 1 (XII, 661). Federal Jurisdiction — Suit of State agaioBt
Tndiyiduals.

Approved in Arkansas v. Kansas & T. Coal Co., 183 U. S. 188,
46 L. 146, 22 Sup. Ct 48, holding suit by State to prevent foreign
railroad from importing armed men into strike region cannot be
removed; South Carolina v. Virginia-Carolina, etc., Co., 117 Fed.
731, holding action by State against foreign corporation for penalty
under law passed as police regulation is not removable; State ▼.
O'Connor, 96 Tex. 402, 74 S. W. 899, holding action by State is not
within act 1888, 25 Stat 433, chap. 866, for removal of cause between
citizens of different States.

Distinguished in Missouri, etc., R. R. Co. v. Missouri R R. Gomrs.,
183 U. S. 58, 46 L. 83, 22 Sup. Ct 20, holding State is not real party
plaintiff to prevent removal of suit by Missouri railroad commis-
sion to restrain railroad from violating law.

Syl. 2 (XII, 661). Removal depends upon plaintiff's showing.

Approved in West Virginia v. King, 112 Fed. 370, holding suit
by State to enforce forfeiture of land for benefit of school fund
presents no Federal question.

155 U. S. 488, 489, 39 L. 233, EAST LAKE LAND CO. v. BROWN.

Syl. 1 (XII, 662). Plaintiff's pleading must disclose Federal
question.

Approved in Florida Cent, etc., R. R. v. Bell, 176 U. S. 330.
44 L. 490, 20 Sup. Ct 402, holding plaintiff cannot supply Federal
question by suggestion that defendant will set up claim based on
Constitution.

Distinguished in Winters v. Drake, 102 Fed. 546, holding plaintiff
cannot prevent removal of suit by omitting to state that defendant
receiver was appointed by Federal court.

155 U. S. 489-503, 39 L. 234, CHASE v. UNITED STATES.

Syl. 1 (XII, 663). Distinction between appeal and error pre-
served.

Approved in De Lemos v. United States, 107 Fed. 125, holding
29 Stat. 492, conferring jurisdiction on Circuit Court of Appeals in
certain criminal cases, did not confer power to review such on ap-
peal; Lynah v. United States, 106 Fed. 122, holding motion for new
trial made before Circuit Court in exercise of jurisdiction of Court
of Claims made after end of term in which motion was filed U too
late.

155 U. S. 503-513. Not cited.

537

Notes on U. S- Reports.

155 U, S. 513-540

IM U. S, 5ia-522, 39 L, 243, INDIANA v, GLOTER.

SjL 1 (XII, 664). Federal iurisdictioD over State suit against
ddies.

Approved Id Wilcoxen t. Chicago, etc., R. R. Co.. 116 Fed. 447»
holding under Iowa statu te-s cltlKeDship of ward, not that of guard-
Jan, determines Federal Jurisdiction; Jack v. Williams, 113 Fed-
824^ holding Federal court has jurisdiction of suit in name of State
ez relatione.

Distinguished In Cincinnati, etc., R. R. Co. v. Thiebaud, 114 Fed.
922, holding under Indiana statute permitting administrators to
sne for death of intestate, bla citizenship and not that of bene-
ficiaries determines jurisdiction.

SjTl 3 (Kit, 664). Municipai ^ustees' unauthorized certificates
not binding.

See fll Am. St Rep. 572, note.
155 U. S. 525-532, 39 L. 246, IN RE NEW YORK, ETC., SS. CO.

Syl. 1 (XII, 664). District Court providing own practice rules.

Approved in Dalley v. New York, 119 Fed. 1005. applying to
ttlvt^ case principle of fifty-ninth admiralty rule allowing bring-
tBig in of new parties in ctilHsion case on petition of claimant or
reqioadeDt

Syl 3 (XIi; 6G4). Prohibition discretionary where appeal avail-
able.

Approved In In re Huguley Mfg. Co., 1S4 U. S, 302, 46 L. 552, 22
Sop, Ct 457, denying leave to file mandamus to compel Circuit
Court to dismiss suit where appeal afforded adequate remedy.

155 U. S. 532-534, 39 L, 249, COOPER v. NEWELL.

Syl 1 (XII, 6641, Court remands where jurisdiction does not
appttr.

Diatlo^tehed in Littell v. Erie IL R. Co., 105 Fed. 539, holding
iaffideat allegation In complaint that plalntlBf now Is and at all
Um«i hereinafter mentioned was citizen of United States and of
N>w Jersey.

iS5 D, 8. 534-542. Not cited,

la U, 8. M2-G45, 39 L, 254, SOUTH CAROLINA v. WESLEY.

(XII, C64>. Miscellaneous.

Ctied In Percy Summer Club v. Astle. 110 Fed. 488, 490, holding
atfjom^y-general eutltle<) to Intervene in behalf of State lu suit to
Hftteni trespass on lake claimed by plaintiff and alleged by de-
fe9dia( 10 tyelong to state.

m U. 8. 646-^9. Not cited.

155 U. S. 550-596 Notes on U. 8. Reports. 638

155 U. S. 550-656, 39 L. 256, McCABE v. MATTHEWS.

Syl. 1 (XII, 665). Specific performance depends upon particular
facts.

Approved in Wesley v. Ells, 177 U. S. 376, 44 L. 812, 20 Sup.
Ct 664, holding contract to purchase land will not be spedflcally
enforced against vendee when title not marketable; Englestad ▼.
Dutresne, 116 Fed. 590, holding specific performance of contract
to convey half interest in mine for interest in other property to
be selected will not be enforced where selection impossible.

155 U. S. 556-565, 39 L. 258, EVANSVILLE BANK v. GBBMAN-
AMERICAN BANK.

Syl. 1 (XII, 665). Collection of draft makes bank debtor.

See notes, 86 Am. St Rep. 800; 77 Am. St Rep. 62a
155 U. S. 565-585, 39 L. 263, CJOUPE v. ROYER.

Syl. 2 (XII, 666). Limitation in claim Umits patent

Approved in Lamb Knit Goods Co. v. Lamb Glove & Mitt^i Go.,
120 Fed. 209, holding patent for gloves described in drawings as
knitted will be limited to specification to knitted gloves.

Syi. 5 (XII, 667). Defendant's profits, and excess damages re-
coverable.

Approved in Kissinger-Ison Co. v. Bradford Belting Oo., 123 Fed.
93, holding where patentee's injury exceeds profits, he may recover
damages to such extent.

Syl. 6 (XII, 667). Infringer liable for actual profits.

Approved in Kissinger-Ison Co. v. Br&dford Belting Co., 128 Fed.
93, holding defendants purchasing and reselling infringing article
are liable on accounting only for own, not manufacturer's profits;
Bradford v. Belknap Motor Co., 105 Fed. 65, holding equity will not
require account where infringing machine was too costiy to have
any commercial value.

Syl. 7 (XII, 667). Article must be marked " patented."

Approved in Metallic Extraction Co. v. Brown, 104 Fed. 354,
holding appeal under 26 Stat. 828, from decree awarding injunction
against infringer and authorizing accounting which has not become
final, raises only question of injunction.

155 U. S. 585-590. Not cited.

155 U. S. 591-596, 39 L. 273, UNITED STATES V. ALLRED.

Syl. 1 (XII, 668). Commissioner's fees when allowed presumed
correct

Approved in United States v. M'Gourin, 106 Fed. 292, holding
findings of District Court in suit for lees under 24 Stat. 505, as
to correctness of fees charged, are conclusive on appeaL

Notes on U. S. Reports. 153 U. S. 597-4jl0

Sjl 2 (XII, 668). Com miss loner reuclerliig services required
uilitl«d to coinpeDsatlon.

Approired in M^Gourin v. United States, 102 Fed. 554, 557. 558,
tooldiag commissioner entitled to fees for keeping docket, hearings,
for maidxtg copies of subpoenas, entering returns of writs.

155 U. S. 597-610, 39 L. 275, POTTS v. CREAGER.
Sjl 1 (XII, 668). Patent, when adaptation, is strictly construed

Approved in Penfield v. Potts. 126 Fed, 477. 478, 481. 482. 4M.
485, sustaining Potts patent No. 232.393. for improvements In clay
disiMegrators; Parsons v. Seelye. lOO Fed. 453, holding courts will
often talte Judicial notice of state of the art in patent Infrtnge-
ment cases,

SyL 2 (XII, 668). New patent, remotely related, liberally con-
flmed.

Approved in Haie, etc. Mfg. Co. v. Oneonta, C. & It S. Ry. Co..
124 Fed. 519, sustaining Hale patent No. 371,448, for spring seat
with wide tbln steel plate to support same; Westinghouse Electric.
etc^ Co. V. Union, etc., Co.. 112 Fed. 421, upholding validity of
Wettlnghouse patent No. 3G6,3G2, relating to improvements in elec-
trtctl eonrerters: Electric Veliicle Co. v. Winton Motor Carriage
Co.. 104 Fed. 815. upholding validity of Selden patent No. 549,100.
for rotd vehicle propelled by liquid hydrocarbon gas engine; Wil-
Uam Patent Crusher, etc.. Co. v, St Louis Pulverizer Co.. 104 Fed.
7», boldtng patentee entitled to all bejieflts of patent where claims
ire broad enough to cover, although inventor did not appreciate full

DisUagulshed in Anderson Foundry, etc.. Works v. Potts. 108
Fed. 382, 385, holding claim 3, Pottos patent No. 322.393. for clay
dWategrator, not infringed by machine with plain revolving cylin-
"ter: Palk Wg, Co. v. Missouri R. R. Co., 103 Fed. 302, holding
▼oW for want of Invention Hoifman and FaJk patent No. 545,040,
far improvements In rail Joints.
8yl 3 (Xn, 009). Mere mechanical change, when patentable.
Approved in Hobbs v. Beach, 180 U. 8. 300, 45 L. 591. 21 Sup, CL
<tt. upholding Beach reissue patent No. 11,157, for machine to
' tWath itaya to corner of paper boxes; Mast, Foos tK: Co, v. Stover
Mfr. Co., 177 U. S. 491, 493, 44 L. 859, SGO, 20 Sup. Ct 711. 712,
boldtmr Invalid for anticipation Martin patent No. 433,531, for im-
ptOTemeni in windmill; Davis, etc, Co. v, Lackawanna Iron, etc,
Co.. 128 Fed. 457, sustaining Greer patents Nos. 495.883 and 508,542.
for ore-roastlng furnace with three vertical chambers; Bettendorf
PiUflis Co. V. J. H. Little Metal Wheel Co.. 123 Fcfi. 435. holding
'T>*d Bettendorf pat cut No. 550,815. for spciirint' metal s pole en to
B>«il hobe; National Meter Co. v. Neptune Meter Co., 122 Fed.
»^ MttalnJag Ntiah patent No. 433.088, claims 14 and 15, covering

155 U. S. 610-621 Notes on U. S. Reports. 540

water meter constructed to withstand freezing; Diajnond Drill &
Mach. Go. y. Kelly Bros., 120 Fed. 292, sustaining Jackson patent
No. 482,965, claim 2, for machine for making and inserting wire
coils as fastenings; Johnson Go. v. Toledo Traction Co., 119 Fed.
891, holding void for lack of invention Moxham patent No. 540,796,
for railway switch structure using molten zinc to retain removable
plate in pocket; Moore v. Schaw, 118 Fed. 607, sustaining Moore
patent No. 622,251, for holding device for riveting pipe; Hallock
V. Davison, 107 Fed. 485, sustaining Hallock patent No. 600,782,
for weeding machine; John R. Williams Co. v. Miller, etc., Mfg.
Co., 107 Fed. 292, holding invalid for lack of novelty Hammerstein
patent No. 261,849, claim 2, for cigar wrapping machine; National
Hollow, etc., Co. V. Interchangeable, etc., Co., 106 Fed. 703, BVUh
talning Heln patent 361,109, for trussed hollow metallic brake beam;
Ghlsholm v. Johnson, 106 Fed. 205, sustaining Chisholm patent
No. 421,244, for improvement in method of hulling green peas:
Krajewski v. Pharr, 105 Fed. 521, holding Krajewskl patent
No. 349,503, for cane-breaking and cutting machine, is valid and
infringed by machine substantially similar; Electric Smelting,
etc., Co. V. Carborundum Co., 102 Fed. 631, sustaining Cowies
patent No. 319,795, for process for smelting ores by electric cur-
rent; dissenting opinion in Justi v. Clark, 108 Fed. 669, majority
sustaining Hurlbut reissue imtent No. 11,696, for improved dental
spittoon.

Distinguished in Standard Caster, etc., Co. v. Caster Socket Co.,
113 Fed. 1G4, 1G5, holding void for anticipation Berkey patent
No. 318,533, for caster socket.

Syl. 4 (XII, 670). Popularity weighty where novelty doubtfuL

Approved in Krajewski v. Pharr, 105 Fed. 520, sustaining Kra-
jewski patent No. 349,503, for cane-breaking and cutting machine;
Westinghouse Electric Mfg. Co. v. New E>ngland Granite Co., 103
Fed. 966, sustaining related Tesla patents Nos. 381,968, 882,280.
382,279, for eleotro-magnetic motor and for transmission of elec-
tric power; Parsons v. Seolye, 100 Fed. 456, sustaining Parsons pat-
ent No. 367,108, for leather-cutting machine; L. B. Waterman Co.
V. Vassar College, 99 Fed. 564, sustaining Waterman patent
No. 604,090, for fountain pen.

(XII, 668). Miscellaneous.

Cited in Potts v. Penfield, 109 Fed. 325, sustaining Potts patent
No. 322,393, for clay disintegrator.

155 U. S. 610-C21, 39 L. 280, CAMPBELL v. HAVERinLU
Syl. 2 (XII, G71). Federal courts apply State patent Umitatioo.
Approved in Atlanta v. Chattanooga Foundry, etc., 127 Fed. 28»
29, holding action for penalty, under section 7 of anti-trust law,
July 2, 1890, Is for cnfort'onient of civil remedy and governed by
State Statute of Limitations; Green v. Barrett, 123 Fed. 350, hold-

Notes on U. S. Reports.

153 U. 8. 621-^331

fn; Tight to reTlYe suit against executor for iDfrlugemeot of patent
is subject to Massacbusetts statute limiting suits agalDst execu-
tors; Ratican t. Terminal R. R. Assn., 114 Fed, 668, holding suit
in Missouri for penalty Imposed by interstate commerce act Is
foverued by three*year statute of Rev. Stat. Mo. 18D9, | 2425; Atlanta
T. Chattanooga Foundry. ete.» Co., 101 Fed. &02, 904, &D6, 910.
holding Shannon's Tenn, Code, § 44T0» prescribing limitation of
three years, applies to suits brought to recover damages under sec-
tion 7. anti-trust act of 1890; McDonald v. Thompson^ 101 Fed.
ISi holding, under Nebr. Code Civ. Proc. & 11. tit 2, suit by
receiver of national bauk barred in four years; Hanchett v, Blair,
100 Fed. 826, holding, under Gen. Stat Nev., S 3651, foreign cor-
poration cannot plead limitation in mortgage foreclosure where
corporation was out of State; Aldrich v. M'CIalne. 98 Fed. 379.
il^lying Washington Statute of Limitations In action by receiver
igiinst stockholders of insolvent national bank to recover assess-
meats; Aldrich v. Skinner. 98 Fed. 377. applying Washington
statute of two years In suit by receiver of Insolrent nationitl bank
tor stockholder's assessment; De Weese v. Smithy 97 Fed. 318,
boldlDg Missouri Statute of Limitations applies In action In Fed-
tfsl court by receiver to recover assessment of stockholders in
iMolrent national bank; Wheeler v. Castor, 11 N. Dak. 334, 92 N.
W. 31^, holding defense of Statutes of Limitation Is as meritorious as
other valid defenses,

Dtotingulsbed In American, etc.. Tool. Co. v. Pratt 106 Fed. 230,
holding 2» Stat G94, Umitlng suits for profits for infringement of
patents to those for infringements within six years before suit
•pplles to patents previously issued.
tXlI. 670). Miscellaneous.

Cited In Bradley Timber Co. v. White, 121 Fed. 7S3. holding
ol>JecUoiiable answer to Involuntary bankruptcy petition neither
•djalttlag nor unevaslvely denying material allegations of petition.

156 tl. S. 021-631. B9 L. 284, MARKET ST. CABLE RY. v.
ROWLEY.

Hyl 1 (XII, ©71), Patentable novelty Is determined by court.

Approved in Singer Co. v. Cramer. 192 U. S. 275^ 24 Sup. Ct 295,
fcoWlag where court can from mere comparison of patents deter-
o^lw whether crae Infringes other question of Infringement Is one
of liw.

W S (Xn. 672). Change In form only not invention.

Apj>rfived In Eames v. W^orcester Polytechnic Institute, 123 Fed.
Tiliakllng void for anticipation Walker patent No. 411,845, claim 1,
for t^tst^iill grinding machine with drill rest; Plastic Fireproof
<^<*WI. Co. V. San Francisco, 97 Fed. 624. holding void Brown patent
Xo. J99374, claim 1, for artificial slate, substituting sheets of ex-
P^^^ metal for woven wire.

155 U. S. 631-647 Notes on U. S. Reports. 1

155 U. S. 631-647, 39 L. 289, DAVIS v. SCHWARTZ.
»7L 1 (XII, 672). Findings of master presumed correct

Approved in Paaclhau Sugar Plantation Co. t. Palapala, 127 F
924, holding on appeal tn admiralty where evidence taken by i
nesses before lower court, decision of District Court will be
versed only if clearly against evidence; Baker-Whitely Coal
V. Neptune Nov. Co., 120 Fed. 249, holding decision of lower co
in admiralty will not be reversed if objection on appeal is
fact found below unless error is clear; Sanders v. Riverside,
Fed. 723, holding where parties in suit to quiet title stipulate
reference to master one cannot object that equity has no Juris*
tlon; Murphy v. Southern Ry. Co., 115 Fed. 259, confirming fi
ings of special master made on conflicting evidence in refere
by consent; John Hancock Mut Life Ins. Co. v. Houpt, 113 I
575, sustaining findings of master that statements made in aji
cation and warranted as true were false, material and mil
company; Jacobson v. Lewis Klondike, etc., Co., 112 Fed. 78» t
taining finding of fact by Admiralty Court that towing stea:
was negligent in abandoning tow; The Anaces, 106 Fed. 743, h
ing finding of facts made by Admiralty Court are presumpti^
correct when- based on conflicting evidence; Western Union '
Co. V. American Bell Tel. Co., 105 Fed. 686, confirming mast
report upon rentals or royalties from telephone patents covi
in contract between parties; Belding v. Hebard, 103 Fed. &41,
taining finding of master that certain trees were State line t
between Tennessee and North Carolina and marked as suet
1821; Singleton v. Felton, 101 Fed. 527, holding conclusion of spe
master that decedent was intruder on construction train and p
ence unknown to train hands not reviewable unless manifest e;
appears; The Columbian, 100 Fed. 995, holding Circuit Court
Appeals Is not bound by finding of fact made by lower couri
admiralty case; Murphy v. Southern Ry. Co., 99 Fed. 469, hole
finding of master In chancery on question of boundary *' she
not be lightly interfered with;" De Baca v. Santo Domingo, K
Mex. 39, 60 Pac. 73, holding findings of fact made by court
waiver of Jury entitled to as much, if not more considerat
than findings of referee; dissenting opinion in Chauncey v. D
Bros., 119 Fed. 21, majority holding stipulation between mortgac
and lienholders to submit priority of liens to referee open
as consent of mortgagees to sale of property free from all li<
dissenting opinion in Wells, Fargo & Co. v. Walker, 9 N. Bd
202, 203, 50 Pac. 924, majority holding where entire case is
ferred to master by consent findings, if supported by evidence,
conclusive.

Distinguished in Murphy v. Patterson, 24 Mont. 580, 63 I

^^— «3

Notes on U. S. Reports.

155 U. S. 648-664

I

^ • 0, bolding where reference Is made to take testimony referee's
t^ ^^'termioatioD of Issues have no effect

Sjl. 4 (XII, 672). Assigmnent may prefer one creditor.
Approved in United States Rubber Co. r, American Oak Leatlier
^^^D.. 181 U. S. 448v 45 L. ^6, 21 Sup. CL 676, holding Insolvent
M -^^btor may prefer one creditor, and If preference Is set aside creditor
rim:^. ^y share pro rata; In re Chase* 124 Fed. T57, holding assignee,
't^ :»:3der fair assignment made with no attempt to defraud creditors,
""^^^^ -mj recover for disburaementa and services for benefit of estate,

%1. 5 (XII, 672). Assignment must convey for benefit of certain

approved in Annlston Iron, etc, Co. v, Annlston Rolling Mill
*^^"^:^., 125 Fed. 976. holding direct transfer to creditors without inter*
''^ ^^^^ ntlon of trustee duly appointed Is not assignment for benefit of
«^^«"^'^?dltors.

SSyL 6 (XII, 673). Good faith Is question of fact '

^Approved in Westbelmer v. Goodklnd, 24 Mont. 99, 60 Pac. 814,

taining chattel mortgage given to secure note and future ad-

:iices; Blair State Bank v. Bonn, 61 Nebr. 469, 85 N. W. 529,

3dltig transfers made to relatives of debtor, though subject to

r-utiay, are valid when made bona fide.

U. & BiSrSm, 39 L. 297. HOOPER v, CALIFORNIA.
^jrL 1 (XII. 673). Foreign corporation's right depends on State

C*^

-Approved In Williams v. Gaylord, 1S6 U. S. 108, 46 L. IIOS. 22

^p. Ct 802, upholding Cal, act April 30, 18S0, requiring

* ^tsent of stockholders of foreign mining corporation for sale of

^ alag ground within the State, aftirmiug 102 Fed. 375; Waters-

^^wrce OU Oo. v. Texas, 177 U. S. 40, 44 L. (Xi5, 20 Sup. Ct. 525,

^^^«iainin^ forfeiture of right of foreign corporation to operate In

'^^xflii for violation of act 18SD under which permii^iilon was given;

^ -till on, Paris. etc,» Bank v, Aronsteln, 117 Fe<l WH, holding Kritisli

tlK»raUon operating in California, maintaining office therein and

■^^^^^ajug shares, is governed as to such Issue by California law;

-^>flej V. Travelers* Protective Assn., 105 Fed. 859, upholding

^^ .y. Stat, i 679» requiring all policies issued to persons within

^^^»t? by corporation operating therein to have attached any por-

^*<»t» of Constitution referred to therein; Diamond Glue Co. v. United

^*tj|tei Glue Co,. 103 Fed, 831), upholding Wis. Rev. Stat, | lT7i>h,

prohibiting foreign corporations from transacting business or dls-

T'<a»lttg of property In State unless flling copy of charter; Aldrleb

^* BUtchlord, 175 Mass. 371, 50 N. E. 701. upholding Pub. Stat..

^^^ 164. f I 2, 4, providing that nonresident who cannot be served

*tU»!D State bringing action shall hv Hiitde to defendant in cross-

"^*>n on service on former's attorney; Insurance Co. v. Cralgt 106

155 U. 8. 648-664 Notes OQ U. S. Reports.

Tenn. 630, 62 S. W. 157, holding Insurance commissioner cannot
be restrained from revoking license of foreign corporation, under
Acts 1895, chap. 160, for failing to comply with the law; State ▼.
Schlltz Brew. CJo., 104 Tenn. 753, 78 Am. St Rep. 961, 59 S. W.
1041, upholding Acts 1897, chap. 94, prohibiting transactions cal-
culated to lessen competition in commodities and prohibiting foreign
corporations violating same from operating within State; Cook
V. Howland, 74 Vt 397, 398, 93 Am. St Rep. 914, 52 Atl. 974, up-
holding Stat, § 4181, prohibiting foreign insurance corporations
from operating within State unless they have filed statement and
received license. See 78 Am. St Rep. 250, note.

Syl. 2 (XII, 673). Writing Insurance is not commerce.

Approved in New York Life Ins. Co. v. Cravens, 178 U. S. 401.
44 L. 1124, 20 Sup. Ct 967, upholding Mo. Stat, § 5983, making
life insurance policies nonforfeitable for default of payment of
premium; Greenwich Ins. Co. v. Carroll, 125 Fed. 127, holding un-
constitutional Iowa Code, § 1754, making it unlawful for fire in—
surance companies operating in State to agree upon commissioi^
to be allowed agents; D'Arcy v. Mutual L. I. Co., 106 Tenn. 572^ ,
69 S. W. 769, holding policy-holders entitled to serve process oi^
secretary of State, under Acts 1875, chap. 66, after repeal tbereo^^
by act 1895, chap. 160, where insurance company withdrew b^^
fore last act became operative; dissenting opinion in Lottery ^tit t^
188 U. S. 367, 368. 23 Sup. Ct. 331, 47 L. 505, 506, majority taoldl^K-
carrlage of lottery tickets between States by interstate expr^^^
company constitutes interstate commerce.

Distinguished in Keilley v. United States, 106 Fed. 902, taold^ ,
act March 2, 1895, prohibiting carriage between States of pag^ ^
or ticket representing share in lottery Includes carriage of ^
rei)resentlng chance in policy game.

Syl. 3 (XII, 674). State may exclude foreign corporations.

Approved in Nutting v. Massachusetts, 183 U. S. 556, 657,
46 L. 327, 22 Sup. Ct. 239, upholding Mass. Stats. ISM, chap.
against noKotinting and transacting unlawful insurance with
eigu company not admitted to State; Dayton Coal & Iron C^
Barton, 183 U. S. 24. 40 L. 64. 22 Sup. Ct 5, upholding Tenn^
March 17, 18i)9, requiring all corporations to redeem in money ai
orders and scrip paid to emi)loyees; Williams v. Fears, 179 W
277, 45 L. UK), 21 Sup. Ct. 131, upholding Ga. Laws 1808. p
imposing licenst* tax upon emigrant agents; New York Life
Co. V. Cravens, 178 U. S. .TJ(>, 44 L. 1122. 20 Sup. Ct 965, op
ing Mo. Stat. § 5083, mailing life insurance policies nonforfe
for default in payment of premiums; Jones v. Mutual Ff
Co.. 123 Fed. rhV2, upholding Tenn. Stat. 1891, chap. 122. r
it unlawful for corporation to do or attempt to do business
State without complying with statute; Adler & Weinbur

545

Notes on U* S. Reports.

155 U. S. 66J>-673

Co. r. EothacJind, etc., Co., 123 Fed. 148, upholding Fa act May

1, 1876. making agent of foreign corporation not cofrnpljiag witli

8Ute laws personally liable on contracts made througli him; Ap-

PoHlIi^ 97 Me 593, 504, upholding, in answer to question from

icotteb chapter 18, Pnh. Law Me. 1895, for reference to tliree

^ItotMrested men settlement of fire Insurance loss where parties

^lacreed; Ashland Lumber Ca t. Detroit Salt Co., 114 Wis. 7S,

^ N, W. 908, tipholding Rev. Stat 1808. providing that conti-acts

^ foreign corporations not complying with State law shall be

'Wholly void.

JDiBtingnished In Arkwrlght Mills v, Aultmao, etc.. Mach, Co..

Fed. 196^ upholding as extension of rights of set-ofiT Mass. Rev*

chap. 170. I 2. providing for set-oflf by defendant of Judg-

»t against nonresident plaintifif bringing action in State.

tjL 4 (XII, 674). Statutes are presumed constitutional.

kpproved In Knights Templars' Indemnity Co, v. Jarman. 187

B. 205, 23 Sup, Ct, 111, 47 L. 145. upholding Mo. Laws 1887, p. l»iH

relieTiQ^ insurance policies issued on assessment plan from

^Tation of Stat. 1870, § 5982, declaring that syiclde shall be no

jL 5 (XII« 674). Contract contrary to State law not guaranteed.
iproved in Commonwealth v. Nutting, 175 Mass. 150. 78 Am.
Rep. 485, 55 N. E. 80G, upholding Mass. Stat. 1SD4. chap, 522,

.gTDtinding indictment against agent of foreign insurance com-

j for contracting Insurance on property within State against
stAtnte; Nationai, etc., Bidg, Assn. v. Brahan, SO Miss. 431,
21 So. 847. holding Mississippi usury laws govern contract
feen special agent of foreign loan association and citizen of

lev ^oo^h company has no office therein.

CXn, 673). MisceUaneous.

edited tn Street v. Varney, etc., Co., 160 Ind. »45, 66 N» E. 897,
^^<1hit uaconstlrotlonal minimum wage law March 9, 1901, requlr-
pftjrment of at least twenty cents per hour to unskilled labor
imhUc works; National, etc*, Bldg. Assn, v. Brahan. SO Miss.
, 31 So. 846, holding usury laws of Mississippi control contract
***trwfen local agent of foreign loan association and citizen of State,
^^^^Mi|^ aaaoelaUon has no local ofliee*

^B6 0. a 665-673, 39 L. 304, BROWN v. SPILMAN.
9|1 1 (XII, 674). When gas escapes title is gcme.
Approved In Ohio Oil Co. v. Indiana (No. 1), 177 U. S. 203, 205,
^ L. T3T, 738. 20 Sup. Ct 581, 582. upholding Ind. Acts 1803. p. 300,
•iUttf It unlawful to permit flow of oU or gas from well to es-
*^more than two days without being confined; Andrews v. An-
^wn %i iBd. App. 191. G7 N. E. 462, holding devisee of Uf e estate
Vol. 111—35

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CLVI UNITED STATES.

^^5Se IT. 8. 1-46, 39 L. 325, UNITED STATES v. E. C. KNIGHT CO,

Sjl 3 (XII, 677). State re^ulalee monopoliee; Congress, commerce.

Approved In Atlantic & Pacific Tel Co. v. Philadelphia, 190

^* S. 162, 23 Sup. Ct 818, 4T L. 99Q, holding congressional power

■^ regulate Oongrees among the States is eiclus!%^e when the ob-

"^^cts are national In their cliaracter; Glbba y. M'Neeley, 102 Fed.

holding association of shingle manufactureFS formed for con-

action, to pr event overproduction and maintain prices, Is

ios far valid.

^L 6 (XII, 6TT). Commerce power not Including manufactnreBc
Approved in Capital City Dairy Co, v* Olilo, 183 U. a 245, 46
175, 22 Sup. Ct 123» upholding Ohio statutes forbidding manu-
cture of oleomargarine containing coloring matter; Booth v. Davis,
Fed- 877, holding anti-trust act 1890 does not apply to con-
tact of fish dealers selling business not to engage In same business
fe competition for ten years; Robingon y. Suburban Brick Co., 127
'«d, 807, holding anti-tnjst act 1890 does not apply to contract of
iler of brickmaking plant not to engage In manufacture within

area.
8yL 7 {XII, 677). Commerce regulation does not Include police.
Approved In dissenting opinion in Lottery Case, 188 U. S. 366, 23
Ct. 331. 47 L. 505, majority holding carriage of lottery tickets
een States is Interstate commerce regulable by Congress.
fiyL 8 (XII, 67T). Intent to export immaterial.
Approved in Cornell v. Coyne, 192 U. S. 428, 24 Sup. Ot 385,
'^tisuinlng imposition, under act June 6, 1806, of same manufac-
tming tax on filled cheese for export as on other filled cheese;
X^bmond Glue Co. v. United States Glue Co., 187 U, S. 676, 23
^;>. Cc 208, 47 L. 333. holding Wis. Laws 1808, § 17iOb, requiring
f^lgn corporations to file copy of charter controls contract whereby
^Ipi corporation engages to operate factory in State; Glbbs
^. irXeeley. 107 Fed. 211, holding combination controlling manu-
toure and snie of shLngles in State does not give action to Injured
pvty under auti-trust law of 1800.
Bjl 9 (Xn, 678). Monopoly need Bot be complete.
Approved in Chesapeake, etc., Co. v. United States, 115 Fed. 623,
hcldlag Illegal contract between fuel company and association of
and coal producers whereby company was to handle entire
1547]

156 U. S. 46, 47 Notes on U. S. Reports. 5^

output; Montague t. Lowry, 115 Fed. 30, holding invalid as !
restraint of trade tile, mantel and grate association of Calif omii
Brown v. Jacobs Pharmacy Co., 115 Ga. 444, 90 Am. St Re
142, 41 S. E. 560, holding unlawful combination of mercantile dea
ers to compel another dealer to sell at fixed prices by refusii
to sell goods to him; State v. Smiley, 65 Kan. 262, 60 Pac. 206, n
holding Laws 1897, chap. 265, prohibiting anti-competitive trac
agreements as to products bought and sold on general market; CUu
V. Needham, 125 Mich. 88, 83 N. W. 1028, holding void agreemei
of one manufacturer of chaplets with another not to engage :
manufacture thereof for one year; Heim Brew. Co. v. Belinder, 1
Mo. App. 69, 71 S. W. 692, holding agreement of brewers in cl'
not to sell beer to persons in debt for beer previously sold 1
any of them until such debt was paid violated Rev. Stat. 189
State V. Armour Packing Co., 173 Mo. 391. 73 S. W. 653, 96 Ai
St. Rep. , holding Rev. Stat 1899, §§ 8965, 8966, prohibiUi

combinations to regulate or fix prices, does not require comple
monopoly. See 74 Am. St Rep. 272. note.

Syl. 10 (XII, 678). Sugar manufacturer not within act 1890.

Approved in Louisiana v. American, etc., Refining Co., 108 I
G40, 642, 643, 32 So. 980, 981, holding sugar refiner is manufactur
and exempt from license taxation.

Distinguished in Bement v. National Harrow Co., 186 U. S. %
46 L. 1069, 22 Sup. Ct. 756, upholding conditions imposed by pii
entee in license of right to make and sell article which keep i
monopoly and fix prices; United States v. Northern Securities G
120 Fed. 728, holding illegal combination between stockholders
compoting parallel lines by formation of controlling company
prevent competition; Gibbs v. M'Neeley, 118 Fed. 124, 125, M,
127, holding unlawful association of Washington manufacturers
and dealers In red cedar shingles to control production and pv
of such shingles.

(XII, 677). Miscellaneous.

Cited In Bishop v. American Preservers Co., 105 Fed. 845, bo
ing stockholder in and organizer of trust combination cannot m
under section 7, anti-trust act 1890, for treble damages.

150 U. S. 46, 47, 39 L. ail. STUART v. EASTON.

Syl. 1 (XII, 678). '* Citizen of London " insufllcient averment -
allenajje.

Distinguished In Hennessey v. Richardson Drug Co., 189 U. S
34. Zi Sup. CJt. 533. 47 L. 698, holding sufllcient allegation thff
plainticrs were all of Cognac in France and citizens of RepubU
of France; Botancourt v. Mutual Reserve, etc., Assn., 101 Fed. 80C
holding citizen of Cuba is citizen of foreign State within act ISK
giving Circuit Court Jurisdiction over controversies between cltl
sens and foreigners.

Notes on U, S- Reports.

156 TJ. S. 47-183

I ^^

'fci ■ 1 1 II I

P Ap

I

S6 tJ. S. 47-30, 39 L. 341, ROUSE v. LETCHER,
8yL 1 (XII, 678). Court adjudicates coDcerolng property in pos-

Ion.
Approved In Myers v. Luzerne County, 124 Fed. 43 7» holding
ederal court has jurisdiction to determine rights to proceeds of
tidgment paid Into court when claimants hare appeared and as-
:ed claims; In re Russell, 101 Fed. 250, holding claimant of bank-
irpt's property in hands of trustee cannot maintain replevin to
scorer same without leave from Bankruptcy Court; Connor v.
iigator Lumber Co., 9S Fed. 15S. hoMing receiver appointed by
'ederal court may by leave of court file bill to protect possession
piost adverse claim of defendant,

SyL 2 (XII, 670). Circuit Court of Appeals when final.
Approved in Harding v. Hart 187 U. S. «3S, 23 Syp. Ct. 84G, 47
344, reaffirming rale; Gahletnnn v. Peoria, etc, R, R, Co., 179
S, 342, 45 L. 224, 21 Sap. Ct. 174, holding mere fact of appoint-
ment by Federal court* under general equity powers, does not
ial4e receiver to remove suit as arising under Constitution; Bot-
m V, National R. Y., etc.. Aasn,, 123 Fed. 74r», holding Circuit
^^^ourt bas jurisdiction of suit by receiver appointed l>y It to fore-
^^lose mortgage of borrowing stockholder of Insolvent loan asso-
c^iitlon.

Distinguished in Coltrane v. Templeton. 106 Fed. 378. holding
^^"ttlff. appointiDg resident receiver to act with receivers previously
■Appointed, is not final and appealable.

^56 U. S, 51-183, 39 L. 343, SPARF v. UNITED STATES.

8fl 1 (XII, 679). Confession of one jointly accused in otlier*a
^•Wieiice,

Apnroved in State v. Mortensen, 2ti Utah, 332, 73 Pac. otiS. hold-
ing adnilssibie in prosecution for murder evidence that accused hung
billhead when deceased's father accused him of crime.

^l 2 (XII, 679). Declaration in other's absence inadmissible
*f3iJ^iit latter.

t)Utinjful*4bed in Fitzpatrick v. United States, ITS U. S. 312. 44
^ H)S2» 20 Sup. Ct 947. lioltllug adinLsslble evidence of statement
^t mi^ jointly indicted for murder that be was shot and wanted a
^or; Musser v. State, 15T Ind. 435. 61 N. K 5, holding admissible
•^Wcncu that accused had money of same denomination as that
^hirlj deceased was known to have had.
%L 3 (Xn, 6T&), Confinement not enough to exclude confession.
Approved in Iowa v. Storms. 113 Iowa, 391, 3CM. S5 N. W. 612,
•^t holding ttdinissiide confe-vsion of murder made without offer
^tedueonient!* by officer and after accused bad been closely quos-
^f^ at to whereabouts, and bad fieen taken before victims; Stale
'• MclJanieU 39 Or. 172, <j5 Pac. 524, holding admissible statement

156 U. S. 138-200 Notes on U. S. Reports. 560

of accused as to criminal relations with deceased made after being
told that none need be made and without offer of reward.
Syl. 8 (XII, 680). Federal Jury must take law from court

Approved In State v. Gannon, 75 Conn. 226, 52 Aa 735, holding,
under Gen. Stat, § 1630, Jury must accept law of case as stated
by court; Heller v. Pulitzer Pub. Co., 153 Mo. 216 (see 54 S. W.
460), holding trial court in libel case did not err in preventing
counsel from reading law-books to Jury.

Syl. 9 (XII, 680). Court cannot peremptorily instruct for con-
viction.

Approved in People v. Warren, 122 Mich. 507, 515, 81 N. W. 381,
364, holding trial Judge in criminal proceedings having directed
verdict of guilty cannot compel such a verdict

(XII, 679). Miscellaneous.

Cited in Kelley v. Cunard SS. Co., 120 Fed. 542, holding where
exception is duly taken appellate court can give relief for erro-
neous refusal to give instructions; People v. Sherlock, 166 N. Y.
184, 185, 59 N. E. 831, holding explanation of law by court not
erroneous after instruction that Jury were Judges of law and fact

156 U. S. 183-185. Not cited.

156 U. S. 185-200, 39 L. 390, DUNBAR v. UNITED STATES.

Syl. 1 (XII, 681). One good count will sustain Judgment

Approved in Tubbs v. United States, 105 Fed. 61, 62, upholding
Judgment where punishment does not exceed that which could be
imposed on conviction on one count where all counts are good.

Syl. 7 (XII, 681). Secondary evidence admissible when original
unavailable.

Approved in Foerster v. United States, 116 Fed. 862, holding
parol evidence always admissible to establish defense of prior con-
viction or acquittal; United States v. Price, 113 Fed. 851, holding
oral testimony admissible to sustain plea of res adjudicata where
evidence shows records lost without defendant's fault; Riggs Valley
Bank v. Evans-Snider-Buel Co., 107 Fed. 662, holding question
whether pencil memorandum was written, and if so, what it con-
tained was for jury; Tubbs v. United States, 105 Fed. 61, holding
parol evidence admissible to show prior conviction or acquittaL

Syl. 9 (XII, 681). Charging Jury to decide on •'strong proba-
bilities."

Approved in Bacon v. United States, 97 Fed. 44, sustaining court's
definition of reasonable doubt; State v. Harras, 25 Wash. 421, 65
Pac. 775, sustaining Instruction to decide on strong probabilities
where required to be such as to exclude every reasonable doubt

:»i

Notes on U. S. Reports. 15G U. S. 200-237

<XII, 681). MlBCeUaneous,
jetted iD M'Knigtit v. United States, 122 Fed. 929, holding requlr-
^9iS demand or notice to produce Incriminating document made
' after withdrawal of Jury Is not prejudicial,

IM U. a 200-208. Not cited.

156 U. S. 20^210. 39 L. 399. LINDSAY v. BURGESS.

Syl 1 (XII, 682). Exception to ciiarge muat be duly taken.

Api^Ted In M'Cutcheoo v. HaU Capsule Co., 101 B'ed. 548» hold-
ln« appellate court cannot adjudge coDtract In suit void wbere
question was submitted to Jury and that portion of charge not
excepted to,

15« TJ. 8. 210, 211. 3& L, 399, POSTAL TEL. GABLE CO. V. BAL-
TIMORE.

SyL 1 (XII, 682). City may charge for use of streets.

Approved In AUantlc & Pacific Tel. Co. v. Fbiladelphla, 190 U. S.
1©, 23 Sup. Ct 818, 47 L. 1000. holding Interstate telegraph com-
pany liable to reasonable municipal license for supervision over
potei aad wires.

1«U, 8. 211-2ia 39 L. 401, IN RE CHAPMAN.
8yL 1 (XII, 682). Habeas corpus Issues only where no Jnrlsdlc-

AppTOTed In Ex parte Post 190 U. S. 557, 47 L. 1183, denying

>tloQ for leave to lile petition for habeas coii^ua; In re Lewis,

114 Fed. 966, holding error of court in overruling motion to quash

ladictment because of defects will not be considered on habeas

fOfpUS.

ki^yl 5 (Xll. G83). Habeas corpus Issues In exceptloaal cases.
Approved In Minnesota v. Brundage, 180 U. S. 502, 45 L, 641,
Stip. Ct. 45G. holding habeas corpus may lasue En enumerated
>« of argency.

IW U. S. 218-237, 39 L. 403, McGAHAN v. BANK.
SyL I (XII, 683), Defense cannot first appear In appellate court
Approved In People*s Tel., etc.. Co. v. East Tennessee Tel. Co.,

ItC Fed. 214, holding failure of plaintiff to Join patrons using de-

fadant's desk telephoue and switch cannot defeat injunction whert*

ntde for first time on appeal.

iXU, €83). Miacellatieous.

Dted In Cllne v. James, 109 Fed. 963, holding part owner of
mloisg claims, whose Interest was not of record, cannot repudiate
cofiveyimce of co-owner on record pursuant to termi of bond cou-
•ttted ta by plaintiff*

lk)l
114

156 U. S. 237-276 Notes on U. S. Reports. 562

156 U. S. 237-261. 39 L. 409, MATTOX v. UNITED SOl'ATES. ^

Syl. 2 (XII, 684). Reporter's transcript admissible on second trial.

Approved in Gilmore ▼. Butts, 61 Kan. 318, 59 Pac. 646, holding
copy of deposition is admissible where original duly filed was lost;
State ▼. King, 24 Utah, 488, 91 Am. St Rep. 812, 68 Pac. 420, hew-
ing, under Rev. Stat 1898, § 4513, trial court properly admitted
testimony of witness at preliminary hearing on satisfactory proof
that witness could not be found in State.

Distinguished in People v. Bird, 132 Gal. 263, 64 Pac 259, hold-
ing, under Penal Code, § 686, giving defendant right to be con-
fronted by witnesses testimony of deceased witness not admissible
unless taken in defendant's presence or after waiver.

Syl. 3 (XII, 684). Constitution interpreted by existing law.

See 75 Am. St Rep. 760, note.

Syl. 5 (XII, 684). Former statement must be shown witnesn

Approved in Ely- Walker Dry Goods Co. v. Mansur, 87 Mo. App.
119, holding, under section 3149, Rev. Stat 1899, where party reads
from bill of exceptions rather than present witnesses adverse
party may rebut without laying foundation; Reno Mill Co. v. Wes-
terfield, 26 Nev. 337, 67 Pac. 962, 69 Pac. 899, holding Judge may
refuse to be sworn to testify to contradictory statements of wit-
ness where no foundation laid for such impeachment

Syl. 6 (XII, 684). Testimony of witnesses since deceased not im-
peachable.

Approved in Raleigh R. R. v. Bradshaw, 113 Ga. 868, 39 S. B.
557, holding, under section 5292, Civ. Code, contradictory state-
ments cannot be proved against witness unless foundation be laid
by calling attention to the statement; State v. Taylor, 56 S. C. 360, 34
S. B. 943, holding incompetent evidence to impeach dying declara-
tions of deceased.

(XII, 083). Miscellaneous.

Cited in Ayers v. Polsdorfer, 105 Fed. 740, holding objection that
one defendant only sues out writ of error to joint Judgment may
be taken at any time before judgment

156 U. S. 2G1-271. Not cited.

156 U. S. 272-270, 39 L. 422, ANDREWS V. SWARTZ.

Syl. 1 (XII, 085). Appeal not essential to due process.

Approved in Hall v. Johnson, ISO U. S. 480, 40 L. 1259, 22 Sup.
Ct 1)43, reaffirming rule: Uutz v. Michigan, 188 U. S. 508, 23 Sup.
Ct. 3'J2, 47 L. 500, sustaining Midi. Pub. Acts 1809, No. 237, grant-
inir to board of registration power whether applicant had been
. previously validly rogisterod witlioiit provision for review; Murphy
V. Massachusetts, 177 U. S. 158, 44 L. 713, 20 Sup. Ct 64U, sua-

S33

Notes on U. S. Reports, 150 U. S. 277^22

tilQins Bentence of coDvlctloa Imposed, imder Mass. Acts 1851,
alter reversal of former Judgment on application of convict becatise
not according to law.

Syl. 2 (XII. 683). Repugnancy to State Constitntlon cannot war-
rant babeas corpus.

See notes, 87 Ans. St Rep. 201, 202.
15C U. S. 277*295, 39 L. 424, HUDSON r. PARKER*

kSyL 5 (Kilt 685). Writ from Supreme Court as Bupersedeas,
Approved In M*KnIght v. United States, 113 Fed. 452. holding
rtt of error granted after conviction In case not capital operates
i stay of execution; Ex parte Rodiey» 132 Cal. 41, M Pac. 92»
holding sheriff has no right to deliver prisoner to warden of State
prison peadtng decision of writ of error by Federal Supreme Court
Distinguished in New England R, R. Co. v. Hyde, 101 Fed, 399,
401* folding Circuit Court of Appeals cannot allow supersedeas

kwtier* plftintiflT in error has not filed bond within sixty days from
entry of judgment
SyL 6 (XII, 685). Ball allowable under Federal laws,
ApproTed tn In re Ah Tai, 125 Fed. 7D7, holding district Judge
to wbom appeal is taken from commissioner's deportation order
may admit Chinese to bail; M^Knlght v. United States, 113 Fed.
«2. 453. holding, under 26 Stat. 829, and rule 39. Circuit Court
OiAt aod should admit to bail pending writ of error In case not
capital

I^yL 7 fXIl, 686). Supreme justice authorized to approve bond.
Approved In Brown v. Northwestern Mut Life Ins. Co., 119
f^ 150. holding any Justice authorized to allow appeal may
•PProTe appeal bond taken out binder Rev. Stat. |§ HXK>» 1012.
^ C, 8. 290-322, 3D L. 430, EMERT v. MISSOURI.
S|l 3 (XU, 686). State may license selling of goods.
Approved In American SteeJ, etc., Co, v. Speed, 192 U. S. 520.
_ S* Sup. Ct 370, holding goods shipped In from another State are tax-
•►Wtf when they reach destination; ICoepke v. Hill, 157 Ind. 17U.
^ *V B. 1041, sustaining ordinance prohibiting opening of branch
•torw for temporary purposes without procwriug Jleeiise specified
tiK^eln; State v. Caldwell, 127 N. C. 526, 37 S, E. 139, holding
arfflt of foreign portrait company receiving and framing pan raits
aad delivering orders previously properly taxable under city ordi-
waif ; Snulsbory v. State, 43 Tex. Cr. 93, 94, 95. 96, 63 S. W.
M, 570, 96 Am. St Rep. , holding agent of foreign manufac-
niffr receiving baggies in original packages and pytting same to-
gethitr «iid delivering them properly convicted under Code, I 112.
Ar peddling without license.

156 U. S. 322-335 Notes on U. S. Reports. . 654

Syl. 5 (XII, 687). Nondlscrlmtnative peddler's tax is valid.

Approved in Kahrer v. Stewart, 117 Ga. 974, 44 S. E. 856, uphold-
ing State tax upon sale of meats sliipped in from another State
and l^ept for sale in due course of trade.

Distinguished in Norfolk, etc., Ry. Co. v. Sims, 191 U. S. 448, 24
Sup. Ct. 153, holding unconstitutional N. O. Laws 1901, p. 116,
imposing license tax upon all persons engaged in selling sewing
machines as applied to machine shipped in on order; State ▼. Mont-
gomery, 94 Me. 200, 47 Atl. 166, holding unconstitutional for dis-
criminating against aliens Laws 1899, chap. 298, providing for
granting of license to hawkers and peddlers who were citizens of
United States.

(XII, 686). Miscellaneous.

Cited in Racine Iron Co. v. McCommons, 111 Ga. 540, 36 S. B.
867, 868, upholding Ga. tax act of 1898, imposing license tax upon
persons representing nonresidents in making executory contracts
for sale of goods.

156 U. S. 322-328, 39 L. 438, IN RE LEHIGH MIN., ETC., CO.

Syl. 1 (XII, 687). Record showing jurisdiction sole questioD
sufficient.

Approved in Excelsior Wooden Pipe Co. v. Pacific Bridge Co..
185 U. S. 285, 46 L. 913, 22 Sup. Ct 682, holding recital in order
allowing appeal ** from final order and decree dismissing suit for
want of jurisdiction," sufficiently shows Jurisdiction was in iasae:
Huntington v. Laldley, 176 U. S. 676, 44 L. 634, aO Sup. Ct 529.
holding direct appeal from Circuit Court may be maintained when
final decree dismissing bill, order allowing appeal and certificate
show that jurisdiction only was in issue.

Distinguished in Arkansas v. Schlierholz, 179 U. 8. 600, 45 L.
337, 21 Sup. Ct. 231, holding sufficient certification of jurisdictional
questions not made by order allowing appeal stating question
whether Circuit Court had jurisdiction to discharge agent of land
office or whether it should remand.

156 U. S. 328-530, 39 L. 440, BROWN v. WEBSTER.

Syl. 1 (XII, 688). Interest on price, damages on warranty.

Approved in United States v. Sheridan, 119 Fed. 287, holding,
under judiciary act, Federal jurisdiction requires diverse citizen-
ship and controversy involving $2,000 exclusive of interest and costs.

156 U. S. 330-335, 39 L. 441, BANK OF RONDOUT v. SMITH.

Syl. 1 (Xll, 688). Final leaves execution only.
' Approved in Nolan v. Smith, 137 Cal. 363, 70 Pac 167, holding
judgment for sureties of justice of peace when former's demurrer
was sustained and plaintiff declined to amend is not final Judgment.

Distinguished in Hooven, etc., Co. v. John Featherstone*8 Sons,

Notes on U. S. Rf*ports. 156 U. S. 335-361

in Fe<L 85, holding decree Id Bult to enforce mech ante's lien, thnt

complainant shall take nothing bj its action, is final and appealablp.

SyL 2 (XII, 683). Decree dismlsslKig as to one defendant not

Appro red Id Carmtchael v. TeiArkaua, 116 Fed. 847, holding order
il'tEmbsing defendants charged to be jointly liable is not finaL

156 U. 8. 335-342, 30 L. 443. CONNELL T. SMILEY.

SyL 2 (XII, 688). Separate answers make no separable snit
Approved in Chesapeake & O, R. R, Go, v. Dixon, 179 U. S. 138,
4^ L 125. 21 Sup. Ct. 70, holdings action against railroad and en-
gineer and fiLreman charging concurrent negligence In killing person
U joint; Fogarty v. Southern Pac. Co*, 123 Fed. 975, holdlnju: com-
I^laJmhy employee against company and indirlduals charging Joint
nefJIgcfflce In operating freight car states Joint cause of acUou;
^c« r. Southern Ity. Co,, 122 Fed. 711, holding unless resident
^nployees of nonresident company are unlawfully joined with com-
pany, pltttntifTs complaint alleging joint negligence controls; Wln-
•toB T. minois Cent R R.. Ill Ky. 95P, 65 S. W. lo, holding ruil-
f^wd sued jointly with servants for negligence of servants, being
Ifi^Uj liable In Kentucky, cannot remove suit

Sjt 5 (XII, 688), Cause sustained though record show nu
•Ppwible controversy,

Approved In Wirgman v. Persons, 126 Fed. 453, 454. hoMlug where
^^^ (frayed was against one defendant of diverse citizensliiii,
iMet of nominal parties does not prevent removal.

(XII* 688). Miseelianeous,

<3hed la Smith v. Day, 39 Or. 634, 64 Pac. 813, holding where
*■*§ ta to several joint tort feasors was removed, and summons
IHa toother, resident of same State, was delayed two years, stat-
•"te htrred suit as to latter.

iSeU, 8. 342-347, 30 L. 445, PALMER v. CORNING.

*yt I (XII, 688). Patent prima facie evidences patentability.

Approved Id American Sales-Book Co, v. BulUvaiit, 117 Feil. 258.
folding where writ of error silent appellate court cannot assume
tiwt irltl court failed to give full force to presumption of pat-
fOttlilUty: Consolidated Rubber Tire Co. t. FInley Rubber Tire Co.,
Ufl Fed. 632. sustaining Grant patent No, 554,675, for rubber tire

M U. S. 347-^53. Not cited.

W V. B. 863^ei, 39 L. 450, UNITED STATES v. THOMAN.

Bjl 2 (XII, 689). *'May'* In contradistinction to "shall" con-
firs discretion*

Distinguished In Kent v. United States, 113 Fed. 237, hoidiui;

156 U. S. 361-400 Notes on U. S. Reports. 566

word "may" In Rev. Stat Ohio, § 2683, proYiding that council
may levy taxes to pay interest on public debt, should read " shalL"

156 U. S. 361-384, 39 L. 453, WALDRON v. WALDRON.

Syl. 1 (XII, 689). Bill signed after term with consent vaUd.

Approved in Reliable Incubator, etc., Co. v. Stahl, 102 Fed. 593,
holding party presenting bill of exception for signature after term
must show distinct statement showing adva:«e party's consent.

Syl. 6 (XII, 690). Prejudicial argument beyond evidence war-
rants reversal.

Distinguished in Watson v. Southern, etc., Co., 39 Or. 485, 65 Pac.
986, holding misconduct of counsel deemed waived where other
party does not object thereto until motion for new trial; Boyd v.
Portland Electric Ck>., 37 Or. 571, 62 Pac. 379, holding errors as-
signed for comments made by counsel will not be considered on
appeal where remarks were not in record and Jory charged to con-
sider record only.

(XII, 689). Miscellaneous.

Cited in Throckmorton v. Holt. 180 U. S. 567, 45 L. 671, 21 Sup.
Ct 480, holding insufficient withdrawal of evidence of opinions of
witnesses as to genuineness of handwriting.

156 U. S. 385, 380. Not cited.

150 U. S. 380, 387, 30 L. 401, ILLINOIS CENT. R. R. v. BROWN.
Syl. 1 (XI 1, OIK)). Judgment remanding cause not flnaL
Approved in Cincinnati St. Ry. Co. v. Snell, 179 U. S. 398, 45

L. Ii41>, 21 Sup. Ct. 200. holding reversal for error in oyemiling

iiu>tion for change of venue is not final; Cole v. Garland, 107 Fed.

701. holdiDg. uudor act 1887, order of Circuit Court remanding to

State court not reviewable by appeal or error.

loO U. S. 3S7-391. Not citeil.

loO U. S. 3l>l-400, 30 L. -iiVi, MATHER v. RILLSTON.

Syl. 1 (XII, ODO). Dangerous occupation requires all reasonable
precautions.

Approved in Paaubau Sugar Plantation Co. v. Palapala, 127 Fed.
l^iMi, liohiing sugar plantation company liable for injury of plaintiff
causeil by negligence of winclimau in lowering of load of sugar
wltbout signal: Simi>son's Patent Dry Dock Co. v. Atlantic, etc..
SS. C\>., 108 FtHl. 425, holding owner of dock must afford dock of
sulUclent size to accolnnuHlate vessel and reasonable care in docking
same; Whitney v. New York, etc., U. R. Co., 102 Fed. 852. hold-
ing question whether car was rixed with safe-guard appliances
available to defentlant sliouKl be left to jury; Grace, etc., Co. v.
Kennedy. i)t> Fed. Tk^l*. hoMiiig master liable for failure to furnish
safe place to work where eniplovtv was thrown from post by team

Notes OB U» S. Reports. 15G U. S. 400-432

mimijig Into gay rope attached to post; Curtis v. McNair, 173 Mo.
2S3, 73 S, W. 170» holding defeudimt llahle for Injury to servant
canBed by molten Iron thrown from blast furnace, acreen to prevent
lame not ha\ing been replaced; Myrherg v. Baltimore, etc., R. R.,
25 Wash. 371. 65 Pac. 5-11, sustaining denial of nonsuit against
plaintiff Injured by explosion of dynamite allowed to remain ex-
posed to weather for two months; dissenting opinion In Kilpatrlck
V. Choctaw, etc, R, R. Co., 121 Fed, 14, la, majority holding use
of aablocked frogs In freight yard is not negligence thougli brake-
meo are liable to catch feet therein; dissenting opinion in King v.
Morftn, 100 Fed. 451, majority holding intelligent and experience^i
min<?r aBsumes risk in use of tamping bar in blasting in mine. See
Dotes, 87 Am. St Rep. 50(>, 5^3, 568.

Dlstingnished Jn Volk v. B. I. Sturtevant Co., 104 Fed. 27H,
holding employee Injured while sw^eeping bottom of eierator shaft,
^ acctutomed work, assumed risk of ear falling.
S7I 2 (XII, 691). Master not warning servant Is liable.
Approved In Seattle v. Edge Moor Bridge Works, 109 Fed. 234,
boidiag bridge company liable for death of workman caused by
billing of structure due to Insufficient bracing; Cincinnati, etc.,
R- B. Co. V. Gray, 101 Fed. 628, holding receiver of road liable for
injory from new switch where employee was not Informed of
wotklngg thereof; Welch v. Bath Iron Works, 9S Me. 369, 57 Atl.
K liokllng defendant liable for injuries received hy plaintiff in
<ljDimlte explosion where defendant did not inform plaJntifif of
BMtna <>f avoiding danger; Nickle v. Columl)ia, etc., Co., 95 Mo. App.
231 fig S. W. 955, holding paper-mill company liable to rag sorter for
USji«Ii engendered by presence of hospital rags saturated with
^^^ aud containing decayed flesh. See note, 87 Am. St Rep. 577.

15« U. S. 400-425, 39 L. 471, CUNNINGHAM v. MACON, ETC.,
».a. CO.

^yL 1 (XII, 691). Right to enforce equitable subrogation.

Approved in Fourth Nat. Bank v. Albaugh, ISS U. S, 737, 23
^ Ct» 451. 47 L. 675v lioldlng appellants claiming as assignee of
PBHn claiming under instrument aliowhxg latter to pay himself
fwMa certain papers have only rights of latter.

1« U. a 426-432, 39 L, 478, BATCHELOR v. UNITED STATES.

Sfl, 2 (XII, 691). Indictment must sufficiently describe oflTense.

Approved hi United States v. M'Clure, 107 Fed. 272, holding,

nadtr Rev. Stat, | ICKM, Indictmciit Is good If substance is there,

rffartUeiEe of form; Breese v. United States, 106 Fed. 688, holding

tiulirtment under nationaJ banking laws for embezxlement need not

sffi^tx amount each of moneys, funds, and credits misopplied;

Jewett r. United States, 1\M} Fed, 837, sustaining Indictment under

Rer. 8tat., I 5209, charging accused with uidawfully, fraudulently

15G U. S. 432-463 Notes on U. S. Reports. 668

and willfully misapplying and converting to own use funds of
bank; dissenting opinion in Rieger ▼. United States, 107 Fed. 934
majority holding sufficient indictment under Rey. Stat, § 6209.
charging bank officer with willful misapplication by means of dis-
counting note.

156 U. S. 432-463, 39 L. 481, COFFIN ▼. UNITED STATES.

Syl. 2 (XII, 692). Indictment need not state particulars of In-
citing.

Approved in Sofield v. State, 61 Nebr. 601, 85 N. W. 841, hold-
ing, in prosecution for practicing medicine without license, county
attorney need not name persons treated where they are unknown.

Syl. 6 (XII, 692). Averment that mattor is unknown presumed
true.

Approved in Foerster v. United States, 116 Fed. 862, upholding
charge in indictment that defendant sold liquor to Ponca Indiaiis
to grand jury unknown; Jewett v. United States, 100 Fed. 887,
sustaining indictment for misapplying bank funds under Rev. Stat..
§ 5209, which conversion was alleged as done by means unknown
to grand jury.

Syl. 6 (XII, 692). Presumption of innocence, instrument of proof.

Approved in Mullen v. United States, 106 Fed. 894, holding, in
criminal case where no evidence offered of accused's previous good
character, such is presumed and upon request Jury should be so
instructed.

Syl. 7 (XII, 692). Refusal to charge as to presumption reversiUe.

Distinguished in State v. Kennedy, 154 Mo. 288, 289, 66 8. W.
299, 300, holding refusal to instruct as to presumption of innocence
after full charge as to proof beyond reasonable doubt is not re-
versible error.

Syl. 9 (XII, 603). Charge that burden shifts to accused erroneous.

Approved in Melton v. United States, 120 Fed. 505, holding er-
roneous charge jury to assume that letter was caused to be mailed
by defendants unless there was evidence to remove such presump-
tion.

Syl. 10 (XII, 693). Entering actual transaction is not false entry.

Approved in United States v. Young, 128 Fed. 115, holding entry
of false check as cash item by cashier though check known to be
false is not false entry.

(XII, 692). Miscellaneous.

Cited in Breese v. United States, 106 Fed. 688, sustaining Indict-
ment under national banking laws for embezzlement following
wonls of statute without stating amount of money, credits and
funds misapplied.

S5d

Notes on U. S, ReporU,

15C U. S. 464-4&1

15*5 V, S. 464^60. 39 L. 494, BANNON T. UNITED STATES.

Syl 4 (XII, G93). Infamous punishment does Dot make felony.

Approved in Hume t. United States, 118 Fed. 698, hoMEng oflfense
of Mng mails to defraud under Rev, Stat., § 5480» Is not made a
felony; Considlne v. United States, 112 Fed. 344, 345. holding break-
ing Into post-office made puiaishable by flue and Imprisonment under
BerStat, S 5470, is not felony; Palmer v. C, R., etc., Ry., 112 Iowa.
44(1, 85 N. W. 757, holding selling liquor without license, though a
P«»ltentlary off ease under Rev. Stat, §S 5539, 5944, la not felony.

156 U. S. 470-478, ^9 L. 497, BELL SILVER, ETC., MIN. CO, ▼.
FIRST NAT. BANK.

SvL 2 (XII, 694). Sale notice In language of deed aufflcient

See 92 Am, St Rep. 574, note.

Dlittngnished in Peoples' Sav, Bank v. Wunderllch, 178 Mass, 45T,
5© X E. 1040, holding where advertiBement and notice of fore*
clo«ure sale Included property released from mortgage, sale Is de-
fective.

8yl 4 (XII, 694). Mortgagor may confer power of sale.

Ap|>roved in Etna Coal, etc., Co. t. Martlng Iron, etc., Co., 127
fel ZQ, sustaining, under Ohio statute, power of sale without ap-
pniseromt contained in corporate deed of trust; Muth v. Goddard,
2S Mont. 252, 72 Pac, 620. holding, under Civ. Code, i 3821, and
Code Civ. Proc. ( 1293, attorney in fact may execute trust deed of
pantor't property with valid power of sale.

Distinguished In Brown v. Bryan, 6 Idaho, IS, 51 Pac. 1001,
*w>Wltig, under Idaho statutes, trustee deed securing certain debt
P^ynble at certain time is mortgage and eaimot he foreclosed under
poner of sale contained therein.

15fl 0, 8, 478-485, 39 L. 502, ST. LOUIS, ETC.. RY. CO. v.
MISSOURL

8yl. 4 (XII, 694), Appointing receiver, no deprivation of property.

fie© 72 Am. St Rep. 77, note.
ISeC. S. 485-494, 39 L. 505, LINDSAY v. FIRST NAT. BANK.

Syl. 1 iXII, 694). Suit ogalnst State assessment, In equity.

I>Utingulshed in Adams v. Shirk, 117 Fed. 807, holding lessor or
^^ grantee accepting rents mny hold assignee of lessee assuming
terms of lease, although assignment made without lessor's consent,
** Inquired in lease; Adams v. Shirk, 104 Fed. tJl, holding objection
^l Ctuse ifl cognizable only In equity cannot he made for first
•to>e on motion in arrest

h'l 2 fXII, 6M), Federal equity jurisdiction Independent of
^Ute law.

approved in Highland Boy Gold Min. Co. v, StHckley, 116 Fed.
^ boidJtig equitable defenses not admissible In ejectment suit In

15G U. S. 494-517 Notes on D. S. Reports. SO)

Federal court; Hill v. Northern, etc., Ry. Co., 113 Fed. 917, hold-
ing Rev. Stat, § 914, for conforming Federal to State practice, was
not designed to abolish in Federal courts distinction between law
and equity; Daniel v. Felt, 100 Fed. 728, holding section 914, U. 8.
Rev. Stat, does not authorize legal and equitable remedies to be
blended in one suit

Distinguished in Jones v. Mutual Fidelity Co., 123 Fed. 618, hold-
ing equity will enforce remedy of 19 Del Laws, chap. 181, au-
thorizing appointment of receiver for insolvent corporations.

156 U. S. 494-501, 39 L. 508, CARR v. TIFB.

Syl. 2 (XII, 691). Affidavits may show jurisdictional amount

Approved in Robinson v. Suburban Brick Co., 127 Fed. 806, hold-
lug bill need not state amount In controversy where record ot evi-
dence on hearing as to jurisdiction disclose jurisdictional amount

Distinguished In Greene County Bank v. J. H. Teasdale Com.
Co., 112 Fed. 803, holding, in action for recovery of money, amount
of damages claimed determines amount in controversy, unless
claimed In bad faith.

Syl. 4 (XII, 695). Objection that receiver acted made below.

Approved In Laurence v. Potter, 22 Wash. 49, 60 Pac. 153, hold-
ing objection that decision of case of abandonment was left to
register and receiver not jurisdictional and waived by failure to
make on appeal to department

Syl. 5 (XII, 695). Department's decision on facts is flnaL

Approved in O'Connor v. Gertgens, 85 Minn. 498^ 89 N. W. 872,
holding question whether patentee, plaintiff's grantor, was bona
fide purchaser Is question of fact for land department

(XII, 094). Miscellaneous.

Cited In Peoples' Tel., etc., Co. v. East Tennessee TeL Co., 103
Fed. 215, holding court will not dismiss on appeal on objection first
made there of Insufficiency of amount Involved where bill claims
$3,000 damages from trespass.

156 U. S. 502-517, 39 L. 511, NATIONAL CASH REGISTER CO. v.
BOSTON CASH, ETC., CO.

Syl. 2 (XII, (505). Analogous but Improved device patentable.

Distinguished In Plumb v. New Yorls, etc., R. R. Co., 97 Fed. ©48,
holding void for lack of novelty McKenna patent No. 348,289, for
tube alr-bralte attachment.

Syl. 3 (XII, 695). Machine with similar underlying principles in-
fringes.

Approved In F. C. Austin Mfg. Co. v. American Well Works, 121
Fed. 78, holding Chapman patent No. 382,689, for well-boring ap*
paratus, valid and Infringed.

S61

Notes on U. S. Reports. im U. S. 518^526

I

Syl 4 (Xn, 095). No. 271,3^3, for cash register, is valid.

Approred In National Cash Register Co. v. Navy Caab Register
Co,, tf9 Fed. 56a, holding valid and Infringed RlUy and Birch
patent No, 271.363. for cash register.

156 U. S. 518^26, 39 U 517, GODLEY v. MORNING NEWS.

SyL 2 (XII, eOG). Conatructive service confined to jurlsdictton.

Approved In Waters v. Central Trust Co., 126 Fed. 471. holding

request for extension of time to plead on filing of i>etitIon for re-

moTal does not constitute waiver of objection to Juris^lietion; MUlan

f. Mutual Reserve, etc., Assn.. 103 Fed. 760; holdmg foreign In-

jlttujice company having withdrawn from State service cannot

te latd upon agents under State statute; McCord Lumber Co* v.

Boylti 87 Fed. 23, holding, under Minnesota law. foreign cor-

poTition contracting liability and then wltlidrawlug from State

liefote suit is liable to personal Judgment on service on president j

Commonwealth, etc,, Ins. Co, v. Hay den, 61 Nebr. 455. 85 N. W

^ lioiding court having Jurisdiction of insolvent corporation to

"^^M up altalrs cannot render personal judgment against nonserved,

wnippearlng stockholder; Paper Co, v. Shyer, 108 Tenn. 4fj4, 67

8. % geo, holding unconstitutional Shanuon^s Code, § 52as, so far

M providing for deficiency Judgment against nonserved. nonappear-

taf nonresident

SjL 5 (XII, 696). Service on oflftcer temporarily present invalid.

Approved In Conley v. Mathieson Allsaii Works, IdO U. S. 410,

*H* 23 Sup. Ct. 729, 730, 47 L. 1115, holding service on resident

dlrectora of foreign corporation which has ceased to operate within

State is hisufflcient. affirming 110 Fed. 730; In re Grosjimayer, 177

r> S. 5«), 44 U 666. 20 Sup. Ct. 536, holding Circuit Court cannot

«>l*r Judgment against defendants, partners, without service on

ii»«n; Central Grain & L. Exch. v. Board of Trade, 125 Fed. -167,

i^oWlng service upon agent Is not service upon foreign corporation

oaie» corporation Is operating In State; Frawley v. Pennsylvania

Cm^ltj Co., 124 Fed. 263. holding collection of single renewal

premlooi of foreign Insurance company does not render agent agent

of company for service in State; Cady v. Associated Colonies. 119

Fed 424. holding constructive service under State law cannot con-

to Jurisdiction on corporation not operating In State; Ellsworth

fVoit Co. T. Parriimore, 108 Fed. 008, hold lug service in Illinois on

tfe&t of Iowa corporation with headquarters la Iowa, confers no

loriadlcUon upon Federal court sitting in Florida; Eldred v. Amerl-

cta Paiace-Car Co., 105 B^ed. 456, holding no Jurisdiction over

foreign corporation not operating within State conferred by servit'e

VpOD one who was director two years before; Doe v. Sprlaglleld

BoQer it Mfg. Co., 104 Fed. G8S, holdlag broker making occasional

of foreign manufacturing company's machinery hut not ap-

Vol III— 36

156 U. S. 518-526 Notes on U. S. Reports. 662

pointed agent cannot receive service for corporation within CaL
Code Civ. Proc, § 411; Eldred v. American Palace-Car Co., 103 Fed.
211, holding Jurisdiction of nonresident defendant not acquired by
service on resident director where property not alleged to lie in
district; Balya Market Co. v. Armour & Co., 102 Fed. 532, holding
service upon agent of partnership confers no jurisdiction over m-
dividual partners'; Swann v. Mutual Reserve Fund Life Assn., 100
Fed. 925, 928, holding no jurisdiction of foreign insurance company
<;onferred by service on insurance commissioner after revocation
by State of rights to operate therein; Abbeville El. Co. v. Western
El. Co., 61 S. O. 375, 39 S. E. 564, sustaining jurisdiction obtained
under Code Civ. Proc., § 115, by service on traveling agent of non-
resident corporation having no resident agent, place of business or
property therein. See 85 Am. St Rep. 912, note.

Distinguished in Reilly v. Philadelphia & R. Ry. Co., 109 Fed.
351, holding service upon director found within district charged
with no corporate business is not sufficient under general law;
Meyer v. Pennsylvania, etc., Ins. Co., 108 Fed. 170, sustaining ser-
vice on resident director of corporation doing business within the
State; Puster v. Parker Mercantile Co., 64 N. J. Bq. 600, 55 AU.
817, denying motion to set aside service of subpoena made on presi-
dent of defendant, a foreign corporation, while in State oo private
business.

Syl. 6 (XII, 696). Removal petition governed by State limitation.

Approved in Fidelity, etc., Co. v. Hubbard, 117 Fed. 952, hold-
ing, under Va. Code, § 3260, petition for removal filed after entry
of Judgment nisi for want of appearance Is too late; Head v. Sel-
leek, 110 Fed. 786, 787, holding time for removal of cause expires
at opening of court on day after return day of the writ; Winkler
V. Chicago, etc., Ry. Co., 108 Fed. 307, holding petition for removal
must be filed In State court before trial of issue of law on demurrer
for want of facts.

Syl. 7 (XII, OOG). Appearance for removal not waiver of service.

Approved In Conlcy v. Mathieson Alkali Works, 190 U. S. 411,
23 Sup. Ct 730, 47 L. 1115, holding insufficient service on resident
directors of foreign corporation no longer operating within State:
Loudon Mach. Co. v. Amorican, etc.. Iron Co., 127 Fed. 1010, hold-
ing appearance in State court to plead that defendant was not
within State does not give State jurisdiction; Calderhead v. Down-
ing, 103 Fed. 30, holding appearance to attack validity of attach-
ment against him Individually by one sued as Individual and as
partner does not affect removal by partnership; Ralya Market Co.
V. Armour & Co.. 102 Fed. 6SS, holding appearance of defendant in
suit against partnership Is not appearance of individual partners.

&03

Notes on U. S. Reports, 150 U. S. 527-544

SjrL 8 (Xn, CS97>. Removal no admission as to merits.

Approved In Sharkey r. Indiana, D, & W. Ry. Co., 186 U. S. 47t»»
^ L. 1266, 22 Snp. Ct IMl, roaffirming rule: Corldtt v. Farmers'
Bank. 114 Fed. 603. holding removal of cause does not deprive
defeadaiit of right to move for abatement of attachment hy wbkh
court acquired Jurisdiction.

Distinguished in Empire Mln. Co. v. Propeller, etc., Co., lOS
^ed. 903, holding defendant filing removal petition waives privilege
of trial In court of his district

(Xn, e06)» Mlsoellaiieoufl,

Cnted In Moredock v, Kirby, 118 Fed. 1S3. 185, holding Invalid
a* to actions in personam Ky. Civ. Code Prac., % 51, providing for
•erTlcu on resident agent of nonresldenta.

ISB U. 8. 527--536. 39 L. 520, EVERS v. WATSON.

Syl 1 (XII, 697). Presumption against party objecting to re-
moval,

A^pproved in Watson v. Bonfils* 116 Fed. IGO, holding on collateral
attack Jurisdiction of Fe<leral court Is presumed.

Syl 3 (XII, ml}. Want of jurisdiction not available collaterally.
Approved in New Orleans v, Fisbor. ISO U. S. 19G, 45 L. 492, 21
^^P. Ct 352, holding Circuit Court's jud|::mt*tit as to compeiency of
l^UlntllTs flssignorB to sue. and as to diveiisity of citizenship^ can-
o^t be impeached collaterally or on creditor's bilK
^yL4 (Xll, 697), Judicial sale not anuHlled after four years.
Approved in Calivada Coloaiasation Co. v. Hays, 110 Fed. 20^,
tookliag delay of six years defeats suit to cancel stock certiflcatee.

156 U. 8.537-544, 39 L. 524, ARD v. BRANDON.
§yl2 iXU. mSu wrongful rejection of application not fatal.

AppmvL*d in Power v. Sla. 24 Mont 25t). 61 Pac, 470, holding
ilefeDdani claiming under relocation of alleged forfeited mining
claim mmt establish such forfeiture and own .ight to claim.

8|13 (XIl/698). Law favors bona fide settlers.

Approved In Oregon, etc.. R. R. v. United States. 180 U. S, 114.

2$ Sup. Ct 620. 47 L. 731. sustaining claim of bona dde settler

Ml indemnity lands previously occupying liuid with intention to

perfecl title upon survey; Nelson v. Northern Pac. Ry. Co., 188

0, & 12a, 23 Sup. Ct 3ti7, 47 L. 412, holding eiitryman bona fide

•oeapying indemnity lands after withdrawal order, but bt*fore

^eAWiile location, ia entltlefl to com|itete title; Holmes v. Llnited

^tett, lis Fed. 998. holding bona lide settler on uuBurveytnJ pub-

lAOds in within protection of exception in president's jirticlamii-

ddo of December 20, 1S02, reserving forest lands; Manley v. Tow,

J

156 n. S. 644r«l Notes on U. S. Reports. 664

110 Fed. 248, holding in contest between purchaser from company
and prior settler on unearned railroad land under section 5, act 18ST,
prior settler is preferred.

Distinguished in Tarpey v. Madsen, 178 U. S. 220, 44 L. 1045,
20 Sup. Ct 850, holding rule favoring settlers does not apply to one
coming in after abandonment of claim and endeavoring to dis-
possess railroad from its grant

156 U. S. 544-548, 39 L. 527. MADDOX ▼. BURNHAH.

Syl. 1 (XII, 698). Occupation, before 1880, gave no right.

Approved in United States ▼. Holmes, 105 Fed. 45, holding settle-
ment on lands withdrawn from entry and settlement not within
protection of exception in proclamation of 1892; Springer ▼. Clopatn,
26 Nev. 195, 65 Pac. 806, holding mere occupancy of lands when
same was listed to State as unappropriated by act June 16, 1880,
gave no title against purchaser from State; Northern Pac. Ry. y.
Nelson, 22 Wash. 535, 61 Pac. 708, holding mere occupation of land
before withdrawal not within protection of act 1880, providing
that rights of homesteaders should relate to time of settlement.

Distinguished in Nelson v. Northern Pac. Ry. Ck)., 188 U. S. 131,
132, 23 Sup. Ct. 310, 47 L. 416, holding person occupying Indemnity
lands in good faith after withdrawal order in general location but
before definite location will be protected; Holmes v. United States.
118 Fed. 998, holding bona fide occupancy and improvement of
unsurveyed public land within protection of exception of forest
reservation proclamation December 20, 1892.

156 U. S. 548-551, 39 L. 528, WOOD v. BEACH.

Syl. 1 (XII, G98). Occupying withdrawn lands g^i^es no rights.

Approved in United States v. Holmes, 105 Fed. 45, holding settle-
ment on lands witlidrawn from entry not within protection of ex-
ception in proclauiation December, 1892; Northern Pacific Ry. v.
Nelson, 22 Wash. 530, 01 Pac. 700. holding, under act 1880. provla-
Ing that rights of homesteaders shouid relate to time of settlement,
mere occupation before withdrawal of such lands gave no rights:
dissenting opinion in Hewitt v. Schultz, 180 U. S. 159. 45 L. 473, 21
Sup. Ct. 310, majority following land department's construction
that Northern Pacific grant of ISW did not authorize withdrawal
of indemnity lands on approval of definite location.

Distinguished in Nelson v. Northern Pac. Ry. Co., 188 U. S,
131, 132, 23 Sup. Ct. 310. 47 L. 410, holding person occupying In-
demnity lands In good faith after withdrawal order on general
location but before definite location will be protected; Holmes v.
United States, US FimI. JMKS. holdlnjr bona fide occupancy of unsur-
veyed public land within protection of exception in forest reser-
vation proclamation of December 20, 1892.

\ Notes on U* S* Reports. 166 U* S. 552-589

1» U. 8, 552-574, 30 L. 530, UNITED STATES T. BERDAN FIRB
ARMS CO.

SyL 1 (XII, 690). New combiBatlon does not Infringe old
Approved Id Davey Pigglns Mach. Co. v. Isaac Prouty, etc., Co.,
lOT Fed. 510» holding Davey patent No. 555,434, for pegging macIaJne
wltii reduced horn tip, not Infringed bj maclalne cutting as well
u driving pegs.

SyL 2 (XII, $99)* Patent Infringement not justiciable In Court of
Cl&Iag.

Approved In RuBsell v. United States, 1S2 U. S. 530, 45 L. 1215,
21 Sap. Ct 901, holding Court of Claims has no Jurisdiction of suit
iHliist United States for damages for infringement of gun patent,
BO Implied contract existing.

S7I 3 (XIX, 690). Use of patent promising compensation Implies
coLtnct

Approved In United States v. Lynah, 188 U. S. 464, 23 Sup. Ct
3H 47 L. 54G, holding arciiit Court has Jurisdiction of suit for
damtges for destruction of rice plantation due to government im-
im»Teinents In Savannah river; Dooley v. United States, 1S2 U. S.
22M6 L. 1090» 21 Sup. Ct. 765. holding Court of Claims bas Juris-
Won of action to recover duties illegally exacted under protest
«»teports from New York Into Porto Rleo; United States v, Mor-
W 9ft Fed. 573, holding claim for salvage for saving government
lilfhUblp Is wItMn Jurisdiction of Circuit Cotirt as Court of Claims.

^ V, 8, 574^77, 39 L. 537, CORINNE MILL CANAL. ETC., CO. v.
JOHNSON.

8yL 1 (Xn, 699), Claimant must show land not excepted.

Approved in Waggoner v. Dodson, 96 Tex. 421, 73 S. W. 518,
fcoMifig deed reciting prior deed to same land whlcli deed was pre-
■OBWblj lost gave notice to grantee that grantor bad no title.

156 r. S. 577-589. 39 L. 538, PITTSBURG, ETC., COAL CO, v.

Bates.

9jfl 2 (Xn, 699). Coal from another State Is taxable.

Approved In Diamond Match Co. v. Ontonagon, 188 U. S, 93, 23

^up, Cl 270. 47 L. 398, holding logs floated to a boom, there awaiting

iiiipmcnt by rail, are subject to State taxation; Austin v. Tennessee,

179 U. 8. 353, 45 L. 230, 21 Sup. Ct 13G, upholding Tenn. Laws

ld97t chap. 30. prohibiting importation or sale of cigarettes or

dgarette papers.

I>lstinguisbed in Kelley v. Rhoads, 1S8 U. S. 6, 23 Sup. Ct 261,
IT L. 562, boldJDg flock of sheep being driven across Wyoming from
UtAb to Nebraska Is subject of interstate commerce and not taxable
br states

156 U. S. 590-667 Notes on U. S. Reports. 566

(XII, 699). Miscellaneous.

Cited in Lotery Case, 188 U. S. 351, 23 Sup. Ct 325. 4T K 499,
holding carriage of lottery tickets between States by express car-
rier is interstate commerce.

156 U. S. 590-601. Not cited.

156 U. S. 601-604. 39 L. 549, SALTONSTALL v. WIEBUSCH.

Syl. 1 (XII, 700). Ordinary meaning of words prevails.

Approved in United States v. Nordlinger, 121 Fed. 693. holding
term "fruits preserved in sugar." in tarifT act 1883. used in or-
dinary sense where evidence fails to show clearly accepted trade
meaning.

156 U. S. 604-611. 39 L. 550. GRIMM v. UNITED STATES.

Syl. 3 (XII, 701). Indictment need not describe obscene papers.

Approved in De Gignac v. United States, 113 Fed. 201, sustain-
ing indictment under section 3893. Rev. Stat, setting forth printed
circular sent through the mails advertising '* views " for ** Quarto-
scopa"

Syl. 4 (XII, 701). Conviction based on decoy letter.

Approved in In re Wellcome, 23 Mont 472, 59 Pac. 453, holding
admissible and worthy of belief in disbarment proceedings evi-
dence obtained by members of bar acting as detectives; People v.
Krivitzky, 168 N. Y. 186, 61 N. E. 176, holding fact that act of
counterfeiting trademark was based upon inducement from owner's
agent and paid for with owner*8 money is no defense. See 72 Am.
St Rep. 701, note.

156 U. S. 611-^ia Not cited.

156 U. S. 618-649. 39 L. 556, JOHNSON v. ATLANTIC. ETC.,
TRANSIT CO.

Syl. 4 (XII, 702). Laches is matter of Inequity.

Approved in EJarl v. Van Xatta, 29 Ind. App. 544, 64 N. E. 90C,
holding delay in bringing suit to reform deed for mistake in descrip-
tion of land will not defeat recovery where no rights intervene and
defendant not injured.

156 U. S. 649-667, 39 L. 567, ST. LOUIS, ETC., RY. v. GILL.

Syl. 1 (XII, 702). E>xemptlons follow property only when directed.

Approved in Matthews v. Board of Corporation Comrs.. 07 Pea.
403, holding N. C. act 1899, empowering railroad commission to
fix rates, repeals pro tanto corporation charters giving companies
such power; Chicago Min. Traction Co. v. Chicago, 199 111. 533, 534,
535, 65 N. E. 465, 466, holding corporation empowered to lease lines
of street railroads, leasing roads entitled to fix rates took them
subject to city's power to supervise charges.

5«7

Notes on U, S- Reports.

15G U, S. 649--0G7

Syl 2 (Xllt 702), Remedy for unreasonable rates Is In equity.

Approved in San Diego Laud, etc.» Co* t. Jasper, 110 Fed. 713,
hoidln^ Bupervisors charged by Cal. statute 18S5 with fixing maxi-
mum water rates represent puhlic In suit to test validity of
rates; Haverhill Gaslight Co. v. Barker, 109 Fed, 697* holding
federal court of equity has Jurisdiction of suit by gas company
igalast gas commission to enforce statutory rates aiJeged to be
nnreasonable.

Syl 3 (XII, 702). Earnings of whole line test reasonableness.

Approved in Chicago Union Traction Co. v. Chicago, 199 IlL 047*
<55 N\ E, 498, holding insufficient evidence of unreasonableness of
«re^t-car rates where no proof of earnings of entire line was pre-
heated.

Syl 4 (XII, 702). Rate destroying property value is unconstitu-

tioml

Approved In Cottlng v. Godard, 18a U. S. 85, S8, 46 L. 99, 100,

2i Sup. Ct. 33. 34. holding invalid Kan. act March 3. 1S97» regu-

litiDg charges to be made by a stockyard corporation, not applying

«wue to smaller yards; Wilson v, Perrault, 6 Idaho, 182, 54 Piic. CIS*

Miing uncfMistltutional Sesa, Laws 1897, p. 52, attempting to fix

f^Monnble maximum rate for use of water; Carson v, Broeton, 175

^1m«» 245, 56 N, E, 2, bolding ordinance, under pretense of fixing

*Viilible rates, fixing rate which amounts to confiscation of prop-

«ty would afford ground for Judicial Interference; State v. Earle,

®8|,C. 203, 44 S. E. 784. holding petitioner has a right to offer

**'thnoay showing unreasonableness of ordinance reijulring rall-

^^^ to station flagman at all crossings.

W5(XI1, 702). Courts cannot establish railroad rates.

Approved In Chicago^ Milwaukee, etc., Ry, v* Tompkins, 176 U. S.

^ H U 420, 20 Sup. Ct 338, holding court must determine the

'**wnjibleae6s of rates prescribed by State legislature; Lou hv Hie,

«*t. R, R, Co. V. M*Chord, 103 Fed. 220, holding uncoUBtitutloual

Kf, tct March 10, 1900, giving railroad commission power to hear

*flfl d^termiiie cases Involving reasonableneeB of rates and to fix

Wiiroibie rates; Western Union TeL Co. v. Myatt 98 Fed. :i43,

557. holding anconatltutlonal Kan. act January 3, 1899, creating

<wm of visitation with power to fix and enforce schedule of rates;

itMtt V. Associated Press. 159 Mo. 448, 60 S. W. 102. holding man-

01 will not issue to compel news-gathering corporation to

h news to relator on same terms as other newspapers.

SyL 0 (XII, 702). Unreasonableness of rate defense for over-

chajtging.

Approved Id Ahem v. Newton & B, St. Ry. Co., 105 Fed. 703,

statute open to objection of unreasonably reducing rates

In QSOOHfltltutlooal.

J

156 U. S. 667-692 Notes on U. S. Reports. 668

156 U. S. 667-673, 39 L. 574, NORFOLK, ETC., R. R. v. PBNDLB-
TON.

Syl. 1 (XII, 703). New corporation's exemptions must be directed.

Approved tn Matthews v. Board of Corporation Comrs., 97 Fed.
403, 404, liolding N. C. act 1899, empowering railroad commission to
fix rates, repeals, pro tanto, corporation charters giving companies
rate-fixing power; Adams v. Railroad, 77 Miss. 256, 24 So. 209,
holding charter granting to consolidated company all rights and
privileges but omitting " immunities '* of constituents, gives no
tax exemption; dissenting opinion in Minor v. Erie R. R., 171 N. Y.
575, 64 N. B. 457, majority upholding mileage-book act of 1895, as
to new corporations succeeding to rights of old corporation, having
right to charge specified fare.

156 U. S. 674-680. Not cited.

156 U. S. 680-692, 39 L. 578, DAVIES V. WAKELES.

Syl. 6 (XII, 704). Equity acts where legal remedy doubtfuL

Approved in Hunter v. Robbins, 117 Fed. 923, holding equity
has Jurisdiction of suit for accounting by former treasurer of cor-
poration and to charge a bank as trustee of the funds; Sullivan
Timber Co. v. Mobile, 110 Fed. 198, holding city is estopped to
destroy property rights in wharves erected over city's submerged
lands under implied license, where city long regulated and taxed
such structures; Brooks v. Laurent, 98 Fed. 655, holding married
woman Joining with husband in bill for relief based on lease of prop-
erty cannot thereafter claim lease void in execution; Vaughn v.
Strickland, 108 Ga. G61, 34 S. E. 192, holding where Justice from
another district presided after objection to the Justices of the
court but without objection as to him, party losing cannot question
his rights to preside.

Syl. 7 (XII, 70i). Party successfully taking certain position,
estopped.

Approved in The New York, 113 Fed. 811, holding claimant giving
claimant's bond to secure release of vessel cannot deny that bond
stands for vessel in case of success of libelant's suit to enforce
lien; Savings, etc., Co. v. Bear Valley Irr. Co., 112 Fed. 704. sus-
taining exceptions to answer setting up contracts and certificates
as basis of right, which contracts defendant in his cross-bill claims
are null; Sullivan Timber Co. v. Mobile, 110 Fed. 198, holding
equity has Jurisdiction of suit to protect right of landowner in
wharves erected over submerged lands of city under implied license;
Howard v. State. 115 Ga. 253, 41 S. E. G58, holding accused can-
not complain of instructions handed to court by counsel for de-
fense and given at his request; Weston v. Ralston. 48 W. Va. 187.

Notes on U* S. Reports. 15ti U. S. 692-713

36 S. £. 453, holding purchaser of land from vendor who In pre-
Tlous SQlt by city had admittM in plea that such land had been
d^lcated &B street cannot deny dedication; dissenting opinion In
Freer r, Darls» 52 W. Va, 19, 43 S. E. 171, majority holding party
plaintiff in hill to settle title and boundary of land Is not estopped
to deay on appeal that court had JorledJction.

Distinguished In Oakland Sugar Mill Co. v, Fred U, Wolf Co**
US Fed. 348, holding sugar mill operator sued for price of ma-
chinery placed therein cannot after time of Inspection has elapsed
«nd suit brought set up new defects In machinery; Hall v. Mc*
Nally, 23 Utah, 611, 65 Pac. 725, holding grantee, under deed in
ttttow after determination of delivery in his favor, not estopped
to usert title to fund in depositary's hands retained because of
dlipnted ownership; Hast v. Railroad, 52 W. Va. 408, 44 S, E.
159* boldlng railroad claiming in action for taking property for
md that it had dedicated street in lieu of rights of way not es-
topped from denying dedication in subsequent action.

156 U. S, 692-713, 39 L, 585, CITI2iENS' SAVING, ETC. ASSN. T.
PERRY CO.
Syl. 1 (XII, 704). Bond Issue not conclnsive of compliance.
Approved in Edwards v. Bates County, 117 Fed. 535, 53G. hold-
^ redtals In county bonds that same were issued by virtue of
ict of general assembly and authorized by popular vote as required
<Io not prevent showing noncompliance with law.
8yL 5 (XII, 705). County estopped after seventeen years,
Dtitingulshed in Clarke v. Northampton, 105 Fed. 314« holding
municipality paying Interest on bonds for twenty years may plead
Uielr Illegality where issue was void for failure to use words of
ititute in petition to county Judge,

CLVII UNITED STATES.

157 U. S. 1-46, 30 li. 601, BATE REFRIGERATING CO. v. SULZ-
BERGER.

Syl. 2 (XII, 706). Statute must be given effect intended.

Approved in M'Dermon v. Southern Pac. Co., 122 Fed. 675, holding
Mo. Rev. Stat 1899, S 2876, abolishing fellow-servant rule and
preventing contracts limiting liability, does not apply to contract
of Pullman porter; dissenting opinion in Ogden City v. Weber Co.,
26 Utah, 137, 72 Pac. 436, majority holding Rev. Stat. 1898, § 511,
requiring county boards to provide for indigent poor of county,
extended to paupers who happen to come into county.

Syl. 3 (XII, 706). Contemporary executive construction weighty.

Distinguished In Fairbank v. United States, 181 U. S. 311, 45 L.
874, 21 Sup. Ct 659, holding contemporary construction entitled
to no force where statute is plain.

Syl. 4 (XII, 706). Justice and convenience in statutory con-
struction.

Approved in Knowlton v. Moore, 178 U. S. 77, 44 L. 984, 20 Sup.
Ct 761, applying to legacy tax of war revenue act 1898 the rule
that unreasonable construction will not be given to statute is rea-
sonable one available.

Syl. 7 (XII, 706). American patent expiring with foreign.

Approved in In re Wolf, 122 Fed. 133, holding transaction
whereby creditor Ignorant of insolvency receives full payment
within four months of bankruptcy and furnishes mor«" goods is not
one receiving preference.

Distinguished in Hobbs v. Beach, 180 U. S. 30S. 45 L. 594, 21
Sup. Ct 415, holding where foreign patent was not obtained by
American patentee or by his consent American patent does not ex-
pire at same date.

157 U. S. 46-60, 39 L. 614, FROST T. WENIB.

Syl. 1 (Xll. 706). Repeals by implication not favored.

Approved In United States v. Lee Yen Tal, 185 U. S. 222, 46 U
883, 22 Sup. Ct 633. holding Chinese treaty of 1894 did not by
failure to provide method of procedure in deportation cases abro-
gate that established by act May 6, 1882, § 12; Croasdale v. Davis.
9 Kan. App. 192, 59 Pac. 668. holding act amending prior act, in
some particulars omitting portions of former, cannot affect such

1570]

571 Notes ou U. S. Reports, 157 U, S. GCHM

omitted portions; Augusta National Bank v. Beard, 100 Va. 701,
42 S. E. W8, balding married woman's act 1900, giving freedom
of coDtraet does not Impliedly repeal Code, § 2ij02, with wblcli
It Is not ioronsi stent
Syl 3 (XII. 707). Act 1880 opened lands of reservation.
Approved in United States v. Blend aur, 128 Fed. 913, boldini?
lands of Indian reservation made sabject to sale after removal
of Indians and extension of bomestead laws are part of public
domain witbln forest reserve act.

157 U. 8, 00-^72. 39 L. Pi20, THE LUDVIG HOLBERG.
Bfl 2 (XII, 707). Steamer need not stop on first sig^naK
Approved in Dynton v. Allen i>S. Co,. 110 FecL 592, bolding wliere
•t^wner la fog slowed up on bearing scbooner's fog signal and
^Ih reBsels were properly manned collieion was accidental; Dun*
ton r, Allen Lme SS, Co., 115 Fed. 251, bolding steamer aot at
fault for merely slowing down on bearing first signal wbere proxini-
ity did not indicate immediate danger.
8/1 7 iXU, 707). Vessel at fault cannot sbift blame.
Approved in The PbilHp MIncb, 128 Fed. 5S3, holding where gross
negligence of vessel is established such vessel must show distinctly
tiiat colliding barge was at fault; Mitclieli Transp. Co. v. Green,
13) Fed. GO, holding vessel clearly at fault has burden of proving
fault of other vessels; The Northern Queen, 117 Fed, 914, bolding
where fault is established against one vessel doubt as to other
veeiels l8 resolved in their favor; The Livingstone. 113 Fed. 881.
folding wbere fault of one vessel as established would have caused
eoliisJon any reasonable doubt as to management of other vessel
It resolved In Its favor; The Columbia. 109 Fed. fMj7, holding ves-
k1 whose fault was sutficient to cause collision catinot excuse
fcerself by raising doubt as to management of other vessel; The
Jdlonle. 100 Fed. 131» holding tug at fault for coIUsIoq with an-
diored steamer.

157 D. B, 12-M, 39 L. 624, BALTIMORE. ETC. R. R. v. MACKE^.

8yl. 2 {XII, 708). Ignorance of machinery defect not negligence.

AfiproTed In Patton v. Texas & P. R. R, Co., 179 U. S, 664, 45 L. 365,
21 Saj>. Ct 27S, holding locomotive fireman cleaning engine at end of
trtp iturtead of awaiting iaspection cannot recover for injury due to
dtfeetfve step; New Orleans, etc.. R. R. Co. v. Clements, 100 Fed.
4g?. holding nonobservance by night foreman in switch yards that
brake wheel was loose eansing fall and injury was not negligence.

SyL e (XI L 708). Railway mwst inspect foreign cars.

Approved In St. Louis, etc., R. R. Oo. v. Brown, 67 Ark. 307. 54
S. W* 869, holding company's duty to inspect cars extends to for-
eign cars In transit; Anderson v, Erie IL R. Co., <5S N. J. L. <Ha

157 U. S. 94-158 Notes on U. S. Reports.

54 AtL 831, holding company on receiving car must make Inspec-
tion sufficient to disclose defects ordinarily discernible; Eaton y.
New York, etc., R. R., 163 N. Y. 394, 79 Am. St Rep. 001, 57 N.
R 610, holding company owes employees Inspection of foreign as
well as domestic cars and inspector Is not fellow servant; dissent-
ing opinion in McGuire v. Bell Tel. CJo., 167 N. Y. 221, 60 N. B.
488, majority holding company using p<^es of another company
must have same Inspected.

Syl. 7 (XII, 708). General exception to charge is Insufficient.

Approved In Beaman v. Mining Co., 28 Utah, 147, 63 Pac 632,
holding Insufficient exception to instruction In gross by mere refer-
ence to number of paragraph.

SyL 8 (XII, 708). Jury may consider deceased's earning capacity.

Approved in Hunt v. Conner, 26 Ind. App. 54, 59 N. B. 54, hold-
ing In action, under Indiana statutes, for death of employee eTl-
dence of condition of deceased's children is admissible. See 85 Am.
St Rep. 840, note.

157 U. S. 94-124. Not cited.

157 U. S. 124-147, 39 L. 644, THE CALEDONIA.

Syl. 1 (XII, 709). Shipowner's contract impliedly warrants sea-
worthiness.

Approved in The Southwarlc, 191 U. S. 6, 24 Sup. Ct 2, holding
furnishing of safe refrigerating apparatus for transportation of
dressed beef cargo is part of obligation to furnish seaworthy ves-
sel under Harter act; Nord-Deutcher Lloyd v. President, etc., Ins.
Co., 110 Fed. 424, holding lighter which overturned in clear weather
due to water entering through poorly calked seams must be
deemed unseaworthy at beginning of voyage; Insurance Co. of
North America v. North German Lloyd Co., 106 Fed. 976, holding.
under Harter act February 13, 1808, as before, owner must show
that ship was seaworthy when voyage began.

Syl. 3 (XII, 710). Shipowner cannot limit liability for unsea-
worthiness.

Approved in The AggI, 107 Fed. 802, holding Hart^ act does
not relieve from unseaworthiness at commencement of voyage, but
only applies to unseaworthiness subsequently arising; The Mani-
toba, 10^ Fed. 154, holding shIpo>>'ner cannot escape liability for
failure to close port or maintain watch thereon by the exemption
of Harter act

(XII, 709). Miscellaneous.

Cited in The Arctic Bird, 109 Fed. 174, holding written contract
for shipment of goods cannot be changed by subsequent bill of
lading where such chnn^es were not brought to shipper's notice.

157 U. S. 148-153. Not cited.

573

Notes on U, S, Reports. 157 U. S. 153-1G8

157 U. S. 153, 154. 39 L. 654. XEIL v. PEXXSYLVANIA CO.

8yl 1 (SlU TIO). Bemoval petition cannot supply citizenship
allegatloQ.

Approved In Dlnet v. Delavan, 117 Fed. 978, holding sufficient
allegation in removal petition tliat petitioner " was and Is resident
of dty of Chicago, State of Illinois;" Gree v. Heaston, 154 Ind.
129» 56 N. B. 88, holding removal petition stating diverse residence
of parties la insufficient; Thompson v. Southern Ry., 130 N. C.
142, 41 8, E- 10, holding removal petition stating that petitioner
l» corporation organized under Virginia law, hut not stating that
U \B nonresident of North Carolina, is insufficient.

157 U. 8. 154-100, 39 L. 654. BEUTTELI, v. MAOONB.

SyL 2 fXII, 710). Parties asking for charge are bound thereby.

Approved in United States v. Bishop, 125 Fed. 1S3, holding where
pwtieB request peremptory Instructions for them they are estopped
to question verdict save for error in law or insufficiency of evi-
<l«ice: Bradley Timher Co. v. White, 121 Fed. 7S4, holding where
boti parties request direction ^f verdict, the verdict as directed
*b€re supported by evidence will not be reversed; Bank v. Hayes,
etc, (J4 Ohio St. 101, 59 N. E. 893, holding where each party re-
Qoms direction of verdict for him both are concluded by the ver-
<ilet as directed.

157 0. S. 160^168, 39 L. 657, FRISBIE v. UXITED STATES.
Bjl 3 (XI I^ 711). Indorsement Is no part of charge.
Approved In dissenting opinion in State v. McBroom, 127 N. 0.
5l7i 37 8, E, 19G, majority ordering arrest of judgment where lu-
dietjuent twr perjury was not Indorsed by grand jury as true hill.

IMstinguished In State v. McBroom, 127 N. C. 532. 37 S. E. 194,
Mldlng lodgment will be arrested where Indictment was not In-
teted as *' tt-ue bill.*'
SyL 5 (XII, 711). Freedom of contract limited by public policy.
Approved in Patterson v. Bark Eudora, 190 U, S. 174. 23 Sup. Ct.
822, 47 U 1006. upholding act December 21, 1808. | 24, prohibiting
prvpftjinent to any seaman of wages in advance.
Syl. 7 (XII, 711), Congress grants or withholds pensions at will,
Pfirored In In re Opinion of Justices, 175 Mass. 601. 57 N. E.
tkolding State Legislature has power when public policy de-
to appropriate money raisf»d by taxation to pay widow or
tAtive of public officer dying In office.
gjrL 10 (XII. 711). That excess is unknown should be alleged.
Approved In Foerster v. United States, tlG Fed, 8<j2, upholding
iBdlctmeDt for selling llfjuors ** to divers Indians to grand jurors
iWD," Indians of the Ponca tribe of Indians: Jewett v. United
100 Fed. 837, upholding Indictment, under Eev. Stat..

157 U. S. 168-183 Notes on U. S. Reports. 574

S 5209, for punishment of national bank officer willfully misapply-
ing assets, charging willful conversion by means unknown to Jury.
Syl. 13 (XII, 712). Indictment — Against "form of statute- un-
necessary.

Approved in Shiver v. State, 41 Fla. 635, 27 So. 38, holding, under
Bev. Stat, S 2893, providing that indictments shall not be quashed
for defects in form, omission of formal conclusion of indictment
Is not fatal; State v. Minford, 64 N. J. L. 522, 45 Atl. 818, holding
indictment omitting formal conclusion required by the Constitution
may be amended to conform thereto.

157 U. S. 168-183, 39 L. 660, SHIELDS v. COLEMAN.
Syl. 1 (XII, 712). Word " certify " unnecessary in allowing appeaL
Approved in Arkansas v. Schlierholz, 179 U. S. 600, 601, 45 L.
337, 21 Sup. Ct 231, holding Federal question not sufficiently pre-
sented in order allowing appeal stating question whether District
Court had Jurisdiction to discharge land officer pr whether It should
remand; Huntington v. Laidley, 176 U. S. 676, 44 L. 634, 20 Sup.
Ct 529, holding Supreme Court has Jurisdiction of direct appeal
from Circuit Court where decree order allowing same, and certifi-
cate, show only question decided was that of Jurisdiction.
Syl. 3 (XII, 712). Allowance " solely on Jurisdiction " is sufficient
Approved in Filhlol v. Torney, 194 U. S. 357, 24 Sup. Ct ,

holding no sufficient certification of Jurisdiction warranting direct
appeal is made where assignment is directed to Jurisdiction, and
merits and petition prays reversal; Excelsior Wooden Pipe Co. v.
Pacific Bridge Co., 185 U. S. 285, 46 L. 913, 22 Sup. Ct 682, holding
order allowing appeal " from the final order and decree dismiissing
said suit for want of Jurisdiction " shows that Jurisdiction was In
issue.

Syl. 3 (XII, 712). Federal court cannot oust State receiver.
Approved in Carling v. Seymour Lumber Co., 113 Fed. 480.
holding appointment and possession of State receiver appointed
in foreclosure proceedings, under Ga. Code, S 2770, will not
be questioned by another court; Phelps v. Mutual Reserve, etc.,
Assn., 112 Fed. 465, holding Federal court will not enjoin receiver
from acting under appointment by State court first acquiring Juris-
diction of subject-matter; In re Endl, 99 Fed. 916, holding constable
seizing under process from State court property peaceably acquired
by trustee in bankruptcy will be ordered to restore same forth-
with; Colston V. Southern Home, etc., Assn., 99 Fed. 311, holding
Federal court will not entertain Jurisdiction of suit by stockholders
for appointment of receiver where suit for same purpose is pend-
Ing in State court: Mishawaka Mfjr. Co. v. Powell, 98 Mo. App. 540,
72 S. W. 725, holding after appointment of trustee in bankruptcy

SiS

Notes on U. S. Reports. 15T U. S. lS:i-i*jo

District Coarf 8 Jurisdiction Is exclusive and sheriff cannot take
property nnder writ of replevin from State court

Distin^isbed In Louisville Trust Co. v. Knott, 191 U, S. 236,
34 Sup. Ct. 123, holding question whether Federal court will ad-
minister estate after suit begun in State court Is not Jurisdletlonal
question warranting direct appeal under Judiciary act ISQl, | 5;
Knott T, Bvening Post Co., 124 Fed. 352, 353. holding suit in Sfate
«>urt for Inspection of corporate books does not require Federal
ctjcrt first acquiring jurisdiction of res to anrrender to subsequent
8ttte receiver: Hale v. Coffin, 114 Fed. 575, holding where admin-
UtrntJoD of estate In State Fi-ohate Court has been completed
and property left its control Federal court has Jurisdiction of suit
by creditor of deceased; In re Macon Sash, Door, etc*, Co., 112
Fed. 334, holding comity cannot Impart validity to order appoint-
ing receiver under Insolvency proceedings in State court where
wth tBnull and void; First Nat Bank v. BnnOng, 7 Idaho, 33, 34,
50 Pac, 1106, denying motion for rehearing to receiver who had
w> personal interest in order from which appeal was sought
{XII, 712). Miscellaneous.

Cited In Atiantlc Trust Co, v. Dana, 128 Fed. 221, holding decree
owlost receiver Intervening in foreclosure suit as directed iu order
•^f appointment binds all parties to suit In which tie was appointed.

15T tJ. S. 183-187, 39 U 665, SEEBERGEE v, WRIGHT, ETC..
MFG. CO,

^rl 2 (XII, 713). Known fixed percentage of impurities deducted.

I>iitiagnished In United States v. Reid, 120 Fed. 243, holding
Sported currants In casks are diitiable nnder paragraph 2f>4, act
W» to "Cnrrairta, Zante or other/' with no deduction for Im-

^* D, 8. 187-195, 39 L, CC7, STOKES v. UNITED STATES,

8|L 1 (XU, T13). Essentials of indictment for conspiracy.

Approved in United States v. Clark, 121 Fed. lf)l, holding de-

^*ttire indictment charging defendants Tvith falsely pretentling to

^ prepared to give Insti'uctlon by mail» without alleging that

niali« would be so used; Stewart v. United Stiites, 110 Fed. 94,

twldiof Insufficient indictment alleging scheme to defraud show-

tJig niAfUng of letter long after recipient had wagered his money

nadet the scheme; Harman v. United States, 116 Fed. 350, holding

•chnue to extort money on threat of publishing charging plain-

ttlT with commission of crimes is scheme to defraud within U<n'.

tat, i ri4W; United States v. Post, 113 Fed. So3. holding Insulh-

ctot indictment charging defendant with devising schc*me to

dcl!rand by pretending to cure diseases by mental science* wlth-

4mt disproving defend a ufs power; Milby v. United States, 109 Fed.

157 XJ. S. 195-209 Notes on U. S. Reports. 578

640, 642, 643, holding insufficient indictment, under Rev. Stat,
S 5480, for devising scheme to defraud, setting forth defendant's
offer to sell counterfeit money, without charging Intent to retain
counterfeit

Distinguished in United States v. Ryan, 123 Fed. 635, holding
correspondence between parties to conspiracy with reference thereto
constitutes no offense under Rev. Stat., S 5480.

Syl. 4 (XII, 713). Disputed handwriting compared with docn
ments in suit.

Distinguished In Withaup v. United States, 127 Fed. 535, holding
erroneous admission on question of handwriting in forgery case
papers signed by defendant in other cases, but not otherwise rele-
vant to case at bar; University of Illinois v. Spalding, 71 N. EL
166, 51 Atl. 732, holding genuine signatures of defendant attached
to papers otherwise irrelevant are admissible to prove genuineness
of his signature.

(XII, 713). Miscellaneous.

Cited in Lehman v. United States, 127 Fed. 47, holding where
objection to repugnant averments of Indictment not taken by de>
murrer, motion to quash or by exceptions, defects are cured by
verdict

157 U. S. 195-198, 39 L. 670, MORGAN v. POTTER.

SyL 1 (XII, 713.) Guardian's authority Umited to State oT ap-
pointment

See notes, 89 Am. St Rep. 271, 272, 273.
157 U. S. 19S-201, 39 L. 671, MICHELS v. OLMSTBAD.

SyL 1 (XII, 713). Plaintiff Cannot deny inadmissibility of evi-
dence previously excluded.

Approved in The New York, 113 Fed. 811, holding claimant giv-
ing claimant's bond for release of vessel pursuant to order of court
setting aside sale for fraud cannot deny that such bond stands for
vessel unaffected by sale.

Distinguished in Hart v. Railroad, 52 W. Va. 408, 44 & B. 159,
holding evidence of dedication of street offered by company in prior
suit for ta]i:ing plaintiff's laud does not estop it from denying sncb
dedication in a subseiiuent suit

157 U. S. 201-209. 39 L. GT2, MEXICAN NAT. R. B. v. DAVIDSON.

Syl. 2 (XII. 714). Assignee's suits under Acts 1887 and 1789.

Approved in North American, etc., Co. v. Morrison, 178 U. S.
269, 44 L. 10C4, 20 Sup. Ct. 872. holding plaintiff cannot add to
own claim for jurisdictional amount claims assigned by persons
whose citizenship does not appear; Hoadley v. Day, 128 Fed. 303,
holding suit to foreclose trust deeds securing notes with other in-

577

Notes on TI. S. Reports.

157 U. S* 201-209

cidental relief 1b suit to collect money due on notes within judl-
dtry act 1887: Smitli* v. Packard. 98 Fed. 797, holding Illlnola
Btitute giring plaintiff In attachment right to sue on forthcoming
bond does not make him an assignee within Federal Judiciary act

S7L 8 (XII, 714), Act 1887 restricts Federal jurisdiction.

Approved In Columbia Wire Co, v. Boyce. 1(M Fed. 174^ hold-
ing act June 6, 1900, amending Circuit Cotirt of Appeals act» wlth-
oot mention of prior amendment of 18^5, operates to repeal such
prior amendment.

87I 4 (XII, 714). Jurisdiction under section 2 limited to section
I act 1887.

Approved In Glass v. Concordia Parish Police Co., 176 U, S. 210.
^ U 437» 20 Sup. Ct S47, holding purchaser of warrants at Ju-
dicial sale, under authority of Probate Court, Is aasignee within
i« March 3, 1875; Weldon v. Pritzlen, 128 Fed, 613. holding fore-
doaore suit by mortgagee against nonresident mortgagor and resl-
dest creditor claiming lien on property is not removable; Hyde v.
VlftorJa Land Co.. 125 Fed. 972, holding suit Involvlog diverse
dtizeaship and Jurisdictional amount, arising in county lying In
t^o Judicial districts, may be removed to either district; Fouil£
T. Gray. 120 Fed. 157, 159. 161, 162. 163, holding suit brought In
State of which neither Is resident Is not removable ou ground of
diverse citizenship, under act 1887-88, except where parties con-
Bent; Eddy V. Casas. 118 Fed. 3G4, holding suit by citizen of United
States against a citizen of Me.xico residing in Texas cannot be
rtmored to Federal court by defendant on ground of alienage;
We«t Virginia v. King. 112 Fed. 370, holdiag suit by State to en-
force forfeiture of lands and to sell game for school purposes la
HOC cognizable originally in Federal court nor removable thereto;
Terre Haute v. Evansvllle E. li,. 106 Fed, 549, holding, under

K~ Uclary act 1887, § 2, cause cannot be removed to Federal court
tocml prejudice where no diversity of citizenship exists; M'Kown
Kaxksas & T. Coal Co,. 105 Fed, 608, holding no suit can be
lOTed, under act 1887. to Federal court which could not originally
re been Instituted In that conrt; Wahl v. Franz. 100 Fed, 681,
^ tioldlng proceeding for probate of will Is not " suit of civil na-

aire mt law or in equity." within Judiciary act 1888; Duff v. Hll-
dreili. 1S3 Mass. 441. 67 N, E. 357, bolding suit may be removed
to Federal court where neither Is resident of district

Dtetingulshed In Pepper v. Rogers. 128 Fed. 989. 990, 991. hold-
iBif portion of section 1. Jodiciary act of 1888. which prevents trial
of cItU suits In districts other than that of residence la not juris-
dlecJaiMil and may be waived; Union Terminal Ry. Co. v. Chicago,
& A Q* R. R. Co., 119 Fed. 213, 214, 215. holding proceeding by
imllroad, under Missouri statute, for coudemaatlon of right of way
Vol. ill — 37

157 U. S. 209-212 Notes on U. S. Reports. 578

may be removed, although Circuit Court had no original Jurisdic-
tion thereof; Myers v. Chicago & N. W. Ry. Co., 118 Iowa, 319,
320, 322, 91 N. W. 1079, holding suit for condemnation of land, un-
der Iowa Code, S 1999, wherein all elements necessary for removal
exist is removable, though required to be instituted tn State
courts.

Syl. 5 (XII, 714). Question of Jurisdiction cannot be waived.

Approved in De Lima v. Bidwell, 182 U. S. 174, 45 U 1047, 21
Sup. Ct 744, holding defendant after petitioning for removal may
show that State court had no Jurisdiction or that facts stated no
cause of action; Central Grain & S. Exch. v. Board of Trade, 125
Fed. 466, holding Federal court has no Jurisdiction of suit against
foreign corporation not shown to be doing business within State
by service upon agent of corporation; Wahl v. Franz, 100 Fed.
682, 683, holding proceeding for probate of will is not ** suit of
civil nature at law or tn equity " within Judiciary act 1888b

Syl. 6 (XII, 714). Section 2, act 1887, refers to first part section 1.

Approved in Empire Min. Co. v. Propeller, etc., Co., 106 Fed.
902, holding privilege given by Judiciary act 1887 of suit in dis-
trict of residence is not Jurisdictional and is waived by filing re-
moval petition; Virginia, etc.. Chemical Co. v. Sundry Ins. Co.,
IDS Fed. 454, holding Virginia corporation may sue on policy pay-
able to insured or to it ** as interest may appear " and defendant,
a foreign corporation, may remove suit; Whitworth t. Illinois
Cent. R. R. Co., 107 Fed. 558, 560, holding defendant appearing In
State court and filing removal petition waives right to trial In «
district of residence and cannot obtain removal of suit

157 U. S. 209-212, 39 L. 675, CHICAGO, ETC., R. R. v. PONTIUS .^
Syl. 1 (XII, 714). Uniform laws protecting employees are valid.
Approved In Callahan v. Mer., etc., Ry., 170 Mo. 486, 492, 7 3[
S. W. 211, 214, 94 Am. St. Rep. 753, 759, upholding Rev. Sta _
181)f^, § 2873, making railroad liable for all damages of servan
due to negligence of fellow servants; Orr v. Southern Bell T^^^
Co., 132 N. C. 695, 44 S. E. 403. holding telephone laborer lowfe=ei
ing pole without " spikes " and ** dead men ** does not assuizzsK
risk of injury therefrom; Coley v. North Carolina R. R., 129 3'.
C. 410, 40 S. E. 197, upholding act February 23, 1897, prohibitk.X3^
contracts of railway employee for assuming risk from defectl'Vi^
machinery or negligence of fellow servants; dissenting opinion tif
Sams V. St. Louis, etc., Ry., 174 Mo. 99, 73 S. W. 699, maJorfO
holding Mo. Acts 1897, p. 96, making every *• railroad corporation "
liable for injuries of operatives occasioned by fellow servant's nef-
ligence inapplicable to street railways.

Notei! on TJ. S. Reports. 15T U. S. 212-2n

8yl 2 (XII, 714). Kansas statute protects railroad bridge builder.

A^pproTed In Callahan r, Mer., etc., Rj., 170 Mo. 403, 71 S. W.
214. 94 Am. St Rep. 760, upholding Rer. Stat 1899. § 2ST3, making
rtilroads liable for Injuries of servanta engaged In operating road
due to negUgeDce of fellow servants

Distinguished in Ballard v. Oil Co., 81 Miss. 570, 572. 95 Am. St.
B«p, 488, 491. 34 So. 553, 554. holding unconstitutional Laws 1898.
5- 85, glTlng " every employee of every corporation " right to sue for
Snlurles from defective appliances or negligence of fellow servants.

15T U. 8. 212.-219. 39 U 677. BAKER v. WOOD,
8yL 2 (XII, 715). Estoppel apply tog to bona fide purchasers.
See 78 Am. St Rep. 52, note.

15T U, S. 21^225, 39 L. 679, NEW ORLEANS, ETC., R. R. CO.
T. LOUISIANA.

8yL 1 (XII» 715). Substitution of remedies does not impair
ortJtract

Approved in Jack v. Cold, 114 Iowa, 355, SO N. W. 376, holding
C^e. I 4066, altering remedy or method of foreclosure does not
tSm rights of parties and is valid.

8yl 2 (XII, 715), State may give summary remedy.

Approved In State v. Railroad. 62 La, Ann, 1577, 2S So. 114,
Wdiiig act No. 133, 188S, gives municipalities an additional, more
••mary remedy for enforcement of contracts for paving or re*
P«Miig of atreeta,

^J*' U, S» 225-229. Not cited.

^7 U. 8, 229-271, 39 L. 683, CALIFORNIA T. SOUTHERN PAC.
CO.

8yl I (XII, 715). Parties whose rights are determined are neces-
Hry.

Appmved In Minnesota v. Northern Securities Co., 184 U. R 237,
**I*517. 22 Sup. Ct 323, holding In suit between State and cor-
^don owning capital stock of two railroads to enjoin such cor-
^*Uon from controlling sach roads the railroads are necessary
W«t; Fairfield v. Rural, etc.. Dist. Ill Fed. 453, holding In Bull
••ilqiilre defendant to account for amount of drafts drawn by
***otiBd received by defendant through conspiracy agent is neces-
^ party; Percy Summer Club v. Astle, 110 Fed. 488, holding
iptne order permitting attorney -general to Intervene in suit to
''•Wo trespass will not be stricken out where court would be
'«rtwl to re-enter it; Eldred v. American Palace-Car Co., 105 Fed,
<3©, holding corporation is necessary party to suit by mluorlty
'i<^'kliolder to set aside transfer of corporate property; YarrielL
^ Fettoo, 104 Fed. 162, 102 Fed. 370, holding objection to remoraJ

157 U. S. 271-300 Notes on U. S. Reports. 680

that all defendants have not Joined in petition is yalid whether
cause rests on constitutional grounds or on diverse citizenship;
Moore v. Jennings, '47 W. Va. 189, 34 S. E. 797, holding
all owners of fee of both lots are necessary parties in suit by
lessors and lessees of one against lessees of the other to enjoin
trespass and determine boundary; Castle v. Madison, 113 Wis. 354,
89 N. W. 159, holding, under Rev. Stat. 1898, riparian owners on
lake are necessary parties In suit for abatement of lake dam
where such parties claim prescriptive rights to dam; dissenting
opinion in South Dakota v. North Carolina, 192 U. S. 352, 24 Sup.
Ct. 290, majority holding individual owners of bonds issued by
North Carolina and secured by mortgage are not necessary par-
ties to suit by South Dakota as owner of other such bonds.

Distinguished in Kercher v. Pederson, 117 Wis. 72, 93 N. \V.
814, holding in suit by taxpayer to restrain payment of sum
awarded by county board on condition that claimant's attorney
should agree to maximum fee, such attorney need not be Joined.

Syl. 4 (XII, 710). Though State party, original Jurisdiction need
not attach.

Approved in Louisiana v. Texas, 176 U. S. 16, 44 L. 353, 20 Sup.
Ct. 23G, holding enforcement of health laws by health officer of
one State resulting in embargo on commerce of another State In-
volves no controversy between States.

157 U. S. 271-280. Not cited.

157 U. S. 281-28G. 39 L. 702, UNITED STATES V. SWEENY.

Syl. 2 (XII, 716). Volunteers and regulars distinguished.

Approved in Deming v. M'Claughry, 113 Fed. 644, holding Told
jud^^ment of court-martial composed of officers of regular army on
trial of volunteer.

157 U. S. 280-300, 39 L. 704, COCHRAN v. UNITED STATES.

Syl. 3 (XII, 717). Indictment containing every element of offense^
sutticient.

Approved in Lehman v. United States, 127 Fed. 45, sustaining
np:ainst charge of repugnancy indictment for using mails to dgg^.
fraud, charging in same count that defendant conspired " by ^^' ^
\ng and pretending " to deal in " green articles;" United States "^
M'Clure, 107 Fed. 271, sustaiuing indictment against cashier ^
nntioual bank for embezzlement In violation of Rev. Stat, | 520^._
I>roese v. United States, 100 Fed. GS8, sustaining indictment und^Bi
national banking laws following words of statute charging defeiBitt^
:int with embezzling and misapplying funds without specifyl "wm,
manner; McKnight v. United States, 97 Fed. 213, sustaining coczrvj
of indictment charging defendant as president of national baoJic
** caused " false entry of deposit where no deposit had been raa^Jet.

581

Notes on D. S. Reports. 157 U. S. 301-320

SjL 7 (XII, 717), Esseotlals of indictmeat stated,

Approved In United States v. Booker, 98 Fed. 292, holding national
bttok president cannot be convicted, under Rev. Stat., § 5209, for
maklLg false entries in report to comptroller for simply signing
report contaioing same.

SyL 9 (XII, 717). Nonmatured guaranteed note creates liability.

Approved In State v. Slieets, 20 Utah, 108, 72 Pac, 335, holding,
under section 202, Rev. Stat 1808. consent of majority of council
was nwessary to appointment of chief of police at salary Hied by
ordlaaace, sueh appointment creating contingent liability,

ISi D, S. 301-311, 39 L. 709, REAGAN v. UNITED STATES,
SyL 3 (XII. 718). Misdemeanant entitled to three peremptory

Approved In Consldlne v. United States, 112 Fed. 344, 345,
folding Rev* Stat., § 819, allows defendant only three peremptory
*^IJ*fflge8 in prosecution, under Kev. Stat, § 5478, for breaking
^to poet-oifice, such being only statutory offense.

^Tl 6 (XII, 718). Defendant testifying is like other witnesses.

^PDroved in Louisylile, etc., Ry. Co. v. ileClish, 115 Fed. 270,
rolling evidence of good character for truth not admissible be-
**^e testimony of witness has been contradicted by that of other

^^ tr. S. 312^20, 39 L. 713, SANFORD FORK, ETO., CO. T.

SOWE.
^yL 1 (XII, 718). Debtor contemplating InsolTency may prefer

"Approved In Nappanee Canning Co. v. Reld, Murdock. etc., Co.,
"^ itid. 620, 64 N. E, 872, hold lag insolvent private manufacturing
'^**Porallon may prefer creditors on whose claim directors were
^^^^tles,

^^Utlnguiflhed ha dissenting opinion !n Nappanee Canning Co.

^- I^t^id, etc., Co., 159 Ind. 635. (54 N. B. 1117. majority hoidinj? in-

^*^veiit private manufacturing corporation may prefer creditors

^ ^liose claims directors were sureties.

^yl 2 (XII, 718). Corporate mortgage to directors to continue

Approved in Coler v. Alien. 114 Fed. iJll, holding corporation
^lllif a going concern, though iu8o!vent» may lawfully execute
^'^^ngsge to secure advances to carry on business if done in good
^^tb; CUIck V, Fuller. 114 Fed. 2t), 30. sustaining mortgage given
^i^uji fl<ie by corporation to secure boodn given to pay indebtedness
'^Ninkg In which directors and stockholders were Interested, though
^'WlKtnition Insolvent; Central Trust Co. v. Worcester Cixle Mfg.
^•t Um I'Vd. 493. bohilug suhseguent creditors cannot attack bonds

157 U. S. 320-370 Notes on U. S. Reports. 582

and mortgage executed by corporation in accordance with votes
of directors and stockholders; Converse v. Sharp, 161 N. Y. 577,
56 N. E. 71, sustaining contract of directors after conference of
persons Interested whereby directors made loan to carry cinrpora-
tion over Its embarrassment; New Memphis, etc., Ck>. Cases, 105
Tenn. 286, 60 S. W. 210, sustaining pledge of bonds of solvent cor-
poration by its directors to secure pre-existing indebtedness of
creditor who was also director; dissenting opinion in Clark v.
Colton, 91 Md. 237, 46 Ati. 400, majority holding payment of ite
president's check for large amount and retaining note indorsed
by its officers by bank which had been insolvent, and was thereby
made hopelessly so, is preference.

157 U. S. 320-326, 39 L. 717, JOHNSON v. UNITED STATES.

Syl. 1 (XII, 719). Court may instruct motive not necessary.

Approved in State v. Lucey, 24 Mont 300, 61 Pac. 996, holding
presence of motive is not indispensable to secure conviction.

157 U. S. 327-342, 39 L. 719, BARDEN v. LAND, ETC., IMP. CO.

Syl. 1 (XII, 719). Federal courts enforce State equitable rights.

Approved in United States Life Ins. Co. v. Coble, 98 Fed. 70A,
holding Federal court of equity will entertain suit by nonresident
life insurance company to cancel policy for fraud where legal
remedy in State court is inadequate; dissenting opinion in Wahl
V. Franz, 100 Fed. 701, majority holding proceedings for probate
of will Is not " suit at law or in equity " within judiciary act of
1887.

Distinguished in Smith v. Reeves, 178 U. S. 444, 44 L. 1144. 20
Sup. Ct. 922, holding consent given by State by Cal. Pol. Code,
§ 36(»9, to be sued in own courts does not extend to suit in Federal
courts.

157 U. S. 342-348. 39 L. 725, WALTON v. MARIETTA CHAIR CO.

Syl. 1 (XII, 719). Supreme Court amending writ of error.

Approved in Estate of Nelson, 128 Cal. 245, 60 Pac. 773, holding
mistal^e in directing notice of appeal from probate decision to at-
torney for " executor " instead of " executors ** may be amended.

Syl. 2 (XII, 720). Writ should state Christian name.

Approved In Slingluff v. Gainer, 49 W. Va. 9, 37 S. B. 772, con-
demning use of initials Instead of full Christian name in legal
process.

157 U. S. 348-367. Not cited.

157 U. S. 3G8-370. 39 L. 736, COLVIN v. JACKSONVILLE.

Syl. 1 (XII, 720). Appeal on Jurisdiction requires certificate.

Approved in Richards v. Michigan Cent R. B. Co., 186 U. &
479. 46 L. 1259, 22 Sup. Ct. 942, reaffirming rule.

58a

Notes on U. S. Reports.

157 U, S. 370-S8C

157 tJ. 8, 370, 371, 3» L. 736, STEVENS 7. NICHOLS.

8jl 1 (XII, 721). Hilling on motion to amend pleadings noD-
rettewaWa

Aixproved in Yazoo & M. V, H> R. Co. v. Adams, ISO U. S, 9, 45
L 4(/i. 21 Sup* Ct 242, holding Federal question set up In pleas
tiled without leave of coon as required by State practice is pre-
sented too late.

15T C. S. 372-386, 39 L. 737, ORCHARD v. ALEIXANDER.

SyL 2 (XII, 721). Departmental practice construes, never nnlU-
Bei. stttute*

Approved In Hoover v. Sailing, 102 Fed. 720, holdlog, under 20
StiL 89, as construed by land department, applleauts for timber
lind must swear of personal knowledge that sucli land la unfit
for cultivation.

^l 5 (XII, 721). Due process implies bearLug and notice.

Approved In Delles v. Second NaL Bank, 7 Wyo, 72, 75 Am. SL
tq». 8T&, holding cancellation of entry for fraud made without
1 tearing Is void and eoUaterally attackable,

Syl 6 (XII, 721). Land department determines pre-emptloner'i
right

Approved in Gage v. Gunther, 13Q Cal. 346, 89 Am. St Rep. 148»

€B i*ac* 713. holding decision of secretary of interior on contest

prellinliuiry to issue of patent may be re-examiued by successor;

tiiwrenee v. Potter, 22 Wash. 42, 40, CO Pac. 1dOi 151, holding

Rer, SlaL U. S., § 2297, prescribing certain causes for contest

liefore land department, does not limit departmenf s Jurlsdietlon

thereto; Farm Investment Co. v. Carpenter, 9 Wyo, 143, 87 Am.

St. Rep. &I0, 61 Pac. 207, upholding act December 22, 1S90, author- •

Ixln^ State board of control to adjudicate priority of water rights,

Syh 7 (Xll, 721). General oflacers may cancel fraudulent entry.

Approved In Cosmos Exploration Co. v. Gray Eagle Oil Co.,

U. 8. 309, 23 Sup. Ct 096, 47 L. 1071, holding land department

Jurtsdlotioo to eet aside decisions of local officers relating to

DtA to land In lieu of forest reserve lands, affirming 112 Fed.

13, affirming 104 Fed. 44; Gimranty Savings Bank v. Bladow,

li€l r, S. 452, 44 L. 542, 20 Sup. Ct 42G, liolding cancellation of

after notice and hearing accorded to en try man prevents hts

ee fronj setting up entry as prima facie evidence of entry-

s claim; McCord v. Hill, 111 Wis. 526, 87 N. W. 483, holding

IcAtioD for confirmation of commuted pre-emption enti*y may

;j^ Buide directly to secretary of Interior whose decision Is final

mm of department See 75 Am. St. Rep. 881, note.

157 U. S. 386-654 Notes on U. S. Reports. C

167 U. S. 386-427, 39 L. 742. RALU v. TROOP.

SyL 4 (XII, 722). Fire — Municipal law governs destmction
yessels. *

Approved in dissenting opinion in Workman v. Biaycnr, etc.
New York, 179 U. S. 590, 45 L. 332, 21 Sup. Ct 227. majority ho
ing city liable, under maritime law, for injury occasioned by a
ligence of servants in charge of fireboat

Syl. 10 (XII, 723). Lien against vessel for tort.

Approved in Harrison v. Hughes, 125 Fed. 869, holding rem
injured by running tnto breakwater due in part to fault of e«
pulsory pilot cannot recover f uU damages.

IMstinguished in Homer Ramsdell Transp. Go. v. La Oompa^
Gen. TransatlanUque, 182 U. S. 414, 45 L. UOO, 21 Sup. Ct
holding shipowner not liable for injury to pier caused by il<
gence of pilot taken under N. Y. compulsory pilot law
1882; dissenting opinion in Workman v. Mayor, etc., of New Yi
179 U. S. 586, 45 L. 330, 21 Sup. Ct 225, majority holding i
liable, under maritime law, for injuries to another vessel occasion
by negligence of servants in charge of fireboat

(XII, 722). MisceUaneous.

Cited in Homer Ramsdell Transp. Co. v. La Compagnle CI
TransatlanUque, 182 U. S. 413, 414, 45 L. 1160, 21 Sup. Ct G
835, holding shipowner not liable for injury to pier caused by m
negligence of pilot taken under compulsory pilot law of New Y<m
1SS2, chap. 410.

157 U. S. 427, 428. Not cited.

157 U. S. 420-654, 39 L. 750, POLLOCK v. FARMERS' LOA*
ETC., CO.
Syl. 1 (XII. 724). Equity may prevent threatened breach of tn*
ApprovtHl in Cotting v. Godard, 183 U. S. 113, 46 L. 110, 22 S«
Ct. 44, holding suit by stockholders against corporation and attorn*
general not collusive because stockholders agreed that stattf
in question was unconstitutional; New Albany Water-Works
Louisville Bauking Co.. 122 Fed. 778, holding Federal court
eiiuity has jurisdiction of stockholders* bona fide bill to restr^
alleged breach of trust by directors of corporation; Citizens* Ba«
etc., Co. V. Union Min., etc.. Co., 100 Fed. 99, holding Intervene
creditor, uhere defendant admits indebtedness and Insolvency m
receiver has been appointed, cannot object that complainants ^
mere coutract creditors: Mareuse v. Gullett Gin Co., 52 La. AJ
lam, lotH'i. 27 So. SoO. S'a. holding equity will not appoint spec
receiver to ol>tain relief against officers and directors of corporate
for unlawful diversion of nu>uey since stockholder has right (
action; Watkins v. North American Land, etc., Co., 107 La. 11
;U So. C>87. holding equity will entertain suit by stockholder again

SS5

Notes on U. S. Reports. 157 IT. 8. 429-654

c^orporatlon where corporation has sold 15 per cent of realty for
one-seventh its value, aggregating loss of ^2J(X)v(X>0,

Distinguished In Corbus v. Gokl Mining Co., 187 IT, S, 459, 23
Stjp. Ct 15S» 47 L. 258» holding suit In equity by stockholder against
crorporatloD to restrain It from paying Alaskan license tax was
IJroperly dismlsaed, affirming 1)9 Fed. 335, 336i 337.

Syl 8 (XII, 724). Btare dedsis applies to decisions on same point
Approved in Knott y. Evening Post Co,, 124 Fed. 351, holding
Institution of prior State suit for inspection of company's books
cities not require receiver of Federal court first acquiring Jurisdic-
Xiou of res to surrender to subsetiuent State receiver; King v. Pom-
eroj, 121 Fed* 295, holding general statements not required by
Tacts In Issne are not authoritative as to later cases; State v. Lewis,
e» Ohio St 208, 60 N. E. 134, holding doctrine of stare decisis can-
not interfere with overruling of clearly erroneous decision on cou-
■dtutional question under which no rights have become vested.
S«€ 73 Am. St Rep. 104, note.

SyL 10 (XII, 725). Substance not form determlaes constitn-
Uoaality.

Approved Ui"Patton v, Brady, 184 U. S. 618, S19, 46 L- 718, 719,
22 Sup. Ct 49(3, 497, iioldlug tax levied on tobacco imposed by
^'ar revenue act 1S98, in lieu of existing tax, is an excise.
Syl !1 (XII. 725). Act 1894 taxing rents la Invalid,
^proved in Fairbank v. United States, 181 U. S. 296, 45 L. 808.
^^ Sup, Ct 653, holding unconstitutional stamp tax Imposed upon
''^i-eign bill of lading by act June 13, ISOS.

IJUiLngnisbed In Iowa v. Santee. Ill Iowa, 8. 82 N. W. 447, hold-
^**^« lavalld exception of Wolsbach lamps from Code, § 2508, pro-
^i letting burning of certain grade of petroleum, did not invalidate
*^«a^re statute.

^)'l 12 (XII, 725). Congress cannot tax State instrumentalities.

approved la Pluminer v. Coler, 178 U. S. IIT, 118, 44 L, 1001,

^*"*U2, 20 Sup. Ct 830, upholding N. Y. inheritance tax law im-

^»*>K|iit; tax on receipt of legacy of United States bonds; dissent-

^^« opinion In Snyder v. Bettman, 100 U. S. 235, 23 Sup. Ct S(J5,

*'* L loss, majority upbolding succession tax imposed uuder act

^^txp 13, 18f*8, upon becjuest to municipnlity for piibllc purpose,

t>liitingultthed in Knowltou v. Muor*% 178 U. S. 52, 70, 80. 81, 44

^- SlT4, \m, 20 Sup. Ct 752, upiioiain;: tax on transmisslmi ..f

^tides and distributive shares imposed by war revenue tax of

«yl 14 (XII, 725), Question of exemption affecting vnl kilty of tax.

Ajipraved In Punit?!! v. Page, 128 Fed. 407. holding uncunstltU'
'"'^fil flttffupl by N'onh Carolina tax commissitJiiers to tax salary
*^f I'aited States district Judge; Peacock v. Pratt, 121 Fed. 770.

dia

157 U. S. 655-675 Notes on U. S. Reports. S86

777, 778, upholding Hawaiian tax law exempting schools and col-
leges and family income to $1,000 and taxing income of corpo-
rations.

(XII, 724). Miscellaneous.

Cited in Thomas v. United States, 192 U. S. 370, 24 Sup. Ct 306,
upholding stamp tax on memoranda of sales of stock certificates
imposed by war revenue act 1898, affirming United States t. Thomas,
115, Fed. 210; Knowlton v. Moore. 178 U. S. 95, 44 L. 991, 20 Sup.
Ct 769, upholding tax on transmission of legacies and distributiye
shares of personal property imposed by war revenue act 1898;
Matter of Pell, 171 N. Y. 57, 89 Am. St Rep. 797. 63 N. B. 792,
holding unconstitutional Laws 1899, chap.. 76, providing for tax
on reversions and remainders vesting before June 30. 1885, uponr
their coming into enjoyment; dissenting opinion in Bosenbloom t.
State, 64 Nebr. 352, 89 N. W. 1056, majority upholding general
revenue law (Comp. Stat 1901, chap. 77), imposing tax upon ped-
dlers on basis of number of animals used In drawing vehicles.

157 U. S. 655-659, 39 L. 845, BERGBMANN v. BACKER.

Syl. 1 (XII, 725). Habeas corpus cannot determine sofflciency of
indictment

Approved in Day v. Conley, 179 U. 8. 680, 45 L. 383, 21 Sap. Ot.
917, reaffirming rule; Howard v. Fleming. 191 U. S. 135, 24 Sop.
Ct. 50, holding Supreme Court will not. on habeas corpus,. Inquire
into sufficiency of indictment in State court charging conspiracy to
defraud.

Syl. 3 (XII, 725). Habeas corpus unavailing to stay execntton.

See notes. 87 Am. St Rep. 201, 202.

157 U. S. 059-673, 39 L. 848, KEELEB V. STANDARD FOLDING*
BED CO.

Syl. 1 (XII, 726). Assignee's rights over territory.

Approved in Edison Phonograph Co. v. Pike, 116 Fed. 864» hold-
ing condition of license not to sell below certain price and to re>
quire purchasers to sign similar agreement makes nonsigning pur-
chaser with knowledge an infringer.

(XII, 726). Miscellaneous.

Cited in Victor Talking Machine Co. v. The Fair, 118 Fed. eil,
holding manufacturer making absolute sale of patent article to
Jobber cannot hold purchasers for Infringement for violation of
conditions in notice attached to article.

157 U. S. 074, 675. 39 L. 853, TREAT MFG. CO. V. STANDARD
STEEL, ETC., CO.
Syl. 1 (XII, 72G). Court may charge for defendant
Approved in Thomason v. Southern Ry. Co., 113 Fed. 81. SQi»-

taining direction for defendant where plaintiff, twelve years oUL

Notes on U 8. Reports. 157 U. S. 675-096

I

said he was caught in turntable while trying to stop It to extricate
lite brother; Work v, Chicago, etc., Ry. Co., 105 Fed. 878, holding
jilaiotiff driving across track without stopping, looking or listen-
lug. Jiiid against flagman's protest, cannot recover; Hodgea v. Klm-
balt 104 Fed. 750» sua tain !ng direction for defendant wliere brake-
man was killed while trying to couple cars with his hands against
mle of company requiring use of stick.

157 U. S. 675-^681, 30 U ^4, ALLLEN v. UNITED STATES,
SyL 1 CXII, 726). Question of self-defense for jury.
Approved In Iowa v. Bone» 114 Iowa, 549, 87 N. W. 511, hold-
ing erroneous cliarge that defendant might arm himself if he
believed with good reason that deceased would make sudden attack
upon his life.

151 U. 8. €82. 68S. Not dted.

15T U- 8. 083r-€96t 39 L. 859, LAST CHANCE mN* CO. V. TYLER
MIN. CO,
SyL 1 (XII, 727>. Side lines becoming end lines.
Approved In Emphe Milling, etc., Co. v. Tombstone Mill, etc.^ Co.,
IW Fed. 914, holding where lode mining claim is located across
Tein^ owner has right to follow dip of vein beyond end lines as side
lines; Parrot Silver, etc.. Co. v. Heinze. 25 Mont. 144, 64 Pac. iJ28,
boidlag defendant In whose claim apex of vein Is situated cannot
follow same beyond side lines of claim where vein crosses both
clde lines.

SyL 2 (XII, 727). Judgment binding only on points decided.
Approved In Illinois v. Illinois Cent. R, R. Co., 184 U. S. 92, 4ft
U 447. 22 Sup. Ct 306, holding on second appeal from Circuit Court
ifter mandate from Supreme Court only matters left open by such
n&tuUte and passed upon by Circuit Court are open to review;
^ntbem R. R. C€. v. United States^ 183 U. S, 533, 46 L, 314, 22
Sail, Ct. 160, holding railroad^s claim to land by virtue of con-
duction of road not precluded by decision that it took no title by
of grant only; Mitchell v. First Nat. Bank. 180 U. S. 481, 45
Ifc IK, 21 Sup. Ct 421, holding denial In State court of claim
•ftlnirt Insolvent^B estate precludes claimant from proceeding on
Mine claim In Federal court; Baldwin \\ Maryland, 179 U, S. 222,
45 I* IC2. 21 Sup. Ct. 105, holding judgment establishing liability
for taxes for certain year is res Judicata as to liability for succeed-
tnf y«tr. facts being same; Sodcrherg v, Armstrong, IIG Fed, 711,
Mfflsg decree for defendants who denied complainant's title and
Alio wrongful taking of ore not res Judicata as to title in subse-
«ro4»at suit by complainant's grantee; Ohio River Ry. Co. v. Fisher,
115 Fed. 936, holding decree on demurrer adjudging validity of
ffWit tJie sole i>oint In issue. Is not res Judicata na to opinion
i]Qims€d on revocation of certain bequests by codicil; Union, etc.,

1

157 U. 8. 697-700 Notes on U. S. Reports.

Bank v. Memphis, 111 Fed. 569, holding State Judgment exempt
bank from taxes for certain year being by State usage res adj
cata only as to taxes in suit has same effect in Federal coi:
Bunker Hill, etc., CJo. v. Empire State-Idaho M. & D. Oo., 109 1
546, holding issue of patent in absence of contest conclusir^
patentee's claim as against adverse claimants; Norton v. Housi
Mercy, 101 Fed. 386, holding decision of Kentucky court that I
York corporation would not take under Kentucky will is bind
upon parties and their privies as to questions determined.

SyL 4 (XII, 728). Judgment by default conclusive betw€
parties.

Approved in In re American Brewing Co., 112 Fed. 759, hoMi
adjudication of bankruptcy on default, neither bankrupt nor Jm
ment creditors appearing, is binding upon latter; Bunker Hill, et
Go. V. Empire State-Idaho M. & D. Co., 109 Fed. 545, holding in
of patent in absence of contest Is conclusive of patentee's cla
against adverse claimants; Geer v. Board of Comrs., 97 Fed. 4
holding Judgment against county estops county from alleging
suit on bonds issued to pay such Judgment that the original inde
edness exceeded constitutional limit

Distinguished in Bunker Hill, etc., Co. v. Empire State, etc, C
108 Fed. 193, holding since date of location is not necessary but
issue of patent, failure to contest patent by adverse claimant is
admission of priority.

(XII, 727). Miscellaneous.

Cited in National Foundry &, Pipe Works v. Oconto City
Supply Co., 183 U. S. 234, 46 L. 169, 22 Sup. Ct 118. holding whi
decree does not show clearly what was decided resort may be 1
to pleadings and to opinion of court; Mackay v. Fox, 121 Fed. -
holding adverse claimant filing amended application and obtain
patent to land other than that adversely claimed does not wfi
his. adverse claim: United States v. Norfolk & W. Ry. Co..
Fed. t>8G. holdin^c: on second mandamus proceeding, pending apf]
on plea of appeal pending, court may resort to opinion to deteroa
what was decided.

i:»7 U. S. 6i>7-700. 30 L. Si»5. LAMBERT v. BARRETT.

Syl. 3 (XII, 72S>. Circuit Court order at chambers nonappealal

Approved in Ex parte Jaeobi. 104 Fed. 681, holding decision
circuit jud.ire at chambers in habeas corpus case is not final i
appealable.

iXU. T2Ti. Miscellaneous.

Cited In Chow Loy v. I'nit^Hl States, 112 Fed. 359, holding
peal allowed by stvtlon lo. Chinese exclusion act September
1888, Is appeal to district judire as a special tribunaL

CLVIII UNITED STATES,

V. S. 1-50. 39 L. 873, ROBERTS V, NORTHERN PAO, E, E.

il (XXL 729^ Vendee cauiiot recoTer for taking.

Approved in King v. Southern Ry. Co.* 119 Fed. lOlT, holding

l^««t]uetit vendee cannot pjcover of railroad company for land

whicJi company has erected depot; Little Rock, etc., Ry. v.

^l^fster, 68 Ark. 602, 60 S. W, 954, holding owner of reversionary

Nenist In land may recover damages for consiructlon of railroad

'♦n land altliougli eellSng Interest after construction, before con-

"^wmmtion proceedings terminated; Green v. South Bound R» R^ 112

'^ 850. 38 Sw E. 81, holding subsequent purchaser of land over

^cb mllroad has been built has no right against company for

^^ taken.

8yl. 2 (XII, 72&). Landowner pernilttlng taking confineii to
images,

Approved in United States v. Lynah, 188 U. S, 467, 23 Sup, Ct.
'^^^^Ih, 547* holding Circuit Court has Jurisdiction of suit against
bulled States to recover compensation for rice plantation destroyed
^J government Improvements In Savanah river; New York v. Pine,
^^ C. 8. 99, 101, 40 L. 823. 22 Sup. Ct 595, holding riparian owner
ring suit for diversion of waters by construction of dam is
only to have damages ascertained and paid with Injunc-
ilternatlve; Cowley v. Spokane. U-S) Fe*!, 843, holding land*
**>*r estopped to assert right of possession against city grading
'*! Improving streets over property where he makes no objection,
thftU};|j dedication was by adverse claimant; Buckwalter v. Atchl-
^> etc, R R. Co,, 04 Kan. 40S, 67 Pac. &^a* holding landowner
I'^tulttlng railroad, possessing power of eminent domain, to build
frwa over his land cannot bring ejectment because right of eml-
''*'«t doujaln was not first exercised; Rio Grande W. Ry. v. Power
^ 28 Dtali, 41, 63 Pac. 1«XR\ holding where damages have been
•■Nutd by Jury and no appeal taken therefrom, no review will
^ njide thereof.

^Jl 7 (XII. 730), Judgment conclnslve only on point determined.

Approved In Crockett v. Miller, 112 Fed. 7S2, holding Judgment for

vln undtT Consol. Stat. Xebr., § 4701 » is not a bar to suit for

to reputation from false levy; Rio Grande W. Ry. v. Power

Opw, 2^ Utah, 36. 03 Pac. 91)8, holding ao far aa same questions

iAroJred were passed on In former suit, former decision was bind*

log.

[580]

158 U. S. 31-57 Notes on U. S. Reporta. S

Syl. 9 (XII, 730). Qaieting title — Federal relief foUowlnff 8ta
remedy.

Approved in Postal Tel., etc., Oo. v. Chicago, etc., R, B, Oo^
Ind. App. 662, 66 N. E. 922, holding method of exercising right
eminent domain as fixed by laws of several States Is conclusiYe
Federal courts.

158 U. S. 31-36. Not cited.

158 U. S. 36-40, 39 L. 887. NEWPORT NEWS, ETC., CO. T. Pm

Syl. 1 (XII, 730). Exceptions to admission of erldence necess^

Approved in Potter v. United States, 122 Fed. 05, holding
Section to admissibility of evidence must be taken by excei^c
recorded at time.

Syl. 2 (XII, 730). General exception overruled if one proposf Ci
correct

Approved in Cass Ck>unty t. Gibson, 107 Fed. 866, 867, holdt^
insufficient general exception to instructions given and to ooar^
refusal to instruct as requested; Union Mut Life Ins. Co. y. FayiC
105 Fed. 178, sustaining against general exception charge leaviiff
question of suicide of insured to jury and instructing that sulckP
sane or insane, according to contract would avoid policy.

Distinguished in Erie R. R. v. LitteU, 128 Fed. 648, holdiic
sufficient exceptions to refusal of each separate request by numbed
where court refused to specify which were given and which refuses

Syl. 3 (XII, 730). General exception to refusal to instruct

Approved in Columbus Const Co. v. Crane Co., 101 Fed. 56
holding rule 10 of Circuit Court of Appeals, seventh circuit t^
quires statement of proposition of law excepted to and so mue
of charge as embodies erroneous proposition.

158 U. S. 41-53, 39 L, 889, KOENIGSBERGER T. RICHMOND.

Syl 3 (XII, 731). Act 1889 transferred Federal causes.

Approved in Roberts v. Pacific, etc., Co., 104 Fed. 578, holdin
suit against defendant resident of another State and foreign coi
poration may be removed where both defendants Join In petition.

158 U. S. 53-57, 39 L, 894, MATTINGLY v. NORTHWESTER!
ETC., R. R.

Syl. 2 (XII, 731). When citation issued not Jurisdictional

Approved in Berlinger Gramophone Co. v. Seaman, 108 Fed. 71'
holding issuance of citation is not Jurisdictional and may be issue
after expiration of time allowed for appeaL

Syl. 3 (XII, 732). Court notices failure to show Jnrlsdlctloni
facts.

Approved in Great Southern, etc., Hotel Co. v. Jones, 177 U. I
454, 44 L. 844, 20 Sup. Ct 692, holding limited partnership associ

04^1

Noten ou U. S. Reports.

158 U. S. 5S-S4

I

I

I

UoQ Is not a elttzen of State erecting It to confer Jurisdiction on
I^ederal court; disBenting opinion in Giles v. Harris, 18^ V. S. 5Q1»
S3 Sup. Ct 645. 47 L. 918, majority holding absence of averment of
^larlsdictlonal amount not ayailable on appeal raising question of
J 'crrlsdiction on nnotlier ground,

SyL 4 (XII, 732). Cause Improperly removed remanded with costs.

Approved in Pellett v. Great Nortlaern Ey. Co*, 105 Fed, 195,
l^^>]ding. under judiciary act 1875, Circuit Court remanding for want
^T JoiiBdJctlon may award statutory costs to plaintiff Including
OetTomey's docket fee.

<XII. 731). Miscellaneoua,

Cited In Kinney v. Columbia Savings, etc., Assn., 101 U* 8, 81,
24 Sup. Ct. , holding company not liable for death of passenger
on free pass caused by negligence of servants.

ZSS U. S, 58-67. 30 L. 805, DU BOIS v. KIBK,

SyL 1 (XII, 732). Novel application of old device patentable.
Approved In Peters v. Uaion Biscuit Co., 120 Fed. 684, sustaln-
Ins Peters patent No. 681,974, for method of packing crackers In
collapsible interlocking carton.

SyL 4 (Kll, 732). Equity decree for costs not reversible.
Distinguished In In re Michigan Cent. R. R. Co., 124 Fed. 732»
holdiag decree of Circuit Court against litigant, allowing costs to
^^e^k for services rendered, la appealable.

SyL 5 (XII, 732). Affirmation on merits nonreversible for costs.
Approved in Sproul v, Pratt, etc., Co., 108 Fed. 905, holding de-
c*«« affirmed on merits will not be reversed on question of coats,
OCIL 732). Miscellaneous,

Oted iB Anderson v. (3ollLfLs, 122 Fed. 45S, holding defensive
latent to show anticipation is Inadmissible where not isaued until
Httttt In suit had been applied for,

^ D. 8. QSrS^, 39 U 899, RISDON LOCOMOTIVE WORKS v.

MEDART.

8jl. 2 (XII, 733). Process for operating macliine not patentable.

Approved In Ballon v. Potter, 110 Fed. 970, holding void for lack

of Da?etty Ballo patent No, 380,380, for Improved process for

ftiaunfacturlng safety -pins; Dodge Mfg. Co. v. Collins, 106 Fed.

I'S!^ boldlng void McNeal patent No. 351,064, for split wood in pulJeyj

tM$e Ufg, Co. V. Ohio Valley Pulley Works, 101 Fed. 586. holding

Toid in view of prior art Phillon patent No. 368,490, for process for

aiojitrQCtlon of pulleys; NatlonaL etc., Co. v. Interchangeable, etc.,

Cd^ W Fed. 7G7, holding void for anticipation claims 1, 2 and 7,

HltD iMtent No. 480.1M, consisting chiefly in chamber given to

ooopreasloD member of brake beam.

158 U. S. 85-08 Notes on U. S. Reports. 692

Distinguished in Carnegie Steel Co. ▼. Cambria Iron Co., 185
U. S. 425, 46 L. 981, 22 Sup. Ct 707, upholding Jones patent No.
404,414, for mixing molten pig iron to secure greater uniformity in
chemical composition; Busch v. Jones, 184 U. S. 607, 46 L. 712, 22
Sup. Ct 515, holding invalid claim of Jones patent No. 204,741, foi
process for removing type indentations from printed sheets; Chis
holm V. Johnson, 106 Fed. 200, upholding Chisholm patent No
421,244, for improvement in method of hulling green peas; United
States Repair, etc., Co. v. Assyrian Asphalt Co., 100 Fed. ©74,
holding void Perkins patent No. 501,537, claim 1, for method of
repairing asphalt pavement

Syl. 3 (XII, 733). Patent for superior workmanship is invalid.

Approved in Drake-Castle Pressed Steel Lug Co. v. Brownell, etc,
Co., 123 Fed. 90, holding void for want of patentable invention
Drake patent No. 491,091, for boiler lug stamped or swaged from
sheet metal; Edison v. American Mutoscope Co., 114 Fed. 935, hold-
ing void Edison patent No. 589,168, for kinetographic camera.

(XII, 732). Miscellaneous.

Cited in Parsons t. Seelye, 100 Fed. 453, 454, holding court may
take Judicial notice of prior art but not when it consists of a single
patent.

158 U. S. 85-98, 39 L. 906, WHITNEY v. TAYLOE.

Syl. 2 (XII, 734). Homestead and pre-emption excepted from
railroad grants.

Approved in McCune v. Essig, 118 Fed. 280, holding child of
homestead settler who died before completion of right, whose widow
completed same, takes no interest therein; Oregon Short Line R. R.
V. Fisher, 26 Utah, 185, 72 Pac. 933, holding uncanceled homestead
entry segregates land from subsequent railroad grant

Distinguished In Murray v. Polglase, 23 Mont 419, 59 Pac 443,
holdiug entryman of mining claim making final entry and receiv-
ing receiver's receint must nevertheless perform annual represen-
tation work.

Syl. 4 (XII, 734). Settlement alone gives no pre-emption rights.

Approved in Tarpey v. Madsen, 178 U. S. 225, 44 L. 1047, 20 Snp.
Ct 852, holding relative rights of railroad company and individual
entryman must be determined by record evidence; Springer ▼.
Clopath, 26 Nev. 195, 65 Pac. 806, holding mere occupancy of land
at time same was listed to State as unoccupied land by act of 1880
gives occupant no title against purchaser from State.

(XII. 734). Miscellaneous.

Cited in Oregon & C. R. R. Co. v. United States, 190 U. S. 192, 198,-
23 Sup. Ct 676. 47 L. 1015, holding lands settled under Or. donation
act 1850, but abandoned fifteen years before their selection as lieu
land under grant of 1866 to railroad, are not reserved therefrooL

Notes on D, S. Reports. 158 U* S. 98-127

l^S 17, 8, 9g-105, 39 L, 910, GULF, ETC., RY. v. HEFLEY.

8jl. 1 (XII, 735). Law penallzMg oirercbarge Inapplicable to In-
terstate Bhipment

Approved in dissenting opinion in Austin v. Tennessee^ 179 U, S»
S78, 45 L. 240, 21 Sup, Ct 140, majority upholding Tenn. Acts 1S97,
<^^ap. 30, prohibiting importation or sale of cigarettes or clgorett©
Mpen.

Sjt 2 (XII, 735). State law, conflicting, must give way.

Approved In Interstate Commerce Comm. v. Cbeeapeake, etc,» Ry.,

128 Fed, 71, holding unenforceable contract of one carrier to buy

^M tninaport over its own line and deliver to another carrier coal

*t Tate twenty- three cents per ton cheaper than naual ratej Clement

^* MetropoUtan West Side EL Rj\ Co., 123 Fed, 273, holding Chicago

finance authorizing commissioner of public works to provide

^^m\ bridge signals applies only to city bridges, not to private

^e«: Raih-oad v. Home, 106 Tenn, 77, 59 S. W. 135, holding

^ absence of publication of rates as provided by Interstate com*

^^^ act consignee is entitled to goods on tender of rates stipulated

^ m of lading,

Dtetlngulahed In Reld v. People, 29 Colo, 342, 68 Pac. 230, 93 Am.
St Rep, 75. upholding Sess, Laws 1S85, p, 335, § 2, prohibiting brtng-
tog Into State cattle from points south of thirty-sixth parallel except
witli certificate of health,

(Xn, 735). Mfscellaneons.

Cited la Railroad v. Home, 106 Tenn. 70, 59 S. W, 135, holding
i conuaerce commission is presumed to have directed publication
L «f rites Bs required by commerce act 1887.

I 15g U, fi. 105-108.
I *^^

Hi ^'

[ J3i«

Not cited,

IS8 U. 8, 109-118, 30 L. 914, JOHNSON v. SAYRE.
fljrL C (XII, 736). Courts cannot vacate court-martial on habeas

IMrtlngnlshed in People v, Hoflfman, 166 N* Y. 473, 60 N. B. 190,
^ioltfiag Supreme Coiu-t has power to issue writ of certiorari to
rlew determination of military board of examhiation.

158 V. fi. 118^122. Not cited.

158 U. 8, 123-127, 39 K &19, BEARDSLEY V. ARKANSAS, ETC.,
RY.
Syl, 2 (XII. 736), All defendants must Join in appeal.
Approved In Ayers v. Polsdorfer, 105 Fed. 739, dismissing writ
of error sued out by one of several defendants sued in ejectment
wbire each claimed title in himself; Grand Island, etc., R. R. Co. v.
Swdeo^y, 103 Fed, 348, holding Circuit Court of Appeals accords
Vol, in~38

158 U. S. 128-186 Notes on U. S. Reports. 594

with Supreme Court in dismissing appeals in equity where all
parties affected by decree do not Join in appeal.

158 U. S. 128-150. 39 L. 921. WHITE v. JOYCE.

Syl. 3 (XII. 737). Infant heirs have protection of statute.

Approved in Mason v. Taft, 23 R. I. 395, 50 Atl. 650. holding per-
sonal privilege of debtor to plead Statute of Limitations does not
die with him but is enforceable by others.

Syl. 5 (XII. 737). Consent decree cannot bar infant defendants.

Approved in Walker v. Redding. 40 Fla. 128, 23 So. 566. hold-
ing foreclosure decree upon homestead rendered against executor
of deceased owner is not binding on heir who was not a party.

158 U. S. 150^154, 39 L. 929, KEYES v. EUREKA MIN. CO.

Syl. 3 (XII, 737). Seventeen years' delay precludes InJunctiTe
relief.

Approved in Meyrowitz v. Eccleston, 98 Fed. 440, holding ten
years' delay in investigating infringement charged and denied pre-
cludes maintenance of infringement suit

158 U. S. 155-172. 39 L. 931, CATHOLIC BISHOP v. GIBBON.

Syl. 1 (XII. 737). Land department's decision on facts conclusive.

Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co., 190
U. S. 309. 23 Sup. Ct 69G. 47 L. 1071. holding land department has
full jurisdiction over rights to patents under forest reserve act;
Johnson v. Washington, 190 U. S. 185, 23 Sup. Ct 827, 47 L. 1011,
holding approval by secretary of interior of selection of public
lands in lieu of school lands by officers representing State is con-
clusive as to passing title; United States v. Beebe, 117 Fed. 679.
holding action of collector under order for rellquidation of entry
made by secretary of treasury under tariff act 1894; St Paul, etc..
Ry. Co. V. Olson, 87 Minn. 121. 91 N. W. 296, 94 Am. St Rep. G07.
holding while matter is pending in land department courts have
no jurisdiction thereof and statute does not run; O'Connor v.
Gertf^ens, 85 Minn. 408, 81) N. W. 872, holding land determinaUon
of bona fides of purchaser cannot be reviewed by courts; Robert-
son v. State Land Board. 42 Or. 189. 70 Pac. 616. holding decision
of State laud board in refusing to cancel contract for State land will
not be reviewed by courts.

158 U. S. 172-180. Not cited.

158 U. S. 1S0-18G, 39 L. 941, SAYWARD v. DENNY.

Syl. 1 (XII, 738). Denial of Federal right must appear.

Approved in De Lama is Nevada G. M. Co. v. Nesbit 177 U. S.
529. 44 L. 874, 20 Sup. Ct. 718, holding decision in favor of plain-
tiff claiming under Federal mining laws cannot be reviewed by
defendant who did not claim thereunder.

Notes on U. S. lleports,

SyL 3 (XII, 138). Federal right must be properly claimed below.

ApproTed In Henkel v. Cincinnati, 177 U. S. 171, 44 L* 721, 20
Sup. Ct 573, holdijig certifi«:'ate or cblef justice of State Supreme
Court caimot confer Federal Jurisdiction.

SyL 4 (XII, 730). Federal question in rehearing petition too late.

ApproTed in Mutual Life Ins. Co. v, McGrew. 188 U. S. 308, 23
Sop. Ct 37S, 47 L. 485. holding proper way to raise Federal ques-
tion la by pleading motion or exception made part of record, not
for first time in petition for rehearing.

I>ittloguIsIied in Maliett v. North Carolina. ISl U. S. 502, 45 L.
1018, 21 8up. Ct* 731, holding Federal question raised by petition
for rehearing after filing, but before certification of opinion. Is not
Wo late where court considers same.

8yl 5 (XII, 739), CounseFs argument is no part of record,

%roTed In Loeb v. Trustees of Columbia Township, 179 U. S.
^45L.287, 21 Sup. Ct 17a holding opinion of Circuit Court regu-
Jwly filed and transmitted to Supreme Court with the record may
W examined on queation of jurisdiction.

8yL 6 (XII, 739). Record must show definite Federal laane.

Approred in Wakefield v. Van Tassell, 192 U. S. 601. reaffirming
mle; Land & Water Co. v. San Jose Ranch Co., 189 U. S. ISO, 23
S»P. Ct 4S0, 47 L. 768, holding Federal question sufficiently set
Up where fully considered in State court and decided against claim;
Hooker ?, Lon Angeles, 188 U. S. 320, 23 Sup. Ct. 397, 47 L. 491,

i ^'t: Stale decision adverse to claim of riparian rights under
-^ aa grants confirmed by Congress Involves no Federal ques-
tioa wliere validity of Federal law not questioned; Shew alter v.
MiMouri Pac- Ry. Co.. 152 Mo. 551, 54 S. W. 22*}, holding Supreme
Court baa no jurisdiction of appeal In suit against carrier where
ncflons made no mention of Interstate commerce act and were
excepted to.

U» U. S, 18G-^211. 39 L. 943, THE OREGON,

8yl. 1 (XII. 739). Steamer colliding with anchored vessel pre-
•wnfd culpable.

-^Pliroved In The Mary S. Blees, 120 Fed. 45, holding vessel stop-
plnig to "straighten up" before passing obstxuctions, and drifting
Agnltut barge moored uenr haoli of stream, is at fault; The X or t hern
Qo^B, 117 Fed. 914, iiolding vessels anchoring In fairway because
of dense fog not chiirgeable with fault where fog signals were
blown and all precautions taken pursuant to rules.

DistiQguIshe<l In The Bauan, 110 Fed. 901, holding presumption
tfl f»Tor of anchored vessel overcome by evideuLc showing anc'lior-
1^ COO o«ar the channel.

158 U. S. 186-211 Notes on U. S. Reports. 596

Syl. 2 (XII, 739). Adequate lookout required on dark nigbt
Approved In The Gertrude, 118 Fed. 131, holding both yessels
negligent for maintaining Insufficient hands on deck; The Richmond,
114 Fed. 213, holding evidence showing that lights of schooner were
not seen on steamer until within 300 feet of collision shows defective
lookout; Wilder's SS. Co. v. Low, 112 Fed. 172, holding presump-
tion is against vessel having no lookout when another vessel is
known to be in vicinity; The Samuel Dlllaway, 98 Fed. 141, hold-
ing tug with tows covering line 3,000 feet long must maintain look-
out aft, and is shown at fault where captain not on duty acci-
dentally discovered sailing vessel.

Syl. 5 (XII, 740). Vessel at fault has burden.

Approved in The Phillip Minch, 128 Fed. 583, holding burden It
on vessel whose negligence brought situation about to show by
convincing evidence mismanagement of other vessel; The North-
land, 125 Fed. 62, holding steamship solely at fault for sinking
canal-boat by operation of steamer's propellers, where no lookont
was maintained and no signals answered; The Australia, 120 Fed.
224, holding vessel at fault for maintaining erratice course most
show clearly contributing fault of other barge; The John H. Starin,
113 Fed. 421, holding vessel at fault for failing to keep right side
of channel must show actual fault in anchored vessel whose lights
burning half an hour before will be presumed to continue; The
Columbia, 109 Fed. 667, holding ship in tow with bark on same
tug at fault for collision caused by ship's failure to follow course
of tug; The Minnie, 100 Fed. 134, holding where tug is shown
clearly at fault it sustains burden of showing clearly the fault of
anchored vessel.

Syl. 10 (XII, 740). No bell necessary on clear night

Approved in Tlie Minnie, 100 Fed. 130, holding anchored vessel
under no obligation to ring bell where at the time weather was not
thlcli.

Syl. 12 (XII, 740). Sureties not liable to later interveners.

i)iatiiiKui8he<l in The Livinprstone, 104 Fed. 922, holding bond for
release of libeled vessel in suit brought by shipowner and cargo-
owner, bailee stands for sums payable to cargo insurers who tiave
paid loss.

(Xll, 739). Mlscellaiieous.

Cited in The Queen Elizabeth. 122 Fed. 409, holding ship being
privileged vessel not charjreable with contributory fault for col-
lision where master maintained course until It was clear that col-
lision was inevitable; The Uobert Dollar, 115 Fed. 225, holding
Washington statute, making master or person having charge of

887

Notes on U, S. Reports. 158 U. B. 21^267

cofislni'llon or repair of vessel agent of owner, la applicable
to foreJgB Tessels.

158 U. a 212-215. Not cited.

IM U. S. 216-222» 39 L. 056, De SOLLAR v, HANSCOME.

8yL 3 (XII, T4i;». Doubtful contract will not be speciflcaJlj per-
formed.

Approved Id White v. Wanaey, 116 Fed. M9, holding where evl*
<l«nce conflicted as to execution of contract and one party wltb-
^w contract before acknowledgment, specific performance will be
toed.

158 U. 8. 22S-23a Not cited.

158 U, S, 240-253, 39 U 966, STONEROAD T. STONEROAD.

Sjl 3 (XII, 742). Survey of conlrmed grant collaterally un*
tmQ&ble.

Approved In Kean v. Calumet Canal Co., 190 tJ. S. 460, m Sup.
^IS52» 47 I*. 1137» holding Federal patent to Indiana under swamp
^ act 1850 of ** whole of fractional sections " covered by Federal
P^t carries submerged portions thereof; Brown v. Parker, 127
Mlcb. 393, 86 N. W. 990, holding land bounded by meander Hue of
Uke Erie surveyed by Federal government passed under swamp
itad act and was not part of lake bed.

158 TI. g, 253-259, 39 L. 971. RUSSELL v. MAXWELL LAND
GRAXT CO.

SjL 2 (XII, 743). Properly confirmed Federal survey collaterally
UMSfldiable.

Approred In Brown v. Parker, 127 Mich. 303, 86 N, W. 990, hold-
\nz Federnl meander line of Lake Erie Is conclusive of character
of liBd bounded thereby, and such land passes under grant of State,

158 r 8, aeo-267, 39 L. 973, BOYD V. JAMESVILLE HAY TOOL

CO,

^fl 4 (XII, 744). Patent with different devices no Infringement.

Mm^ea In Powell v, Leicester Mills Co., 103 Fed, 488, holding

tow* of patent raises presumption that patented machine does not

t"Wa«e earlier patents,

^l 4 iXII, 744). Patent with different devices no infringement

Approved In Dowaglac Mfg. Co, v. Brennan, 118 Fed. 147, hold-

tef Hoyt patent No. 446,230. for Improvement in grain drills, not

IflMlged by devtce after Christman and Miinn patent No. 497,864;

Wmtiu Mann Co, v. Hoffman, 104 Fed. 254, 256, holding nonploneer

Letiie patent No, 581.123, for improvement In binders confined to

partJeular structure, shown not Infringed by Hoffman patent No.

158 U. S. 267-298 Notes on U. S. Reports. 608

158 U. S. 267-271, 39 L. 976; VIRGINIA v. TENNESSEE.

Syl. 1 (XII, 744). Court's power to enter consent decree.

Distinguished In Burget v. Robinson, 123 Fed. 264, holding effect
of Circuit Court of Appeals order staying mandate Is to retain
jurisdiction even after term.

158 U. S. 271-277, 39 L. 977, NORTHERN PAG. R. R. V. URLIN.
Syl. 4 (XII, 744). Declarations as to existing malady admissible.

Approved in Denver, etc., R. R. Co. v. Roller, 1(X) Fed. 752, hold-
ing expert opinion of physician as to nature and cause of patient's
bodily or mental condition, based on examination and statements
of patient, are admissible; Sellman v. Wheeler, 95 Md. 755, 54 AtL
514, holding admissible evidence of physician that plaintiff came
to him suffering from enlarged testicle, but that witness made in-
complete diagnosis and knew nothing of cause; O'Boyles v. Com-
monwealth, 100 Va. 800, 40 S. E. 126, holding evidence of state-
ments made by deceased as to accidental Injury occurring some
hours before assault in question is inadmissible.

158 U. S. 27&-284, 39 L. 982, TODD v. UNITED STATES.

Syl. 2 (XII, 744). United States commissioner not Federal judge.

Approved In United States v. Beavers, 125 Fed. 780, holding
true basis of power of United States commissioner to issue subpoenas
Is section 1014, Rev. Stat., that proceedings shall follow usual mode
in State; In re Perkins, 100 Fed. 954, holding United States com-
missioner has no power to punish for contempt

Distinguished in United States v. M'Leod, 119 Fed. 418, holding
assault on United States commissioner may be obstruction to
jusUce in court of United States under Rev. Stat, 8 5309.

158 U. S. 285-298, 39 L. 983, UNION PACIFIC RY. v. WYLER.

Syl. 1 (XII, 745). Lex fori governs limitation of actions.

Disting:uished In Brunswick, etc., Co. v. National Bank, 99 Fed.
63G, holding twenty-year statute established by Ga. Code 1882,
§ 2D1G, and not Maryland Statute of Limitations governs in action
in Maryland against stockholder in Georgia corporation.

Syl. 3 (XII, 745). Petition under derogating statute as departure.

Approved in H. B. Claflin Co. v. Middlesex Bank Co., 113 Fed.
9C2, holding prior suit to redeem brought by another plaintiff on
snine grounds does not save present suit from bar of statute:
United States v. Norton, 107 Fed. 415, holding amended petition
couutin;; on moneys which third party acquired by cashing fraudu-
lent money orders states cause different from petition based of
nonpayment of funds by postmaster; Midland Steel Co. v. Citizens'
Nat Bank, 20 Ind. App. 81, 82, 50 N. E. 214, holding reply statinr

509

Notes on U. S. Reports. 15S U. S. 299^03

rdlance on statute making note commercial paper is departure from
complaint by bona fide purchaser on note as commercial paper.

IMstfn^isbed In Cincinnati, etc., R. R* Co. v. Gray, 101 Fed. &31,
ttolding limeuded fietltlon alleging defective condition of track Is oo
departure from original petition alleging injury from defective
roadbed and negligence of recelyer; Mutual Life Ins. Co. v, Dlngley,
100 Fed. 411. holding Judgment In Federal court on ilfe insurance
policy, bolding defense Insufficient under State laws, was ba.«ied
apoD pleadings, since court takes Judicial notice of statutes; Ander-
Bou V. Union, etc. Ry., 161 Mo. 432, 61 S. W. 881. holding in suit
alleging negligent maintenance of pile of cinders which made
W^hwiy imsafe and was also against ordinance, evidence showing
negligence Is sufficient.

8yL T (XII. 746). Statute runs until amendment filed.

Approved in Boston, etc, R. R. v. Hurd, 108 Fed. 125. holding
amend ment of action at common law for wrongful death, declai*-
^ onder Massachusetts statute limiting suit to one year, con-
stitutes departure and is barred by statute; Railroad Co. v, Hester,
^ Kan, A pp. 206, 5U Pac. t>(j3. holding amended petition, bused
on dlff(?rent section of statute, is not saved by the filing of originai
petition In time.

^ C. S. 209-303, 39 L. 991, RICHARDS v. CHASE ELEVATOU
CO.

*yt. 1 (XII, T46). Invalidity of patent on face raised on demurrer.

Approved in Drake-Castle Pressed Steel Lug C-o. v. BrownelU
•*€.» Co., 123 Fed. 90, bolding void on Its fact Drake patent No.
^►^1. for boiler lug swaged from sheet metal; Fowler v. New
York, 121 Fed. 7&0, holding void for lack of novelty Carpenter
Went N'o. 570.451. for bitranslt railway system; Ricliards v. .MicUi-
«w Ceut R, R. Co., 102 Fed, 500, holding Richards patent No.
W005 Told on its face.

^Ittln^rished tn A. R. Mllner, etc.» Co. v. Yeshera, 111 Fed, 388,
opiioiding on demurrer Mllner patent No. 597.686, for counter stools
fof itores; FaJirIc Coloring Co. v. Alexander Smith & Son's Carpet
^H 109 Fed. 329» upholding Horack patent No. IX)3,992, for proc*
*•• tor coloring yam,

8rt 2 (XII* 7461. Nonnovel patent avoided without defense

ApiJroved In Mahler v. Anlmarium Co.» 111 Fed. STU, holding

'TOid on its face Sanche patent No. 587,237, for ** Oxydonor " device

for n«e in treatment for disease.

SyL 3 (XII. 746). Multiplicity of elements not patentable.

Approved In Goodyear Tire, etc., Co. v. Rubber Tire, etc., Co., 116

Fed. 371, holding void Grant patent No. 554,675, for rubber-tire

158 U. S. 303-325 Notes on U. S. Reports. 600

(Xn, 746). Miscellaneous.

Cited in Richards v. Michigan Cent. R. R. Co., 186 U. 8. 479.
46 L. 1259, 22 Sup. Ct 942, dismissing writ of error for want of
jurisdiction; Parsons v. Seelye, 100 Fed. 453, holding court may»
under proper circumstances, take judicial notice of state of art.

158 U. S. 303-312, 39 L. 993, THB BEACONSFIBLD.

Syl. 1 (XII, 747). Carrier suing in own name.

Approved in Chicago v. Pennsylvania Co., 119 Fed. 604, hold-
ing railroad company may sue for injury to cars of oth» companies
in its possession as bailee.

Syl. 2 (XII, 747). Cargo-owner proceeding against costs ships.

Approved in In re Lakeland Transp. Co., 103 Fed. 830, holding
remedy of cargo-owner is against colliding vessel from which he
can recover entire damages.

Syl. 5 (XII, 747). Admiralty stipulations liberally construed.

Approved in Fairgrleve v. Marine Ins. Co., 112 Fed. 367, holding
sureties are liable under decree rendered in amended libel which
court had power to permit to be amended; The Mercedes, 106 Fed.
560, holding owner of tow and cargo may Intervene in suit by
master of the tug and may properly be substituted as libelants;
The Livingstone, 104 Fed. 922, holding bond for release of yessel
libeled by owner of other vessel and cargo-owner running to them
jointly includes sums which may be decreed to cargo insurers.

(XII, 747). Miscellaneous.

Cited In The New York, 108 Fed. 105, holding where vessel libeled
for collision by owners of other vessel made no attempt to bring
other vessel In under admiralty rule 59, she cannot recoup half of
damages; The Livingstone, 104 Fed. 926, holding where all imrties
are before the court failure of libeled vessel to file cross-libel for
recoupment against other vessel of half the loss of Innocent cargo-
owners.

158 U. S. 312-325, 39 L. 99G, ANDES v. ELY.

Syl. 3 (XII, 747). Municipal bond enabling laws liberally con-
strued.

Approved In Board of Comrs. of Stanly Co. v. Coler, 113 Fed.
710. holding N. C. Code 1883, § 1996, authorlased counties to
subscribe for stock In any duly Incorporated company to build rail-
road In which county was Interested; D'Esterre v. New York, lOt
Fed. 608, holding failure to comply with directing provisions of
statute for municipal bond issue requiring name of payee and
place of registration does not invalidate bonds.

Syl. 5 (XII, 748). Contract with de facto corporation binding.

Approved In Johnson v. Mason Lodge No. 33, I. O. O. P., 106
Ky. 845, 51 S. W. 621, holding one contracting with corporation Is

Notes on tf. S. Reports*

estopped to deny corporate capacity because of failure to comply
with Btatute; Citizens* Bank v, JoneSp 117 Wis. 454, 94 N. W, 332,
M6hig peraoD executing mortgage to corporation whose ciiarter
reriD hm expired cannot plead corporate incapacity when eued by
uslgnee of mortgage.
Syl 7 (XII, 74S). Municipal bond recitals estop municipality.
Approved in Tulare Irrigation Dist v. Shepard, 185 U. S. 24,
W L 7S4, 22 Sup. Ct 540, holding landowners witliin irrigation
district cannot defeat Irrigation bonds iield by bona fide purchaser
ud redtlog compliance wltb statute, although district defectively
orgaoiaed; Wetzell v* Paducah, 117 Fed, 654, holding recitals by
of&c€n and council authorized to determine validity of bonds that
locli boDds comply with statute estop city.

BlstlDguished in Clarke v. Town of Northampton, 105 Fed. 313,
holding omission of certain words in statute from petition for bond
i»oe where such words are jurisdiction^ cannot be cured by efi-
toppel

15S E S, 326-333, 39 L. 1003. UNION PAC, RY, t, HARRia
SyL 1 (XII. 748). Circuit Court of Appeals decision not final.
Approved In Spreckels Sugar Ref. Co. T. McClaIn, 1&2 U. S. 409,
24 Sap. Ct 379, holding Judgment of Circuit Court of Appeals
oot ftnal In suit to recover tax exacted under protest under war
wreme act 18[»8. depending on construction and constitutionality
tll«feof; American Sugar Reflning Co. v. New Orleans^ 181 U. S.
282. 46 L. 8C2, 21 Sup. Ct 648, holding Circuit Court of Appeals
fWOJieously dismissed for want of jurisdiction where suit rested
originally on diverse clti^ensblp and constitutional question sub-
•«lDwitly arose; Keyser v. L.oweli, 117 Fed. 402, holding Circuit
Court of Appeals may decide constitutloDallty of State law where
qae<tion arises in case originally resting on diverse citizenship.

DUtingulshed in Ayres v. Polsdorfer, 1S7 U. S. 501, 502, 503,
5<>5w 23 Sup. Ct 198, 100, 47 L. 316, 317, holding decision of Clr-
«ilt Court of Appeals In case resting solely on diverse citizenship
dcMot he reviewed because constitutional question subsequently

Sji 3 (Xn. 748). Jury determines competency of releasing party.
Approved In Shook v. Illinois Cent R. R- Co., 115 Fed. 04, hold-
tag Qoestlon of mental condition of railway engineer Injured In
die liead Is for Jury; Hill v. Northern Pac. Ry. Co., lOl Fed.
t57, holding written release intentionally executed on payment
of igreed sum cannot be impeached at law for fraud.
(XII, 748) » Miscellaneous.

Cited In Roberts v. Central Lead Co., 05 Mo. App. 507, 69 S.
W. &4^ holding Injured employee In mine paying Into court on
order money received on fraudulent release acts with

158 U. S. 334r-337 Notes on U. S. Reprrts. (

sufficient promptness; Koffman y. Southwest Mo. Electric By.,
Mo. App. 473, 68 S. W. 216, holding Injured street railway passeaj
cannot show that he signed written agreement under mistake «
fraud to enable him to recover on oral agreement; McCart^
Houston, etc., Ry., 21 Tex. Civ. 574, 54 S. W. 424, holding pasc
jjer executing release for particular Injury, but broad enougki
cover unknown injuries, may recover for injuries not intended
be included in release.

158 U. S. 334^37, 39 L. 1006, BOSTON, ETC., R. R. ▼. O'RBIII-

Syl. 1 (XII, 749). Objections to evidence required at trial.

Approved in Pine River Logging & Imp. Co. v. United St:«
186 U. S. 287, 46 L. 1169, 22 Sup. Gt. 923, holding onaTaUiiks
writ of error to Circuit Court of Appeals objection of misjotx
not raised therein nor in trial court

Syl. 2 (XII, 749). Estimated earning capacity of partner fc
missible.

Approved in West Chicago, etc., Ry. v. Maday, 188 lU. 810, BS
E. 934, holding inadmissible evidence of plaintiCTs earnings -
woodworking five years or more before injury; Whipple v. Rich,
Mass. 480, 63 N. E. 6, holding it error to permit person with
definite occupation or salary to testify as to '*fair and reasona^
value of his time;" dissenting opinion in Heer v. Warren, etc, C
118 Wis. 77, 94' N. W. 796, majority sustaining admission <rf €0
dence of character of plaintiff's business, capital Invested and av
age yearly profits where amount recovered waa two-thirds of p«
vious annual profits.

Syl. 3 (XII, 749). Declaration after accident not res gestae.

Approved in Marler v. Texas, etc., R. R., 52 La. Ann. 731,
So. 178, holding declarations of person injured in alighting fr^
train made several hours after accident in answer to inquln
not part of res gestoe.

Syl. 4 (XII, 749). Nonreversible error must be nonprejudicial.

Approved in United States v. Honolulu Plantation Co., 122 K
583, holding erroneous admission of material evidence as to
and capacity of sugar mill in suit for condemnation of lan<9
reversible error; United States v. Gentry, 119 Fed. Fed. 76, holiM
error in instruction as to rule concerning taking of timber O
public domain is reversible, prejudice being presumed; Chi^
Terminal, etc., Co. v. Stone, 118 Fed. 23, holding verdict Ik .
on evidence not strictly within allegations, but not objected
will not be disturbed; Choctaw, O. & G. R. R. Co. v. Holloway*
Fed. 4(15, holding erroneous charge as to care required not r^Fi
sible error where court rightly charged that defendant was ne
ligent in law; Krup v. Corley, 95 Mo. App. 649, 69 S. W. 611, boI<

90a

Notes on U. S. Reports. 158 D. S. 337-374

OP

I

. ^^ ^luestlOD of counsel assumingr existence of facts not proved
^^^^^lot permissible against objectioa; Paulson v. State, 118 Wis.
^^^^ ^ N. W. 775. lioldiQg admission of evidence of prior coq miction
defendant charged with murder is reversible error; dissenting
^oa Id Chicago House Wrecking Co. v. Blrney, 117 Fed. 81,
~? ^^ Jority sustaining charge as to measure of damages when con-
^^•^fed as a whole; dissecting opinion in Choctaw, etc, R. R* Co.
Tennessee, 116 Fed. 30, majority holding giving of erroneous
^^•^iruction twice during charge is not reversible where true nrle
r*"^^rly qualified is laid down In charge; dissenting opinion in
^^^ T. Warren, etc.. Co.. 118 Wis. 67, 80, 04 N. W. 792, 71*7,
^*^^ority holding award of $8,000, yielding two-thirds of flunuai
^*^ofit8 of basiness based upon evidence of character of business,
^^^*^pltal iDTested and annual profits is not excessive.

^^S U. S. 337-346. 39 L. lOOa PARK BANK v. REMSEN.

SyL 2 (XII. 74D). Statute maliing corporate trustee liable in
t>^iuil.

BigtlnguJshed in Kilton, etc., Co. v. Providence Tool Co.. 22 R. 1.
^l^S, 48 ifti HH2. holding suit to enforce stockholder's Individual
^l^hllity brought under section 22, chapter 180. Gen. Laws ISOG, Is
■lot penal within Penal Statute of Limitations.

^^^iS U. S. 346-356. Not cited.

^^SH. S. 356-366, 39 L. 1015, SHIPMAN v, STRAITSVILLE CENT
MIX. CO.

SyL 2 (XII, 750). Sufficiency of referee's findings open on appeal
^approved in Chicago, etc., Ry. Co. v. Clark, 178 D. S. 364, 44 L
'^05, 20 Sup, Ct. 928. holding whether judgment on findings and
^^^ifon of referee in trial without Jury was sustainetl by evidence
^ o^ea on appeal; Hudson River, etc., Co. v. Warner, 99 Fed.
7"^^ holding exceptions to admission of evidence before referee
** trial without Jury cannot be considered on appeal.

5?|l. 4 (Xllt 75lK Contract by one for others Is several.
-Approved in Arnold v. Producers' Fruit Co.. 128 Cal. 641, 61
^<. 285, holding contract between fruit company and several
'•'^wew for delivery of prunes to be separately dried and weighed
*^d commingled in store was several as to growers.
<XU, 750). Mtscellaneous-

CJted In Crane v. C. Crane & Co,. 105 Fed, 871, holding void for
^•JJt of mutuality contract whereby wholesale lumber dealer
*tr«i<J to furnish retail dealer with lumber required In trade dur-
^ «»Qlng year.

^ 0. 8. 366-374. Not cited.

"yS U. S. 375-416 Notes on U. S. Reports. 604

158 U. S. 375-407. 89 L. 1022, RICH v. BRAXTON.

SyL 3 (XII, 751). Federal equity courts enforce State remedies.

Approved in United States Life Ins. Co. v. Cable, 98 Fed. 704,
holding Federal equity court will entertain suit to cancel insurance
policy after death of insured where same was procured by fraud.

Distinguished in Smith v. Reeves, 178 U. S. 444, 44 L. 1144, 20
Sup. Ct. 922, holding consent given by State to be sued by CaL
Pol. Code, 8 3669, is limited to actions in State courts; Adone ▼.
Strahan, 97 Fed. 692, holding plaintiff out of possession cannot
sue in Federal equity court to cancel tax deed constituting clond
on title.

Syl. 4 (XII, 752). Equity interferes where legal remedy inade-
quate.

Approved in Twin City Power Co. v. Barrett, 126 Fed. 806, hold-
ing equity will appoint receiver to complete purchase of lands
under options obtained by plaintiff and transferred to corporation
which became insolvent; Jones ▼. Mutual Fidelity Co., 128 Fed.
520, holding Federal court will enforce remedy of Del. Stat March
25, 1891, authorizing appointment of receiver for Insolveht corpo-
rations; Hale V. Alllnson, 102 Fed. 792, 794, holding equity has no
jurisdiction of receiver's suit against stockholders on statutory liar
bility where legal remedy is adequate.

Syl. 6 (XII, 752). Equity avoiding void tax deed.

Approved in Ritchie v. Sayers, 100 Fed. 535, holding equity has
Jurisdiction of suit to cancel tax deed where invalidity does not
appear on face.

(XII, 751). Miscellaneous.

Cited in Sharp v. Shenandoah, etc., Co., 100 Va. 85, 40 8. B.
105, holding in case of adverse possession it is Immaterial that
claimant claims under person who claimed under several convey-
ances of separate parts of tract in question; State v. Tftvenner, 49
W. Va. 707, 39 S. E. 654, holding, under Acts 1872-73, former owntf
of lands forfeited for nonpayment of taxes may petition to redeem
same on payment of taxes and costs.

158 U. S. 408-^16, 39 L. 1033. CONNORS V. UNITED STATES.

Syl. 3 (XII, 752). Objection to indictment after judgment un-
availing.

Approved in Pooler v. United States, 127 Fed. 515, holding In-
dictment, under Rev. Stat, § 5438, for making or using false Yoncber
charging malting and using is not bad for duplicity; Wright r.
United States, 108 Fed. 811, sustaining indictment, under Rer.
Stat, § 5440, charging that defendant ** unlawfully did conspire
to defraud United States," stating purpose and acts done.

Notes on D. S. Reports. 158 V. B. 41(^-440

(in, 752). Miscellaneous.

Cited In Bolan v. United States, 116 Fed. 5S2, sostaltilng action
of triiU Court in overruling" challenge to Jurors who bad formed
<»Ptaiwi, but stated their ability to be governed by evidence,

158 U. S. 416^423, 39 L. 1036, ABRAHAM v. ORDWAY.

Syl 1 (XII, 753). Laches bars suit regardless of statute.
Approved In Potta v. Alexander, 118 Fed. 887. SOO, holding delay

of twenty years in enforcing contract for sale of timber bars

plalatirg claim-
Distinguished in American St Car Advertising Co. v. Jones,

1^ Fed. 809. holding assignee of patent and right to royalties

under license not precluded from recovering against Jlcensee where

<l«feadiiDt not injured by delay.

MSU.S. 423^31, 39 L. 1040, CUTLER x. HUSTON.
Syl 1 (XII, 753), State construction of chattel mortgage law

Approved in Williams v. Gaylord, 102 Fed. 374, holding, under Cai
Wt Ajjfll 23. 1880, as construed by State courts, sale of mining ground
by foreign corporation requires ratification by two-thirds of capital
itoclt; American Surety Co. v. Worcester Cycle Mfg. Co., 100 Fed.
H holding invalid as to subsequently acquired property chattel
mortgage where mortgagee did not talie poasesislon as required in
Cwiaeeilcut

Syl 3 (XII, 753). Circuit Court Judgment not collaterally at-
ticiabte.

Approved In Johnson v. Hunter, 127 Fed. 227, holding decree
^8t Hie of land of nonresident for ta.xes cannot be collaterally
itltclted on ground tliat there was no evidence of proof of publi-
^tJoii of summons.

1®U, S, 431-440, 39 U 1043, ERIE R. R. v. PENNSYLVANIA,

m^ pen, 754). State tax law Incidentally alfeetiug commerce.

AjjppoTed In Atlantic & Pacific Tel. Co. v. Fhiladelpbla, 190 C.

8. 163, 23 Sup. Ct 818, 47 L. 1000, holding interstate telegraph

CQioptny may he sohjected to reasonable municipal license fee

OTWlag cost of local supervision over poles and wires; Louisville

4k X It. R. Co. r. Kentucky, 183 U. S. 510, 46 L. 305, 22 Sup. Ct.

M, upholding section 218, Ky. Coast., and section 820, Ky. Stat..

prohShitisig charging of greater rate for shorter than for longer

iJini; Louisville, etc.. Ferry Co. v. Comm. of Ky., 108 Ky. 725,

57 g. W. 626, holding State may tax franchise of ferry company

doiDfcflL*d therein and conducting Interstate business; Cumberland

4 P4. R* R. Co. V, State, 92 Md. 682. 690, 48 Atl. 507. 510, sustain-

iA£ SULie tax on proportion of gross receipts of road organised

158 U. S. 441-461 Notes on U. S. Reports. 006

therein as length of line therein bore to whole length of line
dissenting opinion in Louisville & N. R. R. Co. v. Eubank, 184 U
S. 48, 46 L. 425, 22 Sup. Gt 285, majority holding unconstitutional
Ky. Const, § 218, prohibiting greater charge for shorter haul thai
for longer from point without State. See 90 Am. St Rep. 254, note

158 U. S. 441-447, 39 L. 1046, BENNETT v. HARKRADBR.
SyL 1 (XII, 754). Indeflniteness of description not fataL
Approved in McCarthy v. Phelan, 132 Cal. 406, 64 Pac. 571, bold

ing appellate court will not review action of trial court in granting

motion for new trial on ground that notice of location was void

for insufficient description.

Syl. 3 (XII, 754). Court presumes necessary instruction given.

Approved in Columbia Mfg. Co. v. Hastings, 121 Fed. 332, hold-
ing where record does not show that entire charge was set out
in bill of exceptions presumption is that court gave proper In-
structions.

(XII, 7M). Miscellaneous.

Cited in Tonopah Fraction Min. Co. v. Douglass, 123 Fed. 98&
holding bill, under Rev. Stat., § 2326, in support of adverse min-
ing claim, under Nevada practice, need not set out probative facts
supporting plaintiff's title; Clipper Mining Co. v. Eli M. & L. Co.,
29 Colo. 393, G8 Pac. 291, 93 Am. St. Rep. 99, holding actual knowl-
edge of existence of lode within placer claim at time of applica-
tion for patent for placer claim Is necessary for subsequent location
of lode claim.

158 U. S. 448-456. Not cited.

158 U. S. 450-461, 39 L. 1053, COLVIN V. JACKSONVILLE.

Syl. 1 (XII, 755). Certilicate of division required during term.

Approved in Chamberlin v. Peoria, etc., Ry. Co., 118 Fed, 33,
holdiug, under section 5, judiciary act 1801, Circuit Court must
certify jurisdictional question to Supreme Court during term at
which decree rendered; Keed v. Stanley, 97 Fed. 524, holding part}
defeated in Circuit Court cannot appeal to Supreme Court when
jurisdictional question was not certified during term.

Syl. 2 (XII, 755). Dismissal where jurisdiction lacking.

Approved in Daugherty v. Hood, 179 U. S. 680, 45 L. 383, 21
Sup. Ct. 917, reaffirming rule.

Syl. 3 (XII, 755). Taxpayer's Interest gives jurisdictional amount

Approved in Caffrey v. Olvlahoma Territory, 177 U. S. 348, 44
L. 801, 20 Sup. Ct. GG5, holding county clerk not being a taxpayes
cannot appeal to Supreme Court from territorial decision requtr
ing compliance with order of board of equalization to increas4

mi

Notes on U, S. Reporta. 158 D. S. 4(il-538

■MWimeiit; Riverside & A. Ry, Co. t. Riverside. 118 Fed, 743»
holding unount In controversy In suit to enjoin city from cutting
of electric power is value of plaintiff's rights under contract

Distinguished in Colston v. Southern Home, etc, Assn., m Fed.
307, holding court will not entertain suit, hence will not determine
whether jarisdictlonal amount l» involved where suit tor same
purjxwe, appointment of receiver, is pending in State court,

158 U. S. 461-477, 39 L, 1055, LEHIGH VALLEY R, R. v*
KIAHNEY.

Syl^ 1 (Xir, 755). Patent confined to particular device.

Wsthiguished In National Hollow*, etc., Co. v. Interchangeable,
*tc., Co.. 106 Fed. 714* holding llien patent No. 361,009, for bralie
*>««in^ not confined to caps nor form of caps shown in drawings.

^5SU, S, 478-(KH, 39 L. lOGl, GREEN v. BOGUE.

8jL 1 (XII, 755), Equity rule 33 modifies prior rule.

ApproTed In Soderberg v. Armstrong. 110 Fed. 710, holding,
uiidw equity rule 33, the filing of general replication to plea In
^r aoe« not admit sufficiency of plea.

I^U. 8. 505-531. 39 L. 1070, CLARK v. REEDER,
%L 3 (XII, 756). Vendee Investigating cannot claim reliance on

DlstlD^isbed in Alger v. Keith, 105 Fed. Ill, holding where
^^'O'lilalniint's Investigation of property for himself is rendered 11-
Ittioryand misleading by bribery of agent or other fraud of vendor
PB^cbteer may rescind.

^11, 7o4J). Miscellaneous.

ClN la Alger v. Keith, 105 Fed. 114, 122, holding execution of
"Ptiuu contract by landowner does not constitute the option-holder
P^ »^ agent of owner.

^ C. S, 532-538. 39 L. 1080, IN RE QUARLES.
^yl 2 <7C1I, 750), Congress provides protection for Federal

■Approved In In re LaJng, 127 Fed. 216, holding Federal court
Iw Juflfldlctlon on habeas corpus to determine whether its oflicers
MrttKj lo State court are lawfully held.

I*ij"tlugiiiBhcd in United States v. Eb^rhart, 127 Fed. 255, hold-
i^t imllctmeni chargiug conspiracy to compel a citizen to enter
iftto iitXHiT contract by use of force charges no crime within Rev.
leoOb: Lackey r. United States, 107 Fed. llC, holdiuK' void
AiU i 5507, declaring that ev&ry person preventing or in-
ittng anotber from voting by bribery or threats shall t>e

158 U. S. 538-550 Notes on U. S. Reports. eo

Syl. 7 (XII, 756). Conspiracy to Injure Informer of Tlolatio
punishable.

Distinguished in United States y. Lackey, 99 Fed. 961, upboldln
Rev. Stat, § 5508, for punishment of conspiracies to prevent ei
Joyment of " any right or privilege secured by Constitution.'*

158 U. S. 538-550, 39 L. 1082, LEM MOON SING ▼. UNITE]
STATES.

Syl. 1 (XII, 756). Motion may exclude foreigners.

Approved in In re Sing Tuck, 126 Fed. 388, 389, 391, boldin
Congress, under its power to exclude aliens, may commit questio
of citizenship in first instance to immigration officers witb appei
to head of executive department

Syl. 3 (XII, 757). Congress may give executive officer flni
power.

Approved in The Japanese Immigrant Case, 189 U. S. 97, IW
23 Sup. Ct 614, 47 L. 724, 725, holding Federal courts wfl
not intervene by habeas corpus to prevent deportation of ali«
by executive officers where alien had notice of proceedings; L«
Lung V. Patterson, 186 U. S. 175, 46 L. 1110, 22 Sup. Ct 797, hor
fng collector of customs, though disregarding certificates miM
evidence of right to entry by exclusion act 1884, has jurlsdictK
to determine finally right to enter; Fok Young Yo v. Uni^^
SUtes, 185 U. S. 302, 304. 46 L. 919, 921, 22 Sup. Ct 689, bold

dc<>i8ion of collector of customs denying Chinese citizen rlgbt

transit across this country is not reviewable on habeas cor
United States v. Wong Chow, 108 Fed. 377, 378, holding court
no jurisdiction to review legality of order of deportation m
by immigration officer and not appealed from; United Stat
Gin Fung. 100 Fed. 390, holding, under act August 18, 1894, nss
ing customs officer's decision final courts cannot on habeas comr^
review denial of right to land.

Distinguished in Li Sing v. United States, 180 U. 8. 490, 4S
636, 21 Sup. Ct 451. holding decision of collector of customs J
milting an alien does not preclude United States commissfod
from examining question; Lavin v. Le Fevre. 125 Fed. 695, hal«
ing whether Immigration officers in deporting alien proceed *<
cording to law is Judicial question; United States ▼. Burke^ ^
Fed. 899. holding riglit to enforce penalty against foreign ship f^
violation of immigration laws is Judicial and subject to jurisdiction
of courts.

Syl. 7 (XII. 757). Allen's personal and property rights protected*
Approved in Downes v. Bid well,. 182 U. S. 283, 45 L. 1105, 21
Sup. Ct 7S5, holding inhabitants of Porto Rico, whether aliens of
not are entitled to protection of life, liberty and property.

m

Notes on U. S. Reports. 15S U. S. 55O-600

^

»

fXU, 756). Miscellaneous.

CUfti In United States r, Hxmg Chang, 128 Fed, 404, holding
''^'^(edlag for exclusion of Chinese as to whether accused Is a
^eBC person Ib a criminal proceeding.

^^ U. 8. 6«S0-564. 39 L. 1086» BEARD v. UNITED STATES.
%l 2 (XII, 758). Hypothetical case apart from evidence, error.

Approved In Bird v. United States, 180 U. S. 362, 45 D. 573, 21
^p. Ct 406, holding erroneoiis Instructions which leave jury to
^^^ opon question of guilt of one accused of homicide without
^tefence to evidence given by accused In own behalf,

SyL 3 (XII, 758). One may repel unprovoked deadly assay It

£ Approved In Hammond t. People. 199 111. 182, 64 N. E. 983, hold-

^^^^ erroneous instruction that no %vords or threats would justify
nit unless accused had reasonable ground to fear great bodily
and could not escape; State v. Bartlett 170 Mo. B^, 71 S. W.
1» holding accused was jnstltied in shooting assailant, physically
^*^3perIor, after former retreated to door and found same locked;
^«aie V* Clark, 51 W. Ya. 4G4, 41 S. B. 207, sustaining refusal to
^^^^^tract that person may repel force by force In defense of prop-
~ to extent of killing. See 74 Am. St Rep. 730, note.

(XII, 758). Mlscellaneoua.

Cited In United States v, Lewig, 111 Fed. 635, holding no man
avail himself of necessity to kill la self-defense where he lias
■^r^ught necessity on himself.

U. S. 564-600, 39 L. lt)02, IN RE DEBS.
ByL 3 (XII, 758). Unlawful Interference with mails prevented.
Approved in Wabash R. R. Co. v. Hannahan, 121 Fed. 5tjo, sui-
"^^^fc^lntng bill for preliminary injunction to enjoin labor organization
^^»^oi causing strike among complainant's employees in interfering
"^^Ith carriage of malls; dissenting opinion In Missouri Pacific Ry,
^^^X T. United States, 18& U. S. 288, 23 Sup. Ct. 511, 47 L. 816,
^■Mtjority holding suit to enjoin carriers from discriminating be*
^^€€0 localities violating act to regulate commerce could not be
^*cught by United States law officers prior to act 1903.

DUtinguIahed In State v. O'Leary, 155 Ind. 533, 58 N. E. 706.
Wdiag plaintiff not entitled to order restraining keeping of gam-
bUag^^ouse where there was no proof of actual or probable Injury
t» property rights.
Bfh 5 (Xn, 759). Appeal to courts to prevent dlsoliedieoce.
Approved In Missouri v. Illinois, 180 U. S. 236, 45 L. 510, 21
*iip, Ct- 342, holding threatened daily transportation of large
<jiiantlUes to Mississippi river by Chicago sanitary district injuring
VoL III— 39

158 U. S. 564-600 Notes on U. S. Reports. 61<

Missouri water supply, creates controversy between States; Stat*
V. Zachritz, 166 Mo. 314, 65 S. W. 1000, holding, under Rev. Stat
1899, $ 4943, attorney-general may maintain injunction suit ij
name of State to enjoin bookmakers obtaining licenses by fraud.

Distinguished in Louisiana v. Texas, 176 U. S. 19, 44 L. 354
20 Sup. Gt. 257, holding enforcement of regulations established b:
Texas health officer, which places embargo on interstate commie
from Louisiana, creates no controversy between States.

Syl. 8 (XII, 759). Injunction against public nuisance.

Approved in Muncie Nat Gas Go. v. Muncie, 160 Ind. 106, 6*
N. E. 440, holding city may sue as representative of inhabitant
to enforce contract of gas company to supply gas to consumers a
fixed price.

Syl. 10 (XII, 759). Equity cannot enjoin commission of crime.

Approved in dissenting opinion in State v. Wood, 155 Mo. 476, 5<
S. W. 487, majority issuing writ of prohibition to restrain Circoi
Gourt from proceeding in injunction suit to restrain enforcemen
of beer inspection law.

Syl. 11 (XII, 759). Injunction protects property against crimina
acts.

Approved In Illinois Gent Ry. v. Gaffrey, 128 Fed. 774. boldiia
equity will enjoin ticket brokers from purchasing unused portic
of valid nontransferable return tickets and reselling same; Uni«i
Pac. R. R. Go. V. Ruef, 120 Fed. 106, 111, 125, awarding injuncti^

against union pickets and sympathizers stationed around compla

ant's carshops interfering with, threatening and assaulting ^
ployees; Southern Exp. Co. v. Mayor, etc., of Ensley, 116 Fed. 19
holding equity will restrain enforcement of invalid ordinance
posing license fee on interstate express companies; United Stc^
V. Haggerty, IIG Fed. 517, holding equity will enjoin stril^
coal miners from camping near mine to incite laboring miner^ai
strike; Uelnecke Coal Min. Co. v. Wood, 112 Fed. 483. sustaicm
motion for Injunction pendente lite to prevent union men T"*-
niaintaining camps of armed men near complainant's mines to
tlmidjite nonunion laborers; Southern Ry. v. Machinists*, etc., Unf *
111 Fed. 50. 51, 52, 53, enjoining members of labor unioa Tr^
intorfering with nonunion men and their employers; Wong Wai
Williamson. 103 Feii. 5. holding equity will grant injunction ^
straining health officers from enforcing unlawful restrictions u/^^
right of plaintiff to travel in Interest of his business; State
O'Leary, 155 Ind. 532, 58 N. E. 7(X), holding circumstance that a<r ^
constituting nuisance are punishable as crimes or misdemeanors ^
not sufficient to defeat Injunction; Cumberland, etc., Mfg. Co. "^
Glass Blowers' Assn.. 50 N. J. Eq. 56. 46 Atl. 210. holding equlrJ
has Jurisdiction to enjoin continuing trespass to property by stri)^

611 Notea on tJ. S. Reports. 158 U. S. 564-^00

lug workmen; dissenting opinion in National Protective Assn. v.
Cunimlj]f, 170 N. Y. 348, 63 N, E. 380, majority affirming order of
lower court refusing injunction against unJou whicU refuses to
allow Ita members to woi-k witli members of rival organization,
*^ee 88 Am. St Rep. G70, note.

%l 12 (XU. 759). Court inquirmg into disobedience of injunc-
tion.

^Ppro?ed in Ex parte Haggerty. 124 Fed- 446, ordering petitioners
'^Pfisoned for violtttlon of injunction against str liters remanded
'^ euatodj of Jailer; Ex parte Richards. 117 Fed. 668. fining per-
^^i foQfld guilty of violating Injunction against union men to
^Tent interference with complainant's laborers, and ordering
^inmlttment until payment; In re Meggett, 105 Wis. 203, 81 N, W.
■^^O, holding court having power to order repayment of money re-
^iTed (n violation of injunction may punish refusal as contempt.
I ^stlngulshed in In re Ruse. 107 Fed. 94G. 047* holtling person not
[ f^^^J defendant cannot be punished for contempt in violating in-

y^^)ctlon on tlieory that he Is bound by the order,
(yl 13 (XII, 700). Contempt proceedings are not criminaL
approved In In re Nevltt, 117 Fed. 453, holding commitment of
Dty judge to prison until compliance with mandamus directing
J of tax is civil in its nature; Kipon Knitting Works v. Schrelber,
r^ Fed. 812» 814, holding Bankruptcy Court hna power to punish
^^ Imprisonment bankrupt refusing or neglecting to surrender
^*operty to trustee as ordered; In re Meggett, 105 Wis. 2Q7, 81 N. W.
•^^2, holding imprisonment until repaymeni; of money received In
w loladoQ of Injunction is not imprfsonment for debt
I 8yl 15 (Xll, IWh Contempt fine not substitute for prosecution.
approved In State v. Murphy. 71 VL 137, 41 Atl. 103S, uphold-
C VL Stat, §$ 4512, 4524, authorizing abatement of liquor nnl-
by injunction and authorizing punishment of violation of
s^JoQction as a contempt

^ 16 (XII, 700). Habeas corpus — Contempt proceedings not

Approved in In re Nevitt 117 Fed. 449, 4S2, 456, 461, dismissing

l^^tions for writ of habeas corpus to discharge Judges of County

^un Imprisoned until compliance with mandamus ordering levy

'^^ Ui; In re Parquet, 114 Fed, 440, denyiug writ of prohibition to

^irtult Court In contempt proceedings wbere no appeal or writ of

•"'w was taken.

(Xn, 758). Miscellaneous.
^ Cited in A. B. Farquliar Co. v. National Harrow Co.. 102 Fed.
'15, holding complainant entitled to injunctive relief against err-

158 U. S. 601-715 Notes on U. S. Reports. 612

dilation of circulars in bad faith claiming infringement of patent
and threatening suit

158 U. S. 601-715, 39 L. 1108, POLLOCK T. FABMEBS' LOAN,
ETC.. CO.

Syl. 2 (XII, 760). ''Duties, imposts, excises," means indirect
taxes.

Approved In Fahrbank v. United States, 181 U. S. 296, 45 L. 868^
21 Sup. Ct 653, holding unconstitutional stamp tax Imposed on
foreign bill of lading by act June 13, 189&

Syl. 6 (XII, 761). Invalidity of part invalidating whole law.

Approved in Harper v. Commissioners, 133 N. C. 113, 45 S. E. 528,
holding invalid act March 3, 1903, authorizing commissioners to
erect fences and to levy tax to replace money so used.

Distinguished in Northwestern, etc., Ins. Co. v. Lewis, etc, Co.,
28 Mont 496, 72 Pac. 985, holding invalidity of Qv. Code, | 681,
providing that insurance companies should be subject to no other
tax, does not vitiate balance of section.

Syl. 7 (XII, 701). Tax on Income from realty is direct

Distinguished in Spreckels Sugar Ref. Co. v. McClair, 192 U. 8.
413, 24 Sup. CX 381, holding special excise tax imposed on sugar
refining by war revenue act 1898 is an excise, not a direct tax;
Knowlton v. Moore, 178 U. S. 53, 79, 44 L. 974, 985, 20 Sup. Ct 752,
762, 763, upholding tax upon legacies and distributlTe shares im-
posed by war revenue act June, 1898.

(XII, 760). Miscellaneous.

Cited in Peacock v. Pratt 121 Fed. 776, 778, upholding Hawaiian
income tax law (act No. 20, pp. 31-35, Sess. Laws 1901); Corbus t.
Alaska, etc., Min. Co., 99 Fed. 335. 336, 337, holding injunction will
not lie agaiust corporation to restrain it from applying for license
and paying fee pursuant ta alleged unconstitutional law.

CLIX UNITED STATES.

150 U. 8. 3-20, 40 L. 55, WHITE v. VAN HORN.

SyL & (XII, 762), Signing own name as another is forgerj.

Approred In In re Count De Toulouse Lautrec, 102 Fed. 882^
haldlDg person Issuing a^ genuine and without alteration copies of
bonds made hy engraver for corporation but never delivered to it 1b
S^ty of uttering forged inBtruments,

159 U, S. 21-36, Not cited.

15» U. 8, 3^-40, 40 L, 07, WHITE 7. EWING.

Syl 1 (XII, 763). Citizenship immaterial in Federal receiver's

Approred In Bottom v. National Ry. Bldg.p etc., Loan Assn,, 12Si

Fel 745, 74B, holding Circ\iit Court appointing receiver for loan

*«ociition has jurlsdirtlan of suit against borrowing member re-

irtnlless of citizenship; 8leeper v, Winket, 122 Fed. 737, holding

rw«lver of insolvent biiildlDg and loan association, appointed bj

Circuit Coiu't with power to briag and defend suits, may bring

wU f or J20t> In Federal court; Alexander v. Southern Home B. & L.

Amo., I2i) Fed, 904, holdJtij? Federal court appointing receiver for

•oaii aKsocintion has Jurisdiction of suit to collect assets below

JurliUktional amount; Home ins. Go, v, Virginia-Carolina Chemical

Co., 100 p^^ \^}^ holding equity has Jurisdiction regardless of

cinEenglilp of parties of hill by defeudant insurance companies,

«^ at taw in Circuit Court to enjoin proceedings at law and de-

tWTulae liability; Eau Claire v, Payson, 109 Fed. 680, holding

«ntite« Ui mortgage by water company to city cannot maintain

■wit IQ equity for rentals due water company where company's

ri^t i« legal; In re Steiicr, KJ4 Fed, 978, 979, tiolding contest on

flitTits of suit to recover prefercDcc without objection to Jiirisdic-

tioa njDounts to consent to Jurisdiction within se<?tion 23h, banl?-

f^ptej' act 1H9S; Cuiinitipliam v, Cleveland, 98 Fed. 0«]1, hoiiilng

*^iulty lifts jurisdiction lo autiiorlze receiver In suit to wind up

con^Jftttlon to bring in by ancillary 141 1 a debtor of corporation

to enforce Indebtedness; Murray v. Beal, 07 Fed. 508. holding

Bankruptcy Court hus no jurisdiction of suit by trustee to quiet

firle to bankrupt estate where bill did not show rlgiit origiuaily

refte^l in i>aui*-rui»t; Shinney v. North American Savings, etc., Co..

87 Fed. 12, balding suit against Federal receiver ancillary to suit

lOlo]

159 U. S. 40-46 Notes on U. S. Reports. ' 614

in which he was appointed is not dependent upon citizenship or
amount involved.

Distinguished in In re Michie, 116 Fed. 753, holding bankruptcy
has no Jurisdiction over suit by trustee against transferee of
bankrupt's property making adverse claim and objecting to Juris-
diction; Gableman v. Peoria, etc., Ry. Co., 101 Fed. 4, holding action
against railroad receiver for personal injuries is not removable
on sole ground of Federal appointment; Pendleton v. Lutz, 78 Miss.
326, 327, 330, 333, 29 So. 164, 165. 166, holding, under section 3.
act March 3, 1887, Federal receiver cannot remove suit involving
less than $2,000, such suit not being ancillary to litigation in Fed-
eral court.

159 U. S. 40-46, 40 L. 68, HORNB v. SMITH.

Syl. 3 (XII, 763). Meander lines are not boundaries.

Approved in Kean v. Calumet Canal Co., 190 U. S. 459, 23 Sup.
Ct. G52, 47 L. 1137, holding Federal patent to Indiana, pursuant to
swamp land act 1850, of " whole of fractional sections " on gov-
ernment plat, carried portions submerged under navigable water;
French Glenn Stock Co. v. Springer, 185 U. S. 52, 46 L. 803, 22 Sup
Ct. 565, holding presence of meander line along side of lake is not
conclusive of existence of such lake, such existence being a qnestlori
of fact; Washougal Transp. Co. v. Dalles, etc., Nav. Co., 27 Wash.
497, 68 Pac. 77, holding grant of upland bordering on navigable
river carries to high-water mark and not limited by meander line
along river.

Distinguished in McGrath v. Myers, 126 Mich. 215, 85 N. W.
716, holding where purchase-money mortgage provided for dis-
charge if vendor during life failed to convey perfect title, failure
to secure release of possible claim for rents and profits was dis-
charge.

Syl. 5 (XII. 763). Survey placing boundary at bayou governs.

Approved in Security Land, etc., Co. v. Burns. 87 Minn. 106. 91
N. W. 307, 94 Am. St. Rep. 691, holding boundaries of lots appearing
from government plat to abut on nonexistent body of water cannot
be extended; Canavan v. Dugan, 10 N. Mex. 321, 62 Pac. 973. holding
where monuments establislied by United States surveyor in sub-
dividing a township contradict field notes, former control boundary:
dissenting opinion in Kean v. Calumet Canal Co., 190 U. S. 490, 23
Sup. Ct. 664. 47 L. 1149, majority holding Federal patent to
Indiana of " whole of fractional sections," referring to government
plat, convey portions submerged by navigable water.

Distinguished in Murphy v. Kirwan, 103 Fed. 108. holding, after
causing survey of township containing navigable lake, and of mean-
dering of lalie, United States cannot claim meander line inaccurate
and destroy riparian rights of purchasers.

ms

Notes OB D. S. Reports.

159 U. S. 4G-93

U. S. 4C^a2, 40 L. 71, WISCONSIN CENTRAL It. R. y. FOR-
SYTH.
SjL 5 (XII, 764). Courts not bound by (Jepartmental con-

wtJoa

Approved Id United States v. Beebe, 117 Fed, 670, holding order of
s^mary of treasury for rellquidation of eotry based on exchange
Talne instead of pure metal value of foreign coin is reviewable by
courts; King t. M*Aodrews, 1<H Fed. 432, holding patent to land
tbovni hy patent to have been previously appropriated is void aod
not idrnlsslble as evidence of title,

DlstiBfTulshed In King v. McAndrews, 111 Fed. 86S. 873. S74.
hol(Jlng patents issued by land department under act Marcli 2.
1^. for land previously included In Indian reeervation, impervious
to coUateral attack.

Syl 6 (Xllt 764K Grant of reserved sections Is mere enlarge-
ment

Approved In dissenting opinion In Hewitt r, Schuitz, ISO U. S.
ISfit 45 L, 473. 21 Sup. Ct 317. majority following land depart-
lQ«f I construction of Northern Pacific land grant 1804, that such
gem did not autborisse withdrawal of Indemnity lands upon ap-
proval of definite location.

15»U. 8, 62H>5, 40 L. 7€. SPENCER v. McDOUGAL.

8yll (XII, 765). Withdrawal though excessive bars pre-emption.

Approved In O'Connor v. Gertgens, 85 Minn. 490» 491, 89 N. W.
W, 870, holding no settlement can be made on public lands after
««ciitive wltlidrawal thereof until such lands are restored; dls-
«Bting opinion In Hewitt v. SchuItK. ISO U, S. 15t>, 45 L. 473. 21
Slip. Ct 31 7» majority following department's construction of
^Vlhem Pacific grant 1SG4, that such grant did not authorize
''Itliilruwai of indemnity lands on approval of map of definite
loatlon.

l^U. 8, 6^-73, 40 U 77, TEXAS, ETC., RT. v. SMITH.

^H 1 (XII, 765). Adverse possession based on receiver's eer-
tiflcat^,

8ee TO Am. St Rep. 483, note.

^ U, S. 74-87. Not cited.

l^ V. 8. 87-95. 40 L. 85, GRAND RAPIDS, ETC., R. R. CO. v.

BUTLER.

Syl. 3 {Xll, 7€6), Local law governs public land grant

Approved In Hardin v. Shedd, llMi U. S. 511), 23 Sup. Ct 685, 47

L 1157, holding, under Illinois law, patentee of upland does not

fttie ndjolniog land below water line; dissenting opinion In Keaii

f. Calotaet Canal Co., 190 U, 8. 4S2, 483, 23 Sup. Ct 6tiO, 601. 47

159 U. S. 95-112 Notes on U. S. Reports. 616

L. 1146, majority holding Federal patent of "whole of fractioiial
sections/' referring to official plat, carries portions submerged under
navigable water.

Syl. 4 <XII, 766). Grant carrying to thread of stream.

Approved in Kean v. Calumet Canal Ca, 190 U. S. 469, 461, 23
Sup. Ct 652, 47 L. 1187, 1138, holding Federal patent of "whole
of fractional sections," referring to official plat, carries portions
submerged by navigable waters.

Distinguished in Carr v. Moor^, 119 Iowa, 156, 93 N. W. 53, hold-
ing, under Iowa law, title of Federal patentee to lands bordering
on meandered body of water does not attach to submerged land
on sudden drying up of water.

159 U. S. 95-100, 40 L. 88, IN RE BELT.

Syl. 5 <XII, 767). Habeas corpus to review declaton within
Jurisdiction.

Approved in Ex parte Post, 190 U. S. 567, 24 Sup. Ct. 860, 47 L.
1183, reaffirming rule; Carter v. McClaughry, 183 U. S. 388, 46 L.
249, 22 Sup. Ct 190, upholding sentence of army coun-martial,
inflicting both fine and imprisonment for separate offenses under
sixtieth article of war.

159 U. S. 100-103. Not cited.

159 U. S. 103-112, 40 L. 91, CENTRAL LAND CO. v. LAIDLEiT.

Syl. 2 (XII, 767). Supreme Court reviews decision upholding
statute.

Approved in Houston & Texas Cent. R. R. Co. v. Texas, 177
U. S. 77, 44 L. 680, 20 Sup. Ct 549. holding State decision giving
efifect to State statute alleged to impair obligation of contract war-
rants writ of error to Supreme Court though such statute not In
terms mentioned.

Syl. 3 (XII, 7G7). Legislative act not Judicial decision decision,
impairs contract.

Approved in Gates v. Parmly, 191 U. S. 557. 24 Sup. Ct 843. and
Baltimore, etc., Ry. Co. v. Mayor, 179 U. S. 681. 45 L. 384, 21 Sup.
Ct 918, both reaffirming rule; Weber v. Kogan, 188 U. S. 14. 23 Sup.
Ct 264, 47 L. 3G5, holding obligation of no contract was Impaired by
Judicial construction of State statute authorizing sale of school
lands, which statute created, no contract: Mobile IVansportatlon
Co. V. Mobile, 187 U. S. 488, 23 Sup. Ct 174, 47 l! 272, holding
change of view by highest State court as to private ownt»^rship uu
tide water involves no question of impairment of contract: Plnnoy
V. Nellson, 183 U. S. 147, 40 L. 127, 22 Sup. Ct 54, holding obliga-
tion of contract of stockliolders in foreign corporation cannot he
impaired by Code provision prior to incorporation; Gulf & Ship
Island R. It Co. v. Hewes, 18,S U. S. 7G, 40 L. 91, 22 Sup. Ct 30,

Notes on U. S. Reports.

159 U. S. 113-235

boldJng Supreme Court cannot review State Judgment holding tlint
rep^alabJe exemption of corporation from taxation liad been re-
pealed; Tazoo & M. V. R. R. Co, t, Adams. ISO U. S. 46. 45 L. 417,
21 Sup. Ct 258. holding decision of State court simply conetrnlnff
charter contract does not involve Federal question; Falconer v.
Slnmions, 51 W. Va, 177, 41 S. E. 196. holding decision overruling
^rUer decision ts regarded as always having been the law and
doefl Bat Impair obligation of contract; Weston v. Ralston. 48 W. Va.
189. 36 8. E. 454, holding decision that limitation bars right to pub-
Ue itreet Is no law.

Syl 4 (XII, T6S). Due process not denied by erroneous decision.

Approved In Weston v. Ralston, 4S W, Va. 1S7. 36 S, E. 454,
hoMlDg decision of State court rendered in regular course of judicial
proceediags cannot be said to constitute taiiing of property with-
OQt cine process.

Diitln^utshed In Loeb v. Trustees of Columbia Township, 179
U. 8. 493. 45 L. 291. 21 Sup. Ct. 1S2. holding Federal courts will
deterinine rights arising under contracts of nonfederal nature ac*
cording to State law as maintained by highest State court at time
rtglit bccnied.

(in, 767), MlBceilaneous.

C Cited in Huntington v. Laidley. 176 U. S. 670. 44 L. 632, 20 Sup.
Ct il2<j, iioidlng direct appeal from Cireult Court may be raain-
Ulned where decree dismissing bill, order allowing appeal and
certificate of court show Jurisdiction was sole question.
150
KBttti

^ tl. S. 113-235. 40 L. 95, HILTON v. GUXOT.

SjL 9 (XII, 769). Personal Judgment^ foreigner versus citizen,
iBWiuJly binding.

S*e note. 94 Am. St Rep. 550. •

SyL 10 (Xll, TC9), Foreign Judgments prima facie evidence only.

-ApproTed in Union, etc., Baali v. Metuphis, 111 Fed. 570. 571«

^^^Uii State Judgment involving exemption from taxes, which

^ letlied rule in such State Is res Judicata only as to partlcuitir

ilX^ larolved. has no greater scope in Federal courts; F, Miller

Bwv. Co. V. Insurance Co., Ill Iowa, (Mh 82 N. W. 102G, holding

i*ta>€nt of Wisconsin court which had Jurisdiction over parties and

•oyecMDatter will be recognized as binding on parties In Iowa; dls-

*mifiS opinion in Nashua Sav. Banli v. Anglo-American, etc., Co.,

W FW, 771, majority holding testimony of Euijliifh solicitor ia

nt authentication of English companies act under whlcn

, n corporation was sued. See 94 Am. St, Rep. 544, note.

Bjh 14 rXII, 769>. Fair trial on merits not reopened.

Ipproved Id Strauss v. Conriedt 121 Fed. 2W, holding Judgment

Austrian court having jurisdiction will be accepted by courts

159 U. S. 235-251 Notes on U. S. lleporta. 61

of United States as conclusive between parties; Gioe t. Westerveli
116 Fed. 1017, holding Italian judgment rendered In due course b
court having Jurisdiction of parties controls Federal court; Amer
can Mut Life Ins. Co. v. Mason, 159 Ind. 18, 64 N. E. 526, hole
ing where transcript of record of Judgment of sister State showin
presence of Judge and that court had seal and clerk, Jurisdictio
of subject-matter and parties presumed. See notes, 94 Am. S
Rep. 541, 548, 550.

Syl. 15 (XII, 769). Appearance giving Jurisdiction of person.

See note, 94 Am. St Rep. 536.

Syl. 17 (XII, 769). Fraud Impeaching Judgment must be eztrinsl*

Approved in Pipln v. Lautman, 28 Ind. App. 77, 62 N. B. 6:
holding defeated party in action at law not entitled to new trli
on ground of fraud consisting in alleged perjured testimony <
adversary.

Syl. 18 (XII, 769). Comity in recognizing foreign jadgments.

Distinguished in MacDonald v. Railway, 71 N. H. 4&4, 456. t
Am. St. Rep. 557, 52 Atl. 986, holding plaintiff falling to presei
public policy of his State In case In foreign court cannot object t
binding force of such Judgment.

159 U. S. 235-243, 40 L. 133, RITCHIE v. McMULLBN.
Syl. 5 (XII, 770). Fraud in foreign Judgment must clearly appea
Approved in Atlantic Trust Co. v. Dana, 128 Fed. 222, holdlfl

ineffectual as charge of bad faith allegations that trust compa:

caused decree to order payment *' whereby through the cunnlna

money was placed beyond reach.

Syl. 6 (XII, 770). Canadian judgment not reviewable on meir !

Approved in Union, etc., Bauls-v. Memphis, 111 Fed. f»70, holdi
Federal court accords State judgments same force as rule of
cislon In such State gives them; Harrison v. Graham, 110 Fed. SS
denying petition for writ of ue exeat against resident of Caiia«
where court by subpoena had jurisdiction to render Judgment whim
judgment would be respected in Canada; MacDonald v. Railwa
71 N. H. 456, 93 Am. St. Rep. 559, 52 Atl. 986, holding person fafl
ing to present public policy of his State when sued in CanadiiL
court cannot object to binding force of such Judgment upon bins
See 94 Am. St. Rep. 542. note.

159 U. S. 251, 39 L. lifJS, IN RE DEBS.

(XII, 770). Miscellaneous.

Cited In In re Parquet, 114 Fed. 440, denying writ of prohlbitioi
to stay proceedings in Circuit Court where appellate Jurisdictio
not Invoked by appeal or error.

on U. S. Rpports. 15D U. S 264-348

^39 U. a 264, 40 U 142, RICHARDSON v. GREEN.

(XII, ). MJacellaneous.

Cited to Wart v. Wart, 117 Fed. 768, holding, under Iowa statute,
^*tlemJ court may entertain contest of probate of will where
fc^lulAJte amount Is Inrolved and diverse citizenship exists; O'Cal-
khm T. O'Brien, 116 Fed, 930, 943, holding Federal court having
*'*^i>cmTent jurisdiction with State court has no rigrht to refuse
^*^mgon ground that State suit involving saoie pardcB and issues

^* U. S. 278-292, 40 L. 150, SIMMONS v. BURLINGTON, ETC.,

^1, 3 (XII, 770), Seven years' acquieseuce bars redemption.

-^pprDved In Gunnison v, Chicago, etc., Ry. Co., 117 Fed, tilti,

^^ItlJng delay of thirty years in enforcement mortgage against

j^^lfojid bai-s riglit; Julian v. Central Trust Co,, 115 Fed. 961, hold-

'**'^: neither mortgagor nor judgment creditor can claim that

. *^*"^perty did not pass by sale to foreign corporation; Rothehild v,

^^^^mphjB, etc., R. R. Co., 113 Fed. 482. holding minority stockholders

'^ ^t full knowledge of proceedings cuimintiting in sale, making no

^^^Jection to sale and allowing expenditure l>y purchaser, cannot

"^'" ^d sale.

i^^^^U. S, 2^3-802, 40 L. 155, RICHMOND NERVINE CO v. RICH-
* MQND,

^_ ^^yl 1 (XII, 770). Trademark, with originator's name and por-
^^*^^lt, assignable.

Approved in Peck Bros., etc., Co. v. Peck Bros. Co., 113 Fed, L»1JU,
ding sale under decree of court of property of manufaituriii^r
^"*T>oration, Including ** franchise, name and good will,'* carries
^^-4« name.

V. S. 303-316, 40 L. 101, GILFILLAN v. McKEE.
^JL2 (XII, 771). Single party appealing from severable decree.
tii«tlnguished In Ay res v. Polsdorfer* 105 Fed. 739, holding writ
- ^ error sued out by one of two defendants In ejectment, eacir
^^Imlng title, will be dismissed; Grand Island, etc., R. R. Co. v.
^^eeney. 103 Fed, 345, 34^5, holding where different parties claim
^"^tig^* liens on i^ame property there Is no separable controversy
^i^^^ ^^ tU must join in appeal,

^^ tl. S. ai7-33L Not cited.

^U, 8* E32-M8, 40 L. 171, McCORMICK v, HATES,
tyl 1 (XII, 772). Special tiibunars decision within authority
ftoil

ApjiroTed in Robarda Tobacco Co. v. Franks, 103 Fed. 2SU, huld-
mg msteflsment by collector of six cents a pound on tobarco still

159 U. S. 349-372 Notes on U. S. Reports, C20

remaining in factory was Judicial determination of fact of removal
for purpose of taxation; Bates y. Halstead, 130 Cal. 63, (SZ Pac.
305, holding where list accompanying plat of lands selected by
State under swamp land act included only lands within boundary
of meander line, such only passed; Small v. Lutz, 41 Or. 577, 579.
69 Pac. 826, holding determination by secretary of interior that
lands sought to be patented are open to homestead is conclusive on
purchaser from State as swamp lands.

SyL 2 (XII, 772). Parol evidence as to swamp lands inadmissible.

Approved in Young v. Charnquist, 114 Iowa, 119, 86 N. W. 206»
holding certificate of interior department to State that land is no^
swamp land is final and neither State nor its grantee can clainv
otherwise.

159 U. S. 349-372, 40 L. 177, SIOUX CITY, ETC., R. R. V. UNITED
STATES.

Syl. 1 (XII, 772). Ambiguous public grant construed for grantc^^

Approved in Manley v. Tow, 110 Fed. 244, 247, holding, uncL^
section 5 act March 3, 1887, lands granted to State under gn^^.^::
of 1864 and unearned were not granted for benefit of road i^..:^
settlers were entitled to preference.

Syl. 4 (XII, 772). Unused railroad lands revert to governmen-m-

Approved in Benner v. Lane, 116 Fed. 408, holding right,
bona fide settler in unearned railway land is superior to tha'^c
purchaser from railway where former has Improved same.

Syl. 6 (XI, 772). Intersecting roads take undivided moieties
intersection.

Approved In Southern P. R. Co. v. United States, 183 U. S. ^Z
46 L. 311, 22 Sup. Ct. 157, holding two railroad companies tak M i
by contemporary overlai)i)ing grants take undivided moieties <
land within the conflict.

Syl. 7 (XII, 773). Conveyance Is to State as trustee.

Approved in Benner v. Lane, IIG Fed. 415, 416, holding conr ^^J
ance to State as trustee for railroad company is not to comp<»- ^J
or for Its use to entitle railway's purchasers to preference uuc:^^
act 1887; Manley v. Tow, 110 Fed. 250, holding unearned lai:^^
granted to State In 1864 In aid of railroad were not ** for uae " ^
company within section 5, act 1S87.

(XII, 772). Miscellaneous.

Cited In Brett v. Meisterling, 117 Fed. 769, holding action ^
land department in locating grant to railroad company after 11^*
located and map filed binds adverse claimants: Sioux City, et^"
Ry. Co. V. O'Brien Co., 118 Iowa, oK?, 1)2 N. AV. 858, holding Stat-
ute of Limitations is applicable to suit In equity to recover mone/
paid in redeeming land from tax sale.

€21

Notes on tJ. S. Reports. 159 U. S. 3?2-415

15» ^^ 8, 372-377, 40 L. 185, CHICAGO. ETC., UY. v, UNITED
STATES.

SyL 2 (Xn, 773). State cannot divert laod not granted.

Approved in Manley v. Tow. 110 Fed. 244. lioldiD.? unearned land«
PTmted to Iowa in 1864 In aid of railroad were not granted " for
^" of company within section 5, act 1887: McCarver v. Herz-
^l 320 Ala. 531, 532. 25 So. 4, 5, holding wbere three companies
<^toe<l by overlapping grants each had undivided third, and for-
*atnre by two for nonconstruction gave third no greater rights.

^ U. 8. 377-380. Not cited,

*^C. S. 380-408, 40 L. 188. SWEET v. RECHEL.
Sjl 2 (XII, 773), Eminent domain source of legislative right.
See notes, 88 Am. St Rep. 936. 941.
S7I. 4 (XII, 773). Eminent domain — Reasonable compensation

[dOD precedent

Approved In Wllllamfl v. Parker, 188 U. S. 503, 23 Sup. Ct -Mli.

^"t h 562, upholding Mass. act Mny 23, 1S9S, imposing restriction

^*3kjd height of buildings on certain Boston streets; Adirondack

^J. T. New York State, 176 U. S. 350, 44 I^ 5O0. 20 Sup. Ct. 465,

^«ldiiig State may appropriate lands by eminent domain after

***Uro8d has fUed map of proposed route, but has not completed

*T?ht to lands; Salt Lake City, etc., Co. v. Salt Lake City, 24 Utah,

^5rr, 67 Pae. 793, upholding Kev. Stat 1S9S, § 3597, allowing plain-

^*ff In condemnation proceedings to enter land on giving suffident

^*«iid conditioned to pay value and damages; dissenting opinion

^«l Jones v. Comml«sloners of Franklin Co., 130 N. C, 462, 42 S. E.

^-^ majority holding plaintiff who took no appeal as provided by

^^^tute from action of commissioners In taking land and removing

K»«aite therefrom cannot maintain suit for value of property.

QUI, 773). Miscellaneous.

Cited In Postal Tel., etc., Co. v. Chicago, etc.. R. R. Co., 30
^tid. App. 662, 66 N. E. 9^22, holding mode or method of ascertaining
^xnount of compensation for land taken by eminent domain is
^*ut prescribed by the several States.

^D, 8w 408-U5, 40 L. 109, BORGMEYER v. IDLER,
^yl 1 (XII, 774). Pleading must show Federal question,
Approved In Chrystal Springs Land, etc., Co. v. Loa Angeles,

^'^ U, 8. 160, 44 L. 720, 20 Sup, Ct. 573. holding suit to establish

^•ter rights In lands included In Mexican grant Involves no Fed-

*»tl qoe«tion.
8H 3 (XII, 774). Circuit Court of Appeals final in diverse citl-

*«ihlp cases.
Approved In Spencer v. Diiplan Silk Co., 191 IT. S. 527, 24 Stip.

Ct 175^ boldlDg Circuit Court of Appeals renders final Judgment

159 U. S. 415-477 Notes on U. S. Reporto. 622

where plaintiff's pleadings show no constitutional question where
jurisdiction rests entirely in diverse citizenship.

Distinguished in Northern Pac. Ry. v. Soderberg, 188 U. S. 528.
23 Sup. Ct. 366, 47 L. 580, holding Judgment of Circuit Court of
Appeals is not final in suit involving interpretation of mineral
land exception of Northern Pacific grant of 1864; Loeb v. Columbia
Township, 179 U. S. 479, 45 L. 286. 21 Sup. Ct. 177, holding Juris-
diction of Supreme Court to review decision of Circuit Court, under
section 5, act 1891, extends to case in which either party attacks
constitutionality of State statute.

Syl. 4 (XII, 774). Controversy not involving validity of treaty.

Approved In Kennard v. Nebraslia, 186 U. S. 308, 46 L. 1177,
22 Sup. Ct. 881, holdivvr Nebraska decision that Pawnee reserva-
vation lands are public lands within enabling act April 19, 1864
does not question validity of such act; Sweringen v. St Louis
185 U. S. 44, 46 L. 799, 22 Sup. Ct. 572, holding State decision tba
courses and distances set forth in patent do not bring boondar:
of land to Mississippi river raises no Federal question.

159 U. S. 415-417. Not cited.

159 U. S. 417-423, 40 L. 203, SONN v. MAGONB.

Syl. 1 (XII, 774). Commercial designation must represent g«^
eral usage.

Approved in United States v. Nordlinger, 121 Fed. 693, holdim:
leghorn citron boiled in sugar is dutiable as "fruits preser^w^
in sugar" under paragraph 302, tariff act 1833; United States
Leonard, 108 Fed. 44, holding substances obtained by waslif
residuum left after distillation of wool grease is dutiable as wc=
grease under paragraph 279, act 1887.

159 U. S. 423-i52. Not cited.

159 U. S. 452^05. 40 L. 215, UNITED STATES v. CHAVES.

Syl. 4 (XII, 775). Twenty years' adverse possession presno^
grant.

Approved in United States v. Pendell, 185 U. S. 199, 200, 46 L^
871, 22 Sup. Ct 628, holding valid Mexican grant presumed fron^
proof of exclusive uninterrupted possession from 1790 until 190^
when confirmation sought.

159 U. S. 465-477, 40 L. 221, THE INCANDESCENT LAMl^

PATENT.

Syl. 1 (XII, 776). Vague application of patent vitiates it

Approved In Folger v. Dow, etc., Elec. Co., 128 Fed. 47. holding

void Folger, Moriarty and Jacobson patent No. 696.670. for an

improvement in " sparking plugs " for electrically igniting gas In

explosive engines; Neptune Meter Co. v. National Meter Ca^ 127

«M Notea on U. S. Reports. 159 U, S. 477-487

Fed, 568; holding void Nasb patent No, 433,088, for water meter:
Wolff T. E. I. Du Pont Be Nemours, etc., Co.. 122 Fed. Q5T, hold-
ing VoE Freeden patent No, 429,516, for process for making smoke-
less powder, not infringed by process of Da Pout patent No. 503,58(J;
De Lamar v, De Lamar Min. Co., 117 Fed. 247, holding void Wa!d-
Bt^ia pitent No. 607,719, for pro<!ess for extracting precious metals
from cyanide solutiona; Electric Smelting, etc., Co. v. Pittsburg
Reduction Co., Ill Fed. T5S, 750, holding Bradley patents No. 4G4/JS3
^ No. 468,148, relating to process for reduction of highly re-
fractory metallic ores, not infringed by Hall patent No. 41J0,766;
^erican Bell TeL Co. v. National Tel. Mfg. Co., 109 Fed. 9SM,
^. 1055, holding void Berliner patent No. 4B3,569, for combined
*^*frapli and telephone; Electric Smelting, etc, Co. v. Carbornn-
^^ Co., 102 Fed. 628» upholding Cowles patent No, 31J>J95, for
i^cess of smelting ores by electric current; Schroeder v. Bram-
^w. 98 Fed. 882. holding valid and infringed Schroeder patent
^0.535.465, for improvement In washing machines.

I>l8tingnished In Overweight CoonterbalnncG El. Co. v. Henry
^<»rMach. Co., 102 Fed. 961, liolding void for anticipation HinUle
^tent No, 257,943, for Improvement In freight and passenger

^^TT, 8. 477-^t87, 40 L. 225, RICHARDS v. CHASE ELEVATOR
CO.

hi 1 (XII, 776), Failure to claim raises presumption against

^^Telty,

Approved In National News Board Co. v. Elkhart Egg Case Co.,
^^5 Fed. 330. holding JIcEwen patent No. 49ii,4n7. for improved
^«per board, as construed not infringed: Irwin v. Hasseiman, 97
^«1 8^, holding applicant acquiescing in rejection of claim cov-
^*<iif one feature of patent, substitiUed claim cannot claim re-
i^tted feature.

hi 4 (XII, 776). Aggregating functions of old elements non-
^ifBtiihle.

Approved In American Sales-Book Co, v, CarterCrume Co., 125
^♦^1500, 501, and American Sales-Book Co, v, Bullivant, 117 Fed.
^. both holding void for lack of novelty Beck patent No, 047.9;i4,
W iunnlfolding sales-hook and holder; Richards v, Michigan Cent,
^ fi. Co.. 102 Fed. 509, holding void on face Rictiard's patent
•^0. !i08,f>00, for grain transferring apparatus; Mahler v, Anima-
J^'im Co., Ill Fed. 531, holding void on face Sanche patent
•Vo. ri87,237. for device knowTi as ** Oxydonor " for use Id treatment
Tor (ligease.

I'intlngnlshed la Dececo Co. v. George E, Gilchrist Co., 125 Fed.
5881 2S>&, upholding Frame and NelT patent No. 425,416, for water-

159 U. S. 487-499 Notes on U. S. Reports. «

(XII, 776). Bilscellaneous.

Cited in Richards v. Michigan Cent R. R. Co., 186 U. S. 479,
L. 1259, 22 Sup. Ct 942, dismissing for lack of Jurisdiction; Parse
T. Seelye, 100 Fed. 453, holding court will not take judicial not
of state of art as particular fact in limited art.

159 U. S. 487-^1. 40 L. 229, ISAACS Y. UNITED STATES.

Syl. 1 (XII, 777). Granting continuance is discretionary.

Approved in Metropolitan St Ry. Co. v. Davis, 112 Fed. €
reaffirming rule; Hardy v. United States, 186 U. S. 224, 46
1138, 22 Sup. Ct 889, holding court did not abuse its discret
in refusing continuance to defendant accused of murder on 8h<
ing by his affidavits of absence of witnesses who would sb
accused's whereabouts; Pacey v. McKinney, 125 Fed. 679, hold
refusal of continuance to allow defendant to produce witnes
merely corroborative of witness present is no abuse of dlscretl
Dexter v. Kellas, 113 Fed. 48, holding refusal to postpone trial
discretionary, and not reviewable on error unless discretion abac

Distinguished in Youtsey y. United States, 97 Fed. 940, hold
where application for continuance contains also showing, suppor
by affidavits of mental weakness of defendant occasioned
epilepsy, court must try issue by appropriate proceedings.

Syl. 2 (XII, 777). Defendant's statements as proYin^ **cor]
deUcti."

Approved in Flower v. United States, 116 Fed. 247, aHlria
conviction of embezzlement on defendant's extrajudicial conj
sion made to different persons substantially corroborated by i
dence aliunde.

159 U. S, 491-499. 40 L. 231. SHIVER v. UNITED STATES.

Syl. 4 (XII. 777). Settler's right inchoate as against govemmei

Approved in Wagstaff v. Collins, 97 Fed. 8. holding ancestoi
entry abandoned before final proof gives no vested right again
government or its patentee,

Syl. 6 (XII. 777^. Homestead lands public within Rev. Sta
f 2461.

Approved in Teller v. United Sutes. 113 Fed. 281, 283, holdi
mining claim under occupancy of locator, under mining laws,
public land within Rev. Stat.. $ 2461, prohibiting cutting of timl
on public lands.

SyL 7 (XI 1, 777K Homesteader may cut necessary timber.

Approved In United States v. Blendauer, 122 Fed. 706, hold!
bona fide ontryman on lands subject to homestead entry cam
be held for trx^s;^ss for ouniai: timber for house. althouj;h «U
before filing; Cunningham v. Metropolitan Lumber Co^ 110 F

625

Notes on U. S. Reports. 159 D. S. 500-^23

330, holding homesteai^ settler before entitled to patent cannot
remote timber from land and pass title against United States.

138 U. 8, 5(KW10, 40 K 233, PATTON v. UXITED STATES.

SyL 1 (XII, 777)* ** Woolen waste " meana refuse.

AppiDTed In NordUager v. United States, 115 Fed. 830, holding
Icfliora dtron commercially designated as dried froit Is entitled
to free entry as fruits not provided for and not dutiable as pre-
■erred In sugar; Myers v. United States, 110 Fed. 941. holding mica
ta »miill sheets two inches by three is dutiable as " mica unmanu-
'«cttired " and not as " waste/'

IJlstlngulshed In United States v. Nordllnger, 121 Fed. 693, hold*
tag leghorn citron preserved In sugar not entitled to free entry, but
^oiUbJe as fruit preserved In sugar.

^U. S. 510-523. 40 L. 237, THIEDE v. UTAH.

%l 3 (Xn, 778). Legislature and courts determine territorial
J>focediire.

approved In Corbns r. Leonhardt, 114 Fed. 12» holding Rev. StaL,
' ^ prohibiting either party In action by or against executors
^ testify as to transactions with testator, is iuapplicable to terrl-
*<>1al courts.
SyL 5 (XII, 778). Newspaper opinions do not dJsttualify Jurors.
Approved In Dolan v. United States, 116 Fed. 582, sustaining
•ction of trial court in overruling chailenges to Jurors who had
'<^med opinions, but signified tlielr ability to decide on the evl-
^«nce; State v. Haworth. 24 Utah, 409, 08 Pac, 150. holding denial
**' challenge not error where juror said he would decide according
^ facts and charge fairly and Impartially is not error.

SyU 13 (XII, 778). General eiceptlon Insufficient if one Instruction

Approved In Repauno Chemical Co. v. Victor Hardware Co.,
^*11 Fed, 9o0, holding insufticient assignment of error reading, ** To
^f giving of which Instroctious plaintiff, by Its counsel, then and
^^ excepted."

9yl 14 (XII, 778). Charge substantially as requested not at-

Approved In State v. Haworth, 24 Utah, 425, 68 Pac. 165, holding
•^fuiaj to give defendants Instructions where charge given cov-
fn!d wjjole case and properly submitted same to jnry Is not error.
Sfl 15 (XII, 778). Exceptions must particularize objectionable
mirter.

Approved In Columbus Coast, Co. v. Crane Co., 101 Fed. 58,
folding rule 10 of Circuit Court of Appeals, seventh circuit, re-
statement of the parts of charge and legal propositions ox*
Vol. Ill — 40

159 U. S. 523-539 Notes on U. S. Reports. 62G

cepted to; State v. Ha worth, 24 Utah, 424, 68 Pac. 164, holding In-
sufficient general objection to Instruction failing to point out objec-
tionable matter.

(XII, 778). Miscellaneous.

Cited In Jackson v. United States, 102 Fed. 479, holding, under
Oregon statutes, designation of action In District Court of Alaska
as "in District Court of the United States," although inaccurate
docs not vitiate Indictment

159 U. S. 523-^26, 40 L. 244, WHBBLBR v. UNITED STATES.

Syl. 2 (XII, 779). Ruling on new trial motion nonreviewable.

Approved In Prank Waterhouse v. Rock Island Alaska Min. Co.,
07 Fed. 477, holding overruling of motion for new trial is not as-
signable as error.

Syl. 4 (XII, 779). Infant's competency determined by court

Approved in Commonwealth y. Ramage, 177 Mass. 850, 58 N. B.
1078, holding testimony of six-year old girl properly admitted in
prosecution for indecent assault; State v. King, 117 Iowa, 488, 91
N. W. 769, holding court's decision on question of accountability
of infant witness will not be disturbed unless clearly erroneous.

150 U. S. 526-539, 40 L. 247, WINONA, ETC., LAND CO. T. MIN-
NESOTA.

Syl. 4 (XII, 779). " Conveyed " in statute construed by context

Approved in Clarke v. Eureka County Bank, 123 Fed. 927, hold-
ing condition in escrow of stock to be held until determination
that vendor owned same referred to cancellation of trust deed«
the only existing cloud on vendor's title; Mayer v. Goldberg, 116
Wis. 101, 92 N. W. 558. holding in construing contract coint can-
not eliminate clause which manifestly means what it says.

Syl. 6 (XII, 779). Tax according to value with hearing valid.

Approved in Oskamp v. Lewis, 103 Fed. 908, sustaining assess-
ment of property without notice to owner where by Rev. Stat
Ohio, § 5848, owner may test validity by suit to enjoin collection.

Syl. 7 (XII, 779). Published notice of proceeding to collect suf-
ficient

Approved in Weyerhaueser v. Minnesota, 176 U. S. 556, 557, 558,
44 L, 586, 20 Sup. Ct. 488, 489, upholding proceedings for revalua-
tion of undervalued property pursuant to Minnesota laws where
bearing is allowed during proceedings; Brown v. Drain, 112 Fed.
oSO. holding Cal. street work act March 18, 1885, giving
landowner power to file remonstrances with council, gives hear-
injr and owner neglecting same cannot sue in equity; Hubbard v.
Goss. 157 Ind. 490, G2 N. E. 38, upholding Burns* Rev. Stat 1901.
i S533, empowering board of review to increase assessment with

1S2?

Kotea on U, S- Heports.

169 U. S. 540-562

no notice additional to tbat given by assessor as to date of board's
meetinif.

SjL 8 (Xn, 7S0). DilTereDt Djode for different property lawful
Approved in WeyerUaueser w Minnesota, 17a U. S. 558, 44 L,
SS7, 20 Sup. Ct. 489, holding former assessment grossly nnder-
valojng property does not preclude reassessment to make property
pay its jMt share; Galusha v. Wendt. 114 Iowa, 60T. (5(>S, 87 N.
^' 515, npholding Code, § 1374, for collection of baeli taxes to-
getiier with certain penalty in action brought by county treasurer.
SyL 10 (xn, 780). State may collect back taxes,
ApproTtd in Florida C* & P. R. R. Co. v. Reyaoldg, 183 U. S, 481,
<<J L 288, 22 Sup. Ct. ISO, upholding Fla. Laws 1^^5. cbnp. 3558,
providing for collection of taxes from railways escaping taxa-
tion during 187a, 1S80, ISSli Yazoo, etc., E. R. Co. v. Adams, 81
HIm, 114, 32 So. MG, sustaining assessment of railroad property
whkh had charged lands for back taxes omitted because of mls-
tok« aa to construction of charter.
(XII, n9). Miscellaneous.

Cited in Eastern Bidg. & Loan Assn. v. Welling. 181 U. S. 48.
45 L 741. 21 8up. Ct 531. holding contention that State decision
deales ftiii faith to statutes of another State is made too late after
<^iw remitted to trial court and rehearing asked.

^ U. 8v 540, 541. Not cited.

15ft U. 8. 541-54S, 40 L. 253, WEEKS v. BRIDGMAK,

(Xn, 78Q). MlscellntieouB.

Cited in Luhrs v, Hancock, 181 U. S. 574, 45 L. 1009, 21 Sup.
^t "29, boldlng deed of Insane person Is only voidable, not abso-
imely roid.

130 U. S. 548-555, 40 L. 255. UNITED STATES y. AMERICAN
BELL TEL. CO.
8jl3{XU, 780). Government not bound by limitation statutes.
Approved in Pond v. United States, 111 Fed. &9C, holding CaL
Code Civ. Proc, § 15f>2, requiring plaintiff to present claim to ex-
tculor of deceased defendant, inapplicable to suit In Federal court
aflicer*s bond.

SJ. 8, 555-5C2, 40 L. 258, MAGQNE v. Ti\1EDERKR.
Sjt 2 (XJI, 781)- ** Chief use'* iaean.s general use.

Approved In United States t. Massachusetts General Hospital,
t<JO Fe<J. 1^0, holding surgical instruments for use in general boe-
pIljiL nittinlalned partially for edui'.ntlonal purposes, are entered
fjiN* as flCientlfie apparatus, paragraph 585, act 1894.

159 U. S. 562-583 Notes on U. S. Reports. 628

150 U. S. 562-569, 40 L. 260, DEJONGE v. MAGONB.

Syl. 1 (XII, 781). Paper imitating leather dutiable as "paper
liangings."

Approved in United States v. Naday, 98 Fed. 422, holding dressed
leather strips for use as dress trimmings and in making pocket-books
are dutiable as leather not specially provided for, not as ** skins."

Syl. 2 (XII, 781). Trade meaning controls in tariff act

Approved in United States v. Massachusetts General Hospital,
100 Fed. 934, holding surgical instruments for use In hospital with
training school are entitled to free entry under paragraph 585, act
1894.

159 U. S. 569-583, 40 L. 263, COWLEY v. NORTHERN PAO. R. R.

Syl. 6 (XII, 782). Federal courts enforce State equitable remedies.

Approved in Jones v. Mutual Fidelity Co., 123 Fed. 517, hold-
ing Federal court will enforce remedy given by Del. Stat, March
25, 1891, authorizing appointment of receiver for insolvent corpo-
rations; Sawyer v. White, 122 Fed. 227, holding Federal court
has Jurisdiction of suits between persons of diverse citizenship to
contest validity of .will authorized by Mo. Rev. Stat 1899; National
Surety Co. v. State Bank, 120 Fed. 603, holding Federal court
may enforce sections 602-611, Nebr. Code, authorizing suit to an-
nul unconscionable Judgments; In re Rude, 101 Fed. 806, holding
Bankruptcy Court has jurisdiction to determine amount of lien
of attorney securing for creditor priority of payment from bank-
rupt estate; dissenting opinion in Wahl v. Franz, 100 Fed. 701«
majority holding proceeding of probate of will is not "suit of a
civil nature at law or in equity within Judiciary act 1888w

Distinguished in Smith v. Reeves, 178 U. S. 444, 44 L. 1145, 20
Sup. Ct 922. holding consent given by State by Cal. Pol. Code,
§ 3009, to be sued was confined to suits in its own State courts;
Hudson v. Wood, 119 Fed. 769. holding Rev. Stat, I 916, does not
embrace State remedies in equity by Independent suit; James P.
WItherow Co. v. De Bardeleben, etc., Co., 99 Fed. 674, holding,
under Rev. Stat, § 914, Federal rule that ruling In new trial mo-
tion is discretionary and nonreviewable is not affected by State
statute.

Syl. 7 (XII, 782). Removing party cannot question Federal Juris-
diction.

Approved in De Lima v. BIdwell, 182 U. S. 174, 45 Jm 1047, 21
Sup. Ct. 744, holding defendant on removal has right to show that
State court had no jurisdiction; Mastin v. Chicago, R. 1., etc^ F.
Ry. Co., 123 Fed. 832, holding defendant removing suit cannot
attack judgment rendered by Federal court; Empire Min. Co. v.
Propellor, etc., Co.. IDS Fed. 903, holding removal is waiver by
defendant of privilege, under Judiciary act 1887-88^ of beln^^ saed

« Notes on U. S. Reports, 159 U. S. 6S4=611

la dJatfict of residence; Tootle v. ColemsB, 107 Fed. 45, holding de-
feodiuit removing cause is estoppel to denj Federal JurisdlctJonf
Mcept on ^onnd that State court had no jurisdiction.

Blstin^lslied In German Sav., etc., Soc, v\ Dormitzer, 118 Fed.
472, holding party removing case does not estop himself to deny
Federal Jurisdiction, if none existed,

(Xn, 781), MIsceltaneous.

Cited in Cowley v, Spokane, 99 Fed. 841, holding landowner al-
iowlnf city to lay out and grade streets on his land is estopped
to assert Ills right of possession.

13fi IJ. S. 5^4-590. Not cited.

150 U. a 690-595, 40 L. 269, CLUNE T. UNITED STATES.

8yi. S (XII, 782). Instructions not part of record.

Approved in Sterneuberg v. Mailpos, 99 Fed. 40, holding Instruct
*loiii BAked and refused and charge given are not part of record
on nppeal where not contained in bill of exceptions.
35» V, S. 596-^Ofi. Not cited.

^3» U, 8. 603-eil, 40 L. 274, BALTIMORE, ETC,» B. E, T. GEIF-

PlTH,

Syl, 3 (Xn, 783), Negligence for Jury where evidence conflicts,
Approved In Netherlands, etc, Nav. Co, v. Diamond, 128 Fed.
"»T3. holding instruction for defendant properly refused where plain-
tiff fell Into hold due to darliness occasioned by the closing of
^tche$\ Northern Pac. Ry, Co. v. Spike, 121 Fed, 47, holding pre-
^'^ptioD that person lillled at crossing used due care will war-
f*ot recovery in absence of rebytting testimony; Hemingway v,
lUiools Cent, R. R. Co,, 114 Fed. 847, 848, holding where evidence
^^ train signals and of precaution of deceased was conflicting
<IDeition of contributory negligence should have been subnjltted
loiiiry; Tacoma Ry., etc., Co. v. Hays. 110 Fed. 499, holding ques-
^ of contributory negligence properly submitted to jury; South-

R^ Pac, Co, V. Harada, lOO Fed. 384, holding person crossing tracks
•^^ approaching train may rely upon company^s exercising rea-
mjfcie care In warning of approach; Chesapeake, etc., Ry, Co. v.
ldD6 Fed. 25H, sustaining court In refusing peremptory Instruc-
i>o for defendant where plalntlCT, a passenger, was struck by
tn»n while alighting from flnot!ier; Boy den v, Fitcbburg, etc., R.
n.. 72 Vt 94, 47 AtL 411. holding where deceased stopped to
twalt passage of train, and was struck by another on other track,
ffidence being conflicttng, contributory negligence for Jury; dls-
illng opinion In Cogdell v, Wilmington, etc, R. R„ 130 N, C,
41 8. E, 540. maji>rlty holding, under Acts 1887, chap. 33, re-
f|iiiring defendant to show contributory negligence, refusal to In-
thfki law presumed deceased used due care.

159 U. S. 611-629 Notes on U. S. Reports. eSO

Syl. 4 (XII, 784). Negligence for court where evidence uncon-
tradicted.

Approved in King v. McAndrews, 111 Fed. 889, holding verdict
for defendant properly directed where plaintiff fell from end of
car not fitted with vestibules; Gahagan v. Railroad, 70 N. H. 447,
50 Atl. 150, holding verdict properly directed for defendant where
plaintiff with possible view of, track for 400 feet was struck while
crossing; Carter v. Central Vt R. R., 72 Vt 198, 47 Atl. 799, holding
verdict properly directed for defendant where plaintiff drove upon
track without slackening speed where embankment hid track from
view.

159 U. S. 611-629, 40 L. 278, FOLSOM v. NINETY-SIX.
Syl. 1 (XII, 784). Federal courts determine force of State laws.

Approved in Stanley County v. Coler, 190 U. S. 445, 23 Sup. CL
814, 47 L. 1132, holding Federal court will not follow State de-
cision declaring invalid county railway bonds issued, under N. C.
Code, §§ 1096, 1999, and held by bona fide purchaser, affirming
113 Fed. 708; Loeb v. Columbia Township, 179 U. S. 493, 45 L.
291, 21 Sup. Ct 183, holding Federal courts enforce contract rights
in accordance with State Constitution as construed by highest
State court where contract was made; Board of Comrs. v. Travel-
ers* Ins. Co., 128 Fed. 824, holding county bonds valid when Is-
sued will not be held invalid because of different trend of decision
subsequently accruing in State court; Brunswick Terminal Co. t.
National Bank, 112 Fed. 815, holding Federal court will not fol-
low State decision construing statute imposing stockholder's lia-
bility made after transaction in suit occurred; Pickens Tp. v.
Post, 99 Fed. OGl, 603, holding State decision declaring unconstitu-
tional a statute authorizing municipal bond issue does not bind
Federal court in case involving prior rights of bona fide holder;
Uoiidot V. Rogers Tp., 99 Fed. 211, holding State decision holding
invalid election authorizing issuance of township bonds made twelve
years after issue and purchase of bonds not binding on Federal
court

Syl. 2 (XII, 784). Aid to railroad is ** for corporate purposes.**

Approved in Agua Pura Co. v. Mayor, etc., 10 N. Mex. 22, flO
Pac. 214. holding, under Acts 1876, empowering county commis-
sioners to make contracts for county, commissioners had power
to coutrnct for water supply for municipal and domestic uses.

Syl. 6 (XII, 784). Federal courts follow established State law.

Approved in Bancroft v. Wicomico County Comrs., 121 Fed.
S82. holding, under Md. Code, art 23, §§ 187, 188, providing that
purohaser of railroad at mortsraire sale takes ** rights and immuni-
ties,** tax exemption passes; National, etc.. Pipe Works v. Oconto
City, etc.. Supply Co., 113 Fed. 796, holding State decision that

63;^

Notes on TT, S. Reports. 159 U. S. 630"$58

wtter-workB property Is not subject to mechanic's lien Is tjiodlng
un Federal court and precludes claimant from maintaining suit
to redeem from mortgage sale,

159 U. S. 630^^42. Not cited.

15& U. 8. 64^-650, 40 L. 290. STEWART v. McHARRT,

(XII, 785). MiBceilaeeous.

Cited Id SmaU v. Rakesti-aw, 28 Mont. 418, 72 Pac. 747, hold-
iflg nesldence for to ting purposes in another precinct from the
land precludes residence on land for homestead purposes; McCord
V. Hill, 111 Wis, 513, 84 N, W. 33, holding person to whom secre-
ury of interior erroneously by mistake of law issues patent holds
same u constructive trustee for person entitled.

15^ U. 8. 651-«58, 40 L. 293, MILLS v. GREEN.
SjL 2 (XII, 7S5). Appeal dismissed where relief impossible.
Approved in Tennessee v. Condon, 189 U. S. 71, 23 Sup." Ct. 583.
"** L Tl2, dismissing w*rit of error to review State decision in suit
for usurpation of office where terms of otHce of all parties to suit
liate expired; Dinsmore v. Southern Express Co., 183 U. S, Oi,
^ ^ U3» 22 Sup. Ct 47, affirming judgment dismissing suit by
♦'ipR'iis company to prevent eaforcemeut of provision of war revenue
I ^t 1S&8, requiring stamps on hills of lading, where amendatory
^_iJ1 19(>l exempted eipress compaaies; Codlin v. Kohihausea, 181
Hp*^. 162. 45 L, 793, 21 Sup. Ct. 584, dismissing appeal from judg-
^^tttiit awarding mandamus to compel officers to issue bonds where
^'"i>di had been issued and officers' terms had expired: Mossberg
^ .Nuiter, 124 Fed. MT, dismissing appeal without prejudice wbere
^^*l coart which entered interlocutory decree for injunction in
Patent case requested return of record; Goldstein v* Behrends, 123
Fed. 102, dismissing appeal in suit in support of adverse mining
tliia wliere pending appeal land department determined land to
^*nonmineraI and Issued town site patent thereto; United States v.
^^'orfolk Sc W, Ry. Co., 118 Fed. 556, ordering dismissal of man-
^"KiUB proceedings to compel furnishing of cars where such ears
M b«eo furnished at time motion to dismiss was made; Jack-
*»>iimi& Terminal Co. v. State, 42 Fla. 3S4, 29 So. 441, dlsmisslog
*^tt of error from Judgment awarding writ of mandamus where
PwioD obtaining writ had purchased defendants interests and
«»affled peaceful possession; State v. Grand Jury, 37 Or. 543, Ci2
^^t l*t.i«, dismissing appeal from dismissal of writ of mandamus
■wrnst grand jury to compel intiuiry into charge where pending
JipPiHl Jury was discharged*

Di.'ttlnguished In Illinois C, R, R, Co. v. Adams, 180 U. S. 32.

^ L 411, 21 Sup. Ct 252, denying motion to dismiss appeal from

L^e refusing injunction agaiast colleeliun of taxes, although

eoort bad held taxes valid and same had been collected;

159 U. S. 658-680 Notes on U. S. Reports. ^

dissenting opinion in Giles ▼. Harris, 189 U. S. 4S8» 23 Sop. Ct
647, 47 L. 913, majority holding equity will not compel county
board to register negro upon voting lists.

(Xn, 785). Miscellaneous.

Cited in Giles v. Harris, 189 U. S. 484, 485, 486, 23 Bnp. Gt.
641, 642, 47 L. 911, holding equity will not compel county txMurd
to enroll negro upon voting lists; Montana Mining Go. t. St liOols
M. & M. Co., 186 U. S. 32, 46 L. 1042, 22 Sup. Ct 747, holding
writ of error from Judgment affirming Circuit Court must be dis-
missed where same Judgement of circuit was reversed on cross-
writ of error and cause remanded.

159 U. S. 658-660, 40 L. 295, GILLIS v. STINCHFIBLD.

Syl. 1 (XII, 786). State Judgment based on estoppel nonrevlew-
able.

Approved in Lyon v. Gombret, 189 U. S. 508, 23 Sup. Ot 8KV3,
47 L. 922, and Wright Seminary v. Tacoma, 187 U. S. 630, 28 Sup.
Ct. 847, 47 L. 345, both reaffirming rule; Schaefer v. Werling, 188
U. S. 519, 23 Sup. Ct 450, 47 L. 572, holding question whether
municipality by refusing to hear objections to public improvement
is estopped to collect cost thereof is local question; Sweringen
V. St Louis, 185 U. S. 45, 46 L. 799, 22 Sup. Ct 672, holding State
decision that courses and distances in Federal patent did not
bring boundary to Mississippi river is no Federal question; Speed
V. McCarthy, 181 U. S. 275, 45 L. 858, 21 Sup. Ct 616, holding
question of estoppel of party to deny validity of mining claim la
no Federal question.

159 U. S. 660-663. Not cited.

159 U. S. 663-673. 40 L. 297, GOODB v. UNITED STATB&

Syl. 2 (XII, 786). Decoy letter no defense to theft

See 72 Am. St. Rep. 701, note.

Syl. 6 (XII, 787). Branch post-office — Place where letters are
kept

Approved in Hanley v. United States, 123 Fed. 851, 852, holding
railway postal car is " branch post-office " within Rev. Stat, | 5480,
forbidding use of mails to defraud.

159 U. S. 673-680, 40 L. 301, MOORE v. MISSOURI.

Syl. 1 (XII, 787). Increased punishment for second offense not
double.

Approved in McDonald v. Massachusetts, 180 U. S. 818, 45 Lb
547, 21 Sup. Ct 390, upholding Mass. Stat 1887, chap. 435, Impos-
ing heavier punishment upon felon twice before convicted of crime;
Iowa V. Jones, 128 Fed. C20, upholding Iowa Laws, 27th Gen.
Assemb., p. 58, imposing fifteen years* Imprisonment upon per-

633

Notes on tJ. S. Reports. 15© U. a 680-698

«iw Ts-bo have been twice before convictec! of larceny; New York
r. Bennett 113 Fed. 5ia opholdlng N. T. Laws 1895, chap, 170,
pwTulttlng recording of wager wltbout transferring memorandnm
thereof, If done on certain racecourses.

SxL 7 (Xll, T87). No appeal in bank unavailing objection.

Appmed In Layton v. Missouri, 1S7 tJ, S, 360, 23 Sup* OL 138,
-^7 L 116, hoiding State decision upbolding State statute alleged
to be tmcoosUtntional la not reviewable wbere State court Ignored
Federal question because not raised below.

159 C. S. 680, 681, 40 L. 304, BUCKLIN v. UNITED STATES.

Sfl 1 pai, 787). Capital convictions reviewable on writ of
ecror.

Awroved In De Lemos t. United States. 107 Fed. 125, 126, liold-
28 StaL 402, amending section 5 of act creating Circuit Court
Appetli, did not allow appeal to Circuit Court of Appeals

Circuit Court in criminal case,
DlsUaguisbed in Rice v. Ames, 18i> U. S. 373, 374, 45 L, 581, 21
6«p. CL 407, bolding Court of Appeals act 1891, 5 5, authorizes
*ppeal from Circuit Court* s decision denying habeas corpus where
coai&action of extradition treaty involved.

150 U.S. 682-687. Not cited.

1^ U. 8. C87'-694, 40 L. 306, THE BAYONNH.

^rl 2 (XII, 788). Assignment nunc pro tune insufficient cer-

tlfiratlon.

•Approved in Chicago Ins. Co. v. Graham, etc., Co.. 108 Fed. 274,
holding rule 11 of Circuit Court of Appeals, requiring assignment
of errors to be returned with record, applies to admiralty.

Syl 3 (XIJ, 78S). Allowance of appeal not a certificate.

Approved in New York, etc, R, R. Co. v. Weisberg. 191 U. S.
^ 2^1 Sop. Ct, S44, reaffirming rule; Cham bed in v. Peoria, etc.,
Bj* Co., 118 Fed. 33, holding certihcation of jurisdictional ques-
Don hy Circuit Court must be done during term at which decree
i* entered; Reed v. Stanley, 97 Fed. 524, holding where right of
«PI>^al to Supreme Court is lost by failure to certify question bill
of review must be filed within six months,

imV.S. 605-Gi^ 40 L. 310, AXSBRO v. UNITED STATES.

Syl 2 pen, 788). Definite Federal issue In Circuit Court re-
quired.
i4pproved In Wakefield v. Van Tassell. 192 U. S. GOl, 24 Sup.
Lufkin v. Lufkln, 192 U. S. UOl, 24 Sup. Ct. mi}[ Richards
Kgan Cent. R. R. Co., 186 U. S. 470, 46 L. 1250, 22 Sup. Ct.
and Raltimore, etc., Ry. Co. v. Mayor, etc., 170 U, S. 681,
I*. 384, 21 Sup. Ct 918, ail reaffirming rule; Heakel v. Cincln-

160 U. S. 1-53 Notes on tJ. S. Reports. 634

natl, 177 U. S. 171, 44 L. 721, 20 Sup. Ct 573, holding certificate
of chief Justice of State Supreme CJourt as to decision on Federal
question cannot confer Jurisdiction.

Syl. 3 (XII, 788). Assignment cannot add to record.

Approved In Cincinnati, etc., Ry. Co. v. Thlebaud, 177 U. &•
0*20, 44 L. 913, 20 Sup. Ct 824, holding question as to constita-
tionality of State statute raised in assignment of errors and pre^
sented by general exception cannot sustain writ of error; Brees^
y. United States, 106 Fed. 682, holding assignment of error upaxi,
overruling of demurrer, treating demurrer as extending to whol^
Indictment Instead of limited as shown by record, cannot be con^
sidered; M'Cutcheon v. Hall Capsule Co., 101 Fed. 548, holding
assignments of error cannot import questions into record In
sence of exceptions directed to particular portions of charge.

159 U. S. 698-700. Not cited.

CLX UNITED STATES.

160 U. S. 1-53, 40 L. 319, UNITED STATES T. UNION PAC BY.

Syl. 1 (XII, 789). Purpose of subsidizing railroads.

Approved in Tift v. Southern Ry. Co., 123 Fed. 794, holding
act of Congress imposing certain duties on railroads did not take
away remedies which court of equity could apply; United States t.
Northern Pac. R. R. Co., 120 Fed. 547, holding agreement between
Northern Pacific Railroad Company and Western Union Telegraph
Company, in reference to construction of telegraph lines* is not
in violation of U. S. Comp. Stat. 1901, p. 3583; Postal Tel., etc., Co.
v. Chicago, etc., R. R. Co., 30 Ind. App. 660, 66 N. E. 921, holding,
uiidor U. S. Comp. Stat. 1001, pp. 2707, 3579, relating to construction
of telegraph lines, a company may construct lines along right of
way of railroad.

Syl. 3 (XII, 789). Reservation of power to repeaL
Approved In Stanislaus County v. San Joaquin, etc., Co^ 192
U. S. 212, 24 Sup. Ct. 245, holding legislature of California had
autliority to enact Stat 1885, p. 95, § 5, relating to reduction of
water rates, which would affect corporation organized under Stat.
1853, p. 87; Tift v. Southern Ry. Co.. 123 Fed. 792, construiiu: act
February 4, 1887 (chapter 104, 24 Stat. 379).

Notes on U. S. Reports.

160 U. S- 53-110

SjL 9 (XII, 780). Act of 1866 consti-ued.

Approved In United States v. Oregon, etc.. R. R. Co.. 176 U* S.
^UL 366, 20 Sup. Ct 267, bolding within power of Congress to
^•ve granted Oregon cooapauy in I8GG lands embraced witlilD ex-
ferbr lines of general route; Westeru Union Tel. Co. v. Pennsylvania
^ ^ Co., 120 Fed. 984, holding where telegraph corapauy has
^iiitnlDed line over right of way of railroad company uuder act
^^7 24, 1866, upon action being brought to condemn right of way
^ nUroad injynctloa will be granted at request of telegraph

8rl 13 (XII. 7Wh Disposition of entire case In equity.

Approved in United States v. Southern Pac. R. R. Co., 117 Fed.
^2K holding when equity acquires jurisdiction over a case it will
*^ilfl it for final decision of entire case.

1«» U. 8. 5^-70. Not cited.

*^ U. 8. 70-77, 40 L. 343, GOLDSBY v, UNITED STATES.
8yl 1 (XII, 790). Reviewing order on continuance,
approved in Hanly v. Uaited States, 18(J U. S. 224, 46 L. 1134i,
*2§up, Ct. 889, holding not abuse of discretion to deuy continnance
^ Mi^Ual caae where evidence intended to be produced was im-
'^icdai and Its truth was contradicted by the government; Dexter
^- KflUs, 113 Fed. 48, holding refusal to postpone trial is not
^^lewnble unless abuse of discretion Is shown; Metropolitan, etc.,
^l C«. V, Davis. 112 Fed, 634, holdiug denial of motion to open
*«'^milt is not reviewable unless dlacretlOD la abused*
H 5 (XII, 790). Order of proof.

Approved In Atchison, etc., Ry, Co. v, Phlpps, 125 Fed. 481,
jidmlaslon io rebuttal of testimony is not error because
'ideuce of same kind was iutroduced in chief,

J® C. S. 77-101, 40 L. 346, WASHINGTON, ETTO., R. R. v.

CCEUR D'ALENE RY.. ETC., CO.

%t 7 (XII, 791), Construing statutes.

Apjjroved in Robardo Tobacco Co. v. Franks, 103 Fed. 279. hold-
Urff nnder war revenue act .Tuae 13, 1898, § 3* tobacco upon whlcli
■tamps bad been placed after April 14, 1898, was considered as
removed; In re Higglns, 97 Fed. 77(5, holding under Rev. Stat. Wis.,
i 2082, relatlDg^ to.eiempt property, watch and chain 'worn by bank-
rttpt are exempt

WASHINGTON, ETC., R. R.

330.

GO.

lOD U. S, 103-110, 40 L.
▼. 08BORN.
gXt 2 (XII. 791). Public lands.

ApproTed In Holmes v. Uuited States. US Fed. 999, holding
tiler who makes land his home with Intention of maklug entry

160 U. S. 110-136 Notes on U. S. Reports.

thereon under homestead laws is entitled to preference when
Is open for entry; Denver, etc., B. R. t. Wilson, 28 Ck>lo. 11,
Pac. 845, construing act Congress March 3, 1875, relating to right
way through public lands.

160 U. 8. 110-120, 40 L. 358, McCARTY y. LEHIGH VALLDY E.

SyL 2 (XII, 792). Construction of patents.

Approved in General Electric Co. v. International Specialty
126 Fed. 759, holding Anderson patent No. 412,155, for impr
ments in electric railway, is valid; Penfield v. Potts, 126
484, holding Potts patent No. 332,393, for improvements in
disintegrators, claim 6, is valid; Cauda v. Michigan Malleable ^Klar
Co. 124 Fed. 490, holding Cauda patent No. 460,426, for draw- — to
attachment for railroad cars, valid and infringed by Thombrc^vxj
patent No. 588 J22; Cauda Bros. v. Michigan Malleable Iron CJio
123 Fed. 99, holding Cauda patent No. 460,426, for draw-bar ^am
spring for railroad cars, must be restricted to precise constm^^S^M
shown; National Meter Co. v. Neptune Meter Co., 122 Fed* '^7,
holding Nash patent No. 433,088, claims 14 and 15, covering
meter, is valid; Diamond Drill & Mach. Co. v. Kelly Bros., 120 '.
293, holding Jackson patent No. 482,965, claim 2, for machine ^^
malting wire coils, is valid; Westinghouse Air-Bralce Co. v. N6
Yorli: Air-Bral^e Co., 119 Fed. 884, holding Westinghouse and Moa-S
patent No. 401,916, for improved engineer's bralce valve, is limits j,
and not infringed by Vaughan and McKee patent No. 501.29^^^
Metallic Extraction Co. v. Brown, 110 Fed. 668, holding claim -^^
of Brown patent No. 471,264, for an ore-roasting furnace, is void
Anderson Foundry, etc.. Works v. Potts, 108 Fed. 884, holdiv.
Potts patent No. 322,393, for clay disintegrator, is valid but limited
by prior art; Brace well v. Passaic Print Works, 107 Fed. 480, lioM«^
ing Whitehead patent No. 499,689, for improvement In anilinft Uack
resists, is void.

100 U. S. 121-127. Not cited.

IGO U. S. 128^136, 40 L. 365, STREEP v. UNITED STATSS.

Syl. 1 (XII, 792). Indictment for selling counterfeit money.

Approved In Milby v. United States, 120 Fed. 4, holding indict-
ment charging defendant with use of post-office for purpose of sell-
ing counterfeit money charges offense under Rev. Stat., | 54tlUt
amended (U. S. Comp. Stat. 1901, p. 3696).

Syl. 2 (XII, 793). Fugitive from Justice.

Approved In Bruce v. Rayner, 124 Fed. 484, holding qnestlos
wliether person arrested on governor's warrant for retium to an-
otlier State is fugitive from Justice may be inquired into on habeas
corpus.

r.i

*^i

'^■' Notes OB U. S. Reports. 160 U. S. 13^170

• f S 136-140. 40 h, 369» UNITED STATES v. HEALEY.
^^l : (XII, 793), Practicai cons true ti on of statutes.
'^PiJfoved In Fulrbank v. United States, 181 U. S. 311, 45 L. 874,
^Up, Ct 6oD, lioldiug stamp tax Imposed on foreigo bill of lading
T^^tiit at Large. 451 » chap. 448. § 6) is tax on articles included
J^ln and probibited by U. S. Const, art, 1. f 9; United States v.
^J^^fcacliusetts General Hospital. 100 Fed* 9^5. holding paragraph
^^ «f tiirlff act of 1894. permitting importatloo of " philosophical
7^ «cieati5c apparatus, utensils, instruments and preparations,"
Entitled to liberal construction,
ttel. 1»8>. Mlscellaaeous.

^ted ba McCord t. Hill, 111 Wis. 524, 525. S7 N. W. 482, 4S3,
*<>l^tag under act Congress June 3, 1896, relating to confirmation
Ikomestead entries, six montlis' residence la not required to be
^iaiseqiient to entry.

^^^ V, a 14»-169. 40 L. 374. BAMBERGER V. SCHOOLFIELD.

%yl 3 (XII, 794). Preferred creditor.

^Aivprored In BlaJr State Bank v. Bunn, Ql Nebr. 471, 85 N. W. 530.
■MHdln^ deed from debtor to creditor and subsequent conveyaace
^^ tame property from creditor to debtor's wife is not fraudulent

8yL 5 (XII. 794). Notice of fraud,

kppmrea in In re Antlgo Screen Door Co., 123 Fed. 253, hold-

J^C under laws of Wisconsin, a chattel mortgage which is voidable

^IkM recorded is made valid if mcirtgagi'e takes possession; Cor-

^ IT. Thompson Nat. Bank, 105 Fed. 1DL>, holding absence of

^wltnige of fraud by chlidreji of fraudulent intent on pait of

ijtlicr In transferring to tliem property for valuable consideration

•iits conveyance vaJld; Cox v. Wall, 132 N. C. 741, 44 S. E. 639,

*oldlag, nnder Code 1883 N. C„ § 1548, burden of proving good

^litlj of sale by insolvent is on grantee; Hesse v. Barrett, 41 Or.

^ t® Pac. 753, holding when debtor transferred property to good

ftitli creditor, fact that debtor expected reconveyance to his chil-

dna, the conveyance is not void,

1«0 U. 8, 170, 40 U 382, NEW ORLEANS FLOUR INSPBOTOHS
r. GLOVER.

SyL 1 (XII, 794). Dismissal of appeal

Approved in DInsmore v. Southern Express Co., 183 U. S. 120,
-'I U, 113, 22 Sup, Ct. 47, liolding exemption of express company
tFom requirements of war revenue act of June 13. 181>8. chap. 448,
ppqolrei aflHrmance of Judgment of Circuit Court of Appeals affect-
Jiiir dlsmtoaal of suit to prevent application by express company
of itm wny to meet this requlremenL

i

160 U. SS. 171-203 Notes on U. S. Reports. (

160 U. S. 171-187, 40 L. 383, TOWNSEND v. VANDERWORKI

Syi. 1 (XII, 794). Establishment of trust in equity.

Approved In Wliitney v. Hay, 181 U. S. 90, 45 L. 765. 21 S
Ct. 542, holding trust will be declared in land where possession
land is transferred to certain persons in consideration of tt
supporting grantor for life and where he agrees to convey the Ii
to them and they have partially performed; Burlington Sav. Bi
V. Clinton, 106 Fed. 276, holding where one city has been anne-
to another, suit in Federal court on lands issued by former she
be brought against latter as trustee for landholders.

Syl. 2 (XII, 794). Failure of trustee to perform.

Distinguished in dissenting opinion in McGhee t. Bell, 170
143, 70 S. W. 499, majority holding where grantees purchased
land than contained in deed, they may retain the land and aslc
abatement of price.

Syl. 6 (XII, 795). Excuse for delay.

Approved in Brainard v. Buck, 184 U. S. 109, 22 Sup. Ct 4i
holding delay in commencing suit to establish resulting trust is i
such laches as will bar relief when complainant learned of fac
shortly before death of trustee; Potts v. Alexander, 118 Fed. ft
holding, under facts of the case, application by plaintiff for let
to file replication should be denied on ground of laches; ReaTis
Reavis, 103 Fed. 818, holding delay of eight years by heirs residli
in Missouri, in asl^ing for appointment of administrator to secu
share of California estate, will not bar recovery for property alleg
to have been fraudulently secured from deceased while insai
Morgan v. King, 2? Colo. 549, 63 Pac. 419, holding where 8to<
holder of bank sued to set aside sale of mining stock to dlrectc
for fraud, laches on part of plaintiff could not be set up by directo
(lissonting opinion in Hendryx v. Perkins, 114 Fed. 827, majorl
holding bill to vacate decree for fraud after lapse of nine yei
comes too late.

KiO U. S. lS7-2()3, 40 L. 3S8. BALLEW V. UNITED STATES.

Syl. 1 (XII, 7a5). Authentication of record.

Approved in Pooler v. United States, 127 Fed. 517, holdl
records of pension ollice are admissible equally with certific:
issued to prove granting? of pension; United States v. Lew Poy Df
119 Fed. 7S1), holding, in proceedings for deportation of Chine
certificate signed by United States commissioner that defendant v
adjudicated to be lawfully in this country is not admissible
proof of prior adjudication.

Syl. 3 (XII. 795). General verdict in criminal case.

Approved in Vance v. State, TO Ark. 286, 68 S. W. 43, hold
where verdict of murder in tirst degree is set aside, leaving vert
to stand as to second dejjree, case stands.

^■0 Kates on U. S. Reports. 1C(0 U* S. 203-220

f Sj-L 5 (XII, 795). Error Ie conviction on one charge.

1 Approved in Cai'ter v. MeClaugixry, 183 U. S. 385, 40 L, 247.

22 Sup. Ct. 189, holding sentence of court-martial is not invalid

l^peause president approves some of the findings and disapproves

^^Khers. and approves sentence; Hanley v. United States* 123 Fed.

^^K», holding, under various acts. Circuit Court of Appeals has

^Hbwer to Impose correct sentence without disturbing convlctloa;

"^"hitworth v. United States, 114 Fod, 305, holding where error Is

discovered In crimlnaJ case before Circuit Court of Appeals for

review, it may enter correct Judgment or reverse judgment and

*i5re<?t lower court to correct error; Hechter v. State, 94 Md. 442 »

50 AtL 1043. holding on indictment charging two offenses coavic*

tlon of on one charge is good.

U. S. 200^217, 40 L. 395, ALLISON v, UNITED STATES,
Syl. 4 (XII, 790). Commenting on criminal evidence.

in State v. Kellogg. 104 La. 599, 29 So. 294, holding

ftrldence relates to facta bearing upon guilt or innocence of

*c<?iiBed, question as to whether the facts are established Is for

(Xll, 790). Miscellaneous.

Cited in Id re Laing. 127 Fed. 218, holding, under the facts of
killing was justified.

217-220, 40 U 401, INTERIOR CONSTR., ETC., 00. V.
♦ilBXEW
^jl. 1 (XII. 796). Certificate showing Jurisdiction. -
Aiiproved in Arkansas v. Schlierholz, 179 U.'s. 600, 45 L. 337. 21
*^% Ct 231. holding sufficient certification on question of jurls-
^Utba of Circuit Court is not made by order allowing appeal from
*^Won that land office agent is entitled to bis discharge from
•Mff: Huntington v. Laidley, 170 U. S, 070, 44 L. 034, 20 Sup, Ct.
'•2w, holdiog direct appeal from Circuit Court to Supreme Court on
^^^\hd that jurisdiction of Circuit Court is in issue may be sus-
taliiwi when record shows ouly question Is Jurisdiction.
8yl. a (XII. 790), Waiver of Jurisdiction.

%roved in In re Woodbury, 98 Fed. 839, following rule;

^^^n V. LeJiigh Valley R, R., 127 Fed. 885, holding rlglJt

^'^ aittlntain suit In Circuit Court of United States when*

^ftes were citlxens of different States is not lost by assignment

^ cause of action to one who Is citizen of dilTerent State from

[ Jifitdant; United States Consol. Seeded Raisin Co, v. Phcenix

in S. & P. Co., 124 Fed. 230, 237. Iiokliog provision of U. S.

p. Stat. 1901, pp. 588, 589. relating to patent suits, is waived t)y

Ufi answer; Barnes v. Western Uuiun Tel. Co., 120 Fed, 5:i5. holt I-

: tfri*gaUir service of pracesis by deputy marshal In action wlu-n'

IGO U. S. 221-231 Notes on U. S. ReporU, «0

marshal is plaintiff is waived by answer to merits; Occidental,
etc., Co. V. Comstoclf, etc., Co., 120 Fed. 519, holding Circuit Court
has jurisdiction where plaintiff and defendant are citizens of dif
ferent States although neither is inhabitant of district where de-
fendant answers to merits; Piatt v. Massachusetts Real Estate Co^
103 Fed. 706, holding provision of section 1, Federal judiciary act
1887-88, relating to jurisdiction on account of diversity of citizen-
ship, is waived by general appearance; Lowry v. Title, etc., Assn.,
98 Fed. 821, 822, holding defendant by general appearance waives
objection of misjoinder because other defendants are not inhabit-
ants of district; Scott v. Hoover, 99 Fed. 251, holdicg filing de-
murrer to complaint waives objection that action Is not brought as
provided by 1 Supp. Rev. Stat, p. 612, in Circuit Court in district
of which defendant is an inhabitant; White v. Rio Grande, etc
Ry., 25 Utah, 358, 71 Pac. 597, holding right to have acdon tried
in county where it arose under Const, art 8, § , Utah, is waived
by filing demurrer.

160 U. S. 221-231, 40 L. 402, IN RE KBASBEY, ETC., CO.

Syl. 2 (XII, 797). Waiver of jurisdiction by corporation.

Approved In Gale v. Southern Bldg., etc., Assn., 117 Fed. 784,
holding under act Congress March 8, 1875, relating to Jorisdlctioii,
foreign corporation may be sued in district of plaintiff's residence
where proper service has been made under Code Va. 1887, f 1104;
Piatt V. Massachusetts Real Estate Co., 103 Fed. 707, holding c<hd-
pliance by corporation with statute of another State requiring
person on whom process may be served to be designated does not
make it citizen of that State, and it may insist on right of being
sued only In district of its incorporation or residence of plaintiff;
Pacific Mut Life Ins. Co. v. Tompkins, 101 Fed. 645, holding where
plaintiff, who had been resident of West Virginia, removes into
Virginia and determined to return to West Virginia, bnt before
removal brought suit in Circuit Court of United States in West
Virginia against California corporation, court had no Jurisdiction.

Syl. 3 (XII, 797). Jurisdiction In infringement suits.

Approved in RicordI v. John Church Co., 114 Fed. 1023, reaffirm-
ing rule. See 85 Am. St. Rep. 923, note.

Syl. 4 (XII, 707). Infringement suits — Circuit Court

Approved in Bowers v. Atlantic G. & P. Co., 104 Fed. 890. 8W.
holding, under act March 3, 1897, relating to Jurisdiction in patent
cases, suit for infringement may be brought only in Circuit Courts
therein enumerated; Spears v. Flynn, 102 Fed. 7, holding provisions
of Judiciary act ISST-SS, relating to Jurisdiction, does not apjdy
to patent and copyright cases.

611

Notes on U. S. Reports. 160 U. S. 231-259

160 U. E. 231-247, 40 L. 406, WHITTEN v. TOMLINSON,

SjL 1 (XII, 798). Habeas corpus by Federal courts.
Approred In Minnesota v. Brundage, ISO U. S. 502, 45 L. 641, 21
ftip. Ct ^56, holding application to Federal court for writ of habeas
«>rpQ8 to release person imprisoned under jiidgioeut of State courr
wtU be denied unless application has first been made to State courts;
Armstrong t. Van de Vauter, 21 Wasb. fi89, 59 Pae. 512, liolding
00 habeas corpus on retiulsltion of fugitive from justice from
MOtlier State, it is dutj of court to determine if iadictment charges
alme against laws of foreign State,
8yL 2 (XII, 708). Habeas corpus — Determination by State court.
Approved In Davis v. Burlte^ 179 0/ S. 402, 45 h. 251, 21 Sup. Ct,
211» Isoldlng Interference with execution of sentence of State court
«! ground that State law is invalid is properly refused where ques-
tiaahis not teen raised In State court; Boske v. Comiugore.lTT U.S.
4«, 14 L. 840. 20 Sup. CL 704, holding where officer of United Statew
rt*T«nue service is detained by State court. Federal court on habeas
corpas will determine whether Imprisonment la in violation of
C^jasUtutlon or laws of United States; In re Sti-auss. 126 Fed. 321.T,
i»l<Jing Federal court will only interfere In interstate extraditton
pwceedings In cases of urgency; In re Matthews, 122 B^ed. 252,
Mdlng police officer of city who sbot deserter from army under
^' 8, Comp Stat. 1901^ p, S17| and who was arrested therefor, will
W be discharged on habeas corpus by Federal court
(XJh T98>. Miscellaneous.

Cited Ln Loeb v. Coluoibla Township, 179 U. S. 4S1, 45 lu 286,
a enp, ct 178. holding Jurisdiction of United States Supreme
Oonn to review decision of Circuit Court under act Congress March
3» 18^1. f 5» on ground that law Is in violation of United States
CoDititntion^ is not limited to case where question Is raised by
pliliitlir, but to every case where question is raised.

140 U, S. 217-259, 40 L. 414, IN RE SANFORD FORK AND TOOL
CO.

8yL 1 (XIU 799). Executing mandate after remand.

Approred In Illinois v. lUlnoJs Cent R. R. Co.. 184 D. S. 92. 40
L. 447, 22 Sup. Ct 306, holding in determining whether piers ex-
tended Into lake beyond point of navigability Circuit Court, after
nsmaiid for further investigation of tlie facts, Is not conhued to size
aad oipftdty of vessels employed on lake; Baltimore, etc., Assa. v.
Akktrmm^ 99 Fed. 491, holding where mandate from Circuit Court of
JmM'iilB to Circuit Court directs latter to vacate sale by receiver on
pnoad of lack of Jurisdiction, Circuit Court has Jurisdiction to
aOow sureties of receiver who paid such money loto treasury upon
lent of receiver to intervene; Hebh v. County Court, 49
VoL m— 41

i

160 U. S. 247-259 Notes on U, S. Reports. G42

W. Va. 733, 37 S. B. 678, holding, after mandamus to compel re-
couBt of ballots, no defense against recount can be made.

Syl. 2 (XII, 799). Correcting effect of mandate.

Approved in State v. Norris, 61 Nebr. 463, 85 N. W. 436, following
rule; James v. Central Trust Co., 106 Fed. 931, holding where Cir-
cuit Court of Appeals remands decree of Circuit Court in certain
respects, if the Circuit Court errs in construing opinion, remedy is
by appeal from modified decree; State v. Dicltinson, 63 Nebr. 872.
89 N. W. 432, holding misconstruction by District Court of mandate
from Supreme Court may be corrected by mandamus; State v.
Omaha Nat. Bank, 60 Nebr. 235, 82 N. W. 851, holding when judg-
ment is reversed on error occurring before verdict, verdict Is nullified
and cause stands for trial de novo.

Distinguished in dissenting opinion in State v. Omaha Nat. Bank,
60 Nebr. 235, 82 N. W. 854, majority holding if District Court mis-
construes mandate of Supreme Court, obedience may be enforced
by mandamus.

Syl. 3 (XII, 800). Reviewing matters left open.

Approved in The Union Steamboat Co., 178 U. S. 319, 44 L. 1085,
20 Sup. Ct 905, holding question as to recoupment of one-half the ^
damages to cargo from moiety of damages awarded to one of tbe^
vessels in collision, if not raised on appeal, remains open for de-.^
termination by lower court.

Syl. 4 (XII, 800). Construing mandate.

Approved in The Union Steamboat Co., 178 U. S. 319, 44 L. lO^^j^
20 Sup. Ct. 905, holding opinion of Supreme Court may be consult**^^^
to ascertain what was decided.

Syl. 5 (XII, 800). Court's construction of its mandate.

Approved in Warren v. Robinson, 21 Utah, 444, 61 Pac. 30, hc^^Jd-
ing when appeal is taken from judgment entered under mandate of
appellate court, that court will determine from mandate and its
opinion whether inferior court has proceeded in accordance th^sre-
with.

Syl. 6 (XII, 800). Amending pleadings after remand.

Approved in Ex parte Fuller, 182 U. S. 508, 45 L. 1234, 21 Sup.
Ct. 873, holding new trial for newly discovered evidence may **
granted by United States court in Indian TeiTitory after H'"*'
decision by Supreme Court of United States under Ark. Stat (Mao*^-
Dig., chap. 119), § 5155, made applicable to Indian Territory-
Hawkins V. Cleveland, etc., Ry. Co., 99 Fed. 324, holding where
decree is reversed without direction for entry of particular decree
but for further proceedings, lower court has same authority to per*
mit amendments as it had before entry of decree.

«« Notes on tJ. S, Reports* IGD U, S. 259-2t5«

(^I. 790). Miscellaneous.

Oted In Osborne v, San Diego Co., 178 U. S. 40, 44 L. 960, 20
Snp^ Cl 867, holding wbere answer traverses any material allega-
tlom of bill, decree taken pro confesso Is erroneous; United States
r. Marshall. 122 Fed, 430, holding, under Rev, Stat. Utah, § 359T,
proTldlag that In candem nation proceedings plaintiff may occupy
premlws pending litigation, that where pending api^eal against it
Ji> »?JectmeDt defendant hroiight condemnation proceedings and oc-
fopitKl land, court, on affirmance of judgment in ejectment, bad
autliorliy to suspend order of restitution pending condemnation
P«>C€edinga,

^^ U. S. 259-288, 40 L. 418, CENTRAL R. R. v. KEEGAN.
Sjl 1 (XII, 80O), Fellow servants.

'ipproved In National Steel Co. v. Lowe, 127 Fed. 'din, holding,

^der the facts of this case, plaintiff and the person causing the

^"Jury were not fellow serTants; Pennsylvania Co. v. Fishack, 12^1

^ 471, holding yardm aster in charge of switchyards is fellow

**'^aiit with other employees engaged in switching; Chicago House

•decking Co. v. Birney, 117 B^ed. 76, 77, holding. nnd#r the facts of

^^s case, question whetlicr plaintiff and B, were fellow servants

^«« for Jury; Weeks v. Scharer, 111 Fed. 335, holding shift boss In

**iirge of gang of men w^hose duty it Is to direct their work Is

''^Uow servant of men Id his shift; McDonald v. Buckley, 109 Fed.

•^^, holding general foreman directing operation of pile driver and

^^^Jng signal for fall of hammer is fellow servant with other

lU^mbers of gang; Lafayette Bridge Go. v. Olsen, 108 Fed. 33T,

™idlng bridge company is responsiiile for death of emploj'ee which

^^curred tlirough breaking of timber selected by foreman and defect

^ which could have been seen by inspection; Stevens v. Chamber-

^^ 100 Fed. 381, 382, holding machinist in mill whose duty It was to

^*ke general repairs was fellow emploj^ee of assistant machinist

**ioin he called In to help him in repjiiring machine: Fenwick v.

^l^^uoli Cent. R. R. Co., 100 Fed. 248, holding foreman of swntch

^T^w Ig fellow servant of one of the crew under him; Briegai v.

^^Uhern Fac. Co., m Fed. 0t>2, holding fireman on engine who oiled

^•irutable by direction of engineer, whose duty It was to do the

*^nie, is fellow employee of said engineer: Thomas v. Cincinnati.

'^^^'i Hy. Co., 07 Fed. 240, holding jardmaster, who Is responsible

^^ erudition of yards, Is fellow servant of foreman of switching

^t employed under him; Tomlinson v, Chicago, etc., R. R. Co.,

"^ Fed. 254, holding bridge builder employed by railroad company

*W furnished with cars to transport him and assistants and tools

^ f«dlow servant with employees in charge of such train;

J^mhem Ind. R. R. v. .Martin, ltM> Ind. 286, m N. E. 8,S8, >m*,

complaint which alleged that plaintiff was injured while

160 U. S. 268-276 Notes on U. S. Reports. 644

removing kinks from cable as ordered by foreman ghows that
foreman waa fellow servant; Grattis v. K. C, P. & G. Ry., 153 Mo.
402, 77 Am. St Rep. 735, 55 S. W. 114, holding conductor, engineer
and fireman of same railroad are fellov^ servants; Zellars v.
Missouri .Water, etc., Co., 92 Mo. App. 126, holding where in engine-
room there were two shifts of workmen each consisting of an
engineer and fireman, and first shift as it went off of duty notified
the engineer that shaft was out of repair, but the engineer neglected
to instruct his fireman, the fireman could not recover for damages
sustained by the shaft; Wiskle, Montello, etc., Co., Ill Wis. 450, 87
N. W. 464, holding foreman who conducts blasting in quarry is
fellow servant of other employees assisting him; dissenting opinion
in Missouri, etc., Ry. Co. v. Elliott 102 Fed. Ill, majority holding
railroad despatcher giving orders for movement of trains is not
fellow servant with employee operating such trains.

Distinguished in Terre Haute, etc., R. R. Co. v. Rittenhouse, 28
Ind. App. 640, 62 N. E. 298, holding, under employer's liability act.
ft 1, subd. 2, in an action for injuries to employee, instruction des-
ignating plaintiff's superior as " employee " is not erroneous.

160 U. S. 268^276, 40 L. 422, MOORE v. UNITED STATES.

Syl. 1 (XII, 801). Indictment for embezzlement.

Approved in Bromberger v. United States, 128 Fed. 351, holding
an indictment under U. S. Comp. Stat 1901, p. 3691, charging two
counts, one charging defendant with embezzling a letter contain-
ing articles of value, and the other charging stealing same articles,
are not repugnant; In re Grin, 112 Fed. 800, holding where defend — .
ant appropriated to his own use money of his employer and fled tg-^
California, the indictment under Penal Code Cal., §§ 503, 508, wafe ^
sufllclent; M'Bride v. United States, 101 Fed. 822, holding in InB::^^
dietment for embezzlement, founded on section 1 of act March i^
1875, description of money as consisting of so many dollars aiiK::^
cents Is sufllclent; In re RIchter, 100 Fed. 297, holding charge " tbfc ^
defendant did commit embezzlement " is insufficient in indictmeirr:^
State V. WInstandley, 154 Ind. 445, 57 N. E. 110, holding » [
dietment for embezzlement under Bums' Rev. Stat 18W, | *>^" -:
Ind., which stated that defendants were president and secretary
insolvent bank and received deposits knowing condition of bank, ^^ms^i
insuflaclent

Syl. 5 (XII, 801). Difference between larceny and embezzlem^?^ n i

Approved In Grin v. Shine, 187 U. S. 196, 23 Sup. Ct 104, 4T X*
138, holding, under Cal. Code, embezzlement Is fraudulent ^i>"
propriation of property intrusted, and in larceny, felonious int^/*^
must exist at time of taking; Dimmick v. United States. 121 ^etM^
041, noldlng In indictment for embezzlement for failure to deposit
as required by U. S. Comp. Stat 1901, p. 3705, it is not ueoessary

915

Notes on U. S. Reports, 16P U. S. 270-303

to describe tlie money; McKnight v. United States, 97 Fed, 215,
homing Indictment for embezzlement which avers that defendant
^'Wiij^nlly used bank's money fn bis care for purpoee of briblner
ctty ofScfala In his own Interest Bufficiently avers an appropriation.

ICO U. S. 276-288. Not cited.

WO D. 8. 288^293, 40 L. 430. JERSEY CITY, ETC., R. B. v. MOR-
GAN.

^Jl 1 (XII, 802). Revtewin]^ State court* s decision,
Approved In De Lamar's Nevada G, M, Co. v. Nesbit 177 U. S.
529, 44 L. 874, 20 Sup. Ct. T18, holding fact tbat defendant in suit
to Qtilet title to mlninjer elaim claims title under mineral laws of
tJnIted States Is not sutfleient to raise Federal question wliicli will
wistain writ of error to State court

1<» tJ, S, 293^03, 40 L, 432, KOHL v. LEHLBACK.

8yl. 1 (XII. 802). Habeas corpus,

Approved In Thomas v. Winne, 122 Fed, 397, holding upon petition
^^ habeas corpus on gi-ound that person enlisting In navy was
"""to tt^e» no issue of iatoxleation of recruit is presented. See 87
^* St. Rep. 201, note.

%l 4 (Xn, 802). Appeal — Criminal conviction.

approved in Murphy v. Massachusetts, 17T U, S. 158, 44 Ij, 713,
^ Sup. Ct 640, holding appeal by defendant in criminal case is
^t element of due process, and the right may be accorded on
^^ conditions as State deems proper.

%L 5 (XIL 802). Denial of appeal.

Approved in Nordstrom v. Van De Vanter, 181 U, S, 616, 46 U
^^» 2l Sup. Ct 923. reaffirming rule.
%l 6 (XII, 802). Waiving Jurors' disqualification,
-Approved in Clifford v, Reumpler, 177 U. S. 693, 44 L. 915, 20

?]J^p. Ct U»28, reaflirming rule; Qucenan v. Oklahoma, 190 U. S. 551»
^^ 8up, Ct 704, 47 L, 1178, hohjlug fact that juror has been con-
noted of felony is waived by failure to raise question before ver-
^Wrt; Raub V. Carpenter, 187 U. S. 1C>3. 23 Sup, Ct 74, 47 L. 121.
*^*>liJltig refusal to grant new trial because of incompetency of
*UTor is proper where verdict rendered was the only proper oue;
^eujiog V. M'Claugliry, 113 Fed, 651, holding officers of regular
^^'^y are incompetent under .seventy-seventh article of war, to try
^>^l)^rs of voluntary forces raisetl under Acts April 22. 189S, and
^^b 2, 1890; Dickerson v. North Jersey Ry, Co.. US N. J. L. 4(j, 5:-
^^' 214, holding fact that one Juror does not understand English
^*^fiiajre is not ground for setting aside verdict

I^lKtlnguished In McClaiigluT v. Doming. 18G U, S, 60, 4jli L. 1050,
fiBup. Ct 793. holding court-martial composed of officers of resu-

160 U. S. 30a-355 Notes on U. S. ReporU.

iar army of United States, under seventy-seventh article of war. has
no jurisdiction to try soldier of volunteer army.

160 U. S. 303-319, 40 L. 436. HAWS v. VICTORIA COPPER MIN.
CO.

Syl. 6 (XII, 803). Defense of relocator.

Approved in Walton v. Wild Goose Mln., etc., Co., 123 Fed. 218,
holding notices of location of mining claims are to be liberally
construed and mistakes as to courses and distances will not in-
validate; M'Intosh V. Price, 121 Fed. 718, holding second locator
cannot enter within boundaries of placer claim as staked by prior
locator and make valid location of ground of which first locator
is in possession; Oregon King Mln. Co. v. Brown, 119 Fed. 50,
holding, under U. S. Comp. Stat 1901, p. 1426, relating to loca-
tions of mining claims, boundary lines need not be indicated by
physical marks, and traceable markings are sufficient; Cosmos E«x-
ploration Co. v. Gray Eagle Oil Co., 112 Fed. 17, holding public
lands are not ** vacant and open to settlement," under 30 Stat. 30.
where they are in actual occupancy of others engaged in exploring
for oil.

Syl. 9 (XII. 803). Filing location notice.

Approved In McKinley Creek Mining Co. ▼. Alaska, etc. Co..
183 U. S. 570, 22 Sup. Ct. 87, holding sufficient location of placer
mining claim is made by notices upon a stump in creek, of claim
15,000 feet along creek bottom and extending 300 feet each way.
adding that it is extension of another claim named certain distance
from falls of said creek; Peters v. Tonopah Mln. Co., 120 Fed.
589, holding neither laws of United States -or Nevada require
notice of location of lode mining claim to be recorded, and unless
mining district requires such recording allegation of recording Is
immaterial.

160 U. S. 319-32G, 40 L. 441, MARKHAM v. UNITED STATESJ.

Syl. 1 (XII, 803). Essentials of Indictment for perjury.

Approved In Markham v. United States, 106 Fed. 885, holding
Indictment for perjury accusing defendant with having sworn
falsely to schedule in bankruptcy Is fatally defective because it
directly charges that he had other property.

100 U. S. 327-355, 40 L. 444, LEHIGH MIN.. ETC.. CO. ▼. KELLY.

Syl. 3 (XII, 804). Transfer to corporation having same officers.

Approved In Oriental Investment Co. v. Barclay, 25 Tex. Civ. 55H.
64 S. W. 88. holding where corporation owning hotel leased It to
another corporation with same stockholders and manager transac-
tion not fraudulent

617

Notes QQ U. S. ReportB. 100 U. S. 355-389

SjL i (XII. 804). Statutes relating to collusive Joinders.

Approved In Wait© v. Santa Cnia, IM V. S. 325, 46 U mi, 22

Sup. Ct 335» holding suit by transferee of bonds for purpose of

coHectlon does not involve dispute within jurisdiction of Circuit

Court within act of Oon^ress of March 3. 1875, chap. 137; BoarcL

of Comm, etc* v* Schnnlslsy, 97 Fed. 2. holding action hrougbt

hi Circuit Court by foreigner aguiust mimicipal curporation should

be diamlssed where It appears that coupons in litigation were

rawited in same State with defendant, and were transferred

Ifor purpose of Federal iurisdictlon; Brice v. C* etc., Ry., 05 Tex.

l€6» 6S s. W. 31, holding untler the facts the foreign corporation

jlria doiag business In the State and liable to suit for personal

I fnjtirlet sustained in another State by nonresident of l>oth States,

I IW U. S. 355^-357, 40 L. 454, PIERCE v. UNITED STATES.

SyL 3 (XII, 804). Admissibility of prisoner's confessions.

Approved In Young v. State, 90 Md. 587, 45 AU. 532» holding
'^MiTi'saioD of guilt to officer at time of arrest is admissible; Strong
^ State, 63 Xebr. 442, 88 N. W. 773, holding where deptity war-
den of penitentiary instructs prisoner as to advantages obtained
^T cosuplytng with rules, but did not suggest any benefits frora
ia idiaj^fon of guilt, a confession then made Is admissible.

1^ V. S. 357-5G9. Not cited.

^^V, 8. 369-373, 40 L, 460. VAN WAGENEN v. SEW ALU
^yl 2 (XII* 80G). Jurisdictional questions, how presented.
Approved in Arkansas v. Schllerholz, 179 U. S. mO, 45 L. 337,
'^^ ^Hh Ct 231, liolding constitutional question which will give
%ifme Court Jurisdiction on appeal from Circuit Court is not
l*i^**ented by record which does not show that question was pre-
^^'^Jtt'd to lower court; Huntington v. Laidley, 176 U. S. 67C, 44 L.
*3<- 20 Sup. Ct. 529. holding direct appeal from Circuit Court to
l^aited States Supreme Court may he taken where record shows
tmlj (juestion on which decree was based was that of Juiisdlction,

«J V. 8. 374-378, 40 L. 461, UNION MUT, LIFE INS. CO. v.

KIRCHOFF,
Syl. 1 (XII. 806). Decree remanding is not final.
Approved In White v. Wright. 189 U. S. 5LJT, 23 Sup, Ct 852»
47 L. tcs. reaffirming rule.

100 U. S. 379-389, 40 L. 4<53, KIRBY v. TALLMADGE.

Syl 1 (XII, 805). Failure to produce testimony — Presumption.

Approved In i'enusylvanla U, R. Co. v. Anoka Nat. Bank, 108
F<?d. 486* holding in action against railroad company where plain-
tUr Introduces evidence tending to show defendant managed road

160 U. S. 389-394 Notes on U. S. Reports. 648

upon which loss occurred, upon failure of defendant to controTert
testimony Jury may presume road was operated by defendant; Mis-
souri, etc., Ry. Ck>. y. Elliott, 102 Fed. 102, holding secondary evi-
dence of contents of book will be presumed to be correct where
defendant fails to produce original; Lee v. State, 156 Ind. 548, 60
N. E. 302, holding, under the facts of the case, Jury were Justified
in presuming that if defendant testified his evidence would be
prejudicial.

Syl. 3 (XII, 806). Possession as notice to purchaser.

Approved in Atlanta Nat Bldg,, etc, Assn. v. Gilmer, 128 Fed. 295,
holding where residence property was occupied by mother and
daughters, and legal title stood in name of daughters who kept
boarding-house, and the mother occupied a room, purchaser was
not charged with notice of title of mother; Oolumbus, S. & H.
R. R. Co. AiH;>eal8, 100 Fed. 206, holding that possession by equitable
owner of land is sufficient to put purchaser of notes secured thereby
upon inquiry as to real owner; Kirkham v. Moore, 30 Ind. App.
553, 65 N. E. 104^, holding possession of premises by one of sev-
eral tenants in common is sufficient to put purchaser from cotenant
on inquiry as to interest claimed by him.

Syl. 4 (XII, 806). Occupation by husband and wife.

Approved in Schumacher v. Truman, 134 Cal. 432, 66 Pac. 692.
holding where husband and wife own land in common and make
agreement in respect to the control thereof which is not recorded.
purchaser in good faith from wife, who obtained title to ooe-half
of the land by divorce decree, takes good title.

IGO U. S. 380-^94, 40 L. 467, IOWA CENT. RY. v. IOWA.
Syl. 2 (XII, 806). Construction of Fourteenth Amendment
Approved in Cincinnati Street R. R. Co. v. Snell, 101 U. S. 4;>.
holding change of venue, under Ohio Rev. Stat, § 5030, Is not iu
violation of constitutional guaranty of equal protection of the law;
Hoolver v. Los Angeles, ISS U. S. 319, 23 Sup. Ct. 397, 47 L. 491.
holding StAte decision in condemnation proceedings is not review-
able in Supreme Court of United States on theory that property
was taken without just compensation; Louisville, etc.. R. R. Co.
V. Schmidt 177 U. S. 230. 44 L. 750, 20 Sup. Ct 622. holding bring-
ing in party after jutlgniont is not in violation of Fourteenth
Amendment, United States Constitution; Gunn v. Union R, R., is;
R. 1. 303, 49 Atl. 1004. holding granting new trial on ground that
verdict is against evidence without requiring trial judge to pa.<«.H
on the point is not denial of due process; August v. Gilmer, 'k;
W. Va. Ot), 44 S. E. 143. holding sale of property which has been
staywl by Code 1S99. chap. 1U7, § 4, W. Va.. before right thereto
has been determined is void.

•• Notes on U. S. Reports. 160 U. S. 304-451

IGO U. S. 3ft4-407» 40 L. 469, SPALDING v. CHANDLER.

Syl. 1 (XU, 806), Fee of Indian lands.

Approved in Lone Wolf v, Hitchcock, 187 U. S. 566, 2S Snp.
Ct 221, 47 L. 306, holding 31 Stat at Large, 677, chap. 813. relat-
ing to iUotments of Indian lands, is valid; Minnesota v. Hitch-
cock, m U. S. 390, 46 L. 964, 22 Swp. Ct 6D7, holding State of
SilaDesota has no Interest lo any of the lands Included In the
cesaloQ by Chippewa Indians in Hiiinesota. of their interest in
(u^&Uotted lands, whose fee waa in United States subject to Indian
rigiit of occupancy under 25 Stat at Large, 042, chap. 24.

1«0IJ. S. 406-425. 40 L. 474, HICKORY v. UNITED STATES.

SjL 4 (XII, 807). Charge on facts.

Approved in Mullen v. United States, 106 Fed. 895, holding where
no ertdeace of character has been introduced Federal Judge should
JflWict Jury that defendant is presumed to have good character.

m U. S, 426^38, 40 L. 480, GILL v, UNITED STATES,
^7l 4 (XII, SOS). Patents -^ Bad faith of patentee.
Approved in Bleistein v, Donaldson Lithographing Co*, 188 U,
S. 248, 23 Sup. Ct 299, 47 L, 461, holding where designs
«« produced by persons employed by plaintiff in lile establishment
mey belong to plaintiff; Dielman v. While, 102 Fed. 895, holding
where artist Is commissioned to execute work of art not In existence
presumption is that patron acquires absolute owaership therein; D,
M. Steward Mfg. Co. v. Steward, 109 Teun. 307, 70 S. W. 813,
^oJd»i2g where president of manufacturing corporation purchased
under another name gas tips which he invented anu the cori>ora-
UoD manufactured and sold them at a profit the corporation was
eoritled to the profits.

lOU U. S. 438-451, ^ L. 485. SOUTHERN PAC. CO. v. POOL.
SyL 1 (XII, 808). Negligence as question of law.
Approved In Whitcomb v. McNulty, 105 Fed. 865, holding en-
t^r, who went under his engine to make repairs, knowing that
rHher engine would soon back into his engine and move it,
Ity of contributory negligence; Nelson v. New Orleans, etc. K.
bJO Fed. 737, holding tiuestion of negligence is one for court
ODtX when all reasomible men must draw same conclusion; West-
#rti GaJ». Cou^t. Co. v. Banner, 97 Fed. 8S0. holding question whether
person Injured received warning is for Jury.
»yL 2 (XII, 8(»S). Imputable negHgeuce.

Approved in Lauterer v. Mjtnbattan Ry., 128 Fed. 545, Iiolding
attempting to board moving train assumes risk of Injury
m; Marquardt v. Ball Engine Co., 122 !'\'d, 377, buldlng
proof WOB Insufficient to show that engine which caused death

160 U. S. 452-493 Notes on U. S. Repoits. 65

of plalntiflfs intestate was dangerous so as to render defendac
liable; Whitcomb v. M'Nulty, 105 Fed. 866, holding engineer, wt
went under his en^ne to make repairs, knowing that anothi
train would soon back into his engine and move it, was gull^
of contributory negligence; Barksdale v. Railway, 66 S. C. 21
44 S. E. 745, holding, under S. C. Const., art 9, 9 15, relating
knowledge of defective machinery, conductor is not barred of rigg
of recovery unless he would have regarded cars dangerous If
had exercised ordinary prudence.

Distinguished in dissenting opinion in Whitcomb y. M*Nu^
105 Fed. 867, 868, majority holding engineer who went 'un ^
his engine to make repairs, knowing that another train wc^:
soon back into his engine and move it, was guilty of contributj^
negligence.

160 U. S. 452-469, 40 L. 490, ELDRIDGB v. TREZEVANT.

Syl. 2 (XII, 809). Easements under State laws.

Approved in Scranton v. Wheeler, 179 U. S. 157, 45 L. 135, S
Sup. Ct. 54, holding control of all navigable water is under Uolt^
States, although shore and submerged land are owned by Stat^
and individuals.

Syl. 4 (XII, 809). Servitude on lands imposed by State.

Approved in Scranton v. Wheeler, 179 U. S. 179, 182, 45 L. 14S:
144, 21 Sup. Ct. 63, holding legal incidents of land abutting oi
navigable streams are declared by State wherein land Is sttnated.

160 U. S. 469-493, 40 L. 499, DAVIS v. UNITE3D STATED

Syl. 1 (XII, 809). Burden of proving criminal capacity.

Approved in Hotema v. United States, 186 U. S. 418, 420, 46 L.122t
22 Sup. Ct 807. holding charge on trial for murder that recent vm
of whisky by defendant in no defense is not erroneous where cous
has charged that there must be a willful and intenticmal killin;.
See 70 Am. St Rep. 92, note.

Syl. 2 (XII, 809). Reasonable doubt of capacity.

Approved in German v. United States, 120 Fed. 667, holding f
struction which requires defendant to show insanity by prep^
derance of evidence is erroneous; Iowa v. Thiele, 119 Iowa, 62
94 N. W. 257, holding burden is on accused to prove insanity
preponderance of evidence; State v. Peel, 23 Mont 374, 75 I^
St Uep. 541, 59 Pac. 175, holding, under facts of the case, Instr^i
tlon as to mental capacity to commit crime was not erroneo-i
State V. Greenleaf, 71 N. II. 614, 54 Atl. 43, holding in order i
convict of murder in first degree State must show malice aD4
deliberate killing; Stote v. Ballou, 20 R. I. 612 (see 40 Atl. Wih
holding burden Is on defendant to prove by preponderance of erf-
deuce that homicide was committed In self-defense. See 76 Am. St
Uep. 94, nota

Notes on U. S. Reports.

liX) U. S. 493-514

U. a 493^£)8, 40 K 508, UNITED STATES v. SAYWARD.
^yL 1 (Xlh 810). Jurisdiction of Circuit Court.
-s^pproved in Weston v. Tlerney, 184 U. S. CJd, COS, 46 L. 703, 22
a:^Xijj. CL 938, aiid United States v. Slierldan, 119 Fed. 238, both
«-^^ci.mrming rule; Holt v. Indiana Mfg, Co.. 176 U. S. 73, 44 L. 377,
'^SO Sup. Ct 274» holding suit to enjoin State taxes as Illegal be-
«:^^i-ise levied on patent rights is not within jurisdiction of Circuit
<-^«>-Drt under U. S. Rev. Stat. § «2U, cl. 9; Puruell v. Page, 128 Fed.
-^S», holding, under U. S. Comp. Stat llMil, p. 508, limiting Juris-
<5.i<rtJon of Circuit Court In action to restrain enforcement of per-
^^>i3.al State tax, court has no Juristliction where amount of lax
l8 ^80; Pooler v. United States, 127 Fed, 520, holding U. S. Comp.
S^t«.t. 1901, p» 456. confers on District Court Jurisdiction of action
^y United States to recover money fraudulently obtained in pay-
'^ieiit of false claim for a pension; United States v. O'Brien, 120
^etl 448, holding suit on hond of contiactor for public work
^«"oiight In name of United States, under Comp. Slat. 1901. p. 2:i2:i,
<?ajijiot be maintained In Federal court in any district other than
Oiie Id which defendant is inhabitant; Eachus v. Hartwell, 112
^^<L 504, holding in suit to enjoin enforcement of street assessment
^HHjunt In controverey for purpose of determining Federal Juris-
*^<Mlon is amount of assessment; United States v. Ilenderlong, Krj
***e^ 4, holding, under Judiciary act (25 Stat 433, chap. 866h ro-
tating to Jurisdiction of Circuit Court, that court has no Jurisdic-
tion of action brought under 28 Stat 278. to recover on contract-
^^B IxMid for labor on public building where amount involved is
^••B than 12,000; dissenting opinion in Giles v. Harris, 18I:> U. S.
^^^ 23 Sup. Ct 644, 47 L. 916. majority holding absence of aver-
*>«iit fn bill in Circuit Court showing that Jurisdictional amount
^aa involved is not available in Supreme Court where jurisdiction
^ raised on another point.

100 l\ S. 490-514. 40 L. 510, CHAP PELL v. UNITED STATES,
5^yl. 2 (XII, 810). Denying petition for writ of error.
Approved In Stori v. Massacliusetta. 183 U, S. 143. 46 L. 124.
^ Sup. Ct 74, holding writ of habeas corpus will not be upheld
*• writ of error to review criminal proceedings in State court

^yl. 3 (XII. 810). Review of all rulings — Certiflcatlon.

proved Id New York, N. H.. etc., R. R. Co. v. Weisberg. 1!.>1
^; 8. 558, following rule; Spencer v. Duplan Silk Co., 191 U. 8.
"^^ holding removal from State to Federal court for diverse clti-
^fliblp by trustee In bankruptcy makes judgment of Circuit Court
'*' AjuieaJs final under bankruptcy act, I 23; Arkansas v. Schller-
^ 1T» U. 8. GOO, 45 L. 337. 21 Sup. Ct. 231, holding sutficient
^riJfleatioa of question of jurisdiction by Circuit Court to Su-
uri is not made by order allowing appeal from decision

160 U. S. 514r-5a0 Notes on U. S. Reports. (a

that agent of land ofQce is entitled to his discharge from sherr
and stating whether it should remand him or to be dealt with
State court; Huntington v. Laidley, 176 U. S. 676, 44 L. 634.
Sup. Ct 529, holding in order to maintain appellate Jurisdicfl
of Supreme Ck)urt the record must show that lower court se^
up single question of Jurisdiction; Lange v. Union Pac. R. R.,
Fed. 340, holding as Congress has passed Gomp. Stat 1901, p.
authorizing amendments to pleadings in Federal courts, these co -
are not governed by State practice.

Syl. 4 (XII, 810). Reviewing entire case on appeal.

Approved in Davis, etc., Mfg. Co. v. Los Angeles, 189 17.
216, 23 Sup. Ct. 499, 47 L. 780, holding appeal lies direcUy
United States Supreme Court frond decree of Circuit Court -
missing bill, based on diversity of citizenship and alleged uncr:
stitutional municipal ordinance.

Syl. 5 (XII, 811). Eminent domain exercised by Congress.

Approved in Postal Tel. Cable Co. v. Southern Ry. Co., 122
162, holding constitutional provision governing Federal courts
curing right to Jury trial in proceedings to condemn land does ^-
apply to proceedings delegated by State.

Syl. 10 (XII, 811). Proceedings in eminent domain.

Approved in United States v. Honolulu Plantation Co., 122 F^*^^
586, holding in proceedings by United States to condemn land ^
Hawaii issue of fact is triable by Jury; Newcomb v. Kockpod^^^
183 Mass. 78, 66 N. E. 589, holding, under Rev. Laws. chap. Z
§ 15, Mass., town could not be compelled to furnish transpor— ^ *
tlon to scholars living on Island off the coast where access v^^^^
Inconvenient.

(XII, 810). Miscellaneous.

Cited In Victor G. Bloede Co. v, Joseph Bancroft & Sons Co.,-
Fed. 186, holding, under section 724, Rev. Stat. U. S., and 20
Laws, p. 187, court is authorized to order production of books
inspection before trial; Reed v. Stanlej', 97 Fed. 524, holding,
der act March 3, 1891. no appeal may be taken to Supreme C«
on question of jurisdiction unless trial court during term at wlJ/c/i
Judgment was rendered certifies that question of Jurisdiction^ i^
Involved.

IGO U. S. 511-530. 40 L. 515, JACKSONVILLE, ETC., RY. »'•
HOOPEU.

Syl. 1 (XII, 811). " Hands and seals " of corporation.

Approved in Mills v. Larrance. ISG 111. 640, 58 N. E. 221, hoWlD^
cross-bill allej^es release need not allege consideration where it wa-^
under seaL

esa

Notes on U. S, Reports. 160 U. S. 531-545

r

I

mjl 2 (XII, 811). Corporate seal.

^pproTed in District of Columbia v. Camden Iroo Works, 181
XJ« S. 4G0, 45 L. 953, 21 Snp. Ct 1383* bokllng omission of seal of
X>istrlct of Columbia from contract wbicb commissioners exe-
^^Txted for corporation with their slgcatDres aod seals will not
X-H^ validate contract

SyL 6 (XII, 811), Authority of corporation offlcera.
-Approved in Sun Printing & Publishing Assn, v. Moore, 183 U.
®- 660, 46 L» 373, 22 Sop. Ct. 244, holding chartering of yacht for
lE^xirpose of gathering news by managing editor of newspaper Is
^^w^thin his power.

SyL 8 (XII, 812). Corporations— Ultra vires.
Approved In Big Creek, etc., Iron Co. v. American I/oan, etc.,
^^o^ 127 Fed. 634, holding, under Tennessee statute* authorizing
^^rporatlon to execute mortgage to secure money borrowed, mort-
^^Se given to secure bond Issued in payment of purchase of prop-
^t'ty is valid; Richmond Guano Co. v. Fnrmera', etc.. Ginnery, 119
^e^ 711» holding corporation organized to manufacture fertilizers
^^a* no i>ower to engage in selling fertilizers made by others; Jew-
elers* Circular Pub. Co. v. Jacobs, 109 Fed. 509, holding corpora-
^on authorized to publish Journfil devoted to Interests in Jewelry
t^'ade may publish directory of jewelry trade; State v. New Or-
leans Warehouse Co., im La. 71, 33 So, 84. holding steamship
<?OmpAny baa authority to sell or let its warehouses; First Nat.
Banic V. American Nat Bank, 173 Mo. 160, 72 S. W. lOCl, hold-
*«ig, ander U. S, Comp. Stat 1901, p, 3455, prescribing powers of
national bankg, such bank has no power to bind itself that draft
drawn on its customer will be paid; White v. Bank, 6G S, C. 503,
■is 8. E*. 09, holding where corportition in violation of Code of
Lawi 1902. i 1S43. subd. " e,'' providing that no part of capital
*toek shall be used In banking operation, purchased such stock It
^ adt liable to creditors of bank on its Insolvency.

Distinguished in State v. Southern Fac 52 La. Ann. 1S2S, 2H
^- 375, holding railroad corporation Is not authorized to license
^^^T act No. 101, 1886, La,, for storing goods received.
8yl, U (XII, 812). Insurance by lessee.

Approved fn Falls of Keltic SS. Co. v. United States, etc, SS.
^^■. 108 Fed, 418, holding clause In charter of vessel that she should
^ cleaned and painted at least every six months was an absolute
^^Rftfi'ment for breach of which owner was liable.

^Wtl.S. 531^45, 40 L. 525, LAING v. RIGNEX,
8x1 X (XII, 812). Expert testimony of foreign Jurisdiction,
proved in Finney v. Guy, 189 U. S. 343, 23 Sup. Ct 561, 47

^ SH, holding State court la not concluded as to proper construe

I

160 U. S. 531-545 Notes on U. S. ReporU.

tion of statute of another State by admission of defendant:
y. Smith, 73 Conn. 391, 47 Atl. 716» holding, under Minnnea
statute where creditors may bid in assets of corporation to sat
their claim such sale was confirmed by the court in action
receiver in Connecticut to enforce unpaid subscriptions, const
tion of Minnesota court was conclusive.
Syl. 2 (XII, 812). Estoppel against collaterally attacking de

Approved in United States y. Bishop, 125 Fed. 183, hoVi
where each party requests peremptory instructions in his favor
are estopped from claiming that any question should have
left to Jury; King v. Smith, 110 Fed. 07, 98, holding que

whether there waa any evidence before Circuit Court, may

considered on writ of error. See 94 Am. St Rep. 536, note.

Syl. 3 (XII, 812). Attacking decree collaterally.

Approved in Mutual Reserve, etc., Assn. v. Phelps, 190 V. -* '

159, 23 Sup. Ct 710, 47 L. 995, holding proceeding cannot be ^

moved to Federal court where State court has decided that i^ ^
merely supplementary to continuation of action passed into ji^*^^^
ment; New Orleans v. Fisher, 180 U. S. 196, 45 L. 492, 21 Sup. ^

352, holding judgment of Circuit Court as to competency of pU-^' ^
tiff's assignors to sue and diversity of citizenship cannot be a^ ^
laterally impeached; Phelps v. Mutual Reserve, etc., Assn., ^

Fed. 462, holding where court has acquired Jurisdiction over act^^""^
appointment of receiver without further notice cannot be ^ ^
laterally attacked; affirmed in 190 U. S. 159; Rigney v. Rlgc=:^W
62 N. J. Bq. 12, 49 Atl. 461, holding chancellor may enterUin '

plication for modification of alimony decree, although decree <lf' "Jo
not reserve the right to the parties.

Syl. 4 (XII, 813). Enforcing decree of sister State.

Approved in East Building, etc., Assn. v. Williamson, 188 19^'
127, 23 Sup. Ct 529, 47 L. 740, holding decision by court with fe
erence to effect which charter and by-laws of foreign buil^^
and loan association will have upon absolute promise of corpora tfo
to mature its shares at specified time does not involve U. (
Const, art 4, § 1; Lynde v. Lynde, 181 U. S. 186, 45 L. 814, 2
Sup. Ct 55G, holding where husband appeared generally to pet
tion for alimony decree awarding alimony is binding, affirinia
Lynde v. Lynde, 102 N. Y. 414, 415, 416, 76 Am. St Rep. 335. 33f
337, 56 N. E. 082, holding where original decree rendered f
court of another State and void as against nonresident defenda
for want of Jurisdiction is amended so as to include judgme
for alimony, general appearance in. proceedings to amend autb
izes court to render final decree for alimony; American Mut I
Ins. Co. V. Mason, 159 Ind. 21, 64 N. E. 527, holding where t
script shows that foreign court had judge, clerk and seal it
be presumed to be court of record.

055

Note« on U. S. Reports. 160 U, S. 64G-584

Oil. 812>. Miscellaneous.

Cite<J in Kunkel v. BrowD, 99 Fed. 59G. holding exceptions to and-
^n^ of fact present questions of law whicli are reviewable In ap-
pelate court

lOC U. S, 546-^53. 40 L. 529, JOHNSON v, UNITED STATES,
SyL 3 (XII, 813). Jurisdiction over Indian depredations.
-Approved tn Coutzen v. United States, 179 U. S. 192, 45 L. 149,
^ Sup. Ct 9a holding citizenship of claimant at time of Indian
<iepre(Jatlon is necessary to give Court of Claims Jurisdiction.

16€ 0. 8. 553^56. 40 L. 532, CARVER v. UNITED STATES.
Syl. 2 (XII, 813). Reafflrmanee of dying declaration.
See 86 Am. St Rep. 647, note.

160 IJ. 8.556-584, 40 L. 536. MISSOURI PAC. RY. v. FITZGERALD.

SyL 3 (XII, 814). State decision on independent ground.
Approved In Bernard v. People of Michigan, 184 U. S, 697. 22
^Up. Ct IHO. reafflrming rule.

8yL 8 (XII, 814). Reconstrnction of order of removal,
Approved in Weldon v. Fritz len, 128 Fed. €*1U hold lug where court
«a5 dtfnied right of removal it may reconsider motion to remove at
**»y time and Is not bound by former order.

Syl 0 (XII. 814). Reviewing order remanding cause.

Approved in Lyon v. Gombret 189 U. B. 508, 23 Sup. Ct 853,

*7 L 922. reaffirming rule; German NaL Bank v. Speckert 181 U.

^ 40a 409, 45 L- 927. 21 8up. Ct «S0, 690, holding decision of

^-Irciiit Court of Appeals reversing decree of Circuit Court which

'Itaied motion to remand cause to State court la not appealable

*« Supreme Court under act Congress March 3, 1891, chap. 517;

Pioneer Savings, etc., Co. \\ Peck, etc.. 20 Tex. Civ. 120, 49 S.

W, itig, holding where Federal court declines to a.ssume jurlsdietl*ju

<*t ea«e commenced in State court appellant cannot complain or

^<tlon of State court refusing removal.

SyL 10 {XII. 814). Reviewing State courfa decision.

Approre^l In South Carolina v. Virginia-Carolina, etc.. Co., 117

f^, 732. and Pennsylvania Co. v. Leeman» KM ind. 18, fJO N. E.

*^. both following rule; Soutlieru R. Y. Co. v. Allison, 19# U. S.

^<1, 23 Sup. Ct, 715, 47 L. 1081, hoWing ruling of State court is

^trlewable in United States Supreme Court under Comp. Stat.

^1, p. 575, notwithstanding order of removal; Teiluride Power.

^f. Co, V. Rio Grande, etc.. Ry. Co., 187 U. S. 5K5, 23 Sup. Ct

47 L. 313. holding findings of fact on question of local law.

n U. 8. Conip. Stat, I'.Mjl, p. 1437, are not reviewable In United

supreme Court on writ of error; Missouri, etc. R. It Co.

uurl a, R, Comrs.. 183 U. S. 58. 40 L. 83, 22 Sup. Ct 20,

J

160 U. S. 584-668 Notes on U. S. Reports. 65G

holding State is not real party plaintiff so as to preclude removal
in suit by railroad commissioners, under Mo. Rev. Stat. 1899, §1150,
to restrain railroad company in action regarding rates; Ck>ker v.
Monaghan Mills, 110 Fed. 806, holding Circuit Court of United States
is not authorized to grant an injunction staying proceedings in
State court because petition for removal is pending.

160 U. S. 584-592, 40 L. 543, DICKSON v. PATTERSON.
Syl. 2 (XII. 815). Laches caused by defendant
Approved in Richardson v. Olivier, 105 Fed. 283, holding suit
by depositor against receiver of bank to recover proceeds of fraud-
ulent check received by officer of bank after insolvency is not
barred by laches in three years.

160 U. S. 593-624. Not cited.

160 U. S. 624-643, 40 L. 560, NALLB v. YOUNG.

(XII, 816). Miscellaneous.

Cited in Woodworth v. Northwestern Mut Life Ins. Go., 185
U. S. 357, 46 L. 9i7, 22 Sup. Ct 678, holding in foreclosure in Cir-
cuit Court requirements of State law as to proceedings should be
followed.

160 U. §. 643-646, 40 L. 566, GREGORY v. VANCE.

Syl. 2 (XII, 816). Decree In ancillary suit

Approved in Gableman v. Peoria, etc., R. R. Co., 179 U. 8. 8€^
45 L. 224, 21 Sup. Ct 174, holding fact that appointment of receiver
was by Federal court does not make all actions against him remoT-
able to Federal court

160 U. S. 646-654. Not cited.

160 U. S. 654-060, 40 L. 570, UNITED STATES v. THORNTON.

Syl. 1 (XII, 817). Pay of discharged soldiers.

Approved in United States v. Sweet 189 U. S. 472, 23 Sup. Ct
638, 47 L. 907, holding construction of war department denying
officer discharged at his own request travel pay from place ot
discharge to place of enrollment allowed by Comp. Stat 1901»
p. 915, is not erroneous.

160 U. S. 660-668, 40 L. 573, FIRST NAT. BANK v. AYERS.

Syl. 1 (XII, 817). Taxation — Discrimination against banks.

Approved in Commercial Nat. Bank v. Chamb^s, 182 U. S. 500,
45 L. 1229, 21 Sup. Ct 861, affirming 21 Utah, 347, 61 Pac. 566,
holding, under sections 2, 3, article 13, Const, subds. 6, 7. $§ 2505,
2500, and 2508, Rev. Stat 1898, only deductions authorized in as-
sessment for taxes of shares of national bank are from value of
shares of value of real estate represented by the stock; Illlnoii

i

ess?

Notes on U, S. Reports. 160 U. S. 668^692

Nat Bank v. Kinsella, 201 III. 38» 66 N. E. 339, holding, under
TJ, S, Comp. Stat 1901, p. 3502, relating to assessment of national
banks, If personalty of other banks was taxed at Its full valua-
tion ta addition to taxation on real estate^ sharea of national bank
migbt t>e taxed in same manner; First Nat Bank v. Turner, 154
Inl 461, 57 N, E. 112, holding. UEder section 5219, Rev. Stat, U.
8., and statutes Indiana, owners of shares In national bank are
not entitled to deduct from assessed valuation of stock their bona
fide Indebtedneaa; Hull v. Alexander, 69 Ohio SL 84, 68 N. E.
64^ holding action by county treasurer for collt!Ction of taxes,
ODder I 2859 Rev. Stat. 1892, must be for delinquent taxes of cur-
rent Tear; Cleveland Trust Co. v, Sander, 62 Ohio St 271, 56 N*
^ 1037. holding right granted to State to tax shares of national
bank cannot be exercised unless equal tax is imposed upon money
hi hancia of individual citfzens of State,

160 U. S. 668^686, 40 L. 576, UNITED STATES v. GETTYSBURG
ELEa BY.

SjL 2 (XII, 817). Legislative declaration of public use.

Approved In Downes v. Bldwell, 182 U. S. 289, 45 L. 1107, 21
Sop- Ct T8T, holding Porto Rico by treaty of cesalon became ter-
ritorj appurtenant to, but not a part of the United States, within
revenae clauses of Constitution; Ulmer v. Railroad Co., 98 Me, 592.
57 Atl. 1005, holding fact that railroad company builds branch
track for purpose of accommodating private business Is not test
whether right of way Is for private or public use. See 88 Am. St
R€p, 035, 936* note.

Syl 4 (XII, 817). Statutes presumed constitutional.

Approved In Buttfield v. Stranahan, 192 D. S. 492, 24 Sup. Ct
3^, toldlflg U. S. Comp. Stat, 1901, pp. 3, 194, relating to importa-
tion of lea, is not unconstitutional.

lOi) U. 8. 686, 687, 40 L. 583, SIOUX CITY, ETC.. R. a CO. v.

^m UNITED STATES.

^Biji. 1 (XII, 818). Construction of grant

HftApproved in Sionx City, etc., Ry. Co. v. O'Brien Co., IIS Iowa,

^Phl* 92 N. W. 858, holding in action to recover money paid to re-
ileem land from tax sale on belief that plaintiff owned the land
he cannot avail himself of Iowa Code, S 3449, providing for Um%
vltbin which actions for fraud shall he brought

jm V. B. 688-^2. Not cited.
ToL III — 42

OLXI UNITED STATES.

161 U. S. 1-10, 40 L. 505, CHEMICAL NAT. BANK V. HARTPO

DEPOSIT CO.

Syl. 1 (XII, 819). Insolvency does not end corporate existent

Approved In Anglo-American Land M. & A. Co. v. Chespire Pi

Inst, 124 Fed. 466, holding proceedings under New Hampsl

statute for winding up banking corporation do not dissolve sf

to preclude suit against it in Federal court; Jewett v. Unl

States, 100 Fed. 838, holding Rev. Stat., § 5209, making it a cr

for officer or agent of national bank to misapply its funds app

to bank in liquidation.

161 U. S. 10-29, 40 L. 599, BELKNAP v. SCHILD.

Syl. 2 (XII, 819). No injunction against government wltl
consent.

Approved in Dlckerson v. Sheldon, 98 Fed. 622, holding seii
and sale of infringing article for violation of customs laws g\
purchaser no right to vend same without liability for infringem

Syl. 4 (XII, 820). Government cannot be sued for infringem

Approved in Overholser v. National Home for Disabled Soldi
68 Ohio St. 250, 67 N. B. 490, 96 Am. St Rep. . holding Natlc

Home for Disabled Volunteer Soldiers, a Federal corporation, <
not be sued for a tort; dissenting opinion in Workman v. New Y*
179 U. S. 588, 45 L. 331, 21 Sup. Ct. 220, majority holding
liable, under maritime law, for negligence of its servants in chi
of fireboat in colliding with another vessel.

Syl, 0 (XII, 820). Patentee has no title to Infringing article.

Approved in Dickerson v. Sheldon, 98 Fed. 623, holding sei3
and sale of Infringing article for violation of customs laws g
purchaser no immunity from liability for infringement.

Syl. 7 (XII. 820). No injunction against officer as such.

Approved in Standard Fireproofing O). v. Toole, 122 Fed.
holding members of State capitol commission letting contract
i'onstruction of capitol cannot be held for infringement by
of patent by contractor; International Postal Supply Co. v. Bi
114 Fed. 511, 513. 515, 51G, sustaining plea of postmaster in
frinp^ement suit that articles in question were installed by post-c
department and operated by its order.

Distinguished in Salem Mills Co. v. Lord, 42 Or. 89. 93, 94

[OoS]

G5D

Notes on U. S. Reports.

101 U. S. 29-57

Pac. 1U37, 1038* holding public nfficprs liable for diversion of
more water for use tn State institution a than State was entitled to.
■ SxL 8 IXII* 820). Defendant liable for own protits only,
H -Approved In Kisslnger-Ison Co. t, BradfoM Belting Co., 123
■^'^^. H3. holding defeudauta buying and reselling infringing articles
^^^ liable only for prodbj they made, not those of their vendor.
CXXI. 819), Miscellaneous.

C^ted in Percy Summer Club v. Astle, 110 Fed. 490, refusing to
*^^ a^kle eat parte order permitting attorney-general, representing
^^^ State-, to Intervene in suit to restrain trespassers.

l«X tJ, S. 29-51. 40 L. 600. ROSEN v. UNITED STATES.

^yl. 3 (XII» 820). " Unlawfully, willfully, and knowingly " Import
kxio\«^ ledge.

-A^pproTed In State v. De Piioli, 24 Wash. 73, G3 Pac. 1102, iub-
ta^lxiing Indictment for selling liquor to minor without averring
^*^*^wledge of minority.

Olfitlnguished In United States v. Clifford, 104 Fed. 298, holding
Lts.Uy defective indictment, under Rev. Stat., § 3803, charging de*

fc

f^iiCjint witb depositing paper coiiliiiuing nonmailable matter witli-
oi^t: averring knowledge of such matter.

^jl 5 (XIIp 821). Obscene matter needs no detailed description.
-Approved In Tnbbs v. United States, 105 Fed. m, 01, sustaining
^^^■^ilctusent omitting to set out obscene letter alleging contentfi aa
^**^ obsceoe to be spread upon record.

%L 8 (XIl, 821). Decoy letter is no defense.
**««72 Am. St. Rep. 701, note.

%U> (XII, 821). Wbettier matter Is obscene for Jury,
Approved in State v. McKee, 73 Conn, 3:i 40 AU. 415, holding
i*l^t*8tioa whether defendant sold paper proliibited by statute was
\^^^ of fact for jury.

^^^ P. 8. 52^7, 40 L. 613, IN RE EMBLEN,
^)1. 2 <XII, 821). Equity relieves against fraudulent patent
A(n>rr>ved in Embleu v. Lincoln Land Co., 184 U. S. 064, 40 U
*^ 22 fe>up. Ct. 524, holding cuotestnnt of preemption entry wbo
i»* HelUaer made an entry nor perfected right to do so cannot
<^tnpUia of act ISJM, conlirming original entryman's claim.

DUtlngulsbed in BockOnger v. Foster, 100 U, S. 124, 23 Sup. Ct.

i3&. 4" L 978, holding homestead claimant cannot maintain suit

ajraituit Oklahoma town site trustees to divest them of title held

tiuder act 1890.

Syi, 3 fXIL 821). i^ateat set aside by judicial proceedings.

Approved in Bradley v. Dells L. Co., 105 Wis. 25L 81 N. W. 3D0.

ItiildlDg plaintiff relying on paieat oldjiined from one certified by

161 U. S. 57-101 Notes on U. S. Reports.

surreyor-general as legal representative of patentee has prima tt

title.

161 U. S. 67-66, 40 L. 616, HARRISON v. FORTLAQB.

Syl. 1 (XII, 821). Courts cannot insert or disregard words.

Approved in Union Selling Co. v. Jones, 128 Fed. 675, hoW
" quality guaranteed," in contract for binder twine, is warrant}
reasonable fitness and parol evidence of prior negotiations is
admissible thereon.

161 U. S. 65-72. Not cited.

161 U. S. 72-«5, 40 L. 622, BALL v. HALSBLL.

Syl. 3 (XII, 822). Act 1891 limiting attorney's fees is vaUd.

Approved in Muller v. Kelly, 116 Fed. 546, sustaining contract
attorney for contingent fee when same was not champertous; Ly:
V. Pollard, 26 Tex. Civ. 104, 105, 62 S. W. 946, 947, holding r
under act March 3, 1891, providing that court should fix f*
agreement to allow attorney certain per cent of recovery.

Distinguished in Thayer v. Pressey, 175 Mass. 235, 56 N. B
holding assignment of claim against United States for infringen
of patent, after claim has been recognized by government, is n
between parties.

161 U. S. 85-90. Not cited.

161 U. S. 91-95, 40 L. 628, UNION PAC. RY. v. OALLAGHAl

Syl. 2 (XII, 823). Introducing further evidence waives objecl
to charge.

Approved in Fulkerson v. Chisna Min., etc.. Imp. 00., 122 £
784, holding exception of defendants to order overruling mot
for nonsuit waived by further introduction of evidence.

Syl. 3 (XII, 823). General exception to instructions insufflcieni

Approved in Columbus Const Co. v. Crane Co., 101 Fed. 58, b<
Ing rule 10 of Circuit Court of Appeals of seventh circuit reqai
party excepting to state proposition excepted to, and instruction i
bodying it.

Syl. 4 (XII, 823). General exception to refusal to charge.

Approved in Cass County v. Gibson, 107 Fed. 366, holding insi
ent general exception to court's refusal to give Instructions, somi
which were unsound.

161 U. S. 96-101, 40 L. 630, FISHBECK v. WESTERN UNI
TEL. CO.
Syl. 1 (XII, 823). Circuit Court enjoining county taxea
Approved in Douglas Co. v. Stone, 191 U. S. 557, 24 Sup. Ct J

reatlirming rule; Holt v. Indiana Mfg. Co., 176 U. S. 73, 44 L. 3

eei

Notes on U* S. Report!. 161 U. S. 101-115

20 Sop, CL 274, holding, uader act 1SS8, § 1, Circuit Court bas no

JmlsdicUan of suit to restrain collection of taxes under $2,000;

Purnell t. Page, 12S Fed. 498, holding, under act 188S, Circuit Court

l»ta flo inrlBdictian of suit to restrain collection of personal prop'

my tax of ^SO: Coulter v. Fargo, 127 Fed. 913» holding Federal

courts without Jurisdiction of suit to restrain enforcement of fran-

•"liise tax of |^,0OO where more than one-tliird was claimed by State;

Cfiuiter V. Weir. 127 Fed. 903. holding bill to restrain collection of

franchise tax not maintainable where State board had valued

franchise and auditor bad given final notice before suit; M'Kee v.

t^liautttuqua Assembly, 124 Fed. 809, sustaining Jurisdiction of bill

^^ leaseholder of nonstock corporation to restrain illegal action of

'Operation which may result in loss of property exceeding Jurla-

tUcaoaal amount; McDaniel v. Traylor, 123 Fed. 330, holding Circuit

*^t>urt has no Jurisdiction of suit by heirs to set aside a number of

^^**^^iDentB of different defendants against the estate, each for less

^^^^n |2,00O; Eachua v. Hartwell, 112 Fed. 564, dismissing bill to

'^^traln collection of street assessments amounting to less than

^OOO: Douglas Co. v. Stone, 110 Fed. 815, holding Circuit Court

^** no Jurisdiction of suit to restrain collection of taxes to amount

^^ $1,600 assessed on realty under Virginia laws; dissenting opinion

*^ Giles T, Harris, 180 U. S. 496, 23 Sup. Ct. 644. 47 K 916, majority

***^ldlng absence of averments showing jurisdictional amount In dls*

**^te not available on appeal to Supreme Court where omissions

^<^\ objected to.

Distinguished In Illinois Cent R. R. Co. v. Adams, ISO U. 8. 39. 45
*-*- 414, 21 Sup. Ct. 255. holding Circuit Court has Jurisdiction of
^^it for injunction against taxes above Jurisdictional amount brought
^^ railroad against revenue agent representing all parties; Louis-
"^^Jle, etc„ R. R. v. Smith, 128 Fed. 4, holding amount In contro-
^^Tiy in suit by railroad company against several landowners to
^^Jnln Interference with right of way Is value of the easement;
**^uthern Exp, Co. v. Mayor, etc., of Ensley. 116 Fed. T59, holding
"Ircuit Court has Jurisdiction of suit by interstate express cora-
^*^ny to restrain enforcement of invalid license ordinance where
^^Iti^ of tight to operate exceeds $2,000.

^^ r, S. 101-103. 40 L. 632. NEW ORLEANS FLOUR INSPECT-
ORS V. GLOVER,

^l 1 (XI t. 823). Appeal dismissed where adverse statute re-
Ktlttl

Approved in Dinsmore v. Southern Express Co.. 183 U. S. 120. 46
^ ^3, 22 Sup. Ct. 47. affirming dismissal of suit of express company
^*>mtraln collection of stamp tax on bill of lading under act 1808
^<here act 1001 exempteil es|jress companies therefrom,.

f^l t. 8. ifi4-115. Not cited.

161 U. S. 115-149 Notes on U. S. Reporta. 662

161 U. S. 115-133, 40 L. 638, CAREY v. HOUSTON, ETC., RY.

SyL 2 (XII, 824). Ancillary decision confined by main decree.

Approved in Gableman v. Peoria, etc., R. R. Co., 179 U. S. 342,
45 Lk 224, 21 Sup. Ct. 174, holding appointment of receiyer by
Federal court under its general equity power does not make all
actions against him actions arising under Federal laws; Rochester
Germ. Ins. Co. y. Schmidt 126 Fed. 1003, holding bill in Federal
court to restrain suits against sereral insurers inyolying a&me
defenses, and to adjust liabilities, is ancillary and not dependent
upon citizenship; Everett t. Independent School Dist., 102 Fed. 530,
holding where Federal court has jurisdiction of subject-matter and
parties it may take jurisdiction of all ancillary bills regardless of
citizenship.

(XII, 821). Miscellaneous.

Cited in Hendryx v. Perkins, 114 Fed. 808, holding bill to Impeach
prior decree for fraud is original and decree entered thereon is final
and appealable.

161 U. S. 134-149^ 40 L. 645, BANK OP COMMERClfi T. TEN-
NESSEE.

Syl. 5 (XII, 824). Tax on shares does not exempt surplus.

Approved in Union, etc.. Bank y. Memphis, 111 Fed. 574, hold-
ing provision in Tennessee bank charter for annual tax <m each
share of stock in lieu of all other taxes does not exempt bank from
ad valorem tax on capital.

Syl. 6 (XII, 825). Exemption cannot be implied.

Approved in Theological Seminary ▼. Illinois, 188 U. 8. 672, 23
Sup. Ct 3S7. 47 L. 618. affirming Illinois decision that charter ex-
emption of property of whatever kind belonging to a theological
seminary does not include property held as inrestment: Wells T.
Mayor and Alderman, etc., ISl U. S. MO. 45 L. 991, 21 Sup. Ct. 700,
holding no contract of exemption of lots made out from ordinance.
providing for ground rent but silent as to taxes, and deed providing
that lots should bear common assessments; dissenting opinion in
Citizens* Bank v. Parker. 192 U. S. 87. 91. 24 Sup. Ct."l87, 188,
majority holding charter exemption of capital of bank tnclndes
exemption from tax for carrying on banking business.

Syl. 7 iXII, S25>. Capital stock and shares separately taxable.

Approved in Union & Planters' Bank v. Memphis, 180 U. S. 74.
23 Sup. Ct. 60t>, 47 L. 715. holding judgment of State court sna-
taiuiug exemption of capital stook of bank which is res Judicata
in State only as to particular taxes has same force in Federal court;
Illinois Nat. Bank v. Kinsella. 201 IlL 4a. 44, 66 N. E. 541, 342.
holding assessment of shares of stock of bank in hands of holders
and also real estate of bank is not double taxation.

Notes on U. S- Reports. 161 U. S, 14&-1S6

(ZH, SH). Miscellaneous.

Cited In Winters v. Drake, 102 Fed. 548, holding plaintiff cannot
prevent removal of suit by omitting to state tliat defendant receiver
was appointed by Federal court

161 U. 8. 149-161, 40 U 650. SHELBY CO. T. UNION, ETC., BANK.

SyL 2 (XII, 825). Percentage tax no exemption of capital*

Approved In Union, etc., Banlt v. Memplila, 111 Fed. 566, &67,
571 boidiog Tennessee bank charter provisions for annual tax
wi aharea of stock in lieu of all other taxes does not exempt bank
'wm ad valorem tax on capital.

®yl^ 3 (XM, 825). Capital and shares are distinct properties.

Approved in Union Planters* Bank v. Memphis, 18t> U. S. 74,
23 Sup. Ct 606, 4T L, 714, holding State judgment sustaining ex-
empttOD of bank*8 capital stock, being by State law res Judicata
<»oly fta to particular taxes, has same force In Federal court

2«1 tJ. 8. m-173, 40 L. 656, MERCANTILE BANK v. TENNESSEE.

SyL 3 (XII, 826). Reorganized corporatioa is new corporation.

Approved in Senn v. Levy, 111 Ky. 325, 63 S. W. 778, holding cor-
IwratioD amending charter, under later law which Imposes double
liabliity on stockholders, is governed by such law,

1<S1 U. 8. 174-lSOp 40 U 600, PH(ENIX FIRE, ETU, INS. CO. v.
TENNESSEE.
Syl 1 fXll, 826), Exemption not included In ** rights and privl-

Approved In Gulf & Ship Island R. R. Co. v. Hewes, 183 U. S.
"I. 46 L. S), 22 Sup. Ct 28, holding subrogation by statute of
^^ corporation to rights and privileges of old corporation does
flot carry lax exemption.

8yL 2 (XII, 826). Exemption is ** immunity " rather than ** privi-

^ipprored In Bancroft v. Wicomico County Comrs., 121 Fed. 879,
BSD, Mding, under Gen. Laws Md., art 23, providing that new
corporations shall have rights and ** immunities " of old corpora-
tloa. immunity from taxation fa included. See 89 Am. St Rep. 026,
note
SjL 3 (XII, 826). Exemption cannot be presumed.
Approved ha Seim v. Levy, 111 Ky. 326, 63 S. W, 778, holding
D amending charter pursuant to law Imposing doubie lia-
D stockholders is subject to such provision as a new
gorpofiition created thereunder: dissenting opinion in Citizens' Bank
r. farker, lJr2 U. 8. 87, 24 .Sup. Ct 187, majority holding charter
f^xrtnption of capital of bank includes exemption from license tax
Cor cflJTjrUig on banking business.

I

161 U. S. 18&-234 Notes on U. S. Reports. »

Syl. 4 (XII, 826). Effect of former decision not Federal questloE

Approved in Union & Planters' Bank y. Memphis, 189 U. 8. 71
23 Sup. Ct 606, 47 L. 715, holding Federal court foUows Stat
decisions as to effect of State decisions as res adjudicata; Schaefe
T. Werling, 188 U. S. 519, 23 Sup. Ct 450, 47 L. 572, holding qnei
tion whether municipality by refusing to hear objections to pot
lie improvement is estopped to collect assessments therefor i
State question.

Syl. 5 (XII, 826). Suit for taxes for one year as bar.

Approved in Kansas City, etc., Parle y. Kansas, 174 Bio. 438, 7
S. W. d82, holding Judgment exempting corporate property fo
certain year is res judicata as to exemption for succeeding yesz
where claimed on same grounds.

(XII, 826). MisceUaneous.

Cited in Wtflein v. New Orleans, 177 U. 8. 386, 44 Ij. 820, 2
Sup. Ct 685, holding defendant's answer, claiming protection ftoi
suit by virtue of prior State judgment which claim was denied* pn
sents Federal question.

161 U. S. 186-193. Not cited.

161 U. S. 193-198, 40 L. 667, PLANTERS* INS. CO. T. TENNE88B]
Syl. 1 (XII, 827). Int^vening constitutional provision prevenl
exemption.

Approved in Gulf & Ship Island B. B. Co. v. Hewes, 183 U. I
71. 46 L. S9, 22 Sup. Ct 27. holding charts of new corpormtio
succeeding to rights of old corporation which ^oyed tax ezemi
tion is subject to intervening Constitution taxing all corporations.

161 r. S, 19S-20S. Not cited.

161 I\ S. 20S-234. 40 L. 673, AINSA v. UNITED STATBSi.

Syl. 2 iXll. S27i. Mexican grant must precede cession.

Distinguished in United States v. Cannon, 184 U. 8. 577, 46
6^7, 22 Sup. Ct. 507, holding definite location and possession p^
to Oadsiion treaty was shown.

Syl. 6 iXII. $2St. Quantity governs wh«e description vague.

Apixroved in Ainsa v. United States. ISI U. 8. 645, eid, ^
46 I. r.^X T:!11. 22 Sup. Ct. 50&. 5U\ holding where Mexican gK-«
by viu.Hntity is laid off by Mexican government in Mexico
oK'^im Therefor exists against United States: Reloj Cattle Co.
l*n:Tt\\ Statt>s^ 1S4 U. S. 6ST. t^5S. 46 L. TSS. 22 Snp. CL 504, bofa
in^ intx^uivvn tx> ivnvey four siiSos of land where such amount wm
\A\\\\\\ 3^x>^\ Ut^^ saold is cv>n trolling.

iWU S^TV M:s<>>;:*iitx>us.

V ;?tM u\ I niusi S:*:cs v. Eider. 177 U. 8. lia 44 U 686, V
Sxv^v \'; sN42. b^>)ain^ gr&i:t. under coloniaitkMi regnlatkmt of

^m* Notes OE U. S. Reports. 161 U. 8. 235^275

W28, Bbould be evidenced by act of governor unequivocally con-
^^Tlng land Intended and by public record thereof.

^81 U, B, 235-240, 40 L. 680, DURHAM v. SEYMOUR-
SyL 4 (XII » 828). No enforceable property right before patent
Approved In D* M, Steward Mfg, Co. v. Steward, 109 Tenn. 30i!,
^ 8. W, 812, holding corporation president inventing gaa tips and
W^arlDg it made by corporation cannot recover royalties for tips
nwde before patent issued.

Syi 5 (XII, 828). Unpatented invention not susceptible of valua*
rton,

I>istlngruisbed In Hutchinson v. Otis, Wilcox, etc., Co,, 123 Fed.
i^p holding act 1891, creattag Circuit Courts of Appeal, does not
tntbortze appeal to Supreme Court from Circuit Court of Appeals
rerising decision of Bankruptcy Coiirtg.

fXH, 828). MisceJlaneous.

Cited in Duff v. Hlldretb, 183 Mass. 443, 67 N. B. 358, holding
Petition for removal averring that matter In controversy exceeds
f^^J l8 controlling.

l^i D. 8. 240-24T. Not cited,

^^ U. S. 247-256, 40 L. 688, LYNCH v. MURPHY.

Syl 1 (XII, 829). Decree based on valid coeetnictive serTlce.

^Pjjroved {n Jolinson v. Hunter, 12T Fed. 223, upholding Ark.
"^^ 1895, No. 71, p. 88, authorizing sale, after four weeks' pub-
~**»«d noace, of lands of nonresideats for nonpayment of taxes.
^^HAm. St, Rep. 552, note.

^®1 U, S. 256^275, 40 L, 091, HAMILTON T. BROWN.

%l. 1 (XII, 829). Judgment of escheat binds Interested parties,

-Approved In Young v. State, 30 Or. 424, 59 Pac. 814, holding,

^**^tr Oregon statute, providing that plaintiff where successful m

J^^^Tering escheated property yhall not recover costs, deduction of

^^te'i txjsts In defending suits was proper. See notes, 87 Am.

^ ftt'p. 305, 307, 308.
^latlognisbed in State v. 0*Day, 41 Or. 505, 69 Pac. 546, hold*
"^^ Circuit Court has no authority to order those whom County
^^*»rt has adjudged heirs to turn over assets to receiver In escheat
^^^>c««dlng8.

^Jl i (XII. 829). Escheat proceedings on due notice valid.

approved In Johnson v. Hunter, 127 Fed, 223, upholding Ark.

^•^ 1805, No. 71, p. 8^, authorizing sale, after four weeks' pub-

^**J*<1 notice, of lands of nonresidents for nonpayment of taxes;

^'yW ^, Court of Registration, 175 Mass. 75, 55 N. E. B13, 814. S15,

"I'Mding Stat. 1898» chap. 502, for cutting off adverse interests in

IGl U. S. 275-315 Notes on U. S. Reports.

land of unknown claimants by published notice. See notes, 87
Am. St. Rep. 359, 360, 361.

Distinguished in dissenting opinion in Tyler y. Court of Regis-
tration, 175 Mass. 96, 97, 98, 100, 55 N. B. 822, 823, majority up-
holding Stat 1898, chap. 562, providing for cutting off adverse In-
terests in land of unknown claimants by published notice.

161 U. S. 275-290, 40 L. 700, DAVIS v. ELMIRA SAV. BANK.

Syl. 1 (XII, 829). State laws cannot control national banks.

Approved in Easton v. Iowa, 188 U. S. 237, 23 Sup. Ct 298,
47 L. 459, holding invalid Iowa Code, §§ 1884, 1885, so far as pro-
hibiting insolvent national banks from receiving deposits and pre-
scribing punishment for officers violating same.

(XII, 829). Miscellaneous.

Cited in New York County Bank v. Massey, 192 U. S. 140, 24
Sup. Ct 201, holding deposit by insolvents subject to their check
is not transfer of property constituting preference.

161 U. S. 291-297. Not cited.

161 U. S. 297-^06, 40 L. 706, MARKS V. UNITED STATES.

(XII, 830). Miscellaneous.

Cited in Montoya v. United States, 180 U. S. 267, 46 L. 624, ^m
Sup. Ct. 360, holding acts of Indians of general hostility tows^^
settlers requiring military force to subrogate them copstltnte
of war.

161 U. S. 306-315, 40 L. 709, DURLAND v. UNITED STATES.

Syl. 1 (XII, 830). Indictment may omit unknown names.

Approved in Pooler v. United States, 127 Fed. 518, holding
dietment for counterfeiting note need only set out such note
its tenor; Milby v. United States, 120 Fed. 5, sustaining ind.
inent, under section 5480, Rev. Stat, charging use of mall to
fraud by inducing addressee of letter to place counterfeit mom
in circulation; Hume v. United States, 118 Fed. 605, sustain
indictment, under section 5480, Rev. Stat, charging scheme to
fraud and mailing of letters, though omitting to set out such
tcrs; Foerster v. United States, 116 Fed. 862, upholding indictr
that defendant sold liquors ** to divers Indians to grand ji
unknown, Indians of Ponea tribe of Indians;*' Larkin v. U
States, 107 Fed. 699, 700, holding insufficient indictment for
mails to defraud, alleging scheme to defraud individuals w
naming them or explaining omission; Jewett v. United Stat
Fed. 837, sustaining indictment, under Rev. Stat, § 5209, c)
that defendant did unlawfully and willfully misapply af
national bank with Intent to defraud by means unknown to

Notes on U. S. Reports. IGl U. S. 310-333

DietingQlshed in Milby y. United States, 109 Fed- 642, G43, bold-
lug insufficient Indictment, tinder Rev, Stat, | 54S0» charging scheme
to defTai]43 bj sending letter offering counterfeit money for sale
not ttafging Intent not to send money.

Sjl. 2 (XII, 830), Evidence to support conviction presumed.

Approved in Hume v. United States, 118 Fed. G98, holdiag where
«dl evidence is not preserved court will presume that persons named
^^ derlse scheme to defniiid.

SyL 4 (XU, 831), Promise without intent to perform Is scheme.

%rured in Herman v. United States^ 116 Fed, 353, holding
mn iQ extort money by threats of publishing charges against
^^^h^T Is "scheme to defraud/* within Rev. Stat., fi 54S0.

^istlDguished in Kellogg v. United States, 126 Fed. 325, holding
^ indictment, under Rev. Stat, § 5480, no allegation of intent
** Concert to own benefit money obtained through fraudulent sehem©
^ Squired,

^II, 830). Miscellaneous.

^*ted la United States v. Harris, 122 Fed. 553, sustaining indict-
^t under Rer. Stat, 5 3803, for mailing obscene letter, setting

^t

r^t

such letter showing address, without alleging address on en-

it*

^IH? or wrapper; Foerster v. United States, 116 Fed, 862, hold*

^ l^arol evidence always admlssihle to establish defense of prior
I'^'^^Wtiul or conviction; United States v. Post, 113 Fed. 854, 855,
l^^*Jlug insufficient indictment under section 5480, Rev, Stat, alleg-
i ^^ seheme to defraud by Inducing persons to send money for treat-
^^at without alleging Intent not to perform: Tubbs v. United States,

<-» Fotl. ill, sustaining Indictment charging mailing obscene letteTp
* ^ng same to be too obscene to be spread upon records,

*^^ U. S. 31G-333, 40 L. 712, WASHINGTON GAS L. Co, v. DIS-
TRICT OF COLUMBIA.
^yL 2 (Xn, 831), Municipality has action over gas-box damages.
-Api^roved In lioston Woven Hose, etc., Co, v. Kendall, 178 Mass,
^^*^. 99 N, E, CKjS, holding plalntill paying for damage caused by
**<^pe of nnptha vapor from engine may recover over from defend-
^^t on wbo«e judgment he relied.

^jl. 5 (XII, 831). Judgment binding one liable over.
•Approved in American Surety Co, v, Ballmaa, 104 Fed, 635,
^IJkg discharge of Judgment by surety company without consent
*f or notice to Indemnitors who had defended discharges latter,
Difttlx&gttlsbed In Donald v, <juy, 127 Fed. 230, hohiing settlement
ify V6Mei of claim against her for damage of collision does not
iwwlode owners from recovering from negligent pilot

161 U. S. 412-446 Notes on U. S. Reports. 670

record does not contain all the evidence question of error in direct-
ing for plaintiff instead of defendant cannot be considered.

Syl. 6 (Xn, 834). Retention of statement no ratillcatioii.

Approved In Barrett v. Twin City Power Co., 118 Fed. 868. hold-
ing failure to return order for delivery of bonds did not constitiit^
estoppel where he had previously insisted upon bonds or cash.

Syl. 7 (XII. 834). Remittitur of part of judgment

Approved in Cunningham v. Underwood, 116 Fed. 806, holding
joint judgment for libel will not be reversed for erroneous charge
leading to judgment against one for punitive damages where last
judgment was remitted before appeal.

161 U. S. 412-434, 40 L. 751. UNITED STATES v. STANFORD.

Syl. 1 (XII. 834). Stocliholders not liable on subsidy bonds.

See note, 76 Am. St. Rep. 129.

(XII, 834). Miscellaneous.

Cited in Southern P. R. R. Co. v. United States. 183 U. S. 527, 4^
L. 312, 22 Sup. Ct. 157, holding each of two railroads claiming^
under contemporaneous overlapping grants, tal^es an undivided mo^*- .
ety of lands within the conflict.

161 U. S. 434-440, 40 L. 760, EVANSVILLE v. DENNETT.

Syl. 1 (XII, 834). Recitals not putting purchaser on inquiry.

Approved in Fairfield v. Rural Independent School Dist^ 1

Fed. 840, 841, 842, holding innocent purchaser of school dlstr'
bonds reciting compliance with authorizing statute is not char^^^
able with notice of contents of resolution mentioned therein.

Syl. 2 (XII, 834). Municipality estopped to deny regularity.

Approved in Stanley Co. v. Coler, 190 U. S. 448, 23 Sup. Ct I ^:
47 L. 11:53, holdinjj: bona fide purchasers may rely upon recifl^z^xi
in county l)onds that same were issued pursuant to State law^
payment for stoeli subscription, affirming 113 Fed. 706. 711; W ■ ■ f
V. Santa Cruz, 184 U. S. 317, 4G L. 504. 22 Sup. Ct. 332. hol^ iJQ
recitals in refunding bonds that they are such and are issuec3. ^
conformity with State statutes estop city to deny validity of or
iginal Indebtedness; Wetzell v. City of Paducah, 117 Fed. €^S4,
holding recitals by officers and council of city give powers rx"OJii
which authority to determine conditions precedent to bond i»«*^^
may be inferred to bind city; Pien-e v. Dunscomb, 106 Fed. ^^^
holding certificate on face of municipal bonds importing issuao^^^
for valid indebtedness as prescribed estop city as against hoc^*^
tide purchaser; Kent v. Dana, 100 Fed. 00, 03, holding municip^^
corporation having power to issue refunding bonds cannot deir^'
truth of recitals stating that such bonds complied with the hvr ^
Pickens Tp. v. Post, Ht) Fed. 001, holding recitals in munlclpa/
bonds conclusive in favor of bona fide purchaser from one havins'

071

Notes on U. S. Reports. 161 U. S. 434-446

flatlce of Infirmities; Miller v. Perris Irr. Dist., 99 B'ed. 145, liold-
^S Irrigation district antborized to issue bonds, is estopped by
f^ltAl by directors of compliance with statute to assert Irregu-
^titj in issue and disposal thereof; Wesson v. Town of Mt Ver-
non, 98 Fed. SIO. hoiding township estopped by recitals to deny
J^ality of indebtfMlnesa for which refunding bonds were issued;
Stiite T. Wichita Co., C2 Kan. 502, 64 Pac. 47, holding county es-
top|>^ by recitals to refunding bonds to deny that the debt re-
fojided was bonded Indebtedness represented by bonds outstanding
tWo years,

l^Jstinguished In Peck v. Hempstead, 27 Tex. Civ, 86, 87, 65
^* ^V. 656, 657, holding bonds issued by mayor and secretary set-
^^S forth ordinance which had not been passed are void aad unen-
forceable, although city use<i proceeds,

^3^1. 3 CXI I, 835). Fair purcbasers need not verify recitals.

-Approved In Defiance v. Schmidt, 123 Fed. 6, 7, 8, holding bona

***ie purcbaser may rely on recitals that bonds were issued pursuant

^ Ohio laws where general laws authorized such issue, althougti

^^<;ial act was invalid, adirming Schmidt v. Defiance, 117 Fed,

***0; Beatrice v, Edminson, 117 Fed. 434, holding recitals la mn-

^h>ai bonds estop city from netting up that the proposition sub-

*Ued to voters was defective; Perrls Irr. Dist. v. Thompson, 116

. ^^- 838, holding purchaser of irrigation bonds with recitals of

^^llty, from president of irrigation district may, in absence of

Ideiice impeaching good faith, rely on such recitals; Keith County

^^ Ciilaens* Sav., etc., Assn.. 116 Fed. 19, holding reel til in bonds

^^**»tatlng proposition in pursuance of which such Lionds were

^^^ h iMsned cureis such Irregularity and eslops county; Kearney t.

^ ^"^^odruff, 115 Fed. D2, 03, holding bona fide purcliaster of bonds

^,^^^uH In aid of construction of irrigation ditch may rely upon

^^^iiikln as to all facts not shown on face; Clapp v. Marice City, 111

^?tl. !07, holding village estoppwl. by recitals la bonds stating full

-^JupUaiice with statute and ordinance, to deny validity of Indebt-

^^ti«'«: Independent School Dist v. Rew, 111 Fed. 7, holding school

* *^triel einpawered to issue negotiable bonds Is estopped by recitals

^*'^Tv\n: Board of Comrs. Lake Co. v. Keene, etc., Bank, im Fed.

^•"1, 515, holding where county bonds niiglit.have been validly

•*^*iiwi. Id action thereon they are presumed valid; Clapp v. Otoe

**-^>onty, 104 Fed. 481, 4S5, holding county is estopped by recitals

^* prpclnct bonds that same were iBsuc?d for purposes of and pur-

*>Atiij[ to law to deny regularity of election; Hughes County v.

^Ivinniton, 104 Fed. 311, 315, holding authorized recital in muulci-

^*^y 1)oads of issuance "in pursuance of" a legislative act estops

^^uaieipullty to claim nonexistence of fundable debt; Lyon County

^- Wne Five- Cent Sav. Banl\, Ib^i Fed. 34 1». holding county re-

''^Wliijf bonds issued under legislative enactments presumed not to

tlQcreased indebtedness; Gter v. Hoard of Comrs., i)7 Fed. 442,

kh

161 U. S. 446-45S Notes on U. S. Repons. 6TS

holding county estopped by recitals to deny existence of Judgmeoti
in satisfaction of wliich bonds were issued; Grattan Tp. y. Chilton
97 Fed. 148, holding recitals by officers authorized to determin<
the facts that bonds were issued in conformity with statute pre
elude inquiry into performance ot conditions precedent; Noel Youni
Bond & Stock Co. y. M:itcheU County, 21 Tex. Ciy. 646, 54 S. W
289, holding leyy of tax by commissioner's court to pay interev
on bonds issued by county judge pursuant to order authorizini
noninterest bearing bonds is ratification; dissenting opinion ti
Santa Cruz y. Waite, 98 Fed. 398, majCMity holding city not es
topped to deny yalidity of bonds by recitals of officers where Stat
law required notice of elections to set forth indebtedness coyered

Distinguished in Clarke y. Town of Northamptcm, 106 Fed. 819
holding municipality may plead illegality of bonds where petition t
county judge omitted words of statute preyiously determined to h
jurisdictional

SyL 5 (XII, 835). Purchaser may assume compliance with law.

Approyed in Board of Comrs. of Wilkes County y. Coler, II
Fed. 728, holding recital that municipal bonds were issued imde
an act which is inyalid does not preclude inquiry for oth^r yali(
legislative authority.

IGl U. S, 446-451, 40 L. 765. SWEARINGEN v. UNITED 8TATE£
SyL 2 (XII, 835). - Obscene,** " lewd " and " lasciyions,'' deflnet
Approved in United States y. Wroblenski, 118 Fed. 4D6, boMlc
private letter charging writer's mother with adultery is not witlia
prohibition of Rev. Stat. { 3S93; United States y. Moore. 104 F«i
78. holding letter questioning the chastity of the Virgin Mary
not within Rev. Stat., $ 3893, penalizing mailing of ** obscene, le —
or lascivious " matter.

Distinguished in United States v. CUfford* 104 Fed. 296, holdk.^
insuttlclent on demurrer indictment under Rey. Stat, i 3888, wba
does not allege that defendant knew papers mailed contained cm
mailable matter.
iXll. S;^>. Miscellaneous.

Cited in Middleby v. Effier. 118 Fed. 262, holding words spoil
in prt^ence of others ohar^in^s plaintiff with authorship of men
rllous anonymous letters which was claimed to be State's pri»
offense charge uo crime.

llU r. S. 4.M-4.V\ 40 I. T^K UNION PAC RY. V. 0*BRIEN.

Syl. 3 iXll. 5vK^>. Railn>ad must provide safe materials.

AiH»r\>ved in ChvK'taw. Oklahoma, etc, R- R- Co. y. Hollow*^
191 r. S, isvS, 24 Sup. Ct. 1«>4. holding court need not charge tli^
i\uupauY uuist use only rvds<>aaMe care to furnish safe appliance
\vher\* ovidonoe shows such care has not been taken; Choctt^
Oklahoma, etc.. i;, K. Co. v. Teunescjee, 191 U. S. 331, 332, 24 Sup^

^^ Notes cm n. S. Reports. 161 tJ. S, 459-474

Ct 101, holding parts of charge which do not correctly limit em-
ployees liability for failure to furnish safe appliances do not war-
fftflt reversal where charge as a whole Is correct; Cboctaw, Okla-
homa, etc, R. R. Co, V. McDade, 191 U. S. 67, 24 Sup. Ct 25, hold-
In? milntenance of water spoyt projecting over tracks so low as
I to strike brakemen on paaslng cars is Degiigence In law. affirming
' 112 Fed. 801. 893; Northern Pac, Ry. v. Perry. 116 Fed. 612, hoM-
l^R eTlcieflce that water spout when forced up after using would
^ttle down again warranted court In refusing to take case from
Jttry; The Moranmore. 113 Fed. 3G9, dismissing litoel by longshore-
°^ for injuries from liook w«ere sncb book was reasonably safe
^w work In band; Sankey v, Chicago, etc. Ry. Co., 118 Iowa. 44.
81 K W. 822, holding question of defendant's negligence in allow-

KK Ice to accumulate In switchyards was properly submitted
iiury; Faulkner v. Mammoth Min. Co.. 2Z Utah. 442, 66 Pac. 801,
Wug employee did not assume risk of cave-In where foreman
**»ured Mm the place was safe; Morisette v. Canadian Pac. H. R,
^ Vt 239. 52 AU. 520, holding It cannot be said, as matter of law.
5*^^t maintenance of switch bo close to track as to strike brakeman
^ Hot negligence.

5yl 6 (XII, 836)* Refusing Instruction covered by charge.
. approved tn St Louis Cordage Co. v. Miller. 126 Fed. 503. hold-
r^^ tsBumptlon of risk and contributory negligence ore distinct

^yl 7 (XII. 836), Employee may rely on care.
I Jipproved In Hodges v, Kimball, 104 Fed. 752. holding company
^^Tlng provided adequate rules for Inspection of cars has done
^^ duty unless inspection shown to have been negligently done.
. %l. 8 (XII. 836). Servant does not assume risk of master's

Jlpproved In S wen sen v. Bender, 114 Fed. 7. holding employee does
f**t Bisume risk of master's negligence in inadequately timbering
ttmael In which former was Injured; Adomlff v. Columbia, etc.,
K«**» WK) Mo. App. 207. 73 S. W, 323, holding question of assumption
^ risk where Inexperienced bank employee wsls Injured by new
«acMne la for the jury. See note, 75 Am. St. Rep. 601.

tea U, 8, 459-474. 40 L. 771, THE DELAWARE.
j Sjl 2 (XII. 836). Code 1885 Inapplicable to pilotage waters.
Approved In The Albert Dumois, 17? U. S. 245. 44 L. 756. 26 Sup.
*^^ S85, holding navigation of Mississippi below New Orleans gov-
^^ by regulations of act 1864, reproduced In Rev. Stat,. § 4233.
^17 (XII. 836). Preferred steamer justified in holding course.
%ro?ed in The Chicago, 125 Fed. 717. 718, holding privileged
'^■•l Dot at fault for failure to reverse ontll Immediately before
VoL 111 — 43

i

161 U. S. 475-502 Notes on U. S. Reports. i

collision; The Dorchester, 121 Fed. 893, holding privileged vea
not at fault for reversing on signal from other showing lattc
Intent to maintain course; The Straits of Dover, 120 Fed. 903, 9
holding privileged vessel at fault for reversing without signal!
her intention to do so; The Acilia, 120 Fed. 461, holding vessel i
at fault for failing to reverse sooner, being entitled to rely ui
other vessel's obedience to rules, affirming 108 Fed. 982; The Zam
113 Fed. 544, holding persistence of burdened vessel in her ecu
justified privileged vessel in changing her course.

Distinguished in The Ocean, 115 Fed. 231, holding failure to b
and reverse at once, under articles 27 and 29, when signal v
heard, constituted negligence; The Columbian, 100 Fed. 993, he
ing variation of half a point by sailing vessel is not a change
course.

Syl. 8 (XII, 837). Limited liability act inapplicable to coUlsIo
Approved in The Southwarlc, 191 U. S. 6, 24 Sup. Ct 2, hold!
furnishing of safe refrigerator for cargo of dressed beef is part
due diligence in furnishing seaworthy vessel under Harter a
The George W. Roby, 111 Fed. 617, 619, 620, holding section
Harter act, does not affect priority of claim of innocent car]
owners over vessel-owner against fund for payment of colllsl
damages, affirming In re Lalseland Transp. Co., 103 Fed. 331, 8;
The Manitoba, 104 Fed. 151, 152, holding failure to properly gufl
ports during loading is failure in proper stowage within first sect!
of Harter act; Farr, etc., Mfg. Co. v. International Nav. Co.,
Fed. 637, holding Harter act did not modify owner's obligation.
furnish a seaworthy ship.

161 U. S. 475-482, 40 L. 777, UNITED STATES v. ZUCKER.

(XII, 837). Miscellaneous.

Cited in The Good Tomplar, 97 Fed. 653, holding in snit na
Rev. Stat., § 4377, for forfeiture of vessel for carrying smugjj
goods, government need only offer proof beyond reasonable doi

161 U. S. 483-499, 40 L. 780, SPALDING v. VILAS.
Syl. 4 (XII, 837). Motive Immaterial where acts are authorfa
Approved in Horstman v. Adamson, 101 Mo. App. 125, 1261

S. W. 399, 400, holding county clerli appointing deputy under stati

silent as to removal power may remove latter at pleasure regardle

of contract for full term.

161 U. S. 500-502, 40 L. 786, MATTHEWS v. UNITED STATES,
Syl. 1 (XII, 837). Difference in date in indictment and not

immaterial.

Approved in State v. Perry, 117 Iowa, 466, 91 N. W. 766. bo

ing in Indictment for perjury allegations of date la not matei

Ingredient of crime.

925

Notes on tJ. S. Reports, ICl U, S. 502-d44

M V, B. 502-512, 40 L. T87. ORXELAS t. RUIZ,

SyL i (XII, 838). Habeas corpus unavalllDg where magistrate
competent

Approved in Wright v. HInkel. 190 U. S. 57, 23 Sup. Ct 784, 47 L.

^ balding on writ of bahfos corpus court may Inqylre to to juris-

•^^ctioa of committiDg tnagiatrate: Terllnden v. Ames, 184 U. S.

^*^, 46 L. 541, 22 Sup. Ct 487, hoMIng question of existence of lo-

"^ctable offense is for commissioner and cannot be considered on

^*b€as corpuB; In re Reiner, 122 Fed. 110, holding writ of habeas

^rpus in extradition cases cannot perform office of writ of error;

^WLed States v. Green. 108 Fed. 819, holding com mlsa loner's find-

^^K of probable cause for removal of accused to another district

*^^xiiiot be questioned on application for order of removal; In re

Cotant De Toulouse Lautrec, 102 Fed. 879. holding finding of com-

'***8sioner in extradltioo proceedingB. where he has jurisdiction of

*<^Cll5€d, Is open on habeas corpus only on question of existence of

^^Sal evidence; dissenting opinion in People v. Hjatt, 172 N, Y.

^*JT, 64 N. E. a^o, 92 Am. St Rep. 72C, majority holding one accused

*>f <^iine in another State will not be surrendered where he waa

xiot in demanding State when crime committed* See 92 Am. St.

^^ep. 726, note.

Syl. 5 (XII, 838), Extraditable oflTense question of law and fact
Approved in People v. Hyatt, 172 N. Y. 193, 64 N. E. 830. 92 Am.
^t- Rep. 717, holding accused will not be surrendered where he waa
*^<)t in demanding State when crime was committed.

SyL a (Xllt 838). Commitment final unless palpably erroneous.
Approved In Terlinden v. Ames, 184 U. S. 280, 46 L, 541. 22 Sup,
^t 488, holding evidence on question of an Indictable otTense la
**^ admissible on habeas corpus where commissioner has not jet
^^td thereon,

^€1 U. 8. 513-518, 40 L. 791, DUSHANE v. BEDELL.

SyL 2 (XII, S38), Assignee need not accept unproU table as sets.

Approved in Fleming v. Conrtenay, 98 Me. 411, 57 Ati. 595. hold-
^E forbearance of assignee to claim asset for twenty-two years
*'i*rhe was assignee constitutes election not to take same; Lasater
^' National Bank, 90 Tex. 348, 72 S. W, 1058, holding where bank-
^Pt'a claim arising from payment of uewrious Interest is not ad-
"^'iiittered by trustee bankrupt may sue upon It
i«l U, 8. 519-^44, 40 L, 793, GEER v. CONNECTICUT,

8jl I (XII, 838). State may control common property in game.

Approved In Ohio Oil Co. v. Indiana (No. 1). 177 U. 8. 200. 44
I* TK). 20 Sup, Ct 584, upholding Ind. Acts 1893. p, 300, prohibiting
^^tn 10 allow escape of gas or oil from wells for more than two
^J»; la re Eberle, 98 Fed, 296, upholding statute requiring payment

161 U. S. 519-«44 Notes on U. S. Reports. 676

of license fee upon nonresidents for privilege of hunting within
State; Ex parte Kenneke, 136 Cal. 530, 89 Am. St. Rep. 179, 69
Pac. 262, upholding section 626, Cal. Penal Code, prohibiting every
person from buying or selling quail; Manufacturing, etc., Co. v.
Indiana, etc., Co., 155 Ind. 471, 57 N. E. 916, upholding Acts 1891.
p. 89, prohibiting use of artificial means to increase natural flow
of gas from well; State v. Snowman, 94 Me. Ill, 46 Atl. 818, up-
holding Stat. 1897, chap. 262, requiring registration and certiflca-
tion of guides by commissioner of inland fisheries and game; State
V. Dow, 70 N. H. 287, 288, 289, 47 Atl. 734, upholding Laws 1899.
chap. 22, prohibiting any person from fishing for lake or speckled
trout with intent to sell or trade fish so caught; Payne v. Sheets,
75 Vt. 342, 55 Atl. 659, holding person having right to hunt or fish
on land of another may maintain action against a trespasser under
U. S. Stat.. 4626. See 89 Am. St Rep. 180, note.

Distinguished in In re Davenport, 102 Fed. 544, holding uncon-
stitutional State statute prohibiting trafiSc in game, as applied to
game lawfully killed in another State; In re Marshall, 102 Fed. 327,
holding unconstitutional county ordinance making it a misdemeanor
to use any sort of magazine gun to kill wild birds; People v. Buffalo
Fish Co., 164 N. Y. 105. Ill, 79 Am. St Rep. 629, 58 N. B. 38, 41,
holding void, so far as applying to fish imported from foreign
country. Laws 1892, chap. 488, prohibiting catching, killing or pos-
sessing fish out of season.

Syl. 2 (XII, 839). Statute prohibiting kiUiug for transportation
valid.

Approved in In re Deininger, 108 Fed. 623, upholding Oregon law
making it a penal offense for a person to have in possession trout
for sale; Kansas City, etc., Ry. v. Board of R. R. Comrs., 106 Fed.
350, holding Arkansas railroad commission has no power to fix
freight rates between points within State where line lies largely
within Indian Territory; Smith v. State, 155 Ind. 614, 58 N. E. 1W5.
upholding Burns' Rev. Stat 1804, § 2209, imposing fine upon any
one possessing quails out of season; Westheimer v. Welsman, 8
Kan. App. 78, 54 Pac. 333, upholding Gen. Stat 1889, par. 2550,
prohibiting persons from taking or receiving orders for intoxicating
liquors except from persons authorized to sell; People v. Van Pelt,
130 Mich. 625, 90 N. W. 425, holding prosecution under section 2,
act No. 196, Pub. Acts 1893, for protection of game, deprives de-
fendant of no constitutional rights; State v. Gallop, 120 N. C.
983, 984, 35 S. E. 181, 182, upholding Laws 1897, chap. 291, making
it a misdemeanor for any person to interfere with any person
gunning or fishing on Currituck sound. See notes, 79 Am. St Rep.
633; 78 Am. St. Rep. 251.

Distinguished in Manufacturing, etc., Co. v. Indiana, etc., Co.,
155 Ind. 547, 58 N. E. 707, holding unconstitutional act March 9^

err

Notes on U. S. Ufports. ICl U. S. 545-572

188&, making it unlawful to conduct natural gas to any point out-
«We State.

imU* 8. 545-572, 40 L. S02, ST. LOUIS, ETC., RY. v, JAMBa
Sjl 1 (XII » 830). Corporations citizens of State creating them.
Approved In Walters v. Chicago. B. ^ Q. Ry. Co,. 18(5 U. S.
4T5, 46 L. I2t>a, 22 Sup. Ct. 941, reafiirnimg rule; Debnani v. South-
ern, etc., Tel Co., 12G N. C. 845, 36 S. E. 274, holding foreign cor-
poration l)econQing domestic by complying with State law cannot
lemoTe nonfederal suit by citizen of latter State,

Dtetlngulshed In dissenting opinion In Calvert v. Railway Co.,
64 8. a 150, 153, 155, 157, Itil, 41 S. E. [MIH, 0(58, majority holdiug
foreign corporation becoming domestic by complying with South
Carolina Jaws is nonresident for Federal Jurisdiction.
Syl. 4 (XII, 839). Presumption of citizenship follows corporation.
Approved in Alabama, etc., Mfg. Co. v. Rlverdale Cotton Mills,
^ Fed. 504, holding State of Alabama cannot so combine cor-
Pcration of Alabama with one of same name in Georgia as to luake
It I citizen of Geiirgia for Federal jurisdiction- Sldway v. Missouri
t^d. etc., Co., 101 Fed, 488, holdiui,' equity has no jurisdiction to
^PlHJijit receiver for foreign corporatioo at suit of resident stock-
bolder,

S7I 5 (XII, 839). Corporation dlfng articles gains no citizenship.

Approved in Southern Ry. Co. v. Allison, 190 IL S, 332, 339. 341,

^*2, 23 Sup, Ct. 715, 717, 718, 47 L. 1081, 1084, holding foreign

ftllroaU does not become citizen of North Carolina for jurisdictional

I'Urpot^g hy complying with law for becoming domestic road; Cal-

'^ert r. Southern Ry. Co.. 187 U. S. (J30, 23 Sup. Ct, 844, 47 L. 343,

•fflrmliig t>4 S, C. 143. 41 S. E. 9114, holding foreign corporation

t'etoriiiiig domestic by complying with South Carolina laws Is

nonrwideot of the State for F'ederal jurisdiction; Goodwin v. New

York.N. H, & H. R. R Co., 124 Fed. 359, 367. holding Massachusetts

<^tlaeo cannot sue in Circuit Court for Massaciiusetts a corporation

incorporated in Massachusetts and Connecticut; Seattle Gas, etc.,

Klt^ctric Co. V. Citizens' IJght etc.. Power Co.. 12;i Fed. 5U4, hold-

iJijXew Jersey corporation, being without charter power to engage

'fl pa business, cannot en^figo in such business In another State:

WtUws V. Chicago, etc., R. R. Co., 1*M Fed. 378, 371K 380. holding

Iowa corporation reiacorporatliig in Nebraska to obtain privilege

la latter state is not a citizen of Nebraska for Federal Jurisdiction;

WUaod V, Railway Co.. <>4 S. C, lUtT, 108, WJ, m S. K, 7U2, 71)3,

41 8, E. 971. holding Virginia coiiiorntion becouiiug domestic Uy

iHJOiptyliig with South Carnlina Acts 18fX», is stlU nonresident for

Feilcriil jurisdiction. See 85 Am. St. Rep. UVX nute,

Dl^Uaguldbed La disseuUng opinion In Calvert v. Railway Co,,

I

161 U. S. 573-638 Notes on U. S. Reports. 678

64 S. G. 155, 41 S. E. 969, majority holding foreign corporation be-
coming domestic by complying with South Carolina laws is non-
resident for Federal jurisdiction.

(XII, 839). Miscellaneous.

Cited in Goodwin v. Boston, etc., R. R., 127 Fed. 989, holding
New Hampshire railroad, by consolidation becoming corporation of
Massachusetts and Maine, remains citizen of New Hampshire for
Federal jurisdiction; Winn v. Wabash R. R. Co., 118 Fed. 64, hold-
ing consolidated road composed of lines in different States filing its
articles in each State became citizen of each for Federal juris-
diction.

161 U. S. 573-582, 40 L. 812, GILDERSLBEVB T. NEW MEXICO
MIN. CO.

Syl. 1 (XII, 840). When no exceptions, suflaciency of facts open.

Approved in Thompson v. Ferry, 180 U. S. 484, 45 L. 633, 21
Sup. Ct. 453, holding on appeal from territorial court where no
errors are assigned, court is limited to question whether facts
found support judgment.

Syl. 2 (XII, 840). Laches determined by circumstances.

Approved in Sena v. United States, 189 U. 8. 241, 23 Sup. Ct-
599, 47 L. 791, holding no confirmation of Spanish grant can b^
had where possession was abandoned nine years before treatj <►"!
1848 with no attempt to assert possession since.

161 U. S. 583-587. Not cited.

161 U. S. 588-591, 40 L. 817, ROUSE v. HORNSBY.

(XII, 840). Miscellaneous.

Cited in Gableman v. Peoria, etc., R. R. Co., 179 U. S. 342, 45 "M
224, 21 Sup. Ct. 174, holding fact of appointment by Federal coum :i
in exercise of general equity power does not entitle receiver tz
remove suits against him; Marrs v. Felton, 102 Fed. 776, holdia^
Federal receiver properly joined with resident where controver*^
is not separable cannot remove suit.

IGl U. S. 591-638, 40 L. 819, BROWN v. WALKER.

Syl. 1 (XII, 8il). *• Nemo tenetur selpsum accusare." constitu-
tional right.

Approved in State v. Height 117 Iowa, 658, 664, 91 N. W. 9:J7,
939, 94 Am. St. Rep. 329, 333, holding compulsory physical examina-
tion of person charged with rape to discover presence of venereal
disease is a violation of his constitutional privilege. See 75 Am.
St. Rep. 346, note.

Distinguished In Thornton v. State, 117 Wis. 340, 93 N. W. 1107.
upholding admission of evidence touching comparison of tracks
found in snow with shoes of accused.

ft" Notes on U. S. Reports, 161 U. S. a59-012

SyL 4 (XII, 841). '* Disgrace" no excuse for not testify! n*;:,

Apprayed Jn In re FeJdstein, 103 Fed. 271, holding bankruptcy
wt 1808, fi 7a, providing that bankrupt's testimony shall not be
used tgalnst him in any criminal proceeding, 1b insufficient; Maekel
V. Rochester, 102 Fed, 316, 317, holding bankrupt cannot refuse to
answer questions touching ti-ansfer of property, seetion 7 of hank-
ruptcr act being sufficient safeguard; People. \\ Butler Street
Fumidry, 201 IlL 248, 252, 66 N. E. 352, 354, upholding anti-trust
law 1S01, requiring corporations to answer touching violations ot
audi act and providing for immunity from criminal prosecution.
Sm notes, 75 Am. St Rep. 347, 325.

Dlgtlagaished In In re Nachnian, 114 Fed. 0&6, holding witness
'inder examination In bankruptcj^ cannot be compelled to give
•"iswer which he claims will criminate him: WyckofT v. Wagner
Typewriter Co., £K) Fed. 159, holding In suit against corporation
'«r combination Id violation of Federal laws stockholder may refuse
to aaswer questions touching transfer of his stock; People v.
O'Briea, 176 N. Y. 265, 266, 267, 68 N. E, 356. ^7, holding, under
'^- I. Constitution, a witness examined before magistrate on lu-
^<*riimtlon charging another with keeping gambling house need not
'o^imlnate himself.

Syl. 5 (XII, S41J. Construction follows adoption of statutes.

Approved in People v, Butler Sti*eet Foundry, 201 111. 255. 251^,
'^ *V E, 355, 357. holding an invalid amendment eaanot repeal
I^^'or valid act.

%l* 6 (XII, 841). Presldent*8 pardon not exclusive,

Approved in Peacock v. United States. 125 Fed. 588, holding under
^*^' 8tat., § 5292, secretary of treasury has power after judgment
^^ remit penalty or forfeiture Incurred under rej^istry laws.

^yl 7 <XII, 841). Act 1893 applicable to State and Federal

^ 75 Am, St Rep. 347, note.

M. 8 (XII, 841). Act 1S1>3 requires witness to answer.

Approred in Foot v. Buchanan, 113 Fed, 159, 1(K), holding witness
^'*^ot be compelled to testify before grand jury to his own par-
^Ipttlon in combination to control prices in violation of 20 Stat.

'^I, 841). Miscellaneous.

Cited In In re Walsh, 104 Fed. 519, holding bankrupt claiming
pHvileg^ and not having opened way by previous answer cannot
N* compelled to answer incriminating questions In proceeding be-
fore referee: People v. 0*Brien, 176 N. Y. 260, 68 N, E. 354, hold-
lag, onder N. Y. Constitution, witness In prosecution against an-
Either for keeping gambllng-houae cannot be compelled to incrlml-
mte hljnself,

m U. 8. IX39-64Z Not cited.

^

161 U. S. 642-^77 Notes on U. S. Reports. 680

161 U. S. 642-646, 40 L. 837, OWENS v. HENRY.

SyL 1 (XII, 842). Scire facias — No judgment against noinseryea
defendant

Approved in Brown, Manzanares & Go. y. Chavez, 181 V. 8. 71, 45
L. 754, 21 Sup. Ct 515, holding scire facias in New Mexico to
revive a judgment is included in word "action" in Code and In
act 1881, { 2, barring action on judgment in two years; Kirk v.
United States, 124 Fed. 339, issuing injunction pendente lite re-
straining United States marshal in New York from enfCHrcing exe-
cution on property of surety on bail bond after scire facias had
been returned nihil; Dunn v. DUks, 31 Ind. App. 683, t58 N. E.
1038, holding suit cannot be maintained in Indiana on Pennsylvania
judgment entered without personal service after return of nihil
to two writs of scire facias.

161 U. S. 646-677, 40 L. 838, PEARS ALL v. GREAT 'NORTHERN
RY.

Syl. 1 (Xn, 842). Authority until exercised may be revoked.

Approved in Capital City L. & T. Co. v. Tallahassee, 186 U. 8.
411, 46 L. 1225, 22 Sup. Ct. 870, holding right to construct electric-
light plant given by ordinance but not exercised is not Impalrea
by law empowering city to construct its own plant, affirming
Adirondack Ry. v. New York State, 176 U. S. 345, 44 L. 4^ 20
Sup. Ct. 463, holding condemnation by State of lands upon which
company had not exercised right of eminent domain after latter
had tiled maps of route is no impairment of contract; Union Pac
Ry. V. Mason City Ry., 128 Fed. 239, holding act imposing dnty
to permit other companies to use railroad bridge and terminal
facilities impaired no obHgation of contract; Seymour v. Bank, 79
Minn. 223. 81 N. W. lOGO. upholding Gen. Laws 1895, chap. 145,
revolving unused right of banks to issue bills; Cooper Hospital r.
Camden, 68 N. J. L. 702, 54 Atl. 423, holding charter containing
exemption from taxation is repealable until accepted and acted
upon.

Syl. 2 (XII, 842). Necessary corporate rights cannot be impaired.

Approved in Slvaneateles Water-Works Co. v. Village of Skane-
ateles, IGl N. Y. IGO, 55 N. E. 505, holding act authorizing city to
build wator-works violates obligation of nonexclusive franchise
previously granted by city to water-works company.

Syl. 3 (XII, 842). CoriJorate charters strictly construed.

Approved in Newburyport Water Co. v. Xewburyport, 103 Fed.
50(>, boldiiiK where grant to water company a subsequent act au-
thorizing city to construct competing works impairs no right of
company; Ferry Co. v. Russell, 52 W. Va. 3G1, 4i3 S. K. 109, hold-
ing terry grant under cliapter 44 of the general law of West Vlr-

m

Notes OD Ij. S. Reports. IGl U, S. 677-704

glnla Is not exclusive, and does not entitle grantee to damages
tgaJnst competing ferries.

(Xll, 842). Miscellaneous,

Cited in United States v. Northern Securities Co., 120 Fed. 7m
liolding ownershtp of stock of two competing parallel railroads
vests the owner with power to suppress competition between them.

Kl U. S. C77-704, 40 L, 840. L0U1S\^ILLE, ETC, R. B. v.
KENTUCKY.

SyL 1 (XII, 842), Authority to consolidate repealatHe before
exercise.

Approved !n Capital City L. & T. Co. v. Tallahassee, 186 U, S.
^^l 4« L, 1225, 22 Sup. Ct 870. holding right to construct electric-
^H^t pUnt glveD by ordinance but not exercised not impaired by
law autMrUing city to construct plant, affirming 42 Fla. 498. 28
S<>.S15; Seymour v. Bank, 70 Minn. 223, SI K. W. lOGO. upholding
G«i. Laws 1895, ehap. 145» revolting unused right of banks to
iwoe blllK.

8|l 2 (XII* 842|. Unused unnecessary powers are revocable*
Approved in Louisville & N. R. R, Co. v, Kentucky, 1S3 U. S.
^iS^-W L. Sm, 22 Sup. Ct. 101, holding railroads of Kentucky arc
subject to Const, g 218, against longliaul preferences and cannot
''**lnj implied contract to charge reasonable rates. See notes, ao
^- «t Rep. 253; 78 Am. St Rep. 230.
*Jji. 4 fXII, 843), Charter construed ajralnst corporation.
Approved in Cleveland v. Mullin, 9(3 Md. 603, 54 Atl. tJOT, hold
M>f t^nns of act creating coiporation are controlled by broader
pnivxalons of previous general law; Yazoo, etc.» R. R. Co. v. Adams,
&1 Slittf. 129, 32 So. 951, holding where tax exemption enjoyed by
raUruad ^vas repealed before new corporation succeeded to old
<*niiUftiiy*8 rights new company caenot claim exemption; Robotham
r. I^uilendal Ins. Co., 04 N. J. Eg. G97. 53 Atl. 852, holding section
M of corporation act empowering corporations to purchase stock
m other corporations did not repeal restriction upon power of
Imturniico companies.
ssyL U (XII, 843), State may prohibit competing lines consoli-
tins-

Approved In Louisville & N. R. R. Co. v. Kentucky, 183 D. is
iJ10, 4«J L, 30G, 22 Sup. Ct 102, holding enforcement of State laws
prolii biting greater charge for shorter haul forms no uuconstitu-
tJonal Interference with interstate commerce; Purdy v. Erie R. K.^
g^ S. Y. 49, 5G N\ E. 510, upholding Laws 1.S95, chap. 1027. r^f
quiring railroads operating within State to Issue 1,000 mile mileage'
DooJcA. See 90 Am. St Rep. 254, note.

162 U. S. 1-166 Notes on U. S. Reports. 682

Syl. 12 (XII, 843). Prevention of consolidation within police
power.

Approved in Wisconsin, etc., R. R. Co. r. Jacobson, 179 U. S.
297, 45 L. 199, 21 Sup. Ct 119, upholding Minn. Gen. Laws
1895, chap. 91, § 3, requiring track connections at railway inter-
sections; State V. Jacksonville Term. Co., 41 Fla. 407, 27 So. 235.
holding § 30, article of Constitution, does not prohibit legislature
from authorizing railroad commissioners to consider public con-
venience in the discharge of their duties; Trust Co. v. Georgia, 109
Ga. 749, 35 S. E. 327, holding suit may be brought in name of
State for injunction against street railroads for violating State law
against combination to defeat competition.

Distinguished in Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 617,
44 L. 870, 20 Sup. Ct 723, holding unconstitutional Illinois act
March 21, 1874, requiring all regular passenger trains to stop at
county seats.

CLXII UNITED STATES.

162 U. S. 1-91, 40 L. 867, UNITED STATES v. TEXAS.

Syl. 3 (XII, 844). Texas boundary by treaty of 1819 defined.

Apjiroved in United States v. Choctaw Nation, 179 U. a 610, 45
L. 298, 21 Sup. Ct. 155, holding Indian treaty of 1820, as rectified
by that of 1830, was not intended to convey lands beyond tbe
limHs of United States.

162 U. S. 91-166, 40 L. 903, CENTRAL PAC. R. R. v. CALIFORNIA.

Syl. 6 (XU, 844). State may tax Federal corporation property.

Approved in Hart v. Smith, 159 Ind. 196, 197, 64 N. E. 66C. hold-
ing equity will enjoin acts of tax commissioners beyond their
jurisdiction.

Syl. 7 (XII, 844). Railroad's State franchise taxable.

Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S.
163, 23 Sup. Ct. 818, 47 L. 1000, holding interstate telegraph cor-
poration is liable to reasonable license fee for supervision of
poles and wires; Diamond Glue Co. v. United States Glue Co., 187
U. S. 616, 23 Sup. Ct 208, 47 L. 333, upholding Wisconsin Stat.
1898, §§ 1770b, 4978, prohibiting foreign corporations from oper-
ating within State until filing copy of charter; Bank of California
V. San Francisco. 142 Cal. 279, 75 Pac. 834, holding franchise of
corporation doing a banking business is taxable against the cor-

J

Notes on U. S, Reports.

1G2 U. S, 167-197

poration; tosentlng opinion in Jadison v. Corporation Comm., 130
N. C. 420, 42 S. E. 135. majority holding assessment of real and
personal property of corporation Including value of franolilse can-
not be taken as value of tangible property to estimate fraachise.

(Xll, 844). Miscellaneous.

ated In Southern Pac. R. R. Co, v. United States. 183 U. S. 52T,
46 L. 312, 22 Sup. Ct. 157, holding each of two railroads talking
iiiidtr contemporaneous overlappiDg grants takes slr undivided
moiety of land within the contlict

162 U. S. 167-170, 40 L. 929, SOUTHERN PAO. R, R. CO. v.
CAXIFORNIA,

(Xll, my. Miscellaneous.

Cited la dissenting opinion In Jackson v. Corporation Comm,, 130
N. C 420, 42 S. E. 135, mojorlty holding assessment of realty and
poonalty including frajicliise cannot be considered tangible prop*
^'ty to estimate value of franchise.

162 TI. 8, 170-183. 40 L, 930, TELPNER v. RUSS.

8yL3 (XII. &45). Vendor failing to file surveys releases vendee.

Approved In Washington v. Mining, etc., Co.. 28 Tex. Civ. 434,
6T 8, W. 402, holding where option oa mining property was ex-
tended, purchasers to satisfy vendors at certain time of their ability
to purchase, burden was on purchasers,

UiHtlngulshed in Kauffman v. Raeder. 108 Fed, 180» holding de-
fendants, after occupying premises under lease without paying
KDt faanot rescind contract for breach of contract by plaintiff.

IflSU. S, 1&4--197, 40 L. 935, CINCINNATI. ETC., RY. v. INTER-
STATE COMMERCE COMM.
8yL 1 (XII. g45). State railroad subject to Federal control.
Approved in Southern Pae. Co. v, Colorado FueJ, etc.. Co., 101
Fed, TS3, holding court has no power to Hx maximum freight rates
OU basis of Interstate commerce commission's determination of
retflonableness; Interstate Stocicyards Co, v. Indianapolis, etc.» Ry,
Co, flO Fed. 480, holding terminal railroad company operating In
coaianction with interstate lines is not necessary party in suit
mg^lDBt such lines under Interstate commerce act
S/L 3 (XII, 846). Commerce act governs through shipment.
Approved in Interstate Commerce Coram, v. Louisville, etc, R, R.
Co., 118 Fed. 626. holdiug maklug of joint through rate is act ot
^icti line and brings each within scope of interstate commerce act;
People V. Knight, 171 N, Y. 357, (M N. E, 153. holding separate cab
serrlce maintained by Interstate carrier at Its terminal entirely
witbto the State la subject to State taxation. See 89 Am. St. Rep.
fid^, note.

162 U S. 197-255 Notes on U. S. Reports. 6&

Syl. 6 (XII, 846). Commerce commission cannot fix rates.

Approved in Southern Pac. Co. v. Colorado Fuel, etc., Co., 10
Fed. 782, holding equity cannot compel obedience to order of li
terstate commerce commission establishing maximum freight ratei

Syl. 7 (XII, 847). Commerce acts affect only reasonablenefl
and discrimination.

Approved in Minneapolis, etc., R. R. Co. v. Minnesota, 186 U. t
263, 46 L. 1156, 22 Sup. Ct 903, upholding Minnessota Laws 18UJ
chap. 91, creating State railroad commission, with power to e<
tablish and enforce Joint through rates over connecting lines, afflm
ing State v. Minneapolis, etc., R. R., 80 Minn. 196, 83 N. W. «
United States v. Chicago, etc., Ry., 127 Fed. 792, holding goTen
ment not entitled in transportation of soldiers to benefit of ** tc
party rate" in force on railroad for athletic and theatrical con
panics; Southern Pac. R. R. Co. v. Colorado Fuel, etc., Co., 101 Fe
78G, holding court of equity cannot fix maximum freight rates an
enjoin carrier from demanding more; dissenting opinion m Looi
ville, etc., R. R. v. Commonwealth, 104 Ky. 247, 46 S. W. 71
majority holding under Constitution, f 218, against long-haul pre
erences, competition does not Justify such discrimination.

(XII, 8i5). Miscellaneous.

Cited in dissenting opinion in Louisville, etc., R. R. y. Oommo
wealth, 104 Ky. 245, 46 S. W. 712, majority holding under Cons'
tutlon, § 718, carrier Is prohibited from charging greater compens
tion in the aggregate for shorter haul.

162 U. S. 197-255, 40 L. 940. TEXAS, ETC., RY. v. INTERSTAn
COMMERCE COMM.

Syl. 2 (XII, 847). Proper and necessary parties to suits.

Approved in Interstate Commerce Commission v. Southern F^j
Co., 128 Fed. 5i)l), holding in suit against initial carrier to eujc
enforcement of rule for routing freight connecting carriers m
proper but not necessary parties.

Syl. 3 (XII, 847). Scope of commerce act of 18S7.

Approved In Interstate Com. Comm. v. Louisville, etc., R. R. O-
118 Fed. 02G, holding making of joint through rate is work of ea^
line and brings each within scone of Interstate commerce act.

Syl. 8 (XII, 817). Unjust discrimination is question of fact

Approved in Interstate Com. Comm. v. Southern Pac. Co., Vmm
Fed. 001, holding finding of interstate commerce commission th^
railroad rule and practice of routing shipment of citrous fruits •
unreasonable to shippers is one of fact; dissenting opinion in Ohl
Coal Ck). V. Whitconib, V23 Fed. 364, majority holding dlscrimina
tive charge of $200 per car to one shipper only for transportatioi
over spur track, a part of defendiinfs terminal.

m Notes OD U. S. Reports. 162 U. S, 255-283

Sjl 13 (XII, MS), Competition considered In enforcing com-
merce act

Approved In East Tennessee, etc., It. It. Co. t. Interstate Com-
merce Comm., 181 U, S. 12, 28, 45 L. 723, 729, 21 Snp. Ct 520.
^QB, boldlng competition at Jong-liaul points may produce disslml*
Parity of conditions warranting difference in nates In consideration
thereof; Interstate Commerce Comm. v. Southern Ry. Co., 105
Fed. 709, holding commission should consider all com petition In
determininj? reasonableness of rates for long and short haul, al-
tbougl) competition Is between carriers subject to the act.

Dlstlng^uished In Southern Fac* Co. v, Colorado Fuel, etc, Co.,
101 Fed. 783, holding court of equity cannot compel obedience to
order of Interstate commerce commission nxing maximum freight
rate*.

rSU. 817). Miscellaneous.

Cited in Louisville, etc., R. R. t. Commonwealth, IM Ky. 241.
"^ S. W. 711, holding, under Const, fi 718, carrier Is prohibited from
barging greater compensation In ttie aggregate for shorter haul.

1Q2 U S. 255-283. 40 L. 960, STANLEY v. SCHWALBY.

Byl. 1 (XII, 849). Congressional authority necessary to suit against

Approved In Overbolser v. National Home for Disabled Soldiers,
^OUio SL 247, 07 N. E. 48D, 'M Am. St Itop. , holding National
^Gme iQf Disabled Volunteer Soldiers, a corporation created by
'^ongreag. cannot De sued m tort; E! Paso v. National Bank, 96
"^ex, 500, 74 S. W. 21, holding Statute of Limitations runs In favor
^** government and grantee of land from government may raise the
•^^fenae of the statute.

SyL 2 (XII, 849). Attorney-general cannot waive governmental
^^eaiptlon.

I^Ijrtlngtiished In Ward v. Congress Const Co., 9© Fed. 600, hold-
*^<f United States purchasing property pending litigation against
J^fSor owner Is bound by the decree; Salem Mlila Co. v. Lord, 4J
^^ % 92, 60 Pac. 1035. 10:^6, holding p while officers sued for ap-
^f^prlaUng more water than State was entitled to under contract
^i^not oust jurisdiction on ground that State Is party.

8yL 3 (Xn, 849). Trespass against officers suit against govem-
iiiait

%ro?ed m Percy Summer Club v. Astle, 110 Fed. 490, hold-
'"^ attorney- general was properly allowed to Intervene on behalf
^ ^Ute in suit to prevent trespass on lake claimed to belong to
'^Imuals and to the State.

^'•thjguished tn Avery v. Popper, 179 U. S. 313, 45 L. 200, 2?.
^•Jpi Ct 97. holding fact of purchase at marshal's sale of prope'^ty

J

162 U. S. 283-^325 Notes on U. S. Reports. W

under Federal execution does not make cause removable wher
only question is as to validity of mortgage on property.

Syl. 4 (XII, 849). United States not liable for costs.

Approved in Sandberg v. State, 113 Wis. 589, 89 N. W. 607, bolC
ing erroneous judgment against State for costs in absence of mtm
ute authorizing same.

(XII, 849). Miscellaneous.

Cited in Houston, etc., Ry. v. Texas, 24 Tex. Civ. 119, 66 8. V
229, holding where Supreme Court reversed State court, holdln
grant invalid on one ground. State court may after mandate hoi
grant invalid on ground not considered above.

162 U. S. 28a-290, 40 L. 970, SENECA NATION v. CHRISTY.

Syl. 1 (XII, 850). Decision on Statute of Limitations nonrerlev
able.

Approved in Hale v. Lewis, 181 U. S. 480, 46 L. 963, 21 Sap. G
G80, holding State decision that corporation is estopped by actio
of directors to set up unconstitutionality of statute is not rerlew
able by Supreme Court..

162 U. S. 290, 291, 40 L. 972, DAVIS v. GEISSLER.
Syl. 1 (XII, 850). Certificate of jurisdictional question necessary
Approved In Arkansas v. Schlierholz, 179 U. S. 600. 46 L. 337.
21 Sup. Ct 231, holding jurisdictional question not shown by order
allowing appeal from decree where court only intended to pisa
upon merits; Huntington v. Laidley, 176 U. S. 676, 44 L. 634, 2U
Sup. Ct. 529, holding direct appeal from Circuit Court is maintain*
able on ^ound of jurisdiction where decree dismissing bill, appeal
order and certificate show only jurisdictional question.

1G2 U. S. 201-313. Not cited.

162 U. S. 313-323, 40 L. 980, STEVENSON v. UNITED STATES.

Syl 1 (XII, 850). Manslaughter Is question for jury.

Approvetl In United States v. Lewis, 111 Fed. 633, charging tha
Inference of malice Is one of fact for jury.

Syl. 2 (XII, 851). Self-defense reducing crime to manslaughter.

Approved in United States v. Lewis, 111 Fed. 632, charging thi
jury might find defendant indicted for murder guilty of ouu
slaughter if evidence and charge warranted same.

(XII, 850). Miscellaneous.

Cited in United States v. Lewis, 111 Fed. 633, charging thi
manslaughter at common law Is substantially the same as define
in the Revised Statutes.

102 U. S. 324, 325. Not cited.

Notes on tJ. S. Reports. 162 V, S. 326-33^

lfi2U. 8. 828^29, 40 L. 985, HOLLANDER t, FECHHEIMER,

Sjl 1 (XII« 851). Appellate Jurisdletloa depends on amouut

dlrecUy loTolved.

Distinguished in Hutehlnson v. Otla. Wilcox, etc. Co., 123 Fed*

holding section 6. act March 3, 18&1, does not authorize appeal

Snpreme Court from Circuit Court of Appeals on petition to

'^vlBe decision of District Court In baniirnptcy,

1«2 U. S. 329^^39, 40 L. 986, GREAT WESTERN TEL. CO. T.
PURDY.

Sjl, 1 (XU, 851), Order for asaessment conclusive of necessity.
Approved in Nashua Sav. Banli v* Anglo-American Co,. 1S9 U.
8^ 231, 23 Sup. Ct. 519, 47 L. 780, holding In ahsence of fraud courts
cMiaot Inquire Into necessity of assessment by directors of foreign
corporation upon it5 capital stock; Hancock Nat* Bank v. Farnum.
l»0 V. S. 644. 44 U 621, 20 Sup, Ct 508, holding Judguient against
<^o<rporaUon rendered by Federal court in State where Judguieut
Wti<l8 stockholders must be given same force ip. another State;
Campbell v. American Alkali Co., 125 Fed. 212, holding st(>ckhoid«2r
^mtiiiot attack assessment on ground of transfer of stock after
^1 was made. I>ut before same became due; Fish v. Smith. 73
C^tWL 382, 389, 47 Atl. 713, 710, holding corporution shareholder
•'t^r suit adjudging coriioration insolvent and appointing receiver
'^^'wiot dispute validity of receiver's appointment; Chllds v. Cleaves,
^ He. 509, 50 Atl. 717, holding nonresident stockholder Is hound
^ decree of State court In which sait for sequestration of corpo-
ration assets was instituted and receiver appointed: Howarth v.
^Dibard, 175 Mass. 577, 56 X. E. SOI. holding nonresident stock-
tiolders are concluded by suit appointing i*eceiver for insolvent
^ttk and determining amount of liability; Straw, etc., Mfg. Co.
^ Kilbaurne, etc., Co.» 80 Minn. 134. 83 N. W. 38. holding, under
wctloQ 5, Laws 1890, chap. 272, order determining amount of cor-
porate assets and liabilities and necessity of assessment ; Com-
«wnw«ilth, etc., ms. Co. v. Hayden, 01 Xebr. 457, 85 N. W. 444,
Mdtag court haring no jurladictlon of defendant Btockhoider caa-
8ot r»ider personal Judgment against him.
Syl. 2 (XII, 951). Stockholder may set up defense.
Approved In Spinney v. Miller, 114 Iowa. 216, 8*5 N. W. 310, 80
Am. St. Rep. 355, holding method prescribed by Fetleral court
for settling with borrowing members of loan association is not
binding on members not parties to »«it.
8yl. 3 (XII. 851). Decision that sister State assessment Is barred.
Approved In Great Western Min., etc.* Co. v. Uiirrls. 128 Fed.
holding receiver of Insolvent corporation appointed by court
gfoeral equity power cannot maintain suit to collect money
er JurisdieUon.

1(52 U. S. 33&>346 Notes on U. S. Reports. 681

Syl. 4 (XII, 851). Limitations governed by lex fori.

Approved in Hale v. Coffin, 120 Fed. 474, holding equity will
not enforce stockholder's statutory liability where right to enforce
same at law is barred by State Statute of Limitations; Keyser v.
Lowell, 117 Fed. 404, holding unconstitutional Colo, act April «,
1899, barring actions on Judgment rendered on cau^e of actloB
which was barred in Colorado, but not In State of suit

Di9tiDguished in Brunswick, etc., Co. v. National Bank, 99 Fed
G36, holding Ga. Statute of Limitations applies to suit in Maryland
to enforce liability of stockholders in Georgia corporation.

(XII, 851). Miscellaneous.

Cited in Tompkins v. Craig, 102 Fed. 668, holding suit on for-
eign Judgment is founded upon record rather than on subscription
contract, hence defendant is entitled to have whole record set cot;
West V. Topeka Sav. Bank, 66 Kan. 532, 72 Pac. 255, holding
Statute of Limitation begins to run against stockholder's subscrip-
tion liability upon insolvency, although no call is made; dissent-
ing opinion in Nashua Sav. Bank v. Anglo-American, etc, Co., 108
Fed. 778, majority holding where record on appeal in suit for as-
sessment against stockholder of foreign corporation does not con-
tain all the evidence regularity of calls is presumed.

162 U. S. 339-346, 40 L. 991, GREAT WESTERN TEL. CO. T.
BURNHAM.

Syl. 1 (XII, 852). State decision, if final, is reviewable.

Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. & 8. 45
L. 402, 21 Sup. Ct. 242, holding Supreme Court will not reopen
question involved on first appeal to let in Federal defense based
on new pleas filed without leave where such leave was required:
Tampa Water-Works Co. v. Tampa, 124 Fed. 935, holding writ
of error will not lie to review decision of lower court after remand
by Supreme Court for further proceedings; Finney v. Guy, 111
Wis. 299, 87 N. W. 256, holding Judgment of State Circuit Court,
pursuant to mandate of Supreme Court on reversal ordering judg-
ment in accordance with law, appealable.

Syl. 2 (XII, 852). Second appeal necessary after remand.

Approved in Haseltine v. Central Nat Bank, 183 U. 8. 132. 46
L. 118, 22 Sup. Ct 49, 50, holding judgment reversing Judgment of
trial court granting recovery of usurious Interest, under Rev. Stat..
§ 5198, and remanding same, is not final; Morgan v. Thompson.
124 Fed. 205, holding judgment of Federal territorial court re-
versing and remanding for a determination of rights is not ap-
pealable to Court of Appeals.

(XII, 852). Miscellaneous.

Cited in Beasley v. Texas, etc., Ry. Co., 191 U. S. 494, 24 Sup.
Ct 165, holding decree of Circuit Court of Appeals reversing de-

m Notes on U. S» Reports. W2 U. S. 341^-355

cree of Circuit Court and dlsmlsalog liill without prejudice to
ictloa at law Is reviewable by Sitprenie Court; Stern v. La Com-
IMgule Generale Transatlantiqoe, HJO Fed, l>tlO, holding N. J statute
of ISIS, llmltlug actions for wrongful death to twelve months,
Korems such actions wherever brought.

162 U. S. 346-358. 40 L. 994, NORTHERN PAC. R. R. v. PETERSON.
SyL 1 (XII, 852). Section boss and laborer are fellow servants.
Approved In Fouraier \\ Pike, 128 Fed. 990, holding foreman
aiij workmen engaged with hira In construction of building are
fellow sen-ants; Pennsylvania Co. v. Fishack, 123 Fed. 471, hold-
ing fireman on swutch-engtm^ and yardmaster subordinate to train-
niaater are fellow servants; Chicago House Wrecking Co. v. Birney,
117 Fed, 77. holding wrecking company Is liable for negligence
of foreman engaged in tearing down building; M'Donald v. Buck-
i«y. 106 Fed. 293, holding foreman of pile-driving gang with power
l» hire and discharge, who directs the fall of hammer, is fellow
»«rvaot of members of gang; Maher v. Union Pac. etc.. Ry., lOli
Fed. 310, holding fireman on passenger train aud engineer and
^inductor of freight train are fellow servants; Ciueluuati, etc.,
^' K. Co, V. Gray, 101 Fed. 626, holding general yardmas^ter and
viml foreman are fellow servants; Stevens v. Chamberlln. IOC) Fed.
^1* holding machinist In woolen mill, working with his hands, and
tnotber employee called by him to assist In repairing machine *ire
f^W servants; Brlegal v. Southern Pac. Co., 98 Fed. ^^, holding
flr«aan oiling turntable at engineer's order Is fellow servant of
l^ften Tomllnson v. Chicago, etc., R. R. Co., 97 Fed. 254, holding
railway bridge builder whose car was attached to company^s trains
h (eliow servant of train hands; Thomas v. Cincinnati, etc., Ry.
Co., 97 Fed. 249, holding yard master of railroad is fellow servant
of foreman of switching gang employed in yard; Geesen v. Satiniu,
115 Iowa, 11, 87 N. W. 746, holding men at guy rope pulling piles
clown after plaintiff sawed same partially through are fellow ser-
vauta of plaintilT: Grattis v. K. C, P. & G. Ry.. 153 xMo, 402,
77 Am. St Rep. 73I>, 55 S. W, 114. holding conductor signaling en-
leer to proceed is fellow servant of engineer and of tl reman;
'iskle T. Montello. etc, Co., Ill Wis, 450, 87 N. W. 464, holding
auairy foreman conducting biai?Ung and employees working with
him are fellow servants; dissenting opinion in St Louis, etc, R. R.
Co. V. Furry, 114 Fed. 904, majority holding, under Ark. Dig.,
I (1284, railway teiegrtiph operator and fireman are not fellow ser-
vanbi; dissenting opinion in Missouri, etc., Ry. Co. v. Elliott 102
Fed. KXl, 111, majority holding train despatch er and employees.
operating trains are not fellow servants. See 75 Am. St. Rep. 025,
note.

Distinguished In Alaska United (^old Mln. Co. v. Muset, 114 Fe<l.
70» holding mine foreman who employs and discliarges and directs
Vol. Ill— 44

1G2 U. S. 346-358 Notes on U. S. Reports. 680

operations is a vice-principal; Hunt v. Hurd, 98 Fed. 688, revers-
ing Judgment for plaintiff who was injured during making of fly-
ing switch where fellow servants were not charged with negli-
gence; Railroad v. Jackson, 106 Tenn. 442. 61 S. W. 772. holding
conductor of freight train who also assists in switching cars Is
not fellow servant of station agent

Syl. 2 (XII, 853). Master must provide safe place.

Approved in Northern Pac. Ry. v. Perry, 116 Fed. 612, holding
company liable for injury to brakeman by being knocked from
top of freight car by overhanging water-spout; Western Union TeL
Co. V. Tracy, 114 Fed. 284, holding company liable to injured
lineman for failure to inspect pole, although that duty was dele-
gated to foreman, affirming Ti-acy v. Western Union TeL Co., 110
Fed. 104; Swensen v. Bender, 114 Fed. 7, holding servant work-
ing In tunnel does not assume risk from caving due to Insufllcient
timbering; Weeks v. Scharer, 111 Fed. 335, holding shift boss and
gang of men under him are fellow servants; Grace, etc, Co. v.
Kennedy, 99 Fed. 681, 682, holding master liable for Injury re-
ceived by workman by being thrown from top of pole due to a
team running into guy rope fastened in the street; Port Blakely
Mill Co. v. Garrett, 97 Fed. 539, holding company liable for Injuries
due to breaking of standards placed on car by coservant of person
injured; P'oley v. Cudahy Packing Co., 119 Iowa, 256, 93 N. W.
288, holding act of foreman In ordering removal of plank from
staging, in consequence of which removal deceased was killed,
was in law the act of defendant; McLaine v. Head & Dowst Co.,
71 N. H. 297, 52 Atl. 54(5, holding foreman's failure to warn laborer
in ditch of dumping of load of earth and stone therein Is not
neglijjeuce of master in furnishing safe place. See notes, 75 Am.
St. Uep. 588, 591, 502. 50.3, (12(1.

Distinguished in dissontinjx opinion in McLaine v. Head & Dowst
Co., 71 N. H. 'M)S, 52 Atl. 552, majority holding foreman's failure
to warn laborer in ditch when load of earth and stone was to be
(lumped is not negligence of master.

Syl. 3 (XII, 853). Vice-principal controls distinct department.

Approved in Cumberland Tel., etc., Co. v. Bills, 128 Fed. 275,
holding foreman charged with duty of inspecting poles Is vice-
principal: Chicago House Wrecking Co. v. BIrney, 117 Fed. 76,
holding foreman of wrecking company in tearing down buildings
is vice-principal of workmen engaged under him. See 75 Am. St.
Uep. <J28, note.

Syl. 4 (XII, 853). Railway carrying laborers make no implied
contract.

Approved in Dishon v. Cincinnati, etc.. Ry., 126 Fed. 198. hold-
ing section man killed alter hours while cro:$sing between two cars

mi

Notes on U. S. Reports. 1G2 U. 8. 35&-^383

on way to depot for his own purposes is fellow servant of train

162 U. S, 35J>^C5, 40 L. 990, NORTHERN PAC. R. R. v. CHARLES.

Syl 1 (853)* Day laborer and freight trainman fellow servants.

Approved In Dlshon \\ Clncinnatf. etc., Ry., 12G Fed. 108, hold-
ing section hand crossing track for own purposes after hours is
fellow gervant of trainmen; Brlegal v. Southern Pac. Co., 98 Fed.
902, boldfog fireman oiling turntable and engineer who ordered him
to do 80 are fellow servants; Hunt v. Hurd. 98 Fed. 6aS. holding
s«ctioa hand could not recover for negligence of brakeman, being
fdlow lerrants; Wlskde v. Montello. etc. Co., Ill Wis. 450, 87 N.
W. 464, holding quarry foreman conduct lug blasting Is fellow ser-
vant of employees working with him.

Syl. 2 (XII, 854). Section hand and foreman fellow servants.

Approved In Weeks v. Scharer, 111 Fed. 335, holding shift boas
*Dd inen ander him are felloTv servants; Lafayette Bridge Co. v.
0\Kh, log Fed. 337, holding bridge company liable for death
of workman due to breaking of defective plank selected by com-
moa worknaan under foteman's orders; JIaher v. Union Pac etc.,
Rj., IfJO Fed. 310, holding lireman on pastjenger train and conduc-
tor and engineer of freight train are fellow^ ser\ants; TomllUKoa
'. ChkBgo, etc.. R. R. Co.. 97 Fed. 254, holding railroad bridge-
builder riding in work car attached to company's train and train
^MUd openiting train are fellow servantis.

(XII, 853k Allscellaneous.

Hited In McGinn v. McCormick. 109 La. 403, 33 So. 385, holding
comprtoy liable for Injury of employee due to defective spring In
coJlldlDg car, negligence being that of company and foreman.

I<S2 D. S. 3fJf>-383, 40 L, 1002. NORTHERN PAC. R. R. v, LEWIS.

Syl 2 (XH, 854). Act 1878 prohibits cutting of timber.

Approved In Pine River Logging & Improvement Co. v. United

SUtes, im U. S. 284, 40 L. 11(37, 22 Sup. Ct. t>22. holding, under

JCt February 16, 1S8D, for disposal of dead timber on reservation,

eootrACts of Individual Indians for such timber dJd not cover all

jioch timber on reservation; Teller v. United States, 117 Feil. 580,

Iditi^ custom of cutting limber before entry cannot Justify lu-

ed eutryman's cutting of ties; dissenting opinlou in United

f. Price Trading Co., l<>i> Fed. 24I>, 253, majority holding

engaged chiefly In other pursuits, who cut wood from pub*

lie land* for sale for domestic purposes, are not required to make

record of sales nnder 20 Stat. SS.

SyJ, 3 (Xll. 8.'>4). Timber is presumably out illegally.
Approved in T'nitcd Stn tcs \\ Denver, etc., R. R. Co,, 191 U.
1, 24 Sup. Ct. 34. 35, lioldiiig railroad company empowered

J

162 U. S. 38a-409 Notes on U. S. Reports. 682

to take timber for certain purposes has burden of showing a tak-
ing for such purposes when sued In trover by United States; dis-
senting opinion in Stubbs v. United States, 104 Fed. 992, majority
ordering new trial where charge was based on wrong statute.
though defendant did not sustain burden of showing timber law-
fully cut

Distinguished in Stubbs v. United States, 104 Fed. 991, hold-
ing where court's charge was based upon wrong statute defend-
ant entitled to new trial, though not sustaining burden of showing
timber lawfully cut

Syl. 4 (XII, 854). Timber wrongfully cut belongs to goyenunent

Approved in Cunningham v. Metropolitan Lumb^ Co., 110 Fed.
33G, holding homestead settler can give no title to timber cut be-
fore perfecting his right entitling him to patent; dissenting opinion
In Teller v. United States, 117 Fed. 585, majority holding contract
of government agent releasing ties cut on public land on defend-
ant's agreement to pay for same vested title in defendant

(XII, 854). Miscellaneous.

Cited in M., etc., Ry. v. Starr, 22 Tex. Civ. 356, 56 S. W. 885,
holding owner of timber cut by trespasser made into railroad ties
and sold may recover from innocent purchaser value of timber
when purchased by him.

102 U. S. 383-399, 40 L. 1009, McINTIRE v. McINTIRB.
(XII, 855). Miscellaneous.
Cited in Mclntire v. Mclntire, 192 U. S. 120, 24 Sup. Ct 196,

reciting history of litigation.

102 U. S. 399-404, 40 L. 1015, PALMER v. BARRETT.

Syl. 3 (XII, 855). Government control over ceded land.

Approved in United States v. Tucker, 122 Fed. 521, holding
United States has exclusive jurisdiction to punish oflTenses com-
mitted on land purchased from State for locks and dams on
navijcable river; Newcomb v. Rockport 183 Mass. 78, 66 N. E.
589, holding town on main land cannot be compelled to build school-
house on Thatcher's island or to furnish transportation for children
to attend school on main land.

102 U. S. 404-409, 40 L. 1017, KELSEY v. CROWTHER.

Syl. 1 (XII, 855). Specific performance — Vendee must oflTer pay-
ment.

Approved in Woods v. McGraw. 127 Fed. 917, holding equity
will not enforce option after time provided for exercising same
has expired; Federal Oil Co. v. Western Oil Co., 121 Fed. 677,
holding lessee of oil laud cannot fjet specific performance of lease
whore no well was sunk us required by lease; Kentucky Distilleries,

«

Notes on U. S, ReportB.

162 U. S. 410-419

I

:c, Co. T. Warwick Co.. 109 Fed. 2S3» holding purchaser of realty,

under contract requiring deposit of price by certain day, cannot

ot>tain specific performance without showing deposit or tender;

•TABiea V. Darby, 100 Fed. 22S, holding letter of option-holder ac-

<?^rtltt^ ** If detfLlls are satisfactorily arranged " and If abstract is

rmmmished la no acceptance; Idaho Gold Mln* C!o, v* Union Min.,

e-tic^. Co.» 5 Idaho, 118, 47 Fac. t)S, holding purchaser of mining

i^M^operty failing to work mines and pay royalties as agreed relieves

ir^xidor from placing deed in escrow; Washington v. Mining, etc.,

C«>,.2S Tex. Civ. 4S4, 440. 441, GT S. W. 462, 465, 4G6, holding where

t^^^mdors did not tender payment, but objected to title where such

i^ "KL^e was not mentioned In option, no acceptance of option was

aMb^owu; dissenting opinion in Kauffman v. Roeder* 108 Fed. 188,

ii:i.^«.jorlty holding party partially performing contract may maintain

a^zr-fc-ioD for specific performance against party benefitting thereby.

XDistingnished in Blauton v. Kentucky DistiUerles & Warehouse

Co, , 120 Fed. 34S, ho Id lag tender of deed by vendor is not condi-

tl^i^mi of suit for specific performance where vendee has notified

b^^xmof Intent not to perform; Kauffman v, Roeder, 108 Fed. 181,

bo^k«idlng party to contract partially performing same may maintain

**^^loD for specific performance or for damages.

ICS:;* U. S, 410, 411, 40 L. 1020, MONTGOMERY v. UNITED STATES.
^Jl 1 (XII, 855). Embezzling decoy letter is no defense.
^<Ms 72 Am. St. Rep. 701, note.
^^^ U. S. 411^15, 40 L. 1020, BRYAN v. KALES.

%L I (Xll, 856). Ejectment against mortgagee — Tender neces-

ApproTed In Sims v. Steadman, 62 S. C. 305, 40 S. E, 679, hold-
*^ heirs of mortgagor cannot recover possession from purchasers
•^ODcttly claiming under deed executed under defective power of
**1* in mortgage without paying debt.
^C2U. S. 415-419, 40 L. 1022, BRYAN v. BRASUIS.
8yL 1 pen, 856). Mortgagor cannot recover after breach,
Approved In Romig v. Gillett, 187 U. S. 117, 23 Sup. Ct 42, 47
L 100. holding grantee of purchaser at foreclosure sale cannot
he oiwted by mortgage claimant without payment of debt because
uf iosulficlency of affidavit for publication of summons; Finlay-
ma v. Peterson, 11 N. Dak. 54, 89 N, W, 860, holding defendant,
a tAx purchaser from mortgagee, entering with mortgagor'a con-
sent cannot be ousted without payment of debt and tax claims;
Sims r, Steadman, G2 S. C. 305. 40 S. E. 679, holding heirs of
mortgagor cannot without paying debt recover possession from
purchaser honestly dalming under deed executed under defective
power of sale.

mA

162 U. S. 420-438 Notes on U. S. Reports. 69

162 U. S. 420-425, 40 L. 1023, ANDREWS v. UNITED STATES.

Syl. 1 (XII, 856). Detective writing decoy letters may testify.

See 72 Am. St Rep. 701, note.

Syl. 2 (XII, 856). Obscene matter in letter is within statute.

Distinguished in Middleby v. Effler, 118 Fed. 263, holding charg
that plaintilf had written scurrilous anonymous letters claimed t
be " a State prison offense " states no crime against United State

Syl. 3 (XII, 856). Rev. Stat, § 3893. includes "private seale
letter."

Distinguished in United States v. Wroblenski, 118 Fed. 496, hol<
ing sealed private letter charging writer's, mother with adulter
is not " lewd and lascivious " within Rev. Stat, § 3893.
Syl. 5 (XII, 856). Charge presumed to cover rejected instnictioni
Approved in Northern Pac. Ry. Co. v. Tynan, 119 Fed. ZQ4, hoU
ing where record does not contain entire charge, charge as give
will be presumed to present substance of refused instructions.

1G2 U. S. 425-434, 40 L. 1025, DASHIELL v. GROSVENOR.

Syl. 1 (XII, 857). Patent is evidence of operativeness.

Approved in National Chemical, etc., Co. v. Swift & Co., 10
Fed. 92, holding void Van Ruymbelte patent No. 367,732, for .
fertilizer.

Syl. 2 (XII, 857). Patent limited by prior art.

Approved in Westinghouse Air B. Co. v. Christensen Eng. C«
128 Fed. 442, upholding Boyden patent No. 481,134, for automafl
airbrake valve mechanism as confined by elements as shown; Uni»
Writing Machine Co. v. Domestic Sewing Machine Co., 109 F»
90, holding Brook's patent No. 454,845, for typewriting macbicr
as construed is not infringed.

(XII, 857). Miscellaneous.

Cited in International Postal Supply Co. v. Bruce, 114 Fed. ^
sustaining plea of postmaster that alleged infringing machines w—
introduced into his office by postal authorities and used by tl^
direction.

162 U. S. 435-438, 40 L. 1030, GRAVER v. FAUROT.
Syl. 3 (XII, 857). Interpretation of rules for certifying questl-^i
Approved in Felsenheld v. United States, 186 U. S. 134, 4^
108J^>, 2*J Sup. Ct. 743, declining to answer certified questions w*3
invite court to examine entire record; Emsheimer v. New Orie^
186 U. S. 42. 40 L. 104G, 22 Sup. Ct 774, holding Supreme O^
will not answer certified question where certificate does not 8pe<^^
facts on which question rests but whole record is certified.

flU Notes on U* S. Reports. 1G2 IT. S. 439^78

rme2 U. S. 439-466, 40 L, 1032. BLAGGE v. BALCH,

SyL 1 (XII, 857). Payment of spoliation claims are gratuities.

Approved in Buchanan v. Patterson, 190 U. S. :iG2, 363, 23 Sup.

^ZDl 7G7. 47 L. 1096, 1097, holrllng net 1S99. appropriating for pay-

:MTfieat of French spoliation claims, meant to include next of kin

-*=*f ssofferers and not assignees In bankruptcy; Healey v. Cole, 05

^2M. B. 2t>7, 49 Atl. 1066, holding appropriation for French spoliation

^z^kima was mere gratuity: Ex parte Johnson, 63 S. 0. 20S, 41 S, E.

^^^X holding personal representative of deceased member of firm

S^ ^ Dot proper party to proceeding by representative of surviylng

^^^fcjeiuber for dHtribotion of fund.

Syl. 3 (XII. 858}. *' Next of kln/^ act 1S91. defined.
Approved in United Stntes v. Borcberling, 185 U, S. 232. 46 L.
!5f. 22 8up. CL 611, holding payment hy secretary of treasury
creditor of United Stjites, with notice of appointment of re-
viver In State court is no har to suit hy receiver; HeaJey v. Cole,
Me* 277^ 49 Atl. 1006. holding money appropriated for French
"^^-^^Jollation claims Inured to benefit of next of kin of sufferers ex-
* mating wtten appropriation made; Thurston v. Wllmer, 94 Md. 459,
"~*^<J<). 51 AtL 98. S9 Am. St. Rep. 441, holding awards to next of
*^^iiU under act 1^9. constituting part of ftrnds appropriated for
*^^reDch spoliation claims, are not subject to garnishment; Patterson
"^"* Buchanan. 92 Md. 347, 34!l. 48 Atl. 159, lai. holding act 1800.
"^^-Xtpfoprlatlug for French spoliation claims, meant to benefit next
^^* kin of original sufferers, existing wbeu act passed.
(Xll, 8571. Miscellaneous,

Cited in Patterson v. Buchanan, 92 Md. 345, 348. 351, 48 Atl. 158,
^^W, 161. holding act 1890, appropriating funds for payment of
^"*rench 8p«)liation claims, meant to benefit next of kin existing
^^^ben act passed; Hadlock v, lirooks. 178 Mass. 440. 59 N. E. 1914,
*^<Jliiliig order on client to pay attorney's fees on final distribution
^^'^ certain sum is payable on making of final order for distribution*

^^ D. 8. 4CC-478. 40 L. 1039. WALLACE v. UNITED STATES.
^7l 1 (Xll. 858K Accused cannot bring on quarreb
Approved Ui United States v. Lewis, 111 Fed. 6335. charging jury
that iielf-defeiise cannot be set up by one who brought such neces-
*'ty npon himself,

Syl 2 (XII. 858). Killing by aggressor without intent not murder.

Ap;,roved In People v. Fillppelli, 173 N. Y. 516* 66 N. E. 4<>4.
^^'Ifltng one commencing quarrel witlj no InteJit to take life and
^lltini; other Id self-defense Is guilty only of manslaughter.

^yi 3 (XII. 858). Trespass cannot be repelled by killing.

^'-^ 03 Am. SL Itep. 258, note.

162 U. S. 478-488 Notes on U. S. Reports. 688

Syl. 4 (XII, 858). Jury considers qualifying circumstanceB.

Approved in Fidelity Mut Life Assn. v. Mettler, 185 U. S. 321,
46 L. 931, 22 Sup. Ct. 667, holding admissible to rebut inference
of conspiracy evidence of family's belief as to fact and mann^ of
death of insured; United States v. Lewis, 111 Fed. 632, 633,
charging that Jury may inquire into circumstances of killing and
if facts warrant may find verdict of manslaughter.

Syl. 5 (XII, 858). Threats of deceased showing self-defense.

See 89 Am. St. Rep. 704. note.

Syl. 6 (XII, 858). Accused may testify as to Intent

Distinguished in Cuddy v. Clement, 115 Fed. 302, holding undit-
closed belief of vessel-owner that person furnishing supplies ob-
tained lien cannot overcome presumption of no lien.

162 U. S. 478-489, 40 L. 1044, CAMPBELL v. PORTER.

Syl. 1 (XII. 858). Admission to probate reviewed by error.

Distinguished in Kenaday v. Sinnott, 179 U. S. 613, 45 L. 844«
21 Sup. Ct. 236, holding accounting by executrix in Supreme Court
of District of Columbia is reviewable by appeal.

Syl. 2 (XII, 858). District of Columbia court's power in probate.

Approved in Chew v. Tome, 93 Md. 256, 48 Atl. 705, holding pro-
bate of will in District of Columbia by court having no authority
made defect in title of realty devised in such will.

162 U. S. 490-498, 40 L. 1048, OREGON, ETC., RY. v. SKOTTOWB.
Syl. 2 (XII, 859). Plaintiffs pleadings must show Federal corpo-
ration.

Approved in Spencer v. Duplan Silk Co., 191 U. S. 528, 24 Sop.
Ct. 175. holding Circuit Court decision not deprived of finality by
existence of constitutional question where plaintilf*s pleading^ do
not disclose such question; Arl^ansas v. Kansas & T. Coal Ca,
183 U. S. 190, 46 L. 147, 22 Sup. Ct. 49, holding Circuit Court can-
not create Jurisdiction by tailing Judicial notice that importing
of armed men means bringing them through adjoining territory;
Mountain View M. M. Co. v. McFadden, 180 U. S. 535, 45 L. 650,
21 Sup. Ct. 489, holding Jurisdiction cannot be supplied by judi-
cial IvUGwledge of facts not relied on; Houston & Texas Cent. R,
R. Co. V. Texas, 177 U. S. 78, 44 L. C80, 20 Sup. Ct 549. holding
defendant cannot remove suit where plaintiCTs statement shows
no Federal question, although defendant's defense involves coo-
stitutional question; Florida Cent, etc., R. R. v. Bell. 176 U.
S. 328, 330, 44 L. 490, 20 Sup. Ct 402, holding plaintifl! cannot cre-
ate Jurisdiction by anticipating defendant's defense; South Car&-
lina V. Virginia-Carolina, etc., Co., 117 Fed. 729, holding suit b>
StAte to sul)ject foreipn corporation to penalty under State stat-
•lie, with no mention of Federal laws, is not removable.

Notes on U. S. Reports. 162 D. S. 499-546

DiPtlugulshed Ib Scott y. Cboctaw, O.. etc.. R. R. Co., 112 Fed,
181, 182, holding Federal character of corporation need not appear
in complaint but may be added In petition for removal; Winters
T. Dmke. 102 Fed. 54€, 549. holdinK plaintiff cannot defeat re-
ujoral of suit against receiyer by conceal in g fact of latter 's Fed-
eral appointment

m U. S, 491>-511, 40 U 1051, ALBBRTY r, UNITED STATES.
Syl 1 (XII, 860). Treaty ISGG did not make freedmen Indians,
OlatliiinilBhed In United States v. Miller, 105 Fed. &46, holding
iDdian furnlsbiog Intoxicating liquors to other Indians is within
Hev. Stat, ft 2139» amended 29 Stat 506, against furnishing Indians
^tli liquor.
Syl. 5 (XII, 860), Federal courts prosecuting Indian murderer.
ApproTed in State t. Columbia George. 89 Or. 134, 65 Pac. 606,
Ndlng, under act Congress March 3» 18S5, an allottee of Umatilla
'**«'Tation committing murder on reservation Is triable only in
Ped^ml courts.
Syl T fXII. HGOK Flight Is no confession of guilt
Approved in France v. State. 68 Ark. 533, 60 S. W, 238, holding
*^dence that defendant left the State to avoid Imprisonment be-
«a« ©f inability to furnish bond, he having returned later, will
^ «loD^ sustain conviction.

Ifi*- r. S. 512-528, 40 L. 1057. CENTRAL PAC, R. R. v. NEVADA.
^Tl 1 ptll, 800). State taxes unpatented surveyed railroad lands.
OistlDgulshed lo Page v. Pierce Co.. 25 Wash. 9. 11, 13. 64 Pac.
^^l^^, 804, holding Puyallup Indian reservation lands sold, under
*^ ^^l 612. under deed to be effective only od full payment are
■••* tu&ble AgulDst vendee.
^m ^^3(Xn, 861). State taxing mineral land in railway grant
^^Approved In Dry Dock Co. v. Baltimore. 97 Md, 99. 54 Atl. 624,
^HHtfblf property right in land conveyed on condition of cout^truc-
^■n aiMl maintenance of dry dock, otherwise to revert to govern-
fiJOit. Ig taxable by city and state.

JCr.S, B20-546, 40 L. 1062. GIKAUD INS., ETC., CO. v. COOPER
8sl Z (XII. 861). Master *6 findings presumed correct
Approved In Taintor v. Frankiln Nat, Bank» 107 Fed. 827, hold
ing A ina»ter'8 conclusions will not be disturbed unless the court
ii convinced that error was committed.
Sjl. 7 (XII, 861), Completion of hotel made preferred claim.
Di»tingut6hed in Illinois Trust, etc.. Bank v, Doud, 105 Fed
14Tt holding loan to enable company to make permanent ndilltloi*
lU rlectrlc plant entitles lender to no preference over prioi

102 V. S. 547-592 Notes on U. S. Reports. Oi

162 U. S. 5i7-565, 40 L. 1060, HARWOOD v. WENTWORTH.
Syl. 3 (XII, 861). Act classifying counties by assessed Taloatio
Approved in Ladd v. Holmes, 40 Or. 175, 66 Pac. 717, 91 Am (
Rep. 404, upholding Sess. Laws 1901, p. 317, providing method
holding primary elections in cities of certain class; Clark, etc
Finley, 93 Tex. 180, 54 S. W. 346, holding Laws 1897, p. 5. Um
ing fees of certain officers in counties ol less than 3,000 voters
not a special law.

162 U. S. 565-592. 40 L. 1075, GIBSON v. MISSISSIPPL
Syl. 3 (XII, 862). Remedy in higher court where Federal rig

denied.

Approved In Rogers v. Alabama, 192 U. S. 231, 24 Sup. Ct 2S
holding striking from files motion to quash indictment because
alleged that State constitutional provision actuated jury comm
sioners denies defendant's constitutional rights; Carter v. Texa
177 U. S. 447, 44 L. 841, 20 Sup. Ct. 689, holding exclusion
negroes from grand jury solely on ground of color deprives nefl
indicted by such Jury of constitutional rights; Bullock v. Stai
65 N. J. L. 563, 86 Am. St Rep. 672, 47 AU. 63, holding FourteeH
Amendment was designed as protection against State action oez
State V. People, 131 N. C. 791, 794. 42 S. B. 816. 817. holding
elusion of negroes from grand Jury on sole ground of colo^
unlawful discrimination; Whitney v. State, 42 Tex, Cr. 285..
S. W. 890, holding negro indicted by grand Jury from which qua
fied negroes were purposely excluded is deprived of equal pro^
tion of law; Smith v. State, 42 Tex. Cr. 221, 58 S. W. 97, hol^
evidence showing continued intentional exclusion of qualified.
groes from grand Juries shows denial of equal protection.

Distiuj2:uislie(l In New Yorli v. Bennett, 113 Fed. 520, uphol^c
N. Y. Laws 1895, chap. 570, exempting from criminal punishKX
those recording wagers without transferring memorandum th^i
if done on designated race courses; Carter v. State, 39 Tex. Cr.
357, 48 S. W. 510, 511, holding Insufficient motion to quash lEa<3
meut for exclusion of negroes from grand Jury supported only
defendant's affidavit and offer to produce witnesses.

Syl. 4 (XII, 802). Exclusion of negroes no ground for remov^J

Approved in State v. Brownfield, 00 S. C. 512, 39 S. E. 3. c^

ruling exception to refusal to quash indictment because of ^

elusion of negroes from grand Jury where no discrimination ^

shown.

Syl. 0 (XII, 862). Law requiring good character in grand Joro^

Approved in Mallett v. North Carolina, 181 U. S. 596. 45 L. 101-

21 Sup. Ct. 733, upholding N. C. act March 6, 1899, allowing SUt

in criminal case to appeal from grant of new trial.

Notes OD XJ. S. Reports. 162 U. S. 592-613

SjL 8 (XII, 862). Mere error In administering State law non-
tvfewable.
^pprored Id Allen v. Allen, 97 Fed, 530, holding equity will not
ipeacb judgment as violating Rev, Stiit.. 1977, wbere State court
BA^ted appellant as It would any litigant under the law.
iXll, 862). Miscellaneous,

Cited lo State v. Warner, 1G5 Mo. 410, <^ S. W. 588, holding
' ^^.^ulal of negro defendant's request to be brought Into court during
IxupanellDg of special grand Jurj is error.

■ ^^2U. S. 51)2-602, 40 L. 1082, SMITH v, MISSISSIPPI*
B Sjl, 1 (XII, 862). Removal iM^tition not evidence without consent

V Approved in Castleberry v. State, 69 Ark. 349, 63 S, W. 671.

H ^ aiding court below erred in overruling motion to quash Indict-
**:ieiit without bearing evidence offered by defendant in support

IBjl. 2 (Xn, 862). Motion to quash — Outside evidence necessary.
Approved In Brownfleld v. South Carolina. 189 U. S. 428, 23 Sup.
^^1514. 47 U 883. holding alle^utioas of motion to quash Indlct-
**^ent where conti'o verted and not sustained by evidence beyond
*i«ffadant'8 affidavit will not be taken as true, affirming State v.
^^yowofield, GO S. C. 514, 39 S. E. 4; Tarrance v. Florida, 188 U. S.
^21. 23 Sup. Ct 403. 47 L. 574, holding motion to quash ludictmeut
^•Of discrimination against blacks properly overruled where no
^s^^iiience beyond defendant's aflldavit was oiTered; Carter v. Texas,
I-T; a S, 447. 44 L. 841, 20 Sup, Ct. 680, holding omission in bill
^^T esceiitJons of names of witnesses offered to substantiate motion
*^> awfish for exclusion of negroes where court refused to hear evi-
<*«»w is not fatal; Smith v. State, 42 Tex. Cr. 221, 58 S. W. 98,
^cilUing evidence showing residentn^ of numerous qualified negroes,
^lii?ir continued exclusion from jury duty on account of color and
*^^c«jg r,ice hatred, sustains motion to quash.

Dl*UngUJshed In Carter v. State, 39 Tei. Cr. 357, 48 S. W. 511,
**oldlng insufficient motion to quash Indictment for discrimination
'^i?aUst blacks supported only by defendant's affidavit without
^Aiimliig witnesses.

(Xll, 862). Miscellaneous.

Cited in State v. Warner, 165 Mo. 416, 65 S. W. 588. holding error

^ eidude defendant from court during Impaneling of Bpeclal

6*iid jury; Whitney v. State. 42 Tex. Cr. 285, 59 S. W. 896. hold-

^fuegro Indicted by grand jury from which qualified negroes were

Purposely excluded la deprived of equal protecilon of law.

162 0. S, (302-613. Not cited.

1G2 U. S. 613-650 Notes on U. S. R^rts.

162 U. S. 613-624. 40 L. 1090, WILSON T. UNITED 8TATBI

SyL 1 (XII, 862). Possession of froits of crime.

Approved in Gonsidine t. United States, 112 Fed. 349, li
unexplained possesion of counterfeit postal money order and
for stamping same is evidence of defendant's guilt.

SyL 3 (XII, 863). False testimony as evidence of guilt.

Approved in Commonwealth v. Devaney, 182 Mass. 36, 64
403, holding charge that if jury found defendant had intent
misstated material facts they might consider same as adm
of guilt was not erroneous.

SyL 4 (XII, 863). Deceased's photograph admissible to
identity.

See 75 Am. St Rep. 478, note.

Syl. 5 (XII, 863). Confession must be voluntary, wltbont 1
ment.

Approved in Iowa v. Storms, 113 Iowa, 391, 85 N. W. 612
ing admissible confession made to an officer where defendai
same was not made because of any inducements; Strong v.
63 Nebr. 442. 88 N. W. 773, holding admissible confession
after deputy warden told prisoner of advantages of obeying
rules but nothing of benefits from pleading guilty.

Syl. S (XII, 863). Court leaving confession to Jury.

Distinguished in State v. Young, 67 N. J. L. 230, 51 At
holding question is open whether after trial court on prelii
examination admitted statement of accused, it might be re
to submit the question to Jury.

1G2 U. S. 625-650, 40 L. 1097, CRAIN v. UNITED STATES.

Syl. 1 (XII, 803). Court may refer to previous court.

Approved in United States v. McKinley, 127 Fed. 168, reaffl
rule.

Syl. 2 (XII, 863). ** Executed and caused to be executed
duplicity.

Approved in Griffin v. State, 109 Tenn. 27, 70 S. W. 63, «
ing indictment for taking female for purposes of ** concubina^
prostitution ** under statute against taking for such purpo
the disjunctive.

JSyl. 0 (XII. 864). Record must show due process.

ApprovtHl in United States v. McKnight, 112 Fed. 083. h
nrraijinmont aud plea not uecessary on new trial whore
8how8 a prior arraignment and plea.

(Xll, SOk^>. Miscellaneous.

Cited in McKnight v. United States, 97 Fed. 216. holding
IiuHoinuMit charges several intents, any one of which w
sufficient, proof of any one supports indictment.

b

Notes on U. S. Reports.

102 U. S. 650^713

I

■^«U. a 650-663, 40 L. 1105, WESTERN UNION TEL. CO. v,

JAMES.

8yl 1 (XII, 864)» Law requiring prompt delivery valid.

Approved In Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 517, 44

— ^8ti»» 20 Sup. Ct 723. lioldlng unconstitutional IIL act Marclf 21.

-^BTi I 26, requiring al] regular i>assen^er trains to stop at county

ta; Western Union Tel, Co, v. Carter, 150 Iml. 5;^2, 60 N. E.

holding Indiana statute Ircpisiuff penalty upon company for

-^)ndellTery of meeaage does not apply to me«sajje st»?it outride

^ State; Marshall \% Teleg-raph C^., "9 Miss. 100, 161, W2, 27 So.

u 89 Am. St Rep. 580, 587. holding section 4326 of Codt\ 1502. Im-

isiug penalty for failure to transmit messnge €orr€>ctly, i1of*H not

ly to delay In transmission; Purdy v. Erie It U.. 162 N, Y. 51,

N. E. 510, upholding Laws 18J>5, chap. 1027, re«iutrmg ralinuiK^

ting witliin State to issue mileage- books; Weetern Union Tel.

r. Reynolds, 100 Va. 467. 93 Am. St. Rep. 975, 41 S. E. 858, up-

Idlng Code, | 1291, Imposing penalty for failure to deliver tele-

iiD promptly.

^Distinguished in Central Stockyards Co. v. Louisville & N. R. R.

, 118 Fed, 120, holding State cannot compel couiiniuy to transfer

to connecting line where received from another State.

SyL 3 (Xil. 864). Legislation in aid of commerce valid.

Approved In Erie R. R. v. Purdy. ISo U. S. 150. 40 L. 849. 22 Sup.

fc:, 6W], holding no Federal question presented by claim that mile-

C^'^'book statute Infringes on commerce power where State court

^2ield same as confined to State; Ex parte Young, 36 Or. 250.

^ Am. St Rep. 774, 59 Pac. 70S, ui^holding Hills' Anno. Laws.

ift32, forbidding any person to persuade seamen to desert vessel

* thin State waters; Gray r. Telegraph Co., 108 Tenn. 50, 01 Am.

C^ Rep. 712, 64 S. W. 1060, holding, under Shanaon's Code, I 1S38,

xnipany is liable to suit for mental anguish caused by failure to

^^Utct message.

^^=:Z U. 8. eei-687. 40 L. 1109, COFFIK v. UNITED STATES.
Syl g (XII, 865), No false entry where transaction real.
-approved In United States v, Youug, 128 Fed. 115, holding entcr-
^f?: worthless check as cash Item will not sustain indictment
>^iUait cashier for making " false entry.'*

^^*S a 8. 687--T15. 40 L. 1118. PUTNAM r. UNITED STATES,
^yl^ I (XII, 865). Immaterial variance between iii6lrtment and

Approved In RIeger v. United Stites, 167 Fed. 922, holding aver
'^t that note was made and drawn by person giving his full
'i^ supported by proof that such person signed note regard*
^ if full name.

1

1G3 U. S. 1-48 Notes on U. S. Reports. 702

Syl. 8 (XII, 866). Separate sentence on two counts.

Approved in Garter v. McClaughry, 183 U. S. 385, 46 L. 247, 22
Sup. Ct 189, sustaining sentence of court-martial imposing fine an<)
imprisonment on conviction of two separate offenses, each punish-
able by fine or imprisonment; Hechter v. United States, 94 Md. 442,
50 Atl. 1043, sustaining verdict of guilty of one offense charged
in indictment without mentioning other.

(XII, 865). Miscellaneous.

Cited in Breese v. United States, 106 Fed. 683, holding bank
teller testifying as to checks may refresh his memory by examin-
ing entries made in part by others.

CLXIII UNITED STATES.

163 U. S. 1-30, 41 L. 49, WESTERN UNION TEL. CO. ▼. TAG-
GART.

Syl. 1 (XII, 867). State taxing property engaged in interstate
commerce.

Approved in Atlantic & Pacific Tel. Co. v. Philadelphia, 190
U. S. 1G3, 23 Sup. Ct. 818, 47 L. 999, 1000, holding interstate tele-
graph company liable to reasonable license tax for local super-
vision over poles and wires; State v. Western Union Tel. Co., 165
Mo. 519, 525, G5 S. W. 778, 780, holding telegraph company of
another State accepting right to build on government roads given
by act 1860 is subject to State taxation.

Syl. 2 (XII, 867). Tax proportional to mileage is valid.

Approved in Wisconsin & M. Ky. Co. v. Powers, 191 U. S. 388,
24 Sup. Ct. 109, upholding Mich, act 1893, May 27, § 3, levying tax
on property and business of railroad situated partially within
State.

Syl. 3 (XII. 807). Cost of replacement not proper test

Approved in Citizens', etc.. U. R. v. Common Council, 125 Mich.
092, holding in determining cash value of street railroad for assess-
ment the tangible property is unit, enhanced by value of franchise
privileges.

(XII, 867). Miscellaneous.

Cited in Coulter v. Weir. 127 Fed. 009, 910, holding investment of
telegraph company's surplus in bonds held outside State and not
used in business cannot be taxed in State.

1G3 U. S. 31-48. Not cited.

m

Notes on U. S. Reports,

lt53 U. S. 49-92

163 a R 49-56. 41 U 66. KIRK y. UNITED STATES.
SyL 1 (XII. S6S). No royalties recoverable on Invalid patent
Approved in Hamilton v. Park, etc., Co.. 125 Micli. 76. S3 N, W.
lOlD. holding plaintiff cannot recover royalties under contract pur-
porting to Bell exclusive right to invention wtiere application was
wj<eclcd.

IfiS U, S. 56^-63, 41 L. 69. WIGGAN v. CONOLLY.

SyL 2 (XII, 868). Indian treaty invalidating guardian's deed.

Dtstiuguished In Dunbar v. Green, 66 Kan, 561, 72 Pac. 244.
tioldlng Sbawnee Indian cannot attack deed to land sold by his
PJartlao while he was minor, after delaylag over twenty-one
yem ifter majority was readied.

1«3U. S, 63-74, 41 L. 72. DIBBLE v. BELLINGHAM BAY LAND

CO.

Syl. 3 {XII. 869). State Judge's certificate cannot control.

Approved In Henkei v. Cincinnati, 177 U. S. 171, 44 L, 721, 20
% Ct. 573, holding certificate of State supreme justice as to
f'ederai question submitted and decided cannot confer Federal
JtirlBdiclioa.

1«3 U 8. 75-61, 41 L. 76. CORNELL r. GREEN.

^yL 1 (XII. 809). Appeal to Supreme Court requires constitu-
^oal question.

A[ipro7€d in Richards v. Michigan Cent. R. R. Co.. 1S6 U. S,
^•ft. 4SL. 1259. 22 Sup. Ct. 942. reaffirmiug rule; Huguley Mfg. Co.
»• Goleton Cotton MiIL«f. 184 U. S. 2ir>, 46 L. 548, 22 Sup. Ct. 454,
ll<»l<IInff no right of appeal to Supreme Court from decree of Circuit
Otm of Appeals made final by act of 18D1 as resting on diverse
ritizeniliip; Loeb v. Trustees of Columbia Township. 179 U. S.
ilJO. 45 L, 286. 21 Sup. Ct 177. holding under section 5. act 1S91,
^npreme Court's jurisdiction to review Circuit Court decision on
constitutional grounds extends to cases where either party raises
qiicsiUon; Cincinnati, Hamilton, etc., Uy. Co. v. Thiebaud, 177 U. S.
^AK 44 L. 913. 20 Sup, Ct. 824. holding point of unconstituUonalUy
of State statule raised only in assignment of errors will not sum-
IHJO writ of error.

m O. S* 81-112. 41 L. 78, LOWE v. KANSAS.

Sjrl- 1 (XII. 87Q), Due process accords with English and Ameri-
■Ji ttBage.

Jlpproved in Hawkins v. Roberts, 122 Alfl. 148, 27 So. 332. up
lOldlng act February 18, 1S1M>, abolishing court of couuty emu-
llooers: Sutton v. Hancock, 118 Ga. 4-13, 45 S. E. 507. uphold*
1^ Civ, Code, $ ;i2S3. providing that proliate in romnum form siiall
teeoiti« conclusive upon every one except minors within sevcu

n

H

103 U. S. 9a-99 Notes on U. S. Reports.

years; Andms y. Insurance Assn., 168 Mo. 163, 67 S. W. 585, np-
holding practice In State courts of allowing insurer to prove walrer
of terms of policy without alleging waiver in petition.

Syl. 2 (XII, 870). Law permitting Jury to punish.

Approved in Liquidating Commissioners, etc. v.. Tax Collector
et al., 106 La. 135, 30 So. 308, upholding section 56, act No. 170,
1898, allowing attorneys representing tax collector 10 per cent,
commission on amount collected; State v. Schlitz Brew. Co., 101
Tenn. 732, 78 Am. St Rep. 949, 59 S. W. 1036, upholding Acts 1897.
chap. 94, prohibiting and punishing transactions calculated to lessen
competition in importation of articles or manufacture of domestic
articles.

163 U. S. 93-99, 41 L. 82, NORTHERN PAC. R. R. v. ENGLAND.

Syl. 2 (XII, 870). Contributory negligence In Jumping from ^^
train for Jury.

Approved in Swift v. Langbein, 127 Fed. 115, holding prdrntiinnM ^
having no luiowledge of hole in street is not necessarily guilty o^^ .^
contributory negligence; Florida Cent & P. R. R. Co. ▼. Sullivan «
120 Fed. 803, holding court properly submitted question of coo
tributory negligence of passenger in riding In coach provided fa
negroes against rules of company; Alaska United Gold Mln. Ca *^
Keating, 110 Fed. 567, holding question whether standing on <
bar above bucliet as was customary in case of lowering men
mining shaft was negligence was for Jury; Erie R. R. Co. v. Mo
113 Fed. 273, holding question of brdkeman's contributory
gence in running in front of engine at engineer's order is for Ja
Gordon v. Seaboard, etc., Ry., 132 N. C. 570, 44 S. B. 26, hold
fact that court in charge on question of negligence required fl.
ing of facts pertaining to question of contributory negligences^ Im
not prejudicial; Coley v. North Carolina R. R., 129 N. C. 414. 40
S. E. IDS. holding question oC contributory negligence in justing
defective draiu-piiH? to climb upon engine is for Jury; Thomasi r.
Raleigh, etc., R. R.. 129 N. C. 396, 40 S. E. 202, holding wsXUm
hand injured, while unloading hand car from flat car at order d
foreiiinn. where place was somewhat dangerous, is not negU^eot
in law; The Van Duzen Gas, etc.. Co. v. Schelies, 61 Ohio 8t SVK
55 N. E. 1001, holding question of contributory negligence in obe/-
ing foreman's order to work in proximity to dangerous saw wWch
caught plaintiff was properly submitted; Galveston, etc. By. ^^
PufMUo. 30 Tex. Civ. 249, TO S. W. 363, holding whether sectloo
baud iiijiiri»il while trying to board moving car as ordered wti
contributorily negligent is for jur>.

(XII, 870). Miscellaneous.

Citetl in Erie R. R. Co. v. Kane, 118 Fed. 233, 235, holding ttt
man Is guilty of contributory negligence in standing on front «
moving engine cleaning number below headlight

705

Notes on U. S. Reports. 163 U, S. 100-132

I

i€3 U. S. 100, 101. Not cited.

X«3 D. S. 101^100, 41 L. 87, MURRAY t LOUISIANA,
(XII, 871). Miscellaneous.

Cited in State t. Kline, 109 La. 621, 33 So, 625, boldlng written
^^istliiionj- of witnesses permanently absent from State taken wlien
^^xnaed was present is receivable on trial of tlie case,

■- «3 IT. S. 109-11& Not cited.

^^33 U. S. llS-132, 41 L. 93, BARNITZ v. BEVERLY,
Sjl 1 fXII, 871), Changes In laws affecting contract
Approred in Oshkosh Water-Works v. Osbkosh, 187 U. S. 439,
Sup. Ct, 234, 47 L. 251 » uphold in g city cliarter amendment pro-
^Ing that no action shall be maintained against city until claim
eseDted and disallowed by council, affirming 109 Wis. 212, 221»
i 85 N. W. 378, 381, 382; Evans v. Nellis, 101 Fed. 926, holding
icoQatltutional Kan. act January 11, 1899, repealing prior stat-
^ ««« for securing dues from corporations by additional lialiility of
^DCkholders; Craig v. Herzman, 9 N. Dak. 143, 81 N. W. 289, up-
iding sectioD 4795* Rev. Codes, authorizing court to order sale of
Ity and division of proceeds between mortgagee and mechanic's
^^feaiholder. See 95 Am. St Rep. 8S7» note.

JJisHngTilsbed in Jack v. Cold, 114 Iowa, 355, 86 N. W. 37G, hold-

^^^-^ mere change in mode of redeeming made by Code 1897. § 405(j,

not affect right to redL^em; State Savings Bank v. Matthews,

Mich. 58, 81 N. W- 918, holding Pub. Acts 1899. No. 200, allow*

decree of foreclosure to direct sale after six months Instead of

**^ year as formerly; and allowing six months after sale for re-

^^«iptlon, merely changes remedy,

Syl. 2 (XII, 871). Acts enlarging redemption not retrospective.
JlpproTed In Padgett v. Post, 106 Fed. 602, holding unconstltu-
^otial, at to bona Ude holders. South Car oil na statute prohibiting
^^y of tax to pay township bonds; Malone v, Roy, 134 Cal. 345,
^ Ptc, 313, holding Code Civ, Proc, | 702. extending period of
^^^«mption from six to twelve months, does not apply to sale under
**ort^age executed before Its pa^ssage; Tuohy v. Moore, 133 Cal. 518,
^ Pac. 1108, holding purchaser at foreclosure sale under mortgage
'►d prior to amendment of section 702, Code Civ. Proc, ex-
ij time for redemption, entitled to deed in six montlis; Haynes
^' I'Mway, 133 Cal. 403, 404, 05 Pac. 894, holding right to redeem
*«W|nige Is governed by statute In force when mortgage executed
^ not by later statute extending time; Woodworth v. Bowles, 61
Kul 586. eo Pac, 336, holding Laws 1S9T, chap. 47, & 55, em-
powering receiver to enforce stockholder's liability and suspending
oifditoc'e right to do eo, Is Inapplicable to those who were creditors
pnriouAlyi Hollister v. Donaiiue, 11 S. Dak, 500, 501, 78 N. W.
Vol, 111— 43

i&Ai

163 U. S. 132-159 Notes on U. S. Reports.

960, holding onconstitntional, as applied to {htIot mortgages. Laws
1S93, chap. 140, extending redemption period one year on payment
of taxes and certain interest; Canadian, etc., Trust Co. t. Blake,
24 Wash. 103, 63 Pac. 1100, holding unconstitutional, as applied to
contracts previously executed. Laws 1899, chap. 53, f 15, allowing
Judgment debtor to redeem homestead without accounting for
occupation.

(Xn, 871). MisceUaneous.

Cited in Hooker y. Burr, 137 CaL 670, 70 Pac TBI, holding pay-
ment of 1 per cent, per month, according to amendment of 1887 to
Code Civ. Proc., I 702, is sufficient in redeeming mortgage executed
before such amendment

163 U. S. 132-140, 41 L. 101, UNITED STATES t. RIDER.

SyL 1 (XII, 872). Certificate of division not allowable after 1891.

Approved in Rider v. United States, 178 U. 8. 25S, 44 L. 1060,
Sup. Ct 840. reciting history of litigation.

SyL 2 (XII, 872). Questions of Circuit Court's Jurladlction cer
tified.

Approved in Mexican Cent. Ry. Ca v. Ecknuuu 187 U. 8. 432, :
Sup. Ct. 213, 47 L. 247, holding, under act 1891, guardian and
ward is pi^-ty plaintiff for Federal Jurisdiction based on cItlzenshH
where guardian sues In own name; Motes t. United States, IS"
U. S. 406. 44 L. 1153. 20 Sup. Ct. 996.*liolding criminal case mi^^^^j
be taken directly from Circuit Court to Supreme Court under a^i^iK. -^^
IS91 where involving construction of Constitution.

163 U. S. 140-142, 41 L. 104, UARRISON v. UNITED STATES.
SyL 1 vXII. S73i. Ten peremptory chaHenges for robber of ;

carrier.

Distinguished in Cons:d:ne v. United States. 112 Fed. 545, bold :
defendant prosev^uictJ uavlcr Rev. S:at.. f 5478. for breaking
post-officei. is entitled to but :!-rve peremptory cballengea.

:iv5 U. S. 142-LM. 41 L. K»7. ILLINOIS CENT. R. R. r. ILLIXC^I^
SyL 4 *XIL STS*. Re^r.:r:nc s:oj* at county seat unreasonable-
Approvieti in Cleveland. e:c.. Ry. Co. v. Illinois, 177 U. S. 518. SMil

4 4 L. STi\ 21^ Sjix Ct. r24. iioSdinc invalid IlL act Man^h 21, XST-M.

^ 2d. re^ji::r:i:i: a:: rc^.:'.Ar 7<Jt55s:::cer trains :o stop at county seats-
Dis:ir.?;r.s>.tV. in C^u,v^^v A. R. R. C.x v. Cny of Carlinrille.

«\«i^ l.L ;^;^v iV.^ Anv S:. Ki,. 2>:<. tVi N. E. 734. upholding diX

V T\::r.,*r.^v i::v..:,r.j: s;"^*hV. v' i.. p^kssiec^^r trains witliin dty UaiM0

:o u-^a i:::;c^ a;:; ijour

1^ r, s. l^^-:^ n\>: v::^\1

TOT

Notes on C. S. Reporta 163 U. S. 160-204

I

U- S. leO^ltiS, 41 L. 113. PEREGO v. DODGE,

Syh 2 (XII, 874). ComplaiDant on appeal caoDot urge legal
1^^ tnedy.

Approyed in United States v. Soutbern Pac. IL R. Co., 117 Fed.
»^3, holding objection of legal remedy must be made before defend-
^L,K2t8 hare entered upOD defense on merits in equity suit; Green v.
T*T;inier, 9S Fed. 760, holding complalnaut brlngiag suit In equity to
C2m:i.iet title cannot defeat Federal conrfs jurisdiction by plea of ade-
t^M^£kte remedy at law.

SyL 3 (XII, 874). Answer treated as cross-bill.
^.pproved in Dunham v. Travis. 25 Utab, 70, GO Pac. 469, boldlng
swer. In suit on written Instrument, denying complaint and
l^i^glng mutual mistake and praying reformation, is counterclaim.
^yl tJ (Xllt 874), Rev. Stat., § 2326, does not require jury trial,
—approved in Tonopab Traction Min. Co. v. Douglass, 123 Fed-
upboldiDg, under Rev. Stat, S 232rn complaint following
"VRda statute, In nature of bill to quiet title to land alleged tQ be
**t of mining claim in plaiutiff's possession; Dtirgan v. Redding,
^^=^ Fed. &16, 917, sustaining as a bill in equity, under section 232<J.
j^^^*^^plaint framed under Cal. Code Civ. Pror., g 307. alleging land to
ailaeral land occupied by plain tiff uader mining laws; Young
/^ (ioldsteen, D7 Fed. 309. holding proceedings under Rev. Stat,,

^ ^^i^^X!!!, may be Ih equity when plaiutllT Ib lo possession and at law
^^cD defendant is in.
^ -iXU. 874). Miscellaneous.
.__ ^^Ited In Shoshone Mining Co. v. Rutter. 177 U. S. 512, 44 L. 867.
Sup, Ct 728> holding suit in support of adverse mining cialm.
^*^^Jer Rev. Stat, §f 2325, 2326, does not involve Federal question
"*^^^iai construction of mining laws necessary; KIrkmau v. Bird,
^^ CItah. 113, 61 Pac. 340. upholding Sess. Laws 1S99, p. 00, exempt-
'^^& timings of married men or beads of families for services ren-
^^**«d within sixty days before execution levied.

^*a U, S. 160-204. 41 L, 118, SINGER MFG. CO. v. JUNE MFG.
CO.
^3*1 1 (XII, 874), Public using name after patent expires.
\ (ir-mvcd In IIolJcapple*B Composition's Co. v. Rabtjen's American

Vitlon Co., 183 U, S. 12, 40 L. 55, 22 Sup. Ct 1€, boldlng name
-^wiigen's Composition,** applied to lU't'p.HradouB prepared by
^^^Htjea, be<fomea common proiierty after expiration of patent;
^ ^^rUck*8 Food Co. v. Elgin Milkiue Co., 120 Fed. 267, holding where
vtuiufacturer of " Malte<l Miik " sold same as under a patent nl-
H ^^Zh not patented, name berame genenil and rlgbt to exclusive
m ^ toded with patent; State v. Thlerauf, 167 Mo. 441, 67 S. W,
I 36. holding name Castoria and Pitcher's formula became public

^

163 U. S. 169-204 Notes on U. S. Reports.

property on expiration of patent and imitation of either is
criminal. See 85 Am. St. Rep. 116, note.

Distinguished In Rathjen's American Comp. Co. y. Holzap;
Comp. Co., 101 Fed. 260, 261, holding expiration of English pa
for Rahtjen's composition does not affect right of makers to
tection in America.

Syl. 2 (XII, 875). Public may copy form of machine.

Approved in Flagg Mfg. Co. y. Holway, 178 Mass. 91, 50 N
667, holding in absence of patent for zither, imitation in m
facture cannot be enjoined.

Syl. 5 (XII, 875). Public may use abandoned surname.

Approved in Saxlehner v. Eisner & Mendelson Co., 179 U. S
45 L. 73, 21 Sup. Ct 12, holding no abandonment of trades
shown by failure to prevent use by others of term Hunyadi w
owner made all possible efforts.

SyL 7 (XII, 875). One using generic name must indicate m
facturer.

Approved in Elgin Nat. Watch Co. y. Illinois Watch Case
179 U. S. 674, 45 L. 381, 21 Sup. Ct 274, holding geograpl
name Elgin cannot be registered as lawful trademark; Fabc
Faber, 124 Fed. 612, enjoining defendant Faber from using d
on fountain pens without adding initial E. or name Eberliar
distinguish pens from those of A. W. Faber; Wyckoff, Sean
etc., Benedict v. Howe Scale Co., 122 Fed. 351, holding porch
of Remington typewriter business and right to use name may
Join corporation composed partially of Remingtons from u
name on typewriters; Royal Baking Powder Co. v. Royal, 122 :
34G, enjoining defendant Royal from using his name on outsid
cans to confuse his product with ** Royal Baking Powder;" CI
ering v. Chickering, 120 Fed. 73, affirming order granting prel
nary injunction against defendant Chickering selling pianos mai
" Chickering Bros." and advertising to represent ** Chickerini
Sons " pianos; Computing Scale Co. y. Standard, etc., Co., 118 I
967, refusing to enjoin use of word " standard ". or " computi
as applied to scales where term possessed no secondary mea
and no evidence of intent to deceive was shown; Drape
Skerrett, 116 Fed. 208. holding plaintiff may enjoin use by def
ant of term French Tissue although same not subject of ti
name; Liebig, etc., Co. v. Walker, 115 Fed. 825, holding plai
entitled to enjoin defendant from using ** Liebig's Fluid Beef C
pany " or simulating complainant's name or label; B. B. Hill ^
Co. V. Sawyer-Boss Mfg. Co., 112 Fed. 145, holding defendi
cannot be restrained from imitating plaintiff's ** Centaur Dat
where former placed thereon their own name as manufacta
Halstead v. Houston, 111 Fed. 378, enjoining circulation of clrct
including portion of author's announcement of forthcoming "1

Notes on U- S. Reports* 1G3 U. S. 2(^228

^^ McKinley,'* Issued to mislead pul)llcr Singer Mfg. Co. v. Hippie,

J^Cfl Fed* 153» holding where manufacttirer has not abandaned ex-

<^ilIs(ve right to use name "Singer" as descriptive of machines*

defendant may be enjoined from applying name to dissimilar

JssachJnes; Williams v. Mitchell, lOG Fed. 171» holding where name

** CamjZD " has become known as tradename of article It cannot

t>^ used by another to deceive public; Fuller v. HtilT, 1(M Fed. 144.

<3^irectlng Injunction against use of *' Sanitarium Health Food Com-

"E^^^uj** as unfair competition against plaintiff ** Health Food Com-

X>«jiy;*' I.lebig'9 Extract of Meat Co. v. Llbby, McNeal & Llbby, 103

^K^^il^ 89. enjoining defendants from dressing their extract of beef

simulate Lleblg's Extract of Beef; National Starch Mfg. Co. v.

^Tiryea, 101 Fed. 119, holding defendant cannot be enjoined from

sin^ label of starch manufactured '* by Duryea and Company '*

"liere In other respects label did not deceive; Dodirrian v.

mcublan, iJS Fed, 879. 880, holding no relief can be granted against

of descriptive name ** Matzoon *' where defendant did all in

«Xia power to prevent confusion of products; Vlano v. Baccigalupo,

^^13 Mass. 162, B7 N. E. 642. holding use by coiiipetitor on same

^^Ti*et of name ** Boston Trade Peanut Roasting Company** in-

'^'^^itDses plaintifTs name, "Boston Peanut Huasting Company;"'

^^taor Co. V. Link, (52 N. J. Eq. 14S. 49 Atl. H2d, holding plaiutlfT,

^y^tmof actu rer of Castorla for thirty-live years, entitled to enjoin

iTeadant from scaling Caatoria so put up and lal>eled as to simu-

te plaintiff*s; dissenting opinion in Shaver v. Heller, etc, Co.,

^ Fed. 838» majority enjoining use by defendant of term "Ameri-

^*iii" lo connection with ball or wash blue. See notes, 85 Am, St.

^<^<^j». Si. im, 117.

btstinguished in Shaver v. Heller, etc, Co., 198 Fed. 826, en-
^^^lulng use by defendant of geographical term "American" in
* *^^ftnt*ction with ball or wash blue.
<X1I, 874). Miscellaneous.

Cited in Manhattan Life Ina. Co. v, Wright 126 Fed. 80, hold-
*^ ^^ff test of abandonment of rights under insurance policy U ex-
^^ttDee or nonexistence of intent to abandon.

^«3 U. g, 205-207. Not cited.

^^-SaU. S. 2U7-228, 41 L. 132, BACON v. TEXAS.

Syk 2 (Xll» 876). Statute or construction necessary for Impair-

Aiijiroved in Houston ^ Texas Cent R. U. Co. v, Texas, 177

^- ^. 77, 44 L. UR», '2iy Sup. Ct. 54^ holding citicstion whether Slate

'in"l«ion holding treasury warnuns were void, giving cftecL to

^f«ie ilatule, Impairs obligation of contract. Is Federal; lOloois

' *^ni U. U. V, Chicago, lin U. S. 050. 44 L, 62tJ, 20 Sup. Ct. 513.

'"'•hag question whetber an ordinance prohiltltiug encroachnienr

^i'Ofi city hartw>r impaks rallruntrs ctiarter rights may be Federui

1-

163 U. S. 228-244 Notes on U. S. Reports. 7

question; Mercantile Trust, etc., Co. v. Collins Park, etc., Co.,
Fed. 819, holding city ordinance granting street-railway franch
is law of State within meaning of contract clause.

Syl. 3 (XII 876). No Federal Jurisdiction where no contract,

Approved in Gates v. Parmly, 191 U. S. 558, 24 Sup. Ct 843,
affirming rule; Stearns v. Minnesota, 179 U. S. 233, 45 L. 170,
Sup. Ct. 77, holding Supreme Court determines for itself existei
or nonexistence of contract set up as impaired by State enactme

(XII, 876). Miscellaneous.

Cited in dissenting opinion in Freeport Water Co. v. Freeport, 1
U. S. 609, 45 L. 692, 21 Sup. Ct 502, majority holding 111. act Ap
10, 1872, empowering cities to contract for water supply at sv
rates as fixed by ordinance and for period of thirty years, i
thorizes no thirty-year rate contract.

163 U. S. 228-244, 41 L. 140, WONG WING v. UNITED STATi

Syl. 1 (XII, 877). Judicial trial necessary in punishing aliena

Approved in Downes v. Bidwell. 182 U. S. 283, 45 L. 1105, 21 Si
Ct. 785, holding inhabitants of insular possessions whether alie
or not are protected in their personal rights by the Constitutic
United States v. Lee Huen, 118 Fed. 455, holding if Congress mail
it a crime for alien to enter against law, and prescribes a punii
ment, the trial is Judicial.

Distinguished in Li Sing v. United States, 180 U. S. 495, 45
638, 21 Sup. Ct. 453, holding deportation of Chinese is not ponli
ment for crime nor banishment, hence no deprivation of rigl
guaranteed by the Constitution.

Syl. 2 (XII, 877). Executive department intrusted with Ident
cation and deportation.

Approved in The Japanese Immigrant Case, 189 U. S. 97, 23 S"
Ct. 013, 47 L. 724, upholding act March 3, 1891, providing
deportation of alien immigrants within one year after illegal ent:
United States v. Cue Lim, 176 U. S. 46i, 44 L. 547, 20 Sup. Ct. 4
holding, under act 1884, construed in light of Chinese treaty, tc
and children of Chinese merchant domiciled in this country n
enter without a certificate; In re Sing Tuck, 126 Fed. 388, -
holding Congress may commit question of citizenship of immigrr
in first instance to immigration ofliicers, and in absence of apB
make decision final.

Distinguished in United States v. Burke, 99 Fed. 899, holcf
right to enforce penalty against foreign ship for violation of
migration laws is judicial and not vested exclusively in fexect*
officers.

Syl. 3 (XII, 897). Temporary detention of aliens valid.

Approved in United States v. Hung Chang, 126 Fed. 404, bo
ing proceeding for exclusion of alleged Chinese person so far

TX±

Notes on U, S. Reports.

1G3 U. S. 244 28^3

I •

I ^^^xrying Issue as to whether accused Is Chleese person Is criminal;

1 M^TM re Sing Tuck» 12G Fed. 300. holding Conj^reBs mny eomrait qweB-

^^^^-ion of Im migrant's citizenship iu hi*st ln«^tanee to Imml^ation
^^BfO^cers and make decision tiiml if no appeal taken.
^H C^XII, 877). Miscellaueous*

Cited tn United States v, Lee Uiien, 118 Fed. 455. holding resi-

e^nts alien horn are entitled to ennal protetitlon of laws; Tsol

m T. United States, 110 Fed. 924, holding act May 5, 1802, au-

oriztDg deportation of Chinese laborers who did not procure cer-

oates of residence, Inapplicable to Chinese woman marrying

xxierlcan citizen.

:«^e;3 U* S. 244-258. Not cited.

3.^3 U. S. 25S-268, 41 K 151, UNITED STATES v. Laws.
SyL 2 {XII. 877). Chemist Is member of professloti.
-A^pproved In United States v. Morrison. 101> Fed. SW ImJdlu^:
'fcKTJth of averments of fact in criminal information for vioJatUi^^
l^^xvs for giving aid to entry of aliens under contract cannot be
<^^tertnined on deiiturrer without proof.

Oistlnguished in In re Ellis, 124 Fed. 043, holding alien expert
s&ocoDntants imported under contract are not members of learned
X^i^fesslon within exception of act Jlarch 3. 1903*
CXII. 877). Miscellaneous.

Cited in United States v. McElroy, 115 Fed. 253, holding declar-
ation for assisting importation of alien irader contract must show
^liatacter of labor In which immigrant is to serve.

^€3 a 8. 26^273, 41 U 155, EDWARDS v, BATES CO,

Syl, 1 (XII, 877). Matured coupon is separate cause of action.

Approved in Independent School Dist v. Rew, 111 Fed. 4, bold-

^*^ each coupon of bonds gives rise to principal and primary causse

^t action separate from promise to pay bonds; dissenting opinion

^tiPark V. Candler 114 Ga. 490. 40 S. E. 537, majnrity holding ap-

f ' I uion of proceeds of sale of public property to interoKt on public

^ t is within eonstltiitJoual requirement of appUeatlon to pay-

«*ient of public debt

^^D. a 273-2S0, 41 L. 15L HANFORD v. DAVIES.

8yl I (XII, 878). Judicial decisions not wiihin obligation clause.

ADproved In Weber v. Roagan. 188 U. S. 14, 23 Sup. Ct 264, 47

^-^ 365, holding decision that Tex. act 1897, for sale of puhUc school

*aiid, Testeil commissioner with dl5«cretioa to sell same, cannot Im-

S*^lf obligation of contract where act created no contract; Mobile

]^'niiigiM,rtatlon Co, v. Moldle. 187 U. S. 4&S, 23 Sup. Ct 174, 47 U

"^^ holding change of view liy highest State court, relative to

'iialt of private ownership on tide waters, raiBi*a no question under

Strict clause; Allen v. Allen, 07 Fed. 530, holding party defeated

1

163 U. S. 280-319 Notes on U. S. Reports. 712

in action in State court cannot maintain suit in equity to set
aside such Judgment on ground of impairing obligation of contract.

Syl. 4 (XII, 878). Jurisdictional averments should be positive.

Approved in Spencer v. Duplan Silk Co., 191 U. S. 528, 24 Sup. Ct
175, holding to confer Federal Jurisdiction of constitutional question
plaintiff's pleadings must show that case substantially involves
construction of laws or Constitution; Florida Cent., etc., R. R. ▼.
Bell, 176 U. S. 328, 44 L. 490, 20 Sup. Ct 402, holding mere asser-
tion of title to land derived by virtue of Federal patent presents
no Federal question.

163 U. S. 280-289, 41 L. 160, RIO GRANDE, ETC., RY. CO. T.
LEAKE.

Syl. 1 (XII, 878). Refusing instruction embodied in charge.

Approved in Peck v. Oregon, etc., -R. R., 25 Utah, 27, 69 Pac.
154, holding where charge embraces all material propositions they
need not be repeated in special request

Syl. 3 (XII, 878). Court may refuse instruction singling out cir-
cumstances.

Approved in Langbeln v. Swift 121 Fed. 419, holding proper
method for presentation of question of contributory negligence to
jury is by. charge as to principles of law rather than by enumerating
possible facts.

103 U. S. 289-299, 41 L. 163, KNIGHTS OF PYTHIAS v. KAL-
INSKI.

Syl. 2 (XII, 879). Receipt of assessments waives forfeiture.

Approved In Supreme Lodge, etc. v. Wellenvoss, 119 Fed. 675,
holding beneficiary cannot be defeated by action of lodge suspend-
ing membership of insured six years after knowledge of acts al-
leged as cause of suspension; Baltimore Life Ins. Co. v. Howard,
05 Md. 258, 52 All. 400, holding statement of inspector sent out
to collect delinquent premiums that Insured's policy was all right
waives forfeiture.

(XII, 870). Miscellaneous.

Cited in Morton v. Royal Tribe of Joseph,. 93 Mo. App. 90, hold-
ing, under law of 1807. suicide of member of mutual benefit society
was complete defense to action on benefit certificate.

163 U. S. 209-310, 41 L. IGG, HEXNINGTON v. GEORGIA.

Syl. 1 (XII. 870). State Sunday law valid.

Approved in Petit v. Minnesota. 177 U. S. 1G5, 44 L. 718. 20 Sup.
Ct. <)()<), uphohlinp proviso in Minn. Gen. Stat. 1804. § 6513, that
keepinp barber sliop open on Sunday is not a work of necessity
or charity: Seouj;ale v. Sweet, 124 Mieh. 31S, 82 X. W. 1003. hold-
ing games of base ball on Sunday is prohibited by section 5912,

3U

Kotes on U. S. Ik'iJOi'U. laa t. IS. 3iiKi.a

I

Comp. Laws 1807, and made breach of peace by sectioD 1134; Ex
jmte NorthnTp. 41 Or. 491, m Pac, 44G, upholding Sess. Laws 1901,
j>, 17, making it a misdemeanor to work as a barber on Siauotiy.

DlstlngulBhed In Kansas City, etc., Ry. v. Board of Raiirond
•^omrs., 106 Fed, 357^ holding Arkansas railroad commission can
miot fix freight rates for haul between Arkansas points over line
Mytng largely in Indian Territory.

SyL 2 (XII, 879). Sunday law against freight trains valid.
Distinguished in Cleveland, etc, Ry. Co. v. Illinois, 177 U. S.
^^51Tt 44 L. 870. 20 Sup. Ct 723, holding unconstitutional III. aci
^^Warch 21, 1874, requiring all regular passenger trains to stop at
"^^ouaty aeata.

Sjl. 3 (XII, 870J. Police regulations incidentally affecting com

valid.

Approved In Reld v. Colorado, 187 U. S. 147, 23 Sup. Ct. 96, 47

114. upholding Colo, Sess. Laiws 1885. p. 335. prohibiting in*

station of cattle from south of thirty-sixth parallel without cer-

Heaie of Inspection from sanitary board; Erie R. R. v. Purdy,

«5U. S. 150, 40 L. 840, 22 Sup, Ct. G06. iioldlng no question for

^^^eral review Is furnished by State decision uptoiding statute

quiring Issne of mileage-books which is conatrued as applying only

^^^i^ State roads; Louisiana t. Texas, 176 U. S. 24, 44 L. ::i56. 2U

^S "dp. Ct 250, holding controversy between States arising because of

^^^forcement of rales by health officer amounting to embargo on

•mtnerce Is not justiciable In Supreme Court; Duluth Brewing, etc.,

r. Superior, 123 Fed, 357, upholding ordinance requiring liquor

iaoufactnrers maintaining place for sale distinct from manufac-

"^ory to pay license, exempting wholesalers selling from manufac-

^OTj; Clement v. Metropolitan, etc.. Ry. Co., 123 Fed. 273, holding

^hlftgo ordinance authorizing commissioner of public works to

Provide bridge signals for passing vessels inapplicable to private

^*^1i!gws: Ptirdy v. Erie II. R., 1G2 N. Y. 51, 5G N. E. 510, upholding

'^li^^ajf e-book act of ISOr* construed as applying ooly to travel

^^liiii the State; Ex parte Young, Z€k Or. 250, 78 Am. St. Rep.

^i SO Pac. 708, upholding HlU's Anno. Laws, f 1052, forbidding

y^ff^^i to persuade seaman to desert vessel within Stnte waters.

Quotes, 93 Am. St Rep. 84; 78 Am, St Rep. 20(1

^^ V, S. 319-32L 41 U 174. HUNTINGTON v. SAUNDERS.

^rL 1 pen, 880). Bankruptcy ^ Appellate jurisdlcUon from C!r
niU Court of Appeals.

tHningulshed In First Nat Bank v. Kiug, ISO D. S. 2fKj, 4G L.
W2S, 22 Sup. Ct 900. holding no appeal to Supreme Court from
Jodj^meot of Bankruptcy Conrt on ground of jurisiHction. under
Mcl ISDi, f 5. wliere no cert i fir ate of question was made; lUitohliv
Wi ?. OtU. Wilcox, etc., Co., 123 Fed. IS, 10, holding section *:,

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Notes on U. S. Reports. Ifl3 U. S. 331-305

1G3 U. S. 331-342, 41 L. 179. WEBSTER v. LUTHER.
Bjl 1 (XII. 881). Right to additional homestead is assignable.
Approved io United States v. Lair. 118 Fed. 100, holding grant
of soldier's additional homestead, nnder llev. Stat, | 23013, is in
'^e nature of a bouutj to soldier; Phillips v. Carter, 135 Cal. COt>,
*7 Ana. St Rep. 151, 67 Pae. 1032. holdiiog entry of land under
^<3esert land act of 1877 is assignable during life of enti'jnmn.

Syl. 2 (XII, 881). Department's construction weighty hut not
-^L^on elusive.

Approved in Falrbauk v. United States, ISl U. S. 308, 311. -45
^MHa S73, 874, 21 Sup. CL 058, 051*, holding invalid as tax on expurtis
«s&tamp tax imposed on foreign bill of lading by act June 13. ISUS;
M^ ji re Brodie, 128 Fed. 672, holding where court-martial deter-
^c^iines by sentence that local law is impossible of ascertainment
Dtence is conclusive; Deming v. M'Claughry, 113 Fed. 1541, hold-
under seventy-seventh article of war volunteer soldiers raised
Oder act 1890. cannot be tried by court-martial consisting of
officers of regular army; Deweese v. Smith. 100 Fed. 445. hold-
under sections 5151, 5234, Rev. Stat., comptroller may make
^"*icces»Ive assessments upon stockholders of Insolvent national
t^fc^mk and receiver may collect same,

■- ^ U. S. 342-340. Not cited.

*^^ U. S, 346^^353, 41 L. 184, STEAMER COQUITLAM v. UNITED
STATES.

8yl. 1 (XII, 882). Alaska District Court, Supreme Court of Ter-
^"^ Xmry.

Approved In Jackson v. United States, 102 Fed. 480, holdini?
* *^ dictinent Is not vitiated by technical error in entitling same ""In
*^^ Strict Court of United States for District of Alaska.*'

i:XIl» 882), Miscellaneous.

*^lt^d in Cor bus v, Leonhardt, 114 Fed. 12, holding section 858,
^^^r. 8tat, prohllpitlng either party from testifying in suits by
^^^ against executors, administrators or guardiana, is Inapplicable
^^ territorial courts.

^^3 U. 8, 353^68, 41 h. IS^ TEXAS, ETC., RY. v. GENTRY.
Syl 4 (XII. 882). Person presumed to stop, look and listen.
Ajjproved in Baltimore, etc.. R. R. Co. v. Landrlgan. IDl U. S.
'^'^i 24 Sup. Ct 140, 141, holding In absence of contrary evidence
t>eiintrian killed at crossing is presumed to have stopped, looked
^M lUtened' Northern Pac. Ry. Co. v. Spike, 121 Fed. 40, 48, hohl-
**!« law presumes in absence of countervailing testimony that
I'erMOO killed at crossing was In exercise of ordinary care: disseur-
^« opinion In Cogdell v, Wilmington, etc., R. R,, 130 N. C, 328,

163 U. S. 369-426 Notes on U. S. Reports.

41 S. E. 546, majority holding refusal of charge that law presn
deceased to have used care was not error where burden of sho^
contributory negligence was placed on defendant.
Syl. 6 (XII, 883). Negligence for Jury when facts doubtfuL
Approved in M'Ghee v. Campbell, 101 Fed. 940, holding court is
titled in tailing question of negligence and contributory neglig
from Jury only when facts are not in doubt; dissenting opinio
Ramsay v. Eddy, 123 Mich. 164, 82 N.W.129, majority holding bi
man climbing on side of car and crushed by lumber piled <
to track is guilty of contributory negligence.

163 U. S. 369-385. Not cited.

163 U. S. 385^15. 41 L. 199, MEYER v. RICfHARDS.

Syl. 8 (XII, 883). Commercial paper — Implied warrant]
identity.

Approved in McClure v. Cent Tr. Co., 165 N. Y. 125, 58 U
782, holding defendant selling corporation stock for undiscl
owner was bound to deliver marketable stock free from lies
stockholder's indebtedness to company.

163 U. S. 416-426, 41 L. 211, BANK OP COMMERCE v. 1
NESSEE.

Syl. 4 (XII, 88^). Amendment withdrawing exemption \
prospectively.

Approved in Adirondack Ry. v. New York State, 176 U. 8.
44 L. 498, 20 Sup. Ct. 463, holding condemnation of lands by i
before railroad exercised right of eminent domain, but after
of route was filed, deprives company of no vested rights; I>
Bank of Owensbpro v. Daviess Co., 102 Ky. 213, 39 S. W.
holding acceptance by banks of act 1886 did not create cc
which prevented State from imposing additional taxes upon
Cooper Hospital v. Camden, GS N. J. L. 703, 54 Atl. 424,
where hospital did not accept charter conferring tax ex
no contract arose preventing State from annulling such ej
by constitutional amendment.

(XII, 884). Miscellaneous.

Cited in Burget v. Robinson. 123 Fed. 264, holding eff
dor of Circuit Court of Appeals staying mandate is to re
diction of case with power to grant rehearing after tc
Worcester County, 102 Fed. 810, holding District Court
filing of petition for rehearing during term retains jur
act upon such petition at succeeding term; Winters v.
Fed. 548, 540. holdinjr plaintiff cannot defeat remc
aj;ainst Federal receiver by failure to state in pie
court appointed defendant.

-sn

Notes on U, S. Roports. IGS C. S, 427-485

:itj3 U. S. 427-444, 41 U 215, UNITED STATES v. REALTY CO.

SyL 2 (XII, SS4)* Congress may pay moral claims uutler Invalid
Maw,

Approved in New York, etc., Ins. Co, v. Board of Comra., 100 Fetl.
x;jO. 134, uplioldtng Rev, StaL Oblo. | 2S34c, in effect requiring
county having issued and sold bonds under law snbse<iuently
Seclared nnconsdtutloiiai should pay same; Earle v* Commanwealtli,
^80 Ubsb, 583, 63 N, E, 10. &1 Am, St. Rep. 329, upboldlng Stat.
S85v cliap. 488 (water supply act)* allowing compensation to own-
of eatabllsbed businesses Injured by carrying out of said act:
linneapollfi v. Janney^ SG Miuu. 121, m N. W. 2Hk bolding valid
ax levied as result of donation of land to Minneapolis Industrial
-xpoeitioD, pursuant to laws amending city cbarter, sucb tax being
DF pnbUc purpose;
Dtstingulfibed In New York Life Ins. Co. v. Board, etc., 09 Fed,
holding void as retroactive law probiblted by Ohio Const., 93
*Wo Laws, p. 172, authorizing county to pay bonds issued under
fcw afterward declared Invalid; Michigan Sugar Co. v. Auditor-
-eaeral, 124 Mich. 6g2, S3 N. W. 628, holding beet sugar manu-
^"-^actarer entitled to no bounties, under unconstitutional act ISDT,
■^^ here act 1899 did not provide for appropriation therefor; State
^^^ FroeUch. 118 Wis. 143, 144, 145, 94 N. W. 54. 55, holding m-
^^-a^Ud Laws 1901, p. 095, chap. 4€S, appropriating fixed sum to pay
■-^^iiocent purchasers of unpaid county orders Issued under law af-
^^^•^rward declared Invalid.

(Xn, SSI). Miscellaneous,

Cited In Knowles v. New York, 176 N. Y. 439, 68 N, E. 8G3, hold-
***!! incorporation In contract for erection of East River bridge
^*^ laljor law afterward declared invalid did not Invalidate tb^
^^«*ntracL

^<^ U. S. 445-452. 41 L. 221, BLACK v. ELKHOEN MIN. CO.

Syl. 1 fXlI, SS5), Locator*s wife hag no dower rights.
See 9G Am. St Rep. 92-1, note.
^^ C* 8. 452-456. Not cited.
^<3a U, S, 456-467, 41 L. 225, EDDY v. LAFAYETTm

8yl 4 (XII, 885). Jury Infers negligence from combuatible ac-
'^mulatlona

Approved In Great Northern Ry. Co. v. Coats, 115 Fed. 454,
***>Wiii|f allowing combustible material to accumulate along defend-
**fs tracks was a specific act of negligence.

^^ t. 8, 468-485, 41 L. 230, GRAYSON v. LYNCH.

M. 2 (XII, 886). Sufficiency of facts on appeal from Territories.

Approveil in Armijo v. Armljo, 181 U. S. 5*11. 45 L. 1002, 21 Sup. Ct.
% holding In at>sence of findings by territorial court and of bill of

163 U. S. 485-564 Notes on U. S. Reporta.

exceptions Supreme Court must affirm; Apache County t. Bartb,
177 U. S. 542, 44 L. 879, 20 Sup. Ct. 719, holding on review of
case tried by court Supreme Court is restricted to inquiry whether
facts found support its Judgment.

SyL 6 (XII, 886). Variance immaterial unless misleading.

Approved in Baltimore & Potomac R. R. v. Cumberland, 176 U.
8. 238, 44 L. 451, 20 Sup. Ct 382, holding averment that no light
appeared on rear of engine is satisfied by proof of light not suffi-
cient in law.

Syl. 16 (XII, 887). Multiplying assignments of error disapproved.

Approved in Werner v. Chicago, etc., R. R., 105 Wis. 307, 81
N. W. 418, holding error assigned that witness testified in damage
suit that city was mainly situated on one side of defendant's tracks
need not be considered.

163 U. S. 485-491. Not cited.

163 U. S. 491-498, 41 L. 239, MISSOURI, ETC., RY. ▼. COOK.

Syl. 1 (XII, 887). Filing railroad map fixes route.

. i) roved in Standard Oil Co. v. Cook, 63 Kan. 866, 66 Pac. lOOOu
holding defendant cannot defend in ejectment as lessee of rallroa^^
company as to land outside right of way as settled by railroad map ^.

163 U. S. 499-504. Not cited.

163 U. S. 504-520, 41 L. 244, WARD v. RACE HORSE.

Syl. 2 (XII, 887). Indian treaty repealed by' act admitting Te^
ritory.

Approved in Lone Wolf v. Hitchcock, 187 U. S. 566, 23 Sup. CT
221, 47 L. 306, holding Indian treaty could not limit power
Congress to pass act June 6, 1900, allotting to Indians in sev^
alty lands held in common in reservation; BoUn ▼. Nebraska^ ^
U. S. 88, 44 L. SU, 20 Sup. Ct. 289, holding act February 9.
admitting Nebraska on equal footing with original States did -
make Fifth Amendment, requiring indictment in felony cases,
plicable in Nebraska.

163 U. S. 520-537. Not cited.

163 U. S. 537-564, 41 L. 256, PLESSY v. FERGUSON.
Syl. 6 (XII, 888). Separate coach law valid police regulatlo
Approved in Chesapeake & O. R. R. Co. v. Kentucky, 179 I
392. 393, 395, 45 L. 24(>, 247, 248, 21 Sup. Ct 102, 103, 104. foJ
ing construction placed by Kentucky court upon Ky. Stat
§ 1 (separate coach law), in upholding same, that such law a
• only within the State; Dastervigner v. United States, 122 Fc
upholding rule 13 made by secretary of interior, pursuant
June 4, 1897, prohibitinjr pasturing of sheep and goats on
reservation lands without permits; Bowie v. Birmlnghar

rm

Notes on U. S. Reports. 163 U. 8. 55MJli

i?y, Co., 125 Ala. 411, 27 So. 1020, upholding street rallrtiad*s regu-

lotion requiring colored passengers to occupy front and whites

^o occupy rear seats in carriages; Reynolds r, Br^ard of Edu^?a-

«don, m Kan. 692, 72 Pac, 2S1, upholding Laws 1ST9, p. 163. cbap.

^^1, empowering boards of education in cities of first class to

^^:»rovide separate schools for whites and blaelis; State v, Pearson,

:M- 10 La. 390» 34 So. 5T6, upholding La, act 1902, re<iulring separate

Ki^ut equal accommodations for white and colored passengers on

^m-treet cars with penalty for railroads violating same; dissenting

^:^l>laion in Ohio Valley Ry. Co. v, I^auder. 104 Ky. 45.1, 456, 47 S.

"^"^^ 882, S83. majority nphoMing act 18D2, known as *' separate

^c^'oach law," requiring separate coaches for negroes and w^hites.

Distinguished in The Roanoke, im U. S. 198, 23 Sup. Ct 404, 47
"W m 7T4« holding unconstitutional as encroachment upon maritime
J ^«:irisdlction Wash. Code, for creating preferred lien on oceau-going
"^;^^2ssels for materials furnished: Ohio Valley Rj*. C<i. v. Laudtr,
^^O* Ky. 447, 47 S. W. 348, upholding act 1S02, requiring separato
for negroes and whites,
lU. S. 5ei-611, 41 L, !285, UNION PAC, RY. v. CHICAGO, ETC.,
RY.
^fe ^yl 1 <XII, 88S). Corporation has powers conferred.

^^^^^ Jlpproved In Cumberland Tel., etc., Co. v. Evancville, 127 Fed.
^B^^^*'^. holding telephone company organized under Illinois laws empow-
"* ^Bg It to bold and convey necessary property cannot sell nil Us
r*^**^perty and franchises; First Nat Bank v. American Nat. Bank,
^ • ^Mo. 150. 72 S. W. 1061. holding, under U, S. Rev. Stat, § 5130,
'^^ tloQal hank has no power to guarautee payment of draft on Its
*^^^tomer and may plead ultra vfres.

^yL 2 (XII, 888). Contract disabling corporation not enforceable
^** estoppel.

-<ApproTed In Pike's Peak Power Co. v. Colorado Springs, 105

^^1 13, upholding ordinance granting right to use city water

^^tem for twenty-five years, providing grantee slioukl return same

^'imitaired and enlarged; Texarkaua, etc., lly. v. Bern is L. Co.,

ArlL 549, 55 8. W. 047, holding company liable on note slgni^Ml

president as president, contents of which he used for own pur-

: White V. Bank. Oi S. C. 504. 45 S. E. 00, holding cor^r^tlon

^-^rirtered under general laws prohibiting use of its funds directly

Indirectly in banking operations not liable to bank creditors

^ ftock subscribed and paid for by such corporation on which

its collected dividends.

^yL I (XIl, mru Railroad act giving use of bridge.

^^MirOTed In Union Pac. Ry, v. Mason City, etc., Ry., 12S Fed.

. 234. 235, 237, 230, 243, affirming de«:ree permitting appellee

^ tise jointly with appellant latter's railway brlilge across Missouri

loertalli tracks on terms speciiied; Michigan Cent. R. R, Co, t.

163 U. S. 611-631 Notes on U. S. Reports.

Pere Marquette R. R. Co., 128 Mich. 347, 87 N. W. 276, sustaining
contract granting right to use grantor's road in commoB, but pro-
hibiting grantee from receiving freight to be delivered east of
certain point

Syl. 10 (XII, 889). Contract extending beyond charter Is valid.

Approved in Brown v. Schleier, 118 Fed. 984, upholding lease
by national bank for ninety-nine years.

Syl. 16 (XII, 889). Specific performance of railroad track agree-
ment

Approved in Blair v. Railroad Co., 92 Mo. App. 557, holdln;
there is nothing difilcult of performance to carry out agreemeni
to build water-gate and a passway for cattle underneath defen<
ant*s tracks.

(XII, 888). Miscellaneous.

Cited in Muncie Nat Gas Co. v. Muncie, 160 Ind. 104, 66 N.
439, holding gas company using streets, under contract with cli
fixing maximum rates, cannot question city's power to make 8U<
contract; Aransas Pass Harbor Co. v. Manning, 94 Tex. 562,
S. W. 629, holding in absence of creditors consent of di:
and stockholders to conveyance by president was authorised wi
out action by directors as board.

163 U. S. Gll-618. Not cited.

163 U. S. 618-624, 41 L. 284, BROWN v. WYQANT.

Syl. 1 (XII, 890). Return of two " nihlls " equal to service.

Distinguished in Kirk v. United States, 124 Fed. 339, holding
turn of two ** nlhils " on to scire facias where defendant has
Jurisdiction is not equivalent to service.

1G3 U. S. 625-631, 41 L. 287, UNITED STATES v. PERKIN&

Syl. 1 (XII, 890). State taxing bequests to United States.

Approved in Snyder v. Bettman, 190 U. S. 260. 23 Sup. Ct
47 L. 103G, upholding succession tax imposed by war revenue
1898 on bequests to municipalities for public purposes.

Distinguished in dissenting opinion in Snyder v. Bettmann, l^O V.
S. L\->t;. 257, 23 Sup. Ct. 805, 80G, 47 L. 1038. majority upholding »«c
cession tax Imposed by war revenue act 1898 upon bequests to rx*o-
uioipalities for public purposes.

Syl. 2 (XII, 890). Inheritance tax is on transmission, not ^^
proi)erty.

Approved in Snyder v. Bettmann. 190 U. S. 250. 251, 23 Sup. ^^
S(X^, 804, 47 L. lOoO. upholding succession tax of war revenue ^^
1898 Imposed upon bequests to municipalities for public purpof^^*
Blackstone v. Miller. 188 U. S. 205. 23 Sup. Ct. 278, 47 L. 445, ^Mp-
holding Imposition, under New York inheritance law, of tax o**
transfer under will of nonresident of debts due decedent froU^

^J

Notes oa U. S, Reports.

163 U. S, 632-662

I

^Idents of SUte; Pltimmer v. Coler, 178 U. S. 125, 129, 133, 134,
-37. 44 L. 1004, lOOG, 1007, 100^ 1009. 20 Sup. Ct S32, 833, 834,
IQ, 837. holding legacy of United States bonds not exempted from
inheritance tax laws by act 1870 exempting bonds from taxation;
owlton V. Moore, 178 U, S. 53, 55, 58, 44 L. 975, 970, 20 Sup. Ct,
^ r»2. 753, 754, upholding tax on legacies Imposed by war reveaue
ct 1898; Ruckgaber v. Moore, 104 Fed. 051, balding legacy tax of
ar revenue a^t 1898 does not apply to bequest of personalty made
^ alien daughter of citizen of France; Hooper v. Bradford, 178
i. 97, 50 N. E. 678, holding value of property for purpose of
under StaL ISOl, fs Its value on testator's death, not at dis-
»ibutlon; Hooper v. Sbaw, 176 Mass, l&l. 57 N. E. 362, holding
^gapy tax imposed by war revenue act 1S9S is deducted from prop^
arty subject to succession tax imposed by Massachusetts act 1801;
ttion Trust Co. v. Probate Judge, 125 Mich. 492, 84 N. W. llOli.
elding tax on Inheritances imposed by Pub. Acts 1809, No. 188,
tax on privilege only and not subject to uniformity reQulreaieut;
^te V. Henderson, 160 Mo. 215, 60 S. W. 1007, upholding act
l>ril 19, 1899, imposing collateral inheritance tax: Matter of DeU
io, 170 N. Y. 492. 68 N. E. 872. upholding Laws 1896, p. 8<J8,
ipoBlng tax on transfer of property by exercise of power of
ipointmeni: Dixon v. Rlcketts, 26 Utah, 225, 72 Pac. 950, up-
elding Utah Inheritance tax law of 1001, Sess. Laws 1001, p. 61,
I «52; State v. Clark, 30 Wash. 446, 71 Pac. 22, upholding In-
itance tax law of Sess. Laws 1901, p. 68, § 2, imposing greater

on collateral than oa direct heirs.
Blitingulshed in Ferry v. Campbell 110 Iowa, 295, 81 N. W,
^^^*i, iioldlng unconstitutional Iowa Inheritance tajc law, providing
*«^-« ippralsement without notice to heir or legatee.
<XII. 890). Miscellaneous.

Cited in Black v. State, 113 AVIs. 223, 231, 89 N. W. 528. 531, hold-
^^^ag naconstJtutlonal Laws 1809, for taxation of transfers or in-
^^^^lUacea in property valued at $10,000 or over.

^^^^D. & 632-662, 41 U 280, WIBORG v. UNITED STATES,
Syl 6 (XII, 891). Courtis expresalon of opinion not error.
-VpproTed In State v. McKnlgbt, 119 Iowa, 83, 93 N. W. 65, up-
'•^•litiDg charge that it was conceded that deceased died from blood
^***lsoalag where such was the admitted fact; Iowa v, Cunniiigbam,
^1 bwa, 244, 82 N. W. 778, holding instruction of court that in-
^xi<*tnjeat meant to charge killing of Infaot child of L H. was not
**"«r where fact was not disputed.

^yl ^ (XII. 802). Conspirator's declarations admissible in com-fa
*^^*<tetlon.

-^I'proved In Kansas City Star Co. v. Carlisle, im Fed. 361,
^ 'JHtiiJjiiiig exelnsioQ of conversatioo between cattle thief and an-
VaL III — 46

1G3 U. S. 662-686 Notes on U. S. Reports.

other, not in plaintiff's presence, as to plaintiff's having sal
could dispose of stolen cattle.

163 U. S. 662-674, 41 L. 300, UNITED STATES ▼. BALL.

Syl. 1 (XII, 892). General acquittal is bar.

See 92 Am. St Hep. 129. note.

Syl. 4 (XII, 892). New trial after indictment set aside.

Approved in Murphy v. Massachusetts, 177 U. S. 158, 159,
714, 20 Sup. Ct 640, upholding sentence imposed under Mass.
1851 after reversal of former Judgment on application of coi
Ogle V. State, 43 Tex. Cr. 228, 63 S. W. 1010, 96 Am. St Rep
holding conviction on indictment by grand Jury of thirteen in
of twelve, as required by statute, was without Jurisdiction ax
liar to second trial.

Syl. 8 (XII, 892). Indictment alleging ** mortal wound " sufB

Approved in State v. Privitt 176 Mo. 227, 75 S. W. 462,
taining information charging accused with murder in sti
deceased and shooting him with loaded shotgun inflicting n
wound.

Syl. 9 (XII, 892). Unsworn marshal not cause for reversaL

Approved In United States v. Davis, 103 Fed. 470, holding c
tlon that bailiffs in charge of jury in felony case were not s
Is unavailing in Federal courts regardless of State proce
Dreyer v. People, 188 111. 59, 58 N. E. 626, holding failure to o
to omission to swear officer in charge of Jury as required bj
tion 435, Crim. Code, is waiver of requirement

(XII, 892). Miscellaneous.

Cited in State v. Manning, 168 Mo. 429, 68 S. W. 344. ho
indictment charging Injured person with assaulting himself
not ground plea of former jeopardy by real assailant.

1G3 U. S. 686, 41 L. 305, REAL ESTATE CO. v. BECK,

Miscellaneous.

Cited in Frazee v. Spoliane County, 29 Wash. 290, 69 Pac
holding Indian becoming citizen under act 1887 is neverth
within act 1884 continuing homestead privilege and placing t^
tive-year restriction on alienation.

CLXIV UNITED STATES.

^^MU. S. 1-26, 41 L. 327. BEAR LAKE. ETC., IRB. CO. v. GAR

■ LAXD.

%l 4 (XII, 803). Mortgage may Include after acquired propertj,
-ipproved in Central Trust Co» v. Washington County R. R. Co., 124
^^^A 817, hoIdJDg railroad mortgage Including after acquired prop-
*^^ Ijf included branch line subsequcDtly purcliased by mortgagor;
^i^^aterson v, Burnett, 27 Tex. Civ. 375, 66 S. W. 93, holding pur-
^^i^a^er of land giving purchase-money mortgage takes land bur-
^•^eiied with lien^ and mortgage lien 1b prior to prior Judgment lien
-gainst purchaser,

8jL 0 (XII. 893). Supreme Court cannot reriew findings of fact.

Approved in Apache County v. Bnrtb, 177 U. S. 542. 44 L. 879,

^^ Sap, Ct 718» 719, holding on appeal from territorial Supreme

^wt on trial by court, sulliclency of facts found and exceptioiia to

*"*lleace alone reviewable.

^^ H. 8. 26-42, 41 L. 337, AMERICAN ROAD MACHINE CO. v.
PENNOCK. ETC., CO.

^Jl2 (XII, 804), Enlargement by common method not invention.

Approved In Johnson v. Chisholm, 115 Fed. 032, holding void Scott
* Chlaholra patent No, 50Ci,2yS^, for pea-hulling machine; Hicliory
^^^t^ Co. V, Frazier, 100 Fed. 102, holding void Elliott patent No.
^^13, for sulkies fitted with lovper pneumatic tired wheels; dis-
■«% opinion in Justl v. Clark, 108 Fed. 669» majority upholding
fiorlbut reissue patent No. 11,696, for dental spittoon.

IW l\ S. 42^0, 41 L. 344, UNITED STATES v. GILHOT,
Sjl 2 (XII, 804). Court of Claims' certificate conclusive.
t'litifigulsiJed In Buchanan v. Patterson. 190 U. S. 365, 23 Sup. Ct
W 47 L, 1007, holding act 1899» making appropriation pursuant to
award of Court of Claims, mcjint to include only next of kin of
flrtgUml safferers. affirming Patterson v. Buchanan, 92 Md. 349, 350,
« Aa 160.

im V, S. 4e^!>, Not cited.

164 U. S. 40-53, 41 L. 34*1, UNITED STATES T. KURTZ,
Syl. 6 (Xll. 894). Allowance of fees to clerk.
Approved In Marvin v. United States, 114 Fed. 228, allowing clerk
ait^etj Ci^ots cliargea for continuances; M*Gourin v. United States.

164 U. S. 54-92 Notes on U. S. Reports. 724

102 Fed. 554, 555, holding commissioner entitled under order re-
quiring keeping of docket to charge for each separate entry re-
lating to distinct step in proceedings as a folio.

Syl. 7 (XII, 894). Clerk's commission for keeping money indepen-
dent

Approved in In re Michigan Cent R. R. Co., 124 Fed. 732, holding
degree against party for costs to clerk for keeping money is appeal-
able; United States v. Marsh, 106 Fed. 477, holding under Rev. Stat,
§ 828, allowing clerks fifteen cents per folio for entries, one pro-
ceeding as arraignment and plea cannot be divided.

(XII, 894). Miscellaneous.

Cited in Curtis v. Crawford County Bank, 124 Fed. 923, holding
under Rev. Stat, § 995, where master receives check as certificate
of deposit neither deposit nor purchase money need be deposited
in court; United States v. Marsh, 106 Fed. 477, holding court cannot
authorize clerk to charge fees for making records, except in accord
with statute.

164 U. S. 54-75. Not cited.

164 U. S. 76-^1, 41 L. 355, McELROY v. UNITED STATED

Syl. 1 (XII, 895). Erroneous Joinder of offenses.

Distinguished in United States v. Dietrich, 126 Fed. 670, holding
two persons cannot be severally charged in same count of indict-
ment one for offering and other agreeing to receive bribe.

1G4 U. S. 81-88, 41 L. 357, UNITED STATES v. McMAHON.

Syl. 2 (XII, 895). Marshal charges for attendance before different
commissioners.

Approved in Lovering v. United States, 117 Fed. 566, allowing
charges for attendance of deputy before United States commissioner
where same person was paid for attendance in District Court as
bailiff same day.

164 U. S. 89-92, 41 L. 360. PARSONS v. VENZKE.

Syl. 1 (XII. 895). Cancellation of entry after final receipt

Approved In Cosmos Exploration Co. v. Gray Eagle OU Co., 112
Fed. 12, 13. holding until approval of department of selection of
land In lieu of forest reservation such land Is open for exploration
for minerals; Gage v. Gunther, 136 Cal. 347, 89 Am. St Rep. 149,
68 Pac. 713, holding rules of practice formulated by secretary can-
not prevent his review of previous decision; McCord v. HIU, 111
Wis. 526, 87 N. W. 483, holding, under act June 3, 1806, application
may be made directly to secretary of interior for confirmation of
previous erroneously committed pre-emption entry.

Syl. 2 (XII. 800). Act 1891 applies to existing entries only.

Approved in Guaranty Savings Bank v. Bladow, 176 U. S. 458,
44 L. 544, 20 Sup. Ct. 428, holding right of bona fide incumbrancer

715

Notes on U. S. Reports.

164 U. S. 93-112

to patent under act 1891 does not eitejid to Incumbrance of Interest
of entryroan under entry canceled In 1887; McCune v. Esslg, 118
Fed. 280, holding patent issued to widow of homestead settler upon
her making final proof conveys land to her absolutely exclusive of
claims of children.

(Xll, 895), Miscellaneous.

Cited In McCord v. Hill, 117 Wis. 310, 94 N. W. 6G, holding de-
cision on demurrer finding entry In good faith and six months' resi-
dence Is hie ding on subsequent appeal; McCord v. Hill, 111 Wis*
513, 84 N, W, 33, holding party to whom secretary of Interior, hy
«froDeous application of law, issues patent holds aa truatee for per-
eott entitled.

IW U. S. 93-100. Not cited.

IW IJ. S. 100-105. 41 L. 365, WHITE v. UNITED STATES.
Syl 3 (XII, 896), Jailer's entries made In official capacity,
Dlatlngnislied In Board of Comrs. v. Keene, etc- Bank, 108 Fed,
SOd. holding Inadmissible copies and lists of count j warrants found
In clerk's office but not shown to have been made by county officers.

1^ U. 8. 105-112, 41 L. 367, PHESS PUB. CO, v, MONROE.

8.Tl. 1 (XI It 890), Jurisdiction must appear from plalntlfTs
cliim.

Approved in Florida Cent, etc., R. R. v. Bell 176 U, S. 328, 44
L. 4U0, 20 Sup. Ct 402, holding plaintiff cannot confer Federal jurls-
toon by averment that defendant will defend under a law of
^'»1ted States.

Dliiiiiguisbed in Stori v. Massachusetts, 183 U. 8. 143, 48 L, 124,
•^Sup. ct. 74» holding, under section 761, Rev, Stat., Supreme Court
<*D appeal from dismissal of habeas corpus petition by Circuit Court
**' Appeals disposes ** of party as law and justice require."

^Jl 2 tXII, 896). Diverse citlzensliip — Circuit Court of Appeals*
<^«^lilop flnaL

Approved in Spencer v. Duplan Silk Co., 191 U. S, 527, 24 Sup. Ct.

^A <llBmissing writ of error where Circuit Courtis jurisdiction

Wed entirely upon diverse citizenship j Huguley Mfg. Co. v. Gale-

*'>i" Cotton Mills, 184 U. S. 204, 46 L. S48, 22 Sup. Ct. 454, hold-

^^« no right of appeal from decision of Circuit Court of Appeals

®'^e ftnal as resting on diverse citizenship la given by provision

^^ certiorari In section 6» act 1891 ; American Sugar Refining Co.

^-Vew Orleans. 181 U. S. 280, 45 L. 801, 21 Sup. Ct 647, holding

^tPoducOon In case resting originally on diverse citizenship of

«>o<UhuioDal question warranting direct appeal does not deprive

*-'rn]\t Court of Appeals of Jurisdiction; Florida Cent., etc., R. R.

' i'^i'll 170 U. S. 325, 44 L. 480, 20 Sup. Ct 401, holding judgment

of Circuit Court of Appeals caanot be final where Imth rnurts

Mow treated caae as one turning on construction of Federal Iaw*i:

IM U. S. 112-1T9 Notes on U. S. Reports. 72

Keyser v. Lowell, 117 Fed. 401, holding Circuit Court of i^ppeal
may finally determine constitutionality of State statute .where quei
tion arises in case resting originally on diverse citizenship.

Distinguished in Northern Pac. Ry. v. Soderberg, 188 U. S. 52
23 Sup. Ct. 366, 47 L. 581, holding Circuit Court of Appeals dw
not render final decision where plaintiff's claim rests on divert
citizenship and also upon construction of land grant of 1864; Owen
boro V. Owensboro Water- Works Co., 115 Fed. 322, holding Supren
Court has exclusive jurisdiction of appeal where Circuit Court
Jurisdiction rested on sole ground of alleged unconstitutionality <
State statute.

164 U. S. 112-179, 41 L. 369, FALLBROOK IRR. DIST.
BRADLEY.

Syl. 2 (XII, 897). Federal courts follow State construction.

Approved in Williams v. Gaylord, 102 Fed. 374, following Sta
construction of Cal. Stat. 1880, p. 130, requiring directors of ac
mining corporation in disposing of mining ground to obtain consei
of two-thirds of stocli; Clarlisburg, etc., Co. v. Clarksburg, 47 ^
Va. 747, 35 S. B. 997, holding under statute law governing cltl«
grant of nonexclusive franchise to use streets is valid contract p^
tected from impairment.

Syl. 3 (XII, 897). Federal courts follow State decision.

Approved in Hooker v. Los Angeles, 188 U. S. 320, 23 Sup.
397, 47 L. 491, holding Supreme Court cannot reverse State cc^
in sustaining State statute under State Constitution; Johnsors
Hunter, 127 Fed. 223, upholding Ark. Acts 1895, No. 71, authorl^
commencement of tax proceedings against land of nonresid^
after notice published weekly for four weeks; Williams v. Stea. :
12G Fed. 213, holding State supreme decision upholding State ^
ute dividing such court and prescribing powers of divisions is <.
elusive in Federal courts.

Syl. 4 (XII, 807). Tax law with hearing for protests valid.

Approved in Hibben v. Smith, 191 U. S. 322, 24 Sup. Ct-
holding due process is accorded assessed property-owner vrta
opportunity to bo hoard before assessment board is given n 1
which board's decision is final; Brown v. Drain, 187 U. S. 635 •
Sup. Ct. 842, 47 L. 343, artirming 112 Fed. 591, holding Cal. stw
work act of March IS, 1885, affords property-owners ample opf
tunity for correction of error in assessments by application to ^
council.

Syl. G (XII, 897). Irrigation of arid lands, public use.

Approved In Stanislaus County v. San Joaquin, etc., Co.. 192 IT' -
210, 24 Sup. Ct. 245, holding Cal. Stat. 18G2, § 3, preventing so:*"
visors in regulating wator-rates from reducing same below crr^^
profit point, created no contract; Guitlerres v. Albuquerque L-^^
Co.. 188 U. S. 555, 23 Sup. Ct. 342, 47 L. 593, holding desert land ^

J27

Notes on U. S. Reports* 164 U. S. 112-1T9

Hirch 3, 18T7, providing that snqjlua water on public domain
should remain for public use, did not prevent formation of territorial
Irrigation corapanieR. affirming Land & Irr* Co. v. Gutierrez. 10
X. Mex. 231. 237. 61 Piie, 357, :i59; Missouri, etc, R7. Co* v, Cambem,
66 Kan, 366. 71 Pac. 810, holding construction of levee along banlt
of river Is public use within eminent domain statutes: Matter of
Tutnm, 163 N. Y. 138, 139, 140, 70 Am. St Rep. 577, 578, 579, 57
X E. 305, holding unconstitutional article 1, section 7, State Const,
^tithonziiig laws permitting: landowners to construct ditches ou lands
of ot tiers; Farm Investment Co. v. Carpenter, 9 Wyo. 136, f!l Pac.
2e4, 87 Am, St Rep. 933, upholding Const., art. 8, § 1, declaring that
the waters of all natural streams, lakes, and springs are the prop-
erty of the State.

SyL 7 (Xll, 807). Law limiting use to landowners valid.
Approved in Webster v. Fargo, 9 N. Dak. 211, 82 N. W. 733,
upholding section 2280, Rev, Codes, charging entire coat of street
leaving upon abutting property according to frontage.

Syl. 10 (XII, 897), Special trihunal's determination of benefits
<x>ncluslve.

Approved In Erleksoo v, Cass Co., 11 N. Dak. 505, 507, 92 N, W,

347, 84S, holding in absence of fraud action of drain commission er!4

tn determining what lauds are benctited and apportioning costs

^t drain is conclusive; King v, Portland, 38 Or. 413, 415, 03 Pac.

^ 5. upholding Sess. Laws 1S98, § IBS, for asses.sment of street

^ork to abutting lots.

Syt 11 (Xll, 808). Due process requires no appeal from special
^ard,

Approved In Hibber v. Smith. 191 U. S, 322, 24 Sup. Ct 90,
^*oMlng due process accorded assessed property-owner though as-
■Mttlog board after hearing renders final judgment.

Syl 14 (XII, 898). CaUfornIa irrigation district is public cor-
l^rition,

Approved in Stanislaus Co. v, San Joaquin, etc., Co., 192 V. S.
^0, 24 Sup. Ct 245, holding Cal. Stat. 1802, p. 540, § 3, providing
^itt eupervisors regulating water rates should not reduce below
*^Uln point, created no contract; Perry v. Otjiy, etc., Dist, 127
^. 5<i8» 60 Pac. 42, holding moneys collected by collector of Irrl-
^MioD district are public moneys and not subject to set-off against
^'•llfCtDr'a fees, salary or expenses in litigation.

Dtotlnguished In Belknap Sav. Bank v. Lamar, etc., Co., 28 Colo,
^^t MO, 64 Pac, 216, holding receiver's certificates Issued for pur-
*^<a of carrying on reclamation company's existence cannot be
**5Jide Hen co-ordinate with mortgage.

8yL 15 (XII, S98}. Irrigation district act valid.
Approved in Tulare Irrigation Dist v. Shepard, 18r* V, S. i:^,
H 46 L. 779, 781, 22 Sup, Ct 536, 537, npholding Cal. Irrlga-

164 U. S. 179-212 Notes on U. S. Reports. 728

tion act March. 7, 1887; French v. Barber Asphalt Paving Ca, 181
U. S. 340, 45 L. 888, 21 Sup. Ct 631, upholding apportionment of
entire cost of street pavement upon abutting property according
to frontage, affirming Barber Asphalt Pav. CJo. v. French, 158 Mo.
554, 58 S. W. 941; People v. Brown's Valley Irr. Dist, 119 Fed. 538,
holding Wright act, having been upheld by Supreme Court, its
constitutionality is not a Federal question; Banaz t. Smith, 133
Cal. 105, 65 Pac. 311, upholding act March 18, 1885, for formation
of assessment districts and levy of assessments according to front-
age; Hadley v. Dague, 130 Gal. 220, 221, 62 Pac. 504, upholding
street improvement act of 1891, p. 196, chap. 147, authorizing
assessments on abutting lots according to frontage, where no in-
justice shown; Kinkade v. Witherop, 29 Wash. 16, 68 Pac. 401«
upholding Sess. Laws 1889-90, p. 671, and Sess. Laws 1886, p. 432,
for organization of irrigation districts, for issue of bonds made a
lien on the district; State v. Henry, 28 Wash. 49, 68 Pac. 372,
upholding Sess. Laws 1895, p. 142, providing for constmction of
drainage ditches apportioning cost according to benefits.

(XII, 897). Miscellaneous.

Cited in Schulte v. Heman, 189 U. S. 507, 23 Sup. Ct 852, 47 L.
922, affirmed on authority of principal case; State v. Comer, 157 Ind.
613, 62 N. E. 453, holding Fifth Amendment against accused being
made witness against himself in criminal case has no application to
States.

164 U. S. 179-189, 41 L. 395, TRBGEA V. MODESTO IRR. DIST.

(XII, 899). Miscellaneous.

Cited in Perris Irr. Dist. v. Thompson, 116 Fed. 836, holding
defendant sued as corporation by appearing generally, filing de-
murrer and later answering on merits admits its existence; Peo-
ple V. Linda Vista Irr. Dist. 128 Cal. 479, 480, 481, 61 Pac. 87.
holding State * cannot, after failing to make itself party to pro-
ceedings under conformatory act 1889, to validate hrigation districts,
question validity of such organization.

164 U. S. 190-212, 41 L. 399. WISCONSIN CENT. R. R. v. UNITED
STATES.

Syl. 1 (XII, 899). Construction rendering meaningless disfavored.

Approved in United States v. Finnell, 185 U. S. 244, 46 L. 893.
22 Sup. Ct 636, holding conformably with uniform construction
given act 1887 by treasury department that clerk of District
Court entering orders and decrees is entitled to per diem in at>-
sence of judge.

Syl. 6 (XII, 899). Executive construction cannot control unam-
biguous statute.

Approved in Fairbank v. United States, 181 U. S. 308. 45 L.
873, 21 Sup. Ct. 658, holding unconstitutional tax imposed on foreigD
bill of lading by war revenue act 1898.

Notes on U. S. Reports.

164 U, S. 213'-240

8tI 10 (XII, 900). Illegal payments must be refunded.

Approved In United States v, Dempsej, 104 Fed. 199, holding
government may recover sum paid by paymaster to officer as com-
mutation allowance, such payment being induced by error of law.

nM U. S. 213-220, 41 L. 407, UNITED STATES v. VERDI ER.
Syl. 4 (XII. 900). United States not liable for interest.
Approved in Sandberg v. State, 113 U. S. 580, SO N. W. 507,
tiotdlng Judgment against State for costs cannot be rendered In
absence of express stattite providing therefor.
(XII, 900). Miscellaneous.

Cited in United States v. Ewlng, 184 U. S. 140, 46 K 474, 22 Sup,
Ct. 483. holding readjustment of postmaster's salary under act
1883, based upon quarterly returns for two years, must be made
ta begin with next succeeding quarter.

IC4 U. S. 221-227, Not cited.

184 tJ. 8. 227-240, 41 L, 412, PRAIRIE STATE BANK v. UNITED

STATES.

SyL 2 (XII, 900). Surety completing building after default
lubropated.

Approved In Reid v. Pauly, 121 Fed. ii57, holding indemnitors of
snretlei on contractor's bond for erection of county buildings pay*
^Of Judgments against contractor who became bankrupt are sub-
f^Wed to county's rights; American, etc., Co. v. Home Water Co.,
115 Fed. 182, holding guarantor of bonds of water company may
^liitala suit against city to prevent destruction of value of mort-
^K^ property by annuloient of frfincbises; First Nat. Bank v.
City Trust. Safe Deposit, etc.. Co.. 114 Fed. TjBI, rj32, 533, holding
"^^y on contractor's bond, completing building for city, is en-
titled to be subrogated to city's rights against whole fnnd although
Nt:{()per cent, was to be withheld; Montgomery v. City Council. 99
^^ 82&. holding purchaser of corporation property at foreclosure
^ voluntarily paying taxes thereon is not entitled to stibroga-

tiOD.

t>liiting«lshed In dissenting opinion In First Nat. Banlc v. City
^ft^t Safe, etc., Co., 114 Fed. 534, majority holding surety com-
i^l^tlng public building is entitled to subroe:ation to city's rights
n«aliigt entire fund unpaid though only 30 per cent, was to be
^iUilidd.

SyL 4 (XII, 901). Owner's failure to withhold pay discharges
wrtty.

Approved In Shelton v. American Surety Co., 127 Fed. 738, hold-
hif payments to contractor without production of contractor's hills
A ad Touchers, as required by contract, discharged contractor's
#urrty; Zlegler v, Uallahan. 126 Fed. 702, holding alteration of

164 U. S. 240-280 Notes on U. S. Reports. 730

lease by introduction without surety's consent of covenant for
surrender in case of fire was material and discharged surety.

164 U. S. 240-247. 41 L. 419, DRAPER v. UNITED STATES.
Syl. 1 (XII, 901). State jurisdiction over offenses on reservaticHL
Approved in King v. M' Andrews, 104 Fed. 434, holding Dak.
act 1885, incorporating Indian reservation lands within limits of
city of Chamberlain, was valid appropriation of lands.

Distinguished in King v. McAndrews, 111 Fed. 870, holding
Dak. act 1885, including Indian reservation lands in city of Cham-
berlain, did not segregate same from public domain; State v.
Columbia George, 39 Or. 137, 65 Pac. 607, holding, under act
Congress 1885, allottee of Umatilla Indian reservation charged with
murder on reservation is triable only in Federal courts.

164 U. S. 248-252, 41 L. 422, WILSON v. KIESEL.

Syl. 2 (XII, 901). Appeal dismissed for omitting necessary parties.

Approved in Bloomingdale v. Watson, 128 Fed. 269, holding cred-
itors of insolvent partnership are necessary parties to appeal from
order of distribution in winding up proceedings In which creditor's
claims were allowed; Moore v. Jennings, 47 W. Va. 190, 34 S. E.
797, holding owners of fee of adjoining land are necessary parties
to suit by lessors and lessees of one tract against lessees of other to
fix boundary and declare titie.

104 U. S. 252-255. Not cited.

104 U. S. 255-261, 41 L. 425, LALONE v. UNITED STATES.

Syl. 1 (XII, 901), To recover pension fraud must be clear.

Approved In Ilolton v. Davis, 108 Fed. 151, holding equity will ^
not Impeach judgment for fraud because of false testimony ol^^
witness where the matter was presented In motion for new trial ^
Wood V. Davis, 108 Fed. 132, holding evidence that false testlmoD^^
was adduced by successful party is insufficient to avoid judgment

1G4 U. S. 261-270. Not cited.

164 U. 8. 271-280, 41 L. 431, WABASH WESTERN RY. v. BROV ■^,

Syl. 1 (XII, 902). Filing removal petition is special appearance.

Approved In Conley v. Mathlson Alkali Works, 190 U. S. 411, S5
Sup. Ct. 730, 47 L. 1115, holding service on resident directors ar
forci^ corporation which has ceased operating within State l»
iusuliicient, affirming 110 Fed. 730; Louden Mach. Co. v. American,
etc.. Iron Co., 127 Fed. 1010, holding plea In State court denyfax"
State jurisdiction over suit against foreign corporation accompanied
by removal petition Is special appearance regardless of State still-
ute; Waters v. Central Trust CJo., 126 Fed. 471, holding request for
extension of time to plead by attorney for nonresident appearing

731 Notes on U. S. Reports. 104 U. S. 271-280

sp^'ially to remoTe cause does not constitute general appearance;
Central Grain & S. Exchange v. Board of Trade, 125 Fed. 4ii9,
holding lUegalltT of service la cot waived by special appearance to
ohjfcl to JurlsdictloQ followed by answer on merits after motion
to set aside process is overruled; Cady v. Associated Colonies, 119
Fed. 423, 425, holding appearance to file removal petition Is special
ind is DO waiver of objection to jurisdiction on ground that defend-
iDt is foreign corponitloo uo longer operating within State; Tortat
T. HartUn, etc., Mfg. Co,, 111 Fed. 428. 431, holding void service on
iDUUiger of foreign corporation In suit to recover demands of such
officer, who assigned his claim without considenitlon to nominal
pliintiff; Balya Market Co. v. Armour & Co., 102 Fed. 533, hold-
ing appearance entered for defendant io suit against partnership
ii Oaol appearance by individual partners; Peterson v. Morris, t>8
Fd 49, holding filing of petition for removal Is not general appear-
Mce; Mulr v. Preferred, etc., Ins. Co., 203 Pa. St. 341, 53 Atl. 159,
Iwldlng petition for removal should be filed before defendant Is
reqiilred to file affidavit of defense.

I>i8tiiiguished in Baker v. Bimic, Go Nebr. 804, 93 Am. St, Rep.
4815, 89 N. W. 270, holding defeets of service are w^aived by an-
gering without taking objection thereto,

8yl 2 (XII, 902). Defendant objecting to service after removal.

Approved In Fidelity, etc., Co. v. Hubbard. 117 Fetl. 952, hold-
•% under removal statute of 1SS8, petition must be filed before
tliue when defendant is required to file aay pleading; Olds v. City
'^^l Safe Deposit, etc., Co., 114 Fed. 97a. holding filing of plea
^ Jiirisdlctlon of Slate court does not extend lime for filing re-
B>Ota! petition; Corbitt v. Farmer's Bank. 114 Fed. 603, holding
^oval of cause does not defeat defendant's right to move for
^t'at<»i]ient of attachment sued out in State court; Coldcrbead v.
^^^ning, 103 Fed. 30. holding appearance In State court of person
"^'""i oa Individual liability and as partner to contest attachment
"^*ttlug personal liability does not defeat removal of partnership
*i3it; Dvirr V. Hlldreth, 1S3 Mass. 442, 67 N. E. 357, holding no Issues
'^'f^ct raised on petition for removal are triable in State court

^'^1, 902). Mlscellaneou&

^llwl m Coker v. Monaghan Mills. 110 Fed. 806. denying Injunc-
^^Q to stay proceedings in action in State court sjendlng petition
^0' removal; Fife v. Whlttell. 102 Fed. 539, hobilng Insufficient,
^det removal act (25 StaU P- "1^3), petition alleging dlver.se citizen-
*hl{i but omitting allegation that defendant is " nonresident of the
^^laie;" Thompson v. Soutbern Ry., 130 N. C. 142, 41 S. E. 10, hold-
ifi^. under removal statute, corporation becoming domestic In North
CaroUiia cannot remove suit by petition alleging original Incorpora-
tloD lo Virginia.

t

104 U. S. 281-518 Notes on U. S. Reports. 732

164 U. S. 281, 41 L. 435, NATIONAL ACCIDENT SOC. ▼. SPIRO.
Syl. 1 (XII, 902). Defendant objecting to service after removaL
Distinguished in Balder v. Bank, 63 Nebr. 804, 93 Am. St. Rep. 486,

89 N. W. 270, holding defects of service are waived by answering

without taking objection to service.

164 U. S. 282-286. Not cited.

164 U. S. 287-294, 41 L. 437, McKEE v. UNITED STATES.

Syl. 2 (XII, 903). Statutory language restrained by legislative
intent

Approved in State v. Smiley, 65 Kan. 248, 69 Pac. 202, holding
general language of statutes Is limited to persons and subjects
within the legislative intent

Distinguished in Price v. Chicago Title & Trust Co., 182 U. 8.
452, 45 L. 1179, 21 Sup. Ct 912, holding creditor receiving XMiyment
within four months of debtor's petition in bankruptcy, but without
reason to believe preference was intended, cannot be compelled
to refund.

164 U. S. 294-301. Not cited.

164 U. S. 301-311, 41 L. 442, COUGHRAN ▼. BIGELOW.

Syl. 1 (XII, 903). Nonsuit not infringement of right to Jury triaL

Approved in Gentry v. Singleton, 128 Fed. 680, holding direction
proper where verdict for other party would require reversal; Priestly
V. Provident Sav. Co., 112 Fed. 272, holding where evidence as whole
would not support verdict for plaintiff court should direct for de-
fendant; Boudrot V. Cochrane Chemical Co., 110 Fed. 922, hold-
ing Federal court may direct for defendant where plaintiff's evi-
dence covers whole case, and but for defendant's conflicting proof,
would warrant submission to jury; dissenting opinion in Wells,
Fargo & Co. v. Walker, 9 N. Mex. 202, 50 Pac. 924, majority hold-
ing concealment of fact of embezzlement of person for whom de-
fendant signed note was sufficient fraud to vitiate note.

(XII, 903). Miscellaneous.

Cited in Kelley v. Cunard SS. Co., 120 Fed. 542, holding evidence
Justified submission of question whether certain merchandise wss
received on defendant's ship; Washington v. Rosario kilning, etc,
Co., 28 Tex. Civ. 434, 67 S. W. 462, holding purchaser whose option
was extended, providing he satisfied vendor by certain time of
ability to buy, has burden of showing such satisfaction.

164 U. S. 311-318, 41 L. 447, CAKE v. MOHUN.

Sjl. 3 (XII, 904). Receiver continuing business in court's dis-
cretion.

Approved in Makeel v. Hotchkiss, 190 III 315, 60 N. E. 528, hold-
ing claim of receiver appointed in suit involving equity of redemp-

T33

Notes on U. S. Reports, 164 U, S. 310-324

Oofl onlj» for services and expenditures on property, constituted
liea on equity only. See 83 Am. St Rep. 79, Dote.

DlstlngTiished in Maxwell y, Wilmington Dental Mfg. Co., 101
W» 861, holding creditors advancing money to corporation in
hifld* of receiver and taking notes wttliout order of court or under-
taking of receiver ag to preference enjoy no priority; International
Trast Co. V. United Coal Co., 2T Colo. 255. 00 Pac. 624, holding
coart has no power to authorize receiver of private business cor-
poration to make Indebtedness for carrying on business a lien
prior to that of prior licnholders; United States Investoiejit Corp.
T. Portland Hospital, 40 Or. 532, 67 Pac. 195, holding debts con-
tracted by receiver appointed under ei parte order conferring no
power to create liens do not constitute lien superior to prior mort-

ijyl 6 (XII, 904). Five hundred dollars attorney's fees reasonable.
Approved In In re Scott, 09 Fed. 407, affirming referee's order
iliowing |250 for receiver's services.

164 U, 8, 319^24, 41 L. 451. CITIZEN'S BANK v, CANNON.

Syl 1 (XII, 904). Joinder of suits cannot give Jurisdiction.

Approved in McDanlel v. Taylor. 123 Fed. 339, holding juris-
^ctioD of suit by hefrs to vacate several judgments for several
^feztdimts for sums less than $2,000 by combining the amounts;
IHHiflte County v. Stone, 110 Fed. 815, lioldlug in snit to enjoin
wUectloa of tax on lands by sale of timber therefrom, amount In
controversy Is amount of tax.

8jrL 2 (XII, 9(M), Future taxes cannot be added.

Approved In Holt v. Indiana Mfg. Co., 1T6 U. S. 72, 44 L. 377, 20
%. Ct 273, holding in suit to restrain collection of taxes less
*^ $2,000, fnture taxes which may be affected by decision canuot
•i^CTHse amount in dispute; Pnrneli v. Page, 128 Fed, 498, hold-
^ wider act 1888, making |2,D00 jurisdictional amonnt. Circuit
Ooort baa no Jurisdiction of suit to restrain collection of persouui
^tite tax of $80.

8yl 3 (XII, 904). Appellate court may allow costs.

Approred In In re Michigan Cent. E. R. Co., 124 Fed. 732, bold-
% decree against party for costs to be paid clerk for services is
ippenlable.

87L 4 (XI 1, 904). Court dismissing for Jurisdiction cannot decree

Approved In In re Phlladelpliia, etc., Co., 127 Fed, 8S6, holding

rule preventing award of costs on dismissal for want of Jurisdlo

dofl applies to Bnnkrnptcy Court; Reliance Lumber Co. v. UulhH-

cWld, 127 Fed, 749. holding Admiralty Court dismissing suit for

irant of Jurisdiction cannot award costs; In re Williams, 120 Fed.

U, holding court dlsralesing petition In Involuntary bankruptcy for

164 U. S. 325-361 Notes on U. S. Reports. 784

want of Jurisdiction cannot adjudge costs to debtor; In re Shoe-
malser, 112 Fed. 651, ordering dismissal of bankrupt's petition to
prevent sale by State court having Jurisdiction without no order
as to costs.

Distinguished in The Francesco, 118 Fed. 112, holding Admiralty
Court having Jurisdiction of parties and subject-matter, though
dismissing libel because no lien arose, may award costs against
libelant.

164 U. S. 325-327. 41 L. 453, CAROTHERS v. MAYER.

Syl. 1 (XII, 904). Statute of Limitations against patent not
Federal question.

Approved In Moran v. Horsky, 178 U. S. 214, 44 L. 1041, 20 Sup.
Ct. 860, holding State decision sustaining defense of laches against
assertion of right to mining claim abandoned fourteen years rests
on nonfederal question.

164 U. S. 327-337, 41 L. 454, CENTRAL R. R., ETC., CO. v.
WRIGHT.

Syl. 1 (XII, 904). Concurring State Justice's construction not
binding.

Approved in Brunswick Terminal Co. v. National Bank of Balti-
more, 112 Fed. 815, holding Federal court not bound by State court's
construction of liability statute where construction was made
after liability arose and was questioned in State.

Syl. 3 (XII, 904). Exemption cannot be presumed.

Approved In Ferry Co. v. Russell, 52 W^ Va. 361, 43 S. E. 109,
holding nonexclusive ferry privilege is neither contract nor vested
property as to restrict government grants to others.

164 U. S. 338-347, 41 L. 458, GONZALES v. FRENCH.

Syl. 1 (XII, 905). Department's decision binding where no fraud
nor mistake.

Approved in King v. McAndrews, 111 Fed. 865, holding ag-
grieved party's remedy for wrongful Issue of patent under mis-
take induced by fraud is by bill in equity; James v. Germania
Iron Co., 107 Fed. 000, holding party entitled to patent may pro-
ceed in equity to have patentee to whom patent issued under mis-
take of law declared trustee.

(XII, 905). Miscellaneous.

Cited in Emblon v. Lincoln Land Co., 184 U. S. 664, 46 L. 73S. 22
Sup. Ct. 525, holding contestant of pre-emption entry, who has
neither made nor perfected right to make entry, has no Tested
right which could defeat act confirming another's title.

164 U. S. 347-301. Not cited.

Notes on U, S. Reports. 1C4 U. S. SOl-388

l^ U. S. 361-367, 41 L. 467, EDGINGTON T, UNITED STATES.

Syl 1 (XII, 805). Bev. Stat, f 5438, not repealed by section
4746.

^proved In Pooler v. United States, 127 Fed. 513, holding Rev.
Stat, i 4746, as amended in 1898, coverB ofTense of making false
pension Toucber but does not cover offense of using game.

8yL 2 (KU, 905). Character evidence admissible to create doubt.

Approved In Rowe v. United States, 97 Fed. 780, holding er-
roaeoua charge tliat evidence of good character is to he considered
w»ly In case other evidence leaves question of guilt lu doubt;
DtnieU v. State, 2 Pennevir. (Del.) 597, 48 Atl. 200, holding erroneous
tettnwtlon that evidence of good reputation Is of value only In
cutt of doubt

IW D. S. 367^73, 41 L. 472. NOBLE v. MITCHELL.

Byl. 1 (XU, 905). Federal courts follow State construction.

Approved In Manhattan Life ins. Co. v, Albro. 127 Fed. 285,
Jw^ldlng Federal court sitting m Massachusetts is bound by State
nil« tli&t where application for insurance Is not admissible. It.s
cooteaiB cannot be shown; London, Paris, etc.. Bank v. Aronstein,
111 F<Hl 006, hdlding British corporation operating in California
411 ii Issuing stock to citizen is governed as to transfer of such stock
tj California law; Cook v. Howland, 74 Vt 39S, 93 Am. St Rep.
^15, 52 Atl, 1)74, upboiding Vt StJit, S 41S1, prohibiting foreign in-
•urance companies from operating within State without filing
*^cle«tnd obtaining license for resident agents.

^^ U, S. 873^80. Not cited.

^^ n. 1 380-383, 41 L. 477, STONE v. UNITED STATES.

^yl. 2 (XIl, 90G). Lower courts opinion cannot limit findings.

Approved in Terre Haute, etc., R. It Co. v. State, 150 Ind. 483,
^ ^. E. 410, holding where evidence supported general finding of
i-ourt, method bj* which tlie conclusion was readied is immaterial.

^t»tla^'uighed in Unltwl States v. Norfolk .& W. Ky- Co., 114 Fed.
^f*. boMliig opinion of conn miid^ port of record may be examined
^J ippellttte court to ascertain question presented.

1«* t. 8. 383-388, 41 L. 479. NOltTIIERN PAC. R. R. V. COLBURN,

W. 2 (XII, 90ti). Homestead rights cannot attach before entry.

Approved In Tarpey v. Madsen, 178 U. S. 226, 44 L. 1047,

^ Sup, Ci. 853, holding mere occupancy of eutryman without

flBflg declaratory statemeat will not protect his claim agaiu.st

/lilmad land grant: Sprinfe'er v. Clopatli. 26 Nev. l(Vi, Oii Pac. S«)ii.

lioWlng mere occupancy of lands listed to State l)y act is^i a.s

mwjipropriated land gave occupant do title as aj;ainst ptu chaser

tram State; Northern Pac. Ity, v. Nelson, 22 Wiish. 0.H1. til Pac.

Tim holding mere occupation of public lands without makitig entry

164 U. S. 38^-417 Notes on U. S. Reports. 736

until lands were withdrawn for railroad grant gives settler no
rights as against railroad company; dissenting opinion In Nelson v.
Northern Pac. Ry. Co., 188 U. S. 105, 23 Sup. Ct. 320, 47 L. 425.
majority holding bona fide entryman of unsurveyed public within
exterior limits of railway grant before definite location of route
but after withdrawal order will be protected.

Distinguished In Nelson v. Northern Pac. Ry. Co., 188 U. S. 132,
23 Sup. Ct 311, 47 L. 416, holding bona fide entryman on unsur-
veyod land in exterior limits of railway grant before definite loca-
tion but after withdrawal order will be protected.

Syl. 4 (XII, 906). Patent not always conclusive in action.

Approved In King v. M' Andrews, 104 Fed. 432, holding patoit
issued for lands appropriated by Dak. territorial act 1885 is without
authority and void.

(XII, 906). Miscellaneous.

Cited in M'Cune v. Essig, 118 Fed. 280, holding widow of home-
stead settler on making final proof is vested with absolute title,
exclusive of children.

164 U. S. 388-393. Not cited.

164 U. S. 393-403, 41 L. 485, ATLANTIC. ETC., R. R. ▼. LAIRD.

Syl. 1 (XII, 907). Court cannot consider companies jointly sued
as one.

Distinguished in Atlanta Nat. Bank v. Southern Ry., 106 Fed.
635, holding owner of cotton compress liable for misdelivery of
cotton instead of delivery in accordance with bill of lading.

(XII, 907). Miscellaneous.

Cited in First Nat Bank v. Grignon, 7 Idaho, 656, 65 Pac. 368,
holding judgment in another State on promissory note of firm Is,
as to nonresident partners served by publication, a suit in rem and
no bar to second suit.

164 U. S. 403-417, 41 L. 489, MISSOURI PAC. RY. v. NEBRASKA.

Syl. 1 (XII, 907). Supreme Court following State construction.

Approved in Cargill Co. v. Minnesota ex rel. R. R. & W. Com.,
ISO U. S. 467, 45 L. 626, 21 Sup. Ct 428, upholding Minn. Qen. Laws
1895, p. 313, requiring licensing of elevators and warehousee on
railroad right of way.

Syl. 2 (XII, 907). Erecting elevator on railroad private use.

Approved in Harp v. Choctaw, O. & G. Ry. Co., 118 Fed. 178, 178,
upholding railway company*s refusal to furnish cars to mineowner -
to be loaded by wagons on Its tracks In Its yards where others had^
no such privilege; Great Western Nat Gas & Oil Co. v. Hawkins^..
30 Ind. App. 5(56, 66 N. E. 768, holding natural gas company's !n-r -
strument of appropriation under eminent domain statute must shoi^B
that it furnishes gas to the public; Fallsburg. etc., CJo. v. Alexandei — ;.
101 Va. 108. 43 S. E. 198. holding unconstitutional Acts 180^19001

T37 Notes on U. S. Reports. 164 U. S. 418^458

p. 413. iDCorporating manufacturing company, conferring the power
of eminent domain for its own use and nse of other IndlTiduals.

Syl 3 (Xn, 90S). Eminent domain for prirate use unconatltu-
tlo&al

8ee 88 Am. St Rep. 980, note.

164 U. S. 418-435, 41 L. 495, WARNER T. TEXAS, ETC., RY.

SyL 1 (XII, 908). Oral agreement possibly extending beyond
year valid.

Aijproved In Adams-Booth Co. v. Reid, 112 Fed 110» holding
parol agreement between father and sons giving latter two-thirds
interest in former's realty inadmissible by virtue of Statute of
Frauds; Johnston v. Boweraoclv, ti2 Kan. 159, 61 Pac. 744, uphold*
l^g oral contract for furnishing water power during time of
nlnety-alne-year written contract which provided for termination
oi» thirty months' notice; Biest v. Versteeg Shoe Co., 97 Mo. App.
14U 1S2, 70 S. W. 1085, holding agreement to render service for
more than a year from date is within the statute.

(Xll, 908). MfflceJlaneoos.

Clte<3 in Peterman v. Northern Pac. Ry. Co., 105 Fed. 33G. hold-
l^fi. under Idaho Rev. Stat, 1S87, § 4100, giving heirs or representa-
^^« right to sue for wrongful deatli, a mother may sue for death of
•^n; Sulxer-Vogt Mach. Co. v. Rushvllle, etc., Co., lliO Ind. liOS. 65
^' E. 585* holding words ** above mentioned claims/' In act March
*• 1^, following enumeration of Hens, refers to laat class men-

^«4U. 8, 436-452, 41 L. 504, CHAPMAN v. UNITED STATES.

Sjl 1 (Xn, 908). District of Columbia criminal judgment not
'^Tlewable.

Approved in FaJk v. United States, 180 U. S, 636, 45 L. 700, 21
^% Ct 922. reaffirming rule; Sinclair v. District of Columbia,
f^U S. IS, 24 Sup. CL 213, holding, under section 233 of act March
^ IWl, Supreme Court cannot review criminal judgment of Dia-
^^ct of Columbia Court of Appeals on writ of error to such court.

^^ U. 8. 452-454. 41 L. 510, PERRINE v. SLACK.

Syl 1 (XII. 909). Controversy between mother and guardian not
^lipealable.

Approved In Woey Ho v. United States. 191 U. S, 558, 24 Sup. Ct
2?i aoa Campbell v. WaJte, 180 U. S. 635, 45 L. 709, 21 Sup. Ct
both reaffirming rule.

^*H U. 8. 454-458, 41 L. 511. CHICAGO, ETC., RY. v. CHICAGO.

Syl. 1 (XIX, 909), Federal question must Bpeclally appear below.

Dlailngolshed In Adkins v. Richmond, OS Va, 93, 34 S. E. 967,
"^Oldln^ refasal of instructions Intended to Invoke protection of com-
Vol- III --47

1

104 U. S. 458-482 Notes on U. S. Reports. 738

merce clause of Federal Constitution sufficiently raises constitu-
tional question.

164 U. S. 458-471, 41 L. 512. THE KATE.

Syl. 1 (XII, 909). Notice of charterer's Uability defeats nuuritime
lien.

Approved in The Chicklade, 120 Fed. 1006, holding stevedore
contracting with ship brokers for loading of foreign vessel learn-
ing same was under charter but making no inquiries and allowtnfl^
ship to sail has no lien; The Underwriter, 119 Fed. 755, 760, 781»
762, holding libelant knowing vessel is under charter has no Ueo
for furnishing coal to vessel on master's order where no necessity
was shown and where charter limited master's authority; Cuddy
V. Clement, 113 Fed. 463, holding Rev. Stat. Ohio, creating lienmi
on steamboats for supplies and labor, is restricted to domestl^^
vessels; The G. W. Moore, 107 Fed. 958, holding wharf owner wt^<^
is put on inquiry has no lien for wharfage rentals in port whe^-^«
charterer lives, where charter requires latter to keep vessel free fr<^^^
liens; The George Farwell, 103 Fed. 883, holding libelant makli
repairs on vessel on statement of port captain that vessel was gc
for bill but without making inquiries has no lien.

Distinguished in The Solveig, 103 Fed. 325, holding advancett
crew in favor of charterer whose charter was not with owners ""

with holder of time charter, which bound latter to pay char|^ -^ ^
gives no maritime lien; The South Portland, 100 Fed. 49G. Uq^^ ^
ing lien on vessel given by 2 Ball. Codes Wash., § 5953, for f

nlshing equipment at request of agent of alleged part owner Qf

vessel, is enforceable in admiralty; The Iris, 100 Fed. 107, 108, L ^)9^
holding suit may be brought In Admiralty Court to enforce lien oo
vessel imposed by State statute in favor of one furnishing labor ^^kJid
materials.

164 U. S. 471-482, 41 L. 518, NEW ORLEANS W. W. CO. v. XC^^W
ORLEANS.
Syl. 1 (XII, 900). Equity requires presence of parties affected.- —
Approved in Talbot J. Taylor, etc., Co. v. Southern Pac. Co.. 1—^^^
Fed. 152, holdiug stoclvholder is an indispensable party in suit ^®

enjoin voting of his stocli at meeting of shareholders for electi** ^^
of officers; Moore v. Jennings, 47 W. Va. 190, 34 S. E. 797, holdi^^^"^
all owners of fee of both tracts are necessary parties to suit ^^^^
lessors and lessees of one against lessees of other to determl^:^--'"*
boundaries and title to oil lands.

Distinguished in City Water Supply Co. v. Ottumwa, 120 F€^^^
311, holding in taxpayer's suit against city to enjoin executi^^''
of contract creating indebtedness beyond constitutional limit, t^^^
other contracting party is not necessary party. j

Syl. 2 (XII, 900). Legislature may delegate local matters. i

Approved in Mercantile Trust, etc., Co. v. Collins Park, etc, C^^*
09 Fed. 819, holding ordinance granting street-railway franchise hB^

Notes on U. S. Reports. 164 U. S. 4S3-d02

force of State law under provision of Georgia Constitution prevent-

liig legislature from granting franchises without municipal consent;

dissenting opinion In Freeport Water Co. v. Freeport, ISO U. S. G09,

45 U e&2, 21 Sup, Ct 502, majority holding IIL Acts April 9 and 10,

1872, da not autliorlze cities to make contract giving water com-

pin7 right to fii rates for thirty years.

SyL ^ (XII, 900). Municipal ordinances having force of State law.

Approved In State v. Superior Court of Milwaukee County* 105

Wis. G73» 81 N. W. 1052, holding court cannot enjoin passage of or-

-^toajice granting use of streets pursuant to Rev. StaL, | 1862.

SyL 4 (XII, 910). Equity cannot prevent exercise of legislative
^powers.

Approved in McChord v. Louisville & N. R. R. Co., 183 D. S, 496,
-^6 L. 205, 22 Sup. Ct. 170, holding railroad companies cannot obtain
M^nlmictlOD against State railroad commission before any rates are
^ScLi^l State V. Superior Court of Milwaukee Co., 105 Wis. 677, 81
-^^'. W. 1054, holding equity cannot enjoin passage of city ordinance
«^n grounds affecting its validity.

Diatlngulshed in Poppleton v. Moorea, 62 Nebr, 855, ^ N, W.
^L2&, liolding equity will enjoin passage of ordinance extending water
^"^raiichlse where same is against city charter and will be prejudicial
taxpayers.

^4U. S. 483-492. 41 U 524, GRIMES DRY GOODS 00. y. MAL-
COLM.

8yL Z (Xn» ©10). statements after executing Instrument cannot

Distinguished In In re Foster, 126 Fed. 1016, holding, uncor-

Iwrated testimony of single witness to alleged bankrupt's state-

*nt that vendee was a creditor is Insufficient to show preference.

SyL 4 (XII, 910). Court refusing jury to change verdict

Approved In Gentry v. Singleton, 128 Fed. 6S0, holding, where

tdence conclusively entitled plaintiff to verdict, it was court's

^^^7 to direct verdict; Whitney v. New York, etc., R. Co., 102 Fed,
'3. holding defendant for whom court directed verdict may support

.^^rdia on any ground which the evidence in bill of exceptions

^^^^U.S. 402-^502, 41 L. 52S» ALLEN v. UNITED STATES,
^rl 2 (Xn, 910). Killing may raise Inference of malice.
^^pproved In Rutherford v. Foster, 125 Fed. 191, holding presump-
^^0 from admitted killing Ib that act was wrongful and defendant

r

I

^«m prove justification.

DiitlDguished in Ross v. State, 8 Wyo. 385, 57 Pac. 932, sustaining
^^'•tnietlon that defendant was guilty of murder in first degree if
^l|ni to murder existed before or at time of act, where defendant

^ held for murder in second degree.

1G4 U. S. 502-^26 Notes on U. S. Reports. 740

Syl. 4 (XII, 910). Mere words cannot reduce murder to man-
slaughter.

Approved in Vance v. State, 70 Ark. 277, 68 S. W. 29, holding angry
words used by Chinaman without making any overt act to cut or
shoot cannot reduce murder to manslaughter.

Syl. 5 (XII, 910). Justifiable homicide require reasonable b^ef
of peril.

Approved In In re Lalng, 127 Fed. 219, holding defendants killing
deceased who was resisting arrest pointing pistol toward defendants
who were requested to assist In arrest are entitled to release on
habeas corpus. See 74 Am. St. Rep. 726, note.

Syl. 6 (XII, 910). Flight is competent evidence of guilt

Approved in Bird v, United States, 187 U. S. 131, 23 Sup. Ct 47,
47 L. lOG, sustaining Instruction that attempt to escape from Im-
prisonment four months after arrest Is only slight evidence of guilt.

164 U. S. 502-526, 41 L. 531, WILLARD v. WOOD.

Syl. 2 (XII, 911). Law of forum determines limitation.

Approved In Central Electric Co. v. Sprague Electric Co., 120 Fed.
926, holding law of forum governs action In Federal court by creditor
of corporation against transferee of corporate assets; Brunswick,
etc., Co. V. National Bank, 99 Fed. 636, holding Georgia Statute of
Limitations governs In action In Maryland against stockholdtf In
Georgia corporation to enforce charter liability.

Syl. 3 (XII, 911). Grant, subject to mortgage, simple contract.

Approved in Eckington, etc., Ry. Co. v. McDevltt, 191 U. 8. 115,
24 Sup. Ct. 39, holding erroneous Instruction fixing measurement
of damages for breach of covenant to run street cars at difference
in value of land permanently without and permanently with service;
Hale V. Coffin, 120 Fed. 473, 474, holding equity will apply Maine ^
statute limiting action against heirs of decedent In proceeding to ^
enforce statutory liability of deceased stockholder, afl^rmlng 114^
Fed. 576; Taylor v. Forbes, 101 Va. 665, 44 S. E. 890, holding agree--*
ment by grantee in a deed to assume an outstanding debt Is i^
simple contract barred in three years.

Syl. 7 (XII, 911). Court noticing laches of own motion.

Approved in Heirs of Ledoux v. Lavedan, 52 La. Ann. 332, 27 Sc^m
205, holding confiscatee*s creditors having acquiesced In possesslo*^
of heirs for ten years cannot dispute the title conveyed by latter.

Syl. 8 (XII, 912). Failure to prosecute suit diligently fataL

Approved in Coleman v. Akers, 87 Minn. 494, 92 N. W. 408, bol«*
ing failure to enter default judgment for eight years after service
of summons defeats right to enter same; Mantle v. Speculator Mlx»-
Co., 27 Mont. 478, 71 Pac. 667, holding delay of five years In suing to
restrain defendant from operating mine bought In common but In
defendants name bars suit.

I

m

Notes on U. S. Reports. 164 U. 8. 520-577

IM U. S. 52&-546, 41 L. 541, UNITED STATES t. OREGON* ETC.*
R. R. CO.
8yL 2 (XII, 912). Railroad grant constraed favorably to govem-

Approv€<3 in Sona v. United States. 189 U. S, 239. 23 Sup. Ct 598,
47 L. 7D1, holding grantee seeking eonflrmatloEi of Spanish land
graat must show the grant and that the boundaries were fixed with
reasonable certainty.
SyL 4 (XII, 912). Title cannot control unambiguous statute.
Jkpproved in Cornell v, C-oyne, 192 U, S. 430. 24 Sup. Ct S86. hold-
tug' titie of act cannot be resorted to for construction where act fa
oanmblgiious; Patterson v. Bank Eudora, 190 U. S. 173, 23 Sup. Ct
8E22. 47 Li. 1005, holding seamen shipping In American ports on
rorclsn Tesselfl engaged In foreign commerce are within protection
o^ art 1808, against prepayment of seamen's wages; United States
r. BleCrory, 119 Fed. 804, holding title is no part of act and cannot
control the words of act unless ambiguous.

le^ U. S. 546-55S, 41 L. 547. ROWE v. UNITED STATES.

Syl. 1 (XII, 912). Accused making slight assault may defend*
S^ 74 Am. St Rep. 728. ooto.

l»^ U. S. 550-577, 41 L. 552. ROGERS LOCOMOTIVE MACH*
WORKS V. AMERICAN EMIGRANT CO.
^ jl 2 (XII, 912). Title under swamp land act inchoate.
-A.i>[iroved Id Schlosser v. Hemphill, 118 Iowa, 458. 90 K W. 843,
flKBlcjIu^ title by adverse possession t-annot be gained to unsurveyed,
kl>atented lands conveyed by swamp land act of 1850; Ogdeu v,
Buc^kley^ 116 Iowa. 355, 80 N. W. IIIG, holdtng county selling all
'^ swnmp 1.1 nd cannot pass title to un surveyed land since under
''^nip land act 185U State took only an inchoate title; dissenting
«l>lnlon In Kean v. Calnmet Canal Co., 190 U. S. 491, 23 Sup. Ct
^^^* 47 L. IITA majority holding Federal patent to Indiana pursuant
^•* «nainp land ntt eovortng '* whole of fractional sections,*' carried
t^Hions submerged under navigable waters.

*5lL 4 (Xn, 913). Certification of railroad lands shows not swamp
^aijil.

•^l*P^o?ed la Young r. Charnqulst 114 Iowa, 120. 86 N. W. 21X1.

': iiij; secretary of interior by certifying lands to State as railroad

':^ lietermliies that they are not swamp lands; Small v. I.utz.

*1 »»r 579, 60 Pac. 827, holding purchaser from State of lauds

'j^ted jis swamp lan<is, but after approval was revoked. Is lnjund by

•*CT^tai7'» determination that same were open for homestead.

DiftUngtilshed in Young v. Sndl, 115 Iowa, 33, 87 N. W. 720»
Wdlag railroad company estopped by twenty years' delay after
Section and live years after certllioatlon to bring action to quiet
Otle Agaltist defendant who bad paid taikCS.

1G4 U. S. 578-^98 Notes on U. S. Reports. 7^

Syl. 5 (XII, 913). State accepting certification of railroad lac
estopped.

Approved in Young v. Charnquist, 114 Iowa, 123, 86 N. W. 2C
holding acceptance of secretary's certification of lands as railro ..s- ^
lands bars State from claiming same as swamp lands.

(XII. 912). Miscellaneous.

Cited in Young v. Charnquist, 114 Iowa, 126, 86 N. W. 209, ho^ ^^^^
. ing where suits were pending involving lands claimed by railro .s^ ^
failure to assert title not exceeding statutory period was not fr^ _m_^
laches; Olson v. Leibplce, 110 Iowa, 596, 599, 81 N. W. 801, 802, ^^Bl^^
holding purchaser from plalntlfT acquired no Interest as agaft^ _^j
defendant where sale occurred while suit to quiet title was pen^i^ ^j
on appeal.

164 U. S. 578-698. 41 L. 560, COVINGTON, ETC., TURNPI^Et==CI
ROAD CO. V. SANDFORD.

Syl. 1 (XII. 913). Supreme Court reviews State rate decision.

Approved in Chicago. Milwauliee, etc.. Ry. v. Tompkins, 176 UIT , s.
173, 44 L. 420, 20 Sup. Ct 338, holding Supreme Court will ln<jm__jire
whether rates fixed by State statute are reasonable.

Syl. 2 (XII, 913). Legislative exemption not included in

** powers."

Approved in Matthews v. Board of Corporation Comrs., 97
403, holding purchaser succeeding to " franchises, rights, privily
and immunities" of mortgagor does not succeed to mortgago^s^^*^
right to fix rates; Chicago Union Traction Co. v. Chicago, 199 ^ ^.,
ry'M, 65 N. B. 465, holding corporation subject to legislative reguE- ^-^^
tion, leasing street railroads with power to fix rates, does not 00^
quire such exemption from legislative control.

Syl. 3 (XII, 913). Relinquishment of legislative control nev^"^"
presumed.

Approved in Terre Haute, etc., R. R. Co. v. State. 159 Ind. 45r^^
('►5 N. E. 407. holding under Loc. Laws 1847. creating corpora tio^^^ '
with power to fix rates until sum invested and 10 per cent, tbereo^^
wa.s earned, corporation must pay surplus thereafter to State.

Syl. T) (XII, 013). Losing rates is deprivation of property.

Approved in Palatka W. W. v. Palatka, 127 Fed. 165, 166. holer ^
ing court will interfere with rates established by city so dearie '
unreasonable as to amount to attaclf on property; Jack v. WUllamt^
113 Fe<l. 827, holding court may order tearing up railroad whic^
had always been run at a loss; Matthews v. Board of Corp. Comnf
101) Fed. 8, 9, 10, holding rate for transportation of fertilizer f
not unreasonable wlien for four years company made a fair ui
profit; Louisville, etc., R. R. Co. v. McChord, 103 Fed. 220, boldii
unconstitutional Ky. act March 10, 1900, providing for hearing I

pus Notes on D. S. Reports. 164 O. S. 599-611

TQtB railroad eommtsalon for eliarg^Jng" extortionate rates, and em*
IDOwerIng commission to flac reason able rates.

Dlstingulsbed In Railroad Comrs. v. Grand Rapids, etc*» R. Co.,
i30 Mich, 251. 89 N. W. 9ti7. holding new company organizing und#r
2 Comp. Laws 1897, § 6224, on foreclosure against old company and
taking old company's rights does not succeed to right to fix rates.

SjrL 6 <XII, 914K Corporation person within due process guaranty.

Approved In Russell v. Croy» 104 Mo. 99. G3 S. W, 853, holding
nncou^titTitional proposed constitutional amendment declaring that
except as to corporations, mortgage, deed of trust, shall be deemed
interest tn property. See 85 Aol St Rep. 907, note.

SyL 9 (XII, 914). Public right involved lo determining reason*

Approved In Cottlng v, Godard, 183 U, S. 85. 88. 46 L. 9f), 22 Sup,
Ct* 33, holding stockyards corporation denied equal protection of
I laws by Kan, act 1897, limiting Its charges without limiting those
L of smaller concerns; Interstate Commerce Com. v. Louisville, etc.,
I R. Co., 118 Fed. 624, holding railroad company cannot charge ex-
t^«€sslTe or discriminatory rate to promote Its own interests !n com*
B*^«titIon; Tranamell v. Dinsmore, 102 Fed. 790, upholding Georgia
Ooustitution authorizing laws regulating rates and regulations of
Commission created by such laws establishing reasonable rates;
Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 259, 2til, 91
N", W. 1090, 1091, upholding city ordinance limiting water rates so as
t^ tUow between 4% and 5\<j per cent on estimated capital; Ken-
ttehec Water Dlst. v. Waterville, 97 Me. 203. 204, 54 Atl. 13, 14.
Holding reasonableness of r«tes of public water company is fair
^alue of property used, with cost of maintenance and service.

SyL 10 (XII, 915). Act imposing different rate on turnpike com-
Pnnles valid,
^H Approved in Andrus v. Insurance Assn., 168 Mo. 163. 67 S. W. 585,
^^■IftAtaiuing State practice of allowing plaintiff in suit on Insurance
^T^Ucy to prove waiver, without alleging waiver in petition.

^e* U. 8. 699-611, 41 L. 567, MAUSH v. ARIZONA.

SyL 5 (XII» 915). Taxation of unconfirmed Mexican grant

Approved in Dry Dock Co. v, Baltimore, 97 Ind. 99, 54 Atl. 624,
^f)ldlng land conveyed by government for construction of dry dock
*o be subject to free use by (government is subject to taxation.

Diiilngulshed In Page v. Pierce Co.; 25 Wash. 9, 10, 11, 64 Pae,
^02, 803, holding PuyaJlup Indian reservation lands sold In accord-
ance with 27 Stat 612» onder deed passing title on full payment,
^te not taxable by State.

8yL 7 (XII, 815K Mere error of judgment cannot vitiate assess-
tneiit

Approved in Missouri y, Dockery, 191 U. S. 170, 24 Sup. Gt 53,

164 U. S. 612-635 Notes on U. S. Reports. 744

holding judgment of State board of equalization of Mlssonrl !■
final under State statutes.

164 U. S. 612-^27. 41 L. 572, GONZALEZ v. CUNNINGHAM.

Sy\, 2 (XII, 916). Habeas corpus not substitute writ of error.

Approved In Rice v. Ames, 180 U. S. 374, 45 L. 681, 21 Sup. Ct. 407,
holding act 1891 authorizes appeal and not writ of error from
District Court decision denying application for discharge on habeas
corpus and Involving construction of extradition treaty; In re W^ty,
123 Fed. 126, holding court had Jurisdiction by nunc pro tunc order
at subsequent term to direct amendment of entry of sentence to
include requirement of " hard labor."

Syl. 3 (XII, 916). Territorial legislature providing for special
court term.

Approved in Stockslager v. United States, 116 Fed. 595, holding
special term of Alaska District Court held at Nome presumed to rest
on notice given according to 31 Stat. 321 where Irregularity not
shown.

(XII, 916). MisceUaneous.

Cited in Gorham v. Broad River Tp., 113 Fed. 84, granting leare
to amend petition for writ of error, nunc pro tunc, before case re-
moved, to substitute ** plaintlfiT " for ** defendant," latter erroneously
appearing as aggrieved party.

1G4 U. S. 627-632, 41 L. 577, STARR v. UNITED STATES.

Syl. 1 (XII, 916). Sufficiency of warrant for arrest

Approved in Territory v. McGinnis, 10 N. Mex. 280, 61 Pac. 212,
holding question whether one about to arrest felon gave sufficient
notice of bis intentions under the circumstances Is for the Jury.

Syl. 3 (XII, 91G). Flight not always evidence of guilt.

Distinguished in Bird v. United States, 187 U. S. 131, 23 Sup. Ct
47, 47 L. 106, sustaining instruction that attempt to escape after
arrest was strong or slight according to the circumstances sur-
rounding.

104 U. S. 033-635, 41 L. 579, IN RE ATLANTIC CITY R. R.

Syl. 2 (XII, 910). No mandamus to compel Circuit Court to
dismiss.

Approved in In re Huguley Mfg. Co., 184 U. S. 301. 46 L. 562,
22 Sup. Ct. 450, denying mandamus to compel dismissal of bill by
Circuit Court where right of appeal to Circuit Court of Appeals and
Supreme Court was open; The Union Steamboat Co., 178 U. S. 319,
44 I.. 10S5, 20 Sup. Ct 905, holding decision of inferior court upon
matter left open in mandate is not reviewable by mandamus; Kim-
berlin v. Commission to Five Civilized Tribes, 104 Fed. 055, holding
court will not award mandamus to compel commission to five
civilized tribes to enroll applicant as citizen of Chickasaw nation;

Notes on U. S. Reports.

164 U. S. 636^656

In re Westervelt, 98 Fed, 912, denying petition for mandamus to
compel Circuit Court to strike out answer and to sign decree for
petitioner when right of appeal exi£tedL

104 U. S. 036-649. Not cited.

164 U. 8. 650-C56» 41 L. 5S6, OSBORNE v. FLORIDA.

8yL 1 (XII, 91T). Federal courts follow State coustnictloiu
Api>roved iu PuUmao Co. v, Adama, 189 U. S. 422, 23 Sup. Ct
i%, 47 L. 878, upholding privilege tax on sleeping and palace-car
companies Imposed hy Miss, Code 1892, |§ 3317, 33S7, wbere trans-
piiftadoa of local passengers Is optional, affirming 78 Miss. 829,
3w So. 758: Oakland Sugar Mill Co. v. Fred W. Wolf Co, 118 Fed.
-43, 240. upholding Mich, franthise tax act 1891, as construed by
^\zt court, to affect foreign corporations as to local business only;
Stnte V. Northern Pac. Exp, Co.. 27 Mont. 424, 71 Pac. 406. hold-
ing express compaay transacting Interstate and intrastate business
is Qot liable for occupation tax under Pol. Code, § 4<J74.
Sj-l 2 (XII. 917). State tax on interstate express company valid.
Approved In New York v. Knight, 192 U. S. 27» 24 Sup. Ct 204,
'H>hoUliiig tax Imposed by New York statutes upon independeat
'•^^» Jservice roniatained by Pennsylvania railroad at its New York
^miilttal: Allen v. Pullman Co., 191 U. S. 181. 1S2. 24 Sup. Ct 42,
'iP^oldiag Tenn. act 18S9, Imposing annual tax on sleeping-car
^^"^[janies carrying local passengers, leaving such carriage optional
^ilii companies ; State v. Rocky Mountain Bell Tel. Co., 27 Mont,
^13. 71 Pac. 314, upholding Pol. Code, § 4071, imposing license upon
^*^'^Ty corporation ** doing business In this State " as a telephone

I^istlngulshed In Alien v. Pullman Co., 191 U. S, 180, 24 Sup. Ct.
'W. holding unconstitutional Tenn. act ISST, imposing annual tax
^" »l"ii?plng-car companies without djstiagulslimg between local and
J^tersiate carriage.

<^^1I, OlTj. Miscellaneous.

^^'ited In German Sav, Soc v, Dormltzer, 192 U. S. 128, 24 Sup.

222, Uolding whole case la not open on appeal from State court

' ^ongtitutional grounds: Wright v. MacFarlane, etc.. Sons, 122

^^ 775. hoMlng, under act 1891, Circuit Court of Appeals has

"" JtiHBdJction on appeal from Hawaiian court in case depending

^fiMitional question; St. Clair County v. Interstate Sand &

i uusfer Co., 110 Fed. 785, holding Circuit Court of Appeals has

^^jurisdiction on writ of error to reTlew Judgment involving con-

•litiuionallty of State statute; In re Wilson, 19 N. Mex. 36. 60 Pac.

<5. holding unconstitutional Sess. Laws 18*J9» p. 101, Imposing license

f*e MA coDditloQ of selling coal oil, so far as applied lo sales in

tiH^luU packages by Importer; State v. Zophy, 14 S. Dak. 125, 84

X W. 393, 86 Am. St Kep. 745, holding unconstltutloDal Sess. Laws

164 U. S. 657-686 Notes on U. S. Reports. - 7^m^d

1897, chap. 72, imposing wholesale tax on foreign liquor dealer?--
relieving resident manufacturers therefrom on payment of maiM. -v^
facturer's license.

164 U. S. 657-662, 47 L. 588, NAFIRB v. UNITED STATES.

Syl. 1 (XII, 917). License carries presumption of regularity

Approved in Eltonhead v. Allen, 119 Fed. 128, holding wh^^^^

record is silent as to affidavit in attachment it will be presun^..^

in favor of Jurisdiction.

164 U. S. 662-676, 41 L. 590, FORD v. DELTA, ETC.. LAND CC^<^

Syl. 1 (XII, 917). Exemption never presumed.

Approved in Louisiana, etc., R. R. Co. v. State Board of ^^a^
praisers, 108 La.* 19, 32 So. 186, holding railroad whose road >, -^
laclis 20 per cent, of being completed is ** substantially complete«i.-s!
within article 230 of Constitution, preventing exemption.

(XII, 917). Miscellaneous.

Cited in Guarantee Trust, etc., Co. v. Delta, etc., Co., 104 P*'"— ^
16, holding complainant bringing suit to quiet title to land cli
by defendant under conveyances executed twenty-five and
years before commencement of suit is barred by laches.

164 U. S. 676-683, 41 L. 595, FRANCE v. UNITED STATES.

Syl. 2 (XII, 918). Figures of completed drawing not within a^^
1895.

Distinguished in dissenting opinion in Francis v. United Stat^P*^^
188 U. S. 381, 382, 23 Sup. Ct 336, 47 L. 612, majority hoWiiC^-^
policy slips indicating choice of numbers in policy game to ttf
forwarded to headquarters in another State are not within t«^-^
181)5 against lotteries.

Syl. 3 (XII, 918). Penal statute strictly construed.

Approved in United States v. Whelpley, 125 Fed. ei«, holdiK^
act 1895, against carrying lottery tickets frOm one State to anothe^^
does not prohibit carriage into District of Columbia.

104 U. S. 681-686, 41 L. 598, BUSHNELL v. LELAND

Syl. 1 (XII, 918). Comptroller determines necessity of aitei^
ment.

Approved in Studebaker v. Perry, 184 U. S. 266, 46 L. 532, r
Sup. Ct. 467, holding Rev. Stat, § 5234, empowers comptroller
currency to make second assessment on bank stockholders whtf
liist is insufficient; Boyd v. Schneider, 124 Fed. 242, holding receiii
acting under direction of comptroller of currency is proper per*
to bring suits against national bank directors for mlsmanageme
Dastervignes v. United States, 122 Fed. 35, upholding sundry d
appropriation act 1897, authorizing secretary of interior to uu
regulations governing occupancy and use of forest reservatio

"47

Notes on U, S. Reports.

164 U. S. 6S6-694

IDeweese ▼• Smltti, 106 FedL 441* holdlag liability of stockliolders
of natiooal bank matures at such time and In such amounts as
cromptroller adjudges; Aldrkh v. Campbell, 97 Fed, 005, holding
€?emptro1Ier'6 action in levying assessment on bank stockhoWers ft
cronclusive on question of necessity therefor and cannot be ques-
tilooed by stockholders.

Distinguished in King y. Fomeroy, 121 Fed. 293. holding court of
€?^uUy appointing receiver to wind up national bank has plenary
l>ower to direct receiver to enforce stockholder's liability.

Xe* U. S. 686-691, 41 L, 599, UNITED STATES V. NORTHWEST-
ERN. ETC., TRANSR CO.
SyL 1 (XII, 919). CorporaUon of State Is " citizen."
Approved lo Russell v. Croy, 164 Mo. 99, 63 S. W. 853, holding
Ln valid proposed constitutional amendment declaring that for tax-
ation a mortgage or obligation securing debt, except as to corpo-
rmtions, should be an interest in the property; Ramsay v. Tacoma
L* Co,. 31 Wash. 356, 71 Pac. 1026, holding land company organized
In Pennsylvania Is a citizen of United States within act Congress
ISS7, for purchase of land from United States.

104 U. S. 691-^4, 41 L. 601, EX PARTE JONES.

Syl 1 CXII, 919). Diverse citizenship — Decision against na-
tional bank final.

Approved In Continental Nat Baok r. Buford, 191 U. S. 124,
^^ Sup. Ct 56, holding, under act 1S91, Circuit Court of Appeals
■"Anders final Judgment In suit by national bank against corpora-
te n of another State on nonfederal issues.

SyL 2 (XII, 919). Decision linal where citizenship main ground.

Approved in Huguley Mfg. Co. v. Galeton Cotton Mills. 184 U. S.

^*, 46 L. 548, 22 Sup. Ct 454. holding section 6, act 1891, makes

^^^clRlona of Circuit Court of Appeals final In cases In which juris-

^tion originally attached on ground of diverse citizenship; Ameri-

**JMi Sugar Refining Co. v. New Orleans, 181 U. S. 28(1, 45 L. 861, 21

^op, Ct 647, holding Circuit Court of Appeals has Jurisdiction of

*^U resting on diverse citizenship though a defense entered thereon

^o^olved constitutional question; Loeb v. Columbia Township, 179

^' 8. 479. 45 L. 286, 21 Sup. Ct 177, holding Supreme Court's Juris-

**lnloo under section 5, act 1891, extends to cases In which either

^*rty claims unconstitutionality of State law.

(XII, 019). Miscellaneous.

Cited In Owenslxiro v. Owensboro Water-Works Co., 115 Fed.
^ holding Supreme Court has exclusive jurisdiction of appeal
'ronj decision In ease in which Circuit Courtis Jurlsdictioo rested
•aUrtiy on constitutional question.

164 U. S. 6M^703 Notes on U. S. Reports. 748

164 U. S. 694-699, 41 L. 602, CARVER v. UNITED STATES.

Syl. 2 (XII, 919). Conversation, in evidence, may be contradicted.

Approved in Fidelity, etc.. Casualty Co. v. Dorough, 107 Fed. 391,
holding where defendant in accident policy case introduced depo-
sition of witness recounting conversation with deceased after ac-
cident, plaintiff may show what was in fact said.

Syl. 3 (XII, 919). Dying declaration may be contradicted.

Approved in Green v. State, 154 Ind. 659, 57 N. E. 638, holding
after State has introduced dying declaration accusing defendant,
accused may offer deceased's statements though not dying declara-
tion to impeach same. See 82 Am. St Rep. 40, note.

Distinguished in State v. Taylor, 56 S. C. 368, 34 S. E. 943. hold-
ing statements made two hours after shooting are inadmissible as
part of res gestae and cannot be used to impeach dying dedaratlona.

164 U. S. 701, 41 L. 1180, TUCKER v. McKAY.

(XII, 919). Miscellaneous.

Cited in dissenting opinion in Giles v. Harris, 189 U. 8. 489, 28
Sup. Ct 647, 47 L. 913, majority holding Jurisdiction of Supreme
Court to consider case involving constitutional question cannot be
narrowed by certification of Jurisdictional question.

164 U. S. 701, 41 L. 1181, UNITED STATES v. LOCHRBN.

(XII, 919). Miscellaneous:

Cited in Murpby v. Utter, 186 U. S. 101. 46 L. 1075, 22 Sup. Ct
778, holding change in personnel of Arizona loan commission does
not abate action against members in official c^;Micity to compel
issue of refunding bonds.

16i U. S. 703, 41 L. 1182, CHICAGO, ETC.. RY. CO. ▼. ROBERTS.

Miscellaneous.

Cited in Richards v. Modern Woodmen, etc, 14 a Dak. 442, 85
N. W. 1000. holding filing of sufilcient petition and bond for re-
moval to Federal court divests State court of Jurisdiction.

CLXV UNITED STATES.

i U. S. 1-27, 41 Lt 611. ST. LOUIS, ETC., RY. v. MATHEWS,

SyL 1 (XII, 921). History of law of firea.

Approved in Marande v, Texas & Pac. R. R, Co., 184 U. S. 194,
4e L.. 4I>7. 22 Sup. Ct, 348. holding railroad liable for cotton ie-
»t3"oyed by fire while in Its cars on its tracli near wblcli locomotive
"Was working: Baltimore, etc, R* R, Ck». v, Kreager, 61 Ohio St,
328. 331, 56 N. E. 205, 200, upholding 91 Ohio Laws, p. 1S7, imposing
on railroads absolute liability for loss, or damage by flre originat-
ing i^i their lauds.

Syl, 2 (XII, 921). Statute making railroad liable for fires.
approved In Mexican Nat R. R. Co. Y. Jackson, 118 Fed. 552,
upholding Laws Tex. 1897, Spec. Sess., p. 14, prolil biting contracts
liixiltliig liability of employers for damages; 0*Brlen v, Chicago,
«tc-. Ry. Co., 116 Fed. 507, holding, under Iowa laws, contract
tietween express messenger and express company exempting rall-
rtiad from liability for iujuriei Is no defense in action against
iTillroad: Merchants' Life Assn, v, Yoakum, 98 Fed. 205, upholding
Rev. Stat Tex. 1895, art 30T1, making life insurance companies,
^aJllDg to pay loss after demand ^therefor, liable to payment of
12 per cent damages on amount of loss and attorney's fees for
Ptx>8ecutlon and collection of such loss; Grand v. Minneapolis &
St. L. R R. Co., 114 Iowa, 719, 726, 87 N. W. 717, 719, 89 Am. St
^^. 388, 403, upholding Code, g 20O7, requiring railroads exer-
tlsliig power of eminent domain to pay landowner reasonable at-
torney's fees in condemnation proceedings; Kingsbury v. M., K. &
"^^ By., 156 Mo. 387, 57 S. W. 549, upholding Rev. Stat 1889, | 2611,
WiUiorlzJng recovery of double damages sustained by reason of
•^k entering adjoining lands in consequence of Insufficient rail-
road fence; McFarland v. M., K. & T. Ry. Co., 94 Mo. App. 346, 68
S. W. 106, and Blackmore v. Missouri Pac. Ry., 102 Mo. 461, 62
8. W. 994. both upholding Rev. Stat 1899, | 1111, making railroad
IWrte for destruction or injury of property by fire communicated
^7 sparks from locomotive; Chicago, etc., R. R. v. Zernecke, 59
^ebr 897, 82 N. W. 28, upholding Com p. Stats., art 1, chap. 72,
13. giving right of action to person for all Injuries sustained while
ptssenger, except when occasioned by own negligence or violation
of aome rule of carriers actually brought to his notice; Orr v.
Southern Bell Tel, Co,, 132 N. O. 695. 44 S. E. 403, holding em-
ployee will not be held to have assumed risk in undertaking to

1749]

1

165 U. S. 28-36 Notes on U. S. Reports. 750

perform dangerbus work unless act itself Is obviously so dan-
gerous that in its careful performance the inherent probabilities
of Injury ate greater than those of safety; Coley v. North Caro-
lina R. R., 129 N. C. 410, 40 S. E. 197, upholding Private Laws
1S97, chap. 56, giving railroad employee right of action for in-
juries suffered through negligence or incompetency of fellow ser-
vant; Baltimore, etc., R. R. Co. v. Kreager, 61 Ohio St 332, 56
N. E. 206, upholding 91 Ohio Laws, p. 187, imposing on railroads
absolute liability for loss or damage by fire originating on their
lands; Simmons v. Telegraph Co., 63 S. C. 432, 41 S. B. 523, up-
holding 23 Stat 748, making telegraph companies liable for dam-
ages for mental anguish; Town of Clarendon v. Rutland R. R.,
75 Vt 16, 52 Atl. 1061, upholding Vt Stat 3846, providing that
town may repair at railroad's expense railroad crossing or bridge
where railroad after due notice fails to do so.

Syl. 4 (XII, 922). Statute making raihroad liable for fires not
penal.

Approved in Clark v. Russell, 97 Fed. 903, upholding Nebr. Comp.
Stat, chap. 72, § 3, making railroad liable for injuries to pass^i-
gers irrespective of company's negligence; Baltimore, etc., B. R.
Co. V. Kreager, 61 Ohio St 334, 56 N. E. 206, upholding 91 Ohio
Laws, p. 187, imposing on railroads absolute liability for loss or
damages by fire originating on their lands.

165 U. S. 2^-36, 41 L. 621, WARNER VALLEY STOCK CO. ▼.
SMITH.
Syl. 1 (XII, 922). Abatement of mandamus against government
Approved in Murphy v. Utter, 186 U. S. 101, 46 L. 1075, 22 Sup.
Ct. 778, holding mandamus to Arizona board of loan commission
did not abate by change of personnel of board; State v. Bloxham,
42 Fla. 503, 28 So. 762, holding mandamus against comptroller to
compel him to draw warrant will be dismissed where his term
expires before final decision and successor is not made party.
Syl. 4 (XII, 922). Mandamus to municipality.
Approved In dissenting opinion in Hebb v. County Court, 40 W.
Va. 734, 742, 37 S. E. 678, G82, majority holding disobedience of
order of court entered in absence of jurisdiction of subject-matter
cannot be punished as contempt.
Syl. 5 (XII. 922). Public lands — " Under direction of secretary.*'
Approved in McCord v. Hill, 111 Wis. 526. 87 N. W. 483, hold-
ing, under act of Congress June 3. 1896, relating to correction of
errors In general land office, application for confirmation of pre-
vious pre-emption may be made directly to secretary of interior
whose decision therein is final.

m

Notes OD U. S, Reports.

165 U. S. 36-57

I

I

1G5 r. S. 3&^7, 41 L, 624, AGNEW v. UNITED STATES.
Syl. 2 (XII. 922). Harmless irregularity in Impaaelment of grand

Approved in United States v, Cobban, 127 Fed, 715, tiolding
plea to Indictment need not arer that matters therein set forth
'W'ere prejudicial to defendant

Syh 3 (XII. ©22). Time to object to competency of grand jury.
Approved in United States v. Greene. 113 Fed. 690. mi, bold^
tug plea in abatement to indictment averring the clei-k did not
place names of grand Jurors In box, but that they were placed
^Jierein by Jury commissioner and a deputy clerk, is insufMcleot;
United States v. Greene, 108 Fed. 818» holding Federal court will
MMOU on application for order removing to another district for trial,
^old indictment void for Irregularities in drawing grand Jury where
c]u«^stion involved la new one of statutory construction; Wolf son
^- United States, 101 Fed. 432, 433, holding objections to irregu-
larity In mode of organizing grand jury not couskiered where
X"^ai8ed by motion to quash lilod two months after indictment re-
^tnrned; Rlnkard v. State, 157 Ind, 539, 62 N. E. 10, holding in
«^t»6ence of anything contrary In record it la presumed that grand
Jury returning indictment regular on face was duly impaneled,
otiarged and sworn without a recitai in record to that effect
Syl. 4 (XII, Q23). Appeal — Facts shown by record.
Approved in United States v. Davis, 103 Fed. 470, holding re-
^*»sai of court in felony trial to permit juror to take notes of tes-
^tuony and requiring them to surrender notes previously taken
^y them not ground for new trial.

Syl, 7 (XII, 923). Probable result of unlawful act presumed
^otended.

-Approved In United states v. German, 115 Fed, flDl, 992, 9D3,

applying rule In prosecution, under Rev. Stat, fi 520D, against bank

**^cer; McKnigbt v. United States, 115 Fed. 074. 0T5. Iioldlug erro-

^^<^n8 Instrucllon that if facts proved were such as to raise infer-

ituct of guilty intent burden was on defendant to rebut such

8tL & (XIL 9231. Instructions in language of re«iuest.

•Approved in People v. Linares. 142 Cal. 20, 75 Pac. 309, hold-
'**? modification of requested instruction that law presumes de-
'^tidimt Innocent not erroneous.

8yL 11 (Xll, 92:?). Banks — False entry.

Ap|>rove<l in McKnlt^ht v. United States, 07 Fed. 213. upholding

^^hx In Indictment charging that defendant as national bank

^*'t»tdeiit caused false entry to be made in books in absence of

Wcaiion for bill of particulars, though It does not show manner

'^wblch defendant "caused" entry to be made.

165 U. S. 58-107 Notes on U. S. Reports. 752

Syl. 12 (XII, 023). Guilty intent, how determined.

Approved in McKnight y. United States, 111 Fed. 730, holding
in prosecution, under Rev. Stat, § 5209, for embezzlement by
national officer Intent to injure or defraud Is essential element of
the offense.

1G5 U. S. 58-107, 41 L. 632, SCOTT v. DONALD.

Syl. 1 (XII, 023). States — Injuries under color of office.

Approved in Prout v. Starr, 188 U. S. 543, 23 Sup. Ct 400, 47
L. 587, holding suit against Nebraska board of transportation to
enjoin enforcement of rate schedule is not suit against State; State
V. Chicago, etc., R. R., 61 Nebr. 549, 85 N. W. 557, holding Fed-
eral court cannot enjoin attorney-general from suing for penalties
claimed by State under maximum freight law of 1899, | 9.

Distinguished in Western Union Tel. Co. v. Myatt, 98 Fed. 357,
holding suit in Federal court against Kansas court of visitation
and State solicitor to enjoin enforcement of rates is not suit against
State; dissenting opinion in South Dakota v. North Carolina, 192
U. S. 331, 24 Sup. Ct 282, majority upholding Supreme Court's
Jurisdiction over action by one State against another to compel
payment of its bonds held by former and secured by stock belong-
ing to that State.

Syl. 2 (XII, 924). Supreme Court's Jurisdiction on appeal from
Circuit.

Approved in Manigault v. S. M. Ward, etc., Co., 123 Fed. 712,
upholding Jurisdiction of suit, as arising under Constitution, where
it appears from bill that claim is made in good faith that statute
under which defendant is proceeding to do acts sought to be en-
joined violates Federal Constitution, though other grounds of in-
validity are also alleged; Louisville Trust Co. v. Stone, 107 Fed.
300, holding where Federal Jurisdiction properly invoked for re-
lief against discriminating assessment Jurisdiction will be retained
to administer other relief where complaint fails to show discrimina-
tion; Ex parte Jacobi, 104 Fed. 681, holding Circuit Court of Appeals
has no jurisdiction of appeal from Circuit Court decision on habeas
corpus where constitutional question involved; Dawson v. Colum-
bia Ave. Saving Fund, etc., Co., 102 Fed. 206, holding, under act
of February 18, 1895, appeal does not lie to Circuit Court of Ap-
peals from order granting injunction in case Involving application
and construction of Federal Constitution with reference to municipal
ordinances.

Syl. 3 (XII, 924). Damages defined.

Approved in Wiley v. Sinkler, 179 U. S. 65, 45 L. 88. 21 Sup. CL 20.
upholding Circuit Courts jurisdiction over action against State elec-
tion officers for damages, alleged to exceed $2,000, for refusing
plaintiff's vote for member of Congress.

ras

Notes on U. S. RepKorts,

16u U. S. 58- lOT

SxL 4 (XII, 924). When exemplary damages allowed.
Approved Id American I^ead P. Co. v. Davis, 108 Term. 25G, 6^
S- W. 1130, upboldiDg submission to jury iu action for injury to
clilld by Its negligent exposure to dangerous machinery of question
o^ allowance of exemplary damages.

SyL 5 (XII, 924). Recovery less than jurisdictional amount
Approved In North American, etc., Co. v. Morrison, 178 U. S. 267,
44 Lw 1063, 20 Sup. Ct. 871, holding where plaintiff asserts as hij*
o^.n8e of action claims which he cauBot be Icfjally permitted to sus-
't:a.ln by evidence mere ad damnum clause wiil uot confer Jurisdic-
tion: Kunkel v. Brown, 99 Fed. 594, holding amount In dispute for
^ixrlsdJetional purposes in Federal court ia determined by amount
olalmed for plaintiff in his pleading In good faith, though such claim
Is made under mistake of fact as subsequently shown by evideuce;
aissentlng opinion in Giles v. Harris. 189 U. S, 492, 2:i Sup. Ct. 648.
^T L, 914, majority denying Jurisdiction of Circuit Court over suit
by colored man to compel hoard of registrars to enroll name upon
▼fitixig lists under State Constitution alleged to be contrary to Fed-
eral Constitution.

H SyL G (XII, 924). Commerce — Dispensary act — Inspection.

Ht Approved In Smith v. St Louis & Southwestern R. R. Co., 181

^ft.%, 255, 45 U 850, 21 Sup. Ct 605, upholding Rev. Stat Tex. LS95»

^rt. 50-15, relation to stock quarantine; Pahst Brewing Co. v» Cren-

tbau, 120 Fed. 152, upholding Mo. Sess. Laws 18li9, p. 228. relating

to Inspection of beer; State v. Hanaphy, 117 Iowa, 20, 90 N. W, G«W.

lloldlng wlSere traveling solicitor, w^hose principal was engaged in

**^»alnes8 fn Illinois, sent order for liquor to principal subject to

^^ttefg approval and liquor sent direct to buyer, saiesmau not swIh

J«« to prosecution; People v. Buffalo Fish Co,. 164 N. Y. 102, 79

Am. St Rep- 627, 58 N. E. 37, holding void Law^s 1892. chap. 4ii%

H 110. 112, making It misdemeanor to catch, kill or have posses-

>loo of certain kinds of fish during certain seasons, in so far as It

•ffecti Imported fish; St Louis, etc., Ry. \\ Smith, 20 Tex. Ctv,

^t 4& S. W. 631, upholding Texas live stock law and regulations

[ ttaeunder of State live stock sanitary commission.

trl 7 (XII, 925|. Commerce — Act lS9<:i— Liquors.

Approved m State v. Zophy. 14 S. Dak. 125. 84 N. W. 393, 86 Am.

Rep. 745, holding void Sess, Laws 1897. chap. 72, imposing tax

I ptrtles without State who have wholesale establish ments within

rttv and providing that local manufacturers shall pay license and

leiempt from whok'saler's license.

lUtliigulataed Ifi Stevens v. State. 61 Ohio St. 605, 56 X. E. 479.
^Ing sale of beer as beverage In township wiiere local option fs In
sale of unbroken package by ageut of foreign manufacturer
without opi^ration of statute.
Vol. Ill — 48

165 U. S. 107-117 Notes on U. S. Reports. 754

Syl. 8 (XII, 925). Act 1890 — Importation of liquors — Commerce.

Approved In Minneapolis Brewing Co. v. M'Gilllvray, 104 Fed- 263,
upholding Sess. Laws S. Dak. 1897, chap. 72, regulating and licens-
ing manufacture and sale of liquor; Racine Iron Co. y. McCommons,
111 Ga. 543, 36 S. E. 869, upholding license tax on persons who,
as traveling agents for nonresident principals, make executory con-
tracts for sale of goods, and who, when shipped, receive them In
bulk, break original package, and distribute them; State v. Hickox,
64 Kan. 658, 659, 68 Pac. 38, holding void State law placing sub-
stantial restrictions on taking of orders by nonresident salesman
for Intoxicating liquors to be purchased In and imported from
another State where such orders are subject to approval or re-
jection of nonresident merchant

165 U. S. 107-117, 41 L. 648, SCOTT v. DONALD.

Syl. 1 (XII, 925). States — Injuries under color of office.

Approved In Coulter v. Weir, 127 Fed. 905, holding suit against
State creditor to enjoin collection of franchise tax Is suit against
State; Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, holding suit to
enjoin Nebraska board of transportation from enforcing rate
schedule is not suit against State.

Syl. 2 (XII, 925). Restraining officer from executing void statute.

Approved in State v. Frost, 113 Wis. 644, 89 N. W. 919, b<dding
removal petition stating that amount involved therein exclusive of
interest and costs exceeds the sum of $2,000 Is sufficient; Dulutb
Brewing, etc., Co. v. City of Superior, 123 Fed. 356, arguendo.

Syl. 3 (XII, 926). Courts — Amount in dispute.

Approved in Louisville, etc., R. R. v. Smith, 128 Fed. 0, holding In
suit by railroad in Federal court against landowners to enjoin
threatened interference with its use of Its right of way through their
lands, value of right sought to be protected and not value of land -
constituting right of way across defendant's lands is value in con- —
troversy; City of Ottumwa v. City Water Supply Co., 119 Fed. 318.^-
holding in suit by taxpayer to enjoin city from issuing bonds claimed^::
to be in excess of constitutional debt limit, power of city to Issued
such bonds and not tax to which complainant would be subjected Ift-J
matter in dispute; Southern Exp. Co. v. Mayor, etc., of Ensley. 11^ J
Fed. 759, upholding Federal jurisdiction over suit by foreign expre
company engaged in interstate business against city to restrain en
forcement of ordinance exacting license fee, where bill alleg
value of company's riijht to do business in such city exceeds $2,0
though license fee is less.

Syl. 5 (Xll, 020). Who are indispensable parties.

Approved in Turner v. City of Mobile, 135 Ala. 123. 33 So. 14
holding where single party brings ejectment against several d

Notes on T7» S. Reports.

1115 u. s. na-168

^^^iidaiits for recoTery of distinct lots, fnct thnt clalii! of title of
l>l.«j]itlff In each action Is same and riglits and defenses of defend-
sm. sr^tfi in each actloo are similar Is no ground for injunction to avoid
CEB^ltlplicfty,

mew U. S. llS-144, Not cited.

U. S, 144-150, 41 L, 664, HUSSMAN v. DURHAM.
«jL 2 (XII, 926). When land subject to taxation.
-Approved in Dry Dock Co. v. Baltiraore, 97 Md. 99, 54 AH. 624,
(molding where government conveyed land to d^-j'-dock company on
c?o:zidltion that government could use dock free of charge, and that
l^ land diverted to other uses It should revert to government, com-
t>«iJDy's Ijiterest In land was taxal^le by State.

SyL 4 (XII, 926). Privity between holder of fee and of tax title.
-Approved In Sullivan v. Van Kirk, etc., Co., 124 Ala. 23*1. 26 So.
9SS, bolding no title passed by act Congress of Septemljer 2D. ISDO,
relative to forfeiture of railroad lands, to purcliaser of said landa.
l>jr tax Bale or deed made thereunder.

l«S U S, 150^168, 41 L. ma, GULF. ETC. RY. v. ELLIS,

Syl. 1 (XII, 92T^ Equal protection — Railroads to pay costs.

il^pproved In People of State of New York v. Bennett, 113 Fed.

^lO, upholding Laws N. Y. 1805. chap. 570, providing that any one

^^cordlng wager by memorandum shall not be pimlsiied criminally

^f he makes record on certain race courses auttiorlzed by tbe act,

♦'«t shall be punished If he makes it elsewhere; Nia?:fara Fire Ina.

^ V. Cornell. 110 Fed, 821, bolding void Laws Nebn 1S9T, chap. 79.

liolag trusts and declaring them illegal; Wiliiamson v, Liverpool,

'ic.. Ins. Co.. 105 Fed. 32, upholding Rev. Stat. Mo. 1899, f 8012.

•IWta^ damages and attorney's fees against Insurance company

'tilings to pay loss: Merchants' Life Assn. v. Yoakum, 98 Fed, 2G*?.

2H a68, upholding Tex. Rev. Stat 1895. art 3071, subjecting life

''liUtBUce companies falling to p*ay loss within time speciiietl in

^^^^, to penalty, hut not applying same to other kinds of Insnr-

^JH:*; Johnson v. Goodyear Min. Co., 127 Cal. I*j. 7S Am. St. Rep.

^SOPac. 308, holding void Stat. 1897. p. 231, compelling monthly

i><ymi»at of wages of employees of corporations; Phfi*nix Ins. Co. v.

^*Jl. 112 Ga. 768, 38 S. E. CS, holding void Civ, Code, ft 2140. pro-

**iillng for recovery of damages and attorneys' fees in suits against

'*»*urrtDce companies; Duckwull v, Jones. l.'»6 Ind. CxSCJ. 58 N. E,

*'^*T, npholding statute authorizing allowance of attorney's fees In

l*aivnp of plaiTJtifTs attorney on foreelosnre of mechanics' liens;

I^^Ulev. Mitchell. 97 Me. 72, 53 All. S-Si). 94 Am. St. Itep. 4.S4, holding

j^'f>l<i Hawkers and peddlers* act (Laws llHJl. chap. 277), ^ 4, exempt-

f therefrom those who pay taxes on stock In trade to amount of

ll'hompsoo V. Traders* Ins. Co.. 109 Mo. 30, US S. W. 893. bold-

•I

165 U. S. 150-168 Notes on U. S. Reports. 756

Ing where loss by fire occurred and cause of action accrued before
Rev. Stat. 1899, § 8012, went into effect attorney's fees cannot be
taxed against insurance company for vexatious delay in paying
policy; Paddoclc v. Missouri Pac. Ry., 155 Mo. 637, 56 S. W. 456.
applying rule to Missouri statute; New York Life Ins. Ck>. v. Orlopp,
25 Tex. Civ. 290, 61 S. W. 340, upholding statute imposing "penalty
and payment of attorney's fees on life insurance companies for
failure to pay loss within time specified in policy; Openshaw v.
Halfln, 24 Utah, 430, 91 Am. St Rep. 797, 68 Pac. 130, holding void
Rev. Stat, § 2006, providing that if mortgagor fails to release
mortgage after satisfaction thereof, mortgagor may bring action
to compel release and may recover costs including reasonable at-
torney's fees; dissenting opinion in Fidelity Mut Life Assn. v. Met-
tier, 185 U. S. 328, 330, 331, 336, 46 L. 933, 934, 936. 22 Sup. Ct
670, 671, majority upholding Tex. Rev. Stat 1895, art 3071. sub-
jecting life Insurance companies failing to pay loss within time
specified in policy to penalty, but not applying same to other kinds
of insurance; dissenting opinion in Dell v. Marvin, 41 Fla. 230, 26
So. 191, majority upholding act of 1887, chap. 3747, | 20, providing
for attorney's fees when judgment shall be rendered for plaintiff.
See notes, 79 Am. St Rep. 183, 184; 78 Am. St Rep. 34.

Distinguished in Fidelity Mut. Life Assn. v. Mettler, 185 U. 8.
325, 326, 46 L. 932, 933, 22 Sup. Ct 669, upholding Tex. Bey. Stats.
1895, art. 3071, subjecting life insurance companies failing to pay
loss within specified time in policy to penalty, but not applying
same to other kinds of insurance; Davidson v. Jennings. 27 Colo.
194, 60 Pac. 356, holding void provision of mechanic's lien act pro-
viding for taxing of attorney's fee for plaintifTs attorney as costs
in foreclosure where plaintiff obtains judgment; Dell v. Marvin. 41
Fla. 228, 79 Am. St. Rep. 176. 26 So. 190, upholding act of 1887.
chap. 3747, § 20, providing for attorney's fees when Judgment
shall be rendered for plaintiff; Gano v. Minneapolis & St L. R. R.
Co.. 114 Iowa, 715, 87 N. W. 715, 89 Am. St Rep. 305, upholding
Code, § 2007, requiring railroads exercising power of eminent do-
main to pay landowner attorney's fees Incident to condemnation
proceedings; Railway Co. v. Campbell, 8 Kan. App. 663, 56 Pac. 500.
upholding Gen. Stats. 1897, chap. 70, §§ 67-69, giving attorney's fees
against railroads in action by shipper; Insurance Co. v. Bayha, 8
Kan. App. 174, 55 Pac. 47G, upholding Laws 1893, chap. 102, | 3,
providing for attorney's fees in actions on insurance policies; Liqui-
dating Commissioners, etc. v. Tax Collector et al., 106 La. 13S,
13G, 30 So. 308, upholding act 170 of 1898, § 50, allowing attorney
who represents tax collector in proceedings seekiiig to enjoin col-
lection of tax commission on amount collector to be paid by person
seeking injunction; State v. New Orleans, 105 La. 772, 30 Sa 90.
upholding statute of 1890 relating to delinquent taxes.

Notes on V. S. Reports.

1C5 U. S. 150-168

SyL 2 (XII, 927). Corporations as persons — Foiirteenth Amend-
ment*

SyL 2 (XII, 927). Corporations as personal — Fourteenth Amend-
St^ Rep. 21, 59 Pac. 305, applying rule In eonstruing and holding
void Stats. 1S97, p. 231, providing that corixirations shall pay em-
ployees monthly; Russell y. Croy, 164 Mo. 99, 03 S. W. 853, holding
void third Missouri constitutional amendment of 19fX>, providing that
mortgages or other ohJigatlons securing debts shall, for tax pur-
P€»«es» be deemed Interest In property affected thereby, except as to
qaasl-public corporations; Insurance Co. v. Craig, 106 Tenn. 631, C2
S, W. 157* holding Insurance commissioner may revoke license of
foreign Insurance company utterly repudiating its contracts; dis-
senting opinion in Beveridge v. Lewis, 137 CaL 630, 67 Pac. 1041,
majority holding void Code Civ, Proc. § 1248, relating to allovrance
of benefits where property taken under eminent domain. See 85
Am, St Bep. 907p note,

SyL 3 (Xll, 928). Fourteenth Amendment — Staters power to
classify.

Approved in Kidd v. Alabama, 188 U. S. 733, 23 Sup, Ct. 402, 47
^ 672, upholding Alabama Code provisions taxing stock in foreign
*"aUroad held by Alabama citizen b. though no similar tax Imposed
<Mi stock of domestic railroads; Connolly v. Union Sewer Pipe Co.,
1S4 U. S. 561, 40 L. 690. 22 Sup, Ct 440, upholding 111. trust
statute of 1893, defining and prohibiting trusts and exempting
Agricultural products or live stock while la hands of producer; Mat-
thews V. Jensen, 21 Utah, 22S, 61 Pac. 308, holding void county
ordinance Imposing certain tax per thousand sheep so that owner
«*f 4.000 sheep pays as much as one who has 4,999.

Syl 4 (XII. 928), Classification of particular duties — Fonrteenth
-Amendment

Approved in Erb v. Morasch, 177 U. S. &86, 44 L. 808, 20 Sup, Ct
^1 Upholding municipal ordinance regulating speed of trains in
^'ty limits and exempting therefrom particular interstate road:
Mallard r. Oil Co., 81 Miss, 557, 558, 581, 95 Am. St. liep. 478, 479.
"^.34 So. 549, 557, holding void Laws 1898, chap. 06, p, 85, providing
^*t employees of corporations shall have same rights and remedies
^^ iaJQfies as are accorded to persons not employees where in-
iir|« result from negligence of superior servant or fellow servant;
^mt V, St Louis, etc., Ry., 174 Mo. 77, 73 S. W. 692, holding fel-
w servant act of 1897 does not apply to street railroads; State v.
^hHti Brew. Co., 104 Tenn. 732. 78 Am. St. Rep. 949, 59 S. W. 103(5,
Upholding antJ-tnist statute of IHOL

t)litlngnlshed In dissenting opinion in Snms v. St. Louis, etc., Ry.,
^H Mo. 94. 73 S. W. 098, majority holding fellow servant act of
^ does not apply to street railroada.

165 U. S. 150-168 Notes on U. S. Reports. 7i

Syl. 6 (XII, 928). Classification must be reasonable.

Approved in Billings v. Illinois, 188 U. S. 103, 23 Sup. Ct. 274, '
L. 403, upholding 111. Rev. Stats. 1853, chap. 120, par. 308, § 2, taxii
life estates; Cotting v. Kansas City Stock Yards Co., 183 U. S. IC
40 L. 108, 22 Sup. Ct. 41, holding void Kansas stockyard act
March 3, 1897, as it applies only to Kansas City Stock Yards Coi
pany; Carglli Co. v. Minnesota ex rel. R. R. & W. Com., 180 U.
469, 45 L. 627, 21 Sup. Ct. 429, construing Gen. Laws Minn. 18£
chap. 148, regulating and licensing grain elevators; Union Co. Ni
Bank v. Ozan Lumber Co., 127 Fed. 209, 212, holding void Ar
Sess. Acts 1891, p. 296, providing that negotiable instruments tak<
in payment of patented thing shall be in certain form, and exem]
ing therefrom merchants selling patented things in due course
business; Johnson v. Goodyear M. Co., 127 Cal. 17, 78 Am. S
Rep. 29, 59 Pac. 309, holding void Stats. 1897, pi 231, compellii
monthly payment of employees of corporations; Iowa v. Garbrosl
111 Iowa, 500, 82 N. W. 960, holding void Code, § 1347. requlrti
peddlers plying vocation outside of any city to pay county licenf
but exempting persons who served in Union army or navy; Sta
V. Hann, 61 Kan. 156, 59 Pac. 344, holding void Laws 1897, cha
145 (scrip law), prohibiting payment of wages of laborers in ai
way but in money; State v. Montgomery, 94 Me. 207, 47 Atl. IC
holding void hawkers and peddlers* act of 1893, prohibiting grantii
of license to any one but a citizen of United States; Andrus
Insurance Assn., 163 Mo. 164, 67 S. W. 585, holding practice of a
mitting proof of waiver of terms of policy without special plea i
waiver does not deny insurance companies equal protection; Lai
cashlre Ins. Co. v. Bush, 60 Nebr. 124. 82 N. W. 315, upholdin
Comp. Stat 1899, chap. 43, § 45, permitting taxation as costs (
reasonable attorney's fee upon rendering judgment against i!
suranee company on contract insuring real estate; People v. Orani
County Road Cons. Co., 175 N. Y. 89, 67 N. E. 130, holding voi
Penal Code, § 384h, subd. 1, prohibiting any one from contractl"
with State or a municipal corporation from requiring more th-
eight hours for day's work; Matter of Pell, 171 N. Y. 58, 63 N.
702, 89 Am. St. Rep. 797, holding void Laws 1899, chap. 76, fm
viding for tax upon reversions and remainders which had ves
prior to June 30, 1885, upon their coming into actual possession
enjoyment; Standard Oil Co. v. Spartanburg, 66 S. C. 44, 44 S.
380, upholding ordinance requiring dealer In oil to pay license ^
exempting dealers in oils who have already been taxed; SImm -
V. Telegraph Co., (33 S. C. 431, 41 S. E. 522, upholding 23 Stat ^
making telegraph companies liable for damages for mental angu ^
dissenting opinion in People v. Lochner, 177 N. Y. 181, 69 N. E. ^
majority upholding Laws 1897, chap. 415, limiting hours of labo:*'
bakery employees.

Distinguished in Davidson v. Jennings. 27 Colo. 197, 60 Pac. ^
holding void provision of meclianic's lien act providing for taxi^

^59

Notes on U. S. Kepoits.

163 U. S, 16a-lQ4

I

«>:/ attorney'a fee for plaliitin**s attorney as costs In all suits of
foreclosure In which plaintiff eljall obtain judgment: Porter v,
<Zrharleston. etc., Ry. Co., 63 S. C, 179. 180, 41 S. E. Ill, 112, 90
^^!^.m. St. Rep. 674, 675» upholding 22 Stats. 443, providing penalty on
^roxnmon carriers for failure or refusal to pay damage to freight
^«!»«r]thln sixty days; dissenting opinion in Connolly v. Union Sewer
:iF*ipe Co.. 184 U. S. 506, 46 L, mil 22 Sup. Ct. 442, oiajority up-
lift oldtn^ 111. trust statute of 1893, defining and prohibiting trusts and
^:3cemptlng agricultural products or live stock while in hands of
^> Toducer.

1^5 U- S, 16^-174. Not clte^a.

ZIL ^5 U. S. 174-180, 41 U 6T5. UNITED STATES v. BARXETTB.

SyL 1 (XII, 929). Sea pay to officer on schoolship.

Approved in Glavey v. United States, 182 U, S, 606, 45 L. 1252.
^i Sup. Ct 805, holdiug act of August 2, 1882. amending Rev.
^St:at., I 4400. relating to regulation of steam vessels, created sepa-
a".^te office of inspector witij fixed salary, and incumlient ap-
^x>inted by secretary of ti-easury was entitled to salary.

^CS5 U. 8. 180^1^, 41 L. 677, JONES v. BRIM.

SyL 1 (XII, 929). Police powers not affected t>y Fo?jrteont]i
-A^jKneadm en t

Approved In Love v. Judge of Recorder's Court, 128 Mich. 551,

^^ N. W. 7&S, holding Detroit City Charter 189:], chap. 7,' g ;J4,

15^1 ^lag council power to control and regulate manner in which

t^x-eeis and public places should be used, authorized ordinance for-

^><l<liDg making public address in any public place within half

■^Ue of city hall without peruiieslon of mayor.

SyL 2 (XII, 929), Control of highways as police power.
Approved in Fair Haven, etc., R. R, v. New Ilaven, 75 Conn,
"^^l, 53 AtL 964, holding legislature may require street railway to
*^mburse municipality for cost of layhig highway pavement upon
•^ch portion of street as is appropriated to use of tracks.

^65 U. S. 184^188. Not cited.

^^ U. S. lBS-194, 41 L. 680. EG AN v. HART.
Syl 1 (XII. 930). Findings conclude Supreme Court
Approved in Weltmer v- Bishop, 191 U. S. 561; Thayer v. Spratt,
18!> D. 8, 35a, 23 Sup. Ct 579, 47 h. 849; Bement v. National Har*
«^w Co.. 186 U. S, S3, 46 L. 1006, 22 Sup. Ct 752; Western
^Won TeL Co. y. Call Publishing Co., 181 U. S. 10£i, 45 L. 771,
21 Sup. Ct 565, and Gardner v. Bonestell, 180 U. S. 370, 45 L.
^n, 21 Sup- Ct 402, all reaffirming rule; German Sav. Soc. v. Dor-
fliltaer, 192 U. S. 129, 24 Sup. Ct 222, holding facts that resident
of State after selling out his property and busincKS went to another
^lAte, bought land and decided to iucate there, are siiUk-ient for

165 U. S. 194-255 Notes on U. S. Reports. 760

courts of latter State to find that be had changed his domicile and
that courts of former State had no Jurisdiction of action subse-
quently brought by him for divorce; Simonson v. Sinsheimer, 100
Fed. 429, holding on appeal from order adjudging defendant an
involuntary bankrupt appellate court may review facts as well as
law.

Syl. 2 (XII, 930). Supreme Ck)urt examines State court record.

Approved in Land & Water Co. v. San Jos6 Ranch Co., 189 U.
S. 180, 23 Sup. Ct 489, 47 L. 768, holding Federal question is
** specially set up and claimed " where it was fully considered In
opinion of court and ruled against plaintiff in error; Board of
Liquidation v. Louisiana, 179 U. S. 637, 45 L. 353, 21 Sup. Gt 269,
referring to State court opinion in determining nonexistence of
Federal question in Louisiana decision construing New Orleans
refunding law; United States v. Norfolli & W. Ry. Co., 114 Fed.
686, holding where pendency of appeal in former proceeding sus-
pending Judgment therein is pleaded in abatement to second man-
damus court in determining real issue therein may look to plead-
ings, evidence and opinion of court filed in support of and as
part of Judgment appealed from.

(XII, 930). Miscellaneous.

Cited in Leroy v. United States, 177 U. S. 629, 44 L. 918, 20 Sup.
Ct. 800, as affirming Louisiana court determining navigability of
Bayoi> Pierre.

165 U. S. 194-255, 41 L. 683, ADAMS EXPRESS CO. T. OHIO
STATE AUDITOR.

Syl. 1 (XII, 930). Following State statutory construction.

Approved in League v. Texas, 184 U. S. 159, 46 L. 480. 22 Sup.
Ct. 476, upholding Tex. Gen. Laws 1897, chap. 103, p. 132, relating
to collection of delinquent taxes by Judicial proceedings; Under-
ground R. R. V. City of New York, 116 Fed. 960, upholding N. T.
rapid transit act of 1891.

Syl. 2 (XII, 931). Taxation of property engaged in interstate-
commerce.

Approved in AtlanUc & Pacific Tel. Co. v. Philadelphia, 190 U.
S. 163, 23 Sup. Ct 818, 47 L. 999, holding telegraph company en-j
gaged in interstate commerce may be compelled by municipality
to pay reasonable license fee for enforcement of local government
supervision of poles and wires; Yost v. Lake Erie Transp. Co.^
112 Fed. 747, holding vessels engaged in foreign commerce owne-^
by corporation of State, which are registered under United Stat^
laws and have name of home port painted on stem, are taxabl"-
at such home port only; State v. Cauda Cattle Car Co., 85 Minr
460, 89 N. W. 67, construing Laws 1897, chap. 160, taxing proper^
of corporations engaged in interstate commerce.

1^

Note* on U. S, Reports. 165 U, S. 194-255

I>istlngiil8bed In dissenting opinion in Bacon t. Board of State
T^mx Conirs.« 126 Mlcb, 43, 85 N. W. 314. majority upbolding Comp.
X^ittWB 1S87, I 3SS1, providing that for tax purposes persomil prop-
erly ihall Include all goods nnd ctiattela belonging to Inhabitants
situated without State, except such as are permanently invested
In business In another State, and shall include BhareB In foreign
corporation owned by Inhabitants of Michigan.

SyL 3 (Sll, 931). Proportionate taxation ^ Property engaged In
commerce.

Approved In AUantlc & Pacific Tel Co. v. Philadelphia, 100 U.
& 16a, 23 Snp. CL sis, 47 K 990, holding telegraph company en-
Ctfed In Interstate commerce may be compelled by municipality
t0 pay reasonable license fee for enforcement of local government
iuperrislon of Its poles and wires; Union Refrigerator Transit
Co. V, Lynch, 177 U. S. 152, 44 L. 710, 20 Sup. Ct 632. holding
can of Union Refrigerator Transit Company, a Kentucky corpo-
ration engaged in furnishing refrigerator cars to shippers and
which were In State of Utah, were subject to taxation by Utah:
*^«ntral Pac, Ry. v. Evans, 111 Fed* 77, holding, under Nev,
wt of March 16, 1901, board of assessors could not designate rail-
P»d by name and fix valuation per mile of Its road throughout
8l«le; Bank of California v. San Francisco, 142 Cal. 283, 75 Pac.
^ holding franchise to be a corporation is taxable; Standard
Oil Co. V. Spartanburg, 66 S. C. 44, 44 S. E, 379, upholding ordi-
^^^ requiring dealer In oils to pay license tax, but exempting
^ers in oils upon which tax has been paid.

8jL 5 (XII. 931). Taxation — Proportion of capital stock and
"^elpi*.

Approved In Gulf & Ship Island K. U. Co. v. Hewes, 183 U. S. 77,

^^91, 22 Sup. CL 30, holding Misslasippi railroad charter provision

***©ptlng from all taxation for twenty years was repealable;

^^'aaberland & Pa. R. U. v. State, 92 Md, 090, 48 Atl. 510, uphold-

^H Acta 1890, chap. 559, and 189*5, chap. 120, Imposing auumil

®^t6 tax on gross receipts of railroads proportionate to mileage

If^md within suite; Citizens' St U. R, v. Common Council, 125

(585. 85 N. W. HM), taxing street car system: Plngrce v.

^Witor-General. 120 Mich, lt>5, 78 N. W. 1028, upholding Pub.

ISSl. No. 168, providing for assessment of telegraph and

lines at their cash value, and tax levy at rate ctiual to

of general, municipal an<l local taxes throughout State

^Ifig previous year in lien of all other taxes.

N. e (XII. 931). Taxation according to unit rule,

pproved In American Sugar Refining Co. v. Louisiana, 179 U.

% 45 L. 105, 21 Supv Ct 443, npholdiag La. act of July 0, 1800,

«log license tax upon refiners of sugar and exempting plaut-

iind farmers refining their own sugar: Coulter v. Weir, 127

IdUS^ upholding Ky. StaL 1903, § 4U77, et se^., Imposing al-

1

Nei^boDe

165 U. S. 255-273 Notes on U. S. Reports.

leged franchise tax on corporations, which is in effect tax on in-
tangible property of corporation not otherwise taxed; Citizens'
St. R. R. V. Common Council. 125 Mich. 600, 606, 85 N. W. 102,
104, taxing street car system.

Distinguished in Hart v. Smith, 159 Ind. 191, 64 N. B. 664,
holding good will of newspaper conducted by a partnership, being
incident of the business as a going concern, cannot be assessed
as a tax on the property as a unit

Syl. 8 (XII, 932). Corporation must show tax exemption.

Approved in Spreckels Sugar Ref. Co. v. McClain, 192 U. 8.
414, 24 Sup. Ct 381, affirming in part 113 Fed. 246, holding, un-
der war revenue act 1898, § 27, rentals from wharves owned by -^
sugar refining corporation and used as necessary adjunct to itip ^
business are receipts in the business to be included in computinj; s^
its gross income for purpose of such tax; Coulter v. Weir, 127 Fed. ^m^
910, holding where Kentucky corporation invested its surplus Iumim^i
bonds which it transferred to trust company in New York, an(Jr>«
then issued to stockholders as distributive share thereof its ownir-^
bonds payable only out of securities so deposited, bonds transfcrrec>-^
to trust company could not be included in estimating value or^r^
company's Intangible property in Kentucky; State v. United Stater-5*j
Express Co., 81 Minn. 90, 83 N. W. 4G6, holding railroad commit fj
sion had legal right to exact of partnership engaged in busines^r^
of common carrier as to all its property and business within Stat»^ j
but not as to its property out of State, nor of its interstate business ^-s

Syl. 9 (XII, 932). Conclusiveness of findings of special tribuna^actf

Approved in Coulter v. Weir, 127 Fed. 909, applying rule to valu: mlw
tlon of corporate franchises under Ky. Stat. 1903, § 4077 et seq. ^j

1G5 U. S. 255, 250, 41 L. 707, AMERICAN EXPRESS CO. T. 11 J
DIANA.

Syl. 1 (XII, 032). Taxation — Adams Express Co. v. Indiacx-
followed.

Approved in Bank of California v. San Francisco, 142 Cal. 2rS
75 i*ac. 835, holding franchise to be a. corporation is taxable
State.

1G5 U. S. 257-204. Not cited.
105 U. S. 2(^4-273, 41 L. 710, THE VALENCIA.
Syl. 1 (XII, 0o2). Agreement — Maritime lien — Credit to owi
Approved in The Underwriter, 119 Fed. 755, holding where c'
ter provides that cliarterer sluill pay for all coal used by Vf
no lien exists on vessel iu favor of one who with knowledf
charter furnishes coai on master's order in foreign i>ort across
from home port; Cuddy v. Clement 113 Fed. 400. affirming J
V. Ogdensburg Transit Co., 1U7 Fed. 982, holding where coa
ers made contract for furnishing coal to defendants* steac

^«3

Notes on U. S, Reports. 105 U. S. 204^273

^^Ttaln ports, and coal was funiinhed on orders of masters ami
^tiarged to several vesseJs and end of season took defendants' note
^or amount due, coal furnlsbetl ou credit of owners and not of ships.
SyL 2 (XII, 933). Liens — Supplies furnished eliarterer.
Approved In Alaska, etc., SS. Co. v. C. W. CJjaiulierlain, etc.,
Ci<x. 116 Fed. 602, holding where supplies are fur uhhed to ehar-
terer haTlng demise of vessel for certain term at plaee of char-
terer's residence, presymptioii that credit ^iven to charterer and
tiot to vessel rebuttable only by proof that It was Intention of
both parties to give credit to vessel; The C. W- Moore, 107 Fed.
068, holding no Implied agieement arises for pledge of vessel's
credit for rental of wharfage privileges In port where charterer
with whom contract to pay all expenses and keep vessels free
trom liens and wharf owner makes no Inquiry as to terms of char-
ter; The Newport, 107 Fed. 747* holding wliere rL-piiirs furnished
dredge and scows whose ownership was doubtful aud parties in
posseeeioii were Irresponsible and without credit, they were fur-
nished on credit of vessels; The Roanoke, 107 Fed. 743, holding
one making repairs on vessel in foreign port upon order of sup-
po«ed resident e<:>rporation claim! ng to be owner, but which was
111 fact charterer witiiout authority to incumber vessel, cannot
claUu lien on bare statement tUat work done on credit of ship;
'the Solvelg. 103 Fed, 325, denying maritime lien on vessel for
ailvancefl to cr^w made without Djastcr's knowledge or for port
^liarges paid, lo favor of charterer for voyage, whose charter was
•ot with owners, hut with time charterer who was bound to pay
such charges and of which fact sylK-harterer had knowledge; The
South Portland, im Fed. 406, arguendo.

IJistingulsbed In The Iri's, 100 Fed. ItXI, 107, WS, im holding
^liwe vessel Is sold and after part payment of purchase price is
•leUvefed to purchaser, under agreement by which he Ks author-
'^'^ 10 make aherations and repairs at his own expense, pur-
chaser becomes equitable owner and may charge vessel with hens.
8yL 3 (XII, 933). Liens — Inquiry a» to charterer's Ilahllity.
Approved In The Chieklade, 120 Fed. 100i>, holding where steve-
'^ore ^||g employed to load ship by brokerage tirm and during
Progress of work learned tluit ship wa** under charter, but did not
ijotify master of any claim against vessel, he has no ben for ser*
^icw; The Underwriter, 110 Fed. 763, holding where charter pro-
^^^^ that charterer shall pay for all coal used by vessel no Hen
^3Clgt8 ou vessel in favor of one who with knowledge of charter fur-
^^\i^% coal on master's order in foreign port across river from home

!^n: Tbe Newport, 107 Fed, 748, liolding where repairs furulshetl
^^ge and scows whose ownership was doubtful and parties iu
V<*toe8filon were irresponsible and without credit, they were fur-
"1^1 "ij oil credit of vessels; Tlie George Farwell. 103 Fed. 8S;?,
l"j'diag where steamship company procured repairs to be made

165 U. S. 273-303 Notes on U. S. Reporta 7(

on vessel representing that it was owner, though in, fact It wi
only charterer under charter requiring it to pay for all repair
person making repairs not bound to make further inquiry; Tli
Roanoke, 101 Fed. 301, holding where libelant by direction of co:
poration as owner repaired vessel, presumed that repairs made o
credit of owner; Valverde v. Spottswood, 77 Miss. 917, 28 So. 72
holding debts for materials, supplies and labor created in pertani
ance of contract to repair ship are not liens on vessel, und<
Ck)de 1892, §§ 2725, 2726, where same created by independent coj
tractor.

165 U. S. 273, 274, 41 L. 714, PIM v. ST. LOUIS.

Syl. 1 (XII, 933). Federal question set up on rehearing.

Approved in Indiana Power Co. v. St. Joseph, etc., Ck)., 18
U. S. 636, 23 Sup. Gt 842, 47 L. 343, and National Surety Co. y
McCormick, 186 U. S. 481, 22 Sup. Ct. 945, both reaffirming mU
Brown v. Missouri, etc., Ry. Co., 175 Mo. 188, 74 S. W. 97^
holding constitutional question must be raised in trial coort t
order to give Supreme Court jurisdiction.

Distinguished in Mallett v. North Carolina, 181 U. 8. 602, 4
L. 1018, 21 Sup. Ct 731, upholding jurisdiction to review Stat
decision where Federal question raised in State Supreme Cour
was decided against party raising it

165 U. S. 275^03, 41 L. 715, ROBERTSON v. BALDWIN.

Syl. 1 (XII, 933), Justice's of peace warrant for arrest of seamen

Approved In In re Woodbury, 98 Fed. 837, and Wall v. Cox, 10*
Fed. 411, both holding under bankruptcy act 1898, S 2, District Coni
has jurisdiction over equity suit by bankruptcy trustee to set asldl
bankrupt's fraudulent conveyance.

Syl. 2 (XII, 933). State officers performing incidental judicis
duties.

Approved in Levin v. United States, 128 Fed. 829, 880, 89
holding Congress may empower State courts to admit qaalifl»>
aliens to citizenship and State courts may exercise this power witfl
out permission from States which created them.

Syl. 3 (XII, 933). Involuntary servitude — Seamen's contracts.

Distinguished in Union Pac. R. R. Co. v. Ruef, 120 Fed. 110, •«
Joining members of labor organization from preventing employ
from carrying on business by preventing others from entering
remaining in its service by assaulting them or intimidating tlL^
by means of pickets.

Syl. 5 (XII, 934). Review of law regarding deserting sailors.

Approved in Patterson v. Bark Eudora, 190 U. S. 174, 47 L. 1^
23 Sup. Ct. 823, holding 30 Stat. 755, prohibiting prepayment of ^
men's wages, applies to seamen shipping in American port on for^i
ship; Tucker v. Alexandroff, 183 U. S. 431, 46 L. 268, 22 Sup. <

Notes on U. S. Reports,

304-315

JBS, lidding member of Eussltin navy sent to this country to form
Pajrt of crew of Russian cruiser being buHt here becomes deserter
on leaving after ship launched though she was not yet commis-
sioned; The Iroquois, IIS Fed* 1005, holding where seaman In per-
formance of duty fell and broke legr. it was master's duty to take
^Im at once to some port wliere proper treatment could be had,
ilnd faQure to do so, by which amputation became necessary, ren-
dered ship liable to damages; People v. Orange County Road Cons.
Co,» 1T5 N. Y, 91, 67 N. E. 131, holding void Penal Code, fi 3S4h,
bd. 1, prohibiting any one contracting with State or municipality
Ttom requiring more than eight hours work for day*a labor.

iCo U. 8. 304-^10. 41 L. 725, WESTERN UNION TEL. CO. T.
INDIANA.

SyL 3 (XII, 934). Different rules for enforcement of taxes.

Approved in American Sugar Reilning Co. v. Louisiana, 179 U. S.
K^ 45 L. 105, 21 Sup, Ct. 4G, upholding La. act of July 9, 1S90.
iaipoBing license tax on sugar refineries, but exempting there-
from farmers and planters refining their own sugar; Peacock & Co.
▼. Pratt. 121 Fed. 777, upholding Hawaiian income tax law of li>Ql»
exempting from its operation private schools and fraternal benefit
•ocietles; Standard Oli Co. v, Spartanburg, m S. C. 44» 44 S. E.
37^, upholding ordinance requiring dealer In oils to pay license tax
^od ejtempting therefrom dealers In oils upon which taxes have been

1«5 U. S. 311-315, 41 L. 727. PRICE v. UNITED STATES.
Syl 1 (XI I » 934). Indictment for mailing obscene matter.
Approved in Middlehy v. E filer, 1 IS Fed. 262, holding case show-
•^1? only that defendant spolie and published words charging that
I'lftiiiUff had ** written anonymous letters" which were scurrilous.
*^U1 that it wfl9 "a State prison oflfense,** without colloquium or
Itujoendo, U insufficient to warrant charge that words substantially
**^ount to charge that plaintiff had committed crime against United
^tAle5 laws; Wright v. United States, lOS Fed. Sll» 816, upholding
^^llciment ander Rev. Stat.. § 544iJ, charging that deleudants
*^med ** unlawfully did conspire to defraud the United States." fol-
lowed by statement of nature and purpose of conspiracy, and the
•«1i done to eflfect its object- State v. De Paoll. 24 Wash- 74, 63
^tc, 1103^ holding indictment charging that defendant ** did wlll-
^^llf, unlawfully and knowingly sell and give intoxicating liquor "
^ a minor sufficiently charges that defendant had knowledge of
■^^lnorlty of purchaser.
8|l 2 (XII, 934). Testimony of correspondence with accuaed-
^ T2 Am. St Rep. 701, note.

1G5 U. S. - ; iir^^SS Notes on U. S. ICeports. •»jo

on vesKi-: . ^1^^322. Not cited.

^°^^ ^^'" wS-330. 41 L. 732, GRAVES v. UNITED STATES,
person lu. ?• •>'»^*^'

Roanoke, ; XII. 934). False entries by bank offlcor.

poratloii . ved in fnited States v. Young, 128 Fed. 115, holding entry -^
credit <■" . .5 of national bank by cashier as "cash ItcMn" of check -^j
holding ^IuaIly entered Into transaction of bank will not support.3^^
ance o*" ^yj for making false entry, though it Is further oharpei^ j^ ^
Code 1^ !;iiierknew check to be worthless and frauduh»nt, and ni;nlc^ ^^
tractor ,,j|j intent to deceive; dissenting opinion in Dorsey v. Unltef-^^ ^
165 U - 11^1 *^^ "^^' ™^Jo^'^y upholding refusal of instruction, ir ^
"iiD tor making false statements as to overdrafts in report t.»-
^ ' " ■ Her, that Jury must acquit if entries In report made In j:»».r ^

^VP'' j^j jn honest belief that they were correctly made, wiu-r ^
^' ^' t-harge substantially embodied request.

McCor- -^^jgjjp^ In Gerner v. Yates. CI Xel)r. 105. Si N. W. nr;.^*^^
Brow- , published statement of financial condition of a nntioi - ^
holdir ^ i^-hich portion of its overdrafts Is described as *M«Kins ;i __ »j
®^^^^ Its" to materially false.

L 1^, -. S. 330-330, 41 L. 734, DISTRICT OF GOLT'.MIilA ,.

deci.' nllNSON.

was ■ 1 (XII» 035). Interest on clnlms against District of r<ihim"^ .j..j
1G5 -.njved In In ro District of Columbia, ISO U. S. 251. 45 L. CZiiT,

j,^ . ;,M. Ct 357, arguendo.

A . .s. 340^42. Not cited.

^''*^' . S. 342-358, 41 L. 7:59. HOPKINS v. GRIMSIIAW.

ha>

. ^, r, (XII, 035). End of charltal)le trust by nonuser.

•.»vod In dissenting opinion in Schwartz v. Duss. 1S7 U. S. 4ft.
( 't 15, 47 L. r>5, majority holding under a.irrpi»ment of 1 *<•''
: individual mt»mlMTs of Harmony Sdciety irn-vrn-.-iMy
ith contributions :iiui on withfirnwnl roiuMnnMMl rJL'hf '"
lUerefor, heirs of oriiriiini (•ontrn)UTnrs <-onM nut I'l.i-'J
■issets. See 70 Am. St. Rep. 75r», note.
•XII, 03(i). Equity jHlmiiiisliTS t<iinpli'tr roiirf.
d in Heinze v. l?iitt«;, etc.. Min. Co., VIW 1\m1. 7. h-M -^'
"venur In i»nrtilion lilies cross-liill srtiiiig up tHjii:;:i'''''
•^rest clainuMl 1)y (•omi)lain:int and pniys canri'lliiii"-' "'
'iB, and that ho ho drcn'iMl own«r of surli iiiti'p'St. <''>'irt
isanes at same time; I'liitrd States v. Soutlwrii Par IM'-
'. 654, hoMin;: frovernnicnl may sue in eipiity umlfr .n'ti
1887, Felini.'iry 11*. Isim;. and March 2, lSl>«i. to set asi'le
leonsly IssiumI to niilroad for lands under grant, a"J
j»ht8 of allojrod l>oiia lid*' purchasers and may In s.in'.e
•counting fn»m rnilrund In respect to such lands as 11
amson v. Monroe, lul Vvd. 321), holding where euuiiT

dii

1p
a
o

^€1^

Notes on U. S, Reports. IQSi D, S. 359-362

'*t necessary to settle partnership affairs, eowrt retains Joris-
^^Uon tberelu to aidmlnlster complete relief between pjirtnera,
"^ugh as to some of matters involved adequate relief obtainable at

► U. 8. 359-n3G2, 41 L. T45» ROBINSON v. CALDWELL.
SjL 1 (XII» 936). Jurisdiction on merits under judiciary act of

Approved in Ayres v* Polsdorfer, 187 U. S. 589, 23 Sup. Ct lf)7,

L. 315; Riehards v. Mlcbigan Cent R. R, Co., 186 IT. S, 479. 4a h,

59, 22 Sup. Ct 942; Daugberty v. Hood. 179 U, S. GSa 45 L. 3,S3,

Sup. Ct 917, and Cincinnati, Hamilton, etc., Ry. Co. v. Tbieimud,

r U. S- 620, 44 L. 913, 20 Sup. Ct 824, all reaffirming niie;

ifeckels Sugar Ret Co. v. McCiain. 192 U. S. 408, 24 Sup. Ct

^, holding case involving construction of internal revenue law,

t which from outset from plaintiff's sbowing involves appli-

"tion or construction of Constitution, may be carried by plaintiff

of right from Circuit Court of Appeals to Supreme Court; Union

Planters' Banii v. Memphis, 189 U. S. 74, 23 Slip. Ct (>05. 47

T14, holding wliere sole ground of jurisdiction of Circuit Coitrt

on constitutional question, decree and appeal to Circuit Court

Appeals will be reversed by Supreme Court; Cary Mfg. Co. v,

i^^me Flexible Clasp Co., 187 U. S. 428, 23 Sup. Ct 211, 47 L. 24'i.

V^^^idiag no appeal lies from Judgment of Circuit Court of Appeals

imzM^jrming contempt judgment of Circuit Court; lluguley Mfg. Co. v.

^alHou Cotton Mills. 184 U. S. 205, 40 L. 548, 22 Sup. Ct 4G4,

vfng Jurisdiction of appeal from Circuit Court of Appeals where

"ul to Circuit Court of Appeals was dismissed and sole ground

'^^ Circuit Court's jurisdiction was diversity of citlzeusbip; Loeb

^^ Trustees of Columbia Towuship, 179 U. S. 478, 45 L. 2S5, 21 Sup.

^^ 177, upholding Supreme Courts Jurisdietiou wliere claim made

'** Circuit Court that State law contravenes Federal Constitution;

'^^nerv. Roberts, 177 U. S. 499, 44 L. Sr*3. 20 Sup, Ct 714, holding

^'^i^re appeal from dismissal of Circuit Court reraimdliig prisoner on

^beas corpus was dismissed in Circuit Court of Appeals and

^'^llorari denied by Suf>reme Court, appeal and writ of error from

^^'^eolt Court does Dot lie to Supreme Court; Wirgman v. Persons,

^ Fed. 455, holding where defeated party in Cinnilt Court elects

** tppeal whole case to Circuit Court of Appeals, and assigns errors

*^'>tliig to jurisdiction of Circuit Court and also on mDrits, Circuit

■'^trt of Appeals may decide Jurisdictional question involved

'hoijgti otiier assignments of law are abandoned; Keyser v. Lowell,

^^7 Fe<l. 402, holding Circuit Court of Appeals has jurisdiction to

*^rmlne whether or not Stnte statute is ol»noxlous to United

'Elites Constitution in case In whicli Jurisdiction of Circuit Court

^aally attached Bokly by reason of diverse cUiifiensbip and cou-

■Utatioaal question subsefiuentJy urlsea.

165 D. S. 363-368 Notes on U. S. Reports. 763

165 U. S. 363. 364, 41 L. 746, OAKES v. MASE.

Syl. 1 (XII, 936). Employees of different trains as fellow servants.

Approved in Pennsylvania Co. v. Fishack, 123 Fed. 471, holding
yardmaster in charge of switchyards, who is subordinate to gen- ^
eral yardmaster, who in turn is subordinate to trainmaster, and ^
he to superintendent, is fellow servant of employees engaged in.^
switching in yard; Weeks v. Scharer, 111 Fed. 335, holding shift bODamL^
in charge of gang, whose duty it is to direct men when, where an<C^
how to work, but who has no authority to hire and discharge men.^c3
is fellow servant of men in his shift; Tomlinson y. Chicago, etc.^ ^^
R. R. Co., 97 Fed. 254, holding railroad bridge builder fumishe^^s
with cars for transportation of himself, his assistants, and tool^^^
and which cars are attached to regular trains, is fellow servair^r .
of employees in charge of trains; Thomas v. Cincinnati, etc., R^ "^
Co., 97 Fed. 249, holding yardmaster, who is responsible for cor-^c:
dition of yards, directs incoming and starting of trains, and is a~^^^

thorlzed to employ and discharge men, but who is subject to ordc m

of superintendent and trainmaster is fellow servant of foreman

switching gang; Grattis v. K. C, P. & G. Ry., 153 Mo. 402, 77 Ar

St. Rep. 735, 55 S. W. 114, holding engineer, fireman, and conduct^V~1
oil same train are fellow servants; Jackson v. Norfolk, etc., R. B.,
W. Va. 390, 27 S. E. 282, holding conductor is fellow servant of bra^^Bi
man on his train; dissenting opinion In St Louis, etc., R. R. Co.
Furry, 114 Fed. 904, majority holding under Arkansas statute flrem^^'
injured In collision of trains, caused by failure of telegraph opera "^<
to deliver orders received by him from train dispatcher, not fell ^*>''
servant of telegraph operator; dissenting opinion in Missouri, e-^^*^
Ry. Co. V. Elliott, 102 Fed. Ill, majority holding train dlspatcSfcB^
in giving orders for movement of trains not fellow Bervant i^^'^th
employees operating such trains.

1G5 U. S. 305-3G9, 41 L. 747, LAKE SHORE, ETC., RY. T. OHIC»-
Syl. 1 (XII, 936). State's power to improve navigable streams-
Approved in Montgomery v. Portland, 190 U. S. 105, 23 Sup. €t
737, 47 L. 970, holding establishment of State harbor line wittm««rt
which wharves cannot be erected is valid where line Is within I'M
fixed by war department, affirming Portland v. Montgomery, 8^ Or.
2'2S, 02 Pac. 759; Salliotte v. King Bridge Co., 122 Fed. 381, hol^JiV
where township contracted for construction of bridge over txMfi-
gable river in accordance with plans approved by war departio^t
and contract let to defendant as whole, who sublet part of It, ^
fendant not liable to adjoining landowner for negligent acts of vo^
contractor; Dastervigues v. United States, 122 Fed. 35, upboKflV
rule 13, promulgated by secretary of interior, prohibiting pastnriof
of sheep on public lands in forest reservation, except in cases wbew
permits for their limited grazing may be granted by the land de*
part men t

Notes on U. S. lleports. 105 U. S. 370^04

Syi. 2 (XII, mGy. Navigable waters — Act of September ID, ism>.

Approved in Cummlnga v. Chicago, ISS U. S. 428, 430. 23 Syp. Ct.
"^^ 47 L. 530, holtllng under act of Cougreas Marcli 3, 181)9* cbap.
^^, CoDgress did not invest private persons with power to erect
"itiuctiires In navigable stream wholly wltliln territorial limits of

State; Leavy v. United Stntes, 17? U. S. 620. 44 U 018. 20 Snp.
rt 800, reviewing eases defining " navigable waters of tlie United

te^;" Chatfleid Co. v. City of New Haven, 110 Fed, 793, up-
olding river and harbor act of 1899, & 18, autliorizing secretary
if war to determine, after notice to parties, whether any bridge
^er navigable waters is unreasonable obstruction to navigation.

^-1 U. S- 370-373, Not cited.

U. S. 373^79, 41 L. 750, DAVIS v. UNITED STATES.
Syl. 4 (XII, 937). Crlralna! law — " Insanity " defined.
Approved in Doherty v. State. 73 Vt 382, 50 AtL 1114, determin-
g question of insanity of one accused of homicide when he had
n subject to delusions.

U. S. 379-^85. 41 U 754. GERMANIA IRON CO. v. UNITED
STATES,
Syl. 2 (XII, 937). AnnuUlng laud patent for Irregularity.
Jlpproved In Oregon, etc., R. R- v. United States. 190 U. a 19T,
Sup. Ct 677. 47 L. 1016, holding lands selected under Or.
>3iation act, but wlilch were abandoned prior to selection as lieu
ids, under Oregon Central grant, not *" reserved " from sale, so as
L<:* prevent grant from attaching, though donation notification had
'^^^^ been formally canceled.

XHstlngulshed in Bocktinger v. Foster, 190 U. S. 124. 125, 23
^^tt jK Ct. 839, 47 L, 978. 979. holding homestead claimant cannot sue
^^feJahoma lown site trustees to divest them of title held by them
^*^^der 26 Stat. 109, chap. 207, in trust for town site occupants,

^^5 C. S, 38(5^304, 41 L. 757, DEWEESE v. REINHARD.
Syl. 1 <XII, 937). Collateral attack on patent.
Approved In King v. M' Andrews, 104 Fed. 432, holding home-
*^^d potent showing on face in connection with legislation of which
*^urt takes judicial notice that the land embraced therein had
^^^n prevlonsiy appropriated and not subject to entry, is void; re-
^^sed in 111 Fefl. 8«0.

DiHtlngulshed in King v. McAndrews, 111 Fed, 873. 874, holding

^*1l Ter, act of March 7. 1885, including portion of Indian reserva-

^ in city of Chamberlain, did not withdraw tills land from home-

*^ or pre-emption entry, because it was not part of public lands.

Syl 2 (XII, 93T), Injunction to restrain law action,

approved In Travelers'^ etc., Assn. v. Gilbert, 111 Fed, 2TC» denying

*«ieral equity iurisdictiou In view of Arkansas statutes providing for

L 111—49

165 U. S. 394-462 Notes on V. S. Reports. 77(

proceedings in court of law to set aside judgment rendered In suci
court on account of fraud or unavoidable misfortune preventing
party from appearing or defending; In re Chambers, Calder & Ck>.
98 Fed. 866, holding when bankruptcy receiver authorized to carri
on bankrupt's business enters on occupancy of leased building, ren
being in arrears at time of adjudication, landlord will be enjoinec
from prosecuting ejectment in State court; Byrne v. Brown, 40 Pla
116, 23 So. 879, holding equity will not enjoin ejectment where Urn
court is competent to adjudicate upon proper pleas In the legs
action the matters presented to the court of equity as ground fo
injunction.

165 U. S. 394-413. Not cited.

105 U. S. 413-442, 41 L. 770, ATLANTIC, ETC., R. R. v. BilNGUS
Syl. 3 (XII, 938). Government's right to re-enter on breach o;
condition.

Approved In California Reduction Co. v. Sanitary Reductioi
Worlvs, 126 Fed. 43, holding validity of grant by municipality of ex
elusive contract for removal of garbage cannot be collaterally at
tacked by private party because of failure of grantor to perforo
conditions imposed, nonperformance of which would work foe
feiture; Utah, etc., R. R. Co. v. Utah, etc., Ry. Co., 110 Fed. 88C
holding under act March 3, 1875, § 4, granting right of way ov€
public lands to railroads, failure to complete road within tiia
limited does not ipso facto revoke grant.

105 U. S. 443-402, 41 L. 782, IN RE CHETWOOD.

Syl. 1 (XII, 938). Questions determinable on error to Suprec
Court.

Approved in Tornanses v. Mclsing, 100 Fed. 784, holding unv:^
Alaska Code, § 504, order made by District Court by which pla^ ^
claim, together with personal property, which is not involved hi -i
litigation, is turned over to receiver with instructions to work cI^B
and in so doing to use the personal property, is final appealESK
decree.

Syl. 2 (XII, 938). National bank receiver not court's officer.

Approved in Weeks v. International Trust Co., 125 Fed. 373. fcmo
injr Federal court has jurisdiction over action against stockholc^ei
ap'Ut for winding up affairs of national bank, irrespective of cit iMei
ship; McCartney v. Earle, 115 Fed. 403, holding suit brought b)
naiional bank receiver, by direction of comptroller, to enforce Hm-
bility due bank, is within Circuit Court's jurisdiction Irrespect/re
of citizenship; Guarantee Co. of North Dakota v. Hanway, 1(H
F«m1. 371, 372, holding action against agent of shareholders of M-
tl( nal bank chosen by them under act of June 30. 1876, us amended,
is removable under judiciary act of 1887-88, §S 1» 2, 4.

€L&^

t» be
gmre effect t» SIste $ni^ma iH ia dMritadon of awmxil
5(Xn,999|L eaerticrari la camct cxcew Jqriedictiofft.
^.^^prorred la Tezms Oectai Frodiicti Col t. Stamcs, 12S Fed. 1S5«
\irmM ^Ing faurt tilftt afl9 fcnMvml pUAitlff iBmtawd sntt wtHfeMt
IftL ^^^ Jadice and cnmifawd salt, ia State eosrt doea not empower

^^7L e (Xn. IBSf^ OoBtenipt JodgmeDts not i>eTlewable In Sapiv^iae

^i^ppraned la fix parte Jains, 191 U. S. 10Q« holding prohf tuition
do CL^ aot laaoe to Infefior court in respect to c&nse which Is finished.
^:yL 7 (Xn, 939k Berlewahiiltj o€ State contempt judgments.
-A^pproTed in CTNeal t. United States, 190 C S. 38. 23 Sup. Ct
r^r^ 47 L- MfS, refusing to review District Court judgment in coo*
^pt proceedings on writ of error where jurisdiction oTer per-
And subject-matter not challenged, and lower court*s certffi-
^'^'e asserted question to he whether it had jurisdiction to try
*^^^ punish defendant for contempt on facts and for causes stated;
^^^•^ of Counciimen t. Deposit Bank, 127 Fed. 813» holding pro-
^**ling' against municipal officers for vioiatlng Injunction restrain^
*% iliem from taxing assets of bank, being in nature of prosecu-
"**«i for offense, is not reriewable by appeal; In re Parquet, 111 Fee!.
^K holding Circuit Court of Appeals cannot issue probibitiou to
*^*J* proceedings in Circuit Court where Its appellate jurisdiettoii
JMi QQi 5^^^ Invoked by appeal or error; Ex parte O'Neal, 125
^'^^ 908, arguendo.

^ IX 8. 463^82, 41 L. 78», UNITED STATES v, WINONA.

^71 1 (XII» 93^). Bona fide purchaser from fraudulent patentee.

A(»proTed In Southern Pac, R. R. Co. v. Choate, 132 Cal 281, (M

**^. 2H holding purchaser of lands from railroad whitii at time

^' Ifrant were within prior uiiapprored survey of Mexican ^nitit,

^^ Qot within later approved survey, and which were later pat-

^^H to railroad cannot rescind after being In poasession more

^hiu seven years and for three years after patent issued; Sage \\

^ftie)% 83 Minn. 320, 86 X. W. 411. hold in g acta of Congrpss

^tfember 29, ISUO, and Minn. Laws 18^. chap. 165, did not affect

165 U. S. 46a-482 Notes on U. S. Reports. 772 ,

title of grantee In trust (rom railroad of lands granted to railroad^
undor act of Congress of July 4, 1866, which had been earned bj*^
completion of road.

Distinguished In United States v. Southerb Pac. R. R. Co., 111^ _
Fed. 553, 556, holding, under acts March 3, 1887, February 1^^^
1896, and March 2, 1896, government may sue In equity to sc^^
aside patents wrongfully Issued to railroad to re-establish rights- ^
of purchasers in such lands and In same suit require accountiiK=^
from railroad as to lands which it has sold.

Syl. 2 (XII, 989). Confirmation of bona fide purchaser of railro^ ^
lands.

Approved in United States v. Southern P. R. R. Co.. 184 U.
52, 46 L. 428, 22 Sup. Ct. 286, reafllrming rule; Gertgens v. OX
nor, 191 U. S. 243, holding one who for sufiicleut considerati
has obtained land option from railroad, and in reliance upon •— c
tion has expended money and labor in securing settlers, la **b< »:
fide purchaser " within act of March 3, 1887, § 5, afiirming O'C <.
uor V. Gertgens, 85 Minn. 495, 89 N. W. 871; Benner v. Lane, X:
Fed. 410, holding, under act March 3, 1887, purchaser of unears^ixc
lands which had not been conveyed to railroad and which it ^SiJi
forfeited right to earn is not bona fide purchaser as against bo- :sm<
steader in actual occupancy; Manley v. Tow, 110 Fed. 252, '"W'^
holding purchaser from railroad is chargeable with notice of rij^^liti
of one who at time of purchase was In actual occupancy of I mntf
claiming as settler, under the homestead laws, and is not ta^-ont
fide holder within act of March 3, 1887, as against such setCiJer;
United States v. Southern Pac. R. R. Co., 98 Fed. 47, 48, hol43lnf
under supplemental act of March 2, 1896, fact that purchaser of
lands erroneously patented to railroad was chargeable with con-
structive notice of invalidity of company's title does not affect
his title; United States v. Southern Pac. R. R. Co., 98 Fed. 42, hoid-
ing, under supplemental act of March 2, 1896, all bona llde po^
chasers of railroad lands who buy in belief that they will obt«is
good title from railroad of lands which have been patented to W
are protected, though patents issued after commencement of soit;
WagstafiC V. Collins, 97 Fed. 5, 7, holding where complainant's *D*
cestor made homestead entry on lands which were within llmlti
of railroad grant, but which were excepted from operatioo oi
grant by reason of pre-emption, though pre-emption afterwir"
abandoned, title of purchaser from railroad after homesteader fO*'
renderod possession to railroad was confirmed by supplemental sC
of 29 Stat., chap. 39; Ramsay v. Tacoma L. Co., 31 Wash. 354. ?
Pac. 1026, holding bona fide purchaser of railroad land wlw, ^
decision of land department adverse to railroad's right to It
had applied to make purchase, under 24 Stat. 557, had pref
ence over liomesteader entering within four months after no
of cancellation of railroad's right with knowledge of facts; 1
V. McAndrews, 111 Fed. 8(>3, arguendo.

Notes on IL S. Reports. 165 U. S. 483-504

distinguished In United States v. Halnies, 105 Fed. 4S, Iiolding
^'tt license given by railroad to settle on tract supposed to be
^thtn grant where company expressly declined to exiter Into con-
Bet of sale does not constitute settler a purchaser wltblo act
^rch 3, 1887, ( 5.
iXlU ^39). MiscellaneonB.

Cited in Tarpey v. Madsen, ITS U. S, 222, 44 U 1015, 20 Sup. CL
1. to point tliat line of road definitely Hxed wbeuevtr it was
reyed, staked out and definitely fixed.

U. S. 4S3*-486, 41 L. 798. WINONA, ETC., E. R. v. UNITED
STATES.
Syl. 1 (XII, 940). Purchaser of railroad lands with notice.
Approved In United States v. Southern Pac. R. R. Co,» 98 Fed.
, holding fact that purchaser of railroad lands was chargeable
►^Itli constructive notice of invalidity of company's title does not
Tect his title under acts of March 3. 18.ST, and March 2, 18%;
Xonnor v. Gertgens, 85 Minn. 4D6, 8f* N. W. 871, holding one
ho for sufficient consideration has obtained land option from
ilroad, and In reliance upoo option has expended money and
M. ^m^ lK»r on secui'ing settlers, is " bona hde purchaser " within act of
^^liirch 3, 1887, | 5.

Distinguished In United States v. Soutiieru R R. R, Co,. 1S4 V,
^5- &4, 45 L. 428, 22 Sup. Ct. 28G. holding purchaser of lands patented
*:^* railroad is protected by act of March 2, 1896.

acts U. S. 4SG-^4M. 41 L. im, DUNLOP v. UNITED STATES.

Syl 2 (XII, 940). Discretion of court — Application to file papers.

Approved in Tnbbs v. United States, 105 Fed. 61. holding Indlct-

liAeut for mailing obscene, lewd and lascivious letter Is not defee-

tJve because it falls to set out such letter, where it Is alleged that

^'^ contents are too obscene to be spread upon records: McKnight T*

"^-^ ailed States, 97 Fed. 213, upholding indiclment charging national

^-nnlj president with causing false entrj' to be made to bIio%v that

^i«toaier had deposited certain sums to bis credit when in fact,

'** <3efendant well knew, no such deposit had l>een made.

^}XZ tXII, 940). Posf-olhce — Advertisements to show newspaper
f'^ner^Wp.

Approved in United States v Moore, 104 Fed, SO, holding, under
^''T. Stat-, I 3893, a nonmailable article must be lewd and lascivious
•» Well as obscene.
^yL 5 (XII, 940). Post-olbce — Mail presumed received.
Approved in Nassau Elec. R. R. v. Corliss. ll!G Fed. 35(J. holding,
'o iedon by passenger for injuries alleged to have resulted from
P^uiature starting of ear* wiiere defendant claimed tbat plaintiff
*ft*tnpCed to board moving viir, evidence that prior to accident de-
fnniant had adopted rule retiuirins all cars to atop at pomt in
^Of^ftion and tliat tliey dtd m stop Is admissible.

165 U. S. 504-520 Notes on U. S. Beports. T

(XII, d40). Miscellaneous.

Cited In United States v. Wroblenskl, 118 Fed. 496, holding ma
ing of private sealed letter directed to and containing indece
charges against mother of writer does not constitute offense <
mailing letter containing obscene, lewd and lascivious matter und
Rev. Stat, § 2893; Middleby v. Effler, 118 Fed. 262, holding ca
showing that defendant spoke and published words charging th
plaintiff had " written anonymous letters " which were scurriloi
and that it was ** a State prison offense," does not warrant chart
that if words spoken were substantially as alleged, they amounti
to charge that plaintiff had committed crime against Federal law
Kellogg V. United States, 103 Fed. 202, holding where prosecutir
attorney in refuting assertion that he was trying to convict Um
cent man refers to success in other cases, and court sustains obj
tion to such reference whereupon prosecution concedes that
should not have made it, error is sufficiently corrected; State-
Laudano, 74 Conn. 646, 51 Atl. 863, holding, upon trial of Italian
murder of policeman, reference by prosecuting attorney to
Mafia, though improper, was not ground of reversal where t=
court had refused new trial therefor; Morrison v. State, 42 Fla. —
28 So. 99, upholding charge in prosecution for murder that in ^
sidering evidence jury sliould use same judgment, reason and <r«
men sense and knowledge of men and affairs as they hav^
every-day life.

165 U. S. 50i-517, 41 L. 805, UNITED STATES v. McMILLAT*
Syl. 1 (XII, 940). Territorial courts not courts of United St»
Approved, in Jackson v. United States, 102 Fed. 479. hold

entitling indictment returned in District Court for district

Alaska, ** In tlie District Court of the United States for the Dlsti

of Alaska," does not vitiate the indictment

1G5 U. S. 5ia-526. 41 L. 810, SMITH v. VULCAN IRON WORKS.

Syl. 1 (XII, 940). Appeal of patent case to Circuit Court
Appeals.

Approved In Co-Operating, etc., Co. v. Hallock, 128 Fed. 597, 5fl
reaffirming rule; Frye-Brulin Co. v. Meyer, 121 Fed. 635, and Worl
Mfj?. Co. V. Bingham, 116 Fed. 793, both holding, on appeal trot
Interlocutory order granting or continuing injunction, appella^
court may direct dismissal of bill where it is found to be witbot
equity to support it; Joseph Day Dry Goods Co. v. Hecht, 120 Fe<
760, and Cabaniss v. Reco Min. Co., 116 Fed. 320, both applyllJ
rule on appeal from interlocutory order appointing receiver; B^
liner Gramophone Co. v. Seaman, 110 Fed. 33, holding, on appe^
from an interlocutory order granting or continuing an injunctioi
court may determine suit on its merits and dismiss the bill, whel
case stated is one which court of equity will not entertahi; To

rT«s

Notes on U. S. Reports. IGo U. S. 52lr-G37

^&tises V* Melslng, 100 Fed, 711, holding, on appeal from iuterlocu-
^ory order appointing receiver iind giantltig injunction. Circuit
'^^ourt of Appeals may dispose of case oo merits wbea it determines
^Uat there Is no equity in bill which would warrant granting of
I ^^timate relief to complaiuiinti

DiBtlDgiilshed In Mast, Foos & Co, v. Stover Mfg. Co., 177 U, S.
I in, 44 L. S60, 20 Sup. Ct 712, holding where case Is carried by
I appeal to Circuit Court of Appeals from order granting temporary

Iiajanctian that conrt may dismiss hill if there he nothing In afti-
davits tending to throw doubt upon existence or date of antici-
patiDg devices, and giving them their proper effect, they estahlish
the Invalidity of the patent: Kerr y\ New Orleans. 126 Fed, d'2o,
holding where injunction pendente lite was granted before issue
Joined, and It appeared that case Involved controverted questions of
fact, appellate court on appeal trom order granting such inj unction
will not examine merits to determine whether injunction improvi-
dently granted; Jack v. State, 102 Fed. 214, holding order made sus-
pending dismantling of road by receiver is not appeakihle under
2a Stat. 666.

165 U. S. 52^-537, 41 L, 833, IN RE KOLLOCK.

8yL 1 (XII, &41). Regidatlon of brands — Delegation of power.

Approved Id Van Lear v. Eisele, 120 Fed. 827, upholding 26 Stat.

%ii\, i 3, vesting In secretary of interior power to make regulations

governing use of waters of Arkansas Hot Springs rcBervation;

JJlmmick v. United States, 121 Fed. 643, holding. In prosecution

<wider Rev. Stat, f 5492, of clerk of mint for failure to deposit

proceeds of sale of old materials, treasTury rule requiring such pro-

c^^eds to be deposited on last day of each quarter was admissible;

^lles V. Davis. 118 Fed. 4GS, upholding Federal Jurisdiction, rcgard-

of citizenship, over action on attachment bond executed In

lit pending in Federal court; United States v. Dastervignes, 118

201, upholding 30 Stat 35, authorlsting secretary of interior

iMke rules and regulations for protection of forest reservations;

'Dougherty v. United States, 108 Fed. 57, affirming United States v.

I^ougherty, 101 Fed. 442, upholding 1 Supp. Rev, Stat., pp. 505,

^), hnposing tax on manufacturers and dealers in oleomargarine

ami regulating sale thereof; Smith v. City of Shskopee, 103 Fed.

1^1. holding admirnlty court takes Judicial notice of reguiatloue

'>f ligbthouse board; Grady v. United States, OS Fed. 2;t9, holding

P<Jituja8ter liable on bond for money order moneys misappropri-

*N by him though bond doos not contain additional condition re-

■nitred by Rev. Stat, f 3834, relating to money order business:

talker v. Towle, 15G Ind. G43, ,59 N. E. 22, upiiolding ordinance

''e^llilrlng mayor whenever he api)rehends danger from hydrapliohia

loissutf order to dogowners to muzzle thenx for not leas than tldrty

«>ormore than ninety days; Love v. Phalen, 12S Mich. 552. 87 N. W

*^ upholding Detroit ordinance forbidding making of public ad-

165 U. S. 53S-553 Notes on U. S. Reports.

dresses in public place within half mile of city hall without first
obtaining permission from mayor.

Distinguished in United States v. Blasingame, 116 Fed. 654, hold-
ing void provision of sundry civil appropriation act of June 4, 1S^7,
making it criminal to violate any rule or regulation thereafter to
be made by secretary of interior for protection of forest reserva-
tions; United States v. Maid, 116 Fed. 653, holding perjury, under
Rev. Stat, S 5392, cannot be predicated upon affidavit of nonmin-
eral character of land made In support of homestead entry, though j

land office regulation requires such affidavit to be made In certain j

States.

105 U. S. 538-^53, 41 L. 817, McCORMIOK v. MARKET BANK.
SyL 1 (XII, 941). Review of State decision in favor national bank. ^^

Approved In National Banlt & Loan Co. v. Petrie, 189 U. S. 424, ^ j

23 Sup. Ct 512, 47 L. 880, holding where national bank has sold .^^
certain bonds and vendee has obtained Judgment for purchase?— «^j
money in State court on ground that sale of bonds was without
authority of bank and was illegal and void. Supreme Ck>urt wlU
review State decree.

Syl. 2 (XII, 942). National bank's unauthorized lease is cold.

Approved in Cumberland Tel., etc., Co. v. Evansville, 127 Fed. 10
193, holding, under Indiana statutes for formation of telephon
companies, sale of all franchises and property of such a compan
is void and cannot be validated by ratification or recognition
city which granted right to such company to use streets, so as
give transferee right to use such streets; City of Ft Scott v. W.
Eads, etc., Co., 117 Fed. 54, holding where statute authorla
municipality to advertise for bids and invest sinking fund in ' — ^ ^^
of those parties offering them at lowest price! Its contract w ^^^ ^
brokers to repay them amount they should expend In purchase o/

bonds and percentage for their services, is void; Edward P. A^ ^l/#
Co. V. Standard Nat. Bank, 110 Fed. 50, holding national b^^sji^
cannot operate sawmill or conceive and carry out scheme fot

carrying on such business through a dummy corporation wk^zaldi
is the l)ank under another name; Bancroft v. Bloede, 106 Fed. — lOa,
holding issue of stock by corporation engaged in manufacture ing.
bleaching and dying goods, in payment of stock of corpora^, tlon
owning secret formula for dyes, was for purchase of prop*"*rfy
proper in connection with its business under charter; Baile ^^ ?.
Tillinghast, 99 Fed. 808, holding comptroller's certificate autli orf^
ing an increase of the capital stock of a national bank is conclu^re
of existence of all the facts necessary to authorize such loor^tue
in favor of public and against subscribers to such stock; Texarl^iuia,
etc.. By. V. Bemis L. Co., G7 Ark. 549, 55 S. W. 947. holding wben
corporation president had been in habit of signing its name to notei
without express authority of directors, of which custom botrd
was cognizant, corporation bound by note so signed; First Xit

* « *

Notes on U. S. Heports.

105 U. S. 55S-578

^^ank V. American Nat Banlc. lia Mo, 159, IGO, 72 S. w: 1061,
^^^o\(ling national bank may plead ultra rlres when sued on agree-
^^:ieiit to bind itself that di*aft drawn by customer of auother na-
^^^ODiii bank on one of its own customers will be paid; Tourtelot v»
"^^'hUiied, 9 N. Dak, 479, 84 N. W. 13. holding contract of corpora-
^t ion whlcli is ultra vires solely because of existing circumstances
•^^^tid conditions uuder which it was made is not void and plea of
"^--^tm vires will not avail where it has been fully executed; Clarks-
^^=»org. etc., Co. v. Clarksburg, 47 W. Va. 749» 30 S. E. 997, holding
it by niunlclpallty to intended electric-light corporation of
'Jght to use its streets is valid though at its date corporation is not
Imrtered but Is later chartered and accepts grant; Security NaL
Sank V. SL Croix Power Co., 117 Wis. 218, 94 N. W. 77, arguendo.
Distinguiahed in Weeks v. International Trust Co,. 125 Fed. 374,
aiding national bank may lease property for its oecupaucy in con-
acting its business for a term extending beyond expiration of tts
3iarter even though lease is assignable only by consent of the
isor; Tain tor v, FrankUn Nat. Bank. 107 Fed. 827, upholding pay-
ent by receiver of national banlv of rent of banking bouse where
was made pursuant to order of court.

U. S. 553^566, 41 L. 823, SWAIM v. UNITED STATES.
Syl, 1 (XII» 942). Reviewability of sentence of court- martial.
Approved in McClaughry v. Deming. IStJ XL B. 69. 46 L. 1058, 22
jp. Ct 7»4. holding habeas corpus lies where volunteer army
Beer tried by court-martial composed by regular army officers;
V. McClaughry, 183 U. S, 400, 46 L. 253, 22 Sup. Ct. 193,
irmlng Carter v. M'Claughry, 105 Fed. 619. holding embezzlement
t^^^Sc- disbursing officer of United States utuicr Rev. Stat., § 54SS, is
^^*^ ^^-^mnishable under sixty-second article of war. punishing all offenses
^^^^ prejudice of good order and military discipline.

^^^SU. S. 5G6-57a 41 U 827, De VAUGHN v. HUTCHINSON,

SyL 1 (XI I* 942). Lex rei aita? governs sale of realty.

-Approved in Orr v. Gilinan, 183 U. S. 286, 46 L. 201, 22 Sup. Ct.

-^"J, apbolding N. Y. Inheritance tax law of April 16, 1897; Brart-

*^^w V, Ashley. 180 U, S. m. 45 L. 431, 21 Sup. Ct. 300. holding

**"**<& in possession under color of riglit, which possession has Ijeeu

^^^Otiauous and not abandoned, lias title as against intruder without

^^^-'>it: Clarke v. Clarke, 178 U. S, 190, 44 L. 1031. 20 Sup, Ct. S74,

iuf courts of State where real estate 1b situated have exclusive

to appoint guardian of nonresident minor and vest in such

liau exclusive control and niauagoinent of minor's land situnfe

^ «uch State; Norton v. House of Mercy, 101 Fed. 389. holdiug

^We New York charitable con hi rut ion which could hold real prop-

*'^^ not exceeding $r»<M¥K) in value was made beneficiary u ruler will

''^ Kentucljian, judgment of Kentucky court that it already lie Id

\v of value of $r>C^,O0€ in value and was incapable of tnklng

inclusive between parties and estopped it from

165 U. S. 578-593 Notes on U. S. Reports. 7

suing in another State to recover lands there situate as passi;
under will. See 88 Am. St. Rep. 518, note.

165 U. S. 578-593, 41 L. 832, ALLGEYER v. LOUISIANA.

Syl. 1 (XII, 943). Conditions Imposed on foreign corporations.

Approved in Nutting v. Massachusetts, 183 U. S. 556, 46 L. 3!
22 Sup. Ct. 239, holding Mass. act 1894, chap. 522, ( 98, imposi
fine on any one who shall act in transaction of insurance wl
foreign company not admitted to do business in State, is vai
as to broker who in that State solicits insurance from resident a:
transmits order to New York.

Syl. 2 (XII, 943). Fine for doing insurance business — Foreij
contract.

Approved in Commonwealth Ins. Co. v. Swift, 174 Mass. 229,
N. E. 1097, reaffirming rule; Nutting v. Massachusetts, 183 U.
577, 46 L. 327, 22 Sup. Ct 239, holding Mass. act 1894. chap. K
§ 98, Imposing fine on any one who shall act in negotiation of
surance with foreign company not admitted to do business in Stai
is valid as to broker who in that State solicits insurance from ra
dent and transmits order to New York; Frawley v. Pennsylva-
Casualty Co., 124 F^d. 264, holding foreign lr<?urance comps
writing four policies by correspondence and coiicotion of rene—
premium through local bank did not constitute doing business
State so as to render company subject to Jurisdiction of Its coiiB
State V. Insurance Co., 106 Tenn. 288, 61 S. W. 76, holding fore
life Insurance company which ceases to solicit policies in 8* '
and recalls its local agents and compels payment of premiumoi
mail is not liable to privilege tax on gross premium receipts
posed on foreign life insurance companies.

Distinguished in Adler-Wimberger SS. Co. v. Rothschild, etc.,
V2:\ 1^'od. 148, upholding Pa. act of May 1876, § 48, imposing perm^
for transaction of business within State as agent for foreigxs
surauce company which has not complied with State laws; B
V. Home Ins. Co., 120 Iowa, 302, 94 N. W. 850, holding where Uw
ance application taken by local agent provided that policy slio
not be binding until approved by general agent to whom it ^
sent in anotlier State and contract there approved with exceptioo
premium which was raised and charged to local agent, contr'
not complete until modification approved by insured.

Syl. 3 (XII, 943). Right to follow occupation is inalienable.

Approved in Atkin v. Kansas, 191 U. S. 220, upholding Kan. I*
of ISUl. prohibiting all persons contracting with State or munlcip*^
ties for public work from rcciniring laborers to work more tfl*
eight hours per day; Bessette v. People, 193 111. 344, 62 N. B. 2^^
holding void act of 1807. roiiuirinjr liorseshoers to practice oallifl^
for four years, submit to examination and pay license fee; Rulistrat
V. People, 185 111. 139, 70 Am. St. Rep. 32, 57 N. E. 43, holding

^«-s

Notes on U. S. Reporta. 105 IT. S* 57S-o93

^c»ld Laws 1899, p» 234. making It unlawful to use flag aa medium
P^x- advertising purposes. See 86 Am* St Rep. 313, note.

SlyL 4 (XII, tH3), Fourteentli Amendment — '* Liberty ** defined.
.A^iproved In Patterson v. The Eudora. 190 tJ. S. 173. 23 Sup. Ct
*1>L*, 47 L. 1005, upholding act of December 21, 1S08. § 24, prohibit-
ixx^ prepa3*me-nt of seamen shipping in American port; Lottery Case,
LSS U- S. 357, 23 Sup. Ct 327, 47 L. 501, upliolding act of 1891,
px^ohlbitlDg lottery tralfic through Interstate commerce and postal
B^ervice; Booth v. Illinois, 1S4 U. S. 42S, 4tJ L. 626, 22 Sup, Ct 42G,
Kii>lioldiiig III Crim. Code, i 130, relating to options to buy or sell at
future time; Cargill Co. v, Minnesota, 180 U. S. 4GT, 45 L. 626, 21
^up. Ct. 429, upholding Minn. Gen. Laws 1895, ciiap. 148, regulating
.^Liid licensing grain elevators; Austin v. Xennessee, 179 U. S. 361, 45
T:^ 233, 21 Sup, Ct 139, upholding Tenn. Acts 1897, chap. 30, pro-
hibiting sale of cigarettes, as applied to importer bringing cigarettes
^"a ordinary paclvs which were tlirown loosely Into baskets; Williams
^. Fears. 179 U. S. 274. 43 L. 18S, 21 Sup. Ct 130, upholding
<ja, revenue act taxing bnslness of emigrant agent; Whit well v.
<^ntinental Tobacco Co.. 125 Fed. 458, 460, holding restriction of
^owa trade by manufacturers to those purchasers who declined to
<3eal in gooda of their competitors by raising prices to other pur-
<5ha8er» was not violation of anti -trust law; United States v. Morris,
"3^ Fed. 326, holding conspiracy to prevent negro citizens from ex*
<?*n!bing right to lease and cultivate land hecnuse tliey are negroes
*a conspiracy to deprive them of constitutional right within mean-
ing of Rev. Stat, § 5508; State v. Dalton,.22 R. L 86, 46 Atl. 237,
^olillni? trading stamp law void; Marshall, etc., Co, v. City of Nasli-
f'llltf, 100 Tenn. 510, 71 S. W. 819, holding void city ordinance regnu--
i*g union label on all city printing; Young v. Commonwealth, 101 Va.
45 8. E. 329, holding anti-trading stamp law void; State v.
£i«Ut2berg, 114 Wis. 534, 90 N. W. 1100, 91 Am, St. Rep, 937, hold-
*^ void Laws 1899, chap, 332, making it an offense for any one to
lW.nrge an employee because he is a member of a labor organiza-
tion; dlfssenting opinion in Taylor v. Becliham (No. IK 17S U. S.
'*fi 44 L. 1210, 20 Sup. Ct. 1016, majority holding Supreme Court
*iuiiOt on review State Judgment on contested gubernatorial elec-
^fti refusing to review determination by tribunal to which it was
^^clijsively committed by State law,
8yl. e (Xlh 943). Privilege to pursue calling— Right to con-

Approved In State v. Associated Press, 159 Mo. 456 (see GO S. W.
*^). refusing mandamus to compel press association to furnish
*«W8 budget for publication.

8yl 7 (XII, 944). Police power — Contracts performable out
! •' 8tftle.

Approved In Commonwerdth v. Nutting, 175 Mass. 15!j, 7S Am. St.
fiep. 484, 485, 55 N. E. 895, holding legislature may prohibit agents

165 U. S. 59S-624 Notes on U. S. Reports.

of foreign Insurers from soliciting foreign Insurance in this S
even though they agree with Insured that they are his ag
People V. Coler, 166 N. Y. 149, 59 N. E. 778, holding labor law of
void in so far as it compels municipalities and contractors to w
construction of public works, only such stone as is carved or c
New York. See notes, 82 Am. St. Rep. 628; 78 Am. St. Rep. 2

Syl. 8 (XII, 944). Person In State may contract outside.

Approved in Nutting v. Massachusetts, 183 U. S. 558, 46 L.
22 Sup. Gt. 240, holding Mass. act 1894, chap. 522, ( 98, imp<
fine on any one who shall act in transaction of insurance
foreign company not admitted to do business in State, Is valid
broker who in that State solicits Insurance from resident
transmits order to New York; National, etc., Bldg. Assn. v. Bn
80 Miss. 419, 430, 431, 432. 31 So. 842, 846, holding contract x
which foreign loan association having no general agent iu M
sippi lends money to resident stockholder secured by trust
on lands in this State is governed by Mississippi usury laws, ti
association had solicitors in various towns in State.

165 U. S. 593^-606. 41 L. 837, WALKER v. NEW MEXICO, I
R. R.
Syl. 2 (XII, 944). Following State decisions as to surface wf
Approved in Hagge v. Kansas City S. Ry. Co., 104 Fed.

holding no action lies against railroad for damages on account c

struction of flow of surface water by embankments made fc

road bed. See 85 Am. St. Rep. 717, note.

165 U. S. 600-624. 41 L. 844, PAULY v. STATE LOAN, I
TRUST CO.

Syl. 1 (XII, 944). Real owner of national bank shares is s
holder.

ApproveJ in Langtry v. Wallace, 182 U. S. 554, 45 L. 122"
Sup. Ct. S85, holding in action by national bank receiver to c<
assessment defendant cannot counterclaim for money paid for J
on account of fraud wliereby he was induced to purchase s
affirming 97 Fe<l. 8G7.

Distinguished in Robinson v. Southern Nat. Bank, 180 U. S.
45 L. 540, 21 Sup. Ct. 387, holding bank not liable for assess
on shares of insolvent national bank where it held share
collateral.

Syl. 2 (XII, 945). Pledpee of bank shares as shareholder.

Approved in Rankin v. Fidelity Trust Co., 189 U. S. 249, 25
Sup. Ct. 556, 47 I^. 795, holding wliere trust company loaned m
on shares of national baulv and surrendered certificates to bank
took out new ones in name of one of its employees, it is not 1
for comptroller's assessment; Tourtelot v. Stolteben, 101 Fed.
365, holding where an action by national bank receiver to re<
assessment from one who holds stock as trustee to secure debt 1

Notes on U. S, Reports. 1^ U. S, tJOe-624

tcrtual owner to third person and plaintiff did not produce list of
ftt:ockholder8, bnt only stock .certificate-book, defendant not estopped
'^o show that stock was transferred to him by pledgee; Hurlbiirt v,
-A^^'thur, 140 CaL 109, 73 Pac. 737, holding wliere from corporatiOD*s
'■^^ooltii pledgee appears as stockholder, and there is nothing to in-
*:lIoate that he holds otherwise than as owner, he Is liable to

SyL 3 (XII, 945). Real owner of bank shares transferring to
^-rsde liability.

Approved In Tourtelot v, Stoltehen, 101 Fed. 366, holding where

1 n action by national bank receiver to recover assessment from one

"%vlio holds stock as trustee to secure debt from actual owner to

tfaird person and plaintiff did not produce list of stockholders bnt

^^rtlj stock certificate-book, defendant not estopped to show that

^irtock was transferred to him by pledgee.

SyL 4 (XII. 945), Pledgee of bank shares as shareholder.

Approved !n Mattlson v. Dent, 176 U. S. 532, 44 h. 57a 20 Sup. Ct

-*^^3, reaffirming rule; Rankin v. Fidelity Trust Co., 189 U. 8. 247, 23

^Sup. Ct. 555, 47 L. 795, holding wliere trnst company loaned money

^^Tk shares of national and surrendered ceitificateB to bank and took

<:*ut new ones In name of one of its employees, It fa not liable

^or comptroller's assessment, afhnning Higgins v. Fidelity Ins.,

^tc. Co.. 108 Fed, 477; Wilson v. Merchants' Loan & T. Co,,

^ 'Sa D. S. 126, 4S h. 115. 22 Sup. Ct. 57. aftirmlng 98 Fed. 691, holding

l^»le<dgee of national hank stock witii power of attorney to have

^^liarea transferi'ed on books, so long as he holds shares as security,

*-« Hot liable to assessment though he has caused shares to be trnna-

*'^rred to third person under ai^'reenient that they are still to be held

^« aecnrity; Hayes v. Fidelity Ins,, etc., Co., 105 Fed. 160, holding

l>l^gee of national bank sliares with povrer of attorney In blank to

^'tTinafer same Indorsed tiiereon is not liable for assessment by caus-

*^*3g them to be transferred on books of bank to third person to hold

^-•trustee; Tourtelot v. Stoltchea, 101 Fed, 3G7. holding where in ac-

^toii by national bank receiver to recover assessment from one who

^«ld» stock as trystee to secure debt from actual owner to third

**«non, and plaintitT did not produce list of stockholders, but only

*t(HHt certiflcate-book» defendant not estopped to show that stock

'^as transferred to him by pledgee.

blatinguished in Rohlnson v. Southern Nat. Bank, 180 U. S, 309,
^** L 542, 21 Sup, Ct, 388. holding national bank not liable for as-
^^wiaient on ahares of national bank w here It held shares as coi-

%l, C (XII, 945). Pledgee of national bank stocks' liability as
"tjftreholder.

l^iBtiuguJshed in Sherw^ood v. IllinoSa Tr. it Sav. Bank. 195 111. 12*1.
'^Ahl St, Rep. 1^. 62 N. E. S3S, holding one hoidinif stock In trust

1

165 U. S. 624-634 Notes on U. S. Reports. 782

Is liable to assessment on corporation's Insolvency where he appears
on books as owner.

165 U. S. 624-<J28, 41 L. 851, WADE v. LAWDER.

Syl. 1 (XII, 946). State Jurisdiction over contract respecting
patent.

Approved in Excelsior Wooden Pipe Co. v. Pacific Bridge Co.«
185 U. S. 286, 46 L. 913, 22 Sup. Ct. 682, holding where bill is filed
by licensee against patentee and another party to whom patentee
has granted conflicting license Jurisdiction not ousted by reason
of answer alleging forfeiture by plaintiff of rights under license
by failure to comply with its conditions whereby license had been
revolted; Holt v. Indiana Mfg. Co., 176 U. S. 71, 44 L. 376. 20 Sup.
Ct 273, denying Jurisdiction over suit to enjoin collection of personal
property taxes on manufacturing corporation which owned patent
rights; M'MuUen v. Bowers, 102 Fed. 496, 600, denying Jurisdic-
tion over suit to forfeit dredges used outside of territory specified
under contract granting license to use and construct patented
dredging apparatus; Kurtz v. Strauss, 100 Fed. 801, denying Federal
Jurisdiction over, suit by patent owners to compel specific perform-
ance of contract for introduction and manufacture of patented
articles and also for cancellation of forged assignment of part in-
terest in patent; Carlcton v. Bird, 94 Me. 188, 47 Atl. 155, upholding
State Jurisdiction over action of debt brought on covenant to pay
license fee for use of pateuted lime Itiln, though defendant denied
that apparatus used by him was covered by plaintifTs patent.

165 U. S. 628-634. 41 L. 853, NEW YORK. ETC.. R. R. v. NEW
YORK.

Syl. 1 (XII, 946). State commerce regulation in absence of con-
gressional.

Approved In Reld v. Colorado, 187 U. S. 147, 23 Sup. Ct. 96. 47 L.
114. boldinj? Colo, act of March 21, 1885, relating to Introduction
of infectious or contagious diseases among cattle of that State, re-
lates to matters not covered by animal industry act of Congress of
Mny 29, 1884; Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 517,
44 L. S70, 20 Sup. Ct. 723, holding void State statute requiring all
rej-fnliir passenger trains to stop at county seats, as applied to inter-
stMe train, where sufficient local trains provided; Kansas City, etc.,
Ry V. Hoard of R. R. Comrs., lOG Fed. 358, holding State cannot
regulate railroad rates between points within State where course of
transportation must be for considerable distance outside of State;
Ex parte Young, 3G Or. 250, 78 Am. St. Rep. 774. 59 Pac. 708,
upholding Hill's Anno. Laws, § 1902, punishing persuasion or at-
tempt to persuade seaman to desert.

Syl. 2 (XII, 94G). Police power not Impaired by commerce power.

See 93 Am. St. Rep. 84, note.

Notes on U. S. Rei>orts. 165 U, S. 034-654

L

Sji. 3 {XII» 946). Heat-ng railroad cars — Equal protection-
Approved In Andrus v. Insurance Assn., 108 Mo. 103, 67 S* W.
^^>^, Qpholding practice of admitting proof of waiver of terms of
^^*5Ufance policy without special plea of waiver; People v* Locliner,
^^ TT K. T. 149, m N. E. 374. upholding labor law 18S7, art. 8, g 110,
^* ifitrlcting hours of labor of bakery employees.

66 U, S. 634-654, 41 L. 855, FOURTH STREET BANK v. YARD-
LEY*
fiyl. 2 (XII, 947). Check not equitable aeelgnmeit
Approved In Forder v« Delgado, 122 Fed. 007, 608, holding where
uperintendent of sugar refinery kept distinct deposit In bank sepa-
^4ite from general account and drew checks on such deposit which
^ere paid by second bank, but before presentation for payment at
teposit bank, receiver appointed for refinery who took posseRBlon
► f deposit which was ample to pay checks, checks were equitable
L^ignment of deposit; First Xat Bank v. Seldcn, 120 Fed, 214,
molding second national bank holding fuads of Insolvent bank
gainst which latter has drawn draft& which have not been paid,
.tfuiQot pay same after notice, and set up payment as defense to
<tioQ by receiver to recover deposit, irrespective of State law;
nohoe^KeUy Banking Co. v. S. P. Co., 138 Cal. l&D. 04 Am.
Rep. 35, 71 Pac. 96, holding garnishment of deposit prevails over
anpresented and unaccepted checks provimisly drawn there-
miion; PuUen v. Placer County Bank, 138 Cat. 173, 94 Am. St
El.«p. 24, 71 Pac. 84, holding hank paying cheek given witlmut con-
sideration with Instruction not to present until after death, after
^^e'jith of draweT with knowledge of such death, Is liable for amount
"tYi^ertof to drawer*s estate.

distinguished in dissenting opinion in Putien v. Placer County

^^^, 138 Cal. 177, 04 Am. SL Rep, 27» 71 Pac. 86, majority holdhig

^**ii paying after drawer's death check given withoiit consideration

*lth instructions not to present till after death, with knowledge of

^eith, u tiatde for amount tliereof to drawer's estate.

SyL 3 (XII, 947). Equity — Assignment of part of chose in action.

Approved in Boo« v. Pliilndelphia & L. Transp. Co., 121 Fed. 435.

'I'tWiiig where complainant chartered steamboat to respondent for

*cfni. under agreement whereby complainant should have lien on

iU prup«*rty of charterer^ ineiuding certain wharf, complainant had

NOlbible Hen on wharf to secure him against default of charter

w>der cbftrter party; Farmers' Loan, etc., Co. v. Penn Plate-Class

Co., 103 Fed. 152, holding where mortgage did not require mortgagor

to keep property Insured for mortgagee's henefit, fact that purchaser

ot property subject to mortgage procured such insurance does not

0Te mortgagee lien on proceeds of insurance; Raesser v. Nat. Ex-

«*hAQge Bank. 112 Wis. 508, 88 Am. St. Rep. 084, 88 X. W. 020,

ildlog by payment to assignee of portion of fund In hands of

1G5 U. S. 654-675 Notes on U. S. Reports. 784

depository latter discharges pro tanto all obligations, and assignor
has no rights against him in respect thereto.

Distinguished in Corbitt v. Farmers' Banlt, 114 Fed. 604. hold-
ing jurisdiction of Federal court over moneys placed In Its registry
pending litigation in regard thereto not extinguished by entry of
final decree or order for their distribution but continues until decree
executed.

Syl. 4 (XII, 947). Rights of receiver of bank.

Approved in Auten v. City Electric St Ry. Co., 104 Fed. 400,
reaffirming rule; Hutchinson v. Le Roy, 113 Fed. 205, holding where
pledgee of stock repledged it to bank for own debt and afterward
made general assignment and still later was adjudged bankrupt,
and bank on selling securities turned over balance to assignee, wh<^
had been notified by original pledgor of his right to stock, an^
assignee had at all times funds exceeding proceeds of stock, original
pledgor could recover of trustee proceeds of stock less his own deb^^
to bankrupt.

165 U. S. 654-675, 41 L. 865, WALKER v. BROWN.

Syl. 1 (XII, 947). When equitable lien created.

Approved in Booz v. Philadelphia & L. Transp. Co., 124 Fed. 4^^^
holding where complainant chartered steamer to respondent ^',-
terms, under agreement whereby complaintant was to have lien ,^
all property of charterer including certain wharf, complainant t^^^
equitable lien on wharf to secure him against default of chart^:^
under charter party; Howard v. Delgado, 121 Fed. 30, 33, hol<^^:^.
where intervener made advances to sugar refinery to enable i'^r.
carry on business, under agreement by which company agKr-«^^
to ship all its sugar to intervener who was to apply proceeds^
payniont of advances, intervener had preferred lien on sugar* w
mainiiig in refinery on account of scarcity of cars, at time or ^m\
pointment of receivers; In re Olzendam Co., 117 Fed. 181, hol<fl 1 "
where petitioners agreed with manufacturing company to im^Mm.k\
advances to company in consideration of which they were to ^M»f
its products on commission and have lien for advances on all g-cX'^
for which invoices sent them whether actually shipped or not, C*»^.«^
had goods packed and set apart in warehouses, at time of app^o***^*
meut of receiver for company; Farmers* Loan, etc., Co. v. ]E^^*^^
Plate-Glass Co., 103 Fed. 151, 152, holding where mortgage die* ^^
require mortgagor to keep property Insured for mortgagee's beo^^^
fact that purchaser of property subject to mortgage procured »^^^
insurance does not give mortgagee lien on proceeds of such fii^*''"
ance; Chattanooga Nat. Bank v. Rome Iron Co., 102 Fed. ^"^
holding indorsement on back of notes that equity of maker in ^^'^
tain described property is pledged as security for payment of no^^
is sufficient to create equitable lien In favor of pledgee op^**
pledgor's interest in the property; Goad v. Hart, 128 Cal. 200. ^
Pac. 702, holding assignment by an attx)rney of specified tM^

Notes on U. S. Reporta.

166 U. S, 1-136

be paid out of Erst money to be received by blm upon percentage
contracted to be paid on value of property realized by his client
«:?^eate« equitable lien on such fees Elmore v. Symonds, 183 Mass.
.^SC 67 N. E. 317, bolding wbere rents are pursuant to agreement
"txuned over to creditor of owner of estate in payment of debt repre-
^e>jQtlng money used to Incrense value of property, no lieu arises
OEE estate or rents, In favor of creditor In absence of agreement
^It-her expreBS or implied from language of agreement.

X>IstlD^ulsbed in Strang v. Richmond, etc., R. R. Co., 101 Fed. 516,
^ftioldios contract by which plaintiff agreed to build railroad for
«i^:rendant, and was to receive in payment bonds of defendant which
it: ^was authorized to Issue or their proceeds, not less than a certain
iount, does not give plaintiff Hen on bonds, which remained in de-
fendant's possession.

I

CLXVI UI^TITED STATES.

RY.

^«e U. S. 1-83. Not cited.

^6e u- s. sa-ioa 41 l. 925. barber v, Pittsburgh, etc..

Syl 2 (XII, 9&O). Binding effect of State rules of property.

Approved in Land Title, etc, Co. v. M'Coach, 127 Fed. 383, hold-
^^€ when testator bequeathefl residuary estate in trust, income to be
I*ftid to wife for life and thereafter to be divided between aur-
^Ivin^ children, children took vested interest in estate w^blch waa
^^hjeet to Inheritance tax under revenue act of 181*8.

Syt 8 (Xn, 950). Extrinsic evidence to explain ambiguity Id will.

Approved in Baer v. Forbes. 48 W. Va. 212. 36 S. E. 3(55, holding
Under will devising realty to wife for life and at her death to go
^^ daughter for benefit of her heirs, daughter surviving life tenant
^^es property In fee simple under will,

^^ XT. 8. 110^136, 41 L. 931, THE CONQUEROR.

^yl 1 (XII, 950). Certiorari to Circuit Court of Appeals.
'A.pproved in Spencer v. Duplan Silk Co., 191 U. S. 532, reaffirm-
^*»K rula

SyL 7 (XII, 951). Damages for wrongful seizure ^^ Probable
^tiae.

Approved In CruiksUank v. Bid well, 176 U. S. 82, 44 L, 381, 20

^^l^» Ct 284. refusing injunction against customs collector wbo

'''^tu«€g to permit complainant to take possession of teas claim ml

^J collector to be impure under authority of act of March 2» 181>T,

*bicii act complainant claims is void.

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Notes on U, S. Reports.

166 U. S. 143-170

^^*^ E S. 143-150, 41 L. mi. GRAND LODGE v. NEW ORLEANS.
^jL 1 (XIL 052). Consider a don for tax exemption.
-A^pproved In Stanislua.s Co. v. San Joaquin, etc., Co., 1D2 U. S.
■^5*^&» 24 Sup. Ct 244, holding CaK water act of 1862, providlBg
^li«t siipervisars shonltt rp^nl^te water rates but could nf>t reduce
't^ii^^^xn below certain rate, is not contract with water companies;
^A^isoonslD & M. Ry. Go. v. Powers, 191 U. S. 385, holding provision
l«i S^Q^rai tax law that railroads thereafter huliding and operating
K*<>a€l north of certain puriillel shall be exenipt from tax for ten years,
m^nlcss gross earnings exceed certain sum, is not contract; Miller v.
Caveman. 114 Iowa, 198, St* N. W. 2S2, holding exemption in stat-
iX^ providing that in cities of certain classes, whenever property la
.mwcueed for street improvements it is tliereby exempt from gent^ral
id taXn^ was not preserved by Code 1S97, I 51; St. Anna's Asylum
^^r^ I'arker, 109 La. 599, 'd'S. So. tll<J. holding tax exemption contained
Imh elmrter granted under Constitution of 1845 was validly granted
l-«=i statute under usual title to incorporate an asylum; Female
Orphan Soc. v. Board of Assessors, 101> La. 541, aS So. 593, holding
'^^•ix exemption granted to charitable organization by legislative
«*.tiaetment Is repealed by ConstUntloo of 1879. In ao far as relates
^«> property leased out for revenue purposes; State v. Board of Aa-
^^«»c*r8, 52 La. Ann, 234, 2C So. 877. determining taxability of or-
r>ti5i^i asylum.

iOG XT. S. 150-170, 41 L. 953, HENDERSON BRIDGE CO. v. KEN-
TUCKY.
SjrL 1 rXII, 952). Taxation of State bridge franchise.
-Approved in Louisville Tobacco Warehouse Co. v. Commonwealth,
*"**^ Ky. 107, 49 S. W, 1070, holding private trading corporation
[ * '-^ not make report to auditor as basis for ascertainment of and
"^ -^ upon Its franchise; Louisville, etc., Co. v. Commonwealth. 104
f^3^. 731;^ 47 S. W. 879. upholding Ky. Stat, §§ 4077, 4078, reqnlr-

i

Auditor containing information from which franchise may be

****»*e<l; Citizens' St R. R. v. Common Council, 125 Mich. 002

"^ 8S N. W, 103), determlDlUfr method of taxing street railways;

^^^r»nth V, Spokane County, 2;? Wash. 439, m Vac. 262, holding all

*'"^I^rty of domestic corporations, being assessable for taxation

. l>tx>perty of corporation itself, shares held by IndividualR cannot

ii«8e0ted against them personally.

^yL 2 (XII, D52). Commerce — Tax on interstate bridge fran-

f • 1 . t

proved In LonUvUle & N. R. R. Co. r, Kentucky, ia'5 U. S.

'***• -ii; L. 305, 22 Sup. Ct 102, holding Ky. Const., {f 238, providing

*^** E*«*naUy for ch.arglug more for short than for long haul does not

' t'Hvone commerce power; Louisville, etc.. Ferry Co. v. Com-

/, ■ •^ion«»rs of Kentucky. 1U8 Ky. 725, 57 S. W. 020, holding fact

*^^^ Kentucky ferry company, domiciled In Kentucky, is engaged in

166 U. S. 171-225 Notes on U. S. Reports. 788

Interstate commerce does not deprive Kentucky of right to tax Its
franchise; dissenting opinion in Louisville & N. R. R. Co. y. Eubank,
184 U. S. 48, 46 L. 425, 22 Sup. Ct 285, majority holding Ky. Const.,
S 218, prohibiting charging of more for short than for long haul,
is void in so far as it affects interstate commerce. See 90 Am.
St. Rep. 254, note.

166 U. S. 171-185, 41 L. 960, ADAMS EXPRESS CO. v. KENTUCKY.

Syl. 1 (XII, 953). Proportionate taxation of intangible corporate
property.

Approved In Coulter v. Weir, 127 Fed. 907, upholding Ky. Stat
1903, § 4077 et seq., imposing alleged franchise tax on corpora-
tions which in effect is but tax on intangible property of corp<Mra-
tion; Bank of California v. San Francisco, 142 Cal. 283, 75 Pac
835, upholding assessment of banking corporation by deducting ^
tangible property of corporation from market value of its shares ^
and taking fraction over 25 per cent of difference as value oC ^
franchise; In re Union Tank Line Co., 204 111. 850, 68 N. B. 50(^s^,,^
holding cars of foreign tank corporation having principal office
another State which are merely in transit in Illinois for purpose o»'
bringing merchandise from another State are not taxable b
Illinois; Louisville Tobacco Warehouse Co. v. Commonwealth, 1^
Ky. 108, 49 S. W. 1070, holding private trading corporation m
not make report to auditor as basis for ascertainment of and
upon its franchise; Citizens* St. Ry. v. Common Council, 126 Mi(
692 (see 85 N. W. 103), determining method of taxing street
roads; Ridpath v. Spokane County, 23 Wash. 439, 63 Pac.
holding all property of domestic corporations, being assessable
taxation as property of corporation itself, shares held by IndlvldUL
cannot be assessed against them personally.

Distinguished in Western Union Tel. Co. v. Missouri ex
Gottlier, 190 U. S. 425, 23 Sup. Ct. 734, 47 L. 1121, upholding Sfc
tax on property within State belonging to foreign telegraph
pany, value of which determined by regarding it as part of sys
operated in other States.

100 U. S. 185-225, 41 L. 905, ADAMS EXPRESS CO. T. O^^^=l0
STATE AUDITOR.

Syl. 4 (XII, 953). Taxation of intangible property.

Approved in Citizens' Street Ry. v. Common Council, 125 ^C^S-^h.
601. 85 N. W. 102, determining method of taxing street raHiu^M ^^i
Ridpath v. Spokane County, 23 Wash. 439, 63 Pac. 262, holdUi^ «W
property of domestic corporations, being assessable for t&xwtt::^^n
as property of corporation itself, shares held by individuals can "^"ot
be assessed against them personally.

Syl. 6 (XII, 953). Value for tax purposes.

Approved in State v. Holliday, 61 Ohio St 379, 56 N. B.
determining taxing value of patented article which, when mi
factured, is not sold but merely leased.

I

Chicago, etc.» R. E. v, Chicago. 166 U. a 226-263

SyL 7 (XII, 954). Taiatlon of good will.

Dlfitin^ulslied in Hart v. Smith, 159 Ind. 191» 64 N. E. 661, bold-
l^ag good will of newspaper conducted by partnership cannot be
XB^seessed as tax on property as a nnit

Syl. 8 (XII, S54). Tax situs of corporation's property.
Approved In Western Union Tel. Co. v. Missouri, ISK) IT. S.
•5, 47 L, 1121, 23 Sup. Ct 734, upholding State tax on property
Itmn State belonging to foreign telegraph company, value of
hich was determined by regarding it as part of system operated in
ot:her States; Eidman v. Martinet, 184 U. S. 582, 4t5 L. 701, 22 Sup.
Ot 517, holding war revenue act of 1898, imposing tax on legacies,
€3.€yes not apply to intangible property in this country of nonresident
A^lien whose property passed to nonresident alien son; Union Refrig-
^wrutor Transit Co. v. Lynch» 177 U, S. 152, 44 L. 710, 20 Sup. CL
032, holding cars of Union Refrigerator Traasit Company, a Ken-
^TKlty corporation engaged in furnishing cars to shippers, and which
'^^'ere employed in Utah are there subject to State taxation; Coulter
y^* Weir, 127 Fed. 910, holding where express company accummu-
l^.ted surplus which it separated from its business and invested in
l>oiids which it transferred to New York trust company, and then is*
«iied to stockholders a distributive share thereof its own bonds pay-
3.t>le only out of securities so deposited, bonds transferred to trust
company not taxable in Kentucky; Armonr Packing Co. v. Augusta,
^IS Ga. 555, 46 S. E. 425, holding notes, accounts and other choses
^^^ action in hands of agent of nonresident corporation doing bnsl-
*^^B« in municipality in this State and which were received in
•itie course of business are taxable by municipality.

Syl 10 (XII, 954). Taxation of corporate franchise to do.
Approved in London, etc., San Francisco Bank v. Block, 117 Fed,
^^^S, holding under California Constitution and Political Code, fran-
^lUse of foreign bank engaged in business in California to do
^^sUaess In that State was taxable,

^^« U. S. 226^203. 41 L. 979, CHICAGO, ETC., R. R. y. OHIOAGO,
Byl 1 <XII, 954). Courts — Setting up Federal right
Approved in Missouri, K. & T, R, R. Co, v, Elliott, 184 U. S. 534,
"^^ L. 67tJ, 22 Sup. Ct. 448, holding Federal queistion properly raised
^'''here State court on rehearing decided that qnestion raised was
'^^lifederal in character,

Syl. 2 (XII, 964>. Fourteenth Amendment applies to all govern-
^^Gtiil branches.

Approved In James v. Bowman, 190 U, S> 138, 23 Sup. Ct G7fi,
^ 1/. 982, construing Rev. Stat, $ 5507, punishing bribery of in-
^vtjiiais to whom Fifteenth Amendment guarantees right of suf-
^«i|?e; Karen v. United States, 121 Fed. 256. 257, holding Re?. Stat,
' ^i508, punishing conB{>irncy to injure or intimidate cltlaen In free
^*^4oyment of constitutional rights, will not sustain indictment for

166 U. S. 22&-263 Notes on U. S. Reports. 790

preventing citizen from voting at State election on account of race
or color; Riverside & A. Ry. Co. v. Riverside, 118 Fed. 741, holding
repudiation by city and its refusal to perform a contract by exercise
of powers conferred upon it by State constitutes deprivation of
property without due process, though city made contract in quasi-
private or business capacity; Huntington v. City of New Yorlk,
118 Fed. 686, holding action of rapid transit commissioners in
locating tunnel outside of limits of location shown by general
plan is not act of State for purpose of conferring jurisdiction
on Federal court to grant injunction on ground that It deprived
abutting owner of propertjr without due process; State v. New, 130
N. C. 737, 41 S. E. 1036, holding where person obstructs overseer in
cutting ditch across his land he is not guilty of obstructing justice,
as there is no law for taking private property for this purpose;
dissenting opinion in The Robert W. Parsons, 191 U. S. 45, majority
upholding enforcement of liens in rem for repairs made in New
York port of Erie canal-boat; dissenting opinion in Taylor v. Beck-
ham (No. 1), 178 U. S. 600, 605, 44 L. 1209, 1211, 20 Sup. Ct 1015.
majority denying jurisdiction to review State decision denying juris-
diction to review gubernatorial election contest which had been
decided by tribunal to which it was exclusively committed by State
laws; dissenting opinion In Pickens v. Coal Riv. Boom, etc., Co., Til
W. Va. 4.50, 90 Am. St. Rep. 828, 41 S. E, 404, majority holding one
erecting log boom not liable for damage occasioned thereby to others
using banks or bed of stream for milling purposes; dissenting
opinion in Hartigan v. Board of Regents, 49 W. Va. 58, 38 S. E. 717.
majority holding prohibition does not lie to prevent university
rodents from executing resolution removing a professor. See 90 Am.
St. Rep. 828, note.

Syl. 3 (XII, 955). Substance of procedure determines doi
process.

Approved in San Diego Land, etc., Co. v. Jasper, HO Fed. 71'
construing Cal. act March 2, 1885, making it duty of superviso
to lix rates to be charged by water companies, and fixing basis
rates at value of plant; Indiana Gas Co. v. State, 158 Ind. 5.'
txi N. E. 222, holding town ordinance authorizing gas company
eijarge certain monthly rates or certain sum per 1,000 cubic feet
any consumer does not authorize company to exact meter r
from one consumer if rate is substantially higher than fiat i
charged other consumers; Appleton v. Newton, 178 Mass. 281
N. 10. (M9, holding Stat. 1872, chap. 344, as amended in 180a
thorizing city to acquire laud for water-works not invalid in
ing to require personal notice to landowner; Andrus v. Insui
.\ssn., 1G8 Mo. 164, 07 S. W. 585, upholding practice of adm'
proof of waiver of terms of insurance policy without special
of waiver; Barber Asphalt Pav. Co. v. French, 158 Mo. 542. 5S
038, upholding assessment for street work according to fro

Tei

Ohicmgo. etc., R. K. v. Chicago. 16G U. S. 226'-263

I

I

I

ft ^^

I

X>argan y. Carolina Central R. R. Co., 131 N. C. 020. 42 S. E, 9S1,

lAoldiQg where ralU-ottd ebartcr provides tliat action for damages for

la^Dd taken for right of way ahail be brought within irwo years

^rom completion of road* husbaod against whom statute had run,

^3r conveying land to wife, does not give her a cause of action;

^^billips T. Postal Tel Co., 130 N. C. 521. 522, 41 S. E. KI24» 1024, 81)

^A^xn, St. Rep* 870, holding telegraph -company acquiring right of way

^or its poles from railroad company along railway right of way must

compensate landowner; Painter v. St. Clair, 98 Va, 8S, 34 S. E. 990,

upholding Acts 1897-1898. p. 97, enacting special road law for

^tilaakl county; Klnkade v. Wintherop, 29 Wa«h. IG, 60 Pac. 401,

upholding Sess. Laws lSSl>-18yO, p, 671. relating to organization

o^ irrigation districts, and providing for testing k-gality of proceed

^'^gs for sale of bonds by Institution of specitil proceedings by di-

I'^ectors of irrigation district without requiremeat of perfloual service

'^n property-owners affected; dissenting opinion la Jones v. Com-

^^^issloners of Franklin Co.. lau N. C. 4tjU, 42 S. E. 150, majority

**oitog under Acts 1890, chap. 581. providing for assessment of dam-

^S"** for road purposses, petition to county commissioners, and not

^<?tioa In Superior Court is proper procedure.

Ulstinguished In Kansas City v. Bacon, 157 Mo. 467, 4GS, 57 S. W.
**~*Hi*. upholding Lnstructlou that in estimating benefits that may
^'^^crue to city and to public generally or to any property in beneflt
^*^ strict by reason of proposed improvement, Jury may consider only
<^h benefits as are direct, certain and proximate,
^yl. 4 (XII, 955). Due process ^ State Judgment taking property.
-Approved In Maxwell v. Dow, 170 U. S. GOl. Cll^ 44 L. fJOO, 610,
Sup. Ct. 457, apholding conviction for felony under Utah statute
viding for trial by Injury composed of less than twelve; City
tincU of Montgomery v. Birdsong, 120 Ala. 650, 28 So. 520, uphold-

r charter provision providing for assessment for street work of
iJttlDg property at not more than one-fourth of coat of Improve-

i

' ^?nt8; Barber Asphalt Pav. Co. v. French. 158 Mo. 548. 58 S. W. 937.
^ liokllng Assessment for street pavement according to frontage.

i^ii'tlnguished in United States v. Certain I^nds. 112 Fed. 620,
^-^Idlog where lots in certain tracts were conveyed liy deeds con-
1^ ^ Tiiug conditions prohililting use for certain purpo&t»s, nnd pro-
^-ling for enforcement of coiidlilon by any other lotowner, fact
tl 00 cond em nation of certain lots by government for fortlfica-
^^*1» It might use lots for prohibited purposes does not entlUe
^^er lotowners to compensation.

Syt 5 (XII, 955). Seventh Amendment applies to error to State

-Approved lu Maxwell v. Dow, 170 U. 8. 598, 44 L. 003, 20 Sup.
^^' 455. upholding conviction for felony under Utah statute provid-
**S for trial by jury composed of less than twelve.

166 U. S. 226-263 Notes on U. S. Reports. 792

SyL 6 (XII, 955). Review of Jury's finding on error to State court

Approved in Western Union Tel. Go. v. Gall Publishing Go., 181
U. S. 103, 45 L. 771, 21 Sup. Gt 565, reaffirming rule; Tennessee, etc.,
R. R. Go. ▼. Gampbell, 100 Tenn. 672, 73 S. W. 116, holding whether
railroad has charter right to maintain condemnation proceedings and
acquire thereunder certain route is preliminary question for court;
Richmond v. Henderson, 48 W. Va. 403, 37 S. E. 659, holding appeal
and not certiorari lies from judgment of Justice of peace rendered
upon verdict of jury.

Syl. 8 (XII, 956). Damages when street opened across track.

Approved in Postal Tel. Gable Go. v. Oregon Short Line R. B. Co.,
114 Fed. 792, holding where construction of telegraph line over
right of way of railroad will not appreciably diminish value of
use of such right of way for railroad purposes, telegraph company
need only pay nominal damages on condemnation of right of way
for its line; Postal Tel. Gable Go. v. Oregon Short Line R. B. Co..
104 Fed. 626, holding compensation 'which telegraph company is
required to pay for right to construct and maintain its line upon
right of way of railroad is amount of decreased value of use for such
right of way for railroad purposes; Postal Tel., etc., Go. v. Chicago.
etc., R. R. Go., 30 Ind. App. 662, 66 N. E. 922, holding telegraph com-
pany chartered by State may condemn right of way for Its lines over
railroad's right of way; Cleveland, etc., Ry. v. Ohio Postal Tel. Co.,
68 Ohio St 322, 324, 67 N. E. 894, holding measure of compensation
to railroad where telegraph company seeks to condemn right o£ way
for its poles is amount of decrease in value of use of right of way
for railroad purposes, which will result from easement appropriated
and used by telegraph company; Postal Tel. Cable Co. v. O. 8. L.
Ry., 23 Utah, 487, 4S8, 90 Am. St. Rep. 715, 65 Pac. 740. applying
rule where telegraph company condemns railroad's right of way
for its lines.

Syl. 10 (XII, 956). Compensation — Streets opened across tracks.

Approved in United States v. Certain Lands, 112 Fed. 625, holding
where lots in certain tract were conveyed by deeds containing con-
ditions prohibiting use for certain purposes, and providing for
enforcement of condition by any other lotowner, fact that on c<m-
demnation of certain lots by government for fortifications It might
use lots for prohibited purposes does not entitle other lotowners
to compensation.

Syl. 12 (XII, 950). Railroad charter subject to police power.

Approved in Moore v. New Orleans Water- Works Co., 114 Fed. 382.
holding New Orleans drainage commission cannot require removal
of water mains and pipes without previously compensating wmter
company; Chicago v. Jackson, 196 111. 502, 63 N. E. 1015, holding dty
may require railroad to elevate tracks so as to avoid grade crossing
on street

^^&

Nates 00 U. S. Reports. 166 U. 8. 263-276

lUlfitinpiislied in Clilcaga, etc., R. R. v. Chappell, 124 Mich. 7<

^^ X W. 800, lioltling Comp, Laws ISO", fi 4334. relating to running

o^ drains across railroad right of way, void, in so far as it at-

^^mpts to compei railroad to malte and maintain Decessary culvert

i^n its road i>ed, without compensation, for benefit of those to whom

<3ra,lD is benefit

:a.66 U. S, 263^268. 41 L. 0O4, IN RE POTTS.

Sj-L 1 (Xn, 956). Rehearing after reyersal — Mandate-

AppiHJTed in The Paquete Habana, 189 U. S. 465, 23 Sup. Ct, 5M,

-^T L. 1>04^ holding where United States prays decree of forfeiture of

«r«pttired vessels acd court finds vessels not liable to capture, decree

:^<ir damages should be entered agalust Untied States and not

sm gainst captors: Ex parte The Unioa Steamboat Co., 178 U. 8. 319,

-*-l L. 1085, 20 Sup. CL 9t>5. liolding where Supreme Court In col-

l^aion ease directed decree dividing damages as between two ves-

^t^s and allowing to owners of cargo of one vessel full recovery

^^ainst other vessel, and lower court refused to allow latter vessel

^o recoup against other one-half damages to cargo, remedy is by

^^PPeal and not by mandamus; Continental Trust Co, v. Toledo, etc.,

^*y* Co,, 99 Fed. IT'i, iioldlug after Circuit Court of Appeals has

'Sitlirmed decree of Circuit Court on appeal and has issued its man-

*^^te. Circuit Court cannot entertain petition to modify or expnnge

»^icli decree,

SyL 2 (Xllt 957). New trial after appellate decision on merits.

Approved In Ex parte B^ulier, 182 U, S. ^m. 45 L, 1234, 21 Sup.

^t^ 873, holding United States court in Indian Territory could, upon

«i^i«rly discovered evidence, grant new trial after flnai derision at

l«.w; dissenting opinion In Hebb v. County Court. 49 W. Va. 735, 37

^- K, 679, majority holding court cannot stay party la his pro-

^^^dlngs by motion or appeal where object Is to rid himself of an

aile^^ contempt or show that order which he did not obey was

^•>cieous; Murphy \\ Utter, 186 U. S. 90. 40 L. 1074, 22 Sup. Ct

* •'7. arguendo.

^^*^ C. 8. 269-27G, 41 L. 90C, GIBSON v. UNITED STATES.

^Sl 1 iXll. 957^ Improvement of navigable waters — Deprlva-
^^ of properly.

%roveil In United States v. Certain Laads, 112 Fed. 023, 627,

wMlug where lots in certain tracts were conveyed by deeds cou-

''liog conditions prohibiting their use for cerlain purposes, and

i^<^T!<liag for enforcement of conditions by other lotowners, and

^oae lots were condemned by government for fort, possibility that

p^^t^nimetit might maiie prohibited use does not give other lot-

twiit-rs right to compensatbin ; King v. City of St Louis, 98 Fed. 643,

vphoUUng Federal jurisdiction over action involving right to ac-

,;rvUoii« aloQg river front by landowners whose title is derived

UiG U. S. 27G-290 Notes on U. S. Reports. 1

through patents issued pursuant to congressional act, In which lar
are described as "lying on west banli of Mississippi river."

Syl. 2 (XII, 957). Damages to riparian owner — Improvement,
navigation.

Approved in Bedford v. United States, 192 U. S. 224. 24 Sup.
240, holding damages to land by flooding as result of revetme
erected by government along Mississippi to prevent erosion are J
talking of lands flooded within fifth amendment; Scranton
Wheeler, 179 U. S. 155, 45 L. 134, 21 Sup. Ct. 54, holding ripart
owner whose access to navigable water is permanently destroyc
by government pier erected on submerged lands In front of h
upland not entitled to compensation; Salliotte v. King Bridge C<
122 Fed. 382, 383, holding riparian owner cannot recover compel
sation for damage to land from erection of lawful bridge ov
navigable stream; Richardson v. United States, 100 Fed. 717, hoi
ing grantee of submerged oyster lands from State not entitled
compensation from government for Injury thereto resulting fro
dredging to deepen channel; Brand v» Multnomah County, 88 C
103, 62 Pac. 210, 84 Am. St Rep. 783, holding occupation of stw
by elevated roadway or bridge approach entirely filling such 8tr«
and preventing access to abutting lots Is not ** taking " of such k
where structure is authorized as part of street; dissenting opinion
United States Vs Lynah, 188 U. S. 484, 23 Sup. Ct 362, 47 L. S
majority holding owner of rice plantation rendered absolutely wort
less by overflow caused by darning of river under authority of Cc
gress is entitled to compensation.

Distinguished in United States v. Lynah, 188 U. S. 473, 23 St
Ct. 358, 47 L. 549, holding owner of rice plantation rendered ab«
lately worthless by overflow caused by darning of river under a
thority of Congress is entitled to compensation; dissenting opinh
ill Scranton v. Wheeler, 179 U. S. 181, 45 L. 144, 21 Sup. Ct. W. m
jority holding riparian owner, whose access to navigable water
periiinnently destroyed by government pier erected on submerg<
lands in front of his upland, not entitled to compensation.

m\ U. S. 270-280, 41 L. 1002, NELSON v. FLINT.
(XII. 037). Miscellaneous.
Cite<l in O'Connell v. Mason, 127 Fed. 437, dismissing cause b

cause it is frivolous.

ir»0 U. S. 280-290. 41 L. 1004, PANAMA R. R. CO. T. NAPIEi
SHIPPING CO.

Syl. 4 (XII, 958). Admiralty — Torts between foreigners.

Approved in The Troop, 128 Fed. 8G2, affirming 118 Fed. 7C
upholding admiralty jurisdiction over suit by seaman against fc
eign ship to recover damages for gross negligence of master
failing to give libelant proper medical treatment.

Notes on U, S. Heports.

16ft n. S. 291)^74

3.C&C IT. S. 290-374» 41 L. 1007, UNITED STATES v. TEANS-
MISSOURI FREIGHT ASSN.

Syl. 2 (XII, 958). Appeal — Am tia vita to show Jurisdictional
Si mount.

^Approved in Robinson v. Suburban Bii{?k Co*, 12T Fed. SOGt re-
al mrming rule; Hannah v. Bank. 53 W, Va. 83, 44 S> E. 152. holding
2iOidavlt8 may be filed la Supreme Court to show value giving juris-
diction, when form of procedure In trial court does not require that
ariecord or evidence show value of property la controvei'sy.

SyU 3 (XII» 95S). Act 1890 — Contracts in restraint of trade.
Approved in United Stfites v. Northern Securities Co., 1^0 Fed.
25. T2T, holding contract by which majority of stock of two com*
^JDanies owning parallel interstate railroads la transferred to cor-
liioo organized for purpose of holdlag and voting same and
f-ecelving dividends and dividing same pro rata among stockholders
of two companies violates antitrust act; Brown v. Jacobs' Phar-
macy Co.. 115 t^a. 443. m Am. St. Rep. 140, 41 S. E. 559, holding
combination of merchants to compel another to sell goods at prices
fixed bj- lt» or on his refusal to do so to prevent those of whom Its
tneml-»ei"s are purchasing customers from selling goods to him, is
void, and members may l)e enjoined from carrying out scheme;
National Lead Co. v. Grote Paint Store Co., 80 Mo. App. 2C7, coa-
Rtruing agreement as In violation of anti-trust act of 1891; State v.
tlul^iu, Xia Wis. 253. 83 N, W. KM^S, holding agreement between
iiulepcndont concerns, each publisliing newspaper and furnishing
therebjt: means for adverlishig to compel another newspaper to re-
<iuce rates or lose customers, is within Stat. 189S, § 44G»ja; dlasentlag
opinion in Park, etc., Co. v. Nation al Druggists' Assn., 175 N. Y.
•S*K ST. (37 N. E, 140, majority upholding contract between patent
ftiwik'ine manufactorers and association of wholesalers, establ!sh-
5oe ntitform jobbing price for I3xed quantities to dealers, who agreed
*«> tnaliituiu prices establlsiied by manufacturers. See 96 Am. St
Kt'p, m, note.

%1 r> (XII, 958). Statutory construction — Debates.

Approved In Maxwell v. Dow. 176 U. S. 602. 44 L. 005. 20 Sup.
^'t 45C, applying principle in holding Utah statute providing for
^^^ of criuihial case by jury of eight persons does not contravene
""ttiio^nth Amendment; dissenting opinion in Keene v. TVyatt,
'*• Mo. IB, 53 S. W. 119, majority holding under Rev. Stjit 1879,
' '^^X Bale of horaestf'nd of diseased homesteader need not be
^^^fKitii'd until death of widow or majority of children*

^H fi (XU, 958). Railroad contracts in restraint of trade,

A|>lJroved in Interstate Commerce Comm. v. Nashville, C. & St L.
*^' ^0., 120 Fed. 935, holding (Inding tiiat railroad rates are un-
^*omiMe in thenjsolves and In violation of interstate commerce

^ • 1, cannot be based on evidence that they were too higb aa

IGG U. S. 290-374 Notes on U. S. Reports. 796

compared with rates between initial points and one or two other
points; East Tenn., etc., Ry. Co. v. Interstate, etc, Ck>m., 09 Fed.
Gl, liolding freight rates to Chattanooga from seaboard, fixed by
agreement between railroads entering city, which are from 25 to
60 per cent higher than those charged over same route to point
beyond violate interstate commerce act, SS 3, 4. See 74 Am. St.
Rep. 252, note.

Syl. 7 (XII, 958). Scope of act 1890 — Contracts in restraint of
trade.

Approved in Lottery Case, 188 U. S. 359, 23 Sup. Ot 328, 47 L. 502,
upholding act of 1895, prohibiting traffic in lottery tickets; Bement
V. National Harrow Co., 186 U. S. 92, 46 L. 1069. 22 Sup. Ct 758,
upholding contract for sale of patented articles under license at
specified prices which seller cannot decrease; Booth y. Daris,
127 Fed. 877, holding anti-trust act of 1890 does not apply to
contract by which stockholders in fish corporation, in consideration
of purchase of business and good will of company by another,
agree not to compete for ten years; Phillips v. lola Portland Cement
Co., 125 Fed. 595, holding contract of sale by manufacturer to
jobber of product to be shipped across State line to latter whereby
parties agree that purchaser shall not sell outside of certain State
is not in restraint of trade; Whitwell v. Continental Tobacco Cc
125 Fed. 458, holding manufacturer restricting sale of goods to those
who refrained from dealing with competitors by fixing rate so hl^
that their purchase was unprofitable did not violate anti-tmst
law; United States v. Swift, etc., Co., 122 Fed. 534, holding agree-
ment to refrain from bidding against each other in purchase of
cattle and to bid up prices to stimulate shipments, intending to ,
cease from bidding when shipments arrive, is in restraint of trade; ^
Fisheries Co. v. Lennen, 116 Fed. 219, 220. holding contract by^
which sellers of property agree as condition of sale not to compet^^
in same business with purchaser along Atlantic seaboard for tem^^
of twenty years is not void as in restraint of trade; Cbesapesk^^ ,
etc., Co. V. United States, 115 Fed. 619, 623, affirming United Stat^^
V. Chcsapealie & Ohio Fuel Co., 105 Fed. 105, holding rold, iind^_ ^
anti-trust law, agreement between fuel company and associstl
of coal producers whereby company was to handle output of mil
and bound itself not to sell product of competitors, and minims
price fixed and company was to account for all above such pr^-«t^
which it was to retain as compensation; Niagara Fire Ins. Co* ?:
Cornell, 110 Fed. 825, holding void Nebr. Laws 1897, chap. TBI
defining trusts and declaring them illegal; Delaware, etc, R. B. Ca
V. Franlv, 110 Fred. 600. holding railroad, member of pooling agrw-
ment, cannot enjoin ticket brolter from dealing in Pan-Americtt
exposition tickets which were on their face nontransferable ;HanIiOff
V. American, etc., Co., 182 111. 604, 74 Am. St Rep. 204, 55 N. B. S**
liolding agreement whereby all but one of seven competing vaS^
facturers of certain commodity agree to convey plants to cofpontifli

r.

i

I

I

I

"^^^^T Notes on U, S. ReporU. 1G6 U. S. 375-3SS

^ be formed, and to abandon tbeir business and not to engage lo

^e business for a term^ creates a monopoly; State v* Smiley, 65 Kan.

^. 261. m Pac. 205. 206. holding agreemeat between all dealers in

«5«rtalii market, limiting their right to buy all grain they otherwise

«3iiglit fa such market, is within anti-tmst law (Laws 1897, chap.

Sfe); Louisiana v. American, etc., Refining Co., lOS La. 642, 32 So.

"^80, holding sugar refiner is manufacturer and exempt from license

*uac(]er Conatltution; Heim Brew. Co. v, Belinder. 97 Mo. App. 77,

*3l S. W* 605, holding agreement betw^een certain breweries not to

laell to any one Indebted to either of others no til debt paid is

^^Ithia and- trust law; State v. Buckeye, etc.. Line Co., (51 Ohio St.

^S; 56 N, E. 467, upholding anti-trust law (93 Otiio Laws, p. 143l,

iji «o far as it forbids independent corporatloas to combine to

^■^estrlct competition with view to raising prices. See notes, 74

-Am. St. Rep. 252, 273.

SyL 8 CXII, 059). Public policy defined,

Approve4 in Ex parte Reaves, 121 Fed. 850, holding minor enlist-
^m^ without consent of father not punishable by court-martial for
«i€«ertloD; Harding v, American, etc., Co., 182 III 616, 74 Am. St.
^^€p. 213, 55 N, E, 599, holding agreement whereby all but one of
^>«veo competing manufacturers of certain commodity agree to
^^^oDTey plants to corporation to be formed, and to abandon their
l^asiness and not to engage In the business for a term, creates a
•Monopoly; Norfolk, etc., Ry. v. Tanner, 100 Ya. 393, 41 S. E. 726,
folding railroad ts liable for Its negligence to one traveling on
5^««R, though be signs agreement to relieve railroad from negligence
^*T seTTants.

SyL 9 {XII, 959). Contract restraining commerce-- Intent
Approved in Helm Brew. Co. v. Beliiider, 97 Mo. App. GO, 71 S.
^^. 602, holding agreement between brewers not to sell to any one
^^tJebted to either of others until debt paid Is within anti- trust

SyL 10 (XII, 959). Act 1890 applied to prior agreement not
*^^tPiiiictlTe.

Approved In Matter of Davles, 108 N. Y. 101, 61 N. E. 121, holding
^'Itl' monopoly act (Laws 1S99, chap. 690), extends to unlawful
'^tnhinaiions already formed at time of its passage and which
•»^ ftill maintained.

^XI[, t>58). Miscellaneous.

^-Ited la Interstate Commerce Com, v. Louisville, etc., R. R. Co.,
*^ Fed. 710, to point that what are reasonable rates Is a difficult

I; State t. Associated Press, 159 Mo. 460, 60 S. W. 106, Incidently.

V. S, 375-388, 41 L. 1039, THE MAJESTIC.
'tjl 1 (XII, 959). Carriers — Unsigned limitation of liability.
I ^pt^foved m The Kensington, 183 U, S. 276. 277, 46 L. 19^, 22 Sup.

r % 107, tiolding ?oid arblti^ary limitation of 250 francs for each

166 U. S. 388-391 Notes on U. S. Reports. 7»^

passenger's baggage carried on transatlantic railroad ticket; Sauik^,
ders v. Southern Ry., 128 Fed. 20, holding theatrical manage ^>.
buying tickets for troupe at company rates not bound by regul^^^
tlon requiring him to sign release exempting railroaO from damag^*^
where he was not told of regulation until after purchase of ticket ^^
and signed release under protest; Doyle v. Baltimore, etc., R. ^^ ,
126 Fed. 842, 843, holding carrier cannot limit liability for goo^^
lost in shipment through negligence by any regulation printed ^^^^
ticket unless same is agreed upon by shipper or distinctly brou^^^»--
to his attention; The Priscilla, 106 Fed. 740, upholding limitation.
liability to $100, for loss of passenger's baggage under spe^:^ ^^|
contract printed on back of ticket; Duncan v. Maine Gent. R. R. ^^^^
113 Fed. 508, holding one riding on pass and assenting to condi ^s. ^j
that carrier would not be liable for accidents cannot recover ^P"oj
injuries from negligence of carrier's servants; The New Englx^x^id,
110 Fed. 417, 418, 419, refusing to uphold limitation of carrier x>'«
liability to $50, Ln ticket for first-class transatlantic passxL^e.
when provision not called to passenger's attention and loss resul -^ed
from theft by carrier's servants.

Syl. 2 (XII, 960). Carriers — Burden of proving act of God.

Approved in The Westminster, 127 Fed. 682, holding where bill of
lading provides against liability for any claim of which notice i»
not given l)efore removal of goods and failure to give notice i»
set up as defense, libelant has burden of proving notice as c^^n-
dition precedent to recovery.

Syl. 3 (XII, 900). Carriers — Act of God.

Approved in Harrison v. Hughes, 125 Fed. 864, affirming ^-^^
Fed. 550, holding accident to steamer through runnmg against n ^^
breakwater on whJch wind had extinguished light not due to .^•^
of God; The Palnias, 108 Fed. 89, holding provision of Barter ^^^
exempting vessel from lial)ility for damage or less to cargo aris^ ^^
from faults or errors of navijration or management of ship does ^^^^
(oiRiTU proper stowage of carjro at port of lading: The Friesland. "^ ^^
Vvd, 100. holding wlien c'jrjro injured by water entering throes ^^'^
hole eaten by corrosion throiij^h bottom of iron valve chest wh^**
liad never been examined since put in ship, due diligence exempt i''^
from liability not sliown.

U'»r, U. S. 3SS-:5l)l, 41 L. 1044. ST. LOUIS V. WESTERN UNlO.V
ti:l. CO.

Syl. 1 (XII. 900). Review on appeal from trial without jury.

Ai)proved in Wilson v. Merchants* Loan & T. Co., 183 U. 8. I5ft
•J*J Slip. Ct. 51>, holdiujr airreed statement of facts which is so <!*•
tei'iive as to present in addition to certain ultimate facts other iD<*
oviileiitial facts \\\nn\ which a material ultimate fact might have
IvtMii. but wliich was not airreed upon or found, is not conipli»DC«
\\ iih IJev. Stat.. §§ r.4*>. TOO: Herwind-White Coal Mm. Co. v. Martin.
1J4 Fed. ol4, holding general findings of court are not reviewtblt

I

Notes on U. S. Reports. 168 U. S. 391-404

appeal; Corliss v. Pulaski County, 116 Fed. 201, holding where
Mieral fijidlng was made, upon which judgment was rendered, court
inDot subsequently sign special tindUigs and embody same in bill
!«>< exceptions, where general findings have not been Tacated.

[^1.^6 U, S. 301-^95, 41 L. 1045. lASIGI v. VAN DE CARR.

SyL 2 (XII, 9C10). Habeas corpus — Defects In commitment -

Approved in Minnesota v. Brundfige, ISO U. S. 502, 45 L. tMl, 21

^^'up, Ct- 436, refusing Federal haheas corpus to discharge one held

ixa custody for violating Minnesota dairy product act of 1899,

^i-ileged to be In violation of Federal Constitution, in advance of

^^baustion of State remedies; dissenting opinion in Motherwell v.

^tTuited States, 107 Fed. 455, majority refusing to surrender to

^i URsian government on habeas corpus member of Russian navy

'^^Iwis sent to man Russian warship bulldiug in this country and

'^^►^tw) deserts prior to its completion or organization of its crew.

^ ^» tj. 8. 395^399. 41 L, 1051, HOVE v, WERNER.

8;l 1 (XII, OGO). Citizen of District of Columbia — Courts.

Approved in Dowues v. Bidweil, 182 U. S. 259, 45 L. 1O05, 21 Sup.
^^^TTtJ, upholding Foraker act imposing duties on imports from
^^'^^fto HIco; Florida Cent., etc., U, R. v. Bell, 176 U. S. 3^3, 44 L.
"•5>i, 2»> Sup. Ct, 404, denying Circuit Court's Jurisdiction over Joint
^m^t by citizens of Florida and Texas in which they recovered joint
^"■adKiaent for their undivided interests in land in Florida; Raphael v.
""^^^nijik. ns Fed, 771». denying Federal Jurisdiction over suit against
r>rt niierthip where some of partners are citizens of '}ame State as
[tlainant; Weller r. Hanaur, 105 Fed, 103. denying Federal

I i:'4k'tton over suit by two piaiatiffs, one of whom is citizen of
^t:«ite aad other of Territory, against citizens of another Slate.

U, S. 39?^-404, 41 L. 10r.l. MARTIN v. ATCHISON, ETC.,

%t 1 (XIl, 900). Ma^sler and servant — Fellow servants.

*^|iprovod in Dlshon v. Cincinnati, etc. Ry., 126 Fed. lOS, holding

•*^-tioTi band who Oved in section-house was fellow ser\'ant of

'^iii op<*rat!ves when employees had been in hahit of cutting trains

^^ flfford access from house across tracks, and he after working

^^™ started across tracits when opening betweeu cars was closed

^Wliout warning: Pennsylvania Co. v. Fisiiaek, 123 Fed. 4(J0. hold-

^9 i'nnlmaster in charge of switchyards, who is subordinate to gen-

I ^'i yardmaster, who is in turn subordinal* to trainmaHter and lie to

*^»>%*rlntt»Ddent, is fellow servaot of otlier employees euyaj;od in

I *^JT^ljlntf in yard; M'Donald v. Buckley, 100 Fi^d. 293, holding

^^orai foreman having charge of putting in foundation for wharf

^ of all employees with power to employ and discharge, while

p'^sed m giving signals to engineer in cliarge of pile driver. U

/"'Jhw Ke-rvant with othfr nieiTjlH«rs of pile driver gang; Stevens v.

^'^mberlUi^ 100 Fed. 381, holding machinist empluyed to make

166 U. S. 404-423 Notes on U. S. Reports. 800

repairs on machinery in large factory on orders of superintendent
who had also authority over firemen and assistant machinists, all
of Fhom he employed, but who worked with his hands, is fellow
servant of helper; Briegal v. Southern Pac. Co., 98 Fed. 962, holding
engineer and his fireman who was oiling turntable by direction ot
engineer are fellow servants; Hunt v. Hurd, 98 Fed. 688, holding
section hand is fellow servant of foreman and of brakeman on
switching train; Slavens v. Northern Pacific R. R. Co., 97 Fed. 263,
holding section man working under direction of conductor of delayed
train in removing track obstruction is fellow servant of conductor;
Tomlinson v. Chicago, etc., R. R. Co., 97 Fed. 254, holding bridge
builder and repairer employed by railroad and furnished with can
in which he and his assistants and tools are transported to work If
fellow servant with employees of trains to which cars are at-
tached; McLaine v. Head & Dowst Co., 71 N. H. 297, 299, 52
Atl. 547, 548, holding foreman's failure to warn laborer when
load of earth and stone was about to be dumped into trend]
where he was working not snch negligence as to make mastei
liable in absence of evidence of incompetency of foreman; Wiskk
V. Moutello, etc., Co., Ill Wis. 450. 87 N. W. 464, holding foreman
personally conducting blasting in quarry is fellow servant of tho«
assisting in such work.

Distinguished in dissenting opinion in McLaine ▼. Head & Dowsl
Co., 71 N. H. 308, 52 Atl. 552, majority holding foreman's failure to
warn laborer when load of earth and stone was about to be dumped
Into trench where he was working not such negligence as to make
master liable in absence of evidence of incompetency of foremanl

166 U. S. 404-423, 41 L. 1053, THE UMBRIA.
Syl. 1 (XII, 961). Full speed In fog — Contributory fault
Approved In The Columbian. 100 Fed. 992, 997, reaffirming roJer
The Phillip MInch, 128 Fed. 583, holding steamer liable for collisior.
with barge in tow of another steamer in river where she did o^
keep at safe distance; The Charlotte, 128 Fed. 39, affirming 124 ;
900, holding steamer entering dense fog in river at speed of
miles an hour liable for collision with schooner; The Wortbli^^
125 Fed. 02, holding steamer passing canal-boat and starting I^^
pollers when opposite, thus creating suction which drew boat f^^^
course, resulting in collision, is liable for sinking of canal-bo«f;
The Northern Queen, 117 Fed. 914, holding where steamer, wHh
barge in tow, anchored in fairway of vessel on account of denie
fog she was not liable for collision with steamer coming in at foD
speed; The Livingstone, 113 Fed. 881, holding where navigation of
steamer was correct, fact that her port light had gone out or thai j
lookout had temporarily left post did not contribute to colli«i<» j
where other vessel changed course after exchange of signals; Tlie .
Columbia. 100 Fed. GG7. holding where ship and bark were in tow of
tug, and ship on shorter hawser through negligent steering abeered

Notes OE U. S, Reports.

im D. S. 424-421

ft^^T^oss bark's hawser, when her own hawser broke, being Initially at
^^Txlt, was solely Uable for collision, tboiigb bark made Improper
oaxxBuyer In eitremis.

SjL 3 (XII. 961). CoUisloTi — Change of course as fault.
.^.pproved In The Belgian King, 125 Fed, ST7, S78, reaffirming rule,
SyL 4 (XII, 961). Collislona — Precautions necessary in thick
w^e^ther.

Apprtrved in The George W. Roby, 111 Fed. 6QS, 600, holding
iteamer liable for collision in fopr on Great Lakes where, on hearing
fog signal of another vessel slie failed to reduce speed to mere
steerage way as provided by rules.

SyL ^ (XII» 9G1), Collision — Nonobservance of rule when use*

ilpproved In The Columbian. luO Fed. 994» holding fact that
•chooner had no one at belm, which was lashed* or that she was in-
•uftelently manned, cannot tie held fault contributing to collision in
^^ when In any event It would have been her duty to keep her
^^ttrse, which she did: The St. Louis, 98 Fed. 752, holding where
^CTfy-boat, navigating In fog at night, on hearing fog signal* which
r>*iot recognized as that of another ferry-boat whose course was
*tji:h as to cause danger of collision, failed to stop at once, she has
**tjTdea of showing that collision was not due to her negligence*

S7I. 6 (XII, 961). Collision — Propriety of manoeuvres.

Approved In The Gertrude, 118 Fed. 132. holding schooner not
*^ablt for collision with tow of tug though her deck not properly
•*i «iiner.

*^yl. T pen, 961). Scope of damages for total loss of vessel.

Approved in In re Lakeland Transp. Co,, 103 Fed. 335, holding

^''tiert vessel Is sunk and totally lost in collision, and her full value

^ iiarded her owners as damages, they are not entitled, in addl-

■on, lo recover amount she would have earned under unexpired

^^irter.

%l S (XIL 961). Partial loss — Profits of prospective charter.

approved in The Menominee, 125 Fed. 531» holding where fishing
J^*«id sunk while on fishing voyage, and totally lost, escept as to
^^f outfit, value of prospective catch during remainder of season
***" of i*xpedition not allowed as damages; The George W. Roby, 111
■^<N1, U15, holding where vessel is sunk In collision and damages
^^ awanled owner on basis of total loss, he cannot also recover for
^**i of earnings under unexpired time charter.

^^ U. 8. 424-42T, 41 L. 10G3, HUNT v, UNITED STATES.
SyL I (XII, 9<j1>. Courts^ Scire facias is criminal case.
Approved in Kirk v. United States, 124 Fed. 334, holding scire
\ *^'i4« an forfeited recognizance being original process In special
VoL III— 51

n

Tr» »* "i^'s •« "-^s^ '"S'S.S' »?r»^

«*"' d-«-^S»' *^ . lot aPP*^"^^* ' i(» Fed. 8^^; „, ui,

riOO ^°^ ^l act ^^*' Vto\0 '^'^ r--'-^ *^

V^^'^^-^'Tk .0»^"->- ''^ ,Mat5e.^« .

Notes oo U. S. Reports.

im V. S. 403-468

1x3^ dedaction on account of realty owned by bank, which Is aepa*
'K'^tely taxable; National Bank v. Mayor, etc, of Baltimore, 100
^*«d. 29, holding where capital Is not so employed as to come Into
^competition with business of national banks, it is within diseretion
o:f State to tax It at different rate from banking capital; Illinois Nat
^^ank r. Kinsella, 201 III. SS. 6G N: E, 340, upholding Hiird'a Rev*
SXAL 1889, pp. 13J>3, 131)0. 140C^ 1401, providing for taxation of
peal and personal property of bonks; First Nat. Bank v. Turner. 154
Ind. 461, 57 N. E. 112; Prlmm t. Fort, 23 Tex. Civ. 611, 57 S. W. 90.
WLtid Commercial Nat. Bank v. Chambers. 21 Utah. 347, 61 Pac. 5G5,
all holding individual debts of national bank stockholder need not
l>e deducted from value of stock for taxing^ purposes; Bank v,
Staats, 155 Mo. 58. 55 S. W. 027, holding since Rev. Stat. 1889,
ft 7520, 7572, provides for appeal from assessor to county board of
equalization, collection of taxes cannot be enjoined, though as-
sessment violates Federal statutes against discrimination between
ta^ OQ national bank shares and tax on moneyed capital In hands
of citizens; Mectaanlc*s Nat Bank v. Baker, 65 N. J. L. 551, 48 Ad.
582, amrmlng 65 N. J. L. 115, 46 Atl. 586, holding tax levied on
account of shares in national banks held by nonresidents is not im>
X>o8ed upon banks hut upon shares and tax is therefore valid,

l«e U. S. 463^64, 41 L, 1079, BANK OF COMMERCE v. SEATTLE,
SyL 1 (XII, 902). Aberdeen v. Chehalis County followed —
Taxation.

Approved In Illinois Nat Bank v. Kinsella, 201 111. 38, 66 K E.
WO. upholding Hurd's Rev. Stat 1899, pp. 1393, 1399, 1400, 1401,
proTidiag for taxation of real and personal property of banks; Com-
*>*erclal Nat Bank v. Chambers, 21 Utah, 347, 61 Pac. 565, holding
»ttdlvldusl debts of national bank stockholder cannot be deducted
^^om value of his stock for taxing purposes.

im tr. S. 464-iCS, 41 L. 1079, AMERICAN FDR CO. v. FISHER,
8yL I (XII, !MJ3). Utah act allowing verdict by nine jurors.

^Approved in Hawaii v. Mankichi, 190 U, S. 211, 23 Sup, Ct 788,
*^ L 1020, holding criminal proceedings by grand and petit Juries.
^* prescribed by Constitution, not substituted for existing liawallau
'^^Dilnal procedure by Newlands' resolution; Downes v. Bid well, 182
^' 8. 270, 45 L. 1101, 21 Sup. Ct 7S0, uphokling Foraker act Im-
*'ojf duties on Imports from Porto Rico; Black v, Jackson, 177
■ 8.3C3. 44 L. S07, 20 Sup. Ct. 053, holding where defendant set up

'tlfander homestead entry and set out how land had been acquired,
^*^^\uU(t alleging trespass and Inclosure of land and defendant's

^i)auciai Irresponsibility, cannot get mandatory injunction restraln-
^(kfendant from trespassing or removing improvements, and tri.tl
'^^ttrt cannot try cause without jury; Maxwell v. Dow, 170 U. S.
^8ll 44 L. 599, upholding trial by jury composed of eight perssoiis as
Prided by Utah Constitution; .lacksou v. Utiited States, 102 Fed.

166 U. S. 468-488 Notes on U. S. Reports.

477, holding under Oregon statutes governing impanelment «
juries in Alaska, grand Juror not disqualified on challenge<
tual bias, made by accused, whose case was to come bef<
grand jury, but accused's rights sufficiently protected by <
to juror not to take part in that case.

166 U. S. 468-480, 41 L. 1081, UNITED STATES T. AMI
TOBACCO CO.

Syl. 1 (XII, 963). Internal revenue — Subrogation of
paying for loss.

Approved in Nassau Brewing Co. v. Moore, 97 Fed. 200,
tariff act of 1897, repealing Rev. Stat., § 3341, providing that
commissioner should allow deduction on sales of revenue
to brewers, did not affect taxpaying value of stamps pi
before it went into effect, and upon which deduction allo^
not used until after it went into effect

Syl. 2 (XII, 963). Payment of insurers — Insured as tn

Approved in The St. Johns. 101 Fed. 472, 473, holding
subrogation in favor of marine insurers on payment of los
ing from collision exists without abandonment

166 U. S. 481-485, 41 L. 1085, IN RE ECKHART.

Syl. 1 (XII, 963). Habeas corpus — Conviction of murder
degree.

Approved in Day v. Conley, 179 U. S. 680, 45 L. 383, 21
917, reaffirming rule; Judson v. Gage, 98 Fed. 543, holdin
after orally approving report of appraisers in condemnal
ceedings cause continued and at succeeding term form
ment entered on award, which was subsequently vacated an
set aside, there was no final judgment reviewable on en
87 Am. St Rep. 190, note.

16G U. S. 485-488, 41 L. 1087, ZADIG v. BALDWIN.

Syl. 1 (XII, 964). Federal question set up in brief.

Approved in Wisconsin v. Commissioners of Public La
U. S. 693, 46 L. 393, 22 Sup. Ct 934, reaffirming rule; Mat
Ins. Co. V. McGrew, 188 U. S. 308, 23 Sup. Ct 378, 47 L. 485,
question as to faith and credit to be given foreign ]adi<
ceedings, which ceased to be foreign before judgment ten
State Supreme Court but which was not brought to atte
that court, cannot be raised in Supreme Court; New York,
R. Co. V. New York, 186 U. S. 272, 46 L. 1160, 22 Sup. Ct 9
ing general claim in brief that State statute violates Fede
stitution does not show that Federal right specially set
claimed or validity of statute questioned in State court '
such question noticed in State opinion and case dispose
ground independent of Federal question; Chapin v. Fye, 1

Notes on U. S. Reports. 16G U. S. 489-520

►. 45 H 121, 21 Sup, Ct 72, holding Federal quesdoa cannot bo,
St raised In assignment of en-ora to Supreme Court,

1^^S4J U. S. 489-493» 41 L, lOSS, ELECTRIC CO. v. DOW.

^yl. 1 (XII. 9tM). Electing triiil under statute estops attack.

Approved In Minneapolis, etc.. R. R. Co. v. Gano, 190 D. S. 557»

Sup. Ct. 854, 47 L. 118:^, affirming Gano r. Minneapolis & St L.

_ R. Co.. 114 Iowa, 728. 87 N. W. 719, 89 Am, St. Rep. 404. bold-

where railroad talces laad under power granted In Code § 1995

^-t: seq.. governing condemnation of land, it is precluded from ques-

tX^^r^ning validity of section 2007, imposing payment of costs and

a *r"ft:orney*s fees as condition to exercise of power; Hale v. Lewis.

. U. S. 4S0, 45 L. 962. 21 Sup. Ct 680, lioldlng where Wisconsin

tute required loan associations to deposit securities witb State

tx~^^^surer for benefit of local creditors and Minnesota association

ii:«.i3tde 8uch deposit. State decision tiiiit stockholders had waived

o'lz^Jectlon to statute as violating contract clause of Gonstltution

w^wmji based on nonfederal groynd.

lO^ U. S. 493-501, 41 L. 1000, CARTER V, RUDDY.

SSyl 2 (XII, 964). Ejectment not maintained on equitable title.

-Approved in M'Manus v. Chollar, 128 Fed. 903, holding equitatile

de-C'ense not maintainable in trespass to try title brought on law

fl<ie of Federal court sitting in Texas; Cosmos Exploration Co. v,

*^^a^y Eajrle Oil Co.. 112 Fed. 8. denying Federal jurisdiction of

•trl^ to determine title to land brought by one out of possession

aKainst one in possession, where bill avers that defendant has

♦it'illed wells on land and is talting oil therefrom, against which

h» J unction fs prayed.

^Jl 5 (XII, QW, Adverse possession of part of tract
Approved In Sharp v. Shenandoah, etc.* Co., 100 Va. 85, 40 S. B*
^^^* arguendo.

^^ r. S. 501-506. Not cited.

^*^ U.S. 500-520, 41 L. 1095. FORSYTH v. HAMMOND.

%L 2 (XII. 965). Certiorari to Circuit Court of Appeals.

Approved in Burget v. Robinson, 123 Fed. 268, holfllug where
^^Prtme Court has summarily deemed certiorari to Circuit Court
"' -ippeala. latter cannot grant rehearing.

hi i (XII, 96a). Res atljudicata — Actions different In form.

'M*proved In Archer v. Baltimore Bldg. & Loan Associsition, 179
'■ i<. CT9. 45 L. 38:i, 21 Sup. Ct 937, rentlirming rule; Mitchell v.
^'^st Xat Bank, 180 D. S. 481. 45 L. 632, 21 Sup. Ct 421. holding
*Herniinatiou by court having jurisdiction of question embraced by
Jwues made binds parties and privies so long as judgment remains
Wtmodlfied or unrevf^rstHl; Itailey v. Willeford. l*-i6 Fed. 800. hold-
% Where deTeiidant sued In State court and entitled to remove

IGG U. S. 521-54S Notes on U. S. Reports. 80

cause answers and consents to trial and after affirmance of Jad|
ment against him applies to State court to set aside Judgment fc
fraud and on denial appeals, he cannot file injunction in Feden
court
Syl. 6 (XII, 965). Binding effect of State statutory constmctioi
Approved in Schaefer v. Werling, 188 U. S. 518, 23 Sup. Ct 44J
47 L. 572, applying rule in construing Indiana statute proyldin
for paving streets and distributing assessment therefor: Wester
Union Tel. CJo. v. Sklar, 126 Fed. 298, holding under Tennessc
statutes declaration for negligence in delivery of death messag
which failed to allege willfulness on part of telegraph company'
employees or to include any amount of pecuniary damages wa
insufficient; Duluth Brewing, etc., Co. v. City of Superior, 123 Fee
356, holding ordinance of city of Superior of November 25, 1881
requiring all liquor dealers to procure city license, applies to noi
resident manufacturer who maintains depot in city from whic
sales are made by agent whether sales are made to consumers o
licensed dealers; Williams v. Gaylord, 102 Fed. 375, holding Cai
Stat. 1880, p. 131, § 1, prohibiting directors of mining corporatloi
from mortgaging, leasing or disposing of mining ground witboa
ratification by two-thirds of capital stock, applies also to foreigi
corporations; In re Hoadley, 101 Fed. 237, holding where property I
devised by will to trustees with directions to apply income fo
benefit of named beneficiary for life and at his death to divide estat
among testator's children, none of children have under New Yor
inws divisible or alienable estate during beneficiary's life.

166 U. S. 521-532, 41 L. 1101, WASHINGTON, ETC., R. B. CO. '
HICKEY.

Syl. 1 (XII, 905). Negligence of defendant's employee no defen
to contributory negligence.

Approved in Mayor, etc., of Baltimore v. Beck, 96 Md. 191. 53 A-
078, upholdiDg refusal of requested instructions that if plaintiC
injuries caused by contractor's failure to have light on obstructlc=
city not liable, where it was contended that city also negligent
tailing to light streets in vicinity of obstruction; Conowingo Brifl
Co. V. Hedrick, 95 Md. 679, 53 Atl. 431, holding where plaint
injured while crossing unllghted, covered toll-bridge by being r"
into by bicyclist, where It was alleged that bridge company i^
ne^lljj:ent in failing to light bridge and in not warning bicyclist
plaintiff's presence, instructions segregating negligence of briS
company from that of bicyclist properly refused.

km; U. S. 53.V548, 41 L. 1105, MANSON v. DUNCANSON.

Syl. 2 (XII, 900). Property over which donee exercises uppot ^
niout.

Approved In Humphrey v. Campbell. 59 S. C. 46. 37 S. E. 29, bo^'
ing life estate with power to ** distribute " by will does not ve*

5=^o;

Notes ou U. S* Reports.

166 U. S. 548-557

^^^ life tenant such estate as, after such ** distribution/* is Bul)Ject
^la her debts.

Syl. 3 (Xll, 966). Collateral attack on probate sale.

i|iproved in Natlooal Nickel Co. v. Nevada Nickel Co., 106 Fed.
^35, holding defendant having: due notice of application for con-
fc^ Tmation of foreclosure sale which was laadvertcutly made fn con-
^KDraiity with State notice of sale, and making no objection thereto,
'-^mnnot collateraUf attack pyrchaser's title by action to recover
^ inoperty,

^m U. S. 548-^57, 41 L. 1110, IN RE LENNON.

Syl. 1 fXlI. 96C). Habeas corpus does not correct crrorfl.
ApproTed in In re ChoTv Loy, IIU Fed, 954, holding if appeal under
^ ilnese exclusion act of 1888, § 13, is Dot to district jud^e as dis-
^ict judge but to District Court, as claimed by petitiouer, any
egularities la proceediags can do t be reviewed by habeas corpus.
Syl. 2 (XII, 9GG). Collateral attack on jurisdictional averments.
Approved in Ex parte Richards, 117 Fed. Hij^i, holding qucstloQ
:^^ jarlsdictlon to entertaia bill caauot be made by persons
.'^ZDt parties in proceeding to punish them for violating re-
^^:niinlng order lo buU; W. B. Conkey Co, v. Russell, 111 Fed. 420,
-1, holding where Fe<3eral court has Isaned iDJunction directed
paiast defendants In suit which has been sei'Ted upon them« such
»-urt mar punish for contempt any one who, with knowledge of
»^ Janet ion. combines with defendants and in pursuance of combl-
^^^^^tion assists in commls^slon of acts enjoined.

Syl. 4 (XII. 9G6). Commerce questions are Federal.
Jkpijfoved In Tift v. Southern Ry. Co., 123 Fed, 7&3, upholding
^"*«*deral jurisdiction over suit to enjoin unreasonable freight rates;
^ ^^te V. Frost. 113 Wis. VAS, 8!> N. W. f»20, holding Information hy
^ t^aite attorney-general to enjolD Federal receiver from dismantling
^*^ flrorid and Beliing materials pursuant to order of appointing court
*"** Tf movable to Federal court.

Syl 5 <XU, tiCItj), Actual notice of Injunction.

approved In In re Coggshall, 100 Mo. App. 58S, 75 S. W. 181,

^*^««fl!rudng rule: ChlBholm v. Caiacs, 121 Fed. 402, holding where

^-'^^ijrt has adjudged lands to be private property and enjoined all

^*^t^ona from trespassing thereon stranger trespassing thereon Is

^5^4tlty of contempt for which he may be punislied in-espectlve of

^^ effect upon rights of suitors; Union Pac. R. R. Co. v. Ruef, 120

*^^. 110, holding court will not Include in injunction decree against

*^Q lawful acts of strikers and others, names of defendants not In

^'^*Uiplainant*8 employ and not shown to have participated fn or

'^^^'tted unlawful acts, though they will be held chargeable with

•^iiowledge of terms of injunction; Kx parte Richards, 117 Feti.

'^i» tiil5. holding it Is not necessary to serve person with liijuuctloii,

if be has notice of Up in order to punish him for contempt, nor la

1

IGG U. S. 557-571 Notes on U. S. Reports.

it necessary for process to have been served on defendant Um

bill; In re Reese, 107 Fed. 946, holding one not party nor ^►o^^^I^ of
by in junctional order cannot be tried and convicted on chargr^^^^^ond

contempt, proceeding wholly on theory that he was iMurty boi^ '^[^.ther-
by order, and commitment sustained on ground that he waa oac^^^
wise guilty in interfering with its enforcement.
Syl. 7 (XII, 967). Mandatory injunction. ^,^

Approved in Shroyer v. Campbell, 31 Ind. App. 87, G7 N. B. Ifi^ -:^\ia«
upholding grant of mandatorj- injunction to abate nuisance caos^^^^^^
by cooking cabbage and onions; Lake Erie, etc., R. R. Co. v. ^^Sssln^^^^ .
ton, 27 Ind. App. 293, 60 N. E. 457, upholding grant of mandatorr^'^^^
Injunction restraining obstruction of driveway, where court fouii'C*^^ .
as conclusions of law that railroad had no right to obstmct plain** -^*^*
tlflTs driveway under track.

166 U. S. 557-571, 41 L. 1114. CITY RAILWAY V. CITIZEN8'^6>^^
ETC.. R. R.

Syl. 1 (XII, 967). Courts — Abrogation of exclusive street ralll-^** ^
way contract.

Approved in Files v. Davis, 118 Fed. 470, upholding Feden«*:-x^-C<
jurisdiction over suit on attachment bond executed in suit pendlni^x*-^^'*^
in Federal court; American, etc., Co. v. Home Water Co., 115 Fed^^*^* ^
177, 178, upholding Federal jurisdiction over suit to restrain ecx^
forcement of city ordinances passed in exercise of delegated legist '33'^^^S
lative powers on ground that they attempt to annul contract madE^.sB'X
by prior ordinance.

Syl. 2 (XII. 967). Authorizing Incorporation with city's consecr ^^^ i«ei
— Repeal.

Approved in Davis, etc., Mfg. Co. v. Los Angeles, 189 U. 8. 21X::Sr 21:
23 Sup. Ct. 500. 47 L. 780, holding where bill is based not on! ^x^^odI)
upon diversity of citizenship but also on alleged invalidity • ^ of

municipal ordinances as impairing contract obligation appeal lies ^'SS to
Supreme Court; Detroit v. Detroit Citizens' Street R. R. Co., 184 ' ^^-4 V.
S. 397, 46 L. 611. 22 Sup. Ct. 421, holding fixing of street-car fares f ^» bj
ordinance under Michi^jan tram railway act being contract, cf -^i^ city
could not thereafter reduce such rates; City of Dawson v. Columt^ -^=«W«
Ave. Savini: Fund, etc., Co., 102 Fed. 207. holding, under judicIaK^ Mhrj
act of 1S1C>. appeal does not lie to Circuit Court of Appeals fr<^ .M.ix>m
order jxrnntinj: injunction in case Involving constitutional questtrJ*" tfofl
and in Avhich municipal ordinances are claimed to impair oblij ^t. Igi-
tion of contracts.

Syl. :\ (XU, 067). Impairment of contract not decided on mot — Si^oo
to dismiss.

ApprovtHl in Illinois C. K. R. Co. v. Adams, 180 U. S. 36, 45^ A
4i:i 21 Sup. Ct. L'M. upholding Federal jurisdiction, Irrespect— ^»<e
of citizenship, over suit wherein contract with State in rall^^^^
charter was sot up. and it was averred that such contract w-s*

I

Notes on V. S. Keports, 16(5 XT. S. 557-571

Impaired by sabsequcnt legislation: Riverside & A. Ry. Co, r, River-
JBide» 118 Fed. 740, upholding Federal jurisdiction over suit to en-
join city from carrying into effect resolution of council declaring
:i)Urpose to discontinue furnishing" of electric power to complainant
minder contract, on ground of impairment of contract obligation;
Jdercantlle Trust, etc, Co. v. Collins Park, etc., Co,, 99 Fed, 816.
»18» holding under Georgia Constitntlon prohibiting legislature
^rom authorizing street railway in a city or town without consent
of municipal ity, ordinance granting such franchise is law of State
"^ari thin contract clause of Constitution.

SyL 4 (XII, 967). Suit by corporation — Termination of charter.

Approved in Kimball v. City of Cedar Rapids, 100 Fed, SOi, hold-
lug where pending life of term contract between city and water
crompany city reduced water rates, and stockholder obtained pre-
liminary injunction restraining enforcement of rates, expiration of
contract before final hearing did not deprive court of jurisdiction.

Syl, 5 (XII, 907), Statute presumed prospective.

Approved m Seaboard Steel CasUng Co. v. William R. Triffg Co.,
i24 Fed. 78^ holding appointment of receiver because of insoivency,
trxaUe prior to amendment of February 5, 1003, to bankruptcy act
XS^ chap, 341, i 3, subd. 4, will not support petition in involuntary
iiankruptcy Hied alter that date though receivership stiil continues;
iCtilghts Templars' Indemnity Co, v. Jarman, 1S7 U. S. 205, 23 Slip.
Ct, ill, 47 L. 145, arguendo.

Syl 7 (XII, yti7j. Consideration for extension of railroad
^t^achise.

Approved in Linden Land Co. v, Milwaukee El, Ry. Co., 107 Wis.
Sl5, S3 N. W. 858, holding city may grant railway franchise to
^^tend lines then in operation In consideration that company should
*^^arged reduced fare,

Syl, 8 (XII, 967k Repeal of ordinance granting franchise on

-Approved in Ben wood v. Wheeling Ry, Co,, 53 W. Va. 478, 44 S,

^- 277, reaffirming rule; Detroit v. Detroit Citizens' Street R, R. Co.,

^*^ U, a. 380, 46 L. 607, 22 Snp. Ct 417, holding fixing of street-

^*** rates by ordinance under Michigan tram railway act being

^^Htniet, city could not thereafter reduce such rates; MercantlJe

J«>Ut etc., Co. V, Coiiins Park, etc, Co., 101 Fed, 350, holding

'^ere city grants franchise to street railway company, w^hich Is

ipied and acted upon by company, right to other company to use

'^ tniclts cannot be authorized hy city but can be exercised by such

^^or company only under power of eminent domain; Northwestern,

*^<^. Co. V. Minneapolis, SI Minn, 146. 83 N. W. 52U, holding munici-

W ordinance granting teleplione company right to use streets under

Auditions as to permits and directions as to where poles and lines

*^ll be placed, when accepted and acted upon hy company, is con-

166 U. S. 571-600 Notes on U. S. Reports.

tract which cannot be unreasonably or arbitrarily amended ^"^
repealed; Hamilton, etc., Traction Go. v. Hamilton, etc.. Transit ^ ^
60 Ohio St 410, 69 N. E. 993, holding after street railway has t«^jl^]
possession of right of way granted by city, second grantee can^ #^-^^
take possession of route or right of way thus granted.

Distinguished in Pawcatucli Val. St. R. R. v. Town Council, 22
I. 310, 47 Atl. 691, holding where ordinance permitted street railro^^^
to use certain streets and prescribed use of certain form of rail ai^-^ .
company assented to ordinance, city could afterward change fon"'^^^
of rail and order company to pave portion of street; Clarksbur^*^ *^^
etc., Co. V. Clarksburg, 47 W. Va. 747, 35 S. E. 997, holding graii*^^
by town of Clarksburg in 1887, of exclusiye electric light franchise* ^
for term being void, it may grant to another corporation withiKt^^
same term franchise to occupy streets for same purpose.

166 U. S. 571-600, 41 L. 1119, MOSES v. UNITED STATES,
Syl. 1 (XII, 968). Disbursing officer's bond effective wheiZ'^^

accepted.
See' 90 Am. St. Rep. 189, note.
SyL 3 (XII, 968). Requiring officer to give bond in absence oo

law.

See 90 Am. St Rep. 200, 201, note.

Syl. 6 (XII, 9(58). Treasury transcripts as evidence.

Approved in Harvey v. United States, 97 Fed. 455, holding fra; mm j
mentary and incomplete transcript from books of treasury depaiK'.^^
ment containing accounts of marshal, covering only portion of te
and containing no item of his accounts during last two years
incumbency, is insufficient to warrant judgment against sureties
action brought thirty-three years after expiration of term for :
Jected items of expenditures shown thereby to have been cUUfl
by him.

Distinguished in United States v. Lew Poy Dew, 119 Fed.
holding in deportation proceedings certificate signed by comn
sioner that complaint was presented before him charging defend
was unlawfully in country and that in hearing it was adjudged
had right to be and remain here is inadmissible in proof of P^=^
adjudication of his right to remain.

Syl. 7 (XII, 968). Restating officer's account proved fraudolen'^K

Approved in United States v. Butler, 114 Fed. 583, holding wl^
accounts of army paymaster were restated ten years after tMc3
allowance, and claim made against officer for sum shown to
due from him by restatement, government has burden of shon^
falseness of accounts previously allowed.

Syl. 8 (XII. 1)(>S). Admissibility against surety of judgn'
against principal.

Approved in United States v. lUindle. 107 Fed. 230. holding def#
judgment against principal in action on bond against principal •

ai

Notes on TJ. S. Reportt. IBa U. S. 601^10

sureties is only prima facie evidence against the sureties, wlao put
I tissue ibelr liaMtlty.

X6G U. S. 601-606, 41 L. 1130. UNITED STATES v. GREAT-HOUSE.

S^i 1 (Xn, 968). statutory repeal by implication.

Approved in Pooler v. United States, 127 Fed. 513, holding where
:Ej)dietineDt charges making and using false pension voucher It
ma sustainable under Rev. Stat, § 5438.

3.G0 U. S. 606-616. 41 L. 1132, TEXAS, ETC., RY. v. CODY.

Syl 1 (XII, 968), Removal — Plaintiffs must show Federal
<^iiestlon.

Approved In Texas, etc., liy, v. Davis, 93 Tex. 380, 55 S. W. 562,

Ixolding Federal railroad corporation may remove suit against It,

tJiough plaintiff's petition allege defendant's incorporation otherwise.

Sjl. 4 (XII, 969). Courts — Suits against Federal corporation.

Approved in Stafford v, Templeton, 185 D, S, 494, 46 L. 1008. 22

Sup. Ct. 786, uplioldjng Federal Jurisdiction over action for dam-

o^^es for wrongful refusal to permit plaintiff to vote at election for

ooagressman; State v. Frost, 113 Wis. 648, m N. W. 920, holding

ixiformadon by State attorney general to restrain Federal receiver

C^roni dismantling railroad in order to sell materials pursuant to

^>*"der of appointing court is removable.

SyL 5 {XII, 969). Removal — Judicial notice of Federal cor-
l>oriition.

Ai)i>roved- In Scott v. Choctaw O., etc., R. R* Co., 112 Fed. ISl.
^c»l(lltvg It Is not essential to give defendant right of removal on
^^i3uiid that it is Federal corporation, that such fact should appear
^t-^m complaint, hut It may he shown hy petition for removal;
*^' inters v» Drake, 102 Fed. 549, upholding Federal jurisdiction
*^*laere declaration alleged that defendant was appointed receiver
. ^^ railroad, and that as such receiver by order of court he took
*««esslon, though name of appointing court not mentioned, where
Moval petiOon stated it; State v. Frost, 113 Wis. 645, 89 N. W.
*^I1, holding information hy State attorney-general to enjoin Federal
*^<^iTer from disnirantliug railroad in order to sell materials ptirsu-
^^^ to order of appointing court is removable.

IJistinguished In Gableman v. Peoria, etc., R. R. Co., 101 Fed. 3,
*^^ Id lag action against railroad receiver for damages for Injuries
'^'^ tilt log from alleged negligence in operation of railroad is not
^t^iovable, as ease arising under Federal laws solely on ground that
*^^^«iver was appointed t«y Federal court

%1. 6 fXlI, 969). Rights and duties of railroad and traveler at

_^'^^8SlDg.

Apjjroved In Carter v. Central Vt. R. R., 72 Vt. 198, 47 AtL 799.

^Iflmilng rule; Chesapeake, etc., Ry. Co. v. King, 99 Fed. 256t

'^<»l<llijg where passenger alighted at station and crossed tracks in

IGG U. S. 617-620 Notes on U. S. Reports. s

rear of train to reach street and was struck by freight traiiB^Bi^=i o
other track, questions as to contributory negligence and whethe^^-f=r o
not he was still a passenger are for Jury; Gahagan y. Boston, etc,,

R. R., 70 N. H. 447, 50 Atl. 150, upholding direction of verdict=^ tor

defendant where plaintiff struck by engine in broad daylight -^m^t at
crossing for pedestrians where Tiew was unobstructed, ani^H. *^

failed to stop, look or listen.

Syl. 7 (XII, 967). Reversal — Omission of nonrequested ^'

structions. ^

Approved in American Bonding & Trust Co. v. Baltimore A — ^f,^-

S. W. R. R. Co., 124 Fed. 892, applying rule to instruction on MC^^^o^^

ance of interest in action on guaranty bond; Cass County v. Qihs^"^^^ to

107 Fed. 367, holding, in action for labor and materials, objection %. ^

instruction that it was not sufficiently full cannot be sustained ^

appeal where further instruction not requested. _^-,

#^.

166 U. S. 617-620, 41 L. 1136, TEXAS, ETC., RY. v. BARRETT.

Syl. 2 (XII, 969). Master — Ordinary care to furnish sa(9''
machinery. ^^^

Approved in Westinghouse, etc., Mfg. Co. v. Heimlich, 127 Fe<^-^^^
93, holding where defendant purchased derrick chain from reputable ^^^^
chainmaker, who represented it to be of higest quality an(^^^
tested, and it broke because of crystallization of iron, causing deatlf-^ ^^
of employee, defendant not liable; Swensen v. Bender, 114 Fed. 7*^ ^
applying rule where servant injured by caving-in of tunnel wheiiP'^^^
he was working and which was insufficiently timbered; New Or«^^
leans, etc., R. R. Co. v. Clements, 100 Fed. 422, holding railroad -^^^^'^
liable where night foreman while climbing on moving cars to looser £» ^^^
brakes grabbed brake wheel from which nut was missing wJthoucx^^'^
his knowledge, and was injured by reason of wheel coming off. -^*-*"

Syl. 4 (XII, 970). Ordinary care defined.

Approved in Simpson's Patent Dry-Dock Co. v. Atlantic, etc.. SS^^ ^
Co., 108 Fed. 425, applying rule in libel against dock company fo^ ^

damages for injury to steamer from falling while being docked.

Syl. 5 (XII, 970). Employee— Burden of proving defects caufic^^^^P^
injury.

Approved in Veith v. Salt Co., 51 W. Va. 99, 41 S. B. 189, m re-

affirming rule; Tatton v. Texas P. & R. R. Co., 179 U. S. 663, --. ^

L. 3G4, 21 Sup. Ct. 277, holding railroad not liable for injuries -^s to
fireman caused by loose bolt on step which had been inspect* j^^ed;
Westinghouse, etc., Mfg. Co. v. Heimlich, 127 Fed. 95, holding wh» .^K=Jen
defendant brought derrick chain from reputable chainmaker i^^^bo
represented it to be of highest quality and tested, and it bi^ ^e
because of crystallization of iron, causing death of employee, ^

fendant not liable; Mountain Copper Co. v. Van Buren, 123 i* ~^
62, holding in action for death of employee by caving-in of nL^^ft
burden of proving negligence on part of defendant is on plaiD^^*

»

»

►

m:13 Notes on U. S, Reports* 1G6 U. S, C20-C3T

O 'Conn ell v. Penn. Co., 118 Fed. 993, applying rule fa action by
jB^sritcliman for injuries sustained by defective step od car^ Brady
"v_ WcsterD Union TeL Co*, 113 Fed. 910, applying rule where line-
XX2&I1 injured by reason of incompetency of fellow servant, wbfcb
'^^"as known to foreman; In re California Nav. & Imp. Co., 110 Fed.
^3^74^ applying rule where steam drum on steamer burst nnd killed
tixeman; Whitney v. New York, etc, R. R. Co., 102 Fed. 852, apply-
ii:x£ rule in action by employee injured, while using pass on trip not
c^onnected with his work; Bishop v. Brown, 14 Colo. App. 54S, 61
iE*ac. 55, holding mere fact of explosion of steam boiler does not
i-aise presumption of negligence; Dwatiey v. laman, 42 Or. 341,
TO Pac* 530, holding breaking of pulley connected with machine
WLX. which injured employee was working does not justify inference
tiliAt master was negligent

Bistingoished in Texas & P. Ry. Co, v, Bragan, IIS Fed. SIT, hold-
tuff where in action for death of Hreman in railroad collision de-
^ejidant charged contributory negligence on part of fireman lo fall*
iog to give engineer proper signal and that such failure caused
<?oJlision, burden of proof was on defendant; Bradford Glycerine Co.
▼. Kizer, 113 Fed. 897, holding where la action by servant for in-
itiries caused by explosion of nitroglycerine made by defendant, it
''•'as shown that nitro-giycerlne exploded spontaneously, and there
"w-fM evidence that if pure and properly made it would not explode,
l>ut thot it would if impure, it was not error to charge that If jury
^otmd such to be fact then presumption of impurity arose from fact
^f explosion.

leoU. S. 620-637, 41 L, 1139, NORTHERN PAC. R. R. v. SANDERS,

Syi. 1 {XII, 970). Filings on lands of disputed nature — Mines.

Approved in Hewitt v. Schultz, 180 U. S. 146, 45 L, 4G8, 21 Sup.

^t. 311, reafQrraing rule; Nelson v. Northern Pac. Ry. Co., 188 U. S.

^17, 120, 23 Sup. Ct 305, 47 L. 410, holding one occupying land

"^ homestead after fixing general route of Northern Pacific but

t*^or to definite location of route, whose application to enter it as

**oiiieatead after its survey was rejected, had title confirmed by act

'*t May 14^ 1880, chap. 8y, § 3; Tarpey v. Madsen, 178 U, 8. 226, 44 L.

*^M7, 20 Sup. Ct. 853, holding where original en try man abandons

^'^ct entered by him, and It comes within llmlta of grant to railroad,

^*»lrd party, third party coming In after lapse of many years and

*^tilng up title of that en try man has no equitable rights; United

^Ules V. Oregon, etc., R. R. Co., 176 U. S. 43. 44, 47, 44 L. ,^565, 366, 20

^«P. Ct. 266, holding lands within hmits of Northern Pacific grant of

^^, which' had not been eorned by such road, were property

l*'*itenti*d to Oregon Central under its grant; M'Cune v. Essig, 113

^'^*^. 2^J. holding patent Issued to widow of homesteader upon her

^^Alilug final proof in accordance with provision of homestead law

'-'OQvt^ys land to her absobitely, and no Interest passes by Inheritance

tocLildren of husbtind; Southern Pac. R. R. Co. v. United States, 109

IGO U. S. 637-660 Notes on U. S. Rei>ort8. 814

Fed. 922, holding line of Texas Pacific neyer definitely fixed in Cal-
ifornia between Yuma and San Diego, so as to give that company
title to lands adjacent thereto under grant of 1871, so as to prevent
lands from passing to Southern Pacific; United States y. Northern
Pac. R. R. Co., 103 Fed. 390, holding fact that certain lands bad been
filed up in land ofiice before railroad definitely fixed opposite thereto
is not sufficient to include them in lands excepted from Northern
Pacific grant of 1864, if proof of occupancy of and payment for
said lands not made within thirty days after date of such filing:
Murray y. Polglase, 23 Mont. 419, 59 Pac. 443, holding entryman
of mining claim who maizes final entry thereof and obtains re-
ceiver's receipt therefor, showing he is entitled to a patent, la not
relieved from doing annual representation worlc where receipt ob-
tained by fraud; Northern Pac. Ry. v. Nelson, 22 Wash. 534, 61
Pac. 707, holding act of Congress of July 2, 1864, authorizing with-
drawal from sale or entry of certain public lands along Northern
Pacific excludes such lands from operation of homestead law.

Distinguished in dissenting opinion in Nelson v. Northern Pac
Ry. Co., 188 U. S. 151, 152, 23 Sup. Ct 318, 47 L. 423. 424. majority -
holding one occupying land as homestead after fixing general route '^
of Northern Pacific, but prior to definite location of route, whose -^
application to enter it as homestead after its survey was rejected.^ .
bad title confirmed by act of May 14, 1880, chap. 89, § 8.

166 U. S. 637-648, 41 L. 1145, WHITNEY v. FOX.

Syl. 3 (XII, 970). Following State's statutory construction.

Approved in Rice v. Rigley, 7 Idaho, 130, 61 Pac. 295. holdiu ^
under Rev. Stats., § 5957, subd. 3, in action against administrate::^
to establish resulting trust, plaintiff cannot be witness as to mn ^
ters of fact occurring before death of decedent; Rhea t. State, ^^bi
Nebr. 487, 88 N. W. 70S, construing Criminal Code, i 8, maki^^
homicide committed in perpetration or attempt to perpetrate ra|^^^
arson, robbery or burglary, murder in first degree.

1G(> U. S. G48-660, 41 L. 1149, OXLEY STAVE CO. v. BUTLER CZZT
Syl. 1 (XII. 971). Necessity for claiming Federal right
Approved in Ileroid v. Frank, 191 U. S. 559; Rodley v. People-
California, 183 U. S. 694, 40 L. 393, 22 Sup. Ct 934; Capital CT J
Dairy v. Ohio, 183 U. S. 248, 4G L. 176, 22 Sup. Ct 124; East ^
Building & Loan Assn. v. Welling, 181 U. S. 49, 45 L. 471, 21 l»«J
Ct. 5:52; Harkins v. City of Ashville, 180 U. S. 635, 45 L. 709»
Sup. Ct. 922; Baltimore, etc., Ry. Co. v. Mayor & City Council J
U. S. 081, 45 L. :JS4, 21 Sup. Ct. 918; Henkel v. Cincinnati, 17T
S. 171, 44 L. 721, 20 Sup. Ct. 573. and Shewalter v. M. Pac. Ry. C?
152 Mo. 551, 54 S. W. 220, all realhrming rule; Home for Incurab/
V. City of New York. 187 U. S. 158, 23 Sup. Ct 86, 47 L. V
liolding certificate of State chief justice not made while case w

«x^

Notes ou D. S. Reports. 166 U. 8. 661-672

I

tore that court Is Insuffldent to give Supreme Court jurisdiction

teview State decision; Keanard v. Nebraska, 186 U» S. 307» 46

U7G, 22 Sup. Ct 881. re f using to review Nebraska decision that

^ffnee reservatioo lands were public lands within section 12 of

bUng act; Swerlngen v, St Louis. 185 U. S. 46, 46 L. 7£>9, 22

jp. Cl 572, denying existence of Federal question where Missouri

urt decided plaintitT oot entitled to alluvion caused by rescission

' Mississippi from point where It flowed at time his predecessor

k title to property by virtue of government pateat; Missouri, K.

T. R. R, Co. V. Elliott, 184 U, S. 534, 46 L. 076, 22 Sup. CL 448,

^■^ j^K>iioldlDg Federal jurisdiction where Missouri court necessarily

BL ^^^^clded that Kaasas City court in passing upon claim of immimity

^ -^Q8 final court of Missouri where such question could be decided,

fc^"i*^~id writ of error ran to Kansas City Court of Appeals; Brown v,

hue^KT ifesourl. etc., Ry. Co,, 1T5 Mo. 188, 74 S. W. 974, denying Supreme

C^ ^^c^urt's appellate jurisdiction where constitutional ciucstion not

T^s^m^ ised in trial court; Ash \\ Independence, 169 Mo, SO, 68 S. W. 889,

\»L. -^c^ldlng section and article of Constitutiou which statute violates

lac^ ^misi be polDted out In trial court In order to give jurisdiction to

S. ^mj^^preme Court on appeal; State v. Raynioad, 156 Mo. 118, 56 S. W.

Hi^ > T>, holding appeal in crimlanl case otherwise appealable to Court

o:^^ Appeals, ajid by tliat court transferred to Supreme Court on

-jxmd that constitutional question is involved, cannot be enter-

% aed if constitutional question not raised in trial rourt.

IH^istingulshcd in Adkins v. Itiehmond. 98 Va. IXJ, 34 S. E. 967,

U^^lillng Supreme Court's jurisdiction affirmatively appears when

*'^^>'"«^:art can see that judgment of lower court necessarily involved

stitntloiiallty of some statute or ordinance, or drew In question

ie constitutional right.

SS^yl 2 (XII, 971). Federal riglit must be claimed In terms.

-A^Hiroved in Speed v. MxCarthy, 181 U. S. 272, 45 L. 858, 21 Sup,

C^_ 61o, i-eaffirming rule; Mutual Life Ina. Co. v. McGrew, 188 U. S,

•^*^^*S, 309. 23 Sup. Ct. 378, 379, 47 L. 485, holding Federal question

'^^^^'t rniscHl in State appellate court la too late.

«^IL i)71>. Miscellaneous,

*^ltt?d In Gale v, Soutliern Building, etc., Assn., 117 Fed. 734, hold-
^*^ WU alleging that conqdalnant is resident or lives at certain
Vlnc-e tiors not state his citizenship necessary to give Federal court
^^i-liKllriJon.

^^^ U. S, 601-672, 41 L. 1154, IN RE CHAPMAN.

%I. S (XII. 971). Compelling attendance of witaesses.

■Approved lo Co-Operative. etc., Assn. v. State, 156 Ind. 4(^, 00
^* E. 148, holding constitutional provision against unreasonalde
^^i^fclies not violated by Burns' Rev, Stats. 1894, | 8444, giving
^ ofHclals right to examine books and papers of taxpayers for
DuriH>tie of listing and assessing property.

166 U. S. 673-697 Notes on U. S. Reports. 816

Syl. 4 (XII, 972). Double jeopardy — Misdemeanor and contempt

See 92 Am. St. Rep. 103, note.

(XII, 971). Miscellaneous.

Cited in In re Brodie, 128 Fed. 672, holding where sentence of
20urt-martlal resolves question whether, within meaning of Army
Regulations, § 940, as qualified by footnote in court-martial manual,
local law is impossible of ascertainment, sentence is conclusive
thereon.

166 U. S. 673-685, 41 L. 1160, BALTIMORE v. BALTIMORE
TRUST, ETC., CO.

Syl. 1 (XII, 972). Direction to maintain single instead of double
track.

Approved in Board, etc. v. East Tenn. Tel. Co., 115 Fed. 800,,
holding city ordinance granting telephone company right to uses
streets on certain conditions creates Irrevocable contract wheir.
accepted, which cannot be repealed by subsequent ordinance; Mer>^
cantile Trust, etc., Co. v. Collins Park, etc., Co., 99 Fed. 817, hold^
ing under Georgia Constitution prohibiting legislature from authom
iziug construction of street railroad in city without consent of co^
poratB' authority, ordinance granting franchise is law of Stata
within contract clause of Constitution; C. & P. TeL Co. v. Baltimoi^
City, 90 Md. 644, 45 Atl. 448, holding where telephone compaics
under ordinance is entitled to construct conduits for its wires "^
streets under direction of city commissioner, and applies for permllH
to lay conduits according to plan^ filed, work to be done accordi^e
to direction of commissioner, company may restrain interferei^^
with construction where permits refused without objection to pla^^
Washington, etc., R. R. v. Alexandria, 98 Va. 352, 36 S. E. 3—=
holding city may compel street railroad to change form of n^^
though old rails had been approved by city.

Distinguished in Pawcatuck Val. St R. R. v. Town Council.
R. I. 310, 47 Atl. 692, upholding ordinance compelling street ralh-^m
to change form of rail which had been laid in conformity to p^c"^
ordinance.

100 U. S. 685-697, 41 L. 1165, LONG ISLAND WATER, ETC., ^O^
V. BROOKLYN.

Syl. 1 (XII, 972). Binding effect of State decisions.

Approved in Hooker v. Los Angeles, 188 U. S. 319, 23 Sup. ^
397, 47 L. 491, holding written findings need not be made be^^**^
verdict of compensation in condemnation proceedings; League ^*
Texas, 184 U. S. 159, 46 L. 480, 22 Sup. Ct. 476, upholding X**^
Gen. Laws 1897, chap. 103, p. 132, relating to mode of collect^^"
of delinquent taxes; Yazoo & M. V. R. R. Co. v. Adams, 180 V- ^
9, 45 L. 402, 21 Sup. Ct 242, holding Federal question set up after
grant of new trial and remand by State court was too late.

sx^

Notes on D. S- Reports, 1&6 U. S. 693-706

^S'l 2 (XII, 972). Taking water system under eminent domain.

"^Uproved in Skaneateles Water-Works Co. v. Skaneateles^ 184

5S. 362. 46 L. olKJ, 22 Sup, Ct. 403, construing contract of water

^*Upany wjth reference to its exclusive rigiit to furnlsli city with

^ler; Newburyport Water Co. v. City of New bury pttrt, 103 Fed.

■J. holding where franchise granted to erect water-works to suppiy

-y with water is not exclusive, subseiiuent grant to city of right

tJuild competing works is not taking of corpoiat ion's property

franchise within Fourteenth Amendment; Kennebec Water Dist.

_ — Waterville, 97 Me. 206, 54 Atl. 15, holding in lixing value of fran-

^$es granted to water companies, fact that they are not exclusive

perpetual or irrevocahle must be considered; Keauei>ec Water

dst V, Waterviile, 06 Me. 244, 245, 52 AtL 778, "TO, upholcling

ant of power to water district created by statute to take by

Qinent domain plant, property and franchises of water company,

8yL d (Xll, 972). Taking contract by condemnation^ — Termlna-

Dn.

tfkpproved In State v. Water Co., 61 Kan. 561. 60 Pac. 342, holding

■rtgage of all property of water company and all rights , privileges

^ "*ir^fc-d franchises granted to it by State created valid ineumlinmce

tt- m "*H^m ali Its property, including right to supply city and inhabitants

^^-^ M th water derived under city ordinance; Kennebec Water Dist. v.

^^^ ^terville, 96 Me. 253, 52 AtL 782, upholding grant of power lo

^^^«^ter difttrict created by statute to take by eminent domain plant,

P Tt""^uperty and franchises of water company,

S^yl 5 (XII, 972). Due process — Assessment of damages In
ct^ ^»zidem nation,

--approved In City Council of Montgomery v. Blrdsong, 126 Ala.

*S!^:i., 28 So. 526, opholding charter provision authorizing assessment

0^ property benedted for street improvements; Kennebec Water

t»^»«^t. V, Waterville, m Me. 251, 52 All. 781. upholding provision pro-

Tt<^ ing for determination of compengatlon by three appraisers where

pr-«::*peny of water company condemned by water district; Barber

^^^^Ijlialt Fav. Co. v. French, 15S Mo, u43. 58 8. W. 0:57, upholding

^ssment for street improvement apportioned according to

i^tnge.

< >£ll, 072), Miscellaneous.

^^iT4^ In Boise City» etc. Water Co. v. Boise City, 123 Fed. 235,
^** IHilat that legislative grants of powers to municipalities are
•^^ic'tly eonatrned,

^^ tJ. S. 698-706, 41 L, 116U SENTELL v. NEW ORLEANS, ETC.,

^yl 1 (XII. 973). Dogs are property.

Approved In Hodges v. Causey, 77 Miss. 350, 78 Am. St Rep. 525,
^ So, 940. holding notice by plaintifiC to defendant to keep off
Vol. 111 — 52

Ir^

166 U. S. 707-716 Notes on U. S. Reports.

latter's premises with his dogs will not alone justify klllii
running through corn field, though defendant apprehende
would pass into and damage open cotton in same field.

Syl. 2 (XII, 973). Dogs subject to police power.

Approved in Rausch t. Barrere, 100 La. 570, 33 So. 606, v
ing section 6 of Act No. Ill of 1886, authorizing recovery by
of sheep killed by dog from owner of dog of ten times da
sustained.

Syl. 3 (XII, 973). Protection to taxed dogs only — Police ]

Approved in Gibson v. Harrison, 69 Ark. 390, 63 S. W. 10(
holding ordinance imposing license tax on dogs, subjecting c
to fine for nonpayment thereof, and providing for killing <
licensed dogs; Fox v. Mohawk, etc., Soc, 165 N. Y. 521, 59
354, holding void Laws 1896, chap. 448, providing for licens
dogs in cities where humane society exists and that license
shall be used by society to pay costs of enforcing act and
its own purposes;" State v. Smith, 72 Vt 141, 47 AtL 39
holding Yt Stat, § 4826, making it unlawful to keep unlic
dogs.

166 U. S. 707-709, 41 L. 1172, SPRINGVILLB v. THOMAS.
Syl. 1 (All, 973). Seventh Amendment — Verdict by nine j
Approved in Downes v. Bidwell, 182 U. S. 269, 293, 45 L.
1109, 21 Sup. Ct. 780, 789, upholding Foraker act imposing
on imports from Porto Rico; Black v. Jackson, 177 U. S. 363,
807. 20 Sup. Ct. 653, holding where defendant set up title
homestead entry and set out how land had been acquired, pi
allegiDg trespass and inclosure of land and defendant*s irres
bility cannot get mandatory injunction restraining defendant
trespassing or removing improvements, and trial court cann
cause without jury; Maxwell v. Dow, 176 U. S. 586, 44 L. 5
Sup. Ct. 450, upholding Utah criminal prosecution by jury of
persons.

im U. S. 709-716, 41 L. 1173, LOUISVILLE, ETC., R.
LOUISVILLE.

Syl. 1 (XII, 973). Federal right, when raised.

Approved in Gates v. Parmly, 101 U. S. 557, and Baltimore
Uy. Co. V. Mayor and City Council. 179 U. S. 681, 45 L. 384. 21
Ct. DIS. lH)th reatiirniing rule; Yazoo & M. V. R. E. Co. v. A
ISO r. S. 48, 45 L. 418. 21 Sup. Ct. 259, holding statute alleg
iiiipair contract must be set up in pleadings or in opinion of
and it is not sutticient that chief justice's certificate set out
upon arixunient validity of subseiiuent legislation was quest
as repu^ii;;iit lo Fedei'al Constitution,

Notes on U. S. Reports.

167 U. S. 1-43

1^

XJ. a ni. 41 L. 1187, PATTON v. TEXAS, ETC. RY,
^i J sceUaneouB.

<^it€d Id Milwaukee Mechafilcs' Ins. Co. v, B. S. Rhea, etc.. Son.
^^S Fed. 13» holding on motion to direct verdict in detPrmlning
^faether there is any sufficient evidence, if credit*?*! by aury^ to jus-
ti^jr Terdict in favor of other party, court must take that vievf of
c^'^idenee and Inferences to be drawn therefrom most favorable to
V^tm^jrty against whom instractlon ts asked.

"L^K^ U. s. 719, 41 L. 1187» MURPHY v. COLORADO PAVING CO.
^M iseeltaneous.

ClJited In dissenting opinion in Glleg v. Harris, 189 U. S. 489, 23
Svip. ct. t>47, 47 L. IH3, majority denying Federal courrs jurisdlc*
tioB over equitable suit by Alabama negro to compel registrar to
enroll his name on voting lists.

lee U. a 721. 41 L, 1187. MUTUAL LIFE INS. CO. v. PHINNEY.

Certiorari.

-Approved in Mutual Life Ins. Co. y. Cohen, 179 U. S, 264, 45 L.
^S^. 21 Sup. Ct 106, reciting history of litigation.

CLXVII UNITED STATES.

^^ tr. S. 1-37. 42 L. 55. COMPTON v. JESSUR

^S\. 3 (XI I, 975). Judgment by consent binds parties beDeflted.

•Approved in The New York, 113 Fed. 811, holding claimant of
jV*^ssiei under sale, giving bond to prevent court from setting sale
**^i<le for fraud, cannot deny that bond representa vessel unaffected
ux sueb sale.

^^*^ ^^ S. 38-43. 42 L. G9, IN RE HALL.

^ ^yi 1 (XII, 975), Act 1S97 abrogating Court of Claims' Juria-

^l>jiroved in Murphy v. Ulter, 186 U- S. 109, 46 L. 1078, 22 Sup.
7 *Hl. holding territorial act, repealing act creating loan coin-
'*»»lon, did not terminate commission where prior act of Congress
*** repealed such creuting act and re-eimcted snuie; District of Co-

mr. Eslin, 183 U. S, (14. 4a L. SG, 22 Sup. Ct. 18. holding act of
"*^i*grr>fl8 1897 repealing act 181)5 and vacating proceedings pending
^''tenudor, Suprenje Court has no jurisdiction of appeal from Dis-
^% of Columbia thereunder; Emlden v. Ltncidn Land Co.. 102
^wl. 5(2!, holding Congrt*Fs mny pnss act wliUfiriiwIiig contest from
'littd ilepartnjent and determine rights of parties; United States t.

167 U. S. 4a-60 Notes on U. S. Rei>ort8.

Kelley, 97 Fed. 461, holding act June 1897 amending ac
taking awa^f concurrent Jurisdiction of Circuit and Distrl
oyer suits for officers' salaries affected pending cases.

167 U. S. 43-48, 42 L. 71, DAVIS v. MASSAGHUSETTS
Syl. 1 (XII, 975). Fourteenth Amendment leaves Sti

power.
Approved in State v. Aldrich, 70 N. H. 392, 85 Am. St.

47 Atl. 602, upholding Laws 1897, chap. 93, forbiddini

over twelve years old from riding bicycles on sidewalks, i

78 Am. St. Rep. 249, 250.
SyL 2 (XII, 976). State court finding protecting public
Approved in Love v. Judge of Recorder's Court, 128 1

87 N. W. 788, upholding Detroit ordinance forbidding mi

public address in public squares without mayor's perm

167 U. S. 48-57, 42 L. 72, NORTHERN PAC. R. R. v. P(
Syl. 1 (XII, 976). Employee assumes risks of fellow se
Approved in Beaumont v. Northern Pac. Ry. Co., 109
holding railway company not liable for death of engineer
negligent in running train in excess of speed allowed; <
opinion in Missouri, etc., Ry. Co. v. Elliott, 102 Fed. Ill,
holding train dispatcher and employees operating traini
fellow servants.

Syl. 2 (XII, 976). Brakeman and engineer of other tn
servants.

Approved in Pennsylvania Co. v. Fishack, 123 Fed. 47]
yardmaster and fireman of switch engine are fellow
Weeks v. Sharer, 111 Fed. 335, holding shift boss direct
of men but without power to hire or discharge is fellow 8
men; Thomas v. Cincinnati, etc., Ry. Co., 97 Fed. 249, hoi
road yardmaster, authorized to hire and discharge, who i
to orders of superintendent and yardmaster, is fellow s
switch-gang foreman.

167 U. S: 57-60, 42 L. 70. WALKER v. COLLINS.

Syl. 1 (XII, 976). Plaintiff's statement must show
ground.

Approved in Arkansas v. Kansas & T. Coal Co., 183 1
46 L. 146, 22 Sup. Ct. 48, holding Supreme Court cannot
dicial notice that word " import " meant bringing armed i
outside State in order to create jurisdiction; Gableman ^
etc., R. R. Co., 179 U. S. 337, 45 L. 222, 21 Sup. Ct 17S
receiver cannot remove suit to Federal court on sole s
appointment by Federal court where such court acted ir
of general equity powers; Joy v. St. Louis, 122 Fed. 52^
Federal Jurisdiction cannot be conferred by allegations thf
ant will defend on ground of Federal Laws; Filhoil v. T(

Notes on IT. S* Reports.

167 U. S. 60-75

e<l^ 976» holding allegntloo in complaint tbat defendant is In
•fisessioD by direction of United States Is surplusage; Washing-
on T. Island Lime Co,, 117 Fed. 778, remanding action by State
o recover land and value of limestone quarried thereon wbere plain-
i ft merely claims In fee and not as mineral lands: Sontb Carolina
* Virginia-Carolina, etc., Co., 117 Fed, 728. boldlng action by
^C^te to flubject foreign corporation to penalties nnder State stat-
ute la nonremovable where neither complaint nor statute mentions
•^deral laws; Mayo v. Dockey, 1€8 Fed. 898. boldlng, under act
7-1888* United States marshal sued in State court cannot re-

ove suit where complaint does not disclose that he is marshaj;

roadway Ins. Co. v» Chicago, etc., Ry, Co., 101 Fed. 510, ordering

mand of suit where constitutional question was suggested In

XDoval petition and answer ^led.

X>istlngulshed in Scott v. Choctaw 0.» etc.. R. R. Co.. 112 Fed.

1. holding Federal character of railroad need not appear in com*
1>^-fi^lnt to enable railroad to remove.

U. S. 60-65. 42 Lw 77, CROSS v. EVANS.

SyL 1 (Xll, 976). Circuit Court of Appeals certlfles distinct
^^^iestions,

approved in Tilsenheld v. United States, 186 U. S. 134, 46 L. 10S9.
t^^ Sup. CL 743, declining to answer certiSed questions so framed
**» to invite court to aearcli entire record and In effect to determine
*^^>i'rectiie88 of Judgment

^*^ U. 8, ft5-75, 42 L. 79, SPOKANE FALLS. ETC.. RY, V.
SUEGLER.
^yL 2 (XII. 977), Pre-emptioner'e claim against railroad is
^^UeraL

Approved in Nevada Sierra Oil Co. v. Miller. 97 Fed. 890, hold-
*^S bill asserting rights based on location of mining claim under
P ^<l€ral mining laws discloses Federal question.

distinguished in Mountain View M. & M. Co. v. McFadden. 180

^/ S. 535, 45 L. 058. 21 Sup. Ct 489. holding conrt cannot supply

''^efal Jurladlctlon by Judicial notice of facts not relied on by

^^'^lutlff where complaint does not disclose Federal question; Wash-

^**glon V. Island Lime Co.» 117 Fed. 77S, holding complaint by State

^ 'ttit for recovery of land and value of liinefitone quarried thereon

•llegia^ title In fee In plaintiff involves no question of title as

^^»»mi land.

^yl 3 (Xllt 977). Railroad must compensate pre-emption claim-

^^^f for land.

Approved In Holmes v. United States. 118 Fed. 999, holding bona

'^t' »ettJer on unsurveyed public land has made "valid settlement"

' ifMn meaning of president's proclamation of 1892. excepting

it'll laod from forest reservation.

167 U. S. 76-116 Notes on U. S. Reports. S

167 U. S. 76-81, 42 L. 83, WILLIS v. EASTERN TRUST, BTC^ O
Syl. 1 (XII, 977). Value of right In realty must appear.
Approved in Battle v. Atkinson, 191 U. S. 559, 24 Sup. Ct. 8^

afllrming 115 Fed. 389, holding under Arkansas statutes In actii

for unlawful detainer amount in controversy where action is I

tween landlord, and tenant is rental value only.

167 U. S. 81-87. Not cited.

167 U. S. 88-104, 42 L. 87, WABASH R. R. v. DEFIANCE.

Syl. 1 (XII, 977). City improving streets regardless of si
render.

Approved in Macon St. R. R. v. Macon, 112 Ga. 786, 38 S. E. €
holding street-railway company not entitled to injunction again
enforcement of ordinance requiring change of location of track
Lake Shore, etc., Ry. v. Elyria, 69 Ohio St. 432, 69 N. E. 7-
holding general legislation authorizing railroad company to c
streets gives no power permanently to exclude public by mea
of abutments supporting overhead crossing; Pawcatuck Val.
Ry. V. Town Council, 22 R. I. 311, 47 Atl. 692, holding ordinal
granting use of certain streets and prescribing certain kind
rail does not preclude council from changing kind of rail.

167 U. S. 104-108, 42 L. 94, BRYANT v. UNITED STATES.

Syl. 1 (XII, 978). Habeas corpus — Extradition commiUxk.
nonreviewable.

Approved in Terlinden v. Ames, 184 U. S. 278, 46 L. 54, 22 Sup.
487, holding evidence to show no indictable offense was c«
mitted is not admissible on application for writ of habeas corp
Greene v. Henkel, 183 U. S. 2G1, 46 L. 189, 22 Sup. Ct 223. h,*
ing, under Kev. Stat., § 1014, for removal for trial, magistrates
not warranted in taking evidence in regard to organization-
grand Jury returning indictment; United States v. Greene,
Fed. 819, holding where commissioner has before him compet
legal evidence of probable cause to believe accused guilty his fi
Ing is conclusive; In re Count De Toulouse Lautrec, 102 Fed. S
holding commissioner's finding of probable cause to believe accu*
to be fugitive from justice is open on habeas corpus only aJ
legal evidence supporting; dissenting opinion in People v. Hy«
172 N. Y. 207. 64 N. E. 835. 92 Am. St. Rep. 727, majority holdiC
action of governor in Issuing warrant for extradition is reviewabi
on habeas corpus. See 1>2 Am. St. Rep. 727, note.

1G7 U. S. 108^116, 42 L. 9G. ENTERPRISE MIN. CO. T. RICOAS
PEN, ETC., MIN. CO.
Syl. 1 (XII, 078). Right to vein in tunnel relates to locatioa
Approved in Calhoun, etc., Co. v. Ajax. etc., Co., 27 Colo. 25, ;

Pac. 617, holding, under Rev. Stat, §§ 2322, 2323, blind leads d'

Notes on IT. S. Reports.

1(J7 U. S. 110^149

I

ro -veered while projecting a discovery tunnel through prior vallil
f'l.^LJm cannot be claimed by tunnel-owners.

JDlRtingnished In Murray v. Polglase, 23 Mont 417» 59 Pac. 442,
Koldlug one who has not filed and adverse claim under Rev. Stat.,
t 2326, cannot Intervene in action to determine adverse claim to
nlnJng location.

SyL 2 (XII» 978). Failure to adverae application for patent.
j%.pproved In Uinta Tuuaei, etc., Co. v. Creede, etc., M. Co*, 119
'^^^tJl. 168, 160, holding claimant of tunnel site located across lode
-:ia.iiD» in which his interests are intangible and uncertain need not
^tle adverse claim against patents,

:M^erT u. s. 116-120, 42 l. 101, Campbell v, ellet.

Sjl. 1 (XII, 978), Tunnel-owner*s failure to mark discovery
p»oint not fatal,

approved in Calhoun Gold Mln. Co. v. Ajax Gold Mlc. Co.» 1S2

13^- S. 508. 509. 45 L. 1200, 21 Sup. Ct. 890, hoklln^? blind veins undcr-

Xieath prior lode claims belong to surface lot alio n under Rev. Stat,,

* 2322, and not to owner of tunnel run according to section 2323,

«^lrmlng 27 Colo. 25. 59 Pac. 617.

I>istingulshed In Brewster v. Shoemaker, 28 Colo. ISl, (j3 Pac.
3XO, 89 Am, St. Rep. 191, holding where vein in discovered in drlv-
*^g tunnel 250 feet under ground, a valid location can be made on
stxrCace where vein if continued would be disclosed,

^W U. S, 120-127. 42 L. 103. IN RE JOHNSON.

8yL 2 (XII, 979), Possession gives Federal court exclusive
Itu-lsdiction.

Approved In In re Chambers. Colder & Co.. 98 Fed. Sm, holding
^*ndiord will be enjoined from prosecuting ejectment suit in State
^<*Urt ttgainst hanltrupts and receiver appointed by Bankruptcy
Court

*^T U. 8. 127-149, 42 L. 105. BUKDON CENT. SUGAR REFINING
CO. T. PAYNE.

8yl 1 (XI I » 979). Contract construed to effectuate all provisions.

Approved In dissenting opinion in Ferrenbach v. Mutual Reserve
^und, etc., Assn., 121 F^ed. 952, majority holding provision In In-
*ttraace certificate that assessments were payable thirty days from
<liiti' of notice meant from receipt of notice or when it should
^ave been received.

*^yl 5 (XII, 979). Uen enforceable against general creditors,

I approved In Howard v. Delgado & Co.. 121 Fed. 33, holding

/fUerveuers making advances to sugar refiners who agreed to ship
il^ sufar refined to interveners have equitable lien upon sugar
femaialng al refinery at receivership; In re Olzendara Co.. 117
Fcil. 181/ holding petitioners agreeing to make advances to mimu-

167 U. S. 14^175 Notes on U. S. Reports. 82

facturing company, in consideration of lien upon all goods on whic
invoices were sent, acquired lien enforceable against receiver.

167 U. S. 14^175, 42 L. 113. LONDON ASSURANCE v. COJ^
PANHIA De MOAGENS.

Syl. 1 (XII, 979). " Collision " covering vessel at anchor.

Distinguished in Cline v. Western Assur. Co., 101 Va. 503, 44 S. i
702, holding term '* collision " in marine policy does not embrac
striking of sunken or floating substance.

Syl. 2 (XII, 979). Policy construed against insurer.

Approved in Texas & P. R. R. Co. v. Reiss. 183 U. S. 626, 4
L. 360, 22 Sup. Ct 255, holding cotton unloaded by connectin
carrier on its pier without notice to succeeding carrier does nt
await further conveyance within bill of lading exempting co~
necting carrier; Debitt v. Providence, etc., Ins. Co., 173 N. Y. 23, ■
N. E. 779, holding insurer liable for constructive total loss
cargo lost by sinking of canal-boat where insurer recovered a^
sold part although policy provided against abandonment; Parla
V. Railroad, 133 N. C. 342, 45 S. E. 660, holding stipulation In c«
tract for shipping perishable freight "subject to delay" with<H
reduction of rates is void; Gardner v. Southern R. R., 127 N. C. 2=
37 S. E. 329, holding valuation clause in bill of lading fixing va-I
of goods shipped at one-fifth of true value is unreasonable and vca
Hinkle v. Southern Ry., 126 N. C. 939, 78 Am. St Rep. 689, 36 8^
350, holding where shipper shows delivery of cattle in damaip
condition and after unreasonable delay such delay Is evidence-
negligence; Grabbs v. Farmers', etc., Ins. Co., 125 N. C. 398,
S. E. 506, holding policy providing against waiver of conditio
except in writing and for forfeiture where Insured's interest "^
incorrectly stated Is not forfeited where agent issuing same kD
fhcts.

Syl. 3 (XII, 979). Insuvance — Foreign policy — Law goveral:

Approved in Diamond Glue Co. v. United States Glue O).,
U. S. 613, 23 Sup. Ct. 207, 47 L. 331. holding contract whesr€
foreign corporation was to manage factory in State calls for " tr«^
action of business " within Wisconsin statute requiring fillnfl^
articles; Mutual Life Ins. Co. v. Dingley, 100 Fed. 413, holdinfl^
surance contract is governed by New York law where applicatl
recited such fact and policy was issued and policy and premium
made payable in New York; Swedish, etc., Nat. Bank v. First S^
Bank, 89 Minn, 113, 94 N. W. 222, holding place of performance <
pledge of grain in elevators is place where same Is actually situate^
dissenting opinion in Keene Five-Cent Sav. Bank v. Reid. 123 Fe^
228. 230, majority holdin;: that provision in note secured by mor^
gage that It should be governed by Kansas laws meant State lit*
utes relating to nejrotiablo instruments not mortgages.

Distinguisheil in Patterson v. Bark Eudora, 190 U. S. 176. 23
Sup. Ct 823, 47 L. lOOC, holding seamen shipping in Americta

Notes on U. S. Reports.

167 D. S. 175^177

on foreign veaael engaged Id foreign eomnaerce are protected
Ml^'.y act 1808 prohibiting prepayment of seamens' wages.

Syl. S (XII, 780). ** Sinking ** of vessel covers loss after sinking.
.A^pproved In De Farconnet v. Western Ins, Co., 110 Fed. 413,
'p-^<jl<Iing where Tesficl stranded, clause ** free from particular average
-^rm ^:il^sa vessel he straBded ** cannot affect case.

87L 7 (XII, 980). Doss when cargo sold adjusted as salv^age.
^.pprovcd In International Nav. Co. v. Atlantic Mut Ins, Co., lOD
:^i^e<i.. 318s bolding upon partial loss on valued policy on ship each
^iKiftts tired Is liable fur proportion of Its insurance which cost of re-
-y^jM.jg' bear^ to policy value,

CXI I. 07D). MiscelianeouB.

Cited In Ursula, etc., SS. Co. v. Amsinek, 115 Fed. 245. holding
'^?«-liere shipowners Insured part only of their liahility for carrying
^roods OD deck under valued policy, on total loss Insurers are bound
t>3r policy amount.

XOT V. S. 1T5-1TT, 42 L. 126, LETT v. SUPERIOR COURT.

Syl. 1 (XII. OSO). Federal right must be distinctly claimed.
Approved in Home for Incurables v. New York. 187 U. S. 15xS.
^^^ 8up. CL mS, 47 L. 110, holding Judgment of State cannot be
J*^ viewed in Supreme Court where record does not shuw that consti-
tutional right was claimed in State court,

le7 U. 8, 178^1*%, 42 L. 127. STONE y. UNITED STATES.

SyL 5 (XII, 980). Public lands must J>e near railroad.

Approved In United States v. St. Anthony K. R., 102 U. S. 536.
-24 Sup. Ct. 337, liolding timber taken from land twenty miles from
'"ttHroBd is not lakeu from public land adjacent to line within act

I>l«Unguished in United States r. St. Anthony R, H. Co., 114 Fed.
**^ holding land from twenty to twenty- Sve miles from line of
"^^d IB adjacent lauds within act 1875, allowing railroads to take
tUnl^P therefrom.

980). Title of purchaser of timber from bona flde

iS.^^

Syl. 6 (XII,
^^tler.

Approved In Teller v. United States, 113 Fed. 283, holding occn-
^'^'^t of mineral claim before receiving certificate has no right
** eut timber and can give none to licensee; Cunningtiara v.
^^tropoUtao Lumber Co.. 110 Fed. 336, holding homestead settler
*^tore perfecting ri^ht entitling him to patent cannot pass title
** lliDl)er cut on land.
%L 7 (XII, ^801. Valid verdict returnable on Sunday.
^I>proved in United States v. M'Knight. 112 Fed, !)87. holding
^^^ trial will not be granted i>ccause district attorney concluded
*f?nnu?nt and court gave charge on Saturday In opposition to
^nmi of juror.

167 U. S. 196-270 Notes on U. S. Reports. 82

(XII. 980). Miscellaneous.

Cited In Teller v. United States, 113 Fed. 278, holding intent t
export and dispose of timber cut on public land Is the intent mad
criminal by Rev. Stat 1878, S 2461.

167 U. S. 196-204. Not cited.

167 U. S. 204-224, 42 L. 137, TINDAL v. WESLEY.

Syl. 1 (XII, 981). Payment in scrip does not defeat title.

Approved in Robinson v. Lee, 122 Fed. 1012, holding tender •
scrip for taxes and permitting land to be sold to test validity
scrip does not render suit to recover land collusive.

Syl. 4 (XII, 981). Suit against officer not necessarily agaiir:
State.

Approved in Prout v. Starr, 188 U. S. 643. 23 Sup. Ct 400, 47
587, holding suit against Nebrasl^a board of transportation to pa
vent Nebr. act 1893, fixing maximum rates, is not suit agai
State; Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, holding i^
against State officers to prevent enforcement of unconstitutional r—
law is not suit against State; Salem Mills Co. v. Lord, 42 Or. 92,^
Pac. 1036, holding State court has jurisdiction of suit against Sfc:
officers to enjoin use of more water than State was entitled to; m
senting opinion in South Dalsota v. North Carolina, 192 U. S. S
24 Sup. Ct. 282, majority holding Supreme Court has jurisdic-e
of foreclosure suit by South Dakota as donee of bonds IssueA
State of North Carolina.

Distinguished in Smith v. Reeves. 178 U. S. 439, 44 L. 1142.
Sup. Ct. 920, holding suit Sigalnst State treasurer to compel rep^
uieut of taxes talien under Illegal assessment is suit against Stu-
Wesley v. Eells, 177 U. S. 374, 44 L. 811. 20 Sup. Ct. 663, holdl
contract to purchase land will not be enforced against vendee wh^
title is not marlietable, vendor having tendere'd invalid scrip *
mortj^age which was refused; Standard Fireproofing Co. v. To(^^
12li Fed. 052, holding members of capitol commission letting cc^
tract for construction of capitol are not liable for infringement
patent by use of article by contractor.

Syl. 5 (XII, 981). State not bound by suit against officer.

Approved in Scranton v. Wheeler, 179 U. S. 152, 45 L. 133, ^
Sup. Ct. 53, holding suit by riparian owner to prevent interferen ^
with rijrhts in submerged water front by Federal officer In cbar^
of pier is not one against United States.

167 U. S. 224-270, 42 L. 144, UNITED STATES v. AMERICA
BELL TEL. CO.

Syl. 1 (XII, 981). Cancellation for fraud requires convinda
evidence.

Approved in Thallman v. Thomas, 111 Fed. 282, holding mining
patent may not be set aside where evidence of mistake ia **unoon
vincing and conjectural."

Notes on U. S. Reports. IGT U. S. 270-323

▼ »•

Sjl. 3 fSin, 982). Patent office delay cannot shorten patent.
.Approved in Electric, etc. Fa(3cet Co. v. BuEfalo. etc.. Carriage
^II^o,, 117 Fed. 315, holding delay In Issuing- patent cannot shorten
l.S^e of patent where patentee not responsible therefor: Crown Cork,
^tcr., Co. V. AJumlnum Stopper Co.. 1U8 Fed. 852. holding delay In
<::^l>i:ainlng patent after ftllng applhrntian due to adverse rulings of
^^jk: A miners does not work abaudomuent

Syl. 6 (XII, 9S2). Patent olllee decisions bind United States,
.A^pproved In Crown Cork, etc., Co, v. Aluminnm Stopper Co., 108
J^'e^. 850, holding decision of examiners and board of appeaia in
lp»a.tent office sustaining right to reissue is entitled to gi*oat weight.
(XII, 981). MisceUaneous.

Cited in French Repubiic v. Saratoga Vichy Co., 101 U. S. 438,
2^ Supv Ct. 147. holding ordinary rule of laches applies to French
lii^puUllc in suit by Republic and its lessee to enforce exclusive
rigljt to use of word ** Vichy '* denoting mineral waters; Pond v.
Uoited States, 111 Fed, 096, holding State statute requiring plain-
tiff to present elaira to representative of defendant dying pending
a^ctlon Is not applleahle to government action on officer's bond:
American Bell Tel. Co. v. National Tel. Mfg. Co., 100 Fed. 1(W2,
Uolding patentee disclaiming speech-transmitting character can-
tiot amend claim so as to include that feature.

IW U. S, 270-274. Not cited,

1«7 U. 8. 274-278. 42 Lw IGO. TLA-KOO YEI^LEE v, UNITED
STATES.
8yl 1 (XII. 982). Crosa-examlnatlon to test credibility.
Approved in King y. United States, 112 Fed. 996. holding er
Poutous refusal to permit defendant to ask witness for State on
charge of bribery what proceedings took place when government
^^t for him; State v. Abbott, 05 Kan. 141. (39 Pac. IGl. holding
Witness may lie erosaexamined as to speclflc acts for purpose of
•^^sore^iiting him.

^^ tJ. S, 278^-309. Not cited.

^^ U. S. 310-323. 42 L. 179, MAY ?, MAT.

8yl 1 (Xll. 983). Removal for cause im piles fair discretion.

Approred In March v. Romare, llG Fed. 357, holding where trust
w*e<l securing corporation bonds vests power to remove trustees In
■^sjorlty of bondholders, determination whether cause existed was
*'«* for them.

8yL 2 (XII, 983). Removing trustee for prejudical ill-feeling.

Approved in Lister v. Weeks. 00 N. J. Eq. 228. 40 Atl. 5ti3, holding
^*tee libould be removed where his conduct engendered feeling
of titter hostility between him and cestuls.

167 U. S. 324-371 Notes on U. S. Reports. 828

Distin^ruisbed in March y. Romare, 114 Fed. 203, 204, holding
court will not sanction removal of trustee for bringing foreclomire
suit where such suit was matter of right with minority and would
terminate trust; In re Lewenshon, 98 Fed. 581, holding hostility of
proposed trustee toward banlurupt is no sufficient disqualification
prevent appointment

167 U. S. 324-544, 42 L. 185, PARSONS v. UNITED STATES.

Syl. 1 (XII, 983). Rev. Stat, | 769, concedes president's remoi
power.

Approved in Shurtliff ▼. United States, 189 U. 8. 315, 23 Sup.
536, 47 L. 831, holding enumeration of causes for removal in
toms administrative act 1890 does not prevent president from
moving appraiser of merchandise for other causes; Reagan t. Unit*.
States, 182 U. S. 424, 45 L. 1164, 21 Sup. Ct 846, holding comm
sioners of United States court for Indian Territory removable '
appointing power as an incidental power; Keim v. United States,
U. S. 294, 44 L. 776, 20 Sup. Ct 575, holding action of secretary
interior in dismissing department clerk is not subject to Jiidi<
review in absence of statute; Quaclcenbush v. United States,
U. S. 25, 44 L. 656, 20 Sup. Ct 532, holding, under act 1887, s=^
thorizing president to reappoint suspended naval officer, appointm-
to relate back but pay to run from appointment only, no claim
pay before reappointment was maintainable; Horstman t. Adai
101 Mo. App. 125, 74 S. W. 399, holding in absence of statute d
of County Court may remove deputy at pleasure and without not

Distinguished in Thompson v. Troup, 74 Conn. 121, 49 AtL
holding city charter providing against removal of clerks witl^
cause duly shown, made a hearing necessary for dismlssaL

n.: U. S. 344-362. Not cited.

1G7 U. S. 362-371, 42 L. 198, CALIFORNIA BANK T. KENNB

Syl. 1 (XII, 984). Federal review of decision holding nati
bank as stockholder.

Approved in First Nat. Bank v. American Nat Banlc, 178
158, 72 S. W. lOGO, holding Federal question is directly raised
suit against national bank on guaranty of payment of draft dra
on customer where bank pleaded ultra vires.

Syl. 2 (XII, 984). National bank powers limited by charter.

Approved in Cumberland Tel., etc., Co. v. EvansviUe, 127 F^^^
190, 193, holding under Indiana statute conferring upon tclepbo^^*
corporations right to hold and transfer property gives do pow^^
to transfer all its property and franchise; Seattle Oaa, etc, Elecrf^
Co. V. Citizens* Light, etc., Power Co., 123 Fed. 692, holding Nr^
Jersey corporation without power to engage In gas business ctnuB^
engage in such business in Washington; Edward P. Allis Co. t.
Standard Nat Bank, 110 Fed. 49, holding national bank "cannol

Notes on IT. S, Reports. 16T U. S. 5G2-371

rate sawmill in Florida." or carry on Bueb business tlirough a
ummy corporation: Schofleld r. Goodrk-h Bros, Banking Co*, 98
""ed. 2T3, holding banking corporation cannot be beJd for assess-
lent on stock of national bank purchased by it as an investment,
--^ce beyond charter power; Gilbert v. Seatco Mfg, Co., 98 Fed. 214,
lolding, under Washington statute* corporation had no power to
iBaume an obligation for individual debts of stockholder: Meares v.
'alrley. 12C N. a *)65, 36 S. E. 131, holding corporatlou anthorizing

rmstee holding land for its beneflt to borrow from loan assocta-

:3on which required stock subscription in association is liable for

proportionate to such subscription; Merchants* Nat Bank v,

rehrmann, 69 Ohio St. 171, 173. 158 N. E. lOOU. 1007. holding na-

♦onal t>aiik taking transfer of partnership shares does not become

member of partnership; Fulton v. National Bank. 26 Tex. Civ.

19, 62 S. W. 81 ^ holding: national bank may accept corporation

^^oek as collateral and hold such stock until repayment of advances;

arsons v. Tacoma Sm€*lting Co,, 25 Wash, 508» 65 Pac. 771, hold-

ig In absence of statutory power to own stock In another corpora-

-«n corporation cannot vote such stock at stockholders* meeting.

Distinguished in Scott v. Deweeae, 181 U. S. 217, 45 L. 829, 21
ap. Ct 590. holding one holding national bank stock certificates
K^nsot escape liability thereon on ground that such stock is part of
i.«^^M.eeal increase; Brunswick Terminal Co. \\ Baltimore Nat Bank,
%^ ^X- 2 Fed, 816, holding one temporarily holding stock In State bank
m^ ^^^ collateral security Is not liable on Indebtedness Incurred by
tm^xm^m after retransfer to owner; Bancroft v* Bloede, lOt] Fed* 399,
a mr^* Voiding issue of stock by bleachmg and dyeiug manufacturing
^XT)oratlon in exchange for stock in corporation mauufucturing
^.y^<*tis€d Id the former corporation*s buslDcss.

Syl 3 (Xlh 984). Ultra vires contracts are wholly void.
-Approved in Traveler's Ins, Co. v. Mayor, etc., 99 Fed. 6(16, hold-
**K" city Is not liable on bonds Issued to railroad company of another
^^^*^ where Its power was confined to Issue to domestic cor-

^isthiguisbed in Lake SL EL Ry. Co. v, Ziegler, 99 Fed. 128,
^*^<JIag stock issued by railroad company in payment for con-
^-*^ctlon of road though In excess of value of consideration is not
^■^^''fllld onder Illinois Constitution.

*'5)"1- 4 (XII, 984), Ultra vires contract not enforceable by

Approved In Robinson v. Southern Nat Bank. ISO U, S. 309, 45 L.

^iMi&^

'^l Sup. Ct 388. holding bank receiving national hank stock

collateral for a note, selling same on default and bidding It in,

**ot shareholder of bank where no transfer on books; Ft Scott

*• V. G. Eads, etc.t Co,, 117 Fed. 54, holding under Kan. Stat

^^. requiring cities to invest surplus in bonds of lowest bidder.

''Strict to pay broker company com mission for purchasiug bonds

167 U. S. 371-407 Notes on U. S. Heports. K

was ultra vires; First Nat. Bank ▼. American Nat Bank, 173 M
159, 72 S. W. 1061, holding national bank may plead ultra Tires
contract guaranteeing payment of draft drawn on Its custome
Merchants* Nat Bank v. Wehrmann, 69 Ohio St. 174, 68 N. B. IOC
holding national bank taking transfer of partnership shares do*
not become member of partnership; White ▼. Bank, 66 S. C. 5<J
504, 45 S. E. 99, In Inferior court's decision restated in stateme:
of case.

Distinguished in Turtelot ▼. Whithed, 9 N. Dak. 476. 84 N. W. 1
holding contract whereby national bank receives in payment
debt corporate stock of a debtor corporation which is financial
embarrassed is not ultra vires; Security National Bank v. St. Cro
Power Co., 117 Wis. 218. 94 N. W. 77, holding in action by nation
bank to enforce subcontract assigned to bank as collateral, co
tractor cannot urge ultra vires as defense.

167 U. S. 371-407, 42 L. 202, NEW ORLEANS v. CITIZENS' BAXl
Syl. 1 (XII, 985). Change in incumbent cannot affect judgmeo
Approved in Starr v. Chicago, etc., Ry. Co., 110 Fed. 9, holdii
succeeding attorney-general will be enjoined from prosecuting sui
to enforce State statute regulating rates, which statute was d
clared unconstitutional by Supreme Court

Syl. .2 (XII. 985). Judgment conclusive where circumstanc.
identical.

Approved in Citizens' Bank v. Parker, 192 U. S. 77, 79. 80,
24 Sup. Ct 182, 183. 18G, holding exemption of capital stock
bank from taxation created by charter La. act 1836, inclim^
exemption from license in carrying on banking business; SouttM^
P. H. R. Co. V. United States, 183 U. S. 528, 46 L. 312, 22 Sup. Ct X
holding decision tliat Southern Pacific company took no title to Ea
under act 1871 does not preclude claim by company under i
188G to other lands; Mitchell v. First Nat Bank. 180 U. S. 481 •
L. G32, 21 Sup. Ct 421. holding bank whose claim against ii3«
vent's estate is denied by highest State court Is precluded there-
from proceeding against insolvent in Federal court; Baldwin
Maryland, 179 U. S. 222, 45 L. 1G2, 21 Sup. Ct 106, holding JumJ
inent establishing liability for taxes for certain years is res judic£»
as to liability for .succeeding year, where facts are identical; ^"^
lein v. New Orleans. 177 U. S. 3i)G, 397. 44 L. 820, 20 Sup. Ct 0^
holding decision dissolving injunction against sale of land held ^
city by dedication defeats claim that such laud cannot be 8(^^
under judjiuient against city; Eastern Building, etc., Assn. v. W^
ling. IIG Fed. 105. holding judgment for mortgagor in suit agaiB^
mortgagee for failure to discharge mortgage after payment baf"
suit by mortgagee to foreclose; Estill County v. Embry, 112 Fe^^
885, holding assignee of coupons to bonds which were declared vali*^
in suit by assignor against county is privy to such Judgment anJ
protected thereby; Norton v. House of Mercy, 101 Fed. 38a holding

i*ax

Notes on 0, S. Keports. 1G7 U* S. STl-lOT

X^^ntttclty decision that New York charitable corporation cannot
C^lLe legacy under Kentucky will because exceeding charter limit
cjierents suit In other State; Penrose* Treasurer of New Orleans v.
C:!^li5iirrai3t, 100 La. 254, 255, 256, 30 So. 719. 720, holding Citizens'
X^aak of Louisiana Is entitled to enjoy exemption conferred by act
:!. ^s3C» daring extension of bank's charter; Kansas City. etc.. Park v.
X-^nnsas, 174 Mo. 437, 43S. 441, 74 8. W, 982, 983, holding judgment
^^njoining collection of tax for certain year is res Judicata as to
^^:3CerDptlon claimed for otlier years on same ground; State v. Savagt?,
CS-# rs'ebr. 700, flO N. W. DOl, holding decision as to right of mayor's
^•-^poltiteefl as fire and police commissioners is res judicata and pre-
"v^^nts issuance of mandamus to compel governor to appoint; State
^v-- Kennedy, 60 Nebr, 3U.j. S3 X. W, 8S, holding State invoking judg-
X3^eut of court Is bound by decision whether favorable ur adverse;
^t Lawrence Co. v. Holt, 51 W. Va. 372, 41 S. E. 3uti. holdinij
<3.^?eree dismissing hill to enjoin sale of land on ground that tiiird
t^^^rtlcs claimed Interest therein is final determination that such
I*«n^Ie8 have no Interest therein.

r>istinguished In Union & Planters' Bank v, Memphis, 18^ U, S.

■^. 23 Sup. Ct 600, 47 L. 715, holding State judgment sustaining

^^jt exemption which under State law is res adjudicata as to par-

*--CMilar taxes only has no greater force in Federal courts; Lander

^- ^lercantHe Nat. Bank. 180 U. S. 471. 476. 46 L. 1254, 12:.0. 22 Sup.

^^ U13, holding judgment that assessments on shares of national

* •sa.ak stock were Illegal for failure to deduct stockholder's debts Is

**ot conclusive of right to deduct debts in other years; Union, etc,

"^»Jik v. Memphis, 111 Fed. 3f>y, holding State decision sustaining

■^^eicraptlon which by Stiite practice Is conclusive only as to taxes

*^Volve<} bos same force in Federal courts; Newport, etc. v. Com-

''^♦^nirtaJth, 106 Ky. 451, 453. 454, 51 S. W. 434, 435, holding adjo-

**^MIou as to taxes of one year Is not res judicata as to taxes for

^Ofither year; Gittings v. Baltimore City, 05 Md, 424, 52 Atl. 939",

^■^illti^ decree tliat assessment of one year is illegal is nut res

'^*<-llcj»ta as to illegality of assessment for succeeding year; Adams

lUllroad, 77 MKss. 208, 24 So. 213. holding declKlon in suit be-

<^n railroad company and sheriff involving tax ejcemption is not

Judicata as to suit between dilTerent railroad and revenue agent.

%i n uVlI, 985), Effect of judgment where demand not identical

'%Plfl-oved In Deposit Bank v, Fmnkfort, 101 U. S. 513, 24 Sup.

^ loy, holding Federal decree adjudging tax exemption based

\^^^ State judgment as res Judicata is binding while iu force re-

^J^f^lloss of change in State decisions; Illinois \\ Illinois Cent. R, R.

**^ . ^.<^ U. S. 92. 40 L. 447. 22 Sup. Ct. 3<HT, holding eveiy matter

i:c<l In Circuit Court's decree and not left open by Supreme

iii « mandate is not subject to re-examinatlon on second appeal;

^^erberg v. Armstrong, 110 Fed. 711, holding insufficient In suit

' '^nJoSn taking of ore plea that defendant liad judgment In i>rlor

''^jI in which defendant denied plaintiff's ownership and also

W7 U. S. 407-447 Notes on U. S. Reports. 831

denied the taking; Union, etc., Bank v. Memphis, 111 Fed. 567, 66C
holding State judgment which by State practice is concluslTe onl;
as to particular taxes inyolyed has same force in Federal coortc
Mercantile Nat Bank v. Hubbard, 105 Fed. 820, 821, holding decre
adjudging that State taxation by refusing to allow deduction o
debts from value of national bank shares is illegal is res adjudicat
as to subsequent years; First Nat Bank v. Covington, 103 Fee
529, 530, holding invalid retroactive provision in Kentucky tax ac
March 21, 1000; Biern v. Ray, 49 W. Va. 135, 38 S. B. 532. holdin
dismissal of suit to cancel deed to certain land for fraud is not re
judicata in suit to enforce judgment lien against other land.

Distinguished in Mercantile Nat Bank v. Lander, 109 Fed. 2i
holding decree enjoining collection of taxes for one year is not re
judicata as to liability for succeeding year.

Syl. 4 (XII, 985). Shares not exempted with " capital."

Approved in State v. Citizens' Bank, 52 La. Ann. 1091, 27 So. 71J
holding exception of " capital ** of bank is no exception froi
license, taxation.

Syl. 5 (XII, 985). Realty acquired by foreclosure not " capitaL"

Approved hi State v. CiUzens* Bank, 52 La. Ann. 1095, 100«. '
So. 713, holdmg exemption of capital of bank from taxation is .
exemption from occupation license tax.

(XII, 985). Miscellaneous.

Cited in Citizens' Bank v. Parker, 192 U. S. 84, 24 Sup. Ct ^»
holding charter exemption of capital stock of bank includes exe«i
tion from license for carrying on banking business; Los Anip^
City Water Co. v. Los Angeles, 103 Fed. 716, holding suit by w^mi
company to enjoin enforcement of ordinance fixing rates in all«is
contravention of contract involves Federal question.

167 U. S. 407, 408, 42 L. 215, LOUISIANA v. NEW ORLEANa

• XIJ, 985). Miscellaneous.

Citetl in State v. Citizens* Bank, 52 'La. Ann. 1095, 27 So. T^
holding charter exemption of " capital " of bank does not ex«ii»-

It from license tax.

167 U. S. 401V-447, 42 L. 215, HOVEY v. ELLIOTT.

Syl. 1 (XII, 985). Court cannot disregard pleadings because
contempt.

Approved in In re Mayer, 101 Fed. 695, holding fact that biifc--'
rupt is in contempt and has fled the Jurisdiction does not prete^
allowance of attorney's fees out of estate; Younger v. Superl^
Court, I'M Cal. 085, 69 I'ac. 486, holding Judge cannot strike frot^
flies suit in wliich such judge Is joined as claiming interest In proi»»
erty thoiij^h such joinder is in contempt of court; Harley v. M. 0-
V. Co.. 27 Mont. 392, 71 Pac. 4U9, holding rejection of defendanl**
evidence against granting instruction because defendant was in

S3a Notes on U. S. Reports, 167 U. S. 447^67

m

ntempt is denial of due process; State v. Clancy, 24 Mont 3G5,
^^^ Pac. 989, holding Improper to refuse bearing motion to dis-
jsolve preliminary injunction because relator was in contempt wbea
^-» O opportunity to be beard in contempt proceedings was given;
:^3el>b V, County Ct. of Tucker Co., 48 W. Va, 282, 37 S. E, 678, bold-
i^^^S party charged wltb contempt cannot be stayed in motion or
tltioo where object is to rid himself of alleged contempt; dis-
puting opinion in In re Mayer, 108 Fed. Oil. majority holding
inkrnptcy Court may set aside order determloing generally tb<'
oatioD of homestead where bankrupt is in contempt by refusing
*:«* pay trustee money ordered.

distinguished in dissenting opinion In Hebb v. County Court, 49
^^^*. Va. 733» 37 S. E. 678, majority holding court has no right to
^^i^allow filing of petition of party in contempt where object Is to
f^^«3 himself of contempt,

SyL 2 (XII, 98*i), Judgment without service or appearance is

Approved In Warner v. Godfrey. 186 U, S. 377, 46 L. 1208, 22

^^^p, Ct 85C* holding case cannot be remanded to allow amendment

*^ insert new ground where defendant is deprived of right to de-

^^*:mse by fact that record is treated as closed; Mercantile Nat. Bank

3^* Hubbard. 105 Fed. 813, holding void under Kev, Stat. Ohio.

*^ 2808. 2898. an inrrease in valuation of national bank shares

^ thont notice to banii or stockholders of meeting of board of

=* 'Ualiiation; In re Rosser, 101 Fed. 5G7, holding order of referee re-

I ^^^-Irlag bankrupt to turn over money to trustee without notice of

^^^^^nt to make such order or opportunity to oppose It is void;

^^mmore. etc., R. R. Co, v. Reed, 158 Ind. 31, 92 Am, St. Rep, 298,

*^ N. B, 490, holding unconstitutional Burns Rev. Stat.. | 7086.

P**^^ Tiding that railway when sued in Indiana for Injury to pas-

*^^^j*er in anotlier State cannot plead statutes of such other State;

'*^^^*-«eatIng opinion In Hendryx v. Perkins, 114 Fed. 825, majority

^^ Idling nine years* unexplained delay defeats right to bring bill to

^^^^te prior decree for fraud.

^*^ U, 8. 447-i60, 42 L. 231, PARSONS v. CHICAGO, ETC, RY,
' ^>fil, 98G), Miscellaneous.

^^Ited in Ratican v. Terminal R. R, Assn., 114 Fed, 672. holding
^^^rshite commerce act is penal and suit to recover penalty there-
ua^^f U governe(^ by Statute of Limitations for '* action for

^^ U, S. 461^87. 42 L. 236, MERCHANTS', ETC., BANK v.
PEXNSyLVANIA,

%L 1 <XII. 986), State constrnction of State law binds Federal
court

Approved In HIbben v. Smith, 191 U. S. 321, 24 Sup. Ct 90, hold-
VoL 111 — 53

167 U. S. 461-467 Notes on U. S. Reports. 83^

log State decision that owner of abutting prot>erty can compes
assessment board by mandamus to grant hearing binds Federas;
court; People's Nat Bank v. Marye, 191 U. S. 276, 24 Sup. Ct 6S3
following Virginia court in upholding Virginia act 1880, p. 20^
providing for taxation of shares in national and State banks,
affirming 107 Fed. 581; Williams t. Parker, 188 U. S. 502, 23 Sum^
Gt 442, 47 L. 562, upholding Massachusetts act May 23, 18dt^
limiting height of buildings upon certain Boston streets; Rasmussc^
▼. Idaho, 181 U. S. 200, 45 L. 821, 21 Sup. Gt 595, holding Sta'^
decision finding no conflict between State law and State Gonstit:^
tion binds Federal court; Mason v. Missouri, 179 U. S. 334, 45
219, 21 Sup. Gt 128, upholding Nesbit law of Missouri, held vaE^ ,
by State Supreme Gourt, making provision for registration of vot^iM*
in cities which had or might have over 300,000 inhabitan^^
Williams v. Stearns, 126 Fed. 213, holding decision of State ^m
preme Gourt upholding State statute dividing State Supreme Go • -
Into divisions binds Federal court; Provident etc., Assur. Soc.
Hadlcy, 102 Fed. 860, holding insurance policies, approved ^^s
accepted in Massachusetts and premium paid there, are Massac^ 2
setts contracts, governed by State law requiring attachment
application.

Syl. 2 (XII, 987). Inequality of taxation constitutional.

Approved in Travelers' Ins. Co. v. Connecticut 185 V. S. 372^ -•
L. 954, 22 Sup. Gt 676, upholding Connecticut Pub. Acts 1897, clum;
153, providing for assessment of stock held by nonresidents i
domestic corporations at full value without deduction of real esta^'
State V. Smith, 158 Ind. 558, 63 N. E. 30. upholding Acts 1899, p- 4:2
providing for deduction from assessed value of realty the moir
Imaged liKlebtodness thereon not exceeding $700 or one-half wb*
valuation; State v. Hammond Packing Co.. 110 La. 189, 34 Sa S^S
upholding Acts 189S, No. 127, imposing license fee on certain c*
porations doinj; business within State.

Distinguished in Cotting v. Godard, 183 U. S. 110. 46 L. 109.
Sup. Ct 43, holding unconstitutional Kansas act March 3. IS^
limiting charges to be made by one stockyard company witlM^
so limiting ehaiges of other smaller concerns.

Syl. 5 (XII, 987). Statute requiring notice and hearing sufflcie

Approved in Lander v. Mercantile Nat Bank, 186 U. S. 409,
L. V27A, 22 Sup. Ct. 913, holding notice of time and place of
meeting of board of equalization is sufficient notice to banks aff*
by action taken at adjourned meeting.

Distinguished in Monticello Co. v. Baltimore City, 90 Md. 4
Atl. 213. holding unconstitutional Acts 1892. chap. 7(M, re<7
persons having custody of distilled liquors to report same
commissioner whose valuation was tinaL

Notes on U. S. Reports.

187 U. S. 407-512

It'

U-eT U, S. 467-478. 42 L. 230. WARNER T. NEW ORLEANS.

SjL 2 (XII, 987). MuDlcipality Issuing warrants la payment Is

Approved In Vlckery v. Sioox City, KM Fed. 167, holding city Is-
9 xiixiS bonds for street Improvements, under Iowa statutes, is
;;^liarged with duty of collecting aad applying assessmeuts on abut-
tzM^nS land.

CXII* 987). Miscellaneous,

Cited In New Orleans v. Warner, 180 U. S. 203. 45 K 495, 21
^^Tip- Ct, 355, holding new defense cannot be set up by exceptions
-^^^ master's report after merits have been fully determined, affirm-
Xm^S 101 Fed. 1003.

:i.S7 U. S. 479-512, 42 L. 243, INTERSTATE COMMERCE COMMIS-
SION V. CINCINNATI, ETC., RY.
Syl. 1 PlII, 087). Regulating rates legislative, determining rea-
^c>Tiableness Judicial.

Approved in Louisville, etc., N. R. R. Co. v. Brown, 123 Fed.
^^*s holding Florida railroad commissioDp vested with legislative
4 quasi-Judicial powers, is not exempt from interference of Fed-
«il court by Injunction In fixing future rates; Tift v. Southern
^ Co., 123 Fed. 791, 792. 794, hoidiug equity has Jurisdiction to
Injunction against unreasonable rates, but will await de-
a of commission in pending controversy where no irreparable
*^^4urj requires urgency; Western Union Tei. Co. v. Myatt, 98
^^<1. 344, holding unconstitutional Kan. act January 3. 1809, cre-
^"^Bg court of visitation, vesting it with power to fix and enforce
^'^ties; Blue v. Beach, 155 Ind. 133. 56 N. E. 94. upholding Burns'
^^^v. Stat 1804, § 0711, authorizing State board of health to adopt
''"^^w to prevent spread of contagious diseases; Stale v. Johnson,
*^^ Kan, S18, m Pac, 1073, hoidiug unconetltuttonal chapter 2S,
^^^^•« of Kansas, creating court of visitation, vested with power
^^* Hi und enforce rates; State v. Associated Press, 150 Mo. 4G2 (see
*^ S. W. 106), holding courts cannot declare that private corpora-
tion has become so large as to be impressed with public use, such
■J^liag a legislative power,

^yl. 3 (XII, 987). Commerce commission cannot prescribe or
<rti force rates.

•Approved in Southern Pac. Co. v. Colorado Fuel, etc., Co., 101
^^^ 782. 784, holding interstate commerce commission baa no
^^er to fix rates from Pueblo, Colo., to San Francisco.
(Xll, 987j. Miscellaneous.
< tiled in Interstate Com. Comm. v. Southern Pac. Co., 123 Fed,

^» boldtng order of commerce commission based on finding that
fiiiifwid custom of routing certain fruit shipments is unreasonable,
requiring practice to cease. Is lawful order; Southern Pac. Co, v.

9SC^

5t2-^^

T^otes

S.

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oted-l^CU

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Stat.

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' couvt^l^' ;;,, oot«- ^ ^^,^^,> st^-t*^*-

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BOSS

sop-

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Notes on U. S. BeportB. 16T tJ. S. 54S~599

^loj] of property entitling owner to Jury trial under water supply
MM.C't: 1895.

SyL 3 (XII, 989). Incidental benefit and injury considered.
Approved in Terra Haute, etc, B. R. Co. v. Flora. 29 Ind. App.
^^^& 64 N. E. 65(J, sustaining instruction to Jury to assess damages,
1^ C any, that appeliaot migbt have sustained from the taking of his
X>roperty,

Syl. 4 (XIl^ 989). Legislature may assess land beneflted.
I -Approved In Chadwick v. KeUey. 187 U, S. 544, 23 Sup. Ct. 177,

-^T L* 294, upholding State statute and ordinances authorized
ttiereby assessing tbree- fourths of street paving against abutting
Eots on front foot plan; Wight t. Davidson, 181 U. S, ^7S, ctW,
^tSiS^ 45 L. 904, 905, 90G, 21 Sup. Ct. 619, ii20, (j22, upholding act
2Marcb 3, 1899, providing for ai^sessment ui>on abutting and hene*
fite<i lands one-half of damages to land condemned for opening
«>t streets; BYencb v. Barber Asphalt Paving Co.. ISl U. S, 341.
^*5 L.. 889, 21 Sup. Ct. 631, 45 L. S80. 21 Sup. Ct G31, holding appor*
ttonment of entire cost of street iuiprovements upon abutting prop-
«aty according to frontage without hearing as to benehta is valid,
AilirmlDg Barber Asphalt Pa v. Co, v. French. 15S Mo. 54^^ 546,
58 N. W. 937. 938; Hadley v. Dague, 130 Cal. 219, 62 Pac. 504. up-
voiding street improvement net of 1891, authorizing as^sessmeafs
according to frontage; Barfield v. Gleason, 111 Ky. ril2, 517, ^^3
S. W. 008, 9G9, upholding K}\ Stat, $ 2S38, providing for original
^instruction of streets at exclusive cost of abutting owners; Smith
V. Mayor, etc. 182 Mass. 234, tlo N. E. 41, upholding Stat. 1867,
^bap, 106. authorizing city to lay sewers, assessing cost thereof
nn abutting or benefited property in such sum as mayor and cown-
<^V) determined; Webster v. Fargo, 9 N. Dak, 210, 82 N. W. 733,
upholding section 2280, Rev. Codes. 1895, authorizing assessments
^or street paving on abutting property on front foot plan; King
^- Portland. 38 Or. 424, 63 Pac. 8, upholding Sess. Laws 1808, au-
iliorlzlug assessment of one-half of cost of street improvement
witon lota abutting thereon.

l>i«tlagulshed in dissenting opinion in P^rench r. Barber jlsphalt
^^T\n^ Co., 181 U, S, 351, 45 L. 892, 21 Sop, Ct, 635, mujority
Mding apportionment of entire cost of street Improvement against
•Catling lots according to frontage does not deny due process.
Syl fi (XII, 980). Notice and hearing constitutes due process,
approved In United States v. Honoiwly Plantation Co., 122 Fed,
^ liolding Issue of fat't as to value of land in proceedings by
lulled States to condemn same in Hawaii is trlabie by jury;
^t*rk r. Boston. 180 Mass. 205, 02 N. E. 375. upholding Stat 1801>,
' 3, providing thiit persons aggrieved at nssoKsmeut on property
^^J n[yv\y to sttvet coti/mlssiouers for almtemcut of part.

i^lsiiuguished in dlssenfinj: upiniuii in French w Barbpr -\sphalt
fflUag Co., 181 U. S. 358, 3m, 45 L. 81)5, 8Uti, 21 Sup. Ct. Uys, ma-

167 U. S. 599-624 Notes on U. S. Reports. 83SKi^

Jority holding apportionment of entire cost of street ImproTemenl
upon abutting lots according to frontage and without hearing do
not deny due process.

Syl. 8 (XII, 989). Legislature delegating determination of dac
ages.

Approved in Ericlsson v. Cass Co., 11 N. Dak. 505, 507, 92 >
W. 847, 848, upholding section 31, chapter 51. Laws 1895, autho
izing county commissioners to issue bonds to defray expenses
procuring right of way and constructing drain.

Distinguished in Archer v. Board, etc., 128 Fed. 127, holdii
unconstitutional, under Arls. Const, requiring assessment of da~
ages by Jury of twelve, act 1883, providing for assessments
damages by Jury of six.

Syl. 9 (XII, 989). Damages not payable before taking.

Approved in United States v. Dickson, 127 Fed. 775, hold^K. -jig
United States is not subject to payment of costs to landowner oq

dismissal of proceedings to condemn land before acceptance of

such land; Benedict v. New York, 98 Fed. 792, holdlpg time- of

filing map is not time of taking property for purpose of appra. :
ment.

(XII, 988). Miscellaneous.

Cited in Downes v. Bidwell, 182 U. S. 293, 362, 45 L. 1109. 1 :
21 Sup. Ct. 789. holding provisions of Constitution which are
plicable were in force in Porto Rico; dissenting opinion in
man v. New York, 179 U. S. 583, 45 L. 329, 21 Sup. Ct. 223. majc=^==^^'
ity holding city liable by maritime law for Injury caused by c<^^-^
lision with tireboat due to negligence of crew thereof.

167 U. S. 599-C06. 42 L. 292, THE J. P. DONALDSON.

Syl. 1 (XII, 989). Tugmaster must use due care. ^.^^^

Approved in The Temple Emery, 122 Fed. 182, holding tug murt '^^'^
use degree of care reasonably required under circumstances; In re -<i^
Moran, 120 Fed. 564, 560, 567, holding tug not liable for breakin? ^

of hawser due to extraordinary sea and wind; The Kalkaska, luT ^

Fed. 9G2, holdiug tug stranding several miles out of course with-
out having taking soundings, in consequence of which tows were
lost, must show excuse for deviation.

(XII, DS9). Miscellaneous.

Cited in Gentry v. Singleton, 128 Fed. 682, holding employee of
partnership receiving share of profits for services is not a partner.

167 U. S. 00G-G24, 42 L. 296, THE GLIDE.

Syl. 1 (XII, 990). Admiralty exclusively enforces State liens for
repali*s.

Approved In The Robert W. Parsons, 191 U. S. 24, 37, 24 Sup.
Ct. 9. 15, holdiug proceedings In rem to enforce lien for repairs on
vessel navigating Erie canal are within exclusive admiralty juris-

Notes on U. S. Repoi-ta. 107 U. S. 624-^2

€lXctIoQ; Tbo Energia, 124 Fed. 846, holding admiralty will enforct;
p>roTlsioDs of Balliiiger*s Washington Code, &§ 5953, 5954, glTlng
li^D on vessels for nonperformance of charter for carriage to or
f fiiin State ports; The Underwriter, 119 Fed. ToT, holding no lien
^^cLsts for coal obtained by master where charter party provided
Cliat charterer should furnish coal and that master should act
tender his orders; The Robert Dollar, 115 Fed, 224, holding Wash-
ixi^tOD statute making jierson having charge of alteration or repair
of vessel agent of owner to contract debts applies to foreign
ve^ssels; The Falls of Keltlea, 114 Fed. 3oS. holding Admiralty Court
oa^unot refuse jurisdiction of suit by American citizen against
British ship under shipping articles; The John S. Parsous, 110 Fed.
lf(^, holding no lien can be enforced in rem in admiralty for repairs
&xid necessaries unless given by local statute; The Iris, 100 P^ed.
10a» lOe, 111, 112, 113, holding under Pub. Stat. Mass. giving
lien on vessel for labor or repairs understanding that credit was
given to vessel is unnecessary.

Distinguished in dissenting opinion in The Robert W. Parsons,
191 U. a. 54. 24 Sup. Ct 21, majority holding admiralty has exclusive
Jurisdiction of proceedings In rem to enforce lien for repairs fur-
nished vessel navigating Erie canal; Knapp. Stout & Co. v.
McCttfTrey, 177 U. S. 642, 44 L. 924, 20 Sup. Ct. 826, holding bill
to enforce lien for towage by foreclosing lien on raft of lumber Is
suit In personam to enforce common -law remedy which may bo
brought in State court; Olsen v. Birch. 133 Cal. 484, 65 Pac. 1033,
holdiug action against owner for services rendered oa vessel In
which owner Is personally served and personal judgment demanded
)s suit in personam.

1^ V. 8. (S4-632, 42 L, 302, PECK v. HENRICH.

SyL 1 iXlI, mi}). Affirmance must rest on ground presented,

A|>provea in United Stales v. Gentry, IIU Fed. 76, holding pre-

»u million is that error was prejudicial and it cannot be disregarded

yt*!^** shown to be nonprejudicial; Currier v. Dartmouth College,

^1"* Fed. 47, holding on writ of error defendant may support

verdict directed for him upon any ground presented In motion for

!iit*^ctlon regardless of grounds of court; Choctaw, O, & G. R, R. Co.

^* Holloway, 114 Fed. 465» holding erroneous instruction tliat master

v^»» bound to furnish reasonably safe appliances and place to worii,

^^^^ reasonable care In furnishing such is BUtHcient; dissenting

opinlou tu Chicago House Wrecking Co. v, Birney. 117 Fed. 81,

Bisjority sustaining as a whole charge as to measure of damage

hy pIulntifT permanently injured in service of wrecking company;

diajtenting opinion In Choctaw, etc, R. R. Co. v. Tennessee, 116

Fed. SO, majority sustaining instruction that master should fur-

alih reasonably safe appliances where court also subsequently

properly qualified such instruction; dissenting opinion in llvw v.

Warteu, etc, Co,, 118 Wis, C^ 94 N. W. 792, majority sustaining

167 U. S. 633-659 Notes on U. S. Reports. 84^ =

instruction as to loss of profits wliich was correct in the abstrac^i
where no qualification thereof was requested.

Syl. 3 (XII, 990). Champertous trust deed void.
Approved in Casserleigh v. Wood, 119 Fed. 314, holding equl^^
will not enforce agreement to furnish evidence to establish defen
ant's interest as heir and to pay all cost in consideration of
thirds of property recovered. See 83 Am. St Rep. 170, note.

Distinguished in Boyle v. Boyle, 116 Fed. 764, holding agreem^^
for contingent fee gives no equitable lien upon land subject
such agreement; Muller v. Kelly, 116 Fed. 546, upholding attome^sE
contract for contingent fee where not champertous and where cliM» ^
agreed to pay costs, and did pay same.

167 U. S. 633-646, 42 L. 306, INTERSTATE COMMERCE COMMIT
SION V. DETROIT, ETC., RY. CO.
Syl. 1 (XII, 990). Commerce act contemplates transportat^^
by rail.

Approved in New Yorli v. Knight, 192 U. S. 28, 24 Sup. Ct. '^i^
sustaining imposition of franchise tax under New York laws " M "
independent cab service maintained by Pennsylvania railroad
New Yorli terminal, affirming 171 N. Y. 360. 64 N. E. 154; StatiB'
Atchison, etc., Ry., 176 Mo. 715, 75 S. W. 781, holding quo warra.!:^
will not lie to prevent railroads from imposing reconsignnifcefi^'
charge for delivery of cars upon switch designated by consignee

1G7 U. S. 646-659, 42 L. 310, SHAPLEIGH v. SAN ANGELO.

Syl. 1 (XII, 990). Municipality's corporation not collateraaj^^
attacliable.

Approved in Tulare Irrigation Dist. v. Shepard, 185 U. S. 13, 15.
40 L. 779, 780, 22 Sup. Ct 536, holding defective organizaUon of
irrigation district under California irrigation act 1887 cannot be
set up to defeat bonds thereof held by bona fide purchasers.

Distinguished in Gastonia Cotton Mfg. Co. v. Wells Co., 128 Fed.
374, holding corporation which never fulfilled charter requiremeots
of subscribing and paying in $2,000 acquired no legal existence to
enable it to sue as citizen of chartering State.

Syl. 3 (XII, 990). Reorganization does not avoid prior contract*.

Approved in Miller v. Ferris Irr. Dlst, 99 Fed. 150, holding judg-
ment of ouster against irrigation district for irregularities in orgaiii-
zation does not affect bonds issued previous thereto; Uanken v.
McCallum, 25 Tex. Civ. 86, 87, GO S. W. 976, 977. holding municipal
corporation succeeding another which was abolished by judicial
decree and embracing same 'territory is liable on drainage bonds
issued by predecessor; (iilkney v. How, 105 Wis. 47, 81 X. W. 123.
holding: towns from which territory was talien for new town which
issnod taxes before it was declared illegally organized are liable
for orders issued by such town.

»^1

Notes on U,

eports.

s. i3uCM;as

Xer U. S. 659-6^. 42 L. 315, ST. JOSEPH, ETC., R. R. v. STUTK

SyL 2 (X1I» 991). Allegation must be of real Federal question.

Approved in Bankers', etc., Co. y. Minnesota, etc.» Ry., 192 U. S.

|3jS4, 24 8up, Ct. 329, holding suit based oo general law against

r^ailroad for Joss of mall package does not arise under Federal law

»4» as to deprive Circuit Court of Appeals* decision of tlnality;

*»awycr v. Piper, 1S9 TJ. S. 157» 23 Sup. Ct (134. 47 L. 759. holding

f<iipreme Court has no jurisdietlon of writ of error to State court

%v liere elatm was made that Federal right would be denied unless

pjtjpplcmentary answer were allowed; New Orlenas Water- Works Co.

V. Louisiana, 1S5 U. S, 345, 46 L, 1*41, 22 Sup. CL eiM, holding no

I^e^eral question is Involved in forfeiture of corporation charter

l>jr decree of State court in quo warranto proceedings.

Distinguished In Swafford v. Templeton, 185 U. S. 403, 4t] U IDC^S,
12:1 Sup, Ct 78U, holding action for damages against State election
cifiicers for preventing plaintiff from v-oting at congressionai elec-
dou Involves Inherently Federal question.

Sri. 3 (XII, O&l). Railroad operating In several States not citizen
of eacli.

Approved In dissenting oplulou in Calvert v. Railway Co., tM B. C.
IDTk 41 S. E. 9«J9. majority holding Virginia corporation becoming
tl Of nestle in Sooth Carolina remains nonresident of latter State for
F'eaeral jurisdiction. See 85 Am, St Rep. 919, note.

1»7 U. S. 604-673. Not cited.

ICrr U. S, C73-€S1, 42 L. 320. HEDRICK v. ATCHISON, ETC., R, R.

SyL 1 ^XII, 1)01). State court's findings conclude Supreme Court.

Approved in Jenkins v, Neff, 186 U. S. 235. 4t> L. 1142, 22 Sup. Ct

*^iT. holding State courrs findings of fact are conclusive upon

^t:f>reme Court on writ of error; Bement v. National Harrow Co.,

^*^» V, S, S3, 4tS L. llKiiJ, 22 Sup. Ct 752. holdlog Supreme Court is

i-^'atiil by findings of fact made In State court in suit In efiulty as

'^*n as in action at law; Western Union Tel, Co. v. Call Publishing

' *^-' 181 U. S. 1<>3, 45 L, 771, 21 Sup. Ct, otJo. holding questions of

'^"^ settled in State courts are not reviewable in Supreuie Court;

*-J*»^diK»r V. Bonestell, ISO U. S. 370, 45 L. 577, 21 Sup. Ct 4id. hold-

^^S 'lett^rmlnaUou of land de|iartment against claim that land lies

vviUikn ^bkjclcan grant and that plaint Iff was bona tide purchaser

^ <^ndu8lve.

^}l 2 (Xn, mi). Entrj- against wrong range not fatal.

^J'proved In Cosmos Exploration Co. v. Gray Eagle Oil Co., 112

Fed. 11, holding right to patent once veste<l in treated by goverii-

suent lu equlvaJent to patent issued, and patent when issued relates

lacit.

U, S, G81-6&& Not cited.

167 U. S. G88-744 Notes on U. S. Heports.

167 U. S. 688-703, 42 L. 326, MacGRBAL t. TAYLOR.

Syl. 1 (XII, 992). Infant disaffirming need not return wast
consideration.

Approved in Bullock v. Sprowls, 93 Tex. 193, 54 S. W. 663, bolC^ ^^^ \^,
Ing infant on disaffirming liis deed need not return consideratio — ^-^ _joi,
received where such has been squandered.

Syl. 3 (XII, 992). Infant disclaiming cannot retain fruits c^ of

contract.

Approved In United States Inv. Corp. v. Ulrickson, 84 Minn.
86 N. W. 616. holding infant disclaiming contract to satisfy moc
gages on land conveyed to him by his father cannot retain
land freed from mortgage.

167 U. S. 703-722, 42 L. 333. MENOTTI v. DILLON.

Syl. 1 (XII, 992). Railroad grant attaches on definite location. ^ ^

Approved in Nelson v. Northern Pac. Ry. Ck)., 188 U. 8. 118, 23 ^^^ ^
Sup. Ct 305, 47 L. 410, holding settler in good faith on land within -9^^^
exterior limits of grant to railroad, after withdrawal order but '^^'^

before definite location, will be protected; United States t. Oregon, ^ \fS^

etc.. R. R. Co., 176 U. S. 43, 46, 44 L. 364, 366, 20 Sup. Ct 268, ^^ \^

267. holding Northern Pacific grant of 1864 was in nature of float ^ ^^^

and attached to no lands appropriated before filing map of definite ^^

locaUon; Northern Pac. R. R. Co. v. Soderberg, 104 Fed. 429, hold- ^\

ing term "" mineral land " in act 1S64, excepting such lands ftom ^^^

grant, was subject to enlargement before definite location to In-
clude granite lands. L^

Syl. 4 (XII, 992). Withdrawal order cannot affect con^ressionsl
control.

Approved in dissenting opinion in Nelson t. Northern Pac By.
Co.. 188 U. S. 143. 151. 23 Sup. Ct 315, 318, 47 L. 420, 423, ma-
jority holding bona fide settler on indemnity lands of railroad
grant of 1864. after withdrawal order but before definite location,
will be protected, and reversing Northern Pac. By. v. Nelson, 22
Wash. 532, 61 Pac. TOT. holding withdrawal of public lands In-
iluiicd in oxtorior limits of railroad grant was withdrawal ftom
homostoad claims.

lOT U. S. T2;;-T44, 42 L. 340, DeGUYER v. BANNING.

Syl. 3 (XII, 992). Patent is conclusive on government and
olaimaiit.

Approved in United States v. Peralta, 99 Fed. 630, holdlnf pat-
ent oovorin;; Spanish and Mexican grant is conclusive of locmtlOQ
of land cvnored thereby: Brown v. Parker, 127 Mich. 303, 86 N.
\V. IKK), hol.lin;; Federal survey bounding swampy land adjacent
to Lake Krie l\v meander line Is conclusive that such land Is not
part of lake bed.

8^a

Notes OQ U. S. Reports.

108 U. S. 1-08

3L€57 0. S. 745, 42 L. 1209, MERRITT v. BOWDOIN COLLEGE.

(XII, 902). Mlscellaiieous.

Cited in Blythe Co. v* Hinckley, 111 Fed. 838. and Reed v. Stan*
I^3r, 9T Fed. 522, 524, 525, Ijoth lioldiug bill of review must be
JXl^ witliin time allowed for appeal.

CLXVIII UNITED STATES.

I

168 U. S. 1-Oe, 42 U 355. SOUTHERN PAC. R. R. v. UNITED
STATES.
Syl. 1 (XII, 993). Question adjudicated binds parties and privies.
-Approved In Deposit Bank v. Frankfort 191 U. S, 514, 24 Sup.
Ci;t_ 155. holding Federal decree enjoining collection of t.*Lses rest-
Ixig on effect of inferior State court decision as res Judicata is
l>lnc3ing, altliough State Supreme Court ciaanges State rule; Baker
^- Cmnmlngs, 181 U. S. 124, 45 L. 7S0, 21 Sup. Ct 581, holding
^^neral dismissal on merits of bill for accounting prevents use
o^ such bill as set-off in action at law between same parties;
^^iltchell V. First Nat Bank, ISO U. S. 480, 45 L. «)31, 21 Sup. Ct
"^^^l, holding denial by Stnte court of bank's ciatm against insolvent's
^atate precludes bank from proceeding in Federal court on same
<?laltii; Werlein v. New Orleans, 177 U. S. 390. 397, 44 L. 820, 20
Sup. Ct *J85, holding claim that land held by city for public use
^^t*noi be sold on execution Is defeated by deirlsion refusing to
^ajolu sale on ground of illegality: Penfleld v. Potts. 12<5 Fed. 480,
^''Idlng defendants ia several infringement suits touching same
I'^tont stipulating with plaintiff for trial of test case are with
V^lmiff concluded by Judgment therein; United States v. South-
^f^ &ac. R. R, Co., 117 Fed. 551, 552, holding mortgagees of South-
ern PacitSc company liave oo greater rights than railroad which
took no title to land within grant to Atlantic and Pacific company
.of lSf56: EstlH Co. v, Embry, 112 Fed. 884, SST*. holding Judgment
nimalatng validity of railroad construclion bonds in suit by plain-
tiff's assignor is conclusive as to plaintiff's rights; Dady v. Geors^ia,
^t^ Ry., 112 Fed. 842, holding Federal court will not grant pre-
linjlnary Injunction where court of concurrent Jurisdiction has
full charge of controversy; Union, etc., Bank v. Memphis, 111 Fed,
:>*jS. holding State Judgment exempting bank from taxation which
by State practice is res Judicata only as to taxes involved has
^mp effect In Federal courts; Gorham v. Broad River Tp., 100
ytoL 770, holding Judgment that township bonds were Illegal and

%

1G8 U. S. 1-66 Notes on U. S. Heports. S^ ^

void bars purchaser of such bonds in pririty with plaintiff In su^,^^^
action from suing on coupons; Stewart v. Village of Ashtabug^ .■, .,
107 Fed. 8C4, holding decision dismissing petition to enjoin ci,^=:^»— ^
from preventing restoration of tracks and denying relief is cc::^ -^ ^
elusive as to plaintifTs right to damages for removal; Norton ^i
House of Mercy, 101 Fed. 385, holding Kentucky decision tttl' ^ Mh
New York charitable corporation could not take under Kentuc
will estops latter from suing in other States on questions decid
United States v. Southern Pac. R. R. Co.. 98 Fed. 32. 38.
holding Atlantic and Pacific railroad took title to grant, un
act 1866, by filing map of definite location and forfeited same
1886. heuce Southern Pacific acquired no title; In re Skinner.
Fed. 191, holding State court's Judgment finding conveyance f=
husband to wife was in fraud of creditors is binding on bi m
rupt's petition for discharge; Green v. Thornton. 130 Ca). 485 .^^
Pbc. 751. holding Judgment in ejectment that plaintiff has no -M^J'^^^
is res adjudlcata in action by his successor against same def^^^^^^*''
ant to quiet title; San Jos^, etc.. Co. v. San Jo86 Ranch Co.. ^ ^
Cal. 678, 62 Pac. 271. holding Southern Pacific company Toir^^t^
nothing by grant in 1871 of lands Included in grant to Atlant^^^e»
and Pacific road in 1866; Garden City v. Bank. 05 Kan. 348. (^^^^^
Pac. 326, 93 Am. St. Rep. 286, holding final Judgment for plalntl^ ^^"^
in suit in coupons of bonds is res Judicata in subsequent suit o^^^L^'
other coupons of same bonds; Lowenthal & Meyers v. Baca. 10 ~1^
N. Mex. 361. 62 Pac. 983, holding Judgment in replevin is bar ^
to action of trespass for taking of same property; Hanrick Va ^^i
Gurley, 93 Tex. 480, 55 S. W. 330, holding Judgment denying right ^i
to recover land on ground that plaintiff was not entitled to in- ^

herlt bars plaintiff in suit for other land claimed by Inheritance; ^

Biorn V. Ray. 41) W. Va. 135, 38 S. E. 533. holding decree dismissing ^

bill to set aside deed to one tract of land cannot be pleaded as
res judicata In suit to subject another tract to satisfy prior Judg-
ment.

Distinguished in Southern P. R. R. Co. v. United States. 183 U.
S. 521. 528. 46 L. 309. 312. 22 Sup. Ct. 155, 158. 160. holding de-
cision that railroad took no title to lands in coufilcting place lim-
its of ^rant to it, and prior grant to another does not bar claim
to other lands; Ingram v. In^xram, 75 Vt. 394, 56 Atl. 5. holding
in suit by wife for support a finding In prior divorce auit by bos-
band that wife was not guilty of willful desertion was ImmateriaL
Syl. 2 (XII. 993). ** Designated *' line means "definitely located.-
Approved in Werling v. lujrersoll, 181 U. S. 138. 45 L. 786, 21
Sup. Ct. 573, holdinjx act 1S22 giving use. for canal purposes only.
of nluoty-foot strip on condition that map and survey be made
witliln three years, otherwise to revert, constituted no grant; United
States V. Oreiri>n. etc.. R. R. Co.. 176 U. S. 43, 44 L. 3W, 20 Sop.
Ct. 2<ii>. holding; grant of 1864 to Northern Pacific was in natore

/

S^5

Notes on tJ. S. Heports.

16S IT. S, GG^-Sa

o^T" ** float" tintll definite location of route; United States v. SoutL-

rt&m Pac. R* R. Co., 9S Fed. 33, 35, 36, 37» bolding Atlantic and Vii-

feiiio companj on filing map In 1ST2 acquired title to lands witldn

^:x-]ilYt of 1868v exclusive of Southern Pacific, and forfeited same

pKo United States by act 18S6; Wilson v. Southern Pac. R. R. Co.,

a35 Cal. 426, 07 Pac, «90p holding where applications for patents,

laoder grant of 1871, had been approved compauy was not negU-

^^nt In not applying for patents under act IBM.

Syh 5 (Xll, 2^u Judgment concludee matters actually decided.
-Approved in Gunnison v. Chicago, etc.. Ry. Co., 117 Fed. G4.S,
lioldlng mortgagee cannot after thirty years* delay maintain suit
j^lg^ainst railroad to foreclose same: -^tna Life las. Co. v. Board
of Comrs., 117 Fed, SS, holding former Judgment based on general
-d tiding is conclusive in subsequent action on difl'erent cause wliere
sanBe defenses are interposed; In re Lemmon, etc., Co., 112 Fed,
i299. holding order of Banliruptcy Court dismissing trustee's pcti-
^tioa l8 conclusive on proposition that property was not that of
iMmkrupt until reversed; United States v. Eisenbeis, 112 Fed. IJKi,
liQldlng final judgment of State court when offered in evidence in
Federal court cannot be questioned as to errors not affecting juris-
diction; Bresaahan v. Tripp, etc., Co,, 99 Fed, 2S3, holding de-
ten dnnts on rehearing in suit for infringement of patent must
slio^ newly discovered evidence sufficiently clear to overcome prior
decrfjiton.
Sjrl. 7 (XII, 994), Party not appealing cannot reverse decree,
^^pproved in United States v. Southeru Pac. R. R, Co., 08 Fed.
^ -47, holding purchasers from railroad company in good faith
stt<l believing tbey would obtain title are protected by act March

CX:u, 903). Miscellaneous.

^^ited in Sotithera Pac, R, It. v. United States, 189 U. S, 452, 23 Sup,

Cl^ iifJ9. 47 L. jjoo, holding land within twenty-mile limits of grant to

Texas Paelfis was excepted from grant to Southern Pacific, and after

fortelture by former cannot be claimed by latter as indemnity land;

Hanritk y^ Gurley, 93 Tex. 479, 55 S. W. 120, granting rehearing

f^** further argument on question whether prior judgment as to

^?^U of Inheritance precludes consideration of such question fn

tt^otbpr suit between same parties,

l'5StJ, 8. GG-SO, 42 L. 383, BERGERE v. UNITED STATES.

8yi. 2 (XII, 994). Alcalde's report delivering possession must
?»<? Approved,

Approved in United States v. Elder, 177 U, S. 121, 44 L. C97,
20 Sup. Ct 543, holding prefect and Justice of peace had no power
to grant land, and where not ratified by governor their acta were
r^d»

168 U. S. 86^89 Notes on U. S. Reports. 816

(XII, 994). Miscellaneous.

Cited in United States v. Pendell, 185 U. S. 197, 46 1m 870, 22
Sup. Ct. 627, holding Supreme Court will not review decision
of Court of Private Land Claims as to sufficiency of possession
under Spanish land grant.

168 U. S. 86-89, 42 L. 390. ALASKA MIN. CO. v. WHELAN.

Syl. 1 (XII, 994). Foreman is fellow servant of workmen.

Approved in Fournier v. Pike, 128 Fed. 994, 990, holding fore-
man in construction of building, allowing men to do work In danger-
ous manner, is fellow servant; Pennsylvania Co. v. Fishack, 123 Fed.
471, holding yardmaster in charge of switchyards, but subordi-
nate to general yardmaster, is fellow servant of switching crew;
Davis V. Trade Dollar Consol. Min. Co., 117 Fed. 123, holding
foreman of shift gang is fellow servant of members of alternat-
ing shifts; M'Donald v. Buckley, 109 Fed. 294, holding foreman
with power to hire and dischargiB is, while directing fall of pile-
driver hammer, a fellow servant of members of pile-driver gang;
Lochbaum v. Oregon Ry. & Nav. Ck)., 104 Fed. 854, holding sec-
tion foreman with power to hire and discharge, but under super-
intendence of division roadmaster, is fellow servant of members
of section gang; Stevens v. Chamberlin, 100 Fed. 381, holding ma-
chinist in woolen mill making repairs when directed by superin-
tendent, and employee called by machinist to assist him, are fel-
low servants; Brlegal v. Southern Pac. Co., 98 Fed. 9(52, holding
engineer and fireman oiling turntable at engineer's orders are fel-
low servants; The Picqua, 97 Fed. 651, holding longshoreraan and
foreman of stevedores are fellow servants; Slavens v. Northern
Pacific R. R. Co., 97 Fed. 2C2, holding conductor of delayt^d train
and section men clearing obstruction from track under his dinn?-
tions are fellow servants; Thomas v. Cincinnati, etc., Ry. Co., 07
Fed. 249, holding railroad yardmaster directing trains. omi>ow-
ered to hire and discharge, but subject to orders of superintendent.
is fellow servant of switch-gang foreman; New Omaha, etc., Co.
V. Baldwin, 62 Nebr. 189, 87 N. W. 31, holding foreman having
control of branch of electric-lighting company's work is fellow
servant of lineman; Deserant v. Cerillos, etc., R. R.. 9 N. Mex.
500, 55 Pac. 201, holding pit boss in mine, working under general
superintendent. Is fellow servant of other employees; McVey v.
St. Clair Co., 49 W. Va. 425, 38 S. E. G53, holding foreman operat-
ing electric mining machine and coal loader called to assist him
are fellow servants; Wlskie v. Montello, etc., Co., Ill Wis. 451.
87 N. W. 404, holding foreman conducting blasting in granite quarry
is fellow servant of employees assisting. See 75 Am. St Rep. 587,
note.

Distinguished in Memphis, etc., Newport Packet Co. v. Hill, 122
Fed. 247. holding deck hand on steamer selected by officer in com-
mand to act as captain of watch is, while so acting, an officer of

«T

Notes on U, S. Reports.

168 U, S. 90^124

''esseir Alaska United Gold Min. Co. v. Muset, 114 Fed. 70, holding
^iiie foreman, hiring and dlscbarging men, and directing all their
*^J>efation is a Tice-principal; dissenting opinion In McLaine v,
&^ad & Dowst Co., 71 N. H, 308, 52 AU. 552, majority holding fore-
**ian'8 failure to warn workman In ditch of dumping of rock and
^^^lili therein is not breach of maater^s duty to furnish safe place.

^^« D. S. 90-95, 42 L, 302. TURNER v. NEW YORK.

^jl 1 {XII, 994). Legislature may shorten Statute of Limltationa.

I -filpproved in Wilson v. Iseminger, 185 U. S. 63, 40 L. 808. 22 Sup,

C^t^ 57g^ upholding Pennsylvania act lSo5, g 7, creating presumption

^^ release of unacknowledged ground rent after twenty-oue yeara

nonpayment; Saranac Land, etc., Co. v. Comptroller of X. Y., ITT

^- S. 322, 323, 326, 330, U L. 789, 791, 792. 20 Sup. Ct. 044, iUl, hold-

^^S N. Y. Laws 1885, chap. 448, prescribing two-years limitation is

'^^^.tute of Limitations and Irregularities in tax sale canuot there-

a^tr^r be questioned, atfirralng 83 Fed. 430; Tyler v. Court of llegis-

tr».tlon, 175 Mass, 74, 55 N. E. 813, upholding registration act 18iJS,

for cutting off adverse jnter-e.sts requiring application for registi-a-

tlori to set lorth all other otitstandiug Interests; Meigs v. Roberti*,

i02 N. Y. 378. 76 Am. St. Rep. :i2rj, 56 N. E. 840. upholdiDg Laws

■iSSot chap. 448, making comptroller's tax deed after lapse of two

^'^ajB from record conclusive evidence of regularity.

^^SS U, S. 95-103, 42 L. 394, UNITED STATES v. GOLDENBERG.

Sjrl. 2 (XH, 995). Judicial addition to statutory language
I -^J^^aj) roper.

^ -Approved in Plummer v. United States, 110 Fed, 1022, reaffirming

**^^e; Ptrie t. Chicago Title & Trust Co., 182 U. S. 452, 45 L. 1179,

^^ Slip. Ct. 912, holding under section 57g. bankruptcy act 18D8,

^^^e^Uitor receiving a preference must Kurroudcr same before he Is

entitled to make claim against estate; Motiltt v. United States, 128

^<><1, 380. holding Immigration laws (act March 3, 1801), providing

^^^Ishinent for violation Is highly penal and are strictly construed.

^^**8 V. S, 104-124, 42 L. 308, CO.MPAGNIA DE NAVIGATION LA
VLICHA 7. BRANKR.
^y\. 1 (XII, 995;. Charter party exemptions construed against

^M)roved in Knott v. Botany Worsted Mills. 179 U. S. 71, 45 L. 93,

^ ^^[i. Ct. 31, holding vessel is liable under section 1 of Harter act

I88(3,for damage to cargo of wool occasioned by drainage from sugar

0<^twlthgtaDding stipulations; Gardner v. Southern R, U., 127 N, C.

29J, 37 S. E, 329, holding carrier must show that agreement as to

rfJae of article shipped was reasonable and for valuable con-

j(i*ieratlou: Hlnkle v. Southern Ry.. I2fi N. C. 03SK 78 Am. St, Rep.

0St, 30 S» E, 350. holding where cattle are delivered In dautaged

cffUditiim after unreasonable delay, carrier bears burden of bring-

168 U. S. 124-135 Notes on U. S. Reports.

iug Injury within exception of contract See notes, 88 Am. St Rep.
97, 119, 129.

Syl. 5 (XII, 995). Concurrent decisions on facts followed. »^^

Approved in Illinois v. Illinois C. R. R. Co,, 184 U. S. 08. 46 L. ^^

449, 22 Sup. Ct 308, following finding of Circuit Court and of -JO

Circuit Court of Appeals that piers and docl^s in question do not ^l

extend beyond point of practicable navigation; Jacobson v. Lewis
Klondilie, etc., Co., 112 Fed. 78, following admiralty rule that deci-
sion of lower court based on conflicting testimony will not be re-
versed unless clearly against evidence; Whitney v. Olsen, 108 Fed.
296, holding on appeal in admiralty decision of District Court on
questions of fact upon contradictory evidence will not be reverse<l
unless clearly against evidence.

Syl. G (XII, 995). " At owners risk " does not excuse negligence.

Approved in Washburn-Crosby Co. v. William Johnston Co^ 123
Fed. 274, holding shipper to recover for loss by fire under bill of
lading exempting carrier from nonnegllgent loss by fire must show
negligence; Cunard SS. Co. v. Kelley, 115 Fed. 686, holding general
clause in bill of lading exempting shipowner from liability for loss
on quay does not exempt from negligence and is valid.

(XII, 995). Miscellaneous.

Cited in The New England, 110 Fed. 417, holding proTlslon of ^

English steamship company's ticket issued to American that ^

English law should govern Is ineffectual to validate exemption ^^

clause.

108 U. S. 124-131, 42 L. 407, CRAEMER v. WASHINGTON.

Syl. 1 (XII, 996). Habeas corpus petition must include pro-

ceedings attached.

Approved in Nordstrom v. Van De Vanter, 181 U. S. 616, 45 L.

1029, 21 Sup. Ct. 923, reafllrming rule; Terlinden v. Ames, 184 U. ». —

279, 40 L. 541, 22 Sup. Ct. 488, holding petiUouer desiring to claim &

that depositions show no indictable offense must set them ont; ^

Storl V. Massachusetts, 183 U. S. 141, 46 L. 123, 22 Sup. Ct. 73.
holding writ of habeas corpus will not be granted to review lawful-
ness of governor's respite or sufficiency of indictment.

108 U. S. 131-135, 42 L. 409, MILLER v. CORNWALL R. R,

Syl. 3 (XII, 990). Question raised on motion for rehearing
Insufficient.

Approved In Lufkln v. Lufkin, 192 U. S. 601, 24 Sup. Ct &40,
reaffirming rule; Layton v. Missouri, 187 U. S. 358, 23 Sup. Ct. 128,
47 L. 215. holding objection raised in State court that State statute
is unconstitutional and void relates only to State Constitution:
Jacob! V. Alabama, 187 U. S. 135, 23 Sup. Ct 48, 47 L. 107. holding
claim that evidence was admitted without presence of witness vio-
lating Fourteenth Amendment first raised by error to State Supreme

Notes on U. S. Reports. 16S U. S. 135-lT?

*^o«rt bat not considered, cannot confer Federal jurisdiction; New

J'ort etc., R, R. Co. v. New York. 186 tJ, S, 273, 4^ L. 1160. 22 Sup.

Ot. 917, holding writ of error nni8t he dismissed where record slxow«

^o FederaJ question; Ch:ipiu v. Fye, 179 U, S. 130, 45 L. 121. 21

Sup. Ct 72, holding insumcient onder Rev, Stat» § 7l>n, statement

in assignment of errors that State court disregarded portion of brief

t::r*«atlng of constitutional question; Cincinnati, etc., Uy. Co, v,

^l^lilebaud. 177 U. S. <320. 44 L, 913, 20 Sup. Ct. 824. dlsmlsslOR writ

o^ error where certificate shows that no constitutional question was

z"^i.ised below* but that it first appeared in assignment of errors;

:^3:«nkel V. Cincinnati, 177 U. S. 171, 44 L. 721. 20 Sup. Ct. 573, hold-

J.x^^ certificate of State chief justice as to decision on constitutional

lestlon cannot confer Jurisdiction.

X«8 U. S, 135-144, 42 L. 411, FLETCHER v. BALTIMORE, ETC.,
R R.

SyL I (XII, 99(>). Due care required toward property near track,

-Approved in Lesser Cotton Co, v, St, Louis, etc*, Ry, Co., 114 Fed,
X^O, sustaining charge that jury must find that defendant set fire,
a.n€l was negligeot. else plaintiff could not recover, and that on
•faowiag of negligence burden shifted.

<:SII. 99G). Miscellaneous.

C::ited hi Dishon v. Cincinnati, etc,, Ry., 126 Fed, 201, 202, hold-
tog" T^'bere section hand living In section-house near track was killed
W xiegligence of trainmen while crossing track after hours, com-
pan/j la not liable,

IfiS TI. S, 144-177, 42 L. 414, INTERSTATE COMMERCE COM-
MISSION V. ALABAMA, ETC., RY.
^yl 1 rXII, 9&7), Commission cannot prescribe future rates.
"^ Improved fn Southern Pac, Co, v, Colorado Fuel, etc, Co,. 101
^*^^» 782, 784, holding interstate commerce commission has no
P*'^^^"«r to prescribe rate from Pueblo, Colorado, to Pacific coasts
Sia^H^T-, Johnson, 61 Kan, 818, 60 Pac, 1073, holding unconstitutional
l^^-^Mas act 1896, chap, 28, creating court of visitation with power to
^^ ^nd enforce rates.
^^l 2 (XII, 997), Existence of rival line material.
^Dproved In East Tennessee, etc., R. R, Co, v. Interstate Com-
t^^'ti^ Com., 181 U, S. 12, 14, 15. 21, 45 L, 723, 724, 726, 21 Sup. Ct-
S*^. 521, 523, holding competition of carriers also subject to act
10 tfpfijiate commerce may produce dissimilarity of circumstances
e&a1}|iQg carrier to take such competition into consideration.

^•}i 3 (XII, 997), Competition justifying long and short-haul

^

.Ipproved in Interstate Commerce Com. v. Cincinnati, P» & Y. R.
ro 124 Fed. 628. holding conditions of competition at Norfolk
Vol. m — 54

168 U. S. 177-224 Notes on U. S. Reports. 850

and Richmond warrant lower rate to Mississippi valley points than
from Wilmington, North Carolina; Interstate Commerce Com. y.
Southern Ry. Co., 105 Fed. 710, holding competition is a mast
obvious and effective circumstance which malies circumstances of
long and short hauls dissimilar; East Tenn., etc., Ry. Co. v. Inter-
state, etc., Com., 99 Fed. 61, holding competition at a more distant
point cannot furnish dissimilarity of circumstances warranting
higher rates to intermediate point where competition is stilled by
agreements.

Syl. 5 (XII, 998). Circuit Court may examine evidence of dis-
crimination.

Approved in Interstate Commerce Commission v. Southern Pac.
Co., 123 Fed. 601, holding suit in Federal court to enforce com-
mission's order is proceeding de novo.

(XII, 997). Miscellaneous.

Cited in Interstate Commerce Com. v. Clyde Steamship Co., 181
U. S. 32, 45 L. 731, 21 Sup. Ct. 513, holding where commerce com-
mission through error of law have failed to investigate facts, coui-ts
will not independently investigate f^cts but will dismiss without
prejudice.

168 U. S. 177-197, 42 L. 426. CHAVES V. UNITED STATES.
SyU 1 (XII, 998). Confirmation of grant refused where eTidence

wauling.

Approved in United States v. Eider, 177 U. S. 118, 44 L. 695, 20
Sup. Ct. 542, holding conveyance by governor and public record of
grant was necessary to vest applicant under regulation of 1828

with fee.

1G8 U. S. 198-207. Not cited.

108 U. S. 208-218, 42 L. 438, CRISPIN v. UNITED STATES.

Syi. 2 (Xll, 998). Prefects could not grant public land.

Approved in Mitchell v. Furman, 180 U. S. 432, 45 L. 610, 21 Sup.
Ct. 4-11. holdiuff authority of Spanish officer to make conveyance
of public laud not presumed from fact of conveyance; United States
V. Khlor. 177 U. S. 121, 44 L. t>97, 20 Sup. Ct. 543, holding prefwt
and justice of peace in 1845 had no power to grant title to public
lands.

Syl. 3 (XII, 998). No title by prescription before cession.

Distiiijruished in Sena v. United States, 189 U. S. 240, 23 Sup. Ct.
598, 47 L. 791, holding abandonment of Spanish grant nine years
before Mexican treaty of 1848, withoiU: resumption of possession or
assertion of title for fifty years after treaty, bars eondrmation.

IGS U. S. 218-224. Not cited.

m

Notes 00 V. S, KepoTts. 1G8 V. S. 224-241

^<® tl. S. 224-241. 42 U 444, OGDEN CITY v, ARMSTRONG.

Syl. 1 (XII* 990^ Equity jurisdiction not conferred by joining
<J'«tinct amounts,

-A^pprored in Whelesa v. SL Louis, 180 U. S. 382, 45 L. 585, 21 Sup.
Ct, 4U3» holding separate Interests of complainants in suit to enjoin
proceedings to levy assessmt?nta for local improvements cannot lie
Joined for jurifidlctlonal amount*

SjL 3 (Xll, 99QJ. Vote empowering street improvement Juris-
<liot:ional.

.A^pproved In Allen v. Portland, 35 Or. 432, 43G, 58 Pac. 512, 513,
tsolding bui'den of showing that counell in maliing public Improve*
-CEi€?nt did not have jurisdiction where record shows requisite petl-
t:i.€^^k rests on complainant.
I ©jL e (Xn, 929). Equity enjoining tax where clouding title,

.A^pproved In Pyle v. Breuneman, 122 Fed. 791* holding equity

l^gi« jurisdiction to enjoin collection of illegal tiix wliere property-

c^^vrner Ims no adequate legal remedy for recovery of mouey so

l>ol<l; Kansas Citj', etc. R. R. Co, v. King, 120 Fed. G20, holding

^^€l.l^ty will enjoin collection of tax where same is illegal and

^.iss^esment becomes an apparently valid Ueu upon property; Pabst

^T-e^vlng Cov T. Crenshaw, 120 Fed, 155, holding equity will en-

:}olii enforcement of State inspection laws, requiring inspection

fe^ tor beer temporarily stored before shipment into other States;

\liitcliiDsoa V. Beckman^ US Fed. 402, holding equity will enjoin

enforcement of illegal ordinance where enforcement would require

;AaIciUff to defend many criminal suits a^id would severely injure

^ Liusiness; United States v. Southern Pac. 11. R. Co., 117 Fed.

S^- liolding United States may maintain suit in equity, under Acts

18SMS, to lest bona lides of purchasers to prevent miiltlplidty of

sulla: Uoion, etc., Bank v. Memphis. Ill Fed, 563, holding equity

will enjoin collection of taxes levied in violation of bank charter

on ground of preventing multiplicity of suits; Central Pac. Ry.

V. Kviina, 111 Fed. 74, holding equity will enjoin assessment In

m^^'^er not authorized by law% legal remedy being inade<iuate; Bid-

*^^ V. Half, 103 Fed, 373, holding equity will enjoin enforcement

Oft ^sgessment against land which will not be benehted by im-

|»tOYeBient where tax is one- fourth of value and will destroy mort-

I^IJ^ security; Dumnrs v. Denver^ li; Colo. App, oltl!, 3f>4, Go Pac.

5St» lioldlng where fatal defects in notice In proceedings for mak-

me public improvement do not nppear on face the assessment is

clouil on Mtle.

WiUnguished In Tulare Irrigation Dist. v, Shepsird, la'j U. S.

S4, 10 L. 784. 22 Sup. Ct. 51U, holding; de facto corporation recelv-

fffir heneflts of bonds issued catinot set up tlisit it was uot legjilly

or;?/inized when stjed by buna fide lioldor; People v. District Court,

29 Colo* 233, CjS Pac. 253. holding District Court cannot eujom

168 U. S. 241-273 Notes on U. S. Reports.

State board of assessors from assessing transportatioii compani.
as authorized by Sess. Laws 1901.

168 U. S. 241-250. Not cited.

168 U. S. 250-254, 42 L. 456, UNDERHILL V. HERNANDEZ.

(XII, 1000). Miscellaneous.

Cited in dissenting opinion in Tucker v. Alexandroff, 183 U.
467, 46 L. 282, 22 Sup. Ct 212, majority holding member of
sian naval service sent to United States as member of crew
unfinished war vessel deserting before completion is deserter wit:
treaty 1837.

168 U. S. 255-262, 42 L. 458, PRATT v. PARIS GAS L.. ETC., CC

Syl. 1 (XII, 1000). State court may incidentally adjudicate pal
validity.

Approved in Bankers*, etc., Co. v. Minnesota, etc., Ry., 19^S
S. 384, 24 Sup. Ct. 329, holding suit against railroad for los^^
mail package, where based upon general principles of law, does
arise under laws of United States; M'Mullen v. Bowers, 102
496, 500, holding suit to prevent purchaser from receiver of
son licensed to use dredges in certain territory from vMing dre^cSj
beyond territory does not arise under patent laws; Kurtz v. Str^i
100 Fed. 801, holding bill, for specific performance of contrac;!: to
introduce patent article and for cancellation of forged asslgDHi -^■^'^^
of part interest in patent states no cause arising under patent Iflv — ^*
Carleton v. Bird, 94 Me. 188, 189, 47 Ati. 155. 156, holding 8t^^^*
court has jurisdiction of Suit on covenant for license fee for ^^^^Jf
of patent lime kiln where defendant claimed to use process d-^

fereiit from plaintiff's; Pratt v. Hawes, 118 Wis. 611, 95 N. W. 9(^"^^.
holding State court having jurisdiction of parties and subject-ma ^^5
ter in suit for price of patent right and of machine Itself mtr^^^
determine validity of patent. ^^«

Distinguished in Excelsior Wooden Pipe Co. v. Pacific Bridge ^^
Co., 185 U. S. 286, 295. 46 L. 913, 917. 22 Sup. Ct 682. 686, hold-
ing suit by licensee against patentee and third person setting up
title under license and validity of patent and its infrlngemeot
arises under patent laws.

1(>8 U. S. 262-273, 42 L. 461, HODGSON v. VERMONT.

Syl. 2 (XII, 1000). Information affords due process.

Approved in Mallett v. North Carolina, 181 U. S. 699, 45 L.
1020, 21 Sup. Ct. 734, holding allowance of appeal from court of
one district, but not from another, in case of grant of new trial
to accused, does not deny equal protection of law; Maxwell t.
Dow. 17() U. S. 584, <)03, 44 L. 598, 605, 20 Sup. Ct. 450, 457. hold-
inj; proceeding by information instead of by indictment accords
due proeess; State v. Jones. 108 Mo. 402. 68 S. W. 567, sustainiDg
prosecution for larceny by information pursuant to Mo. Const. 19(»,

1

Notes on U. S. Reports. 103 U. S. 273-^10

^Tt 2, { 12, making Indictment and information concnrFent. See
'"S Im. St Rep. 239, note.

a. €8 U. S. 273-27S, 42 L. 4C4, UNITED STATES v. WILSON.

Syl. 1 (XII, 1001). Consul voluntarily paying fees cannot recover.

Approved in United States v. Edmonston, 181 U. S, 510, 45 L.
F76. 21 Sup. Ct. 722, holding Yoluatary payment by rolstake of
tSno instead of $1.25 per acre for land gives no claim against gov-
^x-nment for overcharge: New Orleuns, etc.. R. R. Co. v. Louisiana
I^nst., etc., Co., 109 La. 26, 94 Am, St. Rep. 406, 33 So. 56,
molding payment of wharfage rentals under threat of civil suits
B voluntary payment and cannot be recovered. See 94 Am. 6L
^cp, 410. note.

.OS U. S. 27S-28G, 42 L, 46C, HOLTZMAN v. DOUGLAS.

Syl. 1 (XII, 1001). Payment of taxes evidences claim.

Approved In Jackson v. Simmons, 98 Fed. 773, holding where
llAJntiGT^s grantors allowed strangers to title to pay taxes for
rwrenty-two years, such was evidence of abandonment.

Syl, 3 (XII, 1001). Tenant attorning to another holds adversely.

Approved in Treece v. American Assn., 122 Fed, 601, upholding
Muirge that If tenant be put In possession of tract of land with-
out inserting bonndaries whole was possessed^ but if lease specl-
[le<l amount, actual occupancy controlled.

lUS r, S. 287-^310, 42 L. 469. O^BRIEN v. MILLER.
Syl 1 (XII, 1001). Contract construed as a whole,
Approved in Pressed Brick Car Co. v. Eastern Ry. Co. of Min-
nesota, 121 Fed. 611. holding intention of the parties must be de-
daeed from entire agreement considered together; Bnfifalo, etc., Co.
T- Bellevne, etc., Co., 165 N. X. 254, 57 N. E. 7, holding Interrup-
tlan of traffic on street railroad due to heavy snow where de-
teodant operated as successfully as other lines was no substantial
breach of contract to run cars as other lines were run.
^yl 2 (XII, 1001). Admiralty acts on equitable principles.
Approved In American Steel Barge Co, v, Chesapeake* etc., Co.,
Ho Fed. 673. holding pledge of freight to be earned durlug term
♦>f time charter to secure payment of charter hire gives owner
^J^^ltable lien in admiralty as of date of charter; New York, etc.*
^B^- Co. V. Piscataqua Xav. Co,. 108 Fed. 96, holding seagoing ves-
I •*l8 prevented by obstruction of private drawbridge from navi-
^gating cliaonel may sue In Admiralty Courts for damages,
^■lyl. 5 (XII, 1001). Shipowner retaining damages liable to credit-
^^h therefor,

1 Approved In The St. Johns, 101 Fed. 477, holding insurer*8 right
' at subrogation after paying loss due to collision la subordinate to
f damage claimtmts.

1G8 U. S. 311-339 Notes on U. S. Reports.

168 U. S. 311-328, 42 L. 478, HARRISON v. PEREA,

Syl. 2 (XII, 1001). Cross-bill alleging impertinent matters
demurrable.

Approved in United States Mineral Wool CJo. v. Manvill Co'
\us Co., 101 Fed. 146, holding bill is not bad for multifariousE
for alleging infringement of two separate patents for single
jcct where no injustice results; Commercial Bank v. Sandford .
Fed. 157, holding bill to foreclose mortgage is not multifarious
cause Joining persons claiming title under tax sale made after
cutioQ of mortgage.

Syl. 3 (XII, 1002). Territorial court's findings conclude Supi ^^rne

Court

Approved in Kelly v. Rhoads.. 188 U. S. 5. 23 Sup. Ct. 26m 47

L. 301, holding flock of 10,000 ^hcep driven across Wyomin jm ^^ ^o
Nebraska at rate of nine miles a day is subject of interstate ^KLjr-^^vn-
merce and not taxable by State; Lubrs v. Hancock, 181 U. S. -S^>TO,
45 L. 1007, 21 Sup. Ct. 727, holding Supreme Court in revle-^^^-' ^^ff
territorial decision is contined to assignment of errors basec^ ^Q
rulings of the court; Thompson v. Ferry, 180 U. S. 484. 45 L. ^-*^^
-1 Sup. Ct. 453, holding on appeal from territorial court, vr' B-»ere
no errors are assigned, sole question open for review is sufflcE ^:^ **^J
of tiudiugs to sustain judgment; Apache County v. Bartb. IT'^ ^'
S. 542, 44 L. 879, 20 Sup. Ct. 719, holding Supreme Court may ^i=od-
slder territorial Supreme Court's findings made In additioiB- to
those of trial court, which such court also adopted.

Syl. 6 (XII, 1002). Judge estimating executor's attorney's f€*e .*^-

Approved in Jacoway v. Hall^ 67 Ark. 345, 55 S. W. 14, hol^^^^^«
administrator not entitled to allowance for attorney's fees expen -^^^
in resisting proper charges; Richardson v. Tyson, 110 Wis. S^*^
80 .N. W. 255. holding guardian ad litem employing assisting co ^^'
sel is entitled to reasonable compensation therefor.

(Xil. 1001). Miscellaneous.

Cited in New Duaderberg Min. Co. v. Old, 97 Fed. IM, hol^ Ja-
ing, under Colorado statutes, in actions for conversion of ore plJ^T^^m
tiff may recover value and sum equal to legal interest fro^ ^^
conversion.

1G8 U. S. 328-339, 42 L. 484, KARRICK v. HANNAMAN. ^

Syl. 2 (XII, 1002). Partner dissolving before time must accounf^^t
Approved in Williamson v. Monro^ 101 Fed. 332, holding partne
in railroad construction work receiving assurance of contracts and'^
dissolving? partnership to obtain entire profits therefrom must ac-
count to retiring partner. See 77 Am. St. Rep. 319, 321, note.

Distinguished in Leonard v. Sparks, 109 La. 550, 33 So. 597. hoM-
ing where one employs two others who agree to divide profits, the
employer retaining power to discharge either, either employee
may determine the joint undertaking.

S55

Notes on U. S. Reports. 168 U. S, 339-374

Byt 3 (XII, 1002). Partner carry log on business must account

Approved In Towle v. Hammoml, 99 Fed. 517. holding partner's
XJurcbase of another's Interest in firm docs not inure to benefit of
third partner although acquiring equity of redemption after vendor
r&Ued.

(Xn, 1002K MlBcellaneous.

Cited in Federal Oil Co. v. Western Oil Co., 121 Fed. CTT. holding
equity will not enforce oil and gas lease providing for payment of
cztontbly rental for delay in coramenclng wells a ad certain royalties
30 oil produced; Dukes v. Bash, 29 Ind. App. IDS, 04 N. E. 49, holrJ-
itig equity will tiot enforce contract to procure right of way in
rmure where parties agree on sum as liquidated damages for lireach.

LOS U. S. 331K34a 42 L. 491, WARNER v. BALTIMORE. ETC., R. IL
Syl, 1 (Xn, 1002), Carrier's duty toward passengers stated.
Approved in Chesapeake, etc., Hy. Co. v. King, 99 Fe(L 254, 255,

23ti, holding where passenger alights at station and must cross

intervening tracks company impliedly agrees that Its trains shall

aot render exit unnecessarily dangerous.

Distinguished In Chaitanooga. etc., Ry. v. Dovma, 106 Fed. 643,

boiding person stepping in front of approaching train without

looking, after visiting express office erected on company's ground, is

gnlity of negligence In law.

ISyl. 2 <X11, 1002). Negligence for jury where facts Inconclusive.
Stpproved fn Dun worth v. Grand Trunk, etc., Ry., 127 Fed. 300.
Elding streetcar conductor standing on railroad tracks while
Watching for trains, being struck from behind, is negligent in
ijj^l Western Gas Const. Co. v. Banner, 97 Fed. 889. sustaining
PwMt's tefusaJ to instruct for defendant where evidence as to
Whether plaintiff Injured hy falling soiokeatack was warned of
clanger.

Distinguished in District of Columbia v. Jlouiton, 1S2 U, S, 579,
■*5 L. 1240, 21 Sup. Ct. 841, holdiug allowing broken steam roller to
•^ttialn near curb after it had been in use does not present case of
*»^Ugence for Jury; Morse v. St. Paul F. & M. Ins. Co.. 124 Fed,
^^2, holding verdict linding seaworthiness will be set aside where
^coQtradicled evidence showed that vessel was old and that holes
^d been bored through timbers without finding sound wood.

IV\ 8. 349-374, 42 L, 407, ST. ANTHONY FALLS WATER-
POWER CO, V, ST. PAUL WATER COMRS.
l 3 IXII, 1003). Submerged and sljure lands reserved to States,
Approved in Mobile Transf. Co. v. Mobile, 128 Ala. 349, 30 So.
^1 boldlng State grant of shore below high water to city of
Wle is in trust for fartiierance of public interest and not sub-
► to dry's debts; dissenting opinion In Keiin v, Calumet Canal Co..
U. 8, 482, 23 Sup, Ct. GOO, 47 L. 1140, majority holding Federal

168 U. S. 375-409 Notes on U. S. Reports. 856

patent to Indiana purporting to be pursuant to swamp land act
1850, covering " whole of fractional sections " carried portions sub-
merged under nonnavigable water; dissenting opinion in Scranton
V. Wheeler. 179 U. S. 167, 45 /L. 139. 21 Sup. Ct. 58, majority hold-
ing riparian owner may sue officer of United States to prevent inter-
ference with former's right in submerged water front.

Syl. 4 (XII, 1003). State court's ruling on State law binding.

Approved in Hardin v. Shedd, 190 U. S. 519. 23 Sup. Ct. 685, 47
L. 1157, holding State law determines whether Federal patentee of
land bordermg nonnavigable lake takes title to submerged land
adjoining; Sullivan Timber Go. y. Mobile, 110 Fed. 190, holding
under Alabama law grant of lands adjoining tide water extends to
high tide; New Whatcom v. Fairhaven Land Co., 24 Wash. 511, Gt
Pac. 741, holding city becoming riparian owner on navigable lake
and nonnavigable outlet cannot divert waters of lake for municipal
purposes; dissenting opinion in Kean v. Calumet Canal Co., 190
U. S. 483, 487, 23 Sup. Ct. 661, 663, 47 L. 1146, 1148, majority holding
Federal patent to Indiana under act 1850, describing land as '* whole
of fraction sections" carries submerged portions thereof.

1G8 U. S. 375-381. Not cited.

1G8 U. S. 382-398, 42 L. 509, WILLIAMS v. UNITED STATB&

Syl. 3 (XII, 1004). Indictment need not refer to statute.

Approved in United States v. Linnier, 125 Fed. 87, holding where
evidence warrants only conviction for manslaughter on indict-
ment for murder court may set aside verdict for murder and enter
Judgment for manslaughter.

Distinguished in United States v. Melfi, 118 Fed. 902, 903, hold-
ing bad on demurrer indictment charging conspiracy in violation
of Rev. Stat., § 5425, where object of conspiracy as set forth con-
stituted no offense against government.

Syl. 4 (XII, 1004). Excessive sentence not fatal.

Approved In In re Graves. 117 Fed. 799, holding on refusal of
warden of State house of correction to carry out sentence coort
may recall prisoner, vacate sentence and impose shorter one in
another institution.

Syl. 5 (XII, 1004). Indictments against defendant for similar
offenses Joinable.

Distinguished in United States v. Dietrich, 126 Fed. 670, holding
two persons cannot be severally charged in same indictment under
Rev. Stat., § 1781, and in same count, one with agreeing to give
and other to receive bribe.

1G8 U. S. 398-400, 42 L. 515, NOBLES v. GEORGIA.

Syl. 2 (XII. 1004). Supreme Court follows State court's cod-
structiou.

Approved in Nordstrom v. Van De Vanter, 181 U. S. 616, 45 L.

.^7

Notes OB U. S. Reports. 168 U. S. 410-43C

I

XC29. 21 Sup. Ct 923, and Clifford v. Reiimpter, 177 U. S. ^3,
-^-4 L. 945, 20 Sup. Ct. 1028» both reaffirming rule; Guaranty Truet
mZ^o. V. Galreston City R. R, Co., 107 Fed. 320, following Texas de-
^^Ssion that State statutes authorizing appoltitment of receivers
c^oefi not apply to receivers appointed by Federal courts; State v.
<Z:Jtlzens' Bank. 52 La. Ann. 1103, 27 So. 717, holding questions
"^^-bt?iUer banlc accepted State statute and what the effect of such
^».<^ct»ptaQce would be nnder State law are not Federal questions.
Syl. 4 (XII, 1004). Insanity addressed to court's discretion,
Approved in Youtsey v. United States, 97 Fed. 940, 943, holding
tj^^ue iiB to ability of defendant to make rational defense though
^M-c^cDted in motion for continuance on ground of sickness should
L»^^ tried by appropriate proceeding.

1.6£i U. 8. 410-430, 42 li. 519, THE VICTORT.

Syl. 1 (XII, 1004). Vessel clearly at fault has burdeo.

^^pproved In The PlilUip Mlnch, 128 Fed. 583, holding circiim-

s^j^aces did not warrant apportionment of damages where coll Id*

lia^' vessel was clariy at fault and negligence of barge debatable;

rrt»« Sicilian Prince, 128 Fed. 135, holding both vessels at faulty

tlxc* Jefferson for not keeping out of way, and Sicilian Prince for

to^illng to give proper signals; The Dorchester, 121 Fed. 893, hold*

^^^ Dorchester at fault for violating rules requiring her to keep

Qvxx. of way and recjulrlng signal on changing course; The AciHa,

^20 Fed. 400, 4«1, holding A cilia solely at fault for collialon for

violating Inland rules of navigation by attempting to pass to port

litJo of channeL afllrmiag 108 Fed. 981, 082; The Northern Queen,

ItT Fed. 014, holding mming steamer clearly at fault for collision

wltli anchored vessel at night did not prove neg^lfiL^ence on part

of latter; The Pilot Boy, 115 Fed. 875. holding absence of required

loolcout casts burden on steamer to show that such fact did ntjt

C(>ntr1hute to collision; The Llviagstone. 113 Fed. S83, holding

blviugjjfone solely at fault for changing course contrary to signals

Vr^vlously given by other vessel and understood by former; The

C<>lcimbia, 109 Fed. 0U8, holding; s^hip in tow with bark and on

sbort^r Imwser at fault for collision where ship si cored against

^'*i*k*8 hawser when former*s hawser parted; The Newport News,

^^ Fed. 393, holding colliding ferry-lroat at fault for keeping to

^e't gide of channel; The L. C. Waldo. 100 Fed. 500, holding rule

tint vessel having another on her starboard bow must keep out of

^^' Ib inapplicable to vessels rounding bend In river; The Minnie,

IW Fed, 13U, holding tug Bhown to be at fault has burden of show-

fJig clearly the fault of other vessel

Sjl 2 (XII, 1004), Other vessel presumed to follow rules.

Approved in In re George M. Hill Co., 12:1 Fed. mk holding both

vessels at fault for violating ruks for navigating Great Lrikei«;

Tbt Dorchester, 121 Fed. 803, holding Tlioraidll not at fault for

16S U. S. 430-450 ^otes on U. S. Reporta. 80

nMintaining course in reliance on Dorcliester*8 obedience 1
rules.

(XII, 1004). Miscellaneous.

Cited in The Alfred W. Booth, 127 Fed. 454, holding article 2
iuland navigation rules, requiring vessels to keep on starhoai
siie of narrow channels, applies to upper bay of New Yorl
Cunard SS. Co. v. Kelley, 115 Fed. 685, holding common-la
Lability of carrier may be limited by contract as to losses not di
to negligence.

1^ U. S. 430-437, 42 L. 631, MUSE v. ARLINGTON HOTEL O
Syl. 1 (XII, 1005). Federal right must be distinctly asserted.
Approved in Chrystal Springs Land, etc., Co. v. Los Angeles, 1*
T). S. 169, 44 L. 720, 20 Sup. Ct 573, reaffirming rule; Spencer
Duplan Silk Co., 191 U. S. 530, 24 Sup. Ct. 176, holding plaJutifl
pleading must show that case substantially involves controven
under Federal law to deprive Circuit Court of Appeals* judgmei
of finality; Filhoil v. Maurice, 185 U. S. 110, 111. 46 L. 828. 829. 1
Sup. Ct. 501, holding Circuit Court has no jurisdiction of ejec
ment suit where complaint claims no right under Federal laws bi
alleges ouster in violation of Constitution and French treat;
Cincinnati, Hamilton, etc., Ry. Co. v. Thiebaud, 177 U. R. 620. 4
L. 913, 20 Sup. Ct. 824, holding question of constitationallty <
State statute raised first in assignment of errors will not sostaJ
writ of error.

, Distinguished in Mitchell v. Furman, 180 U. S. 4*28, 45 L. 60a 2
Sup. Ct. 440, holding Supreme Court entertains direct appeal froi
Circuit Court in suit to establish land claim under treaty of 182
with Spain.

1G8 U. S. 437-443, 42 L. 533. THE RESOLUTE.

Syl. 1 (XII, 1005). Question of lien on vessel held by receiver.

Approved in The Jonas H. French. 119 Fed. 4G4, holding vetm
111 possession of receiver appointed by Circuit Court cannot ~
seized on process from District Court of same district In salt C
l)rior demand; The Thomas L. James, 115 Fed. 569. holding salvci
may assign their claims by properly drawn instrument In writic

Distinguished in Bruce v. Murray, 123 Fed. 371. holding master
vessel has no lien for wages.

108 U. S. 443, 444. Not cited.

1G8 U. S. 445-450, 42 L. 537, STEWART ▼. BALTIMORE, ET*
R. R.

Syl. 1 (XII, 1005). Statutory remedy enforceable in other Stat^

Approved in Smith v. Empire State, etc., Devel. Co.. 127 Fed. 4t?

holding foreign corporation having principal office in Washinjrtc

is subject to suit in Wiisliiugtou under Balliuger's Codes, I 42lfc

for wrongful death of servant in Idaho; Florida Cent. & P. U. I

Notes ou tJ. S. Reports.

168 U. a 445-450

CZ:o. V. SuiUvan, 120 Fed. 801. holding Alabama admhiiKtratijr may

^ Tie In Florida under Rev. Stat Fla,, §§ 2342. 2343, for wrongful

cSeatb of intestate In latter State; Y-Ta-Tati-Wah v. Rebock. IC©

^SE^ed. 2Q3, holding successors in Interest of tribal Indian under

^rrlbal customs may maintaLD, uuder Iowa Code, $$ 3443, 34-15, action

^^<jr wrongful arrest of deceased plaintiff: Davis v. Mills. 110 Fed.

^ "^ holding Gomp. Laws Mont*, p. 728, § 4C>0, makirij^ trui^tees liable

^^or debts of corporation wbleli dues not file annual reports, la

^»-«2forceable outside State; Baltimore, etc., R. R. v, Ryan, 31 Ind.

^i^^pp. 003, 68 N* E. 925, holding plaintiff suing in Indiana for

^roD^ul death In Illinois Is entitled to benefit of Illinois statute

id city ordinance relative to locomotive whistle and bells and

reet gates; Utah Say, & Trust Co.^ v. Diamond C. & C. Co,, 26

'tah, 308» 73 Pac. 626, holding right 'of action for wrongful death

Ten by Wyo, Rev. Stat. 1887, i 23B4a. Is enforceable in Utah.

Distinguished In Boston, etc., R, R, v. Hurd, 108 Fed. 120.

elding Mass. Pub. Stat. 1882, chap, 112, | 212» punishing railroads

Com* wrongful death by tine, recoverable by Indictment for benefit

t>^ widow and children. Is remedial; Lyon v, Boston, etc.. R. R. Co,,

lOT Fed. 387. holding Vermont administrator of New H.nrapshire

li:i testate cannot maintain action in Vermont under New Hampshire

r^^vlval statute.

Syl 2 (Xll. 1005)» Action of tort transitory.
•Approved In Velaloro v. Perkins, 101 Fed. 3JMI, holding alien may
I ttxniniaiD action under section 2, Mass. employer's liability act 1857.
f^^lQfir widow or dependent next of kin right to sue for wrongful
•^tli: Denver, etc.. R. R. Co. v. Roller, 100 Fed, 744, holding foreign
nillrond corporation operating in California and legally served
^<?rHu may be sued for tort committed outside such State. See 85
A^to. 8t Hep. 923. note.
SyL 3 (XII, 1005*. Federal court regards real party.
Approved In Lehman v. Bultlmore, etc.. B, R., 128 Fed. 1(12.
McJiuf change of party plaintiff from admlnSfitrator of deceased
^ bis widow to conform to State statute works no discontinuance,
J^lstiugulshed in Bishop v. Boston, 117 Fed. 772, holding citizen-
*% of administrator and not of beneficiaries determines Federal
J^Hwlfction In suit for wrongful death of Intestate; Cincinnati, etc.
^' H. Co. V. Thielmud, 114 Fed. D22, 1123, holding administrator
"nlng untipf Indiana sUitute for wrongful death of intestate sues as
^f^tH* and his citizenship determines Federal Jurisdiction; Bostoii.
*'f^-. R. R, V. Hurd, lOS Fed. 120, holding Mass. Pub. Stat. 1^82,
''''^P. 112, I 212, punishing railroa<lH for negligence In causing
<^p«th hy fine, recoverable by Indictment for widow and children,
['» not jiennL

iXlI, 1WJ5K Miscellaneous.,
IClfed in Peers v. Nevada Power. Light & W. Co.. 119 Fed. 401,
b/dlQic Xevadn statute creating liability for wrongful death ere-

168 U. S. 451-505 Notes on U. S. Reports. 8

ates single cause of action, not one in deceased by snrrlyal m
another in next of kin; Hale v. Coffin, 114 Fed. 570, holding Circi
Court for district of Massachusetts will not dismiss suit by Ml
nesota receiver to enforce stockholder's liability; dissenting oplnl
in In re Estate Mayo, 60 S. C. 425, 38 S. E. 642, majority boldii
Rev. Stat, § 2315 et seq., gives administrator a new statute
action and not survival of action of deceased.

168 IT. S. 451-471, 42 L. 539, THOMPSON v. MAXWELL LA>
GRANT, ETC., CO.
Syl. 1 (XII, 1006). Second appeal cannot reopen first
Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S. 7,

L. 401, 21 Sup. Ct 242, holding Federal question is raised too b

in State where raised by new pleas filed after State Soprei

Court has passed on merits and remanded suit

168 U. S. 471-488. 42 L. 547, HYER v. RICHMOND TRACTIC
CO.

Syl. 1 (XII, 1006). Equity will not enforce contract to foi
partnership.

Approved in Prince v. Lamb, 128 Cal. 128, 60 Pac. 691« hold!
agreement that plaintiiT, who equipped defendant for Alaakj
mining expedition, should have undivided half interest in dali
discovered constituted no mining partnership.

168 U. S. 488-505, 42 L. 553, DOUGLAS v. KENTUCKY.

Syl. 2 (XII, 1006). Lottery privilege grant is not contract

Approved in Lottery Case, 188 U. S. 356, 23 Sup. Ct 8S
47 L. 501, holdlug carriage of lottery tickets between States I
t'xpress carrier is interstate commerce which Congress may prohibi
Andrews v. Andrews, 1S8 U. S. 34, 23 Sup. Ct 241. 47 L. 37
holding full credit clause is not violated by Massachusetts coai
refusing, under State statutes, to give effect to divorce obtaloc
elsewhere by citizen for cause not recognized in Massachnsetti
Fisher v. Cushman, 103 Fed. 865, holding liquor license hsrlii
recognized value of $4,000 to $5,000 is property within meaning •
bankruptcy statute; Mason v. Railroad Co., 51 W. Va. 187, 41 8. T
420, holding mandamus lies to compel railroad to restore stres
improperly used under franchise to lay tracks. See 78 Am. &
Rep. 255. note.

Distinguished in dissenting opinion in lottery Case. 188 U.
'M\o, 23 Sup. Ct 330, 47 L. 504, majority holding carriage
lottery tickets between States by express carrier is interstate cob
nierce within power of Congress to prohibit

Syl. 3 (XII, 1007). Supreme Court determines existence of cos
tract.

Approved in Deposit Bank v. Frankfort, 191 U. S. 518. 24 So
Ct. IGl, holding Federal decree sustaining exemption l>ased i

sei

Ndtes on TT. S. Reporta.

laS U. S. 505-573

I

^ttect of decision of Inferior State court as res Judicata is binding
&ltIiougb highest State court reverses inferior court decision; Stearns
▼. Minnesota, 179 U. S. 233, 45 L. 170, 21 Sup. Ct 77, hoidlns
Supreme Court independently determines corapetency of State to
coake alleged contract and meaning and validity of such contract;
Walsh V, Columbua. etc., R. IL Co., 176 U. S. 475, 44 L. 551, 20 Sup.
Ct. 39t>, holding Supreme Court determines whether contract alleged
to have bpcn Impaired existed or was impaired.

SyL 4 (XII, 1007). State construction of obligation clause not
blading.

Approved In Loa Angeles City Water Co. v. Los Angeles, 103
Fed. 71G, holding Federal (luestion presented by suit by water
company to enjoin enforcement of ordinance Qxing rates on ground
of inipairmeut of contract

(XII» 1006). Miscellaneous.

Cited In Ex parte Kameta, 36 Or. 254, 78 Am. St. Rep. 171, 60
I*ac. 3i>5, holding lottery is gaming within Portland city charter for
»pre8sion of gaming.

I U. S. 505-513, 42 L. 559. UNITED STATES v. UNION PAC. RY.
SyL 1 (XII, 1007). Certiflcate must state queations as distlnc:
propositions.

Approved in Felsenheid v. United States, 186 U. S. 134, 46 L.
108©, 22 Sup. Ct. 743, declining to answer questions of Circuit Court
of Appeals 80 certified as to require search of whole record and
^ effect determination of merits; German Ins. Co. v. Hearne.
118 Fed. 135, holding Circuit Court of Appeals has not power to
^^rtify a *' case" to Supreme Court for decision.

1« U. S, 613-532, Not cited.

^88 U. S, 532-573. 42 L. 56S, BRAM v. UNITED STATES.
8yl 1 (XII. 1008). Confession must be voluntary.
Approvefl in State v. Height, 117 Iowa, 650, 01 N. W. 037, 94 Am,
Ee[j. 329, holding unconstitutional to require defendant to anb-
^t to physical examination of private parts.
I^istlnguished in Harley v. United States. ISG U. S. 220, 46 L.
^■H», 22 Sup. Ct. 801, holding admisaible Btniements voluntarily
'***^e by defendant both before and after examination; Common--
*<?nlHi V. Storti, 177 Mass, 344, 58 N. E. 1022, boldhig admissible
^iafivmentfl made to officers after accused replied '* yes " to ques-
tion whether he wished to make voluntary statement after having
^n warned of consequences: Thornton v. State, 117 Wis, 34€, 341,
S6 X W, 1107. 1108. holding comparison of tracks left in snow
witb Fhoes of accused, charged with rape, does not make defend
l&f witness against himself.

168 U. S. 573-588 Notes on U. S. Reports. 802

Syl. 4 (XII, 1008). Reply to statement that cosuspect chargec
defendant inadmissible.

Approved in State v. Jay, 116 Iowa, 266, 89 N. W. 1071, holding
inadmissible statement of borsetbief as to wbereabouts of anima
wbere made to arresting officer after latter said it would go easlei
witb accused.

Distiuguisbed in Fuller v. State, 109 Ga. 813, 35 S. E. 299
bolding admissible statement of accused to officer wbo said t<
prisoner " Yes, let me bear wbat you bave got to say;" Iowa ▼
Storms, 113 Iowa, 394, 85 N. W. 613, bolding admissible confessioi
made after being shackled and led into presence of deceased when
accused said no inducements were offered him; Iowa v. Novak
109 Iowa, 730, 732, 733, 79 N. W. 470, 471, holding admissible 8tat€
ments made by prisoner while under arrest and in shackles wher
such condition was required by ordinary prudence; Collins v. State
115 Wis. 600, 92 N. W. 268, holding admissible statements of ac
cused in response to officer's interrogatories which in substanc
stated contents of previous statements of two women jointly Im
plicated in larceny.

168 U. S. 573-583. Not cited.

168 U. S. 583-588, 42 L. 589, IN RE TAMPA, ETC., R. B,

Syl. 2 (XII, 1009). Certiorari improper to review appointment a
receiver.

Approved in In re Huguley Mfg. Co., 184 U. S. 301, 46 L. 532
22 Sup. Ct. 45G, holding writ of prohibition against Circuit Court
proceedings will not be granted where appeal lies; Re McKenzie,
180 U. S. 549, 45 L. 662, 21 Sup. Ct. 473, holding appeals from Inter-
locutory orders appointing receivers are authorized to be taken
from Alaska District Court by act June 6. 1900; In re Parquet. 11
Fed. 441, holdiui; Circuit Court of Appeals cannot issue writ cc
prohibition to stay proceedings in Circuit Court where appellaM
jurisdiction not invoked by appeal or error; Tormanses v. Melsin
109 Fed. 711, holding on appeal from interlocutory order appoizK
ing receiver and granting injunction, Circuit Court of Api>eal8 m:3
dispose of case on merits wben facts warrant; Tormanses v. MeslinBi
lOG Fed. 780, holding order of District Court for Alaska by whi^
piacer mining claim is turned over to receiver to work same is flnv
and appealable.

Distinguished in Heinz v. Butte, etc., Mln. Co., 107 Fed. IS
holding order dismissing application to set aside injunction Is n^
appealable within act .Tune G, 11)00; Jack v. State, 102 Fed. 21 -
holding order permitting intervention and suspending order r^
(luiriug receiver to dismantle road was not appealable.

(XII. 1000). Miscellaneous.

Cited in (^)ltrane v. Templeton, 100 Fed. 377, holding order ap-
pointing cortM'civer entered prior to act June 6, 1900. allowlni
appeals from interlocutory orders is not appealable.

Notes on U. S. ReportB. IGS U. S. 589-011

I«8 U. S. 589-e04. 42 L. 5D1, MICHIGAN LAND, ETC., CO. v.
BUST.

SyL 1 (XI I» 1000). Title remains lu goyernment until patent.

ApproTed in Schlosser v. HempliOl, 118 Iowa, 457. 458, £K) N. W.
f^^. holding, nnder swamp land act of 18o0, title to swfimp land
illd Dot pass to States until surFey and Issue of patent; dissenting*
•>;>iulon in Kenn v. Calumet Canal Co., lOO U, S. 401, 23 Sup. Ct.
6i>4, 47 L, 1150, majority liolding snbmerj,'ed portions of sections
pass to State of Indiana under Federal patent under swamp land
act covering "whole of fractional sections" referring to official
plat See 91 Am, St Rep. 009, note.

8yl. 2 (XII, imifQ). Department's control continues until patent
l«fiae8.

Approved in Hawley v. Diller. 178 U. S. 488, 44 K 1102, 20 Sup.
Ci. 091, holding' land department has power to cancel original
entry at any time before patent issues; Cosmos Exploration Co. v.
^ray Eagle Oil Co., 112 Fed. 12, holding entrjman on lands claimed
in lieu of forest ri'servatlon lands secures a vested interest therein
I onZj w'hen lie complies with the law, attirming 104 Fed. 42. 44; Olive
I-amd, etc, Co. v. Olmstead, lOli Fed. r>74» holding quahhed entryuian
performing all conditions for patent has equitable title which will he
JirtittTted imle^s land department before patent l.ssues llnds land not
^V^n; Small v. Lutz, 41 Or. 574, 577. Of) Pae. 825, holding secretary of
*n trior's determination that lands were open to homestead Is con-
*^uslve on grantee of State under swamp land list which bad been
revoked; Altschul v. Clark, 30 Or. 3211, 05 Pac. IKKj, holding, under
Krani of 1860 to Oregon In aid of road, road company grantee ot
**taie*g right does not acquire title until secretary of interior ap-
l^roves eelecUon filed.

IXll, 1000), Miscellaneoua.
_CUe<t in Clark v. Ueriugton, ISO U. S. 210, 46 L, 1131, 22 Sup. Ct
^•4, holding recovery on warranty In conveyance by grantee of
•^lii'ottd of lands open only to homestead cannot be defeated on
6*^tiiid that departmenrs cancellation of selection was invalid:
WfljTj^P Stock Co. V. Calderwood. 3(j Or, 232, 50 I'ac, llfJ, htddio-

^^'m of swamp land to State In ISiX) related back to 1800 and pur-

*^'^*»»<*r from State took privity over homestead settler settliug

^^^^reoa In ISSO.

^^tf. 8. 0(14-011, 42 L. 596, NORTHERN PAC. R. R. v, MESSER-

8AXXRY LAND, ETC., CO.

hi I (XII, 1010). withdrawal of Indemnity lands excepts same,

*lpproved In dissenting opinion in Nelson v. Northern Pac. Ry.,

1^0. S. 143. 23 Sup. Ct. 315, 47 L. 420, majority hohlini; bona lide

^ler on unsurvcyed indemnity lands after withdrawal ordt-r but

Mdf^ detinlte location of raiboatl will !>e protected, aud revers fn;;

.Vorthera Pac. Rj. v. NcImju, 22 Wash. 532, 01 Pac. 707, holdiut

168 U. S. 611-627 Notes on U. S. Reports. 86:

bona fide settler upon indemnity land within Northern Pacific gran
of 1864 settling after withdrawal order acquires nu rights as agains
railroad; dissenting opinion in Hewitt v. Schultz, 180 U. S. 15C
45 L. 473, 21 Sup. Ct 317, majority following land department'
construction of grant of 1864 that same did not authorize withdraws
of indemnity land upon approval of map of definite location.

168 U. S. 611-618, 42 L. 599, WILSON v. LAMBERT.

Syl. 1 (XII, 1010). Injunction against assessment ander uncoi
stitutlonal law.

Approved in Central Pac. Ry. v. Evans, 111 Fed. 74, holdin
equity has power to enjoli^ assessment of railroad property I
manner not authorized by law where^ legal remedy Inadequate
Pickett V. Russell, 42 Fla. 131, 28 So. 769. holding equity may ei
join collection of tax if illegal and inquire into validity of elec
tion authorizing such tax.

Syl. 2 (XII, 1010). Property taxable for public square.

Approved in Matthews v. Kimball, 70 Ark. 455, 66 S. W. C5(
holding assessment for park improvements is authorized by Ai
kansas statute providing for assessments by cities for local im
provements of public nature.

108 U. S. 018-627, 42 L. 602, SHEPARD v. ADAMS.
Syl. 1 (XII, 1010). Supreme Court reviews sufllciency of service
Approved in St. Louis Cotton Compress Co. t. American Gottoi
Co., 125 Fed. 200, 201, holding, under section 5, Circuit Ck>urt o
Appeals act, Supreme Court has jurisdiction to review by writ o»
error tiuestion of validity of service of summons below; Hays i
Uichardsou. 121 Fed. 538, holding Circuit Court of Appeals canac
review judgment of Circuit Court dismislng action for want of j»
rlsdiction for InsuflScIency of bond In suit against nonresident.
L. E. Waterman Co. v. Parker Pen Co., 107 Fed. 143. holdic
order sustaining motion to set aside process on foreign corporatis
because not served at place of business is not appealable nnle=
showing no place of business within district; dissenting opini*-
In Giles v. Harris, 189 U. S. 489, 23 Sup. Ct. 047, 47 L. 913. majoriH
holdiDg Supreme Court's jurisdiction under act 1891, to consiC
whole case on appeal from Circuit Court, cannot be confined
jurisdiction by certificate.

Syl. 2 (XII. 1010). Federal courts conforming to State practS
Is discretionary.

Approved In Lange v. Union Pac. R. R.. 126 Fed. 340, holdifl
Circuit Court, In allowing amendments to pleadings, is not cc7J
trolled by Colorado practice and its action is not reviewable
Western Tel. Co. v. Burgess, 108 Fed. 33, holding section 5ia)
Ohio Code, allowing jurors to take written charges and instme
tious into retirement, does not control proceedings in Circuit Court

Notes on U. S. Reports. IQS U. S. 027^75

ll» U. S. 627-U32, 42 L, 605. HIGHLAND AVE.. ETC., R, R. v.
COLUMBIAN EQUIPMENT CO.

SyL 1 (XII, 1011). Interlocutory order appointing receiver not
AplHsalable.

Approved In Jack v. State, 102 Fed. 213. holding order permitting
Interrentlon and suspending prior order directing receiver to dift-
inantle railroad la not appealable wltblo 28 Stat. GGB,

DlBtlDguisbed In Re McKenzle, ISO U. S. 549. 45 L. 662, 21 Sup.
Ct. 473, holding act June 6» 1900. authorizes appeals from Inter-
locutory* orders appointing receivers to bt* taken from District Court
of Alaska; Joseph Day Dry Goods Co. v. Heeht, 120 Fed. 763.
iiolding act June G, 11*00, allowing appeal from Interhx-utory orders
appolnthQg receivers opoD hearing in equity, authorizes appeal from
appoiotment on ex parte hearing.

ZGS U. S. t)32-640, 42 L. 607, HALL v. UNITED STATES.

SyL 2 (XII, lull). Unnecessary allegatioas do not vitiate itidlet-
mert

Approved In Rleger v. United States, 107 Fed. 922, holding Indict-
ment for willful inisappliciitlon of fnndg of bank ia not rendered
t>iid by statement that note discounted was due on wrong date.

It58 U. S. G40-642. Not cited.

l«a XJ. S. 642-<}51, 42 L. Oil, CONDE v. YORK.

8yl. 1 (XII, 1011). Transfers of government claims hind parties.

Approved In Fewell v. Surety Co.. SO Miss. 791, 2S So. 757. 92 Am.

^t. Rep. 628. holding Rev. Stat., § 3737, preventing assignment of

<?oatraets with United Stales, is inapplicable In suit Involving

^^sposltion of money paid under completed contract

8ll2 (XII, 1011). Federal question must affect plaintiff In error.
Approved in Farmers' Nat. Bank v. Robinson. 176 U. S. 682. 44
^037,20 Sup- Ct. 1027, reaffirming rule; National Bank, etc., Loan
^' V. Petrie, 180 U. S. 424, 23 Sup. Ct. 512, 47 L. SSO, holding right
to riH'over for money paid to national bank for void bonds Is not
**^eated because transaction was forbidden by law.

^^U. 8. 651-673, 42 L. 614. McHENRY v. ALFORD.

fiyl. 3 (XII, 1012). Act 1883 exempted railroad land.
•^>proved in McHenry v. Brett, 0 N. Dak. 70, 72. 81 N. W. 66,
^- boidlng tax purchaser of property not subject to taxation ac-
quires no lieji and cannot recover taxes voluntarily paid.
8yL S fXII, 1012). Dakota act exempting railroad lands valid.
Approved In Stearns v. Minnesota. 179 U, S. 236, 45 L. 171, 21
%. Ct. 78, upholding Minn. Laws 1865 and 1870» exempting rall-
foadfl from all other taxes in consideration of percentage of gross
ttndags.

Vol Ul — 55

J

168 U. S. 674r-701 NoteQ on U. S. Reports. 86(

Distinguished in dissenting opinion in Steams ▼. Biinnesota, 17!
U. S. 255, 256, 45 L. 178, 21 Sup. Ct 86, majority upholding Minn
Laws 1865 and 1870, exempting railroads from all other taxes ii
consideration of share of gross earnings.
168 U. S. 674-685, 42 L. 622, CASTILLO v. McCONNICO.

Syl. 1 (XII, 1012). State decisions based on nonfederal groiin<
nonreviewable.

Approved In Illinois t. Binns. 189 U. S. 506, 23 Sup. Ct 851, 4'
L. 921, and Nester v. Church, 189 U. S. 505, 23 Sup. Ct 849, 47 L
921, both reaffirming rule; Lombard v. West Chicago Park Com
missioners, 181 U. S. 43, 45 L. 737, 21 Sup. Ct 511, holding decisioi
of State Supreme Court that it is competent on new assessment ti
determine questions of benefit from proof is decision of loca
question.

(XII, 1012). Miscellaneous.

Cited in Tompkins v. Blal^ey, 70 N. H. 586, 49 Aa 112, holdini
New Hampshire stocltholder in Iowa corporation is bound by Judg
ment of Iowa court where stockholder's liability is contractual, re
gardless of New Hampshire rule.

108 U. S. G85-701, 42 L. 626, PENN MUT. L. INS. CO. v. AUSTIN

Syl. 1 (XII, 1013). Supreme Court exclusively entertains con
tract appeals.

Approved in Davis, etc., Mfg. Co. v. Los Angeles, 189 U. S. 217
23 Sup. Ct 500, 47 L. 780, holding Supreme Court entertains direct
appeal of bill alleging impairment of contract by city ordinance!
which had force of State law; Wright v. MacFarlane, etc., Co-
122 Fed. 774, 775, holding where jurisdiction of suit for injimctioi
depeuded outirely on question of constitutionality of Hawaiiar
laws. Circuit Court of Appeals lias no jurisdiction on appeal; Rivea
side & A. Ky. Co. v. Riverside, 118 Fed. 740, 743, holding Fedens
court has jurisdiction of suit to enjoin enforcement of resoluti(r:
of council declaring purpose of discontinuing furnishing pow*-
alU\irinj; inipalrnient of contract: St Clair County v. Interstate
& C. Transfer Co., 110 Fed. TSo, holding Circuit Court of Appe^E:
has no jurisdiction of writ of error where sole question is as
constitutionaliiy of State statute; American Sugar RefiniDg CJo.
New Orleans. liH Feii. 3, holding Circuit Court of Appeals shoun
dismiss writ of error where controlling question involves constrwi
tlon and application of Constitution: Dawson v. Columbia Ave. S.
Co., 102 Feii. 2t>t». 'JOT, holding, under act February 18, 1805,
appeal lies to Circuit Court of Appeals from onler granting inju'za
tlon In case lnvolvin;r ordinance impairing contract

Syl. 2 (Xll. 1013). Keal and colorable constitutional claim gi^^
Jurisi'.ictivui.

Appn>vcd in .Vmlrews v. Andrews, 188 U. S. 29. 23 Sup. Ct 2X).
47 1.. ^»r»S, lioldlns: Supreme Court has jurisdiction on writ of error
to State court which correctly decided Federal question involved;

Notes on U. S. Reports, 168 U. S, 685-701

L-.«eb T. Columbia Township, 179 U. S. 4S1» 45 L. 286, 21 Sup. Ct

. ~S, holding, under act 1801, Jurisdiction of Supreme Court to review

'^msB Involving constitutional question extends to cases In which

-J^ther party claims such riglit; Louisville Trust Co. v Stone, 107

i^^d. 309. holding Federal court taking jurisdiction against assess-

t«Dts alleged to be dis criminatory may administer relief although

ca.i.«criiniiiation not made out; Ex parte Jacobl, 104 Fed. 681, deny-

IM^M application for appeal to Circuit Court of Appeals from decision

O'^ Circuit Court based on ground that appellant is detained un-

eoKiatltntlonally; Los Angeles City Water Co. v* Los Angeles, 103

I F'-^mI. 716, holding Federal court has Jurisdiction of suit by water

c€j>Miipany to enjoin enforcement of city ordinance fixing rates on

g-ronnd of impairment of contract; Dawson v. Columbia Ave, Sav-

\i-iS" Fund, etc., Co., 102 Fed. 2011. 207, holding, under act February

1S» 1895, no appeal lies to Circuit Court of Appeals from order

gro-utlng Injunction In case involving constitutional question,

Syl. 3 (XII, 1013). Laches defeats right to Injunction.

-A^pproved In New York v. Price, 185 U. S. 100, 46 L. 824, 22 Sup.

Ct. 595, holding riparian owners allowing construction of dam to

proceed for two years are not entitled to permanent injunction,

^tJt damages with injunction in alternative; Guarantee Trust, etc.,

Co> V. Delta, etc., Co., 104 Fed. 15, holding equity will not quiet

^^tle to lands claimed by defendants under conveyances executed

^^otn nine to twenty-flve years before siilt; Meyrowltz Mfg. Co.

^* Eccleston, 98 Fed. 440, holding ten years' delay bars right to

s^ie iB equity for infringement of patent; Mantle v. Spec. Mln.

^-* 27 Mont, 478, 71 Pac. tS6T, holding unexplained delay of nearly

*vliie y^ars bars suit by plaintiff claiming interest In mine to enjoin

'l«^tendant from working same and for accounting.

Sjl i (XII, 1013). Laches depends upon circumstances.

Approved In Ward v. Sherman, 102 U. S. 176, 177, 24 Sup, Ct,

[ *^ holding delay of three and a half years before questioning

^'^ipleteness of mortgagee's title, under delivery of property,

**^t» fight to rescind contract for delivery; First Nat. Bank v.

'"^^H. 103 Fed. 1S<1, holding equity allowing contractor's claim

**' railroad construction on receivership will not enforce mechanic's

^^ therefor where not asserted for four ^^ears; Heirs of Ledoux

^*' Uvedao, 52 La, Ann. 332, 27 So. 205, holding creditors cf coDfls-

^W baving acquiesced In possession of latter's heirs for many

^^^ cannot deny titles derived from such heirs; Hatch v. Lucky

^"1 Mln. Co,, 25 Utah, 418, 71 Pac. StJS, holding stockholders of

*lDing corporation acquiescing In sale of stock under void assess-

^WitE aatU ten months and more thereafter cannot claim Invalid,

^

(Xn, 1013). Mificella aeons.

ated in Mercantile Trust, etc., Co.

V. Collins Park, etc.. Co., 00

etl, SIT, holding suit to enjoin enforcement of city ordinanc*?
Irjflf force of State law involves Federal question.

169 U. S. 1-15 Notes on U. S. Reports. 868

168 U. S. 703, 42 L. 1211, THORP v. BONNIFIELD.

(XII, 1013). Miscellaneous.

Cited in Thorp v. Bonnlfield, 177 U. S. 17, 44 L. 653, 20 Snp.
Ct. 534, in history of litigation; Ebner v. Held, 125 Fed. 684. hold-
ing liability of sureties was not merged in supersedeas bond glTen
pending writ of error where appellate court had no Jnrisdictioii.

168 U. S. 707, EX PARTE FULLER.

Miscellaneous.

Cited in Ex parte Fuller, 182 U. S. 563, 45 L. 1232, 21 Snp. Ct
871, reciting history of litigation.

168 U. S. 710,

Miscellaneous.

Cited in The Senator Sullivan, 117 Fed. 178, rejecting as Im-
possible contention that steamer crossed schooner's bow and changed
course so as to strike schooner at right angles.

168 U. S. 711, KNOTT v. BOTANY WORSTED MILLS.

Certiorari.

Cited in Knott v. Botany Worsted Mills, 179 U. S. 71, 46 U 98»
21 Sup. Ct 31, reciting history of litigation.

OLXIX UNITED STATES.

169 U. S. 1-15. 42 L. 639, STUART v. HAYDEN.

Syl. 1 (XII, 1014). Transfer of stock in insolvent national

Approved in Rankin v. Fidelity Trust Co., 180 U. S. 246, 23 Sn
Ct 555, 47 L. 794, reaffirming rule.

Syl. 2 (XII, 1014). When shareholder's liability arises.

Approved In Graham v. Piatt 28 Colo. 424, 65 Pac. 81, hoU
where after national tmnk became insolvent stockholder
assignment for benefit of creditors sum afterward
against him by comptroller was valid claim against estate
stockholder.

Distinguished in Earle v. Carson, 188 U. S. 53, 54, 55, 23 ft-^H
Ct. 258, 259, 47 L. 379. holding national bank stockholder's poorer
to sell stock not limited by fact at time of transfer its assets coo^
not discharge liabilities or purchaser is unable to respond to doofi^
liability when seller did not know such facts at time of sale; Eirie
V. Carson, 107 Fed. 643, holding owner of national bank sham
selling same without knowledge of insolvency of bank and who
does everything possible to have proper transfer made on bank's

Notes OD Up S. Reports.

169 U. S. 1&-26

I

I

^K:»^tok8, not liable to assessixtent by comptroller upon showiog tbat
K^^ank was Insolvent at time of sale and that purchaser was also
M. JKD^olrent.

SyL 4 (XII, 1014). Findings concurred in by Circuit and Clrcnrt
*__3!^otirt of Appeals,

Approved in Sbappirio v. Goldberg, 192 U. S. 240, 24 Sup. Ct 260,
^m. B^piying rule in suit by purcbaser of realty to obtain equitable
m^-^lief on ground of vendor's fraud: Beyer v» Le Fevre, 186 U. S*
ZM^ :^9. 4t> L, 1082, 22 Sup. Ct :67, applying rule In suit to set aside
^^e^c^m on ground of fraud and undut* inHut*u€e; Illinois v. llIInriiK C-
:^^d . a Co.. ISl U. S. 98. 40 U 44S>, 22 Sup. Ct. 308, applying rule to
^^ :«3(liags that wharves did not extend into lake beyond point of
t:» ^«-actlcable navigability; Wbitney v. Olsen. 108 Fed. 29*1 holding In
^K^P^l in admiralty, decision of District Cotirt on questions of fact.
c^^^I>ending upon contradictory evidence, will not be reversed unless
cr-H^rly against evidence; Jacobsen v, Lewis Klondike, etc.i Co,, 112
t^'^ad* 78. arguendo.

1. ^^M U» S, 10-20, 42 L. 044, UNITED STATES v. PASSAVANT.

Syl. 1 <^II, 1014). Review of eollector'a decis!on by appraisers.

approved in United States v. Brown. 12T Fed. 797, holding under

«^^'» ^ODis administrative act of lSt»0, §14, board of general appraisers,

reyiew of case submitted to it by collector, must tirst determine

jurisdiction, including validity of protest; United States v, Beebe,

Fed, 770, affirming 117 Fed. 079, holding where secretary of

^asuiy acts under erroneous construction of statute by adopting

i^jKifils of reliquldation exchange value of foreign coin, upon protest

»^^l:]on of collector is reviewable; United States v. Loeb, 107 Fed.

tA*«^ holding appraisement may be impeached if appraises or col-

ifc^^- tor proceeded on wrong prineipie. contrary to law; United States

^- liueb, 8© Fed. 732. holding tinder customs administrative act of

**^. 5 13, when collector does not deem appraisement too low,

•^l^peal talten by him by direction of secretary of treasury confers

^*^ jurisdiction on board of three general appraisers to review

^W»rai8ement and he muy rebut presumption of Jurisdiction by

^'^oirtng appeal talsen a^jjaiust his own judgment.

%l 2 (Xn, 1015). Tariff — Market vakie in exportlDg country.
-^Uproved lu Rheinstrom v. United States, US Fed. 305, bold-
^^ J''reDCh general internal revenue tax on alcohol, which is not
'^Jlocted on goods exported, ia pert of dutiable value of goods uuder
■■^Mjuiis administrative act of Ifc^lK), but local taxes are not; Downs
^' iHlted States. 113 Fed. 148. hoidinj; Hussinu sugar on which
"^•inty baa been bestowed by remitting excise duty ie subject
'<! wimtervailing duty imposed by section 5 of tariff act of 1897.
fXlI. 1014). ]MIscellnneous.

Cite^l in D0WII.S V. United Stntes. 1S7 U. S. 002, 2fi Sup. Ct 224,
<7 L, 277, upon question of bounties and drawbacks.

1

169 U. S. 26-80 Notes on U. S. Reports. 87

160 U. S. 26-39. Not cited.

169 U. S. 39-44, 42 L. 653. IN RE BOARDMAN.

Syl. 2 (XII, 1015). No habeas corpus where remand clear.

See 87 Am. St. Rep. 201, note.
169 U. S. 45-55, 42 L. 655, BUILDING. ETC., ASSN. ▼. PRICE.

Syl. 1 (XII, 1015). Courts — Amount in controversy.

Approved in Turner v. Southern Home Building, etc, Assn., IC
Fed. 315, holding when bond of borrowing stocliholder was coi
dition for payment of stock dues and premium and interest o
$2,000, Federal court had Jurisdiction over foreclosure where stoc
dues in arrears amounted to $200, though stockholder in answc
asked for credit of value of stock, by which amount remaining dc
was reduced below $2,000; dissenting opinion in Giles v. Harris, IS
U. S. 489. 23 Sup. Ct. 647. 47 L. 913, majority denying Federal Juri
diction over suit by negro to compel registrar to enroll name a
county voting lists under Constitution alleged to violate Feden
Constitution.

(XII, 1015). Miscellaneous.

Cited in Kinney v. Columbia Sav., etc., Assn., 113 Fed. 365, hol>
ing where, on borrowing from loan association, borrower gave nof
agreeing to pay principal, with interest according to by-laws, aE
no rate of interest was fixed by by-laws, but prospectus which wi
made part of contract showed amount of monthly payments H
borrowing and nonborrowing members, excess paid by borrower i
shown is payment of interest.

169 U. S. 55-80, 42 L. 658. WILLIAMS v. PAINE.

Syl. 2 (XII. 1016). Conveyance by married woman by attome

See 84 Am. St. Rep. 7G3, 764. note.

Syl. 4 (XII. 1010). Effect of war on agency.

See 84 Am. St. Rep. 771, note.

Syl. 8 (XII. 1016). Deeds — Words in pnesentl In contract
sale.

Approved in Mineral Co. v. James, 97 Va. 414. 34 S. B. 38, ho-
ing instrument in form of deed but stating " but to all other tnm
named, a general warranty deed is to be made." is an agreems
for sale and not a deed.

Syl. 10 (XII. 1016). Deeds — QuieUng tiUes in District
Columbia.

Approved in Burget v. Merritt, 155 Ind. 149, 57 N. E. 717, nphol
ing Acts 1889, p. 430, § 2, providing that where children by form<
wife had executed conveyance of lands in which they had e
pectancy, in fee during widow's life, such conveyance shall bin
their interest when acquired by inheritance from widow, as appUc
to quitclaim deed made prior to its passage.

^rr^L

Notes ou U- S. Reports,

109 D. S. 81-103

160 U. S. 81-92, 42 L. 669. HOLDER v. ATJLTMAN.

Sjl. 1 ♦XII. 1016). Supreme Court — Review of Circuit Court.
-.Approved In Loeb v« Trustees of Columbia Township, 170 U. S.
4SO, 45 L. 286, 21 Sup. Ct 178, upholding jurisdlctiou to review
Circuit Courtis Judgment wJiere claim is made there that State law
Is invalid under Federal Constitutiou; Kx parte Jaeobi. 104 Fed. 6S1,
Uolding appeal from Circuit Court decision denying' habeas *!orpus
t>ased on ground that applicant is detained In violation of Federal
Constitution lies to Supreme Court and not to Circuit Court of
Appeals; Dawson y, Columbia Ave. Saving-Fund, etc., Co., 102
Fed. 2<3<S, holding under amendatory judiciary act of 1895 appeal
«1oes not lie to Circuit Court of Appeals from order grantlug Inj unc-
tion In case where municipal ordinances are claimed to Impair
obUgfltion of contracts, though case may also involve other
questions.

leO U. S. 92-103, 42 L. 673> POWERS v. CHESAPEAKE, ETC.. RY.
Syl. 2 (XII, 1016). Removal — Tort — Separable controversy.
Approred In Shaffer v. Union Brick Co., 12S Fed, 98; Winston
▼- Illinois Cent It. R.. Ill Ky. 958, 65 S. W. 14, and Schumpert
▼- Southern Ry., 65 S. G. 339, 43 S. E. 815, all reafflrmmg rule:
Chesapeake & O. R, R. Co. v. Dixon, 179 U. S. 137, 45 L. 124, 21 Sup.
Ct. 70, applying rule in action for wrongful death against rail-
*^ad and Its servants: Fogarty v. Southern Pac. Co., 123 Fed.
^7-4, holding action by railroad employee against railroad and its
employees for injuries through negligent operation of road not
'^^ovable by railroad where codefendants are not uonresldetits;
Dougherty v. Yazoo, etc.. M. V. R. R. Co.^ 122 Fed. 209, 211, hold-
^^S where complaint alleged that car company and railroad ran
*^atn on which plaintiff was passenger and that he was injur**d
"^ negligence of car servants who were also servants of railroad.
^^f cottjpany could not remove where railroad was citizen of State
Where action brought; Person v. Illinois Gent. R. R. Co., US Fed.
*^^i holding action against lessor and lessee of railroad to recover
^^ death of employee of lessee alleged to have been due to its
^^ghgeuce In operating road does not involve separable eontro-
^**^y; Riser v. Southern Ry. Co.. 116 Fed. 216, holding action
'^K'lltjst railroad and conductor to recover for injuries received in
^^liitlon alleged to have been caused by failure of conductor to
observe company's rules, which failure was due to Joint and
^^oacurrent negligence of defendant, is not removable by railroad
00 ground of separable controversy; Ward v. Fraaklln, 110 Fed.
"5*5, holding action against several defendants for damages for as-
wait and false Imprisonment charged to have been committed by
certain defendants at instigation of another defendant Is not re-
morable by last defendant on ground of separable controversy.

169 U. S. 92-103 Notes on U. S. Reports. 872

SyL 3 (XII, 1017). Want of diverse citizenship noticed sua sponte
Approved in Continental Nat Bank v. Buford, 191 U. S. 120
holding Jurisdiction of Supreme Court to review Judgment of Cir
cuit Court of Appeals must be first considered where question ii
regard thereto arises on face of record; Great Southern Fire Prool
Hotel Co. V. Jones, 177 U. S. 454, 44 L. 844, 20 Sup. Ct 692, hold
ing Pennsylvania limited partnership is not corporation withii
rule that suit by or against corporation in Federal court is con
clusively presumed for purposes of litigation to be by or againsi
citizens of State creating corporation; Coker v. Monaghan Mills
110 Fed. 806, holding Circuit Court cannot grant injunction t<
stay proceedings in State court in action brought therein becaoM
of pendency of removal petition which has not been presented t<
or acted upon by State court; Green v. Heaston, 154 Ind. 128, W
N. B. 88, holding removal petition alleging ** diverse residence a1
time of filing complaint " is insufficient where citizenship not shown
by pleadings; McCabe v. MaysviUe, etc., R. R., 112 Ky. 867, 6C
S. W. 1055, holding removal petition must show existence of con-
troversy which is wholly between citizens of diflTerent States and
which can be fully determined as between them; State v. Frost
113 Wis. 645, 89 N. W. 919, holding amount of pecuniary valne
need not be shown in plaintiff's pleading, but may be shown in
removal petition.
Syl. 4 (XII, 1017). Limitation for removal — Frivolous obJectioDA
Approved in Union Terminal Ry. Co. v. Chicago, B. & Q. Ba
R. Co., 119 Fed. 215, holding in proceeding by railroad to condemr
right of way, under Rev. Stat Mo. 1899. § 1264. where a foreigr
and a local railroad were made defendant, and local company dc:
alleged to be in possession claiming title, and it had recorded coxa
veyance of all property to codefendant, there was improper Joinda
of defendant to prevent removal; Fidelity, etc., Co. v. Hubbar»
117 Fed. 952, holding, under Va. Code 1887, §§ 3260, 3284. provi*
inj: that no plea in abatement can be filed after entry of decr^
nisi, removal petition filed after judgment nisi entered is too lat»
Jones V. Mosher, 107 Fed. 5(53, holding where removability is flrr*
disclosed by amended complaint filed after expiration of time W
plead to original complaint, removal petition must be filed witbB
time required for answer to amended complaint; Guarantee 0^
of North Dakota v. Hanway, 104 Fed. 374, holding filing of p*
titiou for removal within reasonable time after it becomes ra
movable by reason of amendment in complaint entitles defendan
to romoval; Green v. Valley, 101 Fed. 884, holding where afte-
expiration of time for original defendants to plead petition wai
ainoiuied making others defendants, parties made defendants b]
ameiulmont may remove, though time within which original de
ii'iulMiits might remove had elapsed; Enders v. Lake Erie, etc., K
R. Co., 101 Fed. 203, holding where by reason of amended com

ST3

Notes on U. S. Reports.

ie9 U, S. 92-103

X>1alnt defendant becomes entitled to remove be must file applica-
tion for removal within time whicli lie Is required to answer to
a. in ended complaint; Pennsylvania Co. v. Leeniao. 160 Ind. 22, 2Ji,
&i N. E. 50, upholding denial of removal because of delay In filing
■iLpplicatlon, though amended complaint filed where orIg:inal com-
ply Ini not lo record, and It catmot be ascertained whether cause
c-lianged from nonremovable to removable one; Myers v. Chicago
& N, W. Ry. Co., 118 Iowa, 323. 91 N. W. 1080, holding coudomiiri-
t:lon proceeding may he removed to Federal court if amount In
oontroverey exceeds |2»000 and controversy Is between citizens of
flifferent States; Oida v. City Trust, Safe Deposit, etc, Co., 180
Xlfiss. 2, Gl N. E. 223, holding answer In abatement denying all
Jurisdiction over defendant is answer to declaration witiiin re-
nnjvnl statutes.

Syl 5 iXII, 1017). Amendment of removal petition.
Approved Id Hodge v, Chicago, etc.. Ry. Co., 121 Fed. 51, hold-
**ig where removal bond obligated petitioner to lodge transcript
^^ wrong district It could he amended on leave of court after time
for removal had expired; Daltou v. Milwaukee Mechanics' Ins.
^o.. 118 Fed. 8S2, 883. holding where State court record after nh
*'*8: reinoral petition fails to show facts necessary to divest that
*^^^^irt of jurisdiction Federal cowrt cannot permit amendment of
1*^V1Uod; Kerr ▼. Moilcrn Woodmen of America, 111 Fed. 595,

* filing Federal court may allow amendment to removal petition
^'Uk-h iR Bufficlent to give it jurisdiction for purpose of correcting
^-sialcen allegation as to plaintiff's citizenship where plaintiff's
^^"n Bbowing establishes requisite diversity of citixeuship; Had-

•^Id V. Northwestern Life Assur. Co., 105 Fed. 532. holding wUere
^UiDral petition, through clerical error, names court to which
rf^^Uflf Is sought to be removed as District Court Instead of Circuit
^^Urt, and order of removal is to District Court. Circuit Court
^*^T permit amendment correcting error In petition; Fife v. Whit-
**^l, 102 Fed. r»4*), holding Federal court has no jurisdiction to al-
^W petition for removal to be amended so as to show that cause

* In fact removable; Murphy v. Payette Alluvial Gold Co., OS Fed.
*^'^, lolding where removal petition iu connection with record fails

^ ahow grounds for removal and cause is docketed In Federal
^-'^^irL latter cannot grant leave to amend petition to show that
^'^ii*(» was In fact removable; i^prings v. Southern Ry„ KIO X. C.
'-^Hj, 41 s. E, 105. holding fatal defect in allegaUon of diverse citi-
''"^^^hlp in removal petition cannot be corrected in Federal court,

*4yL (t (XII, 1017). Uemoval after discontinuance against one
^feudant

Approved In Chesapeake & O. K. R. Co, v. Dixon, 179 U. S. 1-10,
^j L 125, 21 Sup. Ct. 71, holding action for damages for wrongful
«k^atij dQe to negligence of railroad and its servants involves no
[iepftraUe controversy; Lederer v. Sire» 105 Fed. 520, holding where

1G9 U. S. 103-128 Notes on U. S. Reports.

one defendant defaults codefendant may remove cause for diven
of citizenship; Howe v. Northern Pac. Ry., 30 Wash. 575, 576,
Pac. 1102, holding where, in action against nonresident ralln
and its resident employees, resident defendants dismissed on o
motion in opposition to plaintiff's contention, at close of all te
mony other defendant could not remove cause.

Distinguished in Kansas City, etc., R. Y. Co. v. Herman, 187
S. 67, 69, 23 Sup. Ct 26, 47 L. 78, 79, holding removal cannot
had where suit is against resident and nonresident, and formei
not joined fraudulently for purpose of preventing removal, i
trial court sustains demurrer to evidence as to resident defend
on merits, affirming 64 Kan. 548. 68 Pac. 46.

Syl. 7 (XII, 1017). Waiver of right to remove by defense.

Approved in Central Grain & S. Exch. v. Board of Trade,
Fed. 469, holding where one enters special appearance to m
to set aside service of process he does not waive illegality if al
denial of motion he answers to merits or appeals from order aff<
ing merits entered by court while withholding Judgment on qi
tion of Jurisdiction; Berry v. St Louis & S. F. R. R. Co., 118 F
914, holding where plaintiff sued a resident and a nonresident
Joint and several liability, and resident not served and declii
to elect to dismiss as to resident or continue cause for serv;
petition for removal by nonresident must be granted.

169 U. S. 103-115, 42 L. 677, UNION MUT. L. INS. CO.
KIRCHOFF.

Syl. 1 (XII, 1017). Time for setting up Federal question.

Approved in Yazoo & M. V. R. R. Co. v. Adams, 180 U. 8.
45 L. 401, 21 Sup. Ct. 242, holding Federal question first set up
new trial in State court is too late; Hale v. Lewis, 181 U. 8. 4
45 L. 9G2, 21 Sup. Ct. 680, arguendo.

la) U. S. 115-128. 42 L. 682, WETMORE v. RYMER.

Syl. 1 (XII. 1017). Dismissal of Circuit Court appeal for w
of jurisdiction.

Approved in Defiance Water Co. v. Defiance, 191 U. 8. 195, t
Huntington v. Laidley, 176 U. S. 677. 44 L. 634, 20 Sup. Ct «
both reaffirming rule; Excelsior Wooden-Pipe Co. ▼. Pacific Bri
Co.. 109 Fed. 498. holding where Circuit Court dismisses case
lack of jurisdiction, leaving pending motions undetermined, o
issue reviewable is that of jurisdiction which must be in Snprtf
Court and not in Circuit Court of Appeals.

Syl. 2 (XII, 1018). Reviewability of Circuit Court's declsioo
jurisdictional facts.

Approved in Glol>e Refining Co. v. Landa Cotton Oil Co., 190 V-
541. 547, 23 Sup. Ct. 754, 757, 47 L. 1172, 1174. applying rule
action for damages for breach of written contract to deliver <

Distinguished in Greene County Banl^ y. Teasdale Commissi^

Notes OD U, S. Reports. 169 U, S* 12S-139

I

Co., 112 Fed. 803. bolding In action for recovery of money only,
amount of damages claimed determlnee Jurisdiction unless declam-
tloQ ou Its face shows such amount Is claimed in bad faith and
merely to give a colorable Jurisdictloa

Syl. d (XII. 1018K Circuit Court may dismiss for want of juris-
diction.

Approved In Excelsior Wooden-Pipe Co, v. Pacific Bridge Co,.

1S& U, 8* 28S, 46 L. OU, 22 Sup. Ct. 683. holding though bill be

<»dlnary bill for Infringement of patent of whlcli Circuit Court

^oald have jurisdiction. If answer show that it Is really suit upon

«!ontwict, court will dismiss hill; Put-in-Bay Water-Works, L. & K.

tL Co. V. Ryan, 181 U, S, 431, 45 L. 937, 21 Sup, Ct. 717, holding

J ttrjsdiction having attached under allegations of original bill. Lhat

jurisdiction did not fail by reason of anything that appo'ared in

^^-x parte aJBdavits, denying allegations In bill In respect to anion lit

i^ndigpute; Huntington v. Laldley, 17Q U, S. 678. 44 L. 635, 20 Sup.

"^^x. 52y, holding question whether proceedings concerning title to

*^^Lnd coDcIuded In State court before commencement of suit in Fed-

^nl court afford defense to this suit is question affecting merits,

^*-^d Circuit Court dismisses suit on own motion, and appeal is taken

^^> Supreme Court upon question of jurisdiction only, decree must

^^« reversed and remanded for further proceedings; Jenkitis v, York

^-^liffs Imp. Co., 110 Fed. 809, arguendo,

^«9 U. S, 128-132, 42 L. CS7, RICHARDSON v, LOUISVILLE. ETC.,
H. R.
Syl. 1 (XII, lOlS)* State decision obviously correct affirmed,
Approved In Brown v. Drain, 187 U, S, U3o, 23 Sup. Ct. ^2, 47 i..
**~*5, reaffirming rule; Equitable Life Assur. Society v. Brown, 187 U,
^* 311, 314, 23 Sup, Ct 124, 47 L, 192. 193, amnniug Hawaiian
'•^tlgment on insurance policy issued to one domiciled there where
*^*4ilm was that policy had situs for purposes of suit at domicile of
*=^rporatlon; Blythe v. Hincldey. 180 U. S. 338, 45 L, 561, 21 Sup.
^t, 392, granting motion to affirm where assignments of error ai'e
'*"ivolou8 and taken only for delay,

*^QO D. 8. 133-138. 42 L, G88. CHICAGO, ETC.. RY. Y. SOLAN.
Sft 1 tXII, 1018). Exemption of carrier from negligence.
Approved In Texas, etc.. By, v. Walker, 25 Tex, Civ, 218, 60 S.
^'^* 7!)7, holding common carrier cannot limit liability on interstate
**i1paients; Plttnian v. Pacific Exp. Co., 24 Tex. Civ. 598, 59 S. W.
^^l. holding where law of State wherein contract is made with
^«Tler, though It be for Interstate shipment, forbids carrier from
^l«Mi!liig common-Iaw liability, stipulation made by express com-
^*^i'>' M mi ting liability to certain sum regardless of value of property
*» void.

1C9 U. S. 130-160 Notes on U. S. Reporta. 87(

Syl. 2 (XII, 1018). State laws regulating carrier's exemptioi
contracts.

See 88 Am. St Rep. 127, 133, note.

Syl. 3 (XU, 1018). Commerce — State regulation of railroa<
operation.

Approved in Pennsylvania R. R. Go. v. Hughes, 191 U. 8. 480
holding no unlawful regulation of commerce made by refusal o
State court to limit liability of carrier for its negligence in execn
tion of contract for interstate carriage to valuation agreed on
Cleveland, etc., Ry. Co. v. Illinois, 177 U. S. 517, 44 L. 870, 20 Sup
Ct 723, holding State statute requiring all passenger trains t<
stop at county seats to take on and let off passengers la void m
applied to interstate through train where sufficient local traini
furnished; Central Ry. Co. v. Murphy, 116 Ga. 870, 43 8. B. 208
upholding Civ. Code, §§ 2317, 2318, making it duty of all connecfini
carriers to trace lost freight upon application and making carriei
to whom application is made liable for failure to give informatioi
as to such freight; Ex parte Young, 36 Or. 250, 78 Am. St Rep. 774
59 Pac. 708, upholding statute punishing persuasion or attempt ti
persuade sailor to desert vessel within jurisdiction of State; Craili
ford V. Railway Co., 56 S. C. 151, 34 S. E. 85, upholding Rev. Statt
§ 1678, providing that no common carrier shall overload its caa
in transporting live stock.

169 U. S. 139-160, 42 L. 693, RITTER v. MUTUAL LIFE INS. C -

Syl. 1 (XII, 1019J. Insurance— "Insanity " defined.

Approved in Manhattan L. Ins. Co. v. Beard, 112 Ky. 461, 66
W. 36, holding where policy provided that it should be void
insured committed suicide " sane or insane,** there is no recovery^
insured took life while he had mind enough to know that s
would result in death and lie so intended though he might not hxm
known that act was wrong. See 84 Am. St Rep. 547, note.

Syl. 2 (XII, 1019). Insurance — Policy silent as to suicide.

Approved in Burt v. Union Cent. Ins. Co., 187 U. S. 366, 23 SiJJ
Ct. 140, 47 L. 219, atlirming 105 Fed. 422, denying recovery a
policy where insured executed for crime though policy silent a« tc
forfeiture in event of execution for crime; Kelley v. Mutual "LtfB
Ijis. Co., 109 Fed. Gl, holding suicide while In.sane does not avoid
policy where applicant covenants in application that he will not dif
by own hand while insane; Shipman v. Protected Home Circle*
174 N. Y. 408, 07 N. E. 80, holding beneficiary cannot take benefits
of benefit certificate when insured committed suicide while «w*«
and amendment of by-laws made after issuance of certificate pro-
vided against suicide; Nil^er v. Supreme Tent, 172 N. Y. 493, ^
N. E. 259, 92 Am. St. Kep. rof). holding mutual benefit society which
has insured member against unintentional self-destruction after
one year cannot by subsequent amendment of by-laws proTidinl

8T7

Notes OD U. S. Reports.

169 U. S. ]3!^lti0

that aelf-destructioii while Id sane witlilD five years from date of
policy should avoid policy deprive beneficiary of rights under policy;
dissenting opinion in Burt v. Union CeiiL Life Ins. Co., 105 Fed. 423»
majority denying recovery on policy where insured executed for
crime though policy silent as to forfeiture in event of execution for
crime. See S^ Am. St Rep. 542, note.

Distinguished In Campbell v. Supreme Conclave Heptasophs, 66
N. J, L. 270, 2S5, 49 All. 551, 554, holding suicide will not defeat
recovery on policy not procured by Insured with intention of com-
mitting suicide, unless contract so provides in express terms.
SyL 3 (XII, 1019). Policy payable for aulclde while sane void.
Approved in Knights Templiirs* Indemnity Co. v. Jarman, 187
U, S. 201, 23 Sup. Ct 110, 47 L, 144, holding Missouri statute, de-
claring that In all suits on life policies It shall be no defense that
insured committed suicide, applies where insured committed sui-
cide while insane; Mutual Life Ins, Co. v. Kelly, 114 Fed. 274,
lidding where insured warranted and agreed in application that
lie would not die by own hand within two years after issuance of
policy, and covenanted that such agreement should be a consider-
ation for the contract, such agreement is binding on bene-
flciary: Bxirt v. Union Cent Life Ins. Co., 1^>5 Fed. 421. denying
*^^covery on policy wliere Insured was executed for crlme» though
policy silent as to forfeiture in event of execution for crime;
Schmidt V. Northern L. Assn., 112 Iowa, 44, 83 K W. 801, hold-
'"ig heirs of beneficiary who murders Insured and who is under
*<^nte£ice of life imprisonment cannot recover on policy; dissenting
opinion In Campbell v. Supreme Conclave Heptaaophs. 66 N. J.
^ 287, 49 Atl. 555. majority holding suicide will not defeat recov-
^*^ oa jiollcy not procured by insured with Intention of committing
*^icl(tc, unless contract so provides in express terms.

I>litin?uislied in Supreme Conclave v. Miles, 92 Md. 626, 627.
^-% 48 Att H49, holding bi-neflt certificate containing no provision
^^emptlog society from liabOUy In case of suicide, fact that as-
*^ted committed suicide Is no defense to action on certificate, un*
^8 Intended suicide at time of application is shown; Morton v.
**^I»reiDe Council, 10<) Mo. App. 86, 73 S. W. 262, upholding recov-
^^ where Insured committed suicide and society had passed by-
^*iw» providing that If Insured committed suicide beneficiary should
^ eptitled to only half of face value of policy; Murray v. Stat©
*^fiJt L. I. Co., 22 R. I. 527, 48 Atl 80t holding where policy pro-
that It should be incontestable after two yeaxs, after such
1^ Insurer cannot set up fraud In application.
(XII. 1019). Miscellaneous.

Cited in Mutual Life Ins. Co. v. Kelly, 114 Fed. 278, holding
*feere representations and agreements in application for life In-
•Tirnnce are in terms ** offered to company as consideration of the
^Dtract** and policy expressly refers to application and makes It

169 U. S. 161-248 Notes on U. S. Reports. 878

part of the contract, the flKreements in the application are part of
contract

169 U. S. 161-164, 42 L. 700, BENJAMIN v. NEW ORLEANS.

Syl. 1 (XII, 1019). Circuit Court of Appeals' decision final when.

Approved in Cincinnati, Hamilton, etc., Ry. Co. ▼. Thieband,
177 U. S. 620, 44 L. 913, 20 Sup. Ct 824, holding record must af-
firmatively show that exception to instruction that plaintiff is
entitled to recover, under State statute was on ground that such
statute was in contravention of Federal Constitution; Carter v.
Roberts, 177 U. S. 500, 44 L. 863, 20 Sup. Ct 714, holding where
Circuit Court dismisses habeas corpus and Circuit Court of Appeals
affirms judgment, an appeal and writ of error allowed on same
day by circuit judge to Supreme Court will be dismissed; Ems-
heimer v. City of New Orleans, 116 Fed. 894, reciting history of
litlgaUon.

169 U. S. 165-189. Not cited.

169 U. S. 189^209, 42 L. 711, BAKER v. CUMMING8.

Syl. 1 (XII, 1020). Appeal — Concurring conclusions by lower
courts.

Approved in Illinois v. Illinois C. R. R. Co., 184 U. 8. 96, 46 L.
449, 22 Sup. Ct 308, reaffirming rule.

Syl. 2 (XII, 1020). Equity follows Statute of Limitations.

Approved in Hale v. Coffin, 120 Fed. 474, affirming 114 Fed.
576, holding where Minnesota court entered decree laying assess-
ment upon stockholders of insolvent corporation, and Maine stock.
holder had died and estate closed, suit in Federal court in Main*
to charge legatee of stockholder for assessment brought three year-
after decree was barred in one year under Maine statute.

Syl. 3 (XII, 1020). Setting aside settlement for fraud — Lache*

Approved In Baker v. Cummings, 181 U. S. 126. 128, 45 L. 780
781, 21 Sup. Ct. 582, construing effect of decision in principal case.

169 U. S. 209-217, 42 L. 720, UNITED STATES v. KLUMPP.

Syl. 1 (XII. 1020). Tariff — Worsted dress goods.

Approved In Wolff v. United States, 113 Fed. 1002, holding mohSM
braids made of hair of Angora goat are not woolen goods with^
tariff act 1894, par. 297, suspending until January 1, 1895, redCLi
tion of duties on such goods.

169 U. S. 218-242. Not cited.

1G9 U. S. 243-248. 42 L. 733. DULL v. BLACKMAN.

Syl. 1 (XII. 1021). Judgment concerning lands in another St
In personam.

Approved in Miller & Lux v. Rickey. 127 Fed. 580, holding im
to eujoiu defendant from diverting, in California, wateis flow
down river having source in that State and flowing through Z

8m

Notes on U. S. Reports. 109 D. S. 249-2&4

vida, where complainant's lands are situated, is transitory, so that
Tv'evada court acQUIrlug jurifidictlon of defendants person may try
ci&me.

:J.69 U. S. 249-255. 42 U 735, UNITED STATES T. LOUIS VILLB.
SyL 1 (XU. 1021)» Act authorizing payroeet of Louisville clalma.
Distinguished in Buchanan v. Patterson, 190 U. S. 360, 23 Sup.
<:3t 769, 47 L, 1098, holding appropriation of March 3, 1899, In ae-
<rordance with report of Court of Land Claims on certain French
0$xyltatton claims to administratrix, representing certain firm and
^IiDilar appropriation, same person as administratrix of estate of
•narrlvlng partner in firm, intended appropriation to next of kin
oT those composing firm at time of seizure only; Buchanan r, Pat-
^e^soQ, 94 Md. 544, 51 AtL 171, holding where plaintiff sued In
o^w^n right, as administratrix of father's estate, and as adminis-
tratrix de bonis non of grandfather, she could appeal from decree in
mny or either capacity*

160 TJ. 8. 255-263. Not cited.

i« TJ. S. 264^284, 42 L. 740, THOMAS v. GAY.

8yL 1 (XII, 1021), Treaty superseded by later statute.

Approved in Lone Yolf r. Hitchcock^ 187 U. S. 566, 23 Sup. Ct.
^1» 47 L. 306. holding Comanche Indian treaty of 1867 did not
Pf^lude enactment of act of June 6, ItHJO. providing for allotment
^ lodlans In severalty out of lands held in common, and purporting
^ Iftve consideration for surplus of unallotted lands,

^yl 4 (XII, 1021), OklahoBia taxation of cattle in unorganised

county.

A^jproved In Foster v. Pryor. 189 U. S. 329, 23 Sup. Ct. 551,

* t. 837, upholding Oklahoma Bern. Laws 1S99. p, 216. providing

i ^^t ODlj taxes for territorial and court funds shall be assessed

' collected In any organized country or district attached to any

'^CTj for judicial purposes-

^H 6 (XII, 1022K Legislature apportions taxes.

-^Vpprored in Foster t. Pryor, 189 V. S, 333, 47 L. 83S, 23 Sup.

552, upholding Oklahoma Sesa. Laws XS90. p. 216, providing

^t only taxes for ten'itorial and court funds shall he assessed,

r*f?d or collected In any unorganized country or district attached

J%iiy county for Judicial purposes; Florida C. & P. It. R. Co. v,

lioldA, lb3 U, S. 470, 46 L, 287. 22 Sup. Ct 180. upholding Florida

fute. providing mode of collecting taxes on railroads which

escaped taxation on certain sped tied years.

iU 8. 2S4-21M, 42 L. 748, BAKER v. GRICE.
IL 3 IXII. 1022), Federal habeas corpus for State prisoner.
kproved in Moss v, Glenn. 181* U. S. 50G, 23 Sup, Ct, 851. 47 L.
ISteTens v. Ohio, IVJ U. S. 680, 45 L. 384, 21 Sup. Ct. 917, and

ll>9 U. S. 295-316 Notes on U. S. Reports. 88

Dreyer v. Pease, 176 U. S. 681, 44 L. 637, 20 Sup. Ct 1025, mJ
reaffirming rule; Stori v. Massachusetts, 183 U. S. 141, 46 L. 12^
22 Sup. Gt. 73. holding Federal court cannot issue habeas corpu
where alien held by warden of State prison awaiting execatloi
under State j.udgment; Minnesota v. Brundage, 180 U. S. 502, 45 I
641, 21 Sup. Ct. 456, holding habeas corpus from Federal court wU
not issue when applicant imprisoned for violation of Minnesot
dairy act; In re Matthews, 122 Fed. 254, refusing Federal habea
corpus when petitioner indicted in State court for killing arm,
deserter while trying to escape arrest; Ex parte Rearlck, 118 Fe^
931, holding Federal court will not, on habeas corpus, release, poM!
ing State appeal, agent of foreign corporation arrested tar Tiolatin
municipal ordinance licensing canvassers, on ground that ordinanc
was regulation of Interstate commerce as to him.

Syl. 4 (XII, 1022). Federal habeas corpus — State prisoner oi
bail.

Approved in Davis v. Burke, 179 U. S. 402, 45 L. 251, 21 Sup. CI
211, holding one convicted of murder in State court must, befor
applying to Federal court for habeas corpus, exhaust remedy li
State court by setting up Federal question on appeal to Suprem
Court or by appealing to State court for habeas corpus.

160 U. S. 295-311, 42 L. 752, WILLIS v. EASTERN TRUST, ETC
CO.

Syl. 3 (XII, 1022). Construction of adopted statutes.

Approved in Peterman v. Northern Pac. Ry. Co., 106 Fed. SS
holding under Rev. Stat Idaho 1887, { 4100, mother who la sole th^
of unmarried adult son may sue in own name for damages for K
wrongful death; Crawford v. Burke, 201 111. 590. 66 N. E. Sa
lioldiug wonis ** while acting as an officer ** in bankruptcy ■■
§ 17. providing that banlvruptcy discharge shall release bankmcz
provable debts except such as created by fraud or eml>ezzlem
while acting as officer, refer to word " defalcation " and not to wo
•• fraud " or embezzlement; Sulzer-Vogt Mach. Co. v. Rushville
C\>.. ItU) Ind. 208, 65 N. E. 585, holding Acts 1889, p. 257, msi —
certain claims against debtors In failing circumstances liens w —
out filing notice refers to claims for wages of laborers employec==
shops, nillls. etc., only; Gray v. Western U. Tel. Co., 85 Mo. Mm
loO. holding war revenue act of 1898 requires maker and sees
of toli\i:ram to affix revenue stamp.

109 V. S. 311-316, 42 L, 759, RICHMOND, ETC., R. R. v. R

TATTKHSON TOBACCO CO.

Syl. 1 (XI 1. liV23). Liability for shipment l)eyond line.

ApproviHl in Cleveland, etc.. Ry. Co. v. Illinois, 177 U. 8. ^^
44 L. 870. 2i> Sup. Ct, 723, holding void New York law compeMo
all passongor trains to stop at county seats as applied to throt^^
interstate train, where sufficient local trains provided; Central VT*

Notes on U. S, Reports.

189 U. S. 310-352

Co. ▼. Murphj, 116 Ga. 870, 43 S. K 2GS, uplioldlng CiT, Code,
iS 2317* 2318, making it duty of Initial or connecting carrier on
application to Inform shipper as to circumstances of loss of goods
shipped; Western Snsh, etc.. Co. v. Chicago, etc., liy*. 177 Mo. (557*
T6 S. W. 1003, upholding Mo. Re?. Stat 1889, § 944, making railroad
^"eceivlng freight for shipment to point outside State which is not
<^Q own line liable for loss or Injury, whether caused by receiviag
«>r connecting line. See 88 Am, St, Itep. 134, note,

i«9 U» S. 316-323, 42 L, 762, UNITED STATES v, GAKLINGER.

^^ SyL 2 (XII, 1023). United States — Dividing day's service.
^■^ Approved In Northern Trust Co. v. Snyder, 113 Wis. 549, 90 Am.
^Isl Rep, 867, 89 N. W, 470, holding sheriff executing several com-
:K^:mltments to Insane asylum not entitled to four days' pay where
«z»:Kaly one day and part of two others actually occupied In service.

SyL 3 <XII, 1023). Payments to goveFniuent employee received
^'^ ilhout protest.

Approved in Chicago, Milwaukee, etc*, Ry. Co. v. Clark, 178
^^^^ 8. 369. 44 Ia 1107, 20 Sup, Gt, 930, holding where railroad con-
^^^^ctor signed paper reciting items of disputed claims and ac-
fe^aowledged full satisfaction on receipt of speciiied amount* he is
^«-rred from thereafter suing on disputed claims.

^^» D. S. X23-330, 42 L. 764, PAYNE v. ROBERTSON.

Syl, 1 (XII, 1023). Homestead by marshal entering prior to
^*"«Jclamation»

^ Approved In Winebreaner v. Forney, 189 U. S. 153. 23 Sup* Ct.
**^, 47 L. 757, holding strip referred to In proclamation of Au-
^Ujji 19, 18D3, lOO feet Iq width around and Immediately
^Uliin oater boundaries of entire tract to be opened to settlement,
^n around and immediately within outer boundaries of land open
''^ ^Itlemetit and not around bouadarit.'S of entire tract specified in
' '^tTDkt**- cr*8sioti; Black v. Jackson, 177 U. S. 365, 44 L. 807^ 20 Sup.
^*^ 651, arguendo,

AJlsilngiiisned in Bocktinger v. Foster, IDO U, S. 124, 125, 23 Sup.
p^ 839, 47 L. 978, 979, holding one claiming under homestead laws
laot sue Oklahoma town site trustees to divest them of title held
them under act of May 14, 1890, in trust for town site occupants;
otter V. Hull, 189 U. S, 2Ua. 23 Sup. CL 547, 4? L. 819, upholding
^^^*i»ion of land department that prior entry hy oae who bad re-
ined and taken part in race into Oklahoma did not disqualify him,

V. S. 331-352, 42 L. 767, UNITED STATES v. EATON.
SyK 4 iXll, 1024). When pay of acting consul begins,
pproved In Glavey v. United States, 182 U. 8. 604, 45 L. 1252»
*!Up. Ct 894, applying rule under act of August 7, 1882, pro-
lag for appointment of inspectors of steam vessels.
Vol III— 56

i

169 U. S. 353-398 Notes on U. S. Reports* 8S2

169 U. S. 353-365. Not cited.

169 U. S. 366-398, 42 L. 780, HOLDBN v. HARDY.

Syl. 1 (XII, 1024). Right to contract limited by police power.
Approved in Austin v. Tennessee, 179 U. S. 349. 45 L. 228, 21
Sup. Ct 134, upholding Tenn act of 1897, prohibiting importa-
tion or sale of cigarettes; Williams v. Fears, 179 U. S. 274, 45 L.
189, 21 Sup. Gt. 130, upholding Ga. revenue act impos-
ing tax on "emigrant agent," meaning one engaged in hiring
laborers to be employed outside of State; Union Pac. R. R, Ck)., v.
Ruef, 120 Fed. 110, enjoining labor union whose members are on ^

strilse from preventing employer from carrying on business by pre

venting others from entering or remaining in his service, by assault

ing or intimidating them by means of pickets or threats; State ▼

Cools, 107 Tenn. 502, 64 S. W. 721, upholding act 1807, punishin^^
taking of promissory note for patent right which does not state oc^
its face that it was given for patent right.
Syl. 2 (XII, 1024). Police power cannot be bartered.
Approved in Wisconsin, etc., R. R. Co. v. Jacobson, 179 U. S. 29'
45 L. 200, 21 Sup. Ct 119. upholding judgment enforcing tra<
connections between two railroads.

Syl. 3 (XII, 1025). Regulation of hours of miners is poli
regulation.

Approved in Consolidated Coal Co. v. Illinois, 185 U. 8. 207, 46
L. 875, 22 Sup. Ct. 617, upholding Illinois act providing for Insp mic-
tiou of mines and for payment of inspector's fees by mineown^ -jn;
Knoxville Iron Co. v. Harbison. 183 U. S. 21. 46 L. 61, 22 Sup. <X
4. upholding Tenn. act of 1899. requiring redemption in cash ot
store orders or other evidences of indebtedness issued by empl<^^er
in payment of wages due to employees; Bolin v. Nebraska, 176 IT — S.
86. 44 L. 383. 20 Sup. Ct 288. upholding Nebraska statute ^^Der-
raitting prosecutions for felony by information; Central of Geo«r-gi*
Ry. Co. V. Macon. 110 Fed. 871, holding where railroad has L j«^-
fully acquired possession of terminal facilities under grant f
city and is in possession under claim of right, and council pa
ordinances declaring rights of company forfeited, railroad is d^
prived of property without due process; People v. Lochner, 177 JC - Y-
149, 151, 152, 1G4. G9 N. E. 375, 380, upholding Laws 1897, p. 485 • «•
strictins: hours of labor in bakeries; The Ten-Hour-Law for St ^*
Corporations, 24 R. I. 605, 54 Atl. 003, upholding Pub. Laws, c ^^ap.
1004, regulating hours of labor of conductors, gripmen and m*:^*^^'''
men on street railways; State v. Sopher, 25 Utah, .324, 71 Pac. 48^3.95
Am. St. Kep. 848. upholding statute prohibiting transaction of 'Bz^^'
ness on Sunday and exempting therefrom certain business, •**"
muler it barber may be convicted; Kilpatrick v. Grand Trunk ^-
74 Vt. noi. D:^ Am. St. Kep. 805, 52 Atl. 535, upholding Vt. Stat ^^
3887, declaring that no railroad shall run car of its own wi«-i*^°'

Notes on U. S. Reports. 109 U. S. 36<J-393

Bteps on side of car, but that same shall be oo end or inside of car

^d imposing fine for each day's violation thereof; State v. Buch-

^maii» 29 Wash, tlOS. 92 Am. SL Hep. 034, 70 Pac. 53, upholding

,^ct lfi01» prohibiting employment of women in mechanical or mer-

<:rantile establisbmentSf laundries, boteia or restaurants, more than

-Ci^n houra a day; State v. Kreutzberg, 114 Wis. 543, 547, 01 Am* St,

I^^ep. 1M4. 947, 90 N. W. lltB, 1105, holding void Laws 18&9, cbap.

,^^^2, punishing discharge of employee because he is member of labor

#E^ jganlzation* See 78 Am. St Kep, 245. note.

Distinguished in Atkin v. Kansas, 191 U. S. 218, 48 L. 15G, up-
M=«. olding Kan, act 1901, making it an offense for contractor for pub-
1 X < work to permit or require employee to perform labor on that
■^j^p^ork more than eight hoars a day; Greenwich Ins* Co, v. Carroll,
aL :^^ Fed. 128, holding void Iowa Code, § 1754, making it unlawful
^"^z^r two or more Insurance companies doing business In State to
^M-^ter into agreement as to amount of commissions allowed to
ai..^^euta, or as to macner of transacting busint*ss in State; In re
^.^M organ, 26 Colo. 433. 435, 437, 77 Am. St. Rep. 287. 2SS, 291, 5S
t^^'.amc, 1079, holding void Sess, Laws 1S09, p. 232, regulating hours
o^^' employment In mines and smelters; Ballard v. Oil Co,, SI Miss.
S^a 05 Am. St. Rep. 4S1, 34 So, 55<J. holding void act of 1808, pro-
^l-ciing that employees shall have same rfghts and remedies as others
^^w injuries suffered from act or omission of master or servanti*
•^ are allowed to others; People v. Orange Co, Road Cons, Co., 175
>^» Y.Sa 67 N. E, 130, holding Pen. Code. § 384h, subd. 1, prohlbit-
Inj^aoy person or corporation contracting with State or municipality
'^^om requiring more than eight hours' work for day's labor, void
■^^d not within police power as having no relation to public health,
SjL 4 <XIL 1025), State interference where contractors on un-
gual footing.

Approved in Mallett v. North Carolina, ISl U, S. 599, 45 L, 1020,
^^ Sap, Ct 734.' upholding North Carolina statute allowing appeal
^ State In criminal case from Superior Court of eastern, but not
^rotn western district of State; Maj^well v. Dow, 170 U. S. 584,
'**^. (103. 44 L, 508. 003. 2(> Sup. Ct. 450, upholding prosecution for
"'^bbery by information and trial l>y jury of eight under Utali
*t^Hlute; Moss V. Whltzel. lOS Fed. 5^52, holding fact of assessment
**^ comptroller upon national bank stockholders does not conclude
' *^cb Block holders as to validity of debts to pay which the assess-
''^^tit is made; Schaozlein v, Cabanlss, 135 Cal, 4(>S, 87 Am, St, Hep.
'^ 67 Pac. 75a holding void act 1S89, providing that where work
• ^"arried oo which generates or produces Injurious gases or dust
^^^ Inbor commissioner determines that mechanical eotjtrivance van
•^"vlfltt* Inhalation of s«ch gases or dust he shall direct that such
^'^Uti'lviince be provided,

*>»**tiiigiilj;befl in In le Morgan. 20 Colo, 440. 441, 58 Pac. lOSO,
I *"*^ I lug void Sess. Laws 1S!KI. p, 2;j2. regulating hours of labor in
and smelters.

Ib9 U. S. 39a^l5 Notes on U. S. Reports. 88-

Syl. 6 (XII, 1025). Police power based on reasonable dlscretioii
Approved in Parks v. State, 159 Ind. 217, 219, 220, 221, 225, &
N. E. 865, 867, upholding Burns' Rev. Stat. 1901, SS 7318-7332C
making it unlawful to practice medicine without license; St. Lonifl
etc., Ry. V. Smith, 20 Tex. Civ. 460, 49 S. W. 631, holding Tex. Uv<
stock law and proper regulations thereunder of State live stod
sanitary commission are not violative of interstate commerce davm
of Constitution.
(XII, 1024). Miscellaneous. . >

Cited in State v. Moore, 2 Pennew. (Del.), 321, 46 Atl. 675, ap
holding prosecution by information; Sutton v. Hancock, 118 Ga
443, 45 S. E. 507, upholding Civil Code, § 3283, making probate ii
common form conclusive upon all parties in interest, except minon
after expiration of seven years from time of such probate; Tylei
V. Court of RegistraUon, 175 Mass. 74, 55 N. E. 813, npholdlni
Stat 1898, chap. 562, relating to registration and confirmation oi
land titles; dissenting opinion in De Lima v. Bidwell, 182 U. 8
216, 45 L. 1063, 21 Sup. Ct. 760, majority holding with raUficatioi
of treaty of peace between Spain and United States, Porto RIa
ceased to be "foreign country" within meaning of tariff laws
dissenting opinion in Hendryx v. Perkins, 114 Fed. 824, majorita
holding bill to vacate prior decree for fraud will not sustain decTM
granting such relief on ground of mistake of fact, though micl
mistake related to state of pleadings at time of hearing, and wa.
shared by court, and prevented determination of cause on meritu
Republican Iron Co. v. State, 160 Ind. 384, 66 N. E. 1006, arguend*

169 U. S. 398-415, 42 L. 793. SMITHSONIAN INSTITUTION
MEECH.

Syl. 2 (XII, 1026). When resulting trust arises.

Approved in In re Davis, 112 Fed. 132, holding where purchaSMi
who pays consideration for property, causes it to be conveyed
another, with intention that it shall be held in trust for ben^
of third persons, which intended trust fails because not deda^
in conformity with Statute of Frauds, trust results In favor
purchaser.

Distinguished in In re Peabody, 118 Fed. 270, holding where i^
chafer intending to devote purchased property for benefit of gra—s
children took deed in name of daughter (mother of grandchlldr^s
trust resulted in lier favor.

Syl. 3 (XII, 1026). Purchase In wife's name as advancemea *^
Approved in In re Davis, 112 Fed. 131, holding where purcbJW '
causes title to be conveyed to another with intention that s^b-J
shall be held in trust for benefit of third persons, which Inteim*^
trust does not conform to Statute of Frauds, trusts results in f0>^
of purchaser.

K

Notes on U. S. Keports.

169 U. S, 416-432

I

I

8yL 4 (XII, 1026). Resulting trust between husband and wife.

ApproTed In In re Davis, 112 Fed, 133, holding where purchaser
causes title to be coavejed to another with Intention that it shaii
be held In trust tor third person, which Intended trust fails be-
cause of Statute of Frauds, trust results In faTor of purchaser,

160 D. S. 416-^1» 42 L, 801, BROWN v. MARION NAT. BANK.
SyL 2 (XII, 1020)* Interest included In renewal note — Usury,
Approved In Haseltlne v. Central Nat. Bank <No. 1), 1S3 U. a
1^. 46 L, 119, 22 Sup. Ct 52, holding in action on note given to
nttlonal bank, maker cannot set off usurious interest paid lo cash
upoa renewal of such note and others of w^hich It was a consoli-
dation, affirming 155 Mo. 74^ 50 S. W. 897, holding one who has
ptid usurious interest on note to national hank cannot maintain
stilt to recover twice amount of usurious interest paid, unless he
I»ag paid or offers to pay principal of note; Daingerfield National
Bank V. Kagland, 181 U. S. 46, 45 L. 739, 21 Sup. Ct. 537, holding
If ot»llgee actually pays uBurious interest as such, usurious transac-
tion occurs then, and he must sue within two years; Second Nat
^nnk v. Fltzpatrick, 111 Ky. 232, 63 S. W. 4t50, holding judgment
^ gainst national bank for twice amount of Interest paid as penalty
^or usury bears interest from date of 11 1 lug petition to recover
^*^ajUty; Citizens* Nat Bank v. Forman, 111 Ky. 212, 03 S. W. 456,
•-* Gilding debtor's right of action to recover twice amount of usurious
* Interest paid national bank does not accrue when note is dls-
5^^tmted: CiUzens* Nat Bank v. Donnell, 172 xMo. 412. 418, 72 S. W.
"^It holding forfeiture of interest by national bank oot avoided by

«-i

vlng separate renewal note In which is included usurious in-

I

^^J"e«t, or by applying usurious interest to principal; Bank v. Hasel-

^^ *e, 155 Mo. ^, 55 S. W. 1017, holding under U. S, Rev. Stat,

51&8, in suit by national bank on note, usurious interest paid

'^^^^Uinot be set o(T. See 85 Am. St Rep. 539, note.

^^ Distinguished in Louisville Trust Co. v. Kentucky NaL Bank. 102

^ ^d. 446, 447. holding where on settlement between national bank

*^ debtor payment was made and new note given for balance,

•mutations on action under Rev. Stat. § 5108, to recover penalty

^w usury commenced to run on date of new note; dissenting opln-

*«n In Citizens^ Nat Bank v. Forman, 111 Ky. 223, 63 S. W. 758,

*^aijar1ty holding debtor's right of action to recover twice amount

n

r

nsurlous Interest paid na^onal bank doea not accrue when note
dlBcouDted,

0. fi. 421-^32, 42 L. 803, SAVINGS', ETC., SOC, T. MULT-
NOMAH CO.

Syl. I (Xll. 1026). Taxation of mortgagee and mortgagor's in-
*^^«t separately.

approved In Ross v. Portland. 42 Or. 138, 79 Pac. 375, following
^^l«; State v. Smith, 158 Ind. 551, 552, 577, 63 N. E. 25, 28; 64 N. E.

1G9 U. S. 421-432 Notes on U. S. Reports. 8S6 ^

:9, upholding act 1899, authorizing, for tax purposes, deduction,^^
of mortgage indebtedness, not exceeding $700, from assessed ralua- ^
tlon of real estate; Baltimore v. Safe Deposit, etc., Co.. 97 Md. 6G2^^
55 Atl. 317, upholding act 1902, chap. 48G, taxing personal propert^^^^
held In trust as property of true owner in county where owne^^^
resides.

Syl. 2 (XII, 1020). Tax on mortgages held by nonresidents.

Approved in Blaclistone v. Miller, 188 U. S. 206, 23 Sup. Ct. 2?"""^

47 L. 445, holding where Illinois citizen malices deposit In New Yok^ .,^
which remains there fourteen months, it is taxable in New Yor
though whole succession had been taxed in Illinois, including tl
deposit; Eidman v. Martinez, 184 U. S. 582, 46 L. 701, 22 Sup.
517. holding inheritance tax under war revenue law of 1898 dc
not apply to intangible personalty in this country of uonresida
alien, whose property passed to nonresident alien son, partly
will and partly by foreign intestate laws; Bristol v. Washing
County, 177 U. S. 144, 44 L. 707, 20 Sup. Ct 590, holding amo
of tax on mortgages held by nonresident is claim against prop^^rty
of person taxed, which is debt that may be proved against his
estate in State where loans are contracted; Western Assur. Cc^ « v.
Halliday, 120 Fed. 259, 260, holding municipal bonds deposited ^fms-lth
State superintendent of insurance by foreign insurance company- for
protection of Ohio policy-holders as required by statute are tax xmble
by auditor of county where held, when not returned either by croni-
pauy or superintendent of insurance; State v. Smith, 158 Ind. <551.
63 N. E. 25, upholding act 1899 authorizing, for tax purpo^ei,
deduction of mortgage indebtedness, not exceeding $700, Ctobi
assessed valuation of real estate; Corry v. Baltimore City, 96 ^<^
322, 53 AU. 943, upholding under Code, art 81, § 141 et »€g..
taxing shares of stocli In corporations created in State when ovr^^ \
by nonresidont in county where principal office of corporalioii |*
situated; Allen v. Nat. State Bank, 92 Md. 513, 514, 515. 516. 5lT.

48 Atl. 70. 80, 81, holding act 1890, chap. 120, providing that a^
niortpajiees or assignees holding mortgages of record In State b^^^*
pay certain tax includes nonresident mortgagees; De Kum v. M"^^*
nomah Co., 38 Or. 259, 63 Pac. 497. holding under mortgage tax J**"
of 1S82, lion on tax on mortgagee's interest in premises is not ^^^
eharjjod by satisfaction of mortgage.

Distinguished in Board of Council v. Fidelity Trust, etc., Co.. ^
Ky. 674. 64 S. W. 472. holding in absence of statute mortgage ^
Kentucky realty and bonds secured thereby, held by nonresident
not taxable in Kentucky, though trustee named in mortgage re<id^
in Kentueky.

{\\\, 10*J6). Miscellaneous.

(^iteil in Talbot v. First Nat Banli of Sioux City, 185 U. S. ISI.
40 L. SC/J. 22 Sup. Ct GIG, to point that interest greater thaa le^

SS7

Notes on U. S, Reports. lOfi U. S. 432-465

k

L merest may be charged but may be rellnqulslied, and recoirery had
E>C legal interest.

a.6© U. S. 432-4(55, 42 L. 807, CENTRAL NAT. BANK v. STEVE'NS.
8yL 2 (XII, 1027). Supreme Court determltiea whether credit
^Iveu Federal Judgment

Approved J a Anglo- American Provision Co. v. Davis Provision
C3o,, 105 Fed. 537, upholding Federal jurisdiction where effect of
State statute limitiug right of foreign corporations to sue In its
<roujrts Is to deprive corporation of another State of equitable right
'to set off judgment rendered against It.

UistJngtilshed In Huntington v. Laldley* 176 D. S. 678, 44 L. 635»
20 Sup. Ct. 530. holding dismissal of seit by Circuit Court for want
of Jurisdiction not Justified on ground that matter was res adjudi-
<.r«ita, or was under eoDtrol of State court as these matters affect
merits.

8yl. 3 (XII, 1027)* Belitigation In State court after Federal
<lecree.

Approved in James v. Central Trust Co., 98 Fed. 404. holding
Circuit Court may, where it has foreclosed railroad mortgage, aud
lias sold property thereunder, enjoin stock li older from maintaining
^uit In State court against company to place road in hands of
receiver.

Syl. 4 (XII, 1027). State Injunction against Federal proceedings.

Approved in Farmers* Loan, etc.. Co. v. Lake St R. R. Co., 177

U. 8, «1, 44 L. 071, 20 Sup. Ct SOS. holding filing of bill for fore-

<^lo%ure of mortgage in Federal court and issuance of 8ubpa»na In

*^it, give Jurisdiction as against action subsequently commenced in

Slat^ court by summons served before service of Fedurnl subpoena:

^vsQs v» Gorman. 115 Fed. 402, holding Federal court can not enjoin

^k of estate lands ordered by Arkansas Probate Court to pay

Judgments against estate, though Injunction suit is ancillary to suit

^^ «€t aside such Judgments for fraud, commenced after sale

^fdt'r^; Hendryx v. Perkins, 114 Fed. St)7, holding decree vacating

Prlof decree for fraud in original bill, and restoring parties to

former situation in cause, is Qual and appealable; Phelps v. Alulual

*^^J^rve, etc.. Assn., 112 Fed. 465, holding Federnl court cjiunot

^'JJoId receiver apixnnted by State court of concurrent Jurisdiction

'^^tu acting under bis appointment where no priority of jurisdiction

** clnioied, on ground that State court had no jurisdiction to make

*Ppoiuiinent: United States v. Eiseubeis, 112 Fed. 105, holding

^^n^ condemnation suit commenced by government in Federal

^^'irt, but process not served nntil after service of summons on

^*fendant In State, action brought by third person In land sought

** be condemned. Federal court after condemnation pri»perly gave

^^^ii to State judgment in distribution of award; Oliver v. Parlin

169 U. S. 466-550 . Notes on U. S. Reports. 8£

ft Orendorff Co., 105 Fed. 275, holding where in equity suit in Fe<
eral court to cancel trust deed for fraud grantor and grantee 1
such deed were made defendants, and grantee answered, and aft<
cause set down for hearing owner of trust deed commenced for
closure in State court and sequestered property, Federal court ha
no such priority of jurisdiction as to warrant injunction agalni
State proceedhigs; Schaberg v. McDonald, 60 Nebr. 501, 83 N. 17
739, refusing to enjoin suit for assessment ordered by comptroUi
by receiver of insolvent banls, where Federal court had jurlsdictic
over receiver and questions growing out of administration of bank
assets.

Distinguished in National Surety Ck>. v. State Bank, 120 Fed. 60
holding Federal court may enjoin plaintiff in an unconsclonab
judgment of State court from using it to extort money from d
fendant who in equity and good conscience ought not to pay it.

169 U. S. 460-550, 42 L. 819, SMYTH v. AMES.

Syl. 1 (XII, 1027). Federal equity — State limitations.

Approved in Cotting v. Godard, 183 U. S. 113, 46 L. 110, 22 8u]
Ct. 44, holding suit by stockholders against corporation and t
officers and attorney-general to restrain enforcement of a statu.
is not collusive merely because corporate officers agree with stoc
holders as to invalidity of statute; BlacliL v. JaclLSon, 177 U. S. 2M
44 L. 807, 20 Sup. Gt 653, holding Oklahoma court cannot grm
mandatory injunction to establish possession of homestead, wh«
no special grounds of equitable relief shown and forcible detaiv
lies, and jury trial is not waived; Gruickshank v. Bidwell, 17^
S. 81, 44 L. 381, 20 Sup. Gt. 283, refusing to enjoin customs ^
lector from enforcing act of March 2. 1897, to prevent importal^
of impure and unwholesome teas, on ground of unconstitutionft. 1
of act; Twin City Power Co. v. Barrett, 126 Fed. 307, holding wfcs
complainant secured options on lands to develop water comi>s
and transferred same to others under contract by which they ^wr<
to organize corporation and pay complainant in bonds or retu
options, he could, a short time prior to expiration of options, »
for appointment of receiver to complete purchase, affirming Barre
V. Twin City Power Co., 118 Fed. 8G5; Jones v. Mutual Fidelity Co
123 Fed. 519, upholding Federal jurisdiction to appoint receiver to
insolvent corporation under 19 Laws Del., chap. 181, at suit of na
secured creditors who have not reduced claims to judgment; V^'
ware. etc.. li. U. Co. v. Frank. 110 Fed. 695, holding equity court
has jurisdiction to enjoin wrongful acts by defendants where com-
plainant's legal remedy involves numerous actions against in»-
sponsible defendants to recover small sums, in which damaf^
would not be clearly susceptible of prool[, and which if succetffo'
would not result in practical benefit to complainant; Southern Piw
I'o. V. I lull. U)Ti Fed. 8'J. uphohliuc: I'ederal couit*s equitable jur.s-
diction over suit to quiet liile, though complainant is not in power

Smyth V. Ames.

169 tJ. S. 466-550

sloQ, Where such snit Is authorized by State statute and It appears
from record that defendant Is not In possession; Mlnnen polls Brew-
ing Co. T. M'Gillivroyp 104 Fed, 270, upholding Federal jurisdiction
over suit to enjoin State officers from enforcing Daltota statute
imposing license on liquor dealers by seizing goods for nonpayment
af license, on ground of Invalidity of statute under Federal Con-
itimtion; United States Life Ins. Co. v. Cable, 98 Fed. 764, T05,
upholding Federal equity Jurisdiction over suit for cancellation of
Insarauce policy after death of insured, notwithstanding commeoee-
iiieiit of action on policy by defendant in State court, where bill
ttliejjed facts showing delivei-y of policy procured by fraud. See
M Atti. St Kep- 918, note.
EjL 2 (XII, 1027). Federal equity jurisdiction.
Approved in Hanley v. Kansas City South. Ry. Co., 187 U. S.
^fi» 23 Sup. Ct. 215, 47 L. 335. holding Arkansas railroad commis-
sion cannot regulate rates on goods shipped from one point in State
to another, where route is for considerable distance In Indian
territory; Detroit v. Detroit Citizens' Street R. R. Co., 184 U. S.
3*0* 4G L. aK>, 22 Sup. Ct 415. upholding equity jurisdiction over
••^It to restraJQ city from enforcing ordinances reducing rates of
*are on ground that they impaired obligation of contracts entered
*^to betR*eeu city and various predecessors of complainant; National
^nrcty Co. v. State Bank, 120 Fed. 002. holding Nehr. Code,
• 8 0O2~Cll^ authorizing original suit in court in which unconseion*
^ *'le judirment was rendered, to enjoin its collection, does not im-
I*«ijr Federal Jurisdiction to grant appropriate relief for like cause
^^bere cltizensiiip and amount in controversy give jurisdiction;
Suited States v. Southern Pac. R. R, Co.. 117 Fed. 554, upholding
^^uity jurisdiction over suit by United States to set aside patents
^**Tt)iHK)U8ly issued to railroad under grants to test bona fides of
^^Tchas^rs and to estalilish their rights in any lands so patented
^^^ to require accounting from railroad as to lands involved which
*^ iiaa sold; I^s Angeles City Water Co. v. City of Los Ai^geles. \m
*^^. 716. upholding Federal jurisdiction of suit by water company
^*> enjoin enforcement of municipal ordinance fixing water rates, on
^'■t'lnd that It Impairs contract obligations though contract, as
^l out in bill, expired by its terms prior to passage of ordinance,
^liere It is alleged to be still in force; Kimball v. City of Cedar
*^pl(ls. 99 Fed. 132. upholding Federal jurisdiction over suit by
*l<Jckholder in water-works company to restrain city from enforcing
^iter rates, on ground that they are so low as to deprive stock of
^ruitig ability: Western Union Tel. Co. v. Myatt, 98 Fed. 353. 3Ci7»
^fkolding Federal equity jurisdiction to enjoin Kansas court of
Citation from enforcing rate schedule; Great Hive Ladies of Mac-
'^nbees v. Supreme Hive. 129 Mich. 334. 88 N. W. SSU. upholding
*^Kbt to tnjnnrtlon by fraiernaf society against like society, .'illejrlng
^tiiority to extend to otbur Statesi and ownership in ritualistic

169 U. S. 466-550 Notes on U. S. Reports.

book, and its right to use such book in other States,
license to defendant to use it and alleging defendant's
exclusive right to use it, and threatens to prevent co
from using it by repeated suits; City of Albert Lea ▼. ^
Minn. 251, 86 N. W. 84. upholding jurisdiction of suit to
plaintifiTs right to maintain existing dam, and to restrai
ants from interfering with dam, and from prosecat
brought by them individually against plaintiff for damag
by said dam; Barton Nat Bank v. Atkins, 72 Vt. 41, 47
upholding equity jurisdiction over suit by creditors t
stockholder's liability.
Syl. 3 (XII, 1027). Suit against officers as suit against
Approved in Prout v. Starr, 188 U. S. 542, 23 Sup. Ot
587, reaffirming rule; Spring Valley Water-Works v. San !
124 Fed. 602, holding in suit against municipality and 1
to enjoin enforcement of water rate ordinance defenda
sent taxpayers who are bound by the proceedings; Starr ▼
etc., Ry. Co., 110 Fed. 8. holding where Federal court 1
railroad stockholders restrained company from putting
State rate schedule, and enjoined State officers from enfoi
statute, it may- enjoin State suit by attorney in name ol
recover penalty for failure of railroad to enforce rates;
Gas-Light Co. v. Barker, 109 Fed. 695, holding suit by
pany against State gas commission and attorney-genen
charged by statute with duty of enforcing orders of co
to enjoin threatened proceedings to enforce such an ord
suit against State; Hickman v. Missouri, etc., Ry. Co.,
120, holding suit by State railroad commissioners agains
to enforce obcdieme to rate schedule adopted by comi
removal to Federal court.

Distinguished in Smitli v. Reeves, 178 U. S. 442, 443, *
1144, 1145. 20 Sup. Ct. 921, holding suit against Calif oi
treasurer for recovery of taxes paid to him is suit agaii
'(Joulter V. Weir. 127 Fed. 905, holding under Kentucky st
vidiiig for taxation of intangil)le property of certain co;
and making part payable directly into State treasury and
apportionabie to certain counties, suit against State a
restrain collection of tax is not maintainable in Federal
to part due State; Union Trust Co. v. Stearns. 119 Fed. 79
suit against attorney-general to enjoin institution of crimi
cution In name of State under State statute, by which
charj^ed with no special duty, is suit against State; «
opinion In South Dakota v. North Carolina, 192 U. S. 33:
Ct. 2S2. 48 L. 4(»i>, majority upholding Supreme Court'
jurisdiction over suit by one State as donee of holders
issued by another State and secured by railroad stock
to such State to compel payment of bonds and subject
satisfaction of debt.

m

Bmyth v. Ames.

IGO U. S. 466-550

Syl 5 (Xn,

Amendment

ll>28). Corporation la person wtthin Fourteenth

^

Approved in Central of Georgia Ry. Co. v, Macon. 110 Fed, 871 »

holding where railroad has lawfully acquired possession of terminal

facilities under grant from city* and is in possession, It is deprived

of property without due process by ordinance declaring its rights

forfeited and directing mayor to take possession; Street v. Varuey.

etc., COm 160 Ind. 345. 66 N, E. 898, holding void minimum wage

law^ of 1901, flilng minimum wage to be paid unsltiUcd laborers

etnpJoyed upon putdlc work of State, counties or cities; Pinney v.

Provident Loan, etc., Co.. 106 Wis. 402. 82 N, W. 310, holding void

Stat. 1808, § ITTob, providing that until domestic corporation has

filed with register of deeds of county where its principal office is

located a list of officers upon whom service is to be made, process

txx&y be served od register of deeds.

SyL 6 (XII, 1028J. Due process — Rates rendering property
▼al\ieles8»

Approved In Wallace v. Arkansas Cent. R. R. Co., 118 Fed, 424,
restraining railroad commission from enforcing rates alleged to
Amount to taking of property without due process by reducing earn-
ings below amount reqtiired to pay operating expenses, taxes and
fitted charges, and cause is submitted on demurrer to other parts
t>t bill; San Diego Land, etc., Co. v. Jasper. 110 Fed. 714, upholding
a.ct Cal. March 2. lbS3, empowering supervisors to fix water rates
t>ased on reasonable value of plant; Abern v. Newton & B. St. Ry.
Co,« 105 Fed. 703. refusing preliminary injunction to restrain en-
forcement of statute regulating street-car fares at suit of stock-
liolder, notwithstanding doubt as to validity of act, where Irrepar-
**t»le injury not shown; Trammell v, Densmore, 102 Fed. 700, up-
holding Georgia constitutioual provision requiring legislature to
Vn«s laws regulating raiiroad rates and railroad commission's rates;
^-bicflgo Union Traction Co. v. Chicago, 190 III, 642, 65 N. E. 492,
'leieruilnlng reasouableuess of street-ear fares fixed by ordinance;
^^aie V. Minneapolis, etc., R, R.. 80 Minn, 204, 205. 83 N, W. 65,
^'^^^ ajip lying rule where rates fixed on carload lots of coal; State v.
^irle, m 8. C, 203. 44 S, E. 784, holding party affected by ordTu-
*iici' iB entitled to show by testimony tliat It Is so unreasonable in

its

operation as to amount to confiscation of property.

I*i«lhigulshed in Louisville & N. R. R, Co, v, Kentucky, 183 U.
^* 51L 46 L. 303. 22 Sup, Ct 99, upholding Ky, Const,, g 218, and
''^'i^ ^tais. 1894, § 820, prohibiting railroads from charging more
^**f «bort than for long haul.

^yl 1 (XII, 1029). Whether rates deprive property Is Judicial

*^liproved in Trammell v, Den.smore. 102 Fed. 800. reaffirming
•^l*^; Chicago. MUwankee. etc., Rj. v. Tompkins, 176 U. 8. 173, 179,
^ '-• 420, 423, 20 Sup. Ct. 338, holding court should refer testimony

169 U. S. 46&-550 Notes on U. S. Reports. 802

In suit to restrain enforcement of railroad commission's rate
schedule, to competent master to find facts relating to reasonable^
ness of rates; Louisville, etc., R. R. CJo. v. M'Chord, 103 Fed. 220.
221, holding void Ky. act of March 10, 1900, providing that railroad
commission on complaint that any railroad is charging extortionate
rates may after hearing on due notice fix rates which such company
shall charge for lilse services; Kimball v. City of Cedar Rapids, 99
Fed. 132, upholding Federal jurisdiction over suit by stockholder in
water company to restrain city from enforcing water rates, on ground
that they are so low as to deprive company of property, though if
corporation sued jurisdiction would not exist; Western Union TeL
Co. V. Myatt, 98 Fed. 342, 358. upholding Federal equity jnrisdictJon
to enjoin Kansas court of visitation from enforcing rate schednle;
Matthews v. Board of Corporation Comrs., 97 Fed. 401, nphold-
ing jurisdiction to determine reasonableness of rates established by
North Carolina corporation commission; State ▼. Johnson, 61 Kan.
848, 00 Pac. 1083, holding void Laws 1898, chap. 28, creating conrtf
of visitation; Carson v. Brockton, 175 Mass. 245, 56 N. E. 2, up-
holding Stat. 1892, chap. 245, providing that any town except eest-
tain class may establish rate for use of sewers, to be paid l^ nsen
thereof, and city ordinance thereunder fixing charges for ** metered "
and ** unmetered " water service in connection with sewer; Janvriiu
Petitioner, 174 Mass. 517, 55 N. B. 382, upholding act 1895, a%
amended in 1897, giving to water takers within ten miles of 8tat«
house in Boston, aggrieved by rates, right to apply to conrt to
determine reasonableness of rates charged, and to fix rates; distent-
ing opinion in Taylor v. Beckham (No. 1), 178 U. S. 601, 44 L. 1200,
20 Sup. Ct. 1015, majority denying jurisdiction to review StJite
Supreme Court's determination that it had no right to review d^
termination of gubernatorial election contest by tribunal to wfcJcb
that determination was exclusively committed by State Cons^to-
tion. See 90 Am. St. Rep. 248, note.

Syl. 10 (XII, 1029). Reasonableness of local rates, ^ow
determined.

Approved in Interstate Commerce Commission v. Nashville, O 4
St L. Ry. Co., 120 Fed. 935, holding finding that rates for shipm^oti
to particular point are unreasonable cannot be based on evidcnw
which only tends to show that they are too high as compared wfflr
rates between initial point and one or two other points; State r.
United States Express Co., 81 Minn. 91, 83 N. W. 466. holding
railroad commission for purpose of fixing rates may exact from
carrier information as to all its property and business within Stite
but not as to property out of State, nor as to interstate bosinc*

Distinguished in Minneapolis & St. L. R. R. Co. v. Minnesota, 1*
U. S. 2G7, 268, 46 L. 1157. 1158, 22 Sup. Ct. 904, holding tariff toed
by commission for coal in carload lots is not proved unreasonibte
by showing that if such tariff were applied to all freight road
would not pay operating expenses.

Smyth V. Ames. 169 U» S. 4G6-550

SyL 11 (XII. 1029). Basis for carrier's rates.
Approved la Stanislaus Co, v. San Joaquin, etc, Co., 1D2 U. S.
215, 24 Sup. Ct 247, 48 L. 414, upholding reduction of water rates
by supervisors acting under Cal, Stat. 18S5, p. &5, § 5, so as to
glte annual Income of 0 per cent upon the then value of property
of water company actually used in supplying water to the puhlic;
CottlDg V. Godard, 183 U. S. 89, 46 L. 101, 22 Sup. Ct 35. holding-
void Kan. act of March 3, 1897, defining stockyards and regulating
cbarges thereof. In that it applies only to Kansas City Stockyards
Company and not to other corporations engaged In like huslncss iu
State: Spring VaL Water- Works v. San Francisco. 124 Fed. 50:i
tolling void water rates reducing net income to 4 40/100 per cent
^D value of property employed In service or 3 30/100 per cent, on
Its gtock after deducting its fixed charges, where usual net Income
*rom capital invested in similar enterprises was 6 per cent.; Kansas
City, etc., Ry. v. Board of Railroad Comrs., lOG Fed. 357» holding
State cannot regulate railroad rates between two points In State
^iiere course of transportation is for considerable distance through
*aother State; Matthews v. Board of Corp. Comrs., im Fed. 8,
folding where in proceeding to set aside order of corporation com-
'Jiis.Hion fixing rates on fertilizers, special commissioner could not
**^twmine exact cost of transportation, hut found that there was
* profit at the rate and that for four years preceding railroad had
^'^ned fair profit on present value of properly, finding that rates
'^ere not unreasonably low was not erroneous; Kennebec Water
^Ifit V. Wnlerville, 07 Me. 201. 202, 54 Atl. 12, 13, holding, in fixing
^^ue of water company's franchise which is taken by eminent
^^rjrnaln, fact that It is not exclusive nor perpetual must be con-
sidered. See 80 Am. St Rep. 533, 534, note.

SyL 12 (XII, 1029). Carriers — Public exempt from unreasonable
*^te8.

Approved In Interstate Commerce Cora. v. Louisville, etc., R. R.
^^.» 118 Fed. C24. holding rates on naval stores and cotton unjust
*Ud unreasonable in themselves and unduly discriminating in that
^«j are prohibitory of shipments to point where there is no coni-
l*^tition; Kennebec Water Dlst v. Waterviile, 97 Me. 207, 54 Atl. Hi
'Hrtding in determining value of franchises of water company whlcJi
•*e taken by eminent domain, fact that they are not exclusive nor
Perpetual must be considered.

Syl. 13 (XII, 1029). Railroad entitled to Just compensation.
Approved tn Jack v. Williams, 113 Fed. 827, holding court could
otder receiver to dismantle railroad and sell materials where it
^ould take large sum to make It safe and it was being operated

1G9 U. S. 551-557 Notes on U. S. Reports. 894

Syl. 14 (XII, 1030). Nebraska rate law of 1803 void.

Approved In Pacific Express CJo. v. Cornell, 59 Nebr. 379, 81
N. W. 381, holding maximum rate law of 1893, being void, act of
1887 creating board of transportation is in force.

Distinguished in State v. Eskew, 64 Nebr. 601, 602. 69 N. W.
629, upholding act 1887, imposing duties of labor commissioner on
governor and providing for appointment of special deputy to assist
him in discharging them; Nebraska Telephone Co. v. Cornell 59
Nebr. 749, 82 N. W. 2, holding court will not take judicial cognizance
of net earnings of railroads and cannot assume without proof that
maximum rate law of 1893 is confiscatory legislation.

(XII, 1027). Miscellaneous.

Cited in Cotting v. Godard, 183 U. S. 85, 46 L. 99, 22 Sup. Ct 33,
holding void Kan. act March 3, 1897, defining stockyards and regu-
lating charges thereof, in that It applies only to Kansas City Stock-
yards Company and not to other stockyard companies In Kansas;
Starr v. Chicago, etc., Ry. Co., 110 Fed. 5; Higginson v. Chicago,
etc., R. R. Co., 102 Fed. 198, and Higginson v. Chicago, etc., B. R
Co., 100 Fed. 236, all reciting history of litigation; Kansas City.
etc., Ry. V. Board of Railroad Comrs., 106 Fed. 356, to point thit
Congress has exclusive control over commerce between States;
State V. Jacksonville Term. Co., 41 Fla. 413, 27 So. 236, upholdins
Laws 1S99, chap. 4700, § 6, requiring admission into passenger^
terminals of all railroads desiring or required by railroad con^<-
mission to enter and fixing compensation for use of such terminskA:
Watkins v. North American Land, etc., Co., 107 La. 115, 31 So. tWit.
upholding petition by stockholder alleging that he has exhausted
all available means through corporate agencies and impleadlos
corporation and purchaser of its assets, and praying that sale be
set aside for lesion beyond moiety.

lUI) U. S. 551-557, 42 L. 850, MEURITT v. BOWDOIN COLLEG:^.

Syl. 1 (XII, 1030). Courts — Plea requiring dismissal — CZ^-
stitutional question.

Approved in Chamberlain v. Peoria, etc., Ry. Co.. 118 Fed- 3i
holding where no certiticate of jurisdictional question is certiilerf
by Circuit Court during term at which decree is entered, ooort
cannot subsequently make certificate; Blythe Co. v. Hinckley^ UJ
Fed. 838, holding an attempted appeal to Supreme Court in ctue
where no appeal lies to that court does not operate to suspend
running of time within which bill of review must be filed; Reed r.
Stanley, 07 Fed. 522, holding where party against whom decree is
entered by Circuit Court of equity has no right of appeal to
Supreme Court, time within which he may file bill of review \»
limiteil to six months allowed by statute for taking appeal to
Circuit Court of Appeals.

?^!Xi Notes on U. 8. Reports. 1G!> U* S. 55T-GS5

liJU D. S. 557-685. 42 L. 853, BACKUS V* FORT STREET* ETC.,
DEPOT CO.
Syl. 2 (Xll, 1030). Review of State proceediugs not Involving
VeUeral question-
Approved in Mason v. Missouri. 179 U. S. 334, 45 L. 210, 21
»up. Ct. 128, holding Supreme Court will follow Missoyrl decision
uijUolding power of legislature under State constitutional provislou
respecting registration laws to create more tban one class t-om-
l>oged of cities having In excess of 100,001) Inhahltants.

SyL 3 (Xll, 1030). Condemnation — Possession before compensa-
tloiL

Approved in WOllams v. Parker, ISS U, S. 502, 23 Stip. Ct. 442,
4'L5(J2, upholding aiass. act May 23, 1898, prohibiting erection in
Boston of buildings over certain height, and providing that any
pensoQ owning buildings then la course of construction may fe-
wer damages in action commenced against city within two years
f«r du mages due to change of plans; United States v. Honolulu
I'lamation Co.. 122 Fed. 580, holding la proceedings by United
'^faies to condemn iand in Haw^aii for public use issue of fact as
^ Tulue of land is triable by jury; Salt La lie City, etc., Co. v*
Nt Ulte City* 24 Utah, 297, 07 Pac. 703, upholding Rev, Stat
^^S, i 3507, providing that plaintiff in cond em nation proceed logs
^aSt on fl:Iing bond conditioned to pay adjudged value of property
^Ud damages if condemned, enter into possession of property and
<Jo <!ertaln work; dissenting opinion in The Robert W. Parsons Co.,
*^1 r. S. 4v», majority holding, as construeil by State courts, N. Y,
*-«vr8 1807, chap. 418, H 30. 35, providing for enforcement in State
*^tirt by proceeding In rem of lien for repairs to canal-boat uavi-
^•tlag Erte canal, Infringes upon exclusive Federal admiralty
•^^rlsdiclion.

Hyl 5 (Xll, 1030), Equal protection — Change of adjudication,
^ approved in league v. Texas, 184 U. S. 158, 46 L, 480, 22 Sup.
^^« 4T6. holding Tex. Gen. Laws 1807, chap. 103, p. 132, pro-
^'•ifng for coJ lection of taxes by Judicial proceedings as applied
^ taxes already delinquent at time of its passage; Maxwell v.
^^w, 170 U. S. 004, 44 L. r>()(l. 20 Sup. Ct. 457, upholding pro?^e-
^^itioQ for felony under Utah Constitution by Jury compiKsed of
^81it persons.

^yi 6 (XII. 1030). Review of State Judgment condemQing
**^perty.

Approved In Adrlondack Ry. v. New York State, 176 U. S. 340.
- *"* L 500. 20 Sup. Ct 405, holding railroad's right to condemn

■ *^ 10 long as It is unexecuted except by mere filing of mnp of

■ ^^Opoied route Is not vested so as to make condemnation by Stale

■ ** ottier purposes an Impairment of contract

IGO U. S. 58G-G00 Notes on U. S. Keports. «Utt

Syl. 7 (XII, 1030). Objection to findings must be made below.

Approved in Frizzell v. Omaha St. Ry. CJo., 124 Fed, 180, hold-
ing wliere charge in negligence case is correct, omission to give
other rules of law or to state other facts not challenged by mere
objection to instruction without request for instructions.

1G9 U. S. 586-600. 42 L. 865. WILSON v. NORTH CAROLINA.

Syl. 1 (XII. 1030). Following State statutory construction.

Approved in Provident Savings Life Assur. Soc. v. Hadley, 102
Fed. 860. holding under Massachusetts statute declaring policy
referring to application must have attached copy of application,
application inadmissible in action on policy where policy approvea
and accepted in Massachusetts though application made in New
Yorl£.

Syl. 2 (XII, 1030). Revi^^w of State Judgment removing SUte
oflicer.

Approved in Taylor v. Be<^kham (No. 1), 178 U. 8. 672. 44 L. 1198.
20 Sup. Ct. 899, denying S^upreme Court's Jurisdiction to review
State decision denying J»ixisdiction to review determination of
gubernatorial election content by tribunal to which it was ex-
clusively committed by State Constitution; Hawkins ▼. Boborti.
122 Ala. 148. 27 So. 332. upholding act of February 18, 1809, cre-
ating board of revenue for Jefferson county and abolishing coar^
of county commissioners of said county; Taylor, etc. v. Beckhaiife.
etc.. 108 Ky. 305. 94 Am. St Rep. 372, 56 S. W. 184, holding courts
cannot interfere with determination of gubernatorial election
test by legislature, as under Constitution its decision thereoim
conclusive; In re McKee. 19 Utah. 244. 57 Pac. 27, upholding
viction of grand larceny by Jury of eight persons as provided by
Constitution and statutes; Hartigan v. Board of Regents, 49 W. Va.
25, 38 S. E. 703. holding notice and hearing not required of iwo-
ceeding by university regents for removal of professor; dissent tiiv
opinion in Taylor v. Beckham (No. 1). 178 U. S. 696, 597, #-# L
1*J07, 20 Sup. Ct. 899. majority denying Supreme Court's inrk^dlc-
tion to review State decision denying Jurisdiction to review <■efe^
miuation of gubernatorial election contest by tribunal to whlci li
was exclusively committed by State Constitution. See 94 Am. 8t
Rep. 379. note.

Syl. 3 (XII, 1031). Federal question — Refusal of Jury triaL

Approved in Louisville, etc.. R. R. Co. v. Schmidt, 177 V, &
23(>. 44 L. 750, 20 Sup. Ct 622, holding mere fact that proceedlflf
to hold a party liable was by rule to show cause is not wint of
due process; Weston v. Ralston, 48 W. Va. 188, 38 8. K. «i
nrjjuendo.

Syl. 4 (XII, 1031). Federal question must be reaL

.Vpproved in Missouri, etc. v. Zachritz. 184 U. S. 697, 46 L. T6i
22 Sup. Ct. 940; Wisconsin v. Commissioners of Public Lands, 183

887

Notes ou U. S. Ueparta.

IGO U. S. G0a-(U4

U. S. 603» 22 Sup. Ct 934, and Phlnuey v, Shepard, etc, Hospital
Tmstees. 177 U. S. 170, 44 L. 720, 20 Sup. Ct. 573, 574, all reaffirming
role; Sawyer v. Piper, 189 U. S. 157, 23 Sup. Ct. 634, 47 L. 759.
dLsiuissiog writ of error where only Fed era I questloa alleged ia
that refusal of State court to allow plaintiff in error to file supple-
tnental answer In suit in which foreclosure and sale bad been
^reed was tailing property witboot due process and State court
M not appear to have abused discretion; New Orleans Water-
Works Co. V. Louisiana, 185 U. S, 346, 46 L. 942, 22 Sup, Ct. 694,
ilenylug existence of Federal questions where claim was that for-
feiture of charter of water-works company for maintaining illegal
rntes by State decree after full hearing on quo warranto impaired
obl5;^ation of contracts or devised due process or equal protection
f>wnuKe by charter mandamus was lei^al remedy; dissenting opinion
in Taylor r. Beckham (No. 1), 178 U. S. 582, 44 L, 1202. 20 Sup. Ct.
5i^2, majority denying Supreme Cotirt's juriadiction to review State
<^urt'g denial of Jurisdiction to review determination of guber-
natorial election contest l>y tribunal to which it had been exclusively
<^ommitted by State ConsUtution.

i^ U. S. 600-606, 42 L. 873, UNITED STATES v. BUTTER-
WORTH.
SyL 1 (XII, 1031). Abatement of mandamus agalust government

Approved tn Murphy v. Utter, 180 U. S. 101, 46 L. 1075, 22 Sup.
^-t. 7T8. holding fact that members of Arizona board of loan com-
**^lBsIoner8 were changed between time petition for mandamus
^^«8 filed and time when peremptory writ was filed did not abate
i>t-oc*edlnga,

^®9 a S. 606-612, 42 L, 875, McCORMIOK HARVESTING MACH.
CO. V, AULTMAN.

(XII, 1031). Mlscelianeous.

Cited In Foreman v. Burleigh, lOD Fed. 314, as Illustration of
^^Dgrer of following dicta.

^^ U. S, 613-644, 42 L. 878, MISSOURI. ETC, RY. v. HABER,
Syl. 3 (XII, 1031). State protection from diseased cattle.
Approved in Reid v. Colorado, 187 U. S. 151, 23 Sup, Ct &7, 47
^ 115, upholding Colo, Sesa. Laws 1S85, p. 335, prohibiting im-
'*^Ptaiion of cattle from south of thirty-sixth parallel imless flrst
I **t>t for ninety da3*8 north of that parallel, affirming Held v. People,
•^ nolo. 343, 68 Pac. 231. 03 Am. St. Rep. 76; United States v.
^ler, 123 Fed. 120, upholding, under act May 29, 1884, order of
^^Icultural department giving notice of existence of scabies on
*^^p and prohibiting transportation or driving of diseased sheep
*fOiii one State to another; State v. Rasniussen, 7 Idaho, 7, 10. TiD
^*0. 034, upholding act of March 13, 18U9. establishing quarantine
Vol. HI — :*7

169 U. S. 613-6^ Notes on U. S. Reports. 8D^

against diseased sheep; St Loois, etc, Ry. t. Smith, 20 Tex. CS. -^.

459, 49 S. W. 631, upholding Tex. live stock law and regulatlo ai

thereunder of live stock sanitary commission. See 93 Am. St
84, note.

SyL 6 (XII, 1031). State statute incidently affecting comme
Approved in Union County Nat Bank t. Ozan Lumber Co., Cr* m
Fed. 211, holding void Ark. Sess. Acts 1891, p. 296, requiring ^

negotiable Instruments given in payment of patented machine .^^
patent right to so state on their face, but exempting therefr

f<3?

dealers selling patented things in due course of business; Un^^ ^^^
States V. Morris. 125 Fed. 324, upholding Rev. Stat., | 1978 (* — ^T^
rights act); Westheimer v. Weisman, 8 Kan. App. 78, 54 Pac ^

upholding Gen. Stat 1889. par. 2550. relating to soliciting or — ^^
for sale of liquor, as applied to agent for nonresident princlp^^^^

SyL 7 (XII, 1032). State exclusion of diseased catUe.

Approved in Connolly v. Union Sewer Pipe Co., 184 U. S. sus,
46 L. GS9, 22 Sup. Ct 439. holding void IlL trust act dlsc?r/Qi.
inating in favor of agricultural products or live stock in hands of
producer by exempting them from provisions prohibiting recoveiy
of price of articles sold by any trust or combination formed la
violation of that act

Syl. 8 (XII. 1082). Commerce — Penalixing importation of dis-
eased cattle.

Approved in Smith v. St Louis & Southwestern R. R, Co.. 181
U. S. 257. 45 L. 850, 21 Sup. Ct 606, upholding quarantine regula-
tions established by governor on recommendation of live stock com-
misssiou in pursuance of Tex. Rev. Stat 1895, art 5043c, whereby
importation of cattle from Louisiana is prohibited until certain
date; Austin v. Tennessee. 179 U. S. 349. 45 L. 228, 21 Sup. Ct 134.
upholdiu^i; Tennessee statute prohibiting importation or sale of
cigarettes if it does not apply to original packages; Louisiana ▼■
Texas. 170 U. S. 24. 44 L. 350. 20 Sup. Ct 259. holding controTeff.t
between two States within Supreme Court's original jurisdiction
not created by enforcement of quarantine regulations by health
ottioer which governor permits to be executed, whereby embargo
is placed on interstate commerce.

Distiuijuisheil in dissenting opinion In Smith t. St Louis *
Southwestern R. K. Co., ISl U. S. 2t52, 45 L. 852, 21 Sup. Ct 008.
majority upholding quarantine regulations established by governor
on recommoudation of live stock commission in pursuance of Tex.
Rev. Stat. 181C>, art 504oc, whereby importation of cattle from
Louisiana is prohibited until certain date.

Syl. i> (XII. lOoJ). State statute in absence of congressional

ApproviHl in Pennsylvania R. R. Ca v. Hughes;. 191 U. S. 48B.
uphoUling refusal of State court to limit liability of carrier for nef-
ligence in execution of contract for interstate carriage to valtt

^ —

Nates on U* IT Reports. 169 0. S. 644-732

reed upoD; Reld v. Colorado. 187 U, S, 147. 23 Sup. Ct, 96, 47 I>.
I upholding Colo. SesB. Laws 18S5. p. 335» prohibiting importation
CHttle from south of thirty-sixth parallel uulesa first kept for
lety days north of that parallel, affirming 29 Colo. 343. See 93
n. St. Rep. 87, note.

87L 10 (XII, 1032}« Kansas act relating to Importation of diseased
ttle.

Approved in dissenting opinion in State r. Smiley, 65 Kan. 2S7,
I Pac. 214» majority upholding Laws 1887, cliap. 265, known as
itl- trust law.

19 U. S, 644-648. Not cited.

fd U, S, 64^732, 42 L, 890, UNITED STATES v. WONG KTM
ARK.

Syl 3 (XII, 1032). Dicta — General expreaaiona in opinion.
Approved in King v. Pomeroy, 121 Fed. 2t)5. reaffirming rulei
1 re Wolf & Levy. 122 Fed. 130» holding where bankrupt gave
Ote to creditor, which he afterwards paid, preference was in pay-
itai and not in giving of note and must be considered a a having
een given at date of such payment.

Syl 5 <XII, 1033). Exclusion acts executed In subordination to
'oorteenth Amendment.

Approved in United States v. Tuck Lee. 120 Fed. 991, holding,
inder act of September 13, 1888. where Chinese laborer holding
^rtiacate departed at point other than one designated in act with-
ttt permission of collector to leave and re-entered at undesignatea
K>rt, be could be deported i United States v, Lee Huen, 118 Fed. 455,
ftnstniing exclusion act May 5, 1892, § 3, placing burden on Chinese
^ (fttabUsh by affirmative proof, to satisfaction of commissioner,
Igbt to remain in country; United States v. Hung Chang, 12(J Fed.
^' arguendo.

Syl 7 (XII. 1033). Child of resident Chinese is citizen.

Approved In Chin Bak Kan v. United States, 186 U. S. 200, 46
^ ll2f{, 22 Sup. Ct. 894, holding mere assertion of citizenship can-
*Qt deprive commissioner of statutory right to adjudge Chinese to
'^iiulawfully within country unless he shall establish affirmatively
^Siit to remain: Slug Tuck v. United States, 128 Fed. 593, hold-
H where alleged Chinese alien apprehended in deportation proceea-
H establishes prima facie cose of citizenship, habeas corpus lie»
^ determine legality of detention; In re May Quong Shlng. 125
N, 642, holding under act of February 14, 1003, executive officers
•^depnrtment of commerce could determine wbether or not Chinese
*^kiag to enter was born In the United States i Tsoi Sim v. United
^^tes. 110 Fed. 025. holding Chinawoman who lawfully entered
>Dntry Ijefore enactment of any exclusion Inws but failed to oli-
\k certificate, and was prior to arrest ranrried to citizen, cannot
I deported; United States v. Leung Sam, 114 Fed. 703, upholding

170 U. S. 1-41 Notes on U. S. Reports* 900

commisBioner's order o'f deportation where deported Chinese and
his father both testified to his birth in San Francisco and that be
left for visit to China in 1898; Steams v. Allen, 183 Mass. 409, 67
N. E. 351, holding, under Pub. Stat 1882, chap. 148, providing for
adoption of children where mother of adopted child which was
bom in Massachusetts surrendered it to children's home in such
State for adoption, Massachusetts court had Jurisdiction to au-
thorize its adoption though father was resident of Scotland and
did not consent to adoption.

Distinguished in In re Sing Tuck, 126 Fed. 392, 397, holding
where Chinese makes no proof of citizenship before inspector he
cannot on habeas corpus raise such question.

(XII, 1032). Miscellaneous.

Cited in Hennessey v. Richardson Dmg Co., 188 U. S. 34, 23 8up.
Ct 533, 47 L. 698, to point that term «* citizen " is analogous to
term "subject."

169 U. S. 737, 42 L. 1216, POPE v. LOUISVILLE, ETC., R. R, CO.

(XII. 1033). Miscellaneous.

Cited in Gableman v. Peoria, etc, Ry. Co., 101 Fed. 6, reciting
history of litigation.

OLXX UNITED STATES.

170 U. S. 1-36, 42 L. 927, NEW YORK INDIANS v. UNITE JD
STATES.

Syl. 2 (XII, 1034). Treaty adopted with, but proclaimed without
proviso.

Approved in Fourteen Diamond Rings v. United States, 183 C. ^•
183, 46 L. 143, 22 Sup. Ct 62, holding meaning of treaty with Spain
ceding Philippines not controlled by senate resolution adopt*^
after ratification of treaty by less than two-thirds quorum, that ^^
was not intended to incorporate Filipinos into citizenship.

170 U. S. 36-41, 42 L. 939, LEYSON V. DAVIS.

Syl. 1 (XII, 1034). State decision on gift of national bank stock-
Appointed in Farmers* Nat Bank of Arkansas City v. Uohiiaoii*
176 r. S. 682, 44 L. 637. 20 Sup. Ct 1027, reaffirming role; Holtoo
V. Davis, 108 Fed. 156, holding allegation of fraudulent conspirftCf
between plaintiff and his counsel and defendant in action In ^
terests of latter, made to impeach judgment rendered in his ti^^'
not sustained by fact that he failed to take out writ of error w
Federal Supreme Court where other parties took case there, »"*
It was dismissed for want of Jurisdiction; Wood t. DavU, 1^

DOi

Notes on U. S. Reports,

170 U. S, 41-57

Fed, 132, determfnlDg Insufflciency of evidence of fraud to enjoin
defendant from availing himself of jnclgraent procured by his fraud

at suit of one who was not pai'ty to action In which such judgment

was rendered,

170 U. S. 41-45. Not cited.

no U. S. 45-57, 42 L. M3, PARSONS v. DISTRICT OF COLUMBIA.
SyJ. 5 (XII, 1035). Conclusiveness of necessity from act for
wuter mains.

Approved In Claadwick v. Kelley. 187 U. S. 544, 23 Sup. Ct. 177«
■^7 U Ll>4, upholding Louisiana statutes aud Now Orleans ordlnaiiees
tJierennder assessing abutting lots for street paving; Goodrich v.
Detroit 184 U. S. 438, 40 L. G31, 22 r5up, Ct 39D, holding where
stJitute providing for opening of streets requires notice to parties
wbose land is to he talcen for street, fact that it does not provide
% notice to owners of land liable to be assessed for improvement
does not invalidate it; Carson v. Sewer Commissioners of Brock-
ton, lg2 U. S. 403, 45 L. 1153, 21 Sup. Ct. 862, holding where sewer
coBBtructed by assessments upon adjoining property persona using
It may he retjuired to pay reasonable sum for such use; Wight v.
Davidson. 181 U. S. 38(J, 385. 45 L. 905. 90tj. 21 Sup. Ct. 620, up-
holding act of March 3, 1809. ordering opening of streets in Dis-
^^^t of Columbia and providing for asRessment of damages upon
R«'jacent lots; French v. Barber Asphalt Paving Co., 181 U. S. 343,
^5, 45 L. 880, 890, 21 Sup. Ct. f>32, (J33. upholding assessment for
"treet improvement upon abutting owners, according to frontage,
^itljout any preliminary henring as to benefits, affirming Barber
Hhait Piiv. Co. V. French. 158 Mo. 544, 545. 541>, 58 S. W. 937,
'JS*«. Ii3}l: Barfield v. nieason, 111 Ky. 517, 03 S. W. dm. upholding
^^T' Stat., i 2838, providing for original construction of streets
'"^ 'ities of first class at exclusive cost of abutting owners accord-
'^'J to area.
I hi « (XII, 1035). Notice on levy of direct tax,
I Approved In Corson v. Sewer Commissioners of Brockton, 182
Id, s. 4,j2^ 45 Lu 1154. 21 Sup, Ct. SGI, holding where sewer con-
^Cptit'ttH] by as.sessments on adjoining property persons using it
P^f be requlj-ed to pay reasonable sum for such use; Carson v.
Hilton, 175 Mass. 245, 56 N, E. 2, upholding Stat 1892, chap. 245,
J'^vldlng that council of certain cities with sewer system may
^'''tBMlBh rates for use of such sewers, and ordinance thereunder
%ri:liig for un metered water sei'vlce ^S, and for metered service
thirty eent» per thousand gallons of sewage, but no charge to be
^ tban fs.
8jl 7 (XII, 1035). Legislature determines tax for local work.
Apiffoved in Crane v. Slloam Springs, 67 Ark. 38, 55 S. W, 957,
^Wlng Const. 1S74, art. ID. i 27, authorizing " assesamciits on

^

170 U. S. 45-57 Notes on U. S. Reports. 902

real property for local improvements in towns and cities" do^
not inhibit legislature from authorizing creation of improremen^
embracing entire area of city; Adams v. ShelbyvUle, 154 Ind. 47^
77 Am. St Rep. 488, 57 N. E. 116, upholding Barrett law of 18^
relating to street improvements, which assesses cost on proper-—-
benefited according to frontage; Hacls worth v. Ottumwa, 114 lov^^
471, 87 N. W. 426, upholding Code 1897, § 818, apportioning cost
street improvements on abutting lots according to fronta
Smith V. Worcester, 182 Mass. 234, 65 N. E. 41, uphold
Stat 1867, chap. 106, § 4, providing that owners of ^M
abutting on streets in which sewer shall be laid shall ^7^^
such sum as aldermen shall assess upon him as his pro^^
tionate share; State v. Trustees of Macalester College,
Miun. 168, 91 N. W. 485, holding Macalester college not enti -^1.
to benefit of exemptions as an educational institution from 'K^o
dens imposed to pay for water mains laid on three sides of coLle^
grounds authorized by Sp. Laws 1885, chap. 110, §f 26, 27; S<
man v. Allen, 156 Mo. 551, 57 S. W. 563, upholding charter pre
vision providing that property in sewer district shall be taxeA foi
sewer according to area; Conde v. Schenectady, 164 N. W. 263. 58
N. E. 131. holding property-owner signing petition for street pave-
ment, under charter requiring cost to be apportioned among own-
ers according to frontage, cannot object that there is takingr <>f
property without due process; Webster v. City of Fargo, 9 N. Uafc
211, 82 N. W. 733, upholding statute charging entire cost of pav-
ing city streets to abutting owners according to frontage; Kinjf
v. Portland. 38 Or. 423. 431. 63 Pac. 7, 10, upholding statutory pro-
vision requiring assessment of abutting owners for street improve-
ments and proportional assessments for street intersections and
providing for publication of notice of intention. See 82 Am. St
Rep. 459, note.

Distingrulshed in State v. Robert P. Lewis Co.. 82 Minn. 40B. 4^.
80 N. W. 612. holding void Sp. Laws 1895. chap. 110. H 26. 2T.
Imposing tax per foot of frontiige upon all lots abutting on str**^^
in which water pipes are laid, reversing on reargument 82 Minn-
40(), 401. ST) N. W. 211.

Syl. 9 (XII, 1035). Taxation — Assessment exceeding cort ^^
Improvements.

Al)proved in Wormley v. District of Columbia, 181 U. S. 402.
4:) L. 1)22. 21 Sup. Ct. 609. following rule; Barber Asphalt Pav. O
V. Freuoh. 158 Mo. 551. 58 S. W. 940. upholding assessment ^^
street improvement according to frontage without prelimln**^
henriiii: ns to benefits.

Distinguished In dissenting opinion in French v. Bart>er A«pl**
Pavlnj: Co.. ISl U. S. 358. 300, 45 L. 895. 89G, 21 Sup. Ct. 638. rO^'
jority iiplioKliuir assessment for street improvement acconiing ^^
frontaKo without preliminary hearing as to benefits.

i

m

Notes on U. S. Reports.

170 O, S. 57-113

B^II, 1034). Miscellaneous.

Cited In Barber Asphalt Pav, Co. v. French, 158 Mo. 540, 58 S.
W. 936, as to value of decisions npon particular facts when applied
u other facts,

70 U, S. 57-77, 42 L. 948. CHICAGO, ETC, B. R. V. NEBRASIvA.

Syl. 1 (XII, 1035). Folke regulation of contracts with qntisl-
ublic corporations.

Approved In Fisher v. Cushman, 103 Fed. 865, holding city
\luoT license transferable siil)iect to approval of authorities which

generally granted, is assets uuder bankruptcy act 1S08, which he
lay be compelled to transfer to trustee ^ Matthews v. Board of
orporation Comrs*, 97 Fed. 402. holding provision in railroad char-
r empowering directors to fix rates does not exempt purchaser of
impany's property on foreclosure from regulation by State; Provi-
snce. etc., SS. Co. v. Fall River, 183 Mas&. 542, ti7 N. E, 648, holding
:at* 1900, chap. 472, in regard to abolUiOD of grade crossings in Fall
iver Including provisions adopted from Stat. 1890, chap. 428* con-
ilu8 aufficlent pro visions as to notice to constitute due process;
rowne v. Turner, 176 Mass. 15, 56 N, E. 071, holding Stat. 1897,
tiap* 500, I 17, authorizing construction of tunnel and issuance of
onds therefor and providing for lease of tunnel to Boston Elevated
;iLllwaj Company, does not impair contract made by transit com-
alssioners with West End Street railway.

Syl. 2 iXII, 1035). Supreme Coqrt determines existence of con-
met.

Approved In Wi!son v. Standefer, 184 U. S. 412, 46 L. 618, 22 Sup.
?t. a.S9. holding judicifll proceeding to forfeit lauds bought from
^tate by Tex. act of 1879 is not contract right of purchaser, and
ao contract right is impaired liy act 1807, authorizing forfeiture
w^ithout judicial proceeding.

no U. S. 7S-10O, 42 L. 053, MISSOURI v. MURPHY.

Syl 2 fXII, 103ti). Municipal regulation of State gas franchise.

Approved in Chesnpeake, etc., Tel. Co. v. Balto, 90 Md. 044. 45
A^tU 448, holding company entitled under contract with city to
toustruct wire conduits in streets under direction of commissioner
^Jileh has its application for permit refused without objection to
Its 8[H'dfieat Ions may enjoin city from interfering with coustrnctiou
»f conduits.

JgOU. S. 100-113, 42 L. 9G4, BARROW SS. CO v. KANE,

l^fel. 1 (Xn, 1036). Suit by nonresident against foreign cor-

Approved in Lehman v. Baltimore. etc.» R. R., 128 Fed* 192, bold-
^8 Where plaintiff's intestate, a citizen of Illinois, was killed in
tiDs)'lvaiiia through defendant's negligence, action for his death

170 U. S. 100-113 Notes on U. S. Reports. 904

being transitory, was properly brought In Illinois; Loud^i Mach Co.
V. American, etc.. Iron Co., 127 Fed. 1010, holding plea reciting
fraud and facts showing want of Jurisdiction in State court and at
same time filing of bond and removal petition are not wairer of
foreign corporation's objection to State jurisdiction; Smith ▼.
Empire State, etc., Co., 127 Fed. 465, holding service of process
on secretary of foreign corporation maintaining principal place of
business in Washington, as authorized by 2 Ball. Codes, § 4875, Is
valid; Earle v. Chesapeake, etc.. By., 127 Fed. 241, holding foreign
railroad owning no railroad in Pennsylvania and having no ofBce
there though some of directors lived there and its cars hauled
tlirough State by other roads which collected freight, and which was
member of tariff association with agency in such State, Is not doing
business in State so as to be suable there; Central Grain, etc.. Ex-
change V. Board of Trade, 125 Fed. 467, holding return to process
issued for foreign corporation as defendant in Federal court, show-
iug service on officer of corporation, must show that corporation Is
doing business in State; Frawley v. Pennsylvania Casualty Co.,
124 Fed. 262, 263, holding where Pennsylvania company negotiated
four policies in Wisconsin by correspondence and premiums were
paid at home office and one renewal premium was collected by
local bank, company did not do business in State so as to be subject
to jurisdiction of State courts; Eddy v. Casas, 118 Fed. 364, holding
suit by citizen against alien residing in State where suit brought
is not removable by defendant on .ground of alienage under
judiciary act 1887, § 2, cl. 2: Revans v. Southern Missouri, etc.. B.
K. Co., 114 Fed. 983, holding where president of foreign railrotd
corporation was resident In State and had an office therein in which
lie performed his duties as such president, service in action against
corporation arising without State by resident complainant wa^
I)roi)orly made on such president; Bldred v. American Palace-C^r
Co.. 105 Fed. 456, holding Federal court In one State does not ac-
(luire jurisdiction over defendant which is corporation of anotlier
Slate which does not carry on business in State of suit, nor ti.ave
any authorized representative therein, by service of process on on«
who was director two years previously; Doe v. Springfield, etc, ^1^^-
Co., 104 Fed. GS8, holding where San Francisco broiler at owra re-
(luest was furnished with prices by Illinois manufactory and ciMxa*
sionally sold goods to be delivered on board cars at factory to vr liich
price he added commission, broker Is not agent of corporation under
Cal. Code Civ. Proc, § 411, so that service of motion in admir'^'ty
jrives jurisdiction of corporation; Eldred v. American Palace-Car Co.*
103 Fed. 211, holding in suit by nonresident jurisdiction of def^^'
ant corporation not resident in district where suit brought was oot
ac(iuired by service on resident director, it not being alleged ttat
proixMty in controversy was within district; Denver, etc., R. B- Co.
V. KolhT. 100 Fed. 744. holding under Cal. Code Civ. Proc., J5 305,
411. foreiiru railroad which does business in State and has mnungiog

005

Notes OD U: S. Reports.

170 XT. S. 113-127

I

I

agent therein, on whom service may legally be made, is subject
10 be sued in courts of State for tort committed In another State;
MeCord Lumber Co. v. Doyle, 97 Fed. 23, 24, holding fact that
forei^ corporatioQ which has maintained office in Minnesota and
ttere contracted liability before suit brought In State court to
enforce such liability withdrew local oflSce does not exempt it from
being subjected to personal judgment on service made on its presi-
dent in mode prescribed by Minnesota statute; dissenting opinion In
Qilrert v. Railway Co., G4 S. C. 153, 41 S. E. 969. majority holding
foreign coiijoratiou complying with statutory provisions as to
foreign corporations becoming domestic may remove suit by citizen
of this State. See notes, M Am. St Rep. 538; S5 Am. St. Rep. 909,
919. 921, 022.

niKtin/^uished In Goldman v. Furness, Withy & Co., 101 Fed. 468,
holding where Admiralty Court lias refusetl to entertain suit between
fi*i>?ijcnerB for breach of contract of carriage made in Cauada. which
la not performable here, it has no jurisdiction of suit by assignee
bjr former libelant who is citizen and resident of district where
suit Is brought

Syl. 2 (XII, 1037). Corporation Is citizen of State of creation.
§?€e note, 85 Am. St Rep, 907. 91S.

Oistlnguished in Pacific Mut Life Ins. Co. v. Tompltlns, 101 Fed.
^»*o, holding corporation contracting In State other than that of Its
ci^^'atioa cannot he there sued by nonresident of that State.

ITO U. S. 113^127, 42 L. 969. THE JOHN G. STEVENS.

SyL 1 <XII, 1037L Claim for collision prior to supply lien.

Approved in The Major Reybold, 111 Fed. 410, holding munlc-
^I>ulity liable in admiralty for collision caused by negligence of its
**^rvant8 in charge of Its vessel; The William H. Bailey, 103 Fed.
^^> lioldmg exemplary damages are not recoverable in suit in rem
**8aliiHt vessel for maritime tort.

I^>lstins?wlshed in Workman v. Mayor, etc, of N, Y., 179 U, S. 573,
•'*'^X 45 L. 325, 330, 21 Sup. Ct. 220, 225, holding city liable in per-
'*«Uflni under admiralty law for collision caused by negligence of
'ts uervauts in charge of its firehuat.

^yl. 2 (XII. 1037i. Tow's claims for negligent collision — Priority,

■AfHiroved In The Temple Ejuery, 122 Fed. 181. holding suit In
*^^n may 5^ maintained by owner of tow against tuu for damages
**^tiJkHl by negligent towage, ihough at time of Injury tow was
^'titier charter to owner of tug.

*^)'L3 (XII. 1037^. General maritime law enforced here.

^ approved In Homer Ramsdell lYansp. Co. v. La Compagnle

^^^^ Transatlantique. 182 U. S. 413. 45 L. IIGO, 21 Sup. Ct. 834,

^**i*iig in action at law shipowner not liable for Injuries inflicted

^^Usively by negligence or compulsory pilot; H air i son v. Hughes,

170 IT. S. 127-160 Notes on U. S. Reporta. 906

125 Fed. 869, holding vessel liable for collision, though caused hj
negligence of compulsory pilot

(XII, 1037). Miscellaneous.

Cited in Tucker v. Alexandroflf, 183 U. S. 438, 46 L. 2n. 22 Sup.
Gt. 201, holding member of Russian navy sent here to man cruiser
being built here may, on desertion prior to organization of crew
and before launching of cruiser, be arrested as deserter.

170 U. S. 127-133. Not cited.

170 U. S. 133-160, 42 L. 977, AMERICAN SURETY CO. t. PAULY.

Syl. 1 (XII, 1037). Cashier's indemnity bond to bank — Con-
struction.

Approved In Remington v. Fidelity, etc., Co., 27 Wash. 436, 67
Pac. 991, reaffirming rule; Order of United Commercial Trayelers
▼. M'Adam, 125 Fed. 363, construing provisions relative to aasess-
ments and forfeiture of benefits in fraternal order; Hart ▼. Em-
ployers' Liability Assur. Corp., 122 Fed. 831, construing accident
insurance policy with reference to provision as to notice; Wer-
theimer-Swartz Co. v. United States Casualty Co., 172 Mo. 150, 72
S. W. 638, 95 Am. St. Rep. 508, construing clause in insurance policy
requiring insured in event of loss to immediately protect property
from further damage against insurer; Hurley v. Fidelity A Dep.
Co., 95 Mo. App. 93, 68 S. W. 960, holding where railroad agreed with j

contractor to keep concrete work one block ahead of paving and its m

bond required contractor to notify surety in writing of any act ^

on part of railroad which might involve loss to surety immediately x

on obtaining knowledge thereof, notice did not apply to deferred £>

payment after completion of work.

Distinguished in Guarantee Co. v. Mechanics* Say. Bank ft T. .1

Co., 183 U. S. 418, 419, 46 L. 262. 22 Sup. Ct 131, holding where -&-i

teller's Indemnity bond contained provision that bank would no- >o,

tify surety on becoming aware of teller being engaged in specu- -cr:

lation or gambling, it is duty of bank to give such notice, though ^z^

while confessing speculating teller asserts he has ceased to do so.

Syl. 2 (XII, 1038). Construction of ambiguous contracts.

Approved in Fidelity & Deposit Co. v. Courtney, 103 Fed. 604,
(K)7, determining sufficiency of notice to surety company of de-
falcation of bank president where receiver had been appointed for
i)ank; dissenting opinion in McMaster v. New York Life Ins. Ca.
Di) Fed. 878, majority holding provision in life policy or in appli-
cntiou wliich forms part of contract that premiums shall be paid
annually is not inconsistent with further provision fixing date of
payment of second premium on date less than one year hence, so^
as to authorize extension of policy beyond date for maturity oft-^
second premium.

SQf

Notes on TJ. S. Reports. 170 U. S, 1S3-1G0

Sjl 3 (XII, 1038). Termination of indemnity bond by recelTer-
fthip.

Approved lo American Bonding & Trust Co. \\ Baltimore & 0.
S, W. R. R. Co., 124 Fed. SSI, holding bond given by contractor to
rajlroad receiver for faitbfnl performance of work is assignal)le:
Mayor of Brunswick v. Harvey, 114 Ga. 739, ^10 Atl. 7^7, holding
'Where city treasurer's bond limited surety's liability to losses dur-
ing continuance of bond, and discovered within six months from
death* dismissal or retirement of treasurer, surety not llal)Ie ou
original bond for loss more than six months after its expiration,
tliough discovered within six months from dismissal

Syl 4 (XII. 1038). Bank presidenrs false statement as to cashier's
tionesty.

Approved in United States Fidelity, etc., Co, v, Muir, 115 Fed.
2G6, 267, 268^ holding where bank cashier accompanied application
for bond with statement as to past conduct and condition of ae-
<^oi3nt signed by bank's president in good faith, thou^^h it was in-
^^orrect* bank not bound by such statement In action on l>ond;
Perpetual Building & Loan Assn. v. Fidelity Si Guar, Co., 118
lf>vr&, 733, 92 N. W, 087, holding wbere certificate of president
^f loan association to surety conjpany, stating that accounts of
^oiployee were correct, was made to best of his knowledge and
^^Uef, fact that at time auditing committee knew of error in ac-
<^ouiit8 does not relieve surety; Taylor v. Commercial Bank, 174
^» Y. LS5, m N. R 727, 95 Am. St. Rep. 51J4, holding bank not
^uud by representations of cashier as to solvency of customer.

]>iatlngi]ished In Fidelity & Deposit Co. v. Courtney, 18tJ U. S.
^^^. 46 L. 1197, 22 Sup. Ct. 837, holding In action on bank inesl-
^^Qfg bond cashier's certificate made in answer to query by surety
*^ to conduct of president is admlssllile; Guarantee Co. v. Mechau-
lca» ^y Bank & T. Co., 183 U. S, 423. 46 L. 2G3, 22 Sup. Ct. 132,
*H>l^lng where bank president knew that surety regarded specula
^^tk as tinfavorabie to employee's habits and he Is informed that
^''^Ployee is speculating, representation by president that he does
^^t know or has heard anything unfavorable to employee's habits
• tnisrepresentation: Issaquah Coal Co. v. United States, etc.,
^^^aranty Co., 126 Fed. 92, holding where corporation directors
^ttiorized assistant treasurer to procure bonds at corporation's
^*Pense and at Its expiration renewal was made on auditor's state-
'^^^Ht that accounts had been examined monthly and found eor-
^^ which was untrue, If fact of Its eiecutlon was known to
'^^^Hjiger It bound company.

8yL 5 (XII, 1038). Principal presumed to know agent*a acts.

Approved lo Central, etc., Co. v. George S. Good & Co., 120 Fed.
*^» reaffirming rule; Fidelity & Deposit Co. v. Courtney, ISO U.
^ a«2, 4« L. 1202, 22 Sup. Ct 841, upholding refusal In action by

170 U. S. 160-213 Notes on U. S. Reports. 908

national bank receiver upon indemnity bond to Instruct that no-
tice of default was not given as soon as reasonably practicable,
afllrming 103 Fed. 606, 600, upholding reasonableness of notice by
national bank receiver to surety company of defalcation of presi-
dent; Yeiser v. United States, etc., Paper Co., 107 Fed, 345*
holding where promoters purchase option on property and fonxm
corporation, electing themselves directors, and on purchase of prop
erty stockholders are unaware of actual price paid, on learning <^-'
actual price they could cancel stock issued to promoters; Butler
Montgomery Grain Co., 85 Mo. App. 56, holding where agent duL-

ing time he is purchasing corporation stock for his principal has 1'

dependent transactions with corporation In which he acts for hims^^^T^
and against his principaFs interest, his knowledge of such trarr-^.^^
action is not attributable to princlpaL ^

170 U. S. 160-182, 42 L. 987, AMERICAN SURETY CO. ▼. PAUI
Syl. 2 (XII, 1038). Indemnity — Timeliness of notice of loss is

jury.
Approved in Perpetual Building & Loan Assn. t. Fidelity- ^

Guar. Co., 118 Iowa, 737, 738, 92 N. W. 688, reaffirming rule

170 U. S. 182-189, 42 L. 998, KIPLEY v. ILLINOIS.

Syl. 1 (XII. 1039). Federal right must be specially claimed.

Approved in Harklns v. City of Ashville, 180 U. S. 635, 45 L. TCW,
21 Sup. Ct. 922, reaffirming rule.

170 U. S. 189-205, 42 L. 1002, HAWKER v. NEW YORK.

Syl. 1 (XII, 1039). Act forbidding felons to practice medicine - —
Ex post facto.

Approved in Reetz v. Michigan, 188 U. S. 506, 610, 23 Sup. C^^^^
391, 47 L. 5G5. 507, upliolding Mich, act of 1899, creating board ^^
registration in medicine.

Syl. 2 (XII. 1089). State regulation of medical practice.

Approved in Meffert v. Medical Board, 66 Kan. 715, 72 Pac 24 -
upholding Laws 1901, chap. 254, creating board of medical reglstr^^^'^
tiou aud examination and regulating practice of medicine.

170 U. S. 205-210. Not cited.

170 U. S. 210-213, 42 L. 1011, HUMES v. UNITED STATES.

Syl. 1 (XIl, 10:^9). App€\al — Omission of unrequested instruction: "^

Approved in Frizzell v. Omaha St. Ry. Co., 124 Fed. 180, appl^^'
lug rule in action by street-car passenger for injuries sustaincss*'^^
by failure of operatives to give her time to alight

Syl. 3 (XII, 10^9). Appeal — Verdict against evidence.

Approved in Kellojjg v. United States, 103 Fed. 201, applylB^
rule where question of defendant's insanity set up.

i-^»'

Notes OD U. S. Uoports. 170 U. S. 2i:i-12i:i

170 U. S, 213-225. 42 L. 1012, WILLIAMS w MISSISSIPPL

Sjl. 2 (XII» 1040). Removal for deDfal of FedemJ right at LnaL
Approved in Carter v. Texas, 177 U* S. 447. 44 L, 841, 20 Sup.
Gt 689. bolding where defendant lias had no opporlunJty to ctiitl-
l^Dge grand jnry which found indictment against him* ohjeetlon to
^rand Jury because, under State law, negroes are solely by reasou
of race excluded from grand jury may be talien either by plea
in abatement or motion to quash before pleadiug tn bar; State v.
Brownfleld, GO S. C. 514, 39 S. E. 4, holding motion to quash iu-
iHctmeiit against negro because negroes excluded from grant jury
because of race must be sustained by distinct evidence; Whituey
V. State, 42 Tex. Cr. 285. 59 S. W. S96, quashing indictment where
negroes Intentionally excluded from grand jury; Smith v. State,
42 Tex:. Cr. 221, 58 S. W. m, quaahlug Indictment against negro
'Where It was* shown that great prejudice existed against negroes
In county, and that jndge selected only whites as Jury commission-
ers who selected only whites as grand jurors and had excluded
negroes from petit juries whilst there were many qualified and
eompetent negroes.

Syl. Z tXIL 1040K Educational test of electors.

Distinguished In United States v. Lackey, 99 Fed. 967, uphold-
ing Rev. Stat, S 5507, providing for punishment of any one hin-
dering or Intimidating another froco exercising right of sufifrage
to whom such right la guaranteed by Fifteenth Amendment by
means of bribery or threats.

ITO U. 8. 226-243. 42 L, 1017; GALVESTON, ETC., RY. ?. TEXAS.
SyL 1 (XII, ItMO). Removal — Complaint must show Federal
^Uei^tion.

Approved In Adams v. Yazoo, etc., R. R. Co., 77 Miss, 315, 28
So. 956, following rule; Houston & Texas Cent H. R. Co, t, Texas.
I'fT U. S. 78, 44 L, G80, 20 Sup. Ct 549, holding where defense has
o^en Interposed, reply to which brings out matters of Federal nature,
^oae matters thus brought out by platntlBf do not form part of
*^'* cause of action within removal statutes; Soutb Carolina t,
^'*rjElaia-Carolina, etc., Co., 117 Fed, 729, holding action by State
^^ subject foreign corporation to penalties imposed by State statute
'^'^t removable where neltlier complaint nor statute make reference
^** t'ederal Constitution or laws.

distinguished in Scott v. Choctaw O., etc., R. R. Co.» 112 Fed. 181,

''^^Iding fact that corporation la organized under act of Congress ^^M

^ajr be shown tn petition for removal ^^M

M SyL Z pCir, 1€40). Repeal of railroad's power to consolidate. ^^M

m Approved in Cooper Hospital v. Camden, 68 N. J. L. 703, 54 AtL ^H

I ^ holding Cooper hospital not exempt from taxation, m

170 U. S. 243-282 Notes on U. S. Reports. 910

Syl. 4 (XII, 1040). Federal question — Refusal of set-off.

Approved in Aultman & Taylor Go. v. Brumfield, 102 Fed. 15.
holding where defense inyolves Federal question, but defendant
cannot remove because Federal question does not appear on face
of complaint, defendant's remedy is by writ of error from Supreme
Court to State court.

170 U. S. 243-261, 42 L. 1023, HOUSTON, ETC.. RY. CO. T. TEXAS.

(XII, 1040). Miscellaneous.

Cited in Houston, etc., Ry. v. Texas, 24 Tex. CIt. 118, 66 S. W.
229, and Hall v. Rushing, 21 Tex. Civ. 633, 54 S. W. 82, both recit-
ing history of litigation.

170 U. S. 262-271, 42 L. 1029, SELVESTER v. UNITED STATES.
Syl. 2 (XII, 1040). Criminal law — Disagreement as to one coont
Approved in Hechter v. State, 94 Md. 441, 50 AU. 1042, holding

on indictment charging two offenses, i. e., receiving stolen goods

and being accessory before the fact to the larceny, yerdict flnding

guilty of one offense, but silent as to other, is good.

170 U. S. 272-282. 42 L. 1033, CALDERON v. ATLAS SS. CO.

Syl. 1 (XII, 1041). Harter act overrides blU of lading — Negli-
gence.

Approved in Knott v. Botany Worsted Mills, 179 U. 8. 72, 46
L. 93, 21 Sup. Ct. 31, holding wool damaged by drainage from
wet sugar through fault in storing of cargo within Harter act
§ 1; The New England, 110 Fed. 417, holding stipulation limiting
carrier's liability for loss of transatlantic first-class passenger's
bagjjajre to ^50 Is not reasonable and will not be enforced when
provision not called to passonger*s attention, and loss resulted
from theft by carrier's servants.

Distinguished in In re Old Dominion SS. Co., 115 Fed. 849. hold-
ing, in proceeding by shipowner to limit liability, question whether
tire by which cargo was destroyed was caused by neglect of ship-
owner will be adjudicated by court and not left open to determina-
tion of jury in action by cargo-owner for that purpose.

Syl. 2 (XII, 1041). Modification of explicit contract

Approved in Insurance Co. of North America v. North Germs^^
I.loyd Co., 100 Fed. 977. holding stipulation in bill of lading tbi^'^
•* ship is warranted seaworthy only to extent that owners sla^Mi
exorcise due diligence to make it so," being ambiguous and uncex-.
tain, is of no effect

Syl. 3 (XII, 1(M1). Limitation of liability in bill of lading — Bar
tor act.

Approved In Doyle v. Baltimore, etc., R. R.. 126 Fed. 842. hoid-
ing common carrier cannot l:mit its liability for goods lost in sWP*
ment. through its negligence by regulation or provision printed
on back or stamped on lace of bill of lading, unless same is agr^

m

Notes on U, S. Reports.

170 U, S. 283-a03

npoa with shipper or d!stfnetlj brought to his attention; The New
Eaurland, 110 Fed. 419, holding sUpultition Hmkinif carrier's lia-
bility for loss of transatlantic first-class pnssenger'a haggtige lo
$50 Ifi not reasonable and will not be enforced when not called to
ptB«eager*8 attention and loss caused by theft by carrier's ser-
vaots; Insurance Co. of North America v. North German Lloyd
Co^ 100 Fed. 977. holding. If taking part of cargo in lighters bi*
P*rt of loading of vessel, stipulation in bill of lading relieving
carrier from failure to provide fit lighter Is prohibited by llarter

1^<J U. S. 283-303, 42 I* 1037, MAGOUN v. ILLINOIS TRUST. ETC.

BANK.

Syl 1 (XII, 1041). State conditions on devise and descent

"Approved in Ruckgaber v. Moore, It^ Fed. 951, holding bequest

oy nonresident alien to nonresident alien of securities in America

^^t subject to tax under war revenue act of lSt)8. § 20: State v.

"^^vdere* Ins. Co., 73 Conn. 204, 47 Atl. 302, upholding Gen, Stat.

» 3^10^ providing that insurance companies shall pay tax of IVj

l-*^*" cent on market value of their shares of stock held hy non-

f^^idtmts: Walker v. People, 1*>2 111. 108, 61 N. E. 480, upholding

inheritance tax law of 1805, imposing tax on all property passing

^^ tvlU or by intestate laws: Matter of Vauderhilt, 172 N. Y. 74,

^ X E. 783, holding, under Laws 1809, chap. 76, transfer tax

01>oti contingent remainders Is payable forthwith out of property

sferred; Matter of Delano, 170 X. Y. 402. 08 N. E. 872, upiiolil*

transfer tax law of 18^)0, § 220, siihcL 5. imposing tax niion

'••else of power of appointment; Black v. State, 113 Wis. 21tj, 89

* Vf. 520, upholding Laws 1899, chap. 3r»5, exempting from in-
•^^^Itance tax all estates under $10,000 In value.

^Ittinguisbed in dissenting opinion in Snyder v. Bettman, 100
^* 8. 257. 23 Sup. Ct 800, 47 L. 1038, majority upholding succes-
**^ tax under war revenue act 1898, S 20, upon beqneat to munici-
I'uHty fQ^ public purposes,

8^1. 2 (XII, 1041). Collateral inheritance tax Is on snccesslon.
-Approved In Snyder v, Bettman, 190 U. S. 251, 23 Sup. Ct. S04.

* ti. 1036, upholding succession tax, under war revenue act 180S.

^ 2&, opon bequest to municipality for public purposes; Biack-

*t<«ie V, Miller, 188 U. S. 204, 23 Sup. Ct. 278, 47 L. 444, holding

'^fepOBit hy Illinois citixeu In trust company in New York, where ft

''^JlUina fourteen montiis, is there subject to transfer tax, thougli

^bole succession bad been taxed in New York; 'Eld man v. Mar-

^^^ 184 U. S. 589, 46 L. 703, 22 Sup. Ct 520, holding war reveiiii^

**^ 18i>8, § 29, imposing tax on Inheritances, does not apply to lu

^%ible property in this country of nonresident alien passlu;; to

Uoori^RUieiit alien partly by will and partly by Intestate la us of

^^Hiher country; riummer v. Coler, 17S U. S. 133, 44 L. 1007. 20

^^D. Ct 836, holding bequest composed wholly of governmeni

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Notes on U. S. Reports, 170 U. S, 283-3aci

ud property designate railroad company by aame and by vote
: FaluatioD per mile of Its raih-oad tbrougliout State; Fidelity
Casualty Co. v. Freeman, 100 Fed. 856, upboldlng Tenn. Acta
15, chap. 160| § 22. providing tbat no misrepresentation made in
rotlatlons of insurance or In application shall affect policy
less made wltb intent to deceive, tbougU assessment Insurance
apanies excepted therefrom; State v. Jacksonville Term, Co., 41
:. 374, 27 So. 224, upholding Laws 1899, chap. 4100, | 23, relat*

to appeals; State v. Smith, 158 Ind. 556, 63 N. R 30, uphold-

Acts 1889, p. 422. authorizing dedwction for tax purposes of
rtgage Indebtedness not exceeding $700, from assessed valua-
1 of real estate; Iowa v. Garbioskl, 111 Iowa, 499, 82 N. W.
', holding void Code, § 1347, requiring all peddlers working out-
e of cities or towns to procure county license, bot excepting
refrom union army and navy veterans; Drew v, Tifft, 79 Minn.
:, 79 Am. St Rep. 44S, 81 N. W. 840, holding void Laws 1S07,
ip. 293, taxing inheritances of personalty alone and allowing
ger exemption to lineal heirs than to collaterals; Ballard v.
Bsissippi, etc., Oil Co., 81 Miss. 558, 95 Am. St Rep. 479, M

549. holding void Laws 1898, p. So, chap. 66, providing that
■ry corporation employee shall have same rights and remedies
' Injuriea suffered by him from any act or omission of corpora-
D or Its employees as are allo^ved to others where injury re-
ts from act of fellow servant; Callahan v. SL Louis, etc., Ry.
., 170 Mo. 494, 71 S. W. 214, 94 Am. St. Rep. 760, upholding Rev.
It. 1899, I 2873, making raih'oads liable for damages sustained

servants by reason of negligence of servants; Condon v, Ma-
ley, 108 Teun, 92, 97, 65 S. W. 873, 874. upholding Kuox connty
id law of 1901; State v. Cook, 107 Tenn. 510, 64 S. W. 723. up-
Idlng act 1897, punishing taking of notes for patent rights with-
t explicitly stating that fact on face of notes; State v* Schlltz
'ew. Co., 104 Tenn. 732. 737, 78 Am. SL Rep. 949, 952, 59 S. W,
86. 1037. upholding antitrust law of 1897; State v. Clark, 30
'ash. 445, 447, 71 Pac, 22, 23, tipholding inheritance tax law of
'^l. p. 67, though some inheritances are exempt and propor*
OQJil taxes are laid on others; Copper Co. v. Scherr, 50 W. Va. 551,
> S. E. 522, upboldlng Acta 1901. chop. 35, S| 86, 87, Imposing
'^ter license on corporations chartered under laws of this State
^d bavlng principal place of business or chief works outside of
^ate than on those having principal place of business or chief works
ni&tate; Black v. State. 113 Wis> 221, 89 N. W. 528, upholding Laws
mk chap. 355, exempting from inheritance tax all estates under
■^WO In value; disseatiug opinion In Fidelity Mut Life Assn. v.
'^«Uer, 185 U, S. 336. 46 L. 936, 22 Sup. Ct. 673, majority upholding
'^. Rev. Stat. 1805, art, 3071, providing that life and health in-
^^nce companies falling to pay policies on demand shall be liable
^ 12 p«r cent, damages and reasonable attorney's fees for coUec-
Vol. HI— 58

170 U. S. 303 Notes on U. S. Reports. 914

tion of loss; dissenting opinion in Connolly y. Union Sewer Pipe
Co.. 184 U. S. 567, 46 L. 692, 22 Sup. Ct 442, majority upholding
111. trust statute of 1898, which exempts from its operation agri-
cultural products or live stock while in hands of producer or raiser.

Distinguished in Connolly v. Union Sewer Pipe Co., 184 U. S.
561, 46 L. 690, 22 Sup. Ct 440, upholding 111. trust statute of 1888,
which exempts from its operation agricultural products <n: live
stock while in hands of producer or raiser.

Syl. 5 (XII, 1041). Equal protection —^ Inheritance tax — Clasai-
flea tion.

Approved in Blackstone v. Miller, 188 U. S. 207, 23 Sup. Ct. 279,
47 L. 445, holding deposit by Illinois citizen in trust company in
New York where it remains fourteen months Is there subject to
transfer tax though whole succession had been taxed In Illinois;
Billings V. Illinois, 188 U. S. 98, 99, 101, 103, IM, 23 Sup. Ct 272,
47 L. 401, 402, applying rules in upholding 111. inheritance tax law
of 1895, § 2, relating to taxation of life estates; Clark y. TitUBvllle,
184 U. S. 331, 46 L. 572, 22 Sup. Ct 383, upholding city ordinance
imposing license tax upon persons carrying on occupations regulated
by amount of sales; Orr v. Oilman, 183 U. S. 287, 289, 46 L. 201.
202. 22 Sup. Ct 217, 218, upholding N. Y. transfer tax law of 1897.
§ 220, subd. 5, providing that where one makes any exercise of
power of appointment derived from any disposition of property made
before or after passage of act such appointment deemed transfer
taxable as though property to which appointment relates belonged
absolutely to donee of power; Billings v. People, 189 IlL 482. 483,
59 N. E. 802, and Ayers v. Chicago Title, etc., Co., 187 IlL 58.
58 N. E. 324, Iwth upholding inheritance tax law of 1895: Dixon
V. Rioketts. 20 Utah. 224, li* Pac. 950, upholding Laws 1901, p. 61.
chap. (»2, taxing inheritjinces. See notes, 88 Am. St Rep. 618, 520;
86 Am. St. Rep. 703.

170 U. S. 303. 42 L. 1046. SAWYER v. KOCHERSPERGER.

Syl. 1 (XII. 1042). Removal — Complaint must show Feder%j
quest iou.

Approved in Arkansas v. Kansas, etc., F. Coal Co., 183 U. ^,
ISvS, 46 L. 14i;. 22 Sup. Ct 48. holding want of Federal qaestloD
in complaint cannot he supplied by taking judicial notice of facto
not relied on and rejrularly hroujiht into controversy; Joy v.
l-^t. Louis, 122 Feil. 525. denyinij Federal jurisdiction over eject-
iiu'iit to recover Spanish grant protected by Louisiana purcba*
treaty where petition shows plaintiffs rights depending solely on
question whether land in suit was within boundaries of oripn^i
grant: Wichita v. Missouri, etc.. Telephone Co.. 122 Fed. H^*
ileuyiuir removal when^ Uiere was no allejiation in bill dlsclo«Ifl^
that rii:ht was based on Federal Constitution or law and did ^^
sot forth i:ri>und of relief derived from either sufficient to sustain
Circuit Court's jurisdiction if cause had been originally broujW

S^J^

Notes ou U. S. Keports, 170 U. S. 30i-312

I

I
t

tMzB^ft; Filblol V. Torney, 11& Fed. f>76. denj-log Federal jurisdlc-
trJ<:>ii where complaint In ejectmont alleges that defendant is Id
|x::^«sessian bj direction of United States.

1 '3^<D U. S. 304-312, 42 L. 1047, WILLIAMS T. EGGLESTON.

Sjl 2 (XII, 1042), Stranger cannot complain of breach of con-

-Approved In Pblnney v» Shepard, etc., Hospital Tnustees. 177

tr_ S. 170, 44 L. 720. 20 Stip. Ct. 574, dismissing writ of error for

^«*"^ajit of jurlfidiction; Joesting v. I^nltluiore, 97 Md, 5l>4, 55 AtL 158,

li«=»'^<iiiig BaHlmore cannot eomphiin that annexation act of 1888

CE-^^ted contract whiclj was impaired by Acts of 1902, chap. 130.

^yL 3 (XII, 1042). Mumclpality Is State agency.

-^^pproved In Crane v. Slloam Springs, 07 Ark, 3G, 55 S. W. 957,

bolting Const. 1874. art. 10» g 27, autborieing " assessments on real

Property for local Improvements in towns and cities under sucli

te-^^Iations as may be prescribed by law/' does not inbiblt legls-

iB^^vire from creation of improvement district embracing entire

ti:*^t« of a city or town; Ryan v. New York. 177 Ts'. Y. 277, 69 N. E.

^i, upholding Laws 1807, p. 4G2, chap. 415, as amended In 1SS9,

pro-riding tbat wages for legal day's work to all classes of laborers

oa rublic works or on material to be used in coanection therewith

*liali be not less than prevailing wage in same locality in so far as

It relates to direct employees of State or municipality; Town School

^8t, V. School Dist. No, 2, 72 Vt. 455, 4S Atl, mS. upholding Acts

18!1K), No. 130, giving validity within Brattleboro school district to

^^«^cher's certjflcates granted by prudential committee of that dia-

^Ict and providing that district should receive same share of school

flails as before passage of act; dissenting opinion in People v.

C(>ler. 166 N. Y. 31. 59 N. E. 72G, majority holding void labor law

1807. to so far as It p£x>vldes that contnictor on municipal works

■^^all pay workmen rate of wages prevailing In locality. See 82

^m. St Rep. 0:^4, note.

SyL 4 (XII» 1042). Political State subdlvisloa is local concern.
Approved in Matthews v. Kimball, 70 Ark. 403. m S, W. 052, hold-
^^g^ under Sandf. & H. Dig., | 5321, a city council is authorizeil
^> hy off wbole city into an improvement district for purpose of
^Oiprovlng a public park; Uernaii v. Allen, 156 Mo. 551, 57 S. W,
^. upholding charter provision assessing lots In sewerage district
'ot co«t of sewers accordiog to area.

%l. 5 (XII, 1042). Due process ^ — Consolidation of towns to ereet

^I^proved in Atkin v. Kaasas. 191 U. S. 221, 48 L. 157, iiphold-
">i Kaa, Gen. Stat. 1901, U 3^27-^3820, making It criminal for
^'otitraGtor on public work to permit or require emptoyce to work
**iOrethan eight hours per day; Goodrich v. Detroit, 184 U. S. 439,
^^ L 631. 22 Sup. Ct 309, upholding Mich, statute 1897, providing

170 U. S. 312--343 Notes on U. S. Reports.

9ia

for opening of streets on notice to parties whose land Is to be takei
though no notice provided for owners for land liable to be assei
for improvement; Adams v. Shelby ville, 154 Ind. 471, 77 Am. Si
Hep. 488, 57 N. E. 116, holding imposition of assessments for loc^
improvements per front foot irrespective of question of accroixi.
benefits violates Fourteenth Amendment ^ Barfield v. Gleason, 1^
Ky. 513, 63 S. W. 968, upholding Ky. Stat, S 2838, providing f(
original cost of construction of streets in cities of first class
expense of abutting owners according to area; Webster v. City
Fargo. 9 N. Dak. 210, 82 N. W. 733, holding legislatmre may pi
vide that entire cost of paving city streets shall be borde by ab
ting owners according to frontage; King v. Portland, 38 Or. 4.
63 Pac. 5, upholding front foot assessment for local improvemei^,
Browne y. Turner, 176 Mass. 13, 56 N. E. 970, arguendo.

Syl. 6 (XII, 1042). Binding efTect of State decision.

Approved in Southern Ry. Co. v. North Carolina, etc., Con^
99 Fed. 166, holding where Federal court has independently Y^^^^i,
dered decision contrary to State decision holding State statute 1:^^
been repealed it will be recalled if still within court's control j^
deference to later decision of State court

Syl. 7 (XII, 1042). Municipality formed from sereral townm^

Approved in dissenting opinion in French v. Barber Asp2i«/f
Paving Co., 181 U. S. 351, 45 L. 892, 21 Sup. Ct 635, majorf^
upholding assessment upon abutting lots for street improvementi
without prelllminary hearing as to benefits, and affirming Barber
Asplialt Paving Co. v. French, 158 Mo. 546, 58 S. W. 93&

170 U. S. 312-343, 42 L. 1050, SHAW v. KELLOGG.

Syl. 2 (XII, 1042). Land grant — Subsequent finding of mineral*.

Approved in Cosmos Exploration Co. v. Gray Eagle Oil COm ^^
Fed. 10, atHrming 104 Fed. 44, 46, holding claimant of lieu landi
entered under forest reservation act of 1897, on affidavit statin*
noumineral cliaracter of lands, not entitled to equitable relle'
against oil placer claimant in possession, where entry made becto**
of value for oil purposes though no oil yet discovered on particular
lands; Olive Land, etc., Co. v. Olmstead, 103 Fed. 676, holding
under forest reserve act of 1897, right of one selecting lien laud*
not affected by fact that land is in vicinity of producing oil ^^^
and that it has surface Indications of oil, or that it was selected
with view of its possible value as oil land, where no oil has ^^
discovered thereon.

Syl. 5 (XII, 1043). Locators in possession and paying taiea.

Approved in Maese v. Herman, 183 U. S. 580, 46 L. 338, 22 Sai»-
Ct. 94, holding confirmation to town of claim reported by surreyo^
general as claim by town under Mexican grant cannot be conteste"
by bill in eciuity against laud department on ground that grant ^^
to private persons instead of to town.

* ^

» -^

— or

I

017

Notes on U. S. ReporU. 170 U. S. 343-^55

I

(XII, 1042). Miscellaneous.

Cited in Maese v, Herman, 183 TJ. S. 579, 46 L. 33S, 22 Sup. Ct.
©4, and Shaw v. Lockett, 14 Colo, App. 41u, 60 Pac, 3(M, both recit-
ing his tor J of litigation.

i70 U. S. 343^55» 42 L. 1061, THOMPSON V* UTAH.

Syl. 1 (XII, 1043). Crimes in Territories — (institutional pro-
^^-Isions.

Approved in Hawaii v. MankichI, 190 U. S. 211, 23 Sup. Ct 788,
47 Li. 1020, holding erimiual proceediaga by graud and petit Juries
x>ot substituted for existing Hawaiian procedure by Newlands reso*
lutJon of annexation; Downes v. Bid well, 182 U. S. 270. 293, 301,
-i5 L. 1100. 1109p 1135, 21 Sup. Ct 780, 780, 816, uphoJding Foraker
m.ct impbslug duties oo imports from Porto Rico.
Syl 2 (XU, 1043). What is constitutional Jury.
Approved Id lilaxweil v. Bow, 176 U. S. 58G, 609, 44 L. 599, G08,
20 Sup, Ct 450, upholding prosecution for felony by jury of eight
vmder Utah Constitution; West v. Gammon, 98 Fed, 427, uphold-
ing judgment of convict ion reodered on plea of guilty voluntarily
entered and which leaves do Issue of fact for trial; State v. Simons,
61 Kan. 753, 756, CO Pac. 1052, 1053, holding defendant in prosecu-
tion for felony cannot agree to discharge of one of jurors and sub-
mit to verdict by remaining jurors; State v, Ellis, 22 Wash. 132,
60 Pac. 137, holding defendant In prosecution for felony cannot
pulAte for trial by jury of eleven men; Richmond v. Henderson,
W. Va„ 398, 37 S. E. 657, holding appeal and not certiorari lies
trnm Judgment of Justice rendered on verdict of jury; Lovings v.
& W. Ry,. 47 W- Va. 588, 35 S. E, 964, holding void Code.
<^hap. 50, i lt>9, in so far as it authorizes Jury of six to try ia Circuit
Court appeals from Judgments of Justices; dissenting opinion in
Hawaii V. Mankichi, 190 U, S, 246, 23 Sup. Ct 801, 47 L. 1033.
Qiajoriiy holding criminal prooeedlngs by grand and petit Juries
^ot substituted for exiaiing Haivaiian procedure by Newlands
'*««olution of annexation.

Syl, 4 {XII, 1043K Utah trial by Jury of eight— Ex post facto.

Approved in Louisiana v. Fourchy, 106 La. 750, 31 So. 328, hold-

^^S void Kev, Stat., If 119, 120, authorizing disbarment In civil suit

for acts which when committed toe could have been disbarred only

letter trial and conviction in criminal court; State v. Cook, 52 La.

lAim. 115, 26 So. 751, holding act of 1898, No. 135, providing for

r •election of jury from thirty jurors drawn from geaeral venire box

^BBt<?od of being selected from thirty- four Jurors so draw^n, is not

^ post facto as to crime committed prior to its pasaage; State v.

^4tea, 22 Utah, 68, 70, 73. 61 Pac. 905, 906, holding one convicted

^y Ualawfui jury after plea entered is not once In Jeopardy though

ftkTiijer t'onvictloa sttuids unreversed and he may tie rearrestt'd

Under same indictment; dissenting opinion In Downes v. Bid well,

p.

170 U. S. 355-372 Notes on U. S. Reports.

91S

182 U. S. 362, 45 L. 1135. 21 Sup. Ct. 815, majority upholdlog
Foraker act imposing duty on imports from Porto Rico.

Syl. 5 (XII, 1043). Criminal's assent to trial by unauthorized
tribunal.

Approved In State v. Thompson, 104 La. 160, 28 So. 883, holding
one accused of crime necessarily punishable at hard labor cannot
waive Jury.

Distinguished in Queenan v. Olclahoma, 190 U. S. 551, 23 Sup. Ct
763, 47 L. 1178, holding right of defendant to object that Juror U
disqualified because it appeared during trial that he had been con-
victed of felony, contrary to his statement on voir dire, is waived
by failure to raise question until after verdict.

170 U. S. 355-372, 42 L. 1068, VIRGINIA, ETC.. COAL CO. v.
CENTRAL R. R., ETC., CO.

Syl. 1 (XII, 1044). Railroad supplies prior to landholders.

Approved in Louisville & N. R. R. Co. v. Memphis Gaslight Co..
125 Fed. 100, holding where complainant furnished coal to gas com-
pany for several years and thereafter obtained Judgment therefor
on which execution returned nulla bona, and assets sold to pay
mortgage, complaint showing that twelve or eighteen montbs
previous income had been diverted to pay interest is insufficient to
entitle complainant to preference over mortgage; Southern Ry. Co.
V. Chapman Jaclc Co., 117 Fed. 426, holding articles purchased for
use on railroad nearly year prior to receivership for use on leaded ^
road not included in mortgage not entitled to preference over mort* ^^
gage debt; Southern Ry. Co. v. Ensign Mfg. Co., 117 Fed. 423^^
holding one furnishing car wheels under contract with railroac^^^^
relying upon being paid for same in sixty days in accordance wlt^- ^7^
previous course of dealing and with Icnowledge that they were U^^,^
be used in repairing equipment of leased road has no preferenc^^:^--^^
over mortgages which do not include leased road; Gregg -^

Mercantile Trust Co., 109 Fed. 227, holding mortgage upon corp'-^^j^
of property of railroad can only be displaced in favor of later ge-^ xi-
oral creditors on ground and to extent that there has been diverel ^=>ii
of current income by company or receiver by which mortgag^^*^
have profited and from which income such general creditor! h.xad
prior 0(inital)le right to payment; Illinois Trust, etc., Bank v. Do«x<*.
105 FiHl. 147, holding loan to quasi-public mortgagor on pledge of
income to make addition to mortgaged property entitles lender to
no preference in distribution of income over prior mortgage covering
all income and property of mortgagor acquired or to be acquired;
First Nat. Bank v. Ewing, 103 Fed. 183. holding where railroad
at time it passed into haii<ls of receiver was uncompleted, it ^•^
proper for court to authorize issuance of receiver's certlflcates **
raise money for its completion and equipment as well as to p^
delits due for labor previously done, and to make such certificates •*
well as ordinary operating expenses of receiver in excess of e«l^

uxs»

Notes on U. S. Reports,

170 U. S. 355-^i72

Id ^8 superior lien to those of prior mortgages; New York Security,
etc, Co. V. LouisvOle, etc., R. R. Co., 102 Fed. 391, holding where
court on application of mortgagee puts railroad formed by eon-
solldation of several lines loto hands of receiver who pays operating
^x^ensea, taxes and interest on prior divisional mortgages and In
»o doing incurs preferential debts, preferential debts cannot be
apportioned among several mortgage interests; Van Frank v, St.
J^roiiis, etc, Ry», 89 Mo. App. 49tK holding claim for printed matter
and stationery furnished on simple contract anterior to foreclosure
prooeedlngs not preferred over mortgage; Van Frank v. Missouri
t*aclfic Ry., 89 Mo. App. 470, 474, 476, holding traffic balances ac-
cruing within year prior to receivership are preferred debts over
tJiortgage. See 83 Am. St Rep. 74, note.

SyL 2 (XII, 1044). Priority of eupplies over bonds — Misappro-
priation of Income.

Approved In Southern Ry, Co. r. Ensign Mfg. Co., 117 Fed. 420,

folding one furnishing car wheels under contract with railroad

•"flying upon being paid in sixty days in accordance with previous

course of dealing and with knowledge that they were to be used

^n cars of leased road has no preference over mortgage which does

*^*^t include leased road: Rhode Island Locomotive Works v. Con-

'^Hental Tnist Co.. 108 Fed. 7, holding vendor of engines which

^'^re not necessary to maintain road as going concern cannot on

^ubseciuent appointment of receiver become entitled to preferential

^^jment over mortgages,

Bixtinguished in Gregg v. Mercantile Trust Co., 109 Fed. 229.
J^oidliig mtjrtgage upon corpus of property of railroad can only
-*^ displaced In favor of later general creditors on ground and to
^^IC'Dt that there has been diversion of current Income by company
^^ receiver by which mortgagees have pro tiled and from wkich in-
'-Ome such general creditors had prior equltj^ble right to payment.

%L 3 (XII, 1044). Ralh*oads — ^ Priority of supplies after re*
^•^Iveraliip.

Approved In Southern Ry. v, Carnegie Steel Co.. 17C U. S. 283 »
•-28o, 44 L, 470. 471, 20 Sup. Ct, 357, 3')8, holding debt for rails
"*>«gljt by railroad shortly prior to appointment of receiver and
^*H-ded to operate road properly and safely has preference over
Mortgage as to income; Southern Ry. Co. v. Ensign Mfg. Co., 117
^*"ed, 422. holding one furnishing car wheels under contract with
railroad relying upon belns paid in sixty days in accordance with
la-ovUius course of deal lug and with knowledge that they were to
^^ Used on cars of leased road has no preference over mortgage
^likh does not include leased road; New York Security, etc., Co.
^> LoalBville. etc., R. R. Co.. 102 Fed. 389. holding whure cuiu't on
"PpUeation of mortgagee puts railroad formed by consolidation
"f ^veral lines into hands of receiver who pays operating expenses,
^»xes and interest on divisional mortgages and In so doing in-

170 U. S. 372-438 Notes on U. S. Reports. 820

curs preferential indebtedness preferential debts cannot be app<^-
tioned among several mortgage interests.

(XII, 1044). Miscellaneous.

Cited in Atlantic Trust Co. v. Dana, 128 Fed. 230, holding where
corporation receiver appointed in suit by Judgment creditors to
which mortgagees are not parties is directed to make permanent
improvements, cost thereof not chargeable against income accru-
ing after mortgagee of income has asserted his right thereto by in-
tervening in aid of suit to foreclose his mortgage.

170 U. S. 372-383. Not cited.

170 U. S. 383-102, 42 L. 1078, STUART v. BASTON.

Syl. 2 (XII, 1044). Deed to county commissioners in trust.

Approved in Wright v. Morgan, 191 U. S. 58, 48 L. 93. holding
Denver acquired absolute alienable title under patent purporting
to convey to mayor in trust for said city and to his succesaors
land purchased pursuant to act authorizing mayor to enter certain
lands for burial purposes.

170 U. S. 402-408, 42 L. 1085, JOLLY v. UNITED STATES.

Syl. 1 (XII, 1045). Unsold postage stamps subject of larceny.

See ^ Am. St Rep. 586, note.
170 U. S. 408-411. Not cited.
170 U. S. 412-438, 42 L. 1088, RHODES v. IOWA.

Syl. 1 (XII, 1045). State cannot forbid importation of commodity.

Approved in Pabst Brewing Co. v. City of Terre Haute, 88 Fed. ^
333, holding void ordinance imposing license tax on each brewery, .^»
depot or agency of brewery as applied to depot maintained by-^
brewery of another State solely for purpose of storing in originaH'.
package beer shipped into State until distributed to customers
same package.

Syl. 2 (XII, 1045). Importation and sale of liquors in origiD
packages.

Approved in Austin v. Tennessee, 179 U. S. 304, 45 L. 234, 2
Sup. Ct. 140, holding cigarettes imported in ordinary pack of te
cigarettes each unboxed but thrown loosely in baskets are nm
original packages.

Syl. 3 (XII, 1045). When imports subject to police power.

Approved in Iowa v. American Express Co., 118 Iowa, 450.
92 N. W. 07, holding where liquor is shipped by express C. O. ^^K>-
into this State to be delivered to consignee on payment of pric-r <.
liquor is subject to seizure in hands of express company; State '^•
Hanaphy, 117 Iowa. 20, 90 N. W. G03, holding salesman soliciti*:^^
orders for sale of liquor for principal in Illinois who sends goo^^*
C. O. D. to buyer cannot be prosecuted under Code, § 2382; Sta-^*

U23.

Notes on U. S. Reports, 170 U. S, 438^468

V, Hlckox, 64 Kaa 659, 68 Pac. SS, nnd lo re Bergen, 115 Fed. S42,
both holding void Kan. Sees. Laws 1&S5, chap, 149, § 12t punishing
taUng or receiving order for sale of liquors eb applied to agent
^or liquor house In another State who soUclta orders from con-
Bumers and which orders he forwards to principal; State v. Intoxi-
cating Liquors, 94 Me, 340. 341, 47 Atl. 533, holding liquors shipped
^ix>ni New Hampshire cannot be seized while In car standing on
■l^lng and had not reached destination; State v. Bixman» 162 Mo.
^8, fi2 S. W. 837, upholding beer Inspection act, | 5, providing that
^Tie bringing beer from other States shall before offering it for sale
Notify inspector who shall be furnished with statement of Its com-
^*o«Ition, who shall then inspect it and receive his fees.

Distinguished In United States v. Adams Exp. Co., 119 Fed. 242,

'*^>Mliig where liquors are shipped by e3cpreBs C. O. D. carrier not

S"*^lltj of selling liquors without license; Southern Exp. Co. v. State,

^^4 Ga. 230, 39 S. E. 9(X), holding whiskey shipped from another

®^«te by express to be delivered to consignee on payment to express

^^«nt of price Is subject to liquor laws on arrival at destination

*->^d while In hands of express agent; State v. Intoxicating Liquors,

^S Me. 142. 143, 144, 49 Atl. 671, holding liquors shipped from

^o«ton by railroad and connecting lines and consigned to shippers

^^d seized In railroad's warehouse at destination were subject to

*^lzare in railroad's hands jBder Rev, Stiit, chap, 27.

Syl 4 (XII, 1045). Statutes Interpreted to elTcit intent.

Approved in Duluth Brewing, etc., Co, v. City of Superior, 12S

^^^. 35S, uphold iug municipal ortilnance req^iirlng manufacturers

^^ liquors maintaining place for their sale within city distinct

ft^oia their manufactory to poy license; State v. Atchinson. etc,

^y.. 17C Mo. 715, 75 S. W. 7S1, holdiag quo warranto does not lie

^^alnst railroad making unlawful charges as Missouri statutory

'^medles afford exclusive remedy; Corbin v. McConnell, 71 N. H.

^2, 52 Atl, 448, holding void statute making penal solicitation of

'^r^ers In this State for the delivery of liquors in another State

'**^ith knowledge that they arc to be sold here in violation of law,

Syl. 5 (XI L 1046). Commerce — Station agent receiving goods
^m other State,

Approved in Lottery Case, 18S U, S. 3f>l, 23 Sup, Ct, 329, 47 L. 503,
^Pboldlng anti-lottery act of 1895, prohibiting carriage of lottery
t^cketji from one State to another.

^*0U. S, 438^GS, 42 L. MOO, VANCE v. W. A. VANDERCOOK CO,

Syl 1 (XII, 104(i). state's control of liquors in original packages.

Approved in Duluth Brewing, etc., Co. v. Superior, 123 Fed. 358,

^Pbldlng muDlcIpal ordinance requiring manufacturers of liquors

"^a^intaining place for their sale within municipality tiistiuct from

( "^^tauftctory to pay license; State v. Cixman, 102 Mo. 38. 62 S. W.

170 U. S. 438-468 Notes on U. S. Reports.

837, upholding beer inspection act, § 5, providing that ai
receiving for sale beer made in other States shall before ofTerin
for sale notify inspector who shall be furnished with statemen
composition and shall thereupon inspect same and receive

Syl. 2 (XII, 1046). State prohibition of sale in original pad

Approved in Reymann Brewing Co. v. Brister, 179 U. S. 45*
274, 21 Sup. Ct 203, upholding 83 Ohio Laws 157, taxing
business as applied to West Virginia corporation sending 1
cases containing several bottles to Ohio for sale; Minneapolis
ing Co. V. M'Gillivray, 104 Fed. 203, upholding Sess. Laws I
1897, chap. 72, licensing and regulating liquor business as api
dealer who manufactures liquors in another State and shipi
therefrom to his warehouse and there sells them in origlna.
age; State v. Hanaphy, 117 Iowa, 18, 19, 90 N. W. 602, 1
salesman for Illinois firm accepting orders for liquor in thii
which principal sends C. O. D. to buyer cannot be prosecuted
Code, § 2382, prohibiting soliciting orders for liquor.

Syl. 3 (XII, 1046). Regulation without prohibition of t
liquor.

Approved in Pabst Brewing Co. v. Crenshaw, 120 Fed. li
holding Mo. Sess. Laws 1899, p. 228, § 5, requiring one re<
beer for sale from other State to notify inspector before o
same for sale who shall inspect and label same, etc.; State t
aphy, 117 Iowa, 20, 90 N. W. 603. holding salesman for 1
principal accepting orders for liquor in this State which pri
sends C. O. D. to buyer cannot be prosecuted under Code, I
prohibiting soliciting orders for liquor; Stevens v. State, 61
St. G05, 5G N. E. 479, upholding prohibition of sale of liqu
unbroljen paclcage in township as applied to sale by agent of
facturer located in another State.

Syl. 4 (XII, KMG). Act 1890 — Sales in original pacljages.

Approved in Minneapolis Brewing Co. v. M*Gillivray, 1(M
21)2, upholding Sess. Laws S. Dak. 1897, chap. 72, licensing and
lating liquor business as applied to dealer who manufactures 1
in another State and ships them therefrom to his warebous
thore sells them in original package.

Syl. 5 (XII. 104G). Right of citizen to import liquor for ow

Approved in In re Bergen, 115 Fed. 342, holding void Kan.
Laws 1885, chap. 149, § 12, making it criminal to lake or n
orders for liquors as applied to agent of nonresident principal
sends orders to principal for acceptance or rejection: Racine
Co. v. McCommous, 111 Ga. 54:5, upholding license tax on tra^
agents for nonresident principals who take orders for goodi
wlion same are sl}ipped into State receive them in bulls, 1
original package anl distril)ute them among customers witii '
executory conu-acta have been made.

i»:>3

Notes OB U* S* Reports.

ITO U. S. 46S-4S'j

%L 10 (XII» 1047). Commerce — Act requiring purity certificate.
Approved in SoutJaern Exp. Co. t. Ensley» 116 Fed. 758. holding
t>lU by interstate express company to restrain enforcement of city
ordinance reQuiring payment of license fee as condition of trans-
acting business In city Deed not sbow compliance wltb State laws
condition of doing business In State or that It la exclusively en-
in interstate commerce; State v. Hlckox, 04 Kan. 654, 658,
I. 68 Pac. 37, holding void Laws 1SS5. chap. 149, § 12, protiibidr«J:
"taking orders for sale of liquor as applied to nonresident salesman
■soliciting orders for nonresident merciianL

11,70 U. S. 468-481. 42 L. 1111, VANCE v. W. A, VANDERCOOK CO.
8yL 1 (XII, 1047), Pleading must show requisite amount in
^^^ntroversy.

Approved in O'Neal v. United States, 190 U. S. 37, 23 Sup. Ct 777,

-^1 L. 946, denying Jurisdiction to review District Court judgment

*^or contempt on error where jurisdiction over person and subject-

^idutter not challenged and certificate of lower court was whether It

la.«id jurisdiction to try and punish defendant for contempt upon

^aicta and for causes stated; Wiley v. Sinkler, 179 U, S. 63, 45 L. S8,

21 Sup, Ct 20, upholding Circuit Courts jurisdiction over action

Against State election officers to recover damages alleged to exceed

^2,000 for refusing plaintiff's vote for member of Congress; Mani-

^ault V. Ward, 123 Fed. 712, upholding Federal jurisdiction where

*t appears from bill that claim Is made in good faith that State

statute under which defendants are proceeding to do acts sought

to lie enjoined violates P^ederal Constitution though other grounds

of iavalidlty are also alleged and further alleged that complainant

^'111 BUBtain damages in excess o^ $2,000^ Battle v, Atkinson, 115

I'^H S^*!, 386. denying Federal jurisdiction over action for unlawful

*l*tainer where under Arkansas statute such action Is merely for

P«riK)«e of restoring possession where relation of landlord and tenant

^tists and complaint alleges vnlue of premises Is $5,000 and rental

^'d»e|:ir» per month; MX!ormlek v. AFDonald, 110 Fed. 53, denying

tosdlction over suit to declare thnt complainant Is entitled under

Mitement with defendant to certain per cent of net profits of con-

^^t which is being executed by defendant; Kunkel v. Brown, 99

^^<t^ r>!)4. 505, holding amount in dispute for jurisdictional purposes

'* fletermined by amount claimed by plaintiff In his pleading In

Sood faith though such chiim la made under mistake of fact as

■'i^sequemiy shown by evidence; Chitty v. Pennsylvania Ry. Co,

''•^S, c, 530, 40 S. E. 946. holding In affidavit for attachment In suit

^*>f <lamages to property it is not necessary to state value of property

"iJl naiount of damages is suificient: dis8entlng opinion in Giles v.

Hi^iTis, ISO U. S. 492, 23 Sup. Ct 648. 47 L. 914, majority denying

*\*Oi'ral court's jurisdiction over suit in equity by Alabama negro

*o t^oin|ni] board of registrars to enroll name on voting lists under

^'iHititation alleged to be contrary to Federal Constitution.

•""■j^o-n-t^i «'rf»»»r..^">°»- „ states-

Notes on U. S. Reports.

TO U. S. 537-5&A

pttoDe transmitter; National, etc., Co. v. Interchangeable, etc, Co.,
^ Fed. T6T, holding void Hein patent No. 480J£)4. claims 1, 2 and 7.
tor brake beam: Pltimh v. New York, etc, R. R, Co., 97 Fed. (>19,
lioldlng MeKenna patent No. 348,2Sl\ for alrhrake attachment, void
^ view of prior art; Magic Light Co. v. Economy Gas Lamp Co.,
®7 Fed. 91, holding Williams patent No. 60(5,435, for Improvement in
^»»-ge Derating gas fixtures, not Infringed.

Distinguished in Busch v. Jones, 184 U. S. 607, 46 L. 712» 22 Sup.
^^ 315. holding void Jones patent No, 204,741, for process for re-
*^ovlng type indentations from printed sheets,

Syl 2 (XII. 1049). Patents — Particulars of speciflcations.

approved In Singer Co. v. Cramer, 192 U. S. 284, 24 Sup. Ct

'^'^♦S, 48 L. 447, holding Cramer patent No. 271.426, for sewing-ma-

*^'^iiQe treadle, not infringed by device of DIehl patent No. 306,469;

ttobba V. Beach, im U. S. 4f>0, 45 L. 595, 21 Sup. Ct. 410. holding

^^ct that claim in Beach reissue No. 11,167, for machine for at-

^^^blug stays to corners of boxes, contains words " substantially

'^^ described," does not preclude patentee from insiatlng that pat-

^*it has been infringed by use of mechanical equivalent; Seller v,

duller & Johnson Mfg. Co., 121 Fed. 89, holding Starks and relland

I*^tent No. 486.2fX), for transplantlDg machine, not infringed by

Machine of Moehring pateat No. r>5.%425i Stilwell-Blerce, etc., Co.

^- Eufauia, etc.. Oil Co., 117 Fed. 414, holding Vaile and Tompkins

l^^tent No. 421.454, for combined cooker and cake former for oil

^t?ai, valid as to claims 1, 2, 4 and 9; American Bell Tel. Co. v,

'^'ational TeL Mfg. Co., 109 Fed. 1054. holding void Berliner patent

^o. 463.569, for telephone transmitter; Anderson Foundry, etc.,

^'orks V, Potts, 108 Fed. 383, holding Potts patent No. 322.393,

^lalm 3» for clay disintegi^ator, limited by prior art and not iu-

^rinffed; National, etc., Co. v. Interchangeable, etc., Co., 99 Fed.

"♦74. holding llein patent No. 480,194, claims 5, 6p 8 for brake beam,

^iinited and not infringed.

Syl. 3 (XII, 1050). Pioneer patent cannot cover function.

Approved in Singer Mfg. Co. v. Cramer, 192 U. S. 276. 24 Sup.

ICt 296, 48 L. 444, holding Cramer patent No. 271.426, for ti*eadle

l<leviee for sewing machines, not Infringed by device covered by

\^\ehi patent No. 3<.m,469; Severy Process Co. v. Harper, 113 Fed.

\fi^, r*Kr., holding Severy patent No. 549,691, for surface for platens

fof printing presses, not Infringed by device of Allen patents Nos.

I^i.217-4il3.221; Electric Smelting, etc, Co. v. Pittsburg Redue-

foQCa. Ill Fed. 757, 758, holding Bradley patents No. 464.933 and

468,148. relating to process for reduction of refractory ores,

infringed by HaU patent No. 400,766, for reduction of aluml-

i ores; Cleveland Target Co. v. Empire Target Co., 97 Fed, 73,

ling Marqua patent No. 301,908, for target traps, valid and

tinged.

170 U. S. 537-584 Notes on U. S. Reports.

SyL 4 (XII, 1050). Patents — Substitution of equivalents.

Approved in De Lamar y. De Lamar Min. Co., 117 Fed. 241,
holding void Walstein patent No. 607,719, for process for extract-
ing precious metals from cyanide solutions by use of zinc dust;
Krajewski v. Pbarr, 105 Fed. 522, holding Krajewski patent
No. 349,503, for machine for breaking and cutting com, valid and
infringed; Westinghouse Air-Brake Co. v. Christensen Engineering
Co., 103 Fed. 494, holding Westinghouse patent No. 360,070, for im-
provements in air-brake mechanism, not infringed; Cleveland Target
Co. V. Empire Target Co., 97 Fed. 74, holding Marqna patent
No. 301,908, for target traps, valid and infringed.

Syl. 5 (XII, 1050). Patents — Machines producing same result
as equivalents.

Approved in Standard, etc.. Scale Co. v. Ck)mputing Scale Co.,
126 Fed. 649, construing Pitral, Culmer, Azias and Sanderson com-
puting scale patents; American, etc.. Tool Co. v. Philadelphia, etc., ^

Tool Co., 123 Fed. 896, holding Bates patent No. 864,181, for pneu-

matic drilling tool, not infringed by tool of Keller patent .^^rt

No. 647,415; Mayo Knitting Machine, etc., Co. v. Jenckes Mfg. Cc,^, ^

121 Fed. 115, holding Mayo patent No. 363,528, claim 2, for mecban — ,^
ism for knitting machine, limited and not infringed; Masaetb v. Lar- ^-^^
kin, 119 Fed. 174, holding Masseth patent No. 439,166, for pack<>t- -s^s,^
for deep wells, not infringed; Moore v. Schaw, 118 Fed. 609, hold
ing Moore patent No. 022,251, for holding device for riveting pip
valid and infringed; Dowagiac Mfg. Co. v. Brennan, 118 fed. 14*
holding Hoyt patent No. 440,230, for improvement in grain drill
not infringed by device made In accordance with Christman ai
Munn patent No. 497,80i; Pittsburg Meter Co. v. Pittsburg Sc^^^p.
ply Co., 109 Fed. C51, holding Youngs patent No. 473,544, for p^^v
portional gas meter, not infringed; Thomson-Houston Electric ^I^
v. Loraiu Steel Co., 103 Fed. 045, holding Knight patent No. 428,1. €».
for improved electric motor regulator, valid and infringed by elec-
tric coutroller made in accordance with Harris patent No. 587,733;
Wostin^'house Air-Bralve Co. v. Christensen Engineering Co., W
Fed. 403, boldiiiff Westinghouse patent No. 300,070, for improre.
nient in air-bralce mechanism, not iufringe<l; Nurton v. WheatoD.
97 Fed. (^il, holding Jordan patent No. 307,197, for improvement
in can-ending machine, not infringed by machine made in accord-
ance with Wheaton patents Nos. 477,584 or 499,949.

Syl. G (XII, 1050). Air-bralve patents.

Approved in Westinghouse Air B. Co. v. Christensen Eng. Co^
128 Fed. 430, atlirniiug 12.S Fed. 308, which affirms 113 Fed 585i
holding Boyden patent No. 481,134, claim 2, tor valve for «l^
brake, infringed; Westinghouse Air-Brake Co. v. Christensen En-
gineering Co., 121 Fed. 558, holding where article made by ^
feudant prior to filing of bill for infringement of patent did »
infringe, and no intention there to infringe is shown, suhseqoe'

Notes on U. S, Reports. 170 U* S, 584-eiuo

l»l

'^aijge In structtii^ transforming It Into Infringing device will nol
^^arrant prelimlnai-y Injunction; Crown Corii, etc., Co. v. AiDniinum
Stopper Co., 108 Fed. 857; arguendo.

l*"© U. S. 5S4-587, 42 L. 1153, FINK v. UNITED STATES.

S7I. 1 (XII, 1050). Article dutiable nnder two beads.

Approved in Fetry v. United States. 127 Fed. IIU, boiding books
^^T children's use In German, containing litbograpbie prints, are
*iutlable, under tariff act 1897, par. 400, cbap. 11, § 1, and are not
**«lniitted free under par. 502. § 2.

Syl 2 (XII, 1050). Muriate of cocaine dutiable as medicinal
Pt*^paration.

approved In Scbering v. United States, 119 Fed. 472, boldinj;
'^yoscin bydrobromate is dutiable, under tariff act 1890, par. 74,
*^ medicinal preparation in wbicto alcohol is used, and not under
l*aragrapb 76. as ebemleal salt; Bottle & Co. v. United Stales. lOS
^^^<1 217. holding chloral hydrate dutiable under paragraph G7, tar-
^^ act 180T, as medical preparation in which alcohol is used; United
*5tnte8 V. Massachusetts Genenil Hospital, 100 Fed. 934, holding
*iir^ncal instruments are scientiflc instruments admitted free under
^^Hd act 18&4, par. 585.

^ *0 U. S. 58o-^S)3. 42 L. 1154, WAGONER v. EVANS.

Syl. 2 (XII. 1050). Municipal taxation of property outside limits.

Approved in Foster v. Pryor. 18tl U. S. 332. 23 Sup. Ct. 552, 47
^ S38, upholding Okla. Sess. Laws 1899. p. 210, providing that anly
^axei for territorltU and court funds shall be levied in unorgan-
**e<l country attached to any county for Judicial purposes,

^"0 U. S. 593-006, 42 L, llSt). PllOVIDENT LIFE, ETC., CO. v.
MERCER CO.
SyL 3 (XII» 1051). Parties acting in good faith — Statutory
^Ostruction.

Approved lu Board of Comrs. of Stanley Co. v. Coler. 113 Fed.
"•^O. holding, under Code N. C. § 19M. empowering county com-
^^^Usioners to subscribe to stock of railroads when necessary for
*Mr completion, county could subscribe for stock of projected

Sjl 4 (XII, 1051). Recitals in municipal bonds.

-^Uprored in Tulare Irrigation Dist. v. Shepard, 185 U. S. 24
^ U 784, 22 Sup. Ct 540, holding defective organisation of Irrlga^
'*''u aistrk't. under Cal. act of 1S87. because of insutBclency of
«»i»Ute of intended presentation of petition for form at I on of dis-
"1<Jl to supervisors, taunot be raised against bona fide bondholders
^^n^i supervisors decided district duly organized and fllerl copy
^*^ 'Menu I nation with county recorder, and bonds contsijtied re-
[J^'^1 of compliance with act; Wetzell v. City of Paducab, 117 Fed.
Lififilxing principle where council make recitals that all neces-

170 U. S. 606-615 Notes on U. S. Reports.

Bary conditions have been complied with; Board of Comrs. of St
ley Co. V. Coler, 113 Fed. 718, holding county issuing bonds,
der N. C. Code, § 1996, for stock in railroad built into county
agreed, is estopped by recitals therein that they were issued
authority of such statute to deny that subscription was necess
to completion of road; State v. Wichita Co., 62 Kan. 502, 64 ^ — *^
47, holding recitals in bonds issued under refunding acts that tb^^^y
are issued to refund county bonds actually existing when ^^^^
passed, and which have been outstanding for two years, estop coui^^^*^
from denying such facts as against bona fide purchaser.

Syl. 2 (XII, 1051). Municipal authority to issue bonds wh^^ ^^
road completed.

Approved in Board of Comrs. of Stanley Co. v. Coler, 113 ^^"^^^i
723, holding, under N. C. Code, § 1996, empowering county ^^^^^^^^
sioners to subscribe to stock of railroads when necessary to the ^^^3.
completion, county could subscribe to stock of projected railroad -^

Syl. 6 (XII, 1051). Negotiable municipal bonds deUvered in Ti<^ -•^^
lation of escrow.

Approved in Pickens Tp. v. Post, 99 Fed. 663, reaffirming
D'Esterre v. New York. 104 Fed. 610, holding where town ii
negotiable bonds in conformity with statute and delivered tbei^c ^
to purchaser by whom they were negotiated for value to boo
fide third party, municipality cannot avoid liability 01
that they were negotiated by officers on credit

170 U. S. 606-614, 42 L. 1162, LEDBETTBR v. UNITED STATB^^

Syl. 2 (XII, 1051). Indictment in language of statute.

Approved in In re Bellah, 116 Fed. 72, 74, holding averment §n
a petition in involuntary bankruptcy that defendant at certAlo
time received specified sum from specified source, which sum *• Ae
has since concealed and secreted with intent to hinder, delay or
defraud his creditors," is not defective for want of particularity.

Syl. 3 (XII, 1051). Indictment — Negativing provisos and ex-
ceptions.

Approved in In re Bellah, 116 Fed. 78, holding petition la !•-
voluntary bankruptcy is defective if it omits to aver that defiod-
ant was not wage earner nor a person engaged chiefly In farmlBf
or tillage of soil.

Syl. 4 (XII, 1052). Indictment in words of statute.

Approved In Dalton v. United States, 127 Fed. 546, holdinf !»•
dictnient, under Rev. Stat., § 5480, for using mails to defWi*
must not only charge devising of scheme or artifice to defraud. t»
be effected by using mails, but must set out the facts which cot-
stitute the specitic scheme or artifice so devised by defendant

170 U. S. 014, G15. Not cited.

Nates on U. S. Reports. 170 U. a 615-62S

^ V. S. 615-620, 42 L, llGo, HOLLO WAY v. DUNHAM,

Syl 1 (XII, 1052). Siifflciency of evidence not examinable on ap-

«1 from Territory.

Approved In Luhrs t. Hancock. 181 U. S. 570, 45 L. 1007, 21

p. Ct 727, reaffirming ruJe.

Sfl. 4 (XII, 1052). Appeal — General exceptton.

e^pproved In M'Ootcheon v. Hall Capsule Co.. 101 Fed. 548,

iffirming rule: Hlndman v. First National Bank, 112 Fed. 934»

plying rule in action for damages for deceit whereby plaindCf

lueed to purchase stock; Colnmbus Coast. Co. v. Crane Co., 101

li 58. holding rule 10, Circuit Court of Appeals, seventh circuit,

Hiring party excepting to charge to ** state distinctly several mat-

B of law in charjre to whfch he excepts," does not require dlf-

ent grounds of objection to be enumerated in the exceptions.

U. S. 621-628. 42 L, 1167, UNITED STATES v. SALAMBIER.
lyl. 1 (XII, 1052). Tariff— PiHitest against entry,
Lpproved in United Stiites v. Brown, 127 Fed. 79T, holding board
general appmiseris, under customs administrative act of 1S90,
required first of all to determine its juri^jdletlon, Including the
Idity of tbe protest; Weil v. United States, 124 Fed. 1007» up-
tding protest against classification of certain longhaired Bus-
n calf skins where it did not refer to paragraph GG4 of act of
iT, under which they were free, but only to paragraphs 561,
2 of said act; Knowie« v. United States, 122 Fed. 972. holding
otest of importer, asserting that goods were exempt under cer-
in paragraph, should be sustained where they are exempt, though
cider another paragraph; Baycrsdorfer & Co. v. United States,
^ Fed. 960» holding protest claiming goods are free of duty as
coTlded in certain specified paragraphs of tariff act is sutlicient

* warrant reversal of collector's ruling, though paragraph which,

* matter of law, places them on free list fs not speeifled, it hav-
*f \)een named in companion protest; reversed In 128 Fed. 732;
haw V. United States. 122 Fed. 445. holding protest claiming
"^e entry of Importation of tapioca flour, uader paragraph iUB

* tariff act of 1S94, was sufficient to advise collector that exemp-
0& was In fact claimed under paragraph 677 of act of 1S97,
iiich contains Identical provision where sucli act was one in force
*d governed the Importation; United States y. Shea, etc., Co.,
'4 Fed. 40, holding protest Is aullicient, though importer falls to
*ijCMte correctly the provision under which the class! Ilea ti on
kcoia have been made; In re Ciatiln. 113 Fed. 944, 945, holding
'^est filed by importer, under customs administrative act of
8o, against classification of gloves as lambskin, under paragrapli
^ of tariff act of iSl*7. on ground that they should be " assessed
itler paragraph 430 as Schmaschln gloves*** was sufficient; United

VoLIIl — 5&

170 U. S. 628-665 Notes on U. S. Reports.

States Y. Pilditch, 99 Fed. 939, holding fact that protest of im-
porter against assessment for duty fails to state under what pro-
vision or what it is •claimed merchandise should be assessed does
not render it insufficient, where on appeal right paragraph Is
found and correct duty imposed.

Distinguished in United States t. Bayersdorfer, 126 Fed. 735,
7^6, holding protest failing to specify the proper paragraph under
which goods are free of duty.

170 U. S. 628-637. Not cited.

170 U. S. 637-655, 42 L. 1174, HAYES v. UNITED STATES.

Syl. 2 (XII, 1053). Derivation or ratification of title — Privat
land claims.

Approved in Whitney v. United States. 181 U. S. 114. 45 L. 775w^^
21 Sup. Ct. 569, holding title, under Mexican grant in New Mexico^r-^
made in 1845 by governor is incomplete and caniiot be confirme^N^^
where there is no evidence of approval by departmental assembl:^^^
and no record of further proceedings to obtain approval of fu^
preme government, and there is no record of its existence in arcblvs
of New Mexico; Mitchell v. Furman, 180 U. S. 431, 45 L.
21 Sup. Ct. 441, holding authority of Spanish officer to make
veyance of public domain not presumed from mere fact of cc^^^
veyance in absence of other evidence where he had no anthor^^
ex officio to do so.

Syl. 3 (XII. 1053). Adverse possession — Mexican grant

Distinguished in Sena v. United States, 189 U. S. 240. 23 Sopi
Ct. 598, 47 L. 791, holding Court of Private Land Claims ctnooe
confirm Spanish grant where grantee^s descendants had, for men
tlmn nine years prior to Mexican treaty of 1848, abandoned land
and there had been no possession by representatives of gnntit
since treaty, and no attempt to assert their title thereto for taan
than fifty years thereafter.

170 U. S. 655-005, 42 L. IISI, THE CARIB PRINCE.
Syl. 1 (XII, 1053). Following concurrent decisions on factfc
Approv(-d in Brainard v. Buck, 181 U. S. 105, 46 L. 453, 22 Sop.Ct
4G1, applying rule to resulting trust; International Nav. Co. v. Faff*
Bailey Mfg. Co., 181 U. S. 224, 45 L. 833, 21 Sup. Ct 593, apply
ing rule in determining seaworthiness; Illinois v. Illinois C B. ^
Co., 184 U. S. 98. 40 L. 440, 22 Sup. Ct 308, applying rule wbr
courts found that structures did not extend into lake beyond p^
of practical navigability; Workman v. Mayor, etc., of New Y
179 U. S. 555, 45 L. 318. 21 Sup. Ct 213, applying rule in ho'
city liable in rem for damages caused by collision of its flrr
Whitney v. Olson, 108 Fed. 290, holding on admiralty app«
cision of District Court on questions of fact depending upc
tradictory evidence, taken in open court, not reversed unless
against evidence; Wilder's SIS. Co. v. Low, 112 Fed. 165. i

sai

Notes on U. S. Reporta. 170 U. S. 655-t)05

^^^ in (collision case: Jacobsen v. Lewis Klondike, etc.» Co,. 112

1'^, 78. applying rule in action for breach of towage oontract.

Syl 2 iXII, 1053). BOl of lading exempting from loss by defects.

Approved In Tbe South wark, 104 FetL 104, holding agreement in

^*1 of lading for dressed meats to be shipped across Atlantic that

^iTler will not be responsible for damage arising from Injury to

'^IpB refrigerator or machinery is valid, and relieves carrier from

"^ibimj for loss reanltiag from such causes onless negligence

^ Shown.

IXstinguisiied in The Ontario, 10€ Fed, 327, holding mere in-
^Uallty of strength In rivets not evidence of defects In lost rivets
^here plates sprung so as to render vessel unseaworthy.

Sjl. a (XII, 1053). Barter act — Nonliability for uaseawortlil'
Hess.

Approved In The South wark, 191 U. S. 8, 48 L, 69. holding fur-

*ilslilng of refrigerator In good order competent for safe traaspor-

'^tion of beef, which vessel has undertaken to carry, Is within

<^t>ligation to use due diligence to provide seaworthy vessel nn*

<ier Harter act; Knott v. Botany Worsted Mills, 179 U. S. 73, 45

L. 93, 21 Sup. Ct. 31, holding where wool damaged by drainage

from wet sugar, damage caused by improper loadiag or stowage

Qf cargo within Harter act. ( 1; The Germanic, 124 Fed. 3, hold-

*to5 vessel liable for damage to cargo where by reason of negll-

Sfnee and Improper loading of cargo in port by stevedores, brought

■ibout condition of instability, whiclj owing to accumulation of

*<^t on upper ueck rendered her topheavy and she turned turtle

*t dock; The C. W. Eiphicke, 122 Fed. 439, holding Harter act

•^oes not exempt shipowner from liability for damage to cargo

'^^ultlog from her unseaworthy condition at commencement of

Wage, though It is shown that he exercised due diligence to

'^^ake her In all respects seaworthy: Nord-Deutscher Lloyd v.

^n-sldent, etc., of Ins. Co. of North America, 110 Fed, 424, 425,

folding due dillgeDce not exercised to make lighter seaw^orthy and

^t for business In which it was employed where seams were ira-

'^•^iverly calked and admitted water into hold when boat rocked

^ slight swell from passiog steamer; Insurance Co. of North

'^tnerlca v. North German Lloyd Co., 106 Fed. 970. holding if taking

■^rgo to vessel in lighters be part of loading of vessel stipula*

'^on In bin of lading reheving caiTier from failure to provide fit

^'Shter Is prohibited under Harter act, § 1; The Manitoba. 104 Fed,

^1. 152, holding open port at beginning of voyage, condition of

^iiich was unknown to officers, made siiip unseaworthy as to cargo

^wed In that compartment; The Fries land. 104 Fed. 100, hokl-

^ where cargo injured by sea water entering vessel, which had

^*^ worn by corrosion, through iron bottom of valve chest whicii

f*il never been removed for examinatidti, there was not sufficient

Lion under bill of lading re^iulrlng due diligence to make

170 U. S. 66&-674 Notes on U. S. Reports.

vessel seaworthy; Farr, etc., Mfg. Co. v. International Nar. Co..
Fed. 637, holding vessel not seaworthy where coverings of po
though structurally fit, are through inadvertence insecurely fj
tened so that they become open and admit water damaging can
In re Old Dominion SS. Co., 115 Fed. 849, holding in proceed!
by shipowner in District Court for limitation of liability qaesU
whether fire by which cargo was destroyed was caused by deal
or neglect of shipowner, so as to deprive it of exemption fn
liability, will be determined by court and will not be left op
to be determined by jury in action brought by cargo-owner i
this purpose; The Aggie, 107 Fed. 302, arguendo.

170 U. S. 665-674, 42 L. 1188, TEXAS, ETC., RY. v. ARCHIBAL

Syl. 1 (XII, 1053). Carriers — Duty to see cars are fit.

Approved in Patton v. Texas & P. R. R. Co., 179 U. S. 664,
L. 365, 21 Sup. Ct. 278, holding railroad not liable to firenw
injured through turning of step on engine through nut becomii
loose where it had been inspected at beginning of trip; Northei
Pac. Ry. Co. v. Tynan, 119 Fed. 292, applying rule where brtfc
man Isilled while trying to couple cars equipped with old-stj
coupler little used, and decedent not instructed as to couple^
dissenting opinion in Dawson v. Chicago, etc., Ry. Co., 114 F*
875, majority holding bral^eman going between moving cars m
seizing grip irons primarily used for making couplings is gnX
of contributory negligence where there were hand holds on 3
Joining car which he might have safely used; Swenson ▼. Ben<3
114 Fed. 7, holding servant injured by caving in of tunnel in wli.3
he was working, and which was insufficiently timbered, cannot
charged with contributory negligence in law where he was Infi
perienced and master assured him that place was safe, and It wi
shown that master directed planks to be put in to hide danger froi
men; New Orleans, etc., R. R. Co. v. Clements, 100 Fed. 423, boW
ing foreman in switchyards who gets on moving flat cars to looffi
brakes and is injured by brake wheel coming off not guilty o\
contributory negligence; Missouri, etc., Ry. Co. v. Merrill, 65 Km
443, 70 Pac. 360, 93 Am. St. Rep. 292, holding railroad compm^
which delivers defective car to connecting carrier not liable to*
injuries to employee of latter by reason of defect after recelrlfll
company has inspected car and taken it in charge.

Distinguished In dissenting opinion in McGuire v. Bell TeL 0**
167 N. Y. 221, 60 N. E. 438, majority holding fact that liDeo*^
knew that pole used by telephone company did not belong ^
company does not relieve company from liability for injury cftO«"
by Its defects.

Syl. 2 (XII, 1054). Master must furnish safe appliances.

Approved In Deserant v. Cerillos Coal R. R. Co., 178 U. S. ^
44 L. 1134, 20 Sup. Ct 972, reaffirming rule; Choctaw, etc B- ^
Co. V. McDade, 191 U. S. 68, 48 L. 101, holding brakeman asson***

Notes on U. S, Reporti*. ITO U. S. 665-07-4

rtsk of Injury from ijroximlty of oveTlianglng water-spout on tank

^o track; Texas, etc.. Ry. Co. v. Behynier, 1S9 11, S. 470, 23 Sup.

Ct:. 623, 47 L. 906. applying rule where Ijrakemau injured by fall-

^^E from car wbich was negligently stopped suddenly wHtli knowl-

^^ge of Ws position: Wlieeler v. Oak Harbor, etc., Co., 126 Fed.

3^1. holding where woman injured by skirts beiog caught on re

Solving shaft, under window in which she was seated, allegatio^is

"til at eUe was unacquainted with danger and that it was her cus-

t^Om to sit there with defendant's knowledge, petition not deniur-

**a.ble as showing contributory negligence; American Distributing

^^^O. y. Thorne. 122 Fed. 433. holding w^here common lai>orcr sent

t:o top of building to start elevator which had stuck, and he had

l>i'eTiously started it by shaking, and in attempting again to do

^o It fell, Injuring him, he did not assume risk; Kenney v. Med-

<l^«gli, 118 Fed. 214, 215, holding tireman employed on road for

^ver year assumed risk of proximity of mall crane to track; Lind-

^^J T. New York, etc., R. R. Co., 112 Fed. 385, holding where

oralteman coDtinuously employed in railroad yard for over nine

'xiontbs was Injured by fulling into drain, which with US other

»tiniiar drains had plainly existed in yard all time of his employ-

**ient. he assumed risk thereof; King v. Mor^^an, 109 Fed. 441),

liolding experienced miner using iron bar in tamping dynamite

s^ssumed risk of employment; Beattie v. Edge Moor Bridge Works,

100 Fed. 234, applying rule where bridgeworker injured through

^lefects in work; Tennessee, etc., Ry. Co, v. Currier, 108 Fed. 22,

Isoldlag where miner engaged in driving car into mine injured

^vhiie riding on new car whicli was higher than old one he was

^t guilty of contributory ncgligenee; Volk v, B, F. Bturtevant

^'^u 104 Fed. 27T. holding employee whose duty It la to clean out

•^>tlam of elevator shaft and hs injured by descent of car upon him as-

^'iwos rij*k of employment; Mexican Cent. Ry. Co. v. Mnrray, 102

^^"^y 'J.12r holding employee assisting in raising bridge spans with

^ti loops, and injured by breaking of loop, did not assnme risk

^hnp he continned work after breaking of tw*o loops and when

*li*hl loop was stiiiiiied; Cincinnati, etc., R. R. Co. v. Gray. KJl

^'W. »j2f^. holding railroad receiver Installing new and different

BWiic'h from one formerly used, and failing to instruct as to its use, is

llflhlt. for Injuries to servant eansed by its improper operation; Olsen

^ \>rth Pacific Luml)er Co., 100 Fed. 388, holding one accept! n«: em-

l'%ment may assume that master ha.s employed careful fellow ser-

^amu; Grace, etc., Co. v, Kennedy, 99 l^ed. ti82, holding servaut

'toos not assume risk of employer's neglect to furnish reasonably

"ftfe Ryslem of protection against danger from injury from pass-

^H Vehicles coming in conlact with jruy ropts extending from

t>l!ice where servant is working out into and f across street; Cres-

Hpll V. WUoiington. etc.. My, Cck. 2 Pcnnew. {Del.) 215. 21B, 43 Atl.

:l, holding in action against railroad for deatli of enjployee

V, 1 to have been caused by combination of several cause&i

171 U. S. 1-30 Notes on U. S. Reports

where there was no eridence of defects in appliances and show— 91^^)^
that he had used same appliances for years, it is not error t^ « ^
direct verdict for defendant; Wood v. Victor Mf j. Co^ « S. O . q

487, 45 S. E. 82, applying mle where carpenter and repairma ^*- y^^.,
onployed in cotton miil injnred by falling on him of sacks oc^ ^.

starch negligently piled; dissenting opinion in St. Louis CordaiSE^ ^^^^
Co. T. Miller. 126 Fed. 515, majority holding woman Injnred hmiM 5^
fingers slipping into machine, which she had operated each '
for several weeks, after its cogs had been nncorered. See 75
St Rep. COO. 601. note.

170 U. S. 675-681, 42 L. 1192, KINGMAN r. WESTERN MFG. C^^Z::^

SyL 1 (XII, 1054). Where time for error to Circuit Court runs. ^

Approved in In re Worcester County, 102 Fed. 810, holding wbe^^^>^
Circuit or District Court permits filing of petition for reheari: ...jsq^
during term at which order or decree sought to be reviewed t> ^i— raj
entered it retains jurisdiction to act upon such petition at a sa
ceeding term, and time for appeal does not begin to run until
action taken.

170 U. S. 681-702. 42 L. 1195, UMTED STATES v. COB.

(Xn, 1051). Miscellaneous.

Cited in Whitney v. United States, 181 U. S. 112, 45 L. 77i SI
Sup. Ct 569, reviewing history of Mexican colonisation law.

CLXXI UNITED STATES.

171 r. S. 1-30. 43 L. 49. SCHOLLENBERGER v. PENNSYLVA^T^-^

Syl. 2 I XII. V^>K Oleomargarine is article of commerce.

See So Am. St. Rep. 4»r2. note.

SyL 3 I XII. U>55». State regulation of introduction of imjF«^^
articles.

Approved in Crossman v. Lurman. 192 U. S. 196, 48 L. 404, 24 S'tMt^
Ct. 23»», affirming 171 N. Y. 332. 334, 63 N. E. 1098. 1090. uphold^*^
Laws 1S93, chap. 661. relating to adulterations m food and pr<^
vidins that any article shall be deemed adulterated if it be color^
coated or polished or powdered, whereby damage ia concealed* ^
it is made to appear l>etter than it really is or of greater val***'
Smith V. St. Louis, etc.. R. R. Co.. ISl U. S. JS5. 45 L. 85a 21 S^P*
Ct. 6iV5. upholding Tex. Rev. Stat 1S95, art 5(>43c, relathig [^
Quarantininsr of di^^easeil animals: People v. Buffalo Fish Co.. ^^
N. Y. 102. 7V> Am. S:. Rep. ».127. 5S N. E. 37. holding void 8titOt«
forbidding having in posi^ession certain kinds of fish during cert^**

Kotes on U, 8. Reports,

171 U. S. l-'?0

seasons, In so far as tt affects possession and sale of Imported fish.
See S5 Am. St Rep. 403, note.

Distlnguisbed in Capital City Datry Co. v. Ohio, 183 U. S. 246*
46 li. 170, 22 Snp. Ct 123, upholding Ohio laws forbidding manu-
facture and sale of oleomargarine which contains any coloring
matter; Minnesota v. Brundaj^^e, 180 U. S. 503, 505. 45 L, 641, (142,
21 Sup. Ct. 457, denying habeas eorpns where one imprisoned for
Tjolation of Minn, dairy act has not availed himself of State rem*
edies for review,

Syl. 4 (XII, 1055J. Commerce — Prohibition of Importation of
pure articles.
See 78 Am. St Rep. 252. nota

SyL 5 (XII, 1055), Commerce — Prohibit! od of importation of
adulterated articles.

Distinguished In dissenting opinion In People v. Buffalo Fish
Co.. 164 K. Y. 110. 113, 114, 79 Am. St. Rep. G33, 634, 58 N. E. 40,
41 » 42, majority holding void Laws 1802, making It unlawful to
bave in possession certain kinds of fish at certain timest as applied
to possession and sale of Imported fish.

Syl. 6 (XII, 10.55). State prohibition of sales.
Approved in Atlantic & Paciflc Tel. Co, v. Philadelphia, 190 U. S.
162^ 23 Sup. Ct 818, 47 L. 99l>. holding telegraph company though
engaged In interstate commerce may be compelled by city to pay
reasonable license fee for enforcement of local government super-
vision of poles and wires,

Syl. 7 (XII, 1055). Commerce — Prohibition of sales In original

Packages,

I Approved in Racine Iron Co. v. McCommons, 111 Ga. 546, 36

K. 870, holding State may, to raise revenue, impose license ta.\ on ^

^aveilng agents for principals residing in other States and who

^oke executory contracts for sale of goods, and who receive goods

*^ bulk, break original package and distribute goods to cystomers;

McAlhster V. State, 94 Md, 302, 303, 50 Atl. 1047, 1048, holding

^^id Code Pub. Gen. Laws, p. 480, as amended by Supp. Code IStX^-

^^^^K p. 33, prohibiting sale of oleomargarine made in Imitation of

^^utter. In so far as it prohibits having In possession and sale In

*^^aie of oleomargarine In original package made in another State;

1q re Wilson, 10 N. Mex. 36. 60 Pac. 75, holding void Sess. Laws

16811^ p. 101, imposing license fee as condition upon which coal oil

^^7 be sold In Territory, as appMed to sales In original packages;

SaulAbury v. State, 43 Tex. Cr. D5. (13 S. W. 570. 96 Am. St. Hep.

» uplioltllng statute requhing peddlers to take out license as

applied to peddlers of buggies prevlou.sly jJttnt him by manufacturer

'•1 niiotlier State and which he toolt out of original package ami put

^♦^HbtT and sold; diasenllng opinion In Austin v. Tennessee, 17[)

^> ». 300, 381, 45 L. 236, 241, 21 Sup. Ct 142, 146, majority uphold-

171 U. S. 30^4 Notes on U. S. Reports. U3^

ing conyiction of violation of Tenn. act of 1897, prohibiting bringins^
into State or sale of cigarettes, where cigarette packages importeCa
loosely in basket. See 78 Am. St Rep. 251, note.

Distinguished in Austin v. Tennessee, 179 U. S. 353, 45 L. 230; 2fr
Sup. Ct 136, upholding conviction of violation of T^nn. act otr^
1897, prohibiting importation or sale of cigarettes where cigarette^^
imported in ordinary packs which were thrown loosely in basket::^
Arbuckle v. Blackburn. 113 Fed. 625, 626, upholding Ohio pur^r—
food law of 1884, as applied to articles brought from other Stater-;^
and sold in original package; In re Scheitlin, 99 Fed. 275, 27e::^
upholding Mo. Sess. Acts 1895, p. 26, $ 2, prohibiting manufactur-^
or sale of substance in imitation of butter; Cook v. Marshall Go^::=
119 Iowa, 396, 93 N. W. 376, holding where many boxes of cigareti
each containing ten cigarettes are given absolutely loose to
press company by manufacturer to transport to another State, ea<
l>ox is not an original package; Iowa v. Schlenker, 112 Iowa,
84 N. W. 700, upholding Code, $ 4989, declaring fine for one wt^K
sells adulterated milk.

Syl. 8 (XII, 1056). Commerce — Suitability of original packa^^^

Approved in dissenting opinion in Austin v. Tennessee, 179
S. 3(iT, 45 L. 235, 21 Sup. Ct. 141, majority upholding Tenn. mm^

of 1807, prohibiting sale and importation of cigarettes as appli

to importation of cigarettes in ordinary packs thrown loosely
basket.

iXII. 1055). Miscellaneous.

Cited in Austin v. Tennessee. 179 U. S. 356, 45 L. 231, 21 Si^c3
Ct. 137. incidentally.

171 U. S. 30-34. 43 L, 60. COLLINS V. NEW HAMPSHIRE.

Syl. 1 vXII. 1056). Commerce — Law requiring adulteration ^
imports.

Approved in State v. Collins. 70 N. H. 218, 45 Aa 1080. foUc^^
iuir rule: Minnesota v. Brundage, ISO U. S. 503, 505, 45 L. QP-*^
r»4-\ 21 Sup. Ct. 457, deuyiug habeas corpus where person (t-^^o
vioiod iu State ciuiri of violating: Minn, dairy act has not ^^'
liausUHi all State remeiiies: dissenting opinion in Lottery Case. 3.SS
r. S. :U5i). 2:^ Sup, Ct. 3;^, 47 L. 506. majority upholding act of
Marv'h 2. lSiK\ ohap. 191. prohibiting traffic in lottery tickets. See
notes. S'^ Am. St. Kep. 403: 7S Am. St. Rep. 252. 258,

Syl. 2 iXlI. liVH»>. Direoi result of statute considered.

Apprvn-tsi In l'niti\l Slates v. Hocg. 112 Fed, 912. affirming tH
Vi\i. 2:^», and UoM-.i^c Ky. Stat., f IdiM. par. 3, providing tli^^
^Ttuer luay. at any time after return day while original execati<>D
s ::v bis r.aUvis, sell .nny projvrty taken in virtue thereof. proTid«'
lovy n\culo *vv:orx^ rw.^rn ^'..ny d«.vs not change common-law m^
•' !ioi o! IN2S t!ui: tevY u..iy Iv made on return day. nor do««
.t prv^hit'i: sale uuvier levy *<* made; In re Higgins, 97 Fed. T7&

0>3T

Noiefi OD U. S. Reports.

171 U. S. a5-o5

l3.oIdiDg act 1898, § 6Tc, proTltllng that adjudication In bankruptcy
^liall dissolve lien tre:Ueii by suit. ibLludiu^ atiacluutiiit on hh^m*'
process, which was hog;iia against bankrupt within four months
^jrior to tiling of petition, does not refer to bcg:inning of suit it-
self but to heglnning of that part of proceedings ivhose special
ol>ject is to secure lieu on property of debtor; Atchison Co. \\
CriiaUlss, 65 Kan. 181, 60 Pac, 174, holding, under Laws 1D01»
otiap. 3D2, § 1, relating to service of summons in tax proceedings,
service by leaving copy of summons at defendant's usual place of
residence is personal service.

1.T1 tJ. S. 35-38, 43 L. ^2, POUNDS v. UNITED STATES.

SyL 1 (XII. 1056). Indictment in language of statute.

Approved fn In re Bellali, 116 Fed. 72, 75, holding averment In
X^etJtlon In Involuntary bankruptcy that defendant at certain time
i-€*oeived specified sum of money from specified source which sum
•• lie has ever since secreted and concealed with intent to hinder,
dolfiy or defraud creditors" is not defective for want of partlcu-
Ini-ity.

XTl U. S. 38^7, 43 L. (33, HARRISON v. MORTON.

SyL 2 (XII, 105r»). State decision mn«t necessarily involve F'ed-
emi question.

^%-pproved in Carnahan v. Connolly. 187 U. S. 03(5, 23 Sup. CL
^^-^^^ 47 L. 343, and Balk v. Harris, 132 N. C. H. 43 S. E. 478, both
following rule,

^■^1 u. S. 48-55, 43 L. U7, DETROIT, ETC.. RY. v. DETROIT RY.

^5i. 2 (XII, 1057), Municipal grant of exclusive use of streets.
-Approved In Logtmsport Ry. Co. v. City of Logansport. 114 P^ed.
^A holding neither Ind, act of September 7, 1881. nor act of March
•^^ 1S!>1, conferred on city council power to grant to street railroad
^'*li«5r an exclusive or a perpetual use of Its streets for railway
^*>nioses.

Hyt 3 (XII, 1057). Statutes — Expression ** necessarily Implied."
Al»r»rovrd in Freeport Water Co. v. Freeport. 180 U, S. 5D8, 45
''- «jSS. 21 Sup. Ct. 4S)7. holding, under ML act of 1872, authorl?;ing
^'itlog iQ contract for water supply for period uot excluding thirty
years at sncb rates as might be fixed by ordinance, city could by
*^*rdlnauce charge rates.

%l 4 (XII, 1057). Construction of municipal powers.
Approved in Los Angeles v. Los Angeles City Water Co., 177
^- 8. 57L 44 L. 81>2, 20 Sup. Ct 741, holding reservation by city
^^ i<*afie of Its water-TiVorks of right to regulate rates provided
I ^*^y he not reduced below then existing rates, is right of city
I** uiunlelijallty to regulate rates and Dot mere granting back
lot le^e^ 0f right of city In Its proprietary capacity only.

I

1

171 U. S. 55-02 Notes on U. S. Reports.

171 U. S. 55-92, 43 L. 72, DEL MONTE MINING, ETC.. CO.
LAST CHANCE MIN., ETC., CO.

Syl. 1 (XII, 1057). Mines — Owner of surface owns perpendJ
larly underneath.

Approved in Calhoun Gold Min. Co. v. AJaz Gold Min. Co., 182
S. 509, 45 L. 120G, 21 Sup. Ct. 890, holding blind veins undeme
prior lode claims belong to surface location, under Rev. St
§ 2322, and their discovery by running tunnel, under section 22
docs not give owner of tunnel any right to them; Ohio Oil Co.
Indiana (No. 1), 177 U. S. 202, 44 L. 736, 20 Sup. Ct 581. uph<
ing Ind. act of March 4, 1893, prohibiting any one to allow
cape of gas or oil without confining it for more than two da
Crown Point Min. Co. v. Buclc, 97 Fed. 465, holding mineral i
covery made on public land and claim located thereon vest
locators all free public land within its limits and every vein wh
npex is found within such land within surface lines extended doi
ward vertically, whether surface secured is all or only part of tr
within boundary lines of claim; Manufacturers*, etc., Co. v. India
etc., Co., 155 Ind. 474, 57 N. E. 917, upholding Acts 1891, p.
prohibiting use of artificial means to increase natural flow of {
from a well.

Distinguished in State v. District Court, 25 Mont 614, 510, 6
65 Pac. 1023, 1024, holding where relator owned certain patent
claims and subsequently defendant located on discovery near c
ners of rclator*s claims, claiming that vein there discovered past
on its strilce through relator's claims, and defendant's claim
eluded within its lines most of space in some of relator's dah
ores in such space were prima facie relator's.

Syl. 5 (XII, 1057). Mines — Previous location.

Approved in McCulloch v. Murphy, 125 Fed. 154, following ro
Calhoun, etc., Co. v. Ajax, etc., Co., 27 Colo. 24, 59 Pac. 616, bo
ing, under U. S. Rev. Stat, § 232:5, giving to tunnel site locat*
right of possession of all veins or lodes within 3.000 feet from fi
of tunnel gives locator no right to blind veins that it may •
undei-neath and within boundaries of prior valid surface location

Syl. 7 (XII, 1057). Mines — End lines must be parallel.

Approved in Tonopah & Salt Lake Min. Co. v. Tonopah M
Co., 125 Fo<l. 407, followiug rule; Bunker Hill, etc., Co. v. E
pile State-Idaho M. & D. Co., 109 Fed. 540, 541, holding wti
junior claim overlaps, having one of parallel end lines laid wit
or across senior location, owner may follow vein in downwi
course l)etween planes of own end lines in all respects as thoi
there were no prior location, except where it would conflict ^
rights of owner of such senior location: Argonaut Min. Co-
Kennedy, etc.. Co., 131 Cal. 20. 03 Pac. 152, holding end lines
surface location of quartz lode located under act of 1866, •

Giii^

Notes on U. S. Reports.

171 U. S. 53-trj

patented under act of 1872> aeed not be parallel in order to insure
^soctra lateral rights to owner.

Syl. 8 (XII, 1057). LincB of junior lode location.

Disting^iilslied In Clipper Mining Co. v. Eli M, & U Co., 29 Colo,

3^4, 08 Pae. 291, 93 Am. St. Rep. 100, holding before it cun be said

'^iDa.t lode is linown to exfat witbin placer location so as to authorize

ose to enter thereon and locate the same, there must be actual

Iczuaw ledge of its existence as distinguished from belief or suppo-

tion that it exists; State v. Dlstxict Court 25 Mont 51S, 65 Pac,

1025« holding where relator owacd certain patented claims and

^vibsequently defendant IcM?ated on discovery near comers of rela-

'Tor'B claims, claiming that vein there discovered passed on Its

^^£:rike through relator's claims, and defendant's claim Included

"iw^ithln Its lines most of space Id some of relator's claims, ores in

^iiich space were prima facie relatcirX

Syl. 9 (XII. 10G7). Mines — ^ Main axis of junior crossing senior
locration.

-Approved In Bimker Hill, etc., Co. v. Empire State-Idaho M. &
I>, Co., 109 Fed, 543, boldlag where Junior claim overlaps* having
cixie of parallel end lines witbin or across senior loeatiuo, owner
"XI a J follow vein in downward course between planes of own end
lixi^s in all respects as though there were no prior location, ex-
*^^r>t where It would conflict with rights of owner of such senior
loeation.

Bjl 12 (XIX, 1057). Pursuing vein beyond side lines.

-A^pproved in Bunlcer Hill, etc., Co, v. Empire State-Idaho M, &

*^- Co., U19 Fed. i>13, holding where juulor claim overlaps, havitii;

*^^e of parallel end lines witliin or across senior lo*"atioa, owner

^*^*iy follow vein in downward planes of own end lines In all re-

^P^cta as though there w^ere no prior location, except where it

"^ouid CO 0(1 let with rights of owner of such senior location, af-

^*"mlng 108 Fed. 104, holding w*here two claims overlap along apex

^t ledge, though end lines of senior location converge and me^^t

^Hh other claim so as to terminate rights of owner at that point,

<>Wner of junior claim canaot take up ledjxe Id Its downward course

^^yond such point and follow it within limits of own end lines;

^alhoan. etc, Co, t. Ajax, etc., Co.. 27 Colo. 14, 18, 59 Pac. 613.

^14, holding where veins located, under act of 1872, cross each

^ther on strike, prior locator is entitled to all ore of cross-vein

^Hhln surface bounriories of his location extended downward ver-

tkaiiy, and junior locator has only caHement for right of way to

't>how his vein across prior location, but not to take out ore within

•Wore boundaries of prior location. See S3 Am. St Rep, 41, note.

Syl 13 (XII, 1057). End lines limit pursuit of vein.

Approved In Montana Min. Co. v, St Loula MIn. & Mill Co.,

102 Fed. 434, holding possession of surface of mining claim Is pos-

^-

171 U. S. 92-100

Notes on U. S. Reports.

IHO ^

session of vein or lode having its apex within surface lines, though
in extending downward vein may pass vertical side lines of claim
and will support trespass for removal of ore from such vein be-
neath surface of adjoining claim; Cosmopolitan Min. Ck>. v. Foote,
101 Fed. 521, holding where by mistake mining claim is laid acrosi
vein passing through location point, side lines as located become
end lines and locator not entitled to extralateral rights thereunder.^,
though another vein extending transversely to one intended t
be located may have its apex inside of such surface lines; Empin
Milling, etc., Co. v. Tombstone Mill, etc., Co., 100 Fed. 915, hold
ing owner of lode claim is entitled to all rights with reference tm^
new side lines that he would have had if they had originally beea
located as such, including right to follow dip of vein having aper
within boundaries beyond vertical plane passing through such lin<
Parrot Silver, etc.. Co. v. Heinze, 25 Mont 144, 64 Pac 328. holdl
where apex of vein passes through one of parallel end lines
a side line the extralateral rights of locator are bounded by V(
tical plane of such end line and a parallel plane extended do^
ward through the point where the apex crosses the side line.

171 U. S. 92, 93, 43 L. 87, CLARK v. FITZGERALD.
(XII, 1058). Mines — Adjudged conformably to preceding
Approved in State v. District Court, 25 Mont 614, 65 Pac. 10
holding where relator owned certain patented claims and s
sequently defendant located on discovery near comers of
tor's claims, claiming that vein there discovered passed on
strike through relator's claims, and defendant's claim inclu «
within its lines most of space in some of relator's claims, ^
in such space were prima facie relator's; Parrot Silver, etc., O?o.
V. Heinze, 25 Mont. 144, G4 Pac. 328, holding where vein on. its
course crosses two opposite side lines of mining claim such ^l*i«
lines thereby become in fact end lines, and locator cannot fol.lo^
vein cither on its dip or strike beyond vertical planes drawn thro**^^ .
side-end lines.

DistinfTuisliod in St I^uis Min., etc., Co. v. Montana Min. ^^'
104 Fed. (ji'tS, holding when secondary vein crosses com***^"
side line between two mining claims at angle and apex of '^^^^
is of such width that it is partly within another claim, etitir^
vein will be considered as apcxing on senior location rntil it ^'^
wholly passed beyond side line, without regard to directlo0 '"
which vein dips.

171 U. S. 93-100. 43 L. 88, JOHNSON v. DREW.

Syl. 3 (XII, 1058). Land department's findings of fact ^^
elusive.

Approved in Gertfcens v. OXonnor, 191 U. S. 240, 48 L. 16T, ^
affirming rule: De Cambra v. Rogers, 189 U. S. 122, 23 Sup. ^'
521, 47 L. 735, applying rule where land department detenu^^^

»- ^,

;::--'

Notea on U. S. Reports, 111 U, S. 101^108

mtest between two applkaDts for pre-emption; School of Mag-
stlc Healing v. McAnnulty, 187 U, S. 108, 23 Sup. Ct. 30, 47 L.
% holding court may rcTiew postmaster-geaerars fraud order
tiere couipluiuaiit lius doue uu a^t in vlolntlou nf law; Gnrduor

Booestell, 180 V. S. 370. 45 L. 577, 21 Sup. Ct 402, upholdlnff
3d departmeot finding that land In controversy was outside ex-
•lor boundaries of Mexican grant In California, and that plain-
Ts grantor was not purchaser In good faith; Edwards v. B fi-
le, 121 Fed. 8, holding deterniinntion by land department in
atest hetween homestead claimants that one of tliem did not
come an actual o<?cupaiit of the land until a certain date la
e of fact and conchisive on the courts; Small v, Lutz. 41 Or.
3» 69 Pac. 826, holding determination by secretary of Interior

application for patent that lands applied for were subject to
mestead entry Is conclusive as against one to whom the land
jd previously been conveyed by State, under list of swamp lands,
e approval of which had been revoked after such conveyance and
ithotit notice to grantee therein.

1 U, S. 101-lOS. 43 L, 91, TINSLEY v, ANDERSON.

$?yL 1 (XII, lOaS). Federal habeas corpus — State prisoner.
Approved in Stori v. Massachusetts. 183 U. S. 141. 46 L. 124, 22
I p. Ct. 73; Day v. Couley, 179 U. S. aSO, 45 L. 383, 21 Sup. Ct 917,
id Dreyer v. Pease, 176 U. S. 681, 44 L. 637. 20 Sup. Ct 1025, all
uffirmlng rule; Minnesota v. Bruad.ige. 180 U. S. ofi2, 45 U 041, 21
ip. Ct 456, refusing to discliarge on habeas corpn.s one charged
ttJi violation Minn, act of 1805, prolilhlting sale of adulterated
thealtUy dairy products, where State remedies not exhausted; Ex
rte Strieker, 109 Fed. 150, holding where person has been com-
Itted for contempt, not committed in presence of court and wltJl-
It pnx^esa or hearing, and State laws give no Hglit of appeal, he 1b
I titled to he discharged by Federal court on habeas corpus.
SyL 2 (XII, 1058k Review of State commitment for contempt
Approved in O'Neal v. United States, 190 U. S. 38, 23 Sup. Ct 777.
^ L. 946, denying jiiriBdlction to review on error District Court
Ml tempt decree, where Jurisdiction over person and subject-matter
E>t challenged and question asserted In certificate of lower court
'"as wliether it had Jurisdiction on facts; Board of Council men v.
^pposit Bank, 127 Fed. 813, holding proceeding against municipal
^e^m for violating an Injunction restraining them from taxing
Bets of bank is legal proceeding in nature of prosecution for an
Jtcnseand Is, therefore, not reviewalde by appeal; Ex parte O'Neal,
125 Fed. 968, upholding Bankruptcy Courtis power to punish sum-
^w^rlly as contempt an assault on trustee In bankruptcy In perform-
^^^ of his duties; In re Parquet, 114 Fed. 440. holding under
Circuit Court of Appeals act U 6. 12. Circuit Court of Appeals can-
^iRSDe prohibition to stay proceedings in Circuit Court in case in

171 U. S. 108-161 Notes on U. S. Reports. 1)42

which its appellate Jurisdiction has not been invoked either toy
appeal or error.

Syl. 3 (XII, 1058). Commitment for contempt — Equal protection.

Approved in Underground R. R. Co. v. New York, 116 Fed. 960.
upholding New York rapid transit act of 1891, authorizing rapid
transit board to contract for construction of underground railroad
in New York with any person, firm or corporation which, in opinion
of board, shall be best qualified to fulfill and carry out such con-
tract; Hawkins v. Roberts, 122 Ala. 148, 27 So. 332, holding abolish-
ment by legislature of office created by it is not taking property
from incumbent without due process of law.

Syl. 4 (XII, 1058). Habeas corpus — Contempt

Approved in Ex parte Strieker, 109 Fed. 150, holding where person
has been committed for alleged contempt, not committed In presence
of court and without process or hearing, and State laws give him
no right of appeal, he is entitled to be discharged by Federal court
on habeas corpus.

Syl. 5 (XII, 1058). Contempt — Refusal of corporate officer to
deliver books to receiver.

Approved in In re Macon Sash, Door, etc., Co., 112 Fed. 328, hold-
ing where custodian, who has no personal interest, after full hear-
ing by Bankruptcy Court refuses to surrender any of assets of
bankrupt to marshal when so ordered, upon pretense he has right to—
hold part, lie is not entitled to discharge from contempt proceed
iiigs until he surrenders that to which he has no claim; Wayne-

Knitting Mills V. Nugent, 104 Fed. 530, holding fact that respondem
was under indictment for violation of bankruptcy act, f 29, i;
iiaving retained money for purpose, defeating operation of bank
rupt law, does not excuse failure to make disclosure of facts oi
referee's order to show cause, on ground that disclosure would ten<
to incriminate him.

171 U. S. lOS-137. Not cited.

171 U. S. 138-lGl, 43 L. 108, PULLMAN'S PALACE CAR CO. '^■^•
CENTRAL TRANSPORTATION CO.

Syl. 1 (XII, 1059). Leave to dismiss where defendant prejudice — -=d-
Approved in Texas Cotton Products Co. v. Starnes, 128 Fed. li
holding where after removal of suit plaintiff procures dismii
without prejudice Federal Jurisdiction ends, and fact of remoi
does not affect State court's jurisdiction to entertain new suit »- on
same cause of action; Ebner v. Zimmerly, 118 Fed. 820, holdir" -Mng
where action is under Alaska Code Civ. Proc, § 378, dismissed wi^^ ^•
out prejudice for failure of proof, and on appeal none of evidt
was in record. Circuit Court will affirm; Washington, etc.,
V. Saunders, 24 Wash. 328, 330. 64 Pac. 549, holding in action to

foreclose pledge, fact that defendant's answer sets up claim of

I

*M3.

Notes on U. S. Reports. 171 U. S, IdSr-hll

\

paramount title to property fn controversy affords plaintiff no rl?lit

to demand dismissal on ground of beting privileged to elect not to

^y title Id such action; Fen no v. Primrose^ 119 Fed, 807* arguendo.

Syl. 2 iXII, 1059). Appeal — Refusal to discontinue,

BUtlngulshed in Union & Planters' Bank v. MerapUIs, 189 U. S.

'*^ 23 Sup. Ct 605, 47 h. 714, holding wbere there Is no diversity of

^H3z(*nsiilp and Circuit Courtis jurisdiction rests wliolly on ground

^bnt cause of action arose under Constitution, if appeal goes to Clr-

^llt Court of Appeals and tbere goes to decree. Supreme Court

'^V'iii reverse for want of Jurlsdlctiua In that court; Carter v.

Roberta, 177 U. S, 500. 44 L. 803, 20 Sup. Ct 714, holding direct

Appeal to Supreme Court from Circuit Court decision, involving

^onatltutloual right, cannot be taken after cause has been appealed

*^ aod decided by Circuit Court of Appeals.

SyL 3 (XH, 1059). Recovery of property delivered under Illegal
<H:fci3tract

Approved in National Bank & Loan Co, v. Petrie, 189 U, S, 425.

^^ Sup. Ct. 513, 47 L. SSO, holding where national bank has sold

^^"^^ain bonds and vendee has obtained judgment for purchase

**^oijey in State coux't on ground that sale was induced by false

''^l^rpj^en tat ions of president of bank, judgment will not l>e reversed

*-**^ ^ouud that sale was without authority of bank and Illegal and

"^Oia; AldrJcb v. Chemical Nat Bajik, 17ti U. S. C33, 44 L. €17, 20 Sup.

^^^ 5(M, holding national bank which uaes in Its business money

'^^ twined by Its vice-president as loan to It from another national

^^nic cannot escape liability to account tlu^refor upon ground that

•*^»ti was not negotiated by it or by its direcliou, or that it could not

^^^If have legally tH>n*owed the money; Cumberland Tel., etc., Co,

^"* ^vansville, 127 Fed. 19G, 197, holding under Indiana statute,

"^^tliorlzing formation of telephone companies, sale by such com-

M^Uy Qf ^1 its property and franchises Is void and cannot be

^^li dated by Its recognition by city which granted sucii company

^^'Uiiehise to use its streets; Richmond Guano Co. v- Farmers', etc,

"**►• 120 Fed. 71G. holding where fertilizer enrporatlon which had

"^'^ Dower to engage in business of selling fertilizers made by others

***>ltl Hs agent fertilizers made by luiotlier ami settled by notes. It Is

^^^ttlilp for value of fertilizers received aud sold; Cox v. Terre Haute.

*^^<^.. Ry. Co.. 123 Fed. 451, holJiag there can be no recovei-y of

■^^^tual for use of railroad delivered by owner to another company.

'^^nl frperated by latter under lease which was void as ultra vires and

*&aiuRt public policy; Beasley v. Te.\as, etc., Ry. Co., 115 Fed. fWK

^*olding though contract by which railroad agrees to e8taL>lish and

''iiihitaln a station at particular place and not to estai>lish any

^*^Wr station within certain distance therefrom is unenforceable in

*'<iulty, one who on faith of it and without wrongful intent, has

^*ouv^yed pruperty to company, has remedy at law; Siivliigs, etc..

*^^Y. Bear Vullcv lir. Co., 112 Fed. 701, holdiug where corporation

171 U. S. lGl-187 Notes on U. S. Reports. i)44

•

executes deed to and delivers possession of all its property to an-
other corporation, which in consideration therefor assumes all the
debts of grantor and discharges them in part and repudiates none,
such grantor will not be permitted to assert that It had no power to
make conveyance and retal^e the property; White v. Bank, 66 S. C.
512, 45 S. E. 102, holding corporation chartered under general laws
prohibiting use of its funds directly or indirectly In banking oper-
ations is not liable to creditors of bank on stock subscribed and paid
for by such corporation on which it has collected dividends; Reed
V. Johnson, 27 Wash. 56, 67 Pac. 3S6, holding though not estopped
to raise Illegality of a contract neither party can recover for losses
thereunder.

Syl. 5 (XII, 1059). Return of property on disaffirmance of Illegal
contract.

Approved in United States v. Southern Pac. R. R. Co., 117 Fed.
555, upholding provision of acts relating to suits to recover lands
erroneously patented under railroad grants, requiring grantee com-
pany to pay government minimum price for lands erroneously
patented to it and which it had sold to bona fide purchasers; Hallett
V. New England Roller-Grate Co., 105 Fed. 222, holding though
N. H. act of 1891 prohibits corporation from selling stock at le
than par, a nonresident who purchases stock in corporation ofi
State at less than and receives certificate therefor In Ignorance ofl
such provisions may sue to recover money paid after cortiflcat
declared void by courts; Tennessee Ice Co. v. Ralne, 107 Tenn. 157
64 S. W. 30, holding corporation that has received and retalnr
benefit of an executed contract that it had no power under It^
charter to make will not be heard to say that Its act was ultr—
vires in order to defeat an action by the other party to recover wbiE
is Justly due upon an equitable adjustment between the parties.

171 U. S. 161-179, 43 L. 118, DISTRICT OF COLUMBIA —
BAILEY.
Syl. 1 (XII, 1060). Agreement for arbitration.
Approved in Northern Central Ry. Co. v. Maryland, 187 U. S.

23 Sup. Ct. 06, 47 L. 173, holding statute compromising litlgatis
between State and corporation, arising from claim of corporatia
of tax exemption and fixing tax rate for corporation, may be ^^^r^
pealed by later act, which changes rate of taxation.
Syl. 2 (XII, 1060). Powers of District of Columbia are statutoM^^T-
Approved in District of Columbia v. Camden Iron Works, l^^*^^
U. S. 458, 45 L. 952, 21 Sup. Ct. 682, holding seals of commissioners?"
to contract presumed to have been affixed as seal of corporation^ —

171 U. S. 179-187, 43 L. 127, YOUNG v. AMY.
Syl. 1 (XII, 1060). Examination of facts on territorial appeals-- -
Approved in Luhrs v. Hancock, 181 U. S. 570, 45 L. 1007. -^

Sup. Ct 727, applying rule in action of ejectment; Apache Cou^c:^^

motile

Notes on U. S. Reports. 171 U. S. lS7-:^n

Baitb. 1T7 U. S. 542, 44 L. 879, 20 Sup. Ct 719, applying rule in
<z^t:lon to recover from couBty upon its warrants.

iXX U. S. 187-202, 43 L. 130. THE IRRAWADDY.

SyL 2 iXII, lOCl). Harter aet — General average wlien master at

-Approved in The Soutbwark. 191 D. S, 6, 7, 48 L. 68, 69, holding

^Tir^nlsbiog of refrigerating apparatus In good order competent for

«a^e carriage of cargo of heef which vessel has utidertalcen to carry

t« Tvithin obligation to use due diligence to provide seaworthy

^^ossel within Harter act; Knott v. Botany Worsted Mills^ 179 U, S.

*^3* 45 L. 93, 21 Sup. Ct 31» holding wool damaged liy drainage

^i:*om wet sugar, through negligence of those in charge of shfp and

<^o.i-go» was not from fault in management of vessel within Harter

"^^t:, S 3; The Germanic, 124 Fed. 3, holding when by negligent and

*CKii>roper manner of unloading cargo, condition of Instabihty

t^rougbt about* which, owing to accumulation of Ice on upper dec'v,

^*>ii<iers vessel topheavy and she turned turtle at dock, she is liable

^^^t* damage to cargo; The George W. Roljy, 111 Fed. 61 T, 620. hoid-

**^e Harter act does not affect rule giving priority to claim of Inuo-

'•^^nt cargo -owners over that of vessel-owner against fund availalde

^*^ payment of damages sustained througli collision for which both

^^ssels have been adjudged in fault; Nord-Deutcher Lloyd v. PresJ-

^^at, etc.. of Ins. Co. of N. A., 110 Fed. 423, holding due diligence to

^^^ke lighter seaworthy not exerclse<l where seams so improperly

*^^lked that they opened and admitted water into hold when l>oat

^*^ked by light swell from passing steamer; Insurance Co. of N. A.

^- North German Lloyd Co., im Fed. 970, holding stipulation in bill

^^ fading that carrier may convey goods in lighter to ajid from slilp

^^ *iak of owner of goods does not apply to risks arising out of unfit-

*^^a« of lighter; The Manitoba, 104 Fed. 152, 153, bolding open ports

^^ beginning of voyage through which water entered and damaged

^**go, though unknown to othcers, rendered ship unsea worthy; In re

^^keland Transp. Co., 103 Fed. :i32, 333, holding wbere botli vessels

^*?re In fault for collision, in which one was sunk, with her cargo,

'^argo-owTier has superior lien upon fund available for reparation;

^"iternationai Nav, Co. v. Atltmtic ilut, Ins. Co., 100 Fed. 312, 313,

**oldUig insurers are liable to assured in first instance for necessary

*8ilVttge expenses incurred for rescue of ship and cargo iudepend-

*Otly of general average.

Dlstiaguished in In re Old Doaiinion SS. Co., 115 Fed. SIO. hold-
'^S In proceeding by shipowner in District Court for limitation of
liniiuity^ question whetlier Are by which cargo was destroyed was
^'*HiSed by desgn or neglect of such sliipowner, so as to deprive it
'^^ exemption from liability under Rev. Stat, § 4282, if not prrvkiusly
''*'judicated will he determined by court, and will not be left open
Vol HI — 60

171 U. S. 20a-241 Notes on U. S. Reports. 916

to be determined by Jury in action for that purpose brought by
cargo-owner.

171 U. S. 203-210, 43 L. 136, HUBBBLL v. UNITED STATES.

Syl. 2 (XII, 1061). Judgment dismissing infringement suit as bf r. ^

Approved in Norton v. House of Mercy, 101 Fed. 386, holding -^
where charitable corporation which was given power to hold real .v
estate not exceeding $50,000 In value was made residuary devlsee-^^
of Kentucl^ian, and Kentucl^y court in suit by heirs in which cor — ^
poraton intervened decided that corporation already held $50,00(1:::^^
worth of real estate. Judgment estopped corporation from suln^^^
heirs in another State to recover lands there situated as passin^^ ^
under will.

(XII. 1061). Miscellaneous.

Cited In Hubbell v. United States, 179 U. S. 79, 45 L. 97. :^S*
Sup. Ct 25, 28, determining question of infringement of patent f<^ ^^
metallic cartridges.

171 U. S. 210-219, 43 L. 139, TIDE-WATER OIL CO. T. VrTTh i ~
STATES.

Syl. 1 (XII, 1061). Drawback — Boxes made from Import .^^^
shooks.

Approved in Swan & Finch Co. v. United States, 190 U.
146, 23 Sup. Ct. 703, 47 L. 986, holding drawback provided by ^m^m
of 1897 not allowed on goods placed on board vessel bound rf <
foreign poii: to be used and consumed on board vessel during M\

voyage; Schlitz Brewing Co. v. United States. 181 U. 8. 588, -4

L. 1015, 21 Sup. Ct 742, holding corks and bottles In which
Is bottled and exported for sale are not "imported materials a.-
in manufacture" of such beer within drawback clause of t^M^x'itt
act, although beer be battled and corked and subsequently he^ "t^erf
for its better preservation.

Distinguished in United States v. Leonard, 108 Fed. 45, 1»^3W-
ing substances obtained by washing solid residuum left after d'^
tillation of wool grease Is dutiable as wool grease under parapi^sip*
271) of act of 1897, and not entitled to free entry under para-
graph 3(>8.

Syl. 2 (XII, lOGl). Tariff — Nails lose identity when used.

Approved in State v. American, etc.. Refining Co.. 108 La. t«2^
32 So. 1)74, holding sugar refiner Is a manufacturer and as »o<^*
is exempt from license taxation under Constitution.

171 U. S. 220-241, 43 L. 142, ELY v. UNITED STATES.

Syl. 4 (XII, 1002). Mexican grant sustained to amount paid '*•

Approved in United States v. Green, 185 U. S. 267. 268, 'J^' ^

L. IXKl, I"*,-,, i>2 Sup. Ct. 044, 045, holding no confirmation of tltie

to ovtTpius within Mexican land grant for which Mexican govern'

Hr

Notes ou U. S. Reports.

ill U. S. 242-270

'^^Ht had right to compel payment or to resell such surplus to

^**^d party can be had in Court of Private Lund Claims upon puy-

^^t of asserted value of aucli excess; Alusa v. United States,

^^ V, S. 648, 46 L. 731, 22 Sup, Ct. r>n. holdlug where conditions

•^^ Alexlcan grant not fulfilled in acfordauce with terms of grant

**^ time of cession, clatms to demasias or orerplus cannot be con-

^'^^■^ned; ReloJ Cattle Co. t. United States. 1S4 U, S, G^T, 638, CSa.

^^^5 r,, 726. 727, 22 Sup. Ct. 504, holding claimant, under Mexicjun

^t-^-ant, for whose predecessor Mexican authoritlea, ou formal de-

*^*^viiioement of excess therein over area which grantee could take

'^•^cler Mexican law, have laui off In Mexico this lawful area,

^^-•^-^not have such lawful area confirmed hj Court of Land Claims

"^'■^^ «f territory ceded to United States, which was Included within

om-l^lnal sarvey of grant.

X>tstlngui8hed In Arivaca Land & Cattle Co. v. United StateSp
^S^ U. S.* (553. 4<j L. rxi^ 22 Sup. Ct. 52«, holding claims to de-
^*^«^sias, con<!ltlons to acquiring which were unperformed at date
^-^^^ In Gadsden treaty, cannot he confirmed by Court of Private
^^-«i^ii«l Claims.

^yl 6 (Xn, 1062). Fixing boundaries by Court of Private Land

^Vi>proved In United States v. Caiiiou. 184 U. S. 574, 4a L. 0^5,
*-^2 Sup. Ct o06. reatflrmiug role.

^"•"l U. S. 242. 243. 4S L. 150, UNITED STATES v. MAISH.

^yl. 1 (XIL 10G2). Mexican grant limited to amount petitioned
for.

-Vpfiroved in United States v. Green. 185 U. S. 267, 46 L. 004*
-^ Sup. Ct G44, and ItcloJ Cattle Co. v. United States, 184 D. S,
*^^*'. 4<J U 720, 22 Sup. Ct- 504, both reaitirmlng rule.

^**1 v. S. 244-20U. Not cited.

^'^^ U. S. 2tiO-27a, 43 h. 157, NORTHERN PACIFIC R R, v.
SMITH,
^yt 2 (XII, 1(^3). Squatter has no title against government or

-Approved In King v, MeAndrews, 111 Fed. 872, holding Dakota
^^^ Of March 7, 188.>. iueluding portion of Indian reservation In
^^ty of Chamberlain, did not witlidraw land from entry as It was
'^'*^ imrl of puihUc lands.

^>i8lmgui8hcd la Nortijcro Par. Ity. v. Ely, 2o Wash. 380, 95

^'*^. o<57, holding where railroad without objection for more tlmn

^^ years permits portion of its riglit of way to be nctiuh-ed by

•"■^-ecipt loners, who nuilie valtmhle improvements theri*on. com-

^ ^^'^^r Ifi estopped from asserting title to those portions of right of

'^J thus occupied.

171 U. S. 277-292 Notes on U S. Reports.

Syl. 3 (XII, 10G3). Northern Pacific prior to land company set-
tling townsite.

Approved in O'Connor v. Gertgens, 85 Minn. 490, 89 N. W.
holding act of Congress of 1890, S 5, repealing land grant act ot <
March 8, 1865, S 7, did not annul executive ord^ previously mad^J
whereby certain lands had been withdrawn from public domaiiK^
for benefit of grant.

Distinguished In Northern Pacific Ry. ▼. Townsend, 84 Minn
155, 86 N. W. 1008, holding one who enters tract, under homestea*.
laws, across which Northern Pacific has previously constructe*^
its line on right of way provided for by congressional land
act of 1864, may, as against such company, acquire' title to pas
of such way by adverse possession for period prescribed by Ge*--
Stat 1894, S 5134; reversed in 190 U. S. 267.

Syl. 4 (XII, 1063). Estoppel against owner permitting right i^ oi

way.

Approved in United States v. Lynah, 188 U. S. 467, 23 Sup.
356, 47 L. 547, holding where government by construction of
so floods lands as to destroy them landowner is entitled to cor ^^^
pensation, though injury done in improving navigability of riv»^ ^
New York v. Pine, 185 U. S. 101, 46 L. 824, 22 Sup. (X. 505, ho-
ing ascertainment and decree for payment of damages with
junction in alternative is measure of relief in suit by ripar
owner to restrain construction by city of dam in aid of its ws
supply, by which waters of river are unlawfully diverted
natural flow through lands of riparian owners who delayed suit
til construction had proceeded two years.

Syl. 5 (XII, 1063). Congressional right of way conclusive ^^

necessity therefor.

Approved in Northern Counties, etc., Co. v. Enyard, 24 Wc^ ^mh,
370, 64 Pac. 517, following rule; Northern Pacific R. R. Co- ''•

Townsend, 190 U. S. 272, 23 Sup. Ct 673, 47 L. 1047, reverse * ^^
84 Minn. 152, and holding adverse ownership for private use -m^^
der State Statute of Limitations confers no title on indivicS •^'^
to portion of right of way granted to Northern Pacific by tcC- ^'
1804. See 92 Am. St. Rep. 846, note.

171 U. S. 277-291, 43 L. 163. CAMOU V. UNITED STATEa

(XII, 1063). Miscellaneous.

Cited in United States v. Camou, 184 U. S. 572, 46 U e»» *
Sup. Ct. 505, explaining decision of principal case.

171 U. S. 292, 43 L. 109, PERRIX v. UNITED STATES.

(XII, 1003). Following preceding case.

Approved in United States v. Green, 185 U. S. 267, 46 L. ^^
22 Sup. Ct. 044, holding no confirmation of title to overplus witli^*
Mexican grant, for which Mexican government had right to aHO'

I

■ ^*a Notes on U. S. Reports. 171 U. S. 293^44

V **^1 payment or to reael! such surplus to third party, can be had
^'^ Court of Private Land Claims upon payment of asserted value
*^^ such excess; Reloj Cattle Co. v. United States, 184 U, S. 637. 46
-^* 72Qv 22 Sup. Ct. 504, holding where four sltios were sold, paid

»* Ot and granted, title of grantee is limited to that quantity.
^ Tl U. S. 293-312, 43 L. ITO, WALRATH v. CHAMPION MIN. CO.
SyL 1 (XIl» 1063). Mloes — Persuing vein beyond vertical ends.
Approved in Argonayt Mlu, Co. y, Kennedy, etc., Co., 131 Cal.
^^'% , 63 Pac. 151, holding end lines of surface location of quartz
loc3e located under act of 18G0, aud patented coder act of 1872,
^ta^^ not be parallel in order to insure extraJateral rights to owner,
K Syl. 2 (XI i, 1003). End lines of located vein are ends of all.

^ Approved in Buuker Hill, etc.. Co. v. Empire State, etc.. Co.,

X06 Fed. 194, holding where two claims overlap aloag apex of
l^s^Sge, though end lines of senior location converge aud meet
"^s^rithin other claim, owner of Junior claim cannot take up ledge
lea. its downward course beyond point where lines converge and
follow it within limits of own end lines; St. Louis Min., etc., Co,
"'^^ Montana Min. Co., 104 Fed. 667, holding where secondary vein
^^^•Ofisee eomraon side line between two mining claims at angle
ti-xic} apex of vein is of such width that it Is partly within both
^1^0.1 ms. entire vein considered as apexing upon senior location un-
'*-"iI it has wholly passed heyond its side line without regard to
^iifeetion In which vela dips; Cosmopolitan Mia, Co, v. Foote, 101
^^^^. 521, boldlng where mining claim is located across vein loca-
t:oi» not entitled to any extralatcral rights, though another vein
^^^endlag transversely to one intended to be located may have
*^s apex inside of such surface lines; Empire Milling, etc., Co. v.
*^^ttobstone Mill, etc., Co., 100 Fed. 915. holding where lode claim
** located across vein owner is entitled to follow dip of vein
■*a.vlog apex within surface boundaries of claim beyond vertical
Plooe passing through such lines.

^5i. 5 (XII. 10G3J. End lines must be straight, though oot
Parallel.

approved In Argonaut Mia. Co, v. Kennedy, etc., Co., 131 Cal.
^- 28, 63 Pac. 152, 153, holding where end lines of quartz lode
*"^ei*ge from each other extralateral rights are not measured
*r»on ^\\p i)y plane coincident with tirst end line of surface location
**'^^ one drawn parallel thereto at otber end of ledge, but exist
r^^'^'een vertical planes drawn perpendicular to general strike of
^'^e through extreme points of its length.

^'*l U. S. 312-^344, 43 L. 178, NEW O RLE AN 8 t. TEXAS, ETC.,
BY.

^yi 1 (XII, 1063). Condition precedent defined,
-Approved in Ilagglns v. Daley. 90 Fed. 610. holding where oil
"'^e by whicb lessor la to be compensated solely by share of

in U. S. 345-365 Notes on U. S. Reports.

product contains proviso* requiring lessee to commence and coi
plete well within specified time, such proviso is condition pn
dent to vesting of estate in lessee, and contract is forfeitable C
its nonperformance.

171 U. S. 345-361, 43 L. 191, PATAPSCO GUANO CO. ▼. NORT]
CAROLINA BOARD.

Syl. 2 (XII, 1064). Commerce — Receipts under fertilizer insp«
tion law.

Approved in dissenting opinion in State v. Bixman, 162 Mo.
62 S. W. 843, majority upholding beer inspection act of May 4, IS

Syl. 4 (XII, 1064). State inspection laws to protect health.

Approved in Reid v. People, 29 Colo. 343, 68 Pac. 231, 93 Am.
Rep. 76, upholding Sess. Laws 1885, p. 335, to prevent intr
tion of any infectious or contagious disease among cattle ==3
horses; State v. Bixman, 162 Mo. 27, 39, 62 S. W. 833, 837, uph *«
ing beer inspection act of May 4, 1899.

171 U. S. 361-365, 43 L. 197, SMYTH v. AMES.

Syl. 1 (XII, 1064). Rates — Decree in 169 U. S. 466 modified.

Approved in Higginson v. Chicago, etc., R. R, Co., 102 M-
198, holding where State board of transportation had made oac-
requirlng railroad to appear and show cause why reductlocs.
freight rates should not be made and temporary injunction 80*aj
by supplemental bill to restrain board from entering on heax'X
which relief based on ground that board had no power to re^^v
rates, temporary injunction properly refused, afl^rming 100 *■"*'
236, reciting history of litigation and holding Nebr. act of XS
creating board of transportation, not repealed by ** maximum s^
law " of 1893; Nebraska Telephone Co. v. Cornell, 59 Nebr. ^'
82 N. W. 2, holding maximum rate law of 1893 does not materl<»J
modify provisions of act of 1887, defining duties and power*
State board of transportation.

Distinguished in State v. Esliew, 64 Nebr. 601. 602, 69 N. W. G&
upholding act of 1887, imposing duties of labor commis«lox»«
on governor, and providing for appointment of special deputy ^
assist in discharging them.

Syl. 2 (XII, 1064). Reasonableness of carrier's rates, how t€ft«^

Approved in Matthews v. North Carolina Corporation Conn*''''
sioners, 106 Fed. 10, holding where in proceeding to set tP^^*
order of corporation commission fixing rates on fertilizers, aped^
commissioner was unable to determine exact cost of transport^'
tion, but found that though rate decreased profit there was »t^^
profit, and that for four years preceding railroad had earned f^
net profit on present value of road, rates not unreasonable.

1*S1

Notes on U* S. Reports.

171 U. S. 36G-388

I

(Xn, 1064). Miscellaneous.

Cited Jn Haverhill Gaslight Co. v. Barker, 100 Fed. 695. to
jj^jint that bill against State officers to restrain enforceraeat of
statute passed or order made In contravention of Fourteentlj Amend-
ixtent is not suit against State wkliin Eleventh Amendment.

I XTl U. S. 36C-n378, 43 L. 19D. WHITE v. BEERY.

Syl. 2 (XII, 1064). Jurisdictloa over appointment and removal of
officers.

Approved In Landes v. VinUs, 160 Ind. 219, 66 N. E. 6S0, deny-
ing injunctloti to restrain persons from acting as members of
eity council until determination of actioa by way of information
Instituted In name of State In which their right to so act is
clrawn in qnestloo- People v, Howe, 177 N. Y. 5^J5. *j*^ N. E. 1110,
denying Jurisdiction over suit by keeper of penitentiary at time
of passage of Laws 19()2, p, 387, chap. 127, autborizing his re-
nioval, to restrain commissioners from removing him and trans-
ferring penitentiary to sheriff; Rlgglns v. Thompson, 30 Tex, Ctv*
^43, 70 S. W. 578. holding injunction will not lie in favor of raf*yor
*^f city to restrain city council from illegally impeaching and re-
*iioviag him from office; dissenting opinion in Taylor v. Beclvbnm
<^o» 1). 178 U. S. 598, 44 L. 1208, 20 Sup. Ct 1014, majority deny-
'^5 Jurisdiction to review State decree that It could not review
''^termination of gubernatorial election contest by tribunal to which
"^tt'rminatlon exclusively committeil by State Constitution,
^yl 4 (XI L 10G5K Injunction against removal of ganger
Approved in Marshall v. Illinois State lleformatory, 201 111. 14,
N. E. 315, denying equity jurisdiction to restrain board of
^**iuigers of Illiuuis State Reformatory from removing one from
^Qice of physician of reformatory.

^•'l U. S. 379, 43 L. 204, WHITE v. BUTLER.

CXll, 10G5J. Adjudged conformably to preceding case.

Approved in Poyntz v. Shackelford, 107 Ky. 556. 54 S. W. 85S»
^^Ifiing where an officer in rightful possession of lils offlee Is biter-
'^»"e(l with In discharge of his official duties, to detriment of public
"^slaess, he is entitled to injunction agahist such interference.

^^X tJ* a 380-588, 43 L. 204. THOMPSON v. MISSOURI.

SjrL 1 (XII, 1065K Ex post facto — Law admitting handwriting
**Pert*8 testimony.

Approved in Mallett v. North Carolina, 181 tJ. S. 596. 45 L. 1019,
^^ Sup, Ct, 733, upholding N. C, act of 1801J. allowing State to
appeal from order of Supreme Court of eastern district, granting
^^^ trial In criminal case, to Supreme Court, as applied to defendant
Micted prior to its passage; Willis v. State, 134 Als. 45<X 33 So,
^1 holding act of May 4, 1901. relieving State, in criminal cases,

15.

171 U. 8. 388-446 Notes on U. S. Reports. I»2

of necessity of proving Incorporation mentioned In indictment nn-
less defendant before trial denies incorporation by sworn plea,
applies to prosecution under Indictment found before passage of
act; Sandberg v. State, 113 Wis. 584, 89 N. W. 505, bolding in pro-
ceeding to determine beirs of one who died prior to Its enactment,
had after enactment of Stat. 1898, S 4160, providing for admissi*
of church records as prima facie evidence of birth, marriage
death, such section applies.

171 U. S. 388-404, 43 L. 208, BALDY v. HUNTER.

SyL 1 (XII, 1005). Legality of acts done in Confederate Stat

Approved In Houston & Texas Cent. R. R. Co. v. Texas, 177 U.
t)G, 44 L. 687, 20 Sup. Ct. 556, holding payments actually received b^^
State officers in pursuance of State statute are not void becaus*.^
made in State treasury warrants, which had been illegally Issue*-^^
in violation of constitutional provisions against issuing warranl^- .
to circulate as money or against bills of credit, or because the^ai
were Issued in aid of rebellion.

Syl. 2 (XII, 1065). Guardian's Investment in Confederate bond

See 89 Am. St. Rep. 296, note.

171 U. S. 404-437, 43 L. 214, KING v. MULLINS.

Syl. 1 (XII, 1065). Due process — Listing property on penii.ty of

tax sale.

Approved in Swan et al. v. West Virginia, 188 U. S. 739, 23 Si^hk-jxa.
Ct. 848, 47 L. 677, reaffirming rule; Wilson v. Standefer, 184 U. a

415, 46 L. 619, 22 Sup. Ct 390, upholding Tex. act of March ^25,

1897, authorizing forfeiture of lands bought of State for default:^ i^
payment of interest witliout Judicial proceeding, but providing t^Kis Mt
at any time within six months after forfeiture purchaser may ^B»ve
to establish fact of payment: Florida C. & P. R. R. Co. v. Reync^ "M^^m,
183 U. S. 478, 46 L. 287. 22 Sup. Ct 179, upholding Fla. statu «:«^
authoring collection of taxes on railroad property for previ ^i***^
years which were not at time collected through lack of «tatuE"^^T
provision therefor, or in consequence of misunderstanding as to ^^^
or from neglect of administrative officials, without also mafctl^ff
I)ro vision for collecting taxes for same years on other property.

Syl. 5 (XII. 1005). Ejectment — Plaintiff recovers on own tJtJ^-

Approved in Davis v. Living, 50 W. Va. 437, 438, 40 S. B. 367. 3^81
liolding if defendant in ejectment shows that land in control erv
has been omitted from land-booljs of proper county for five »o^
cessive years before trial he maizes prima facie case of forfeito"
and defeats plaintiff's right to recover.

l"l U. S. 437-440. Not cited.

Notes on tJ. S. Reports.

il-mi

43 L. 233, CALIFORNIA NAT, BANK v.
Appeal — Decree referring to master for

X-Jl IT. S. 447^49,
STATELER.

Sjl 2 (XII. 1066).
^m:»(31clal purpose.

Approved In Mercantile Trust Co. v, Cliica^, etc.* Ry. Co.,
li^M Fed. 392, lioldiug decree on Intervening petition against re*
<:?-^iver. directing him to deliver certain property or tta value to
B-»"^tltioner and to pay value of Its rental while used by blm, and
^^^5^ :f erring to master to determine property and rental values, ex-
X^x*«ssly stating that It Is interlocutory, is not appealable.

:M^*m^1 XJ, S. 450^62, 43 L. 234. THE G, R. BOOTH.

SyL 1 (XII, 1066). Explosion breaking ship's side as proximate
<?%^ "use.

^4pproved In Norwich, etc., Trans. Co. v. Insurance Co. of

^^*^ortli America, 118 Fed. 'MS, holding where vessel struck rock

^M.mM^ aprtmg leak and master beached her on what he thought

^^^r^SMA sandy beach, but which was soft mud, causing vessel to

^^K^k until cargo submerged, loss ivas attributable to attempted

^t^lvage and was subject for general average; The Frey» 106 Fed.

-^^O, holding where excessive violence of sea is efficient cause of

^^ilting of cargo, causing breakage and leakage by which other

I>ox*tion8 of cargo are damaged, without which damage would not

*^^-^^e occurred, it Is proximiite cause of such damiige; The Maui-

^c>t>a^ 104 Fed. ir>4, 156, holding where porthole was, without

**-*ic>w ledge of officers, open when ship sailed and water entered

^^■^<a damaged goods, ship was uusen worthy at commencement of

^'^^y^age within Ilarter act; Chicago, etc., R* R. v. Martin, 31 lad.

'^t*!!. 317, 1^1 N. E. 5!>4, holding. In action to recover for negligence

^^^laltlng In death of employee of stone quarry company, that

^tiler's negligence was proximate cause of iiijnrv,

Syt 2 (XII, 1066). Peril of sea — Water entering hole due to

LI»pro%^ed in Thp Manitoba, ICM Fed. 151, ir»2, 153, 154, holding
J^U^fe porthole was. without knowledge of othcers, open when ship
^Hed and wjiter entered and damaged goods, ship was unsea-
l^vorthy at commencement of voyage within Harter acL

^^ U. 8. 462-466, 43 L. 241» THE SILVIA,
^yl. 1 (XII» lOGG). Test of seaworthiness.

Aiiproved In The South wark, 191 U. S. 0, 48 L. 00, holding
^"Utshlng of refrigerator in good order competent for safe transpor-
^tlon of beef which vessel has undertaken to carry is within
f^Ugatlon to use due diligence to provide seaworthy ship Imposed
[y Harter act; American Sugar Refining Co. v. Rlcklnson, Sons «fe
[^^'* 124 Fed. 192, holding ship not unsea worthy where su;rftr
Riiiiired by water entering through water-ballast^

i

I
I

171 U. S. 462-466 Notes on U. S. Reports. »5*

manhole which, though having tight joint, blew open from pressures
of water negligently permitted to run into tank; Davidson SS. Co —

V. One Hundred and Nineteen Thousand Two Hundred and Fifty

one Bushels of Flaxseed, 117 Fed. 286, holding damage to cargo o^^
flaxseed caused by water due to dangers of sea against whicli
carrier protected from liability by bills of lading, vessel being ic
good condition and having highest rating and she having en
countered severe gales and heavy seas which caused her sean
to start from strain; Insurance Co. of North America v. North Ge
man Lloyd Co., 106 Fed. 976, holding where lighter taking goods
vessel when water was still, having been capsized by swell froa
passing steamer, there is presumption of unseaworthiness; afflrme
in 116 Fed. 420; The Ontario, 106 Fed. 328, holding where sh
inspected before voyage encountered rough voyage and spm^---
plates and two rivets lost, mere inequality in strength of riv«
not evidence of defects in two that were lost to render vessel
seaworthy at commencement of voyage.

Distinguished in Farr, etc., Mfg. Co. v. International Nav.
98 Fed. 637, 638, holding ship not seaworthy when coverings
port which it is usual custom to close before sailing, though st
turally fit, are insecurely fastened so that they open in ic-
weatber and admit water which damages cargo.
Syl. 2 (XII. 1066). Seaworthiness — Closed ports when saiM
Approved in dissenting opinion in Farr, etc., Mfg. Co. v. Ic3
national Nav. Co., 98 Fed. 640, majority holding ship not
worthy when coverings of port which it is usually custom to <
l>ofore sailing, though structurally fit, are insecurely fastenecS. 9o
that they open in good weather and admit water which dam^B-^B'tf
cargo.

Distinguished in Farr, etc., Mfg. Co. v. International Nav. ^^^
OS Fed. 638, 639, holding ship not seaworthy when coverin^^ ^
port which it is usual custom to close before sailing, though s"^^"^^
turally fit, are insecurely fastened 'so that they open in good wetat-^er
and admit water which damages cargo.

Syl. 3 (XII, 1066). Foreign vessels are within Harter act
Approved in Knott v. Botany Worsted Mills, 179 U. 8. 75. 4^ ^
1)4. 21 Sup. Ct. 32. holding Harter act, S 1, applies to foreign ve^«f'
transporting merchandise from foreign to American port so tiMt
vessel and owner are liable for negligence in proper loading o^f-
withstanding bill of lading.
Syl. 4 (XII, 1067). Neglect to close portholes — Unseaworthfo^^*
Approved in Knott v. Botany Worsted Mills. 179 U. 8. 74. 45 ^
94, 21 Sup. Ct. 3'J, holding damage to wool from drainage fW^*"
wet su^ar was throiijrh fault in proper loading within Harter i<^
§ 1: The (Jermanic. 124 Fed. 4. 9, holding where by negligent ttf^ ,
Improper manner in which unloading of vessel by stevedores ^ !

Notes on U, S. Reports. 171 U. S. 460-578

•loxie, she becomes tojibeavy owing to accumulatloD of Ice on deck
^nd turns turtle at dock, she is liable for daumge; Noni-Deutcher
loyd V. President, etc., of Insurance Co. of North America, 110
^ed. 424, holding due diligence not exercised to make lighter
unworthy where seams so improperly en Iked that they opeucd and
^ciniUted water Into hold when boat rocked by swell from piissinj;
steamer; The Manitoba, 104 Fed. lol, 152, 154. holding where port-
holes left open at beginning of voyage without knowledge of
^'Qeers ship was unaeawortliy.

Distinguished in International Nav. Co, t. Farr & Bailey Mfg.
^^ci., 181 U. S. 222, 224» 45 L. S32, 833. 21 Sup. Ct 502, holding neg-
^■I^eiice in failing to close portholes when voyage begins, whereby
^Bkijury Is sustained by cargo through water coming through port-
^^pote« renders shipowner liable under Harter act; The Manttou, llti
^^P*^. (j*J, holding where damage caused by admission of steam
UMnrough valves for use In case of (ire, In absence of evidence that
'^'^Jves were closed before voyage began leakage must be attributed
^o unseaworthiness, and she was not exempt from liability under
■■Sjirter act.

^"Tl U. S. 406^74. 43 L. 243, BIIIGGS v. WALKER.
^^ Syl. 1 (XII, 10G7J. Executor represents person of testator*
^K approved In Sullivan t. Louisville, etc., H. R., 12S Ala. 97, SO
*Bo, 534, holding where railroad makes coutracTt of carriage with
Ixi€3lvidual and his assigns aiad limits definition of ** asslgoa " to
l^^fial representatives after his death and to bis successors in husi
J^ii^es, on his denth no one can claim under contract as surviving
t*«irtner,

l^^S^l U. S. 474-5fM. 43 L. 246. HUBBARD v. TOD.

Syl, 1 (XII, 1U€7). QuestloDB considered In Supreme Court on
l^^-t-iiorari.

Approved In Montana Mining Co. v, St. I^ula M. & M, Co., ISO
^' S, 31, 4C L. 1041. 22 Sup. Ct, 746, reaflHrming rule; F/eneh
f^onublic V. Saratoga Vichy Co., 191 U. S, 440, 48 L. 254, applying
nilt^ ia suit for infringement of trademark.

l^X U. 8. 505-578, 43 L. 259, UNITED STATES ?. JOINT TRAFFIC

ASSN.

Hyl I ixil, 1007). Commerce — Joint traffic association.

Approved In Untied States v. Swift & Co., 122 Fed. 534, hold-

Is agreement to refrain from bidding against each other m pur-

|*«e of cattle, to hid up prices to stimulate shipments and to

*se from bidding when shipments have arrived. Is la restraint

^ trade; Chesapeake, etc., Fuel Co. v. United States, 115 Fed. OIU.

affirming United States v. Chesapeal^e. etc.. Fuel Co.. 105 Fed.

holding contract between fuel company and association of

ll producers whereby former was to handle entire output of

171 U. S. 505-578 Notes on U. S. Reports.

miDes for western market, and minimum price fixed by asaoclatic
and company was to obtain as large profit as possible and
count for all above certain sum per ton which it was to retaf
as compensation, violates anti-trust law of 1890; Delaware, vetc, L
R. Co. V. Frank, 110 Fed. 696, denying equity jurisdiction to enjo^z^ j
ticket brokers from dealing in special tickets, rates for which we
fixed by pooling agreement of railroads; East Tennessee, etc..
Go. y. Interstate, etc., Com., 99 Fed. 61, holding rates to Chattanoo*
from sea coast fixed by agreement of railroads which are hlgl:
than those charged to Nashville which is 150 miles beyond Ch .
tanooga, violate interstate commerce act, SS 3. 4; Brown v. Jac
Pharmacy Co., 115 Ga. 443, 90 Am. St. Rep. 140, 41 8. B.

holding void combination of dealers to compel another to s^ «t

prices fixed by it or upon his refusal to do so to prevent thoses^^s of
whom its members are purchasing customers from selling good^^mm to
him; State v. Armour Packing Co., 173 Mo. 388 (see 73 S. W. ^i^aCQ;
96 Am. St. Rep. ), upholding sufficiency of evidence of iiM mm

to fix price of meats by packing companies; National Lead C<^ • ▼.
Grote Paint Store Co., 80 Ma App. 267, holding where st^c=>-c?k-

holders and governing officers of corporation combined with i .gach

other to violate anti-trust act of 1891 through instnimentalitj^^ of
corporate entity then corporation was party to such illegal (^r^om-
binatlon; dissenting opinion In Park, etc., Co. v. National Dmgg"*^*^
Assn., 175 N. Y. 36, 67 N. E. 149, majority upholding contract:. *^
tween manufacurers of patent medicine and wholesalers' assc-»^^'
tion establishing uniform Jobbing price for fixed qnantitiei^ ^
dealers who agreed to maintain prices established by manufactn"^r>^''-
See notes, 96 Am. St. Rep. 596; 74 Am. St. Rep. 254.

Distinjcuished in Bement v. National Harrow Co., 186 U. S- *
4(; L. 10G9, 22 Sup. Ct. 75G, upholding agreement of license^ <>^
patent for harrow improvements not to manufacture or sell ^i^V
other such harrows than those which it had made under paC^tDti
before assigning them to licensor or which It was licensed to zm^^-^^
or sell under license.

Syl. 2 (XII, IOCS). Prevention of combinations preventing IIlt«^
state competition.

Approved In Wisconsin, etc., R. R. Co. v. Jacobson, 179 tJ. &
297, 45 L. 199, 21 Sup. Ct. 118. holding railroads not deprived ^
property without due process by decision compelling them to f^*^
nish track connections where roads intersect; Phillips v. lola Port-
land Cement Co., 125 Fed. 595, upholding contract of sale by man"-
facturer to Jobbers of some of its product to be shipped acpo*»
State lines to latter whereby parties agree that purchasers th^
not sell, ship or allow any of such products to be shipped »•'**
side of certain State; Whitwcll v. Continental Tobacco Cc 1^
t^ed. -iGS, 4ij(), holding wIhto manufacturer and Its employee f*"
strlcted sales of its products to those who refrained from detliU^

Notes on U. S. Reports.

171 LL S. 5TS-Ci>4

I coinpetHor*8 commodities by fixing price of goods to those
ho declined to deal in competitor's goods so high as to make pur*
lase unprofitable, there was no violation of antitrust act: Grepa-
Ich Ins. Co. V. Carroll, 125 Fed. 127, holding void Iowa Code»
1T54» making It uniawful for two or more insurance companies
ilng business In State to enter Into any agreement as to ageiit*a
mtnissions or as to manner of transacting iusuraace business in
ate: United States v. Northern Securities Co.» 120 Fed. 725, 727,
Icling void combination whereby majority of stock in two parallel
Uroads is transferred to corporation organized for purpose of
Idiog and voting same and receiving dividends thereon, to be
rided pro rata among stockholders of two companies so trans-
txing their stock; State v. Smiley, 65 Kan. 259, 2Q2, 69 Pac. 205,
6, holding agreement entered into by all dealers on certain
Eurket hmlting their right severally under penalty to buy all
aiu they might otherwise on such market is agreement in re-
raint of trade: Matter of Davies, KJS N. Y. 101, Gl N, E. 121,
►holding anti-monopoly act of 189f); State v* Buckeye^ etc.» Co., ijI
tilo St, 548, 5G N. E. 4G7. upholding 93 Ohio Laws, p. 143. de-
ling trusts.

SyL 3 <Xn, 1068J. Congi'essional prohibition of combinations to
^ulate interstate rates.

.Approved in Lottery Case, 188 U. S. 359, 23 Sup, Ct. 328, 47
502, upholding act of 1895, for suppression of lottery traffic;
C»wnes Y, Bidwell, 1S2 U. S. 289, 45 L. 1107. 21 Sup. Ct. 788,
itioldlng Foraker act providing temporary civil government and
"v^cnues for Porto Rico and taxing imports from Porto Eico;
^Im Brew. Co. v. Beilnder. 97 Mo. App. 77, 71 S. W. 605, hold-
s' agreement between breweries not to sell to any one ludelUed
* any of others for beer until he paid the debt was in conflict
ItJj anti-trust law.

^1 U. S. d7»-C04, 4E L, 290, HOPKINS v, UNITED STATES.

Syh 1 {XII, 106S), Commerce — ^ Sale of stock consigned from
^^er States.

Approved in Saulsbury v. State, 43 Tex. Or. 95, 63 S. W. 570, 96
"^^ St Rep* , holding one having buggies shipped to him from
^'^side of State in original package and he took them out of sui-h
^<*kages and put them together and sold Is liable to occupa-

^U tHK,

^distinguished in United States v. Northern Securities Co., 120
^. 728, holding comhi nation whereby majority of stock in two
^ralleJ railroads Is transferred to corporation organized for pur-
^^ of holding and voting same and receiving dividends thereon
^^ be divided pro rata among stockholders of two companies so
^J^Hrisf erring their stock violates anti- trust act; Montague v. Lowry,
/*S Fed. 30, 31, holding llle aud Mantel Association of Califoruia

171 U. S. e04-620 Notes on U. S. Reports.

which bound members not to buy from nonmembers nor to ael^
to nonmembers at less than list price was Illegal under anti-trusl^
act of 1890, § 1; Adklns v. Richmond, 98 Va. 100, 34 S. B. 970, hold—
\ng resident who solicits orders for sale of goods for nonreslden^r*
principals and who forwards such orders and recelTes commis— ^
sion is engaged in Interstate commerce and cannot be licensed bj^
State or municipality.

Syl. 3 (XII, 1068). Agreement incidentally affecting Interstate-
commerce.

Approved In Diamond Glue Co. t. United States Glue Co., 18'^c
U. S. 616, 23 Sup. Ct. 208, 47 L. 333, holding contract under whic t^::
foreign corporation was to superintend operation of factory within
State, and control and handle its output is not relieved from ope-
ation of Wis. Stat. 1898, prohibiting foreign corporations fro
transacting business within State until they have filed copy
charter with secretary of State, because contemplated traffic mis
be interstate; Phillips v. lola Portland Cement Co., 125 Fed.
upholding contract of sale by manufacturer to jobbers of its pr
uct to be shipped across State line to latter, whereby purchase
agreed not to sell, ship or allow any of the product to be ship^g
outside of certain State; Whltwell v. Continental Tobacco
125 Fed. 458, 4G2, holding where manufacturer and his emplo
restricted sale of his products to those refraining from dealing-
good of competitors by fixing price to those who refuse to rcfm
from selling competitor's goods so high as to make their ■
unprofitable, there was no violation of anti-trust act; Wab»»-*««li
R. R. Co. V. Hannahan, 121 Fed. 567, refusing preliminary inj^s »Jc.
tlon restraining officers of labor union in declaring sympatlm ^^■"t/c
strike.

Distinguished in Ileim Brew. Co. v. Bellnder, 97 Mo. App. 7^* "1
S. W. GOr>, holding agreenu'nt between breweries not to sell to ^» *^T
one indebted to anj' of others for beer until he paid the debt wa.^ '*>
contlict with anti-trust law.

(XII, 10()S). Miscellaneous.

Cited in Unite<l States v. Swift & Co., 122 Fed. 532, to tX>^t
that purchase of cattle shipped habitually from dther State* '^
marlvots where defendants purchase, in expectation that purcba^
will be made by slaughter companies, is interstate eouimerce-

171 U. S. G(Ki-(>L'0, 43 L. 30(). ANDKKSOX v. UNITED STATES.

Syl. 1 (XII, 10G8). Interstate commerce — Cattle-yard Id ti**o
States.

Disiinguished In United States v. Northern Securities Co.. 1^
Fed. 7'JS, holding combination whereby majority of stock In t^^
parallel railriwids is transferred to corporation organized for pof'
pose of holding and voting same and receiving dividends thereoD

050

Notes tm V, B. Reports.

m U.S. 620-031

^^^ be divided pro rnta among stockbolders of two companies so

j "^^^iiisf erring tbeir stock violates anti-triist act,

^ft^ SyL 3 (Kll, 1069). Act 1 890 — Agreements not restricting com-

Approved In, Robinson v. Suburban Brick Co., 127 Fed, S07, np-

I "'Oldiag contract by which owners of brick-maliing plants con-

I '^'^^^jed tbem to corporation in exchange for its stock, binding sellers

^^ot to engage in competing business wltliln radius of corporation's

X>l<ace of business for ten years; Phillips v. lola Portland Cement

I ^Co., 125 Fed. 595, upholding contract of sale by manufacturer to

Jolxbers of its product to be shipped across State lines to latter

"^^""liereby parties agree that purchasers shall not sell, ship or allow

^^Xiy of product to be shipped outside of certain State; Whllwel! v.

, C^ontluentaJ Tobacco Co., 125 Fed. 458^ holding where manufacturer

i^i^KEd bis employee restricted sale of products to those refraining

I ^X-C3m dealing in goods of competitors by fixing price to those who

•^used to refrain from selling competitor's goods so high as to

i«i.ke their sale unprofitable* there was no violation of anti-trust

««.cr^; dissenting opinion in Straus v. American Pub. Assn., 177

^2*0'^ Y. 4S9, 41)1, 9«j N. E. 1112, 1113, majority holding agreement

^^^ween publishers representing 95 per cent, of books pahlished

twx United States and 90 per cent, of book trade to sell books

^ <->i:il J at retail net prices and to sell only to those dealers who

■:»illd maiataiu such uet prices violates aati-moiioisoly law.

Distinguished in Jlontague v, Lowry* 115 Fed. 30, 31, and Lowry

lv-_ inie. etc, Assa., m Fed, 824, S25. both holding complaint alleging

*tiat members of association have combined to raise pricts of man-

*1»*, to control output and to reguhite prices thereof, with intent to

monopolize trade between other States and Califoraia In regard

^^eri.'to» as well as to arbitrarily t\x prices Independently of their

It Ural market value brings case within anti-trust act of 18110;

fJ^t-Ini Brew. Co. v. Belimler, 07 Mo. App. TG, 71 S. W. G95, holding

jsrr<»eaient between breweries not to sell to any one Indebted to

i^^X of the others for beer until he paid the debt was In conflict

'^tb anti-trust law.

'-* C. S. 620-631. 43 L, 30T, NORTHWESTERN BANK v. FREE-
MAX.
[ ^yl. 1 (XII. 10611). Chattel mortgage of given number of articles.
ripi'oTed In State National Bank v. Cudaby Packing Co.. 128
''^. 548, holding where In action founded on chattel mortgage
<^ttle. defendnnt olTered prior mortgaires claim*M to have lieen
^^n on same cattle, but description therein did not state location
N- nor attempt to segregate cattle covered by piatnlilf's
.*' from larger number nttempted to be described in mort-
|p*^«< offered and brands were diffcretiti mortgages properly ex
aiJd.

I

171 U. S. 631-683 Notes on U. S. Reports.

Syl. 3 (XII, 1069). Mortgage of animals coTers increase.

Approved in Packwood v. Atkinson, etc., Foxworth Co., 79
G51, 31 So. 338, holding purchaser at trustee's sale under deed o«
trust of mare and other property and any Increase that may
thereafter acquired acquires title to colt foaled while deed in for
as against purchaser of grantor who bought with notice of lien.

171 U. S. 631-638, 43 L. 312, BROWN v. UNITED STATES.
Syl. 2 (XII, 1069). Review of Indian Territory courts* capital (
Approved in Ausley v. Ainsworth, 180 U. S. 260, 45 L. 520, 21 Su|

Ct 366, denying Jurisdiction over direct appeal from trial court ^

Indian Territory though suit may have involved validity of act ^^

Congress.

171 U. S. 638-641, 43 L. 315, NAEGLIN v. De CORDOBA.

Syl. 2 (XII, 1069). Guardian cannot release ward's claim.

See 89 Am. St. Rep. 291, note.
171 U. S. 641-650, 43 L. 316. PIERCE V. SOMERSET RY.

Syl. 1 (XII, 1069). State decision eliminating Federal question*

Approved in Lyon v. Gombret, 189 U. S. 508, 23 Sup. Ct 853, -<7

L. 922, reaffirming rule.

Syl. 2 (XII, 1069). Waiver of rights not Federal qnestion.

Approved in Hale v. Lewis, 181 U. S. 480, 45 L. 963, 21 Sup. ^^
Q80, holding State decision that corporation is estopped to set '■^P

invalidity of statute, by action of its board of directors, cannot ^^
reviewed on error from Supreme Court.

(XII, 1069). Miscellaneous.

Cited in Somerset Ry. v. Pierce, 98 Me. 529, 57 AtL 888, rcdtt::*"'
history of litigation.

171 U. S. 650, 43 L. 320, PIERCE v. AYER.
(XII, 1069). Adjudged conformably to preceding case.

Approved in Somerset Ry. v. Pierce, 98 Me. 529, 57 AtL 88&, *^

citing history of litigation.

171 U. S. 650-658. Not cited.

171 U. S. 658-683, 43 L. 323, NEW YORK v. ROBERTS.
Syl. 2 (XII, 1070). Corporate tax based on franchise and capi**^
Approved in Reymanu Brewing Co. v. Brister, 179 U. S. 452, '^
L. 273, 21 Sup. Ct. 203, upholding Dow law of Ohio taxing liquor traf-
fic, as applied to West Virginia corporation having principal pl^^
of business in West Virginia and manufacturing there beer whicb ^^
sends in cases to Ohio for sale; Duluth Brewing, etc., Co. v. City of
Superior, 123 Fed. 357, upholding municipal ordinance reqairi"*^
liquor manufacturers to procure licenses where they maintain pl«^
for tlieir sale witliin city district from their manufactory; AsliltD^

oaa

Notes ou U; S. Reports. 171 U. S. 6ST-GJ)0

^ timber Co. T. Detroit Salt Co., 114 Wis. 78, 89 N. W. 008, uphoklJiig
X*a_^s 1899» chap. 351, providing condltinuB upon which foreign car-
l>o rations may do business in State* imposing penalties for failure
^*> comply tberewitli. and making contracts made i>y such corpora-
tions l)efore oomplylng with statute void on its behalf but enforce-
^^t>le against It.

^yL 3 (XII. 1070). Commerce — Corporate tax baaed od capital
1*3 State.

^Approved io PJummer v, Coler. 17S U. S. 132, 44 L. 1W7, 20 Sup.
^^^^ 836» iipholdlng inheritance tax under New Yoriv law ou bequest
o:^ government bofids; Jones v. Mutual Fidelity Co., 123 Fed. 532,
m'Mpliolijing Tenn. act 1891, chap. 122, providing penalty for failure of
Cox-«igu corporation to file copy of charter with secretary of State
•^*^'lV>re doing business In State; Oalclaad Sugar Mill Co. v, Fred W.
^^V^olf Co.. lis Fed. 244. 246. holding Mich, franchise tax act of
^^feX providing that all contracts made by foreit;n corporation which
to^^ not paid franciiise tax sbaVl be void, applies to foreign cor-
I*oi*«tion commencing business w^itb purpose of carrying it on» but
*^0€>s not apply to singte contract made by foreign corporation which
^» not of character to indicate purpose to engage In bushiess in
St:at:e.

^■^X U. S. 687. McMASTER v. NEW YORK LIFE INS. CO.
O^rtlorari.

Olted In Bostwick v. JIut. Life Ins. Co., 116 Wis. 435. n2 N. W,
^T, and McMaster v. New Yorlv Life Ins. Co.. 90 Fed. 8i)l, both
**^<-iUng history of litigation.

JITX u, s. 687, EVANS V. SUESS ORNAMENTAL GLASS CO.

Certiorari.

CJlted in Rawson v. Western Sand Blast Co., 118 Fed. 576, reciting
I«tory of litigation.

pl XI, S. 690, WINSTON v. UNITED STATES.
CerOorarL

Approved in Sinclair v. District of Oolurabia, 192 U. S. 21, 24 Sup.
^^ 214. 48 L. 325, liolding Supreme Court cannot on error review
[f^minal Judgment of Court of Appeals of District of Columbia.

Vol, m — 61

CLXXII UNITED STATES.

172 U. S. 1-23, 43 L. 341, WALLA WALLA ▼. WALLA WALL
WATER CO.
Syl. 1 (XII, 1071). Water franchise as contract after performani
Approved in Joplin t. Light iCo., 191 U. S. 158, 24 Sup. Ct. 45,
L. 130, holding implied contract that city will not, for twenty yea
enter into electric lighting business does not arise from municii
grant under authority of Mo. Laws 1891, p. 61, of nonexclui
right to erect and maintain an electric- light plant for that
reversing Southwest Missouri Light Co. v. Joplin, 113 Fed. 822,
holding where, under Mo. Laws 1891, p. 60, authorizing citi(
erect and maintain lightworks, and also authorizing city to
lighting privilege to any person or corporation for term not ex(
ing twenty years, city granted corporation light franchine for twe
years, city could not during term erect plant to supply cousum
Skaneateles Water- Works Co. v. Skaneateles, 184 U. S. 3G2,
590, 22 Sup. Ct 403, holding Implied contract that village will
construct Its own water-works or provide itself therewith otbei
than by purchase of incorporated company, after expiration of
tract with such company, does not arise from village's consei
incorporation of company and Its construction of works under Doa
exclusive franchise; Freeport Water Co. v. Freeport, 180 U. S. S93,
COS, 45 L. 080, 092, 21 Sup. Ct. 490, 501, holding contract giving
water company right to charge certain rates for thirty yearn ysrltb-
out interference by new ordinances changing rates not antnorlzed ify
111. acts of 1872, empowering cities to contract for water supply /«"
periml not exceeding thirty years and empowering cltle* to tutlior-
Ize construction and maintenance of water-works at such rate« :««
may l)o fixed by ordinance and for period not to exceed thirty yeBft:
American, etc., Co. v. Homo Water Co., 115 Fed. 178, 179. 180. holdlni
suit to restrain city ordinances passed in exercise of delegattMl pow-
ers, on ground tliat they attempt to annul contract made by prior or
dinance without notice to otlier party or due process of law. involve*
Federal question: Anoka Water- Works, etc., Co. v. Anoka. 109 Fei
584, uplioldinj: Federal equity jurisdiction over suit by water com-
pany to set aside city ordinances which purport to repeal prlo*"
ordinances granting francliises under which company erected if
works, and contracting for water for city, which repealing orfl
nances, if valid, destroy value of company's property; I^os Ang^J**
City Water Co. v. Angeles. 103 Fed. 734, holding where lease of dty

[002]

WaUa Walla v, Walla Wnlla Water Co. 172 tr. S. 1-23

*'*ter plant for term required lessee to reconstruct water-works,

**^0 leasee practically constructed entirely new and etilargred plant

^d contract fixed rates, and on expinitlon city was to return to

^Ssee value of improvements, city could not after expiration of

^**in raise rates before paying viilue of improvements wliere tt con-

^^ned to require lessee to make extensions; Mercantile Trust* etc.*

^<>. V. Collins Park, etc., R. R. Co., D!> Fed. SIS, holdlug municipal

*-**"cIinance granting street railroad francliise tinder Ga* Coustltutlow

'^ law of State within contract clause, and suit to enjoin its en-

^c»i-eeiijent InTolTres Federal question; Odd Fellows Cemetery Assn.

'^- San Fraocisco, 140 Cal. 235, 7S Pac. 990, upholding ordinance

K>i-oJjibitIng interments within city limits; Heed v. Anoka^ 85 Minn.

^^^S^ ^ N. W, 9S2, upiiolding contract for tbirty-one years under

'fa^rter empowering municipality to provide for water and light

^vij>ply for inhabitants; Kuoxvillc v, Knoxville W. Co., 107 Tenn.

Tl>. G82, 64 S. W: lOSri, 1084, holding where act under which water

xaapany was incorporated gave cities power to regulate rates, city

VMld reduce rates after once having fixed them; Clarksburg, etc.»

OJo. V. Clarksburg, 47 W, Va. 745, 35 S. E. 996, holding since Clarka-

l^Hr^ could not in 1887 grant exclusive franchise for twenty years

^o private corporation to use Its streets for conveyance of electricity

Foi- public use, it could within same term grant to another cor-

I>*>ratlon privilege to occupy streets for same purpose.

l>istingiiished In St. Paul Gaslight Co. v. St Paul, ISl D, a 148,

***^ Hi. 702, 21 Sup, CL 577, holding ordinance commanding removal

*>^ lamp posts which are no longer in use, and declaring that no

Interest will thereafter be paid to gas company on account of such

l><^«ts does not Impair obligation of contract under which corapuny

erected posts and city agreed to pay interest on their cost; Austin

^* Hartholomew, 107 Fed. 352, bohllng where grant of franchise by

^*ty to water company for term is not exchislve, city may erect

^^mpeting works; Browne v, Tiinier, 176 Mass. 15, 56 N. E. 071,

'^<>UHng Stat. 1897, chap, 5tK>, g 17, awthorSzing construction of sub-

^*^T and execution of lease when completed to Boston Elevated

hallway Company for twenty-five years does not impair prior con-

.^'^ct made by Boston transit commissionera with West End Street

*^lway.

Syl. 2 (Xllt 1071). Delegation of sovereignty for local purposes,
Approved In Detroit v. Detroit Citizens' Street R. R. Co.. 184 U. S.
^^. 40 L. GOO, 22 Sup, Ct. 410, lioUling ordinance adopted under
*treet railroad act of 18417, fixing rate of street-car fares at five
*^^U^ gives company wljen aceeided by it, a contract right to charge
^aat rate which cannot be reduced by city without its consent; Mer*
^mile Trust & Deposit Co. v. Collins Park, etc., R. R. Co., 107 Fed,
'*^ holding where jurisdiction of bill to enjoin enforcement of
^^nanee authorizing street railroad to condemn parts of another
^t0lMiny*8 tracks is taken by Circuit Court on ground that claimed

172 U. S. 1-23

Notes on U. S. Reports.

violation of previous grant to latter involves Federal question,
cannot take jurisdiction of supplemental bill as to charter right
former company to condemn; Dawson v. Columbia Ave. Savi
Fund, etc., Co., 102 Fed. 207, holding under amendatory Judicia
act of 18d5, appeal does not lie to Circuit Court of Appeals fn
order granting injunction In case in which municipal ordlnan<
are claimed to Impair contract obligations, though case may a
involve other questions; Southwest Missouri Light Co. v. Joplln,
Fed. 26, holding where under Mo. Laws 1891, p. 60, authorizing dt
to erect and maintain lightworks, and also authorizing city
grant lighting privilege to any person or corporation for term
exceeding twenty years, city granted corporation light francl -^
for twenty years under certain conditions, city could not, du^r-
term, erect plant to supply consumers.

Syl. 3 (XII, 1071). Empowering niunlclpalitles to grant t^c^ .^n-
chlse.

Approved in Los Angeles v. Los Angeles City Water Co., 177 HIT _ s.
570, 44 L. 892, 20 Sup. Ct. 741, holding where lease of city w- «m ter
plant for term required lessee to reconstfuct water- works, cm a J
lessee practically constructed entirely new and enlarged plant, ^nd
contract fixed rates, and on expiration of term city was to r^^ujm
to lessee value of improvements, city could not, after explratlovm of
term, raise rates before paying for Improvements, where it <7O0-
tinned to require lessee to make extensions; Little Falls EUecrCfc.
etc., Co. V. Little Falls, 102 Fed. 666, holding city conncil h^yriug
power to contract for supplying water and light to city majT ^'*>
grant franchises for use of streets for such works, and when ^uo/i
grant is accepted it cannot be repealed by later ordinance; 3fer-
cantile Trust, etc., Co. v. Collins Park, etc., Co., 99 Fed. 811>, ^^''
holding under Ga. Constitution ordinance granting street rallr^*'^
franchise is law of State within contract clause, and suit to enJoJ"
Its enforcement involves Federal question.

Syl. 4 (XII, 1071). Federal question — Erection of city xcater
works.

Approved In Illinois Cent. R. R. v. Chicago, 176 U. S. 656, 4-* ^'^
G2G, 20 Sup. Ct. 513, holding where railroad charter authorized f <: *^
enter upon and take possession of and use any lands, streamf '
materials for location of depots for operation of road and jgnxM
to it all such lands, waters and materials belonging to State,
subsequent city ordinance prohibited placing of piles, stone orot^^^
obstructions in harbor without permission of public works comi^^ **
sioner, Federal question as to whether ordinance impaired chiT*
presented; Pike's Peak Power Co. v. Colorado Springs, 1(KS Fed^ **"
holding where dismissal of appeal would cause delay of years ^"
decision of case of considerable importance, which Involves cc^^*
stitutional question, Circuit Court of Appeals will take jorisdlcti^^
and decide whole case In first Instance: Ex parte Jacob!, 104 Fe^

■Dd

tnd

0 Walla Walla v. Walla Wjilla Water Co. 172 U. 5. 1-Z2

Ht boldiog appeal from decision of Circuit Court on application
^r habeas corpus based on ground that applicant is detained !n
olatJon of Fedeny Const! tm km must be taken to Supreme Court;
merican Suj^ar Helhiing Co. v. New Orleans, 104 Fed- 3, holding
Lere controliing queRtlyn Involves construction and application of
>n8tJti]t1on« Circuit Court of Appeals should decline jurisdiction,
ongh question was not raised by plaintiff's pleadings and jnris-
ction of Circuit Court was not dependent upon it; Lros Angeles
ty Water Co. v. T^os Angeles. 103 Fed. TICJ, upholding Fe^lcral ju-
^diction over suit to enjoin municipal ordinance fixing water rarea

1 ground of irapairment of Louiract ol>lif;ation, althougli contract
\ set out in bil! expired by its terms prior to passage of ordinance,
here It is alleged to be still in force; Little Falls Electric, et<;,, CJo.
Ottle Falls. 102 Fed. GbT, holding where city council having power
►ntracts fur supply of ll^ht and water to city It may also grant
'anchises for use of sti'oets for such works and when such grant is
^epted, it cannot be repealed by later ordinance; Dawson v.
Dlumbia Ave. Saving Fund, etc., Co., 102 Fed. 206, holding under
jiendatory judiciaiy act of 1895, appeal does not Ife to Circuit
ourt of Appeals from order granting injunction In ease in which
imiclpal ordinances are claimed to impair contract obligations,

tough case may also involve other nuesllons.
SyL 5 (XII, 1071J. Remedy at law must he complete and prompt
Approved in United States v. Southern Pac. R. R, Co., 117 Fed.
w4, holding government may mnintahi suit In equity under acts of
^i and 18D0, to set aside patents enoneuusly issued to railroad
>r lands under a grant and to test bona fides of purchasers and
itablish their riglits in any of lands bo patented, and may In same
^H reiiuirc accounting from railroad as to lands Involved which It
as gold: Sontliwest Missouri Light Co. v. Joplin, 101 Fed. 33, liold-
^g^ where city is proceeding to furnish Uglits to consumers in com-
f*t,Uion with corporation in violation of Implied terms of franchise
'"Uuted to corporation, lattir is entitled to injunction; Gregg v.
'IJtirber. m N. IL 483. 45 Atl. 242, upholding jurisdiction over suit
* compel eori'Ofiitlon whieli sold third persoifa note and mortgage^
•^ti afterward sold part of mortgaged premises, to pay plaintiff
**>ount of his note and mortgage, or that lie pay prior mortgages
^ that plaintiff may have first mortgage as was Intended,

8yl 0 (XII, 1071). Injunction against erection of city water-

t>lstlnguislied in St. Paul Oosliglit Co. v. St. Paul 1^1 U. S, 150,
^^ U Ty2, 21 Sup. Ct. 578, holding claim that obligation of contract
^* Ixapaired by ordinance enforcement of which could not constitute
*^ch Impairment, though it denies liability on contract, does not
S^feaent Federal question.

uri

-mO

172 U. S. 1-23 Notes on U. S. Reports.

Syl. 8 (XII, 1071). Municipal contract to furnish water for tei tq

Approved In Vlcksburg Water- Works Co. v. Vlcksburg, 185 U. s.

82, 46 L. 816, 22 Sup. Ct. 592, reaffirming rule; Southwest Mlsso
Light Co. V. Joplln, 101 Fed. 30, 31, holding where under Mo. La

1891, p. 60, authorizing cities to erect llghtworks, and also autl — : joy.

izing city to grant lighting privilege to any person or corporat Iqq

for term not exceeding twenty years, city granted corporation fi ^u.

chise for twenty years, under certain conditions, city could ^^^c=]ot
during term, erect plant to supply consumers; dissenting o^^^^^/q.
ion in Freeport Water Co. v. Freeport, 180 U. S. 618
L. 696, 21 Sup. Ct 505, majority holding contract gi^m^ — im
water company right to charge certain rates for thirty years w ^M. tij.
out Interference not authorized by 111. Acts 1872, empowering cK. -^tilea
to contract with water companies and to authorize erection -M-jm^nd
maintenance of water-works at such rates as may be fixed by cza» ^c^li-
nance and for period not exceeding thirty years.

Syl. 10 (XII, 1071). Municipal contract to make annual "K^-^^-
ments.

Approved in Cunningham v. Cleveland, 98 Fed. 663, 664, reaSK k-id-
ing rule; Brown v. Schleier, 118 Fed. 985, holding lease by nati<^Z3a/
bank for ninety-nine years under which aggregate rental vr "kM Mcb
bank agrees to pay in monthly Instalments exceeds capital s^^Tcir
does not create indebtedness for aggregate amount of instalna^-Jata
within meaning of Rev. Stat, § 5202; Riverside & A. Ry. Co- f-
Riverside. 118 Fed. 741, 743, upholding Federal jurisdiction o^er
suit to enjoin city from enforcing counciPs resolution by whictx It
declared its purpose to discontinue furnishing of electric power* to
complainant under contract, on ground that such action Impnff^
obligation of contract; Dallas Electric Co. v. Dallas, 23 Tex. CTJv.
327, 58 S. W. 155. liolding municipal lighting contract for term «t
annual rental not exceeding amount which city is authorized to
appropriate oach year for that purpose, and under which pnyni€»nt
is not to be made only on performance, does not create Indebtedu^**'*
within constitutional inhibition against creation of debt witi)C>«^
provision for collection of fund to pay interest and create sinlr'**^
fund: Herman V. Oconto, 110 Wis. 673, 86 N. W. 685, holding c^^***
tracts wiiereby city had agreed to pay certain sums annually '^^^
water supply for thirty years, certain sums monthly for elecC^*^^
lights for three years and certain sums monthly for teach ^^'^
wages, upon which notliing was due when contract for construct **^
of sewer was entered into, cannot be included as liabilities in det^*'*
mining wlietlier. by sewer contract, city exceeded debt limit ^^

Distinguislied in Windsor v. Des Moines, 110 Iowa, 193, 81 N. "^^'
482, holding necessity for an electric-light plant constitutes ^
excuse or justiruation for construction of such plant by city, vfh^^
such construction would increase city's Indebtedness beyond ccp^'

Notes OE tJ. S. Reports.

172 U. S. 24-58

stitiitlonal limit; State v. HeleDn. 24 Mont 534, 535, 63 Pac. 104.
holding where city had already exceeded constltutlona! limit of in-
debtedness, water company furnishing Jt water under contract for
certain period at certain price payable monthly out of tax levy to
I be made for such purpose, company could not recover for water so
furnished; Roberts v. Fargo, 10 N. Dak. 243, 86 N, W. 732, holding
void under Codes, §| 2261, 22G4, agreement between city officers
and Hghting company whereby company agreed to furnish light for
term of ten years for $500 per month.

172 U. S. 24-31, 43 L. 351, ANDERSON v. TREAT.

SyL 2 (Xll, 1072). Refusal to allow prisoner to see attorney.
See 87 Am. St. Rep. 18S. note.

a72 U. S. 32-48, 43 L. 354, PITTSBURG, ETC., RY. v. BOARD OF
PUBLIC WORKS.
I Syl. 1 (XH, 10721. Federal injunction of State tax.
' Approved in Indiana Mfg. Co. v. Koehne, 188 U. S. G84, 23 Sup.
Ct 453, 47 L, 654, refusing to enjoin collection of assessment upon
capital stock and franchises of corporation; Cruiekshank v. Bid well,
1"B U. S. 80. 44 L. 381, 20 Sup. CL 283, refusing to enjoin cus-
toms collector from enforcing act of 1897 to prevent Importation of
Impure tea; Kansas City, etc., R. R. Co. v. King, 120 Fed. G24»
folding where method of assessing railroad property adopted by
*5tate board is within itB statutory powers aM does not result
'li excessive valuation, levy will not be enjoined because owing to
P^euliar nature of property method adopted was different from
*t>at applied to other roads; Central Pae. Ry. v. Evans, ill Fed. 73,
Upholding Jurisdiction to enjoin board of assessors from desig-
^^titig railroad by name and flxing valuation per mile throughout
^tate as auch method was not authorized by Nev. Const, and Stat.
^^ ISJOI; Douglas v. Stone. 110 Fed. 815, holding since Code Va.
^^7, 15 507-570, provide adequate remedy at law for correction
**^ erroneous tax assessment. Federal court cannot enjoin collection
^^ ta.x on ground that assessment Is erroneous; People's Nat. Bank
^- Marye, 107 Fed. 575, 577, refusing to enjoin State officers from
^'*ecting tax on national bank shares under Va. acts of 1890 and
aasi^. gjjjj^j^ ^ Smith, 159 Ind. SS9, 390, On N. E. 1S3, 184, holding
*^l lo restralD auditor from entering an alleged improper assess-
^^Ot on the tax duplicate is premature,

^yi. 4 (XII, 1072). Taxation " Notice with right to appeal
'A.pproved In Weyerhaviser v. Minnesota, 176 U, S. 555, 44 L.
^^* 2(1 Sup. Ct 488, uplioldlujsr Minn, Stat 1893, chap. 151, au-
^^Mzlng governor to appoint board to revalue property groaaly
*^^<3ervalued by county asses so ra.

^'*'^ U. S. 48-68. Not cited.

172 U. S. 58-101 Notes on U. S. Reports.

172 U. S. 58-82, 43 L. 364, GREEN BAY, ETC., CO. ▼. PATT:
PAPER CO.

Syl. 2 (XII, 1072). Words used to raise Federal questioii.

Approved in Swerlngen v. St. Louis, 185 U. S. 46, 46 L. 799^ 22

Supi Ct. 572, holding question whether or not plaintiff is entitlec^^i^ to
alluvion caused by recession of Mississippi river to extent of

many hundred feet east of point v^hcre it flowed at time plaint !BL WTb
predecessor took title to property under government patenicz^ it
not Federal question; Capital City Dairy v. Ohio, 183 U. S. "rS^T-ia,
46 L. 176, 22 Sup. Ct. 124, holding Supreme Court cannot re^ :« ^w
alleged Federal question when it appears that Federal right r^s^M. Sed
on had not been by adequate specification called to attentioc^ of
State court, it not being necessarily involved in determlnattoa:^ of
case.

Syl. 3 (XII, 1073). Government control over water powec* on
Fox river.

Approved in Green Bay, etc., Canal Co. v. Kaukauna, etc., ^^o.,
112 Wis. 330, 334, 87 N. W. 867, 868, holding where plaintinr as
owner of hydraulic power created by dam had right to use ewiM^^Mn
water stored in pond and defendant by draining i)ond appropri^'K:e(l
part of pond, plaintiff has right of action for taking of water ^iid
damages are yearly rental value of actual amount of horse po^^over
taken at dam with interest.

172 U. S. 82-101, 43 L. 374, MEYER v. RICHMOND.

Syl. 1 (XII, 1073). Federal question raised on motion to set WL^i^^

demurrer.

Approved in Rothschild v. Knight, 184 U. S. 339, 46 L. 571>, 22
Sup. Ct. 303, holding Federal question first raised on writ of orrof
to State Supreme Court is sufficient to warrant review; Tuiroer
V. Richardsou, 180 U. S. 92, 45 L. 440. 21 Sup. Ct 297. holding
Federal question must be raised before Judgment and cannot ^
rlaimed for first time in petition for rehearing.

Syl. 2 (XII, 1073). Deprivation of property — Consequentiil
damage.

Approved in Richmond Traction Co. v. Murphy, 98 Va. llO, ^
S. E. 984, following rule; United States v. Lynah, 188 U. S. -^"^
23 Sup. Ct. 358, 47 L. 550, holding where government by constr**^
tion of dam to improve navigation so floods lands as to render ttM^^
valueless. o\yner is entitled to compensation; United States ''•
Certain Lands, etc., in Rhode Island, 112 Fed. 623, 627. hoW^^^^
that erection and use of fortification by government interferes \rf ^
purpose ueighborinj? landowner had in view in purchasing a^**
improving: his property, or even impairs its value, does not coo^^*
tute talviug of such property entitling him to compensatioa

Notes oa U. S. Reports. 172 U. S. 103-133

8. 102-133, 43 L. 3S2, McCULLOUGH v. VIRGINIA.
jrL 1 (XII, 1073). Virginia refunding coupons receivable for

IB,

isting^uislied in St Paul Gaslight Co. v, St Paul, 181 U. S,
45 L. 792. 21 Sup, Ct 578, holding mere fact that comptroller
recluded from auditing claims of gas company as prerequisite
ppropriation of money to pay ttiem, by ordinance declaring that
money glmll be paid on account of them, does not Impair obli-
on of contract under which claims arose, where auditing would
Qost be merely advisory.

fh 2 (Kll, 1073), Following State statutory construction,
pproved in Walsh v. Colunibua, etc.. E. R. Co., 176 U. S. 475,
U 55 1» 20 Sup, Ct 390, holding where Ohio accepted lands
Bted to it by act of Congress of 1828, for eonatruetion of canals,
0 act of 1804 authorizing abandonment of canals and leasing
same to railroad, there was reason to claim that act of 1S04
iftired obligation of conti'act between State and Federal gov-
ment, and Federal question was thereby raised.
yl. 3 (XII, 107LSK Payment of taxes in coupons,
pproved in MeGUlivray v. Joint School District 112 Wis. 350.
km. St Rep, 072, 88 N. W. 312, holding where express contract
purchase of materials for schoolhouse was void because it
f'sised debt be^'ond constitutional limit and material has been
into building, contract la binding up to amount of debt limit
void as to excess,

rh 4 (XII, 1073), Courts — Examination of effect of State
ftlon.

^proved in Wilson v. Standefer, 1S4 U. S. 412, 40 L. G18. 22
. Ct 3S9. holding Tex. act of March 23, 1807, authorizing for-
^re of lands bought from State for noupayinent of interest.
n»ut judicial proceeding, and authorizing purchaser to Institute
Within six months of forfeittire to establish fact of payment,
^ not Impair contract; Stearns v. Jlinnesota, 170 U. S. 233, 45
►70, 21 Sup. Ct 77^ uphokliiig contracts between Minnesota and
I'Oads made by Acta 1SG5 and 1870, whereby companies were
ttipted from all otlier taxes until sale or lease of lands in con-
oration of perceutage of grosij earnings; Houston & Texas
It 11. R. Co. V. Texas, 177 U. S. 77. 44 U OHO, 20 Sup. Ct. 510,
^iUg Slate court constrnction of State statute whereby cause of
^oa under statute for default in payments is enforced on grouna
t payments previously made and accepted by State are void
^Irs obligation of implied contract arising out of acceptance of
'TBents, though State court iloes not mention statute,
-Jlstingulshed In Yazoo & JI, V. R. R, Co. v. Adam.% 180 U. S. 48,
L. 418, 21 Sup. Ct 258, denying jarfstlEction on error to State
irt where only questlou involved is construction of cbarteri

172 U. S. 133-170 Notes on U. S. Reports. 9T^.

though there were statutes subsequent to charter which tnig>^

have been but were not relied on as raising Federal question.
Syl. 5 (XII, 1073). Decree giving effect to act impairing contract ^
Approved in Pinney v. Neilson, 183 U. S. 147, 46 L. 127, 22 Sim^

Ct 54, upholding Cal. Civ. Code, § 322, relating to individual stoc^ -^

holder's liability.

Syl. 7 (XII, 1073). Effect of change of remedy for enforcement
Judgment.

Approved in Deposit Banlc v. Franlsfort, 191 U. S. 517, 48 L. ^^^B
24 Sup. Ct. 161, holding final Federal decree adjudging t ::k_^
State made irrevocable tax exemption, which decree rests n^^ -^
effect as res adjudicata of inferior State Judgment respecting tti - g
for other years, is conclusive notwithstanding subsequent reve-m:;—
of its original Judgment by highest State court; Oshliosh Wi^.-^^
Worlds V. Oshljosh, 187 U. S. i39, 23 Sup. Ct 234, 47 L. 251. l^^z^
ing revised Oshlvosh charter relating prerequisites to brin.sc Si
suits against city did not impair prior contract relating to hycLxr*^
rentals, affirming 109 Wis. 215, 219, 85 N. W. 379, 380; Los An^s-^/e
V. Los Angeles City Water Co., 177 U. S. 576. 44 L. 894, 20 13^
Ct. 742, holding contract authorized by existing State Constit^Ji ^:f oc
as then construed by highest State court cannot be affected D/
subsequent change in decisions of that court or by adoption of zmcv
Constitution. See 95 Am. St. Rep. 887, note.

(XII, 1073). Miscellaneous.

Cited in Parsons v. Maury, 101 Va. 518, 44 8. B. 759, reciting

history of litigation.

172 U. S. 133-148. Not cited.

172 U S. 148-170, 43 L. 399, HARKRADER v. WADLEY.

Syl. 1 (XII, 1074). Appealability of Circuit Courfi order «"
habeas corpus.

Approved in Chow Ley v. United States, 112 Fed. 359, holdiW
right of appeal given by Chinese exclusion act of 1888, | 13, p^^
viding that any such Chinese convicted before court commlB«lo«>*'
may, within ten days, appeal to Judge of District Court for <^^
trict, is to judge as special tribunal and not to the District 0>**^'
In re Goodman, 101 Fed. 920, holding appeal is not taken »^^
order allowing same and bond are filed in court in which decree *
order appealed from is entered and this must be done within t^^
allowed by statute for taking the appeal.

Syl. 2 (XII, 1074). Enjoining State criminal proceedings.

Approved in Davis, etc., Mfg. Co. v. Los Angeles, 189 U. 8. ^
23 Sup. Ct, JKX), 47 L. 780, denying equity Jurisdiction to enf ^^
municipal otiiccrs from enforcing city ordinance prohibitiiig 9!f^
tion or maintenance of gas tanks within certain limits by arr^^
ing employees: Prout v. Stan-, 1S8 U. S. 543, 545, 23 Sup. Ct *^^

i

Notes on U» S. Reports.

D. S, 14S-1T0

4T L. 587, 588, afllrnilng Starr v. Chicago, etc., Ry. Co., 110 Fed. 0,
8, boldlDg where Feilt?ral court iu suit by stockholders restrained
ralLroad from putting State rates in force and enjoined State
ofiicefs from instituting proceedings to enforce such rates, suit by
State attorney-general in State courts against railroad to enforce
penalty for failure to enforce rates will be enjoined; Pacific Whal-
ing Co. V. United States, 187 V. S. 452, 23 Sup. Ct 150, 47 U 255,
Holding where appUcant fi^les with Alaska District Court petitiou
tor license for vessels and canneries under Alaska Crim. Code, | 460,
and with it a protest against being required to take out or pay
license, to which petition and protest District Court clerk Is not
made party, and District Court grants license and overrules pro-
test, no appeal ilea to Supreme Court; Farmers* Loan, etc., Co. v.
I-ake St R. R. Co.. 177 U. S. 61, 44 L. G71, 20 Sup. CL 5GS, holding
filing of bill for foreclosure of mortgage in Fcderat court and
^teiiance of subpopna In suit give Jurisdiction as against action
Bblisequeotly commenced in State court by summons which was
"kerred before service of Federal subpoena; Knott v. Evening Post
C6.^ 124 Fed. 352, holding where in State action by stockholder, only
fclief grantable was examination of books, and afterward creditor
In Federal court and receiver was appointed for corporation
pha took possession before receiver appointed by State court In
5t suit. Federal court had prior Jurisdiction; McDowell v. Me-
<^orinick, 121 Fed. 65, holding where in action by creditor against
insolvent corporation, court restrained defendant from disposing
, ^^ property and appointed receiver and subsequently at suit of
I another creditor another court of co-orditiate Jurisdiction appointed
I deceiver who took possession excluding tirst appointee, first court
l^ad exclusive jnrlBdlctiou; Baltimore, etc., R. R. Co. v. Wabash
l*^' R. Co., 119 Fed. G79, upholding Federal jurisdiction to enforce
Slate decree by which railroad has acquired right In statutory
proceedings to construct grade crossing over tracks of another hj
l^Jolnlng latter from obstructing crossing; Arbuckle v. Blackburn.
V^ Fed. C23, denying Federal Jurisdiction to enjoin State officer
[OUi lustituting prosecutions under Ohio pure food law; Central
ast Co. V, Western North Carolina R. R, Co., 112 Fed. 477,
rdliig where Federal court has foreclosed railroad mortgage au<i
ri property thereunder, expressly providing In decree of confir*
|tion that purchaser shall take property and f ranch laes free of
icliiims and liens, It may entertain supplemental bill by com-
Inout and purchaser to enjoin execution sale under State judg-
JT rendered on cause of action arising after sale; Phelps v.
lual Reserve, etc., Assn., 112 Fed. 4C5, holding Federal court
lot enjoin receiver appointed by State court of concurrent Ju-
\iUm over subject-matter from acting under such appoint-
where no priority of jurisdiction is claimed, on ground
IState court had no Jurisdiction to make appointment;

172 U. S. 171-186 Notes on U. S. Reports. S

Ooker v. Monaghan Mills, 110 Fed. 806, holding Federal coi
cannot enjoin State proceedings because of pendency of
moval petition which has not been presented to or acted up
by State court; Oliver v. Parlin & Orendorff Co., 105 Fed. 275, 2
fiiolding where in Federal equity suit to recover realty and can
deed of trust thereon for fraud grantors and grantees in sv
deed were made defendants and grantees answered that they fa
sold deed to a banls and after replications bank brought foreclosi
in State court and sheriff sequestered property. Federal court fa
not priority of Jurisdiction; Colston v. Southern Home, etc.. Ass
99 Fed. 310, holding Federal court will not entertain suit by 8t04
holders for appointment of receiver of corporation while prior s
for same purpose is still pending in State court, though State coi
on preliminary application has refused to appoint receiver; Sti
V. Chicago, etc., R. R., 61 Nebr. 549, 85 N. W. 557, holding inji^
tion issued by Federal court cannot lawfully forbid attorney-^
eral from suing for penalties claimed by State under maxima
freight law, § 9. See 87 Am. St. Rep. 201, note.

Distinguished in Southern Exp. Co. v. Mayor, etc., of Ensley*
Fed. 760, holding criminal proceedings under invalid ordin^B
imposing unlawful license fee and prescribing penalty for x
payment of such fee may be enjoined in equity.

(XII, 1074). Miscellaneous.

Cited in Chamberlain Transp. Co. v. South Pier Coal Co.,
I<'ed. 167, holding order granting leave to file petition for ap£>
and an assignment of errors and subsequent approval of apf><
bond reciting allowance of appeal sufficiently show that appeal ^m
allowed when petition therefor was filed.

172 U. S. 171-lSO, 43 L. 407, NEW MEXICO V. UNITED STAX^J
TRUST CO.

Syl. 1 (XII, 1074). Exemption of right of way of railroad.

Approved in Northern l»acific R. R. Co. v. Townsend, 190 U.
271, 23 Sup. Ct. 072, 47 L. 1046, holding adverse ownership ^
private use under State Statute of Limitations can confer no tl^
to individual to portion of right of way granted by act of 185ft- ^
Northern Tacific; Maysville & B. S. R. R. Co. v. Ball et al., 108 I^
250, 50 S. W. 191, holding agreement to furnish railroad with ri^
of way of certain width does not relieve railroad from liabllltr
pay obligor for his property outside right of way which has b^
talven by so constructing road on right of way as to interfere ^ ^
his easement of access and to injury of his buildings. See
Am. St Rep. 845. note.

(XII, 1074). Miscellaneous.

Cited in United States Trust Co. v. Territory, 10 N. Mex. 418. «-^
Territory v. Santa Fe Tac. R. R., 10 N. Mex. 411. 413, 414. <
Pac. 985, both reciting history of litigation; Northern Countl^

Notes on U. S. Reports.

172 U. S. lSa-21iL>

ete., Co. V, Eoyard, 24 Wash. 370, <j4 Pac. ililT. rclativo to right of
railroad to entire width of 400 feet for right of way.

1T2 U. S. 18<J-20U, 43 L, 413, THE ELFRIDX

SyL 1 {XII, 1074). Setting aside salvage contracts for unreU'
Bonableness,

Approved in Magdala SS. Co. v. Baars Co.. 101 Fed. :i04, hold-
ing where tugs unsuccessfully puUed at stranded ship for tire
tirmrs and then captain niade contingent contract with five tug-
Ijoats w*hich pulled ineffei:"tiially all day and then CHptaln enj?a.:^*^*d
lighters to take oflf deck load, wtiercupou vessel was pulled off,
eargo-owner« are liable for proportionate expense of tugs nnd
ilffhters.

Syl. 2 (XII, 1074). Salvage contract resulting most profitably.

Approved In The Atkins Hughes, 114 Fed. 412. holding agreement
fixing price for towing vessel into port not exorbitant though price
Is canslderably in excess of customary towage raters where owing
to perilous situation of tow service was in nature of salvage;
Elphicke V. White Line, etc., Co., 106 Fed. 046, 047, holding con-
tract by one party to pay at all events and by other party to re-
**eive as fixed or deserved compensation for salvage services Is aa
conclusive and enforceable as any other valid contract; The Thorn*
l^y* 08 Fed. 741» 743. upholding contract for salvage of vessel
loaded with dynamite grounded on dangerous reef where she
pounded considerably, providing for payment of $20,(XX> contingent
^"i auecess, vessel and cargo being valued at f 105,000.

^"2 tJ. 8. 2043^232. 43 L. 420, UNITED STATES v, LOUGHREY.

^Sl, 2 (XII, 1074). Act of 1856 vested fee in Micblgan con-
*^*«otially,

approved in United States v, Tennessee & Coosa R. R.. 17i>
^- S. 253, 44 L. 457, 2)0 Sup. Ct. 374, holding act of June 3. lam
^""^^tlog lands to Alabama to aid railroads, was grant In praesentl.

^^2 \j ^ 232-239, 43 L. 430, GRANT v. BUCKNEll.

^yl* 3 (XII, 1075J. Federal receiver appearing In State court
* ^"aiver.

^^e 74 Aiq. St Rep. 2li3, note.
^^t 4 (XII, 1075). Set'Otr against Federal receiver,
^^ 74 Am. St Rep. 294. note,
1^^ IJ. S. 230-2CO, 43 L. 432. BLAKE v. McCLUNG.
I ^yl. 1 (XII, 1075). Equal protection — Insolvency — Giving resl-
f ^^» priority.
[Approved in Sully v. American Nat Bank. 178 U. 8. 298, 290, 44
lt»76, 2i} Sup. Ct 931). following rule; Blake v. McClung, 170 U. S.
^7, 44 L*. 371, 374, 20 Sup. Ct 310, determining that judgment

172 U. S. 239-269 Notes on U. S. Reports. 974

under review was not in conformity with mandate of principal
case; State v. Montgomery, 94 Me. 201, 47 Atl. 167, holding void
ha wipers and peddlers act of 1893, limiting granting of licenses
to citizens of United States; Bank Gomrs. v. Granite State Prov.
Assn., 70 N. H. 560, 562, 503, 85 Am. St. Rep. 649, 49 Atl. 126, 127,
128, holding where insolvent corporation has creditors in foreigd
State in which it has deposited fond for purpose of doing business
therein creditors residing therein who receive such fund are en-
titled to share in general distribution of corporate assets to extent
of equalizing dividends with those of nonresidents; People v.
Granite State, etc., Assn., 161 N. Y. 495, 55 N. E. 1054, upholding
application of special deposit made by foreign building and loan
association under Laws 1892, chap. 689, as condition of right to do
business to exclusive benefit of domestic creditors and share-
holders; Cable V. United States Life Ins. Co., 191 XJ. S. 807, 48 L.
194, 24 Sup. Ct 77, arguendo.

Distinguished in State v. Travelers* Ins. Co., 73 Conn. 273. 276.
47 Atl. 305, 306, upholding Pub. Acts 1889, chap. 63, providing that
stock of certain corporations owned by Connecticut residents shall
be listed at market value in towns where they reside, but that
so much of capital of any such company as may be invested in
real estate on which it is assessed and pays tax shall be deducted
from market value of stock in its returns to assessors.

Syl. 2 (XIl, 1075). Imposition of conditions upon foreign corpo-
rations.

Approved in United States Shipbuilding Co. v. Conklln, 126 Fed.
135, holding right given by N. J. Rev. Stat. 1890, p. 298, SS 65.
UG, to creditors or stockholders of insolvent corporation to applj
for injunction, and receiver may be enforced in Federal court ,
where diversity of citizenship and requisite amount exist.

Syl. 3 (XII, 1075). Scope of privilege and immunity clause.

Approved in Anglo-American Prov. Co. v. Davis, etc., Co. (No. l^ .
101 U. S. 374, 48 L. 227, 24 Sup. Ct. 93, holding full faith ac::^^
credit not denied Illinois judgment by N. Y. Code Civ. Prc^N^
§ 1780, which, as construed by New York courts, precludes ma^^i].
tenance of action on such judgment by one foreign corporation
against another; Mason v. Missouri. 179 U. S. 335, 45 L. 220, 21
Sup. Ct 128, upholding Mo. registration law of 1895; Maxw«?]j
V. Dow, 176 U. S. 592, 44 L. 001, 20 Sup. Ct. 453, upholdmg prose-
cution by information and trial by jury of eight under Utah Con-
stitution; United States v. Morris, 125 Fed. 323. 320, holding ci-^^i
rights act (Rev. Stat., § 190S) is within power of Congress, under
Thirteenth Amendment, to protect citizens in enjoyment of tlicwse
rights which are fundamental and belong to every citizen. ^^
deprivation of such rights is wholly because of race or color; Es-
tate of Johnson. 139 Cal. 530. 537, 538. 73 Pac. 420. upholdlDl?
amendatory act of 1817, exempting nephews and nieces of de*

975

Norwood T. Baker.

ceased, when resident of this State, from payment of collateral
Intieritance taat,

SyL 4 (XII, 1075)* Privileges and Immimities — Ck>rporation as
citlscen.

Approved Id Hawley v. Hurd, etc., L. Co., 72 Vt. 125. 47 Atl. 402;
boMiug Vt Stat, I 1306, exempting from attacliinent by trustee
proeess negotiable paper transferred bf?fore due to bank within
State, does not work discrimination against banks witliout State.

Syt 5 (XII, 1075). Fourteenth Amendment — Law subordinating
ola^itna of foreign corporations.

-A^pproved in Sully v. American Nat Bank, 178 XJ. S. 302, 303, 44

I-. 1077, 1078. 20 Sup, Ct 940, 941, following rule; Dayton Coal &

ri-on Co. V. Barton, 1S3 U, S. 25. 46 L. 64. 22 Sup, Gt 5, upholding

Tenri, act March 17. 1S99. requiring redemption in cash of store

others or other evidences of Indebtedness issued by employers in

payment of wages; Waters-Pierce Oil Co. v. Texas. 177 U. S. 45, 44

L'- 6e4. 20 Sup. Ct 525. upholding Tex, act March 30. 1S90, prohibit-

*^S foreign corporations which violated provisions of that act from

doing business witbin State; MacMurray v. Sldwell, 155 lud. 566,

•^^ N", E. 725. Iioldlug where foreign Imildlng association complied

w^itb laws and ceased to do business on passage of act of 181)3. re-

Quiring such associations to do business, on its insolvency there-

ttttor Indiana stockholders have no preferential claims on Indiiuia

"^^^ets; People v. Graiiite Stiite. etc. Assn,. 161 N. Y. 497, 55 N. E.

I055, upholding application of special deposit made by foreign

l*^l|^ing and loan association under Laws 1S92, chai>, 68D. as con-

•litJoii of right to do business, to exclusive benefit of domestic ered-

^^^^ and shareholders,

^'*^ U, S, 269-303. 43 L. 443. NORWOOD v. BAKER.

^yl 1 (XII, 1075). Eminent domain ^ Com pensation for land

-Approved in dissenting opinion In Maxwell v, Dow. 176 tl. S. 614,

I'or,

L GIO. 20 Sup. Ct 497, upholding prosecution for felony by

<3fmation and trial by Jury of eight under Utah Constitution.

^^yl 2 (XII, 1075). Exaction of cost of Improvement in excess
fcenefit

Approved to Norwood v. Arnold, 62 Ohio St, 666. 58 N. E. 1102,

^flirmlng rule; Bid well v. Huff, 103 Fed. 371, holding wliere city

ies special assessment for street improvement under statute,

lug no account of sjHJcial benetita. and aETordlng iiropcrty-owner

oppt>rtunity to bave benefltM Judicially determined, and validity

matute has been tipbeld by State court Fedcml court will enjoin

^orcement of assessment; Parker v, Detroit. 103 Fed. 359, 3rJ9.

^«llng void provisions of Detroit charter and paving ordinance pro-
lag for assessment of cost of paving upoQ abutting property in

172 U. S. 2G9-303 Notes on U. S. Reports. ^

proportion to frontage; reversed In 181 U. S. 398; Charles ▼. Mark
100 Fed. 542, holding void Ind. act 1889. providing that entire
of street improvement shall be assessed against abutting proper^ ^w^ — -
according to frontage without regard to benefits; CJowley ▼. Spokat
no Fed. 844, holding void special assessments levied on abutti^
l>ropeit. for cost of street improvements under Wash. Stat. *^^
(luiring assessment of entire cost of such improvements on abutti^ -^i _|
property according to front-foot rule; Lyon v. Tonawanda. 98 F ^^^^ ^
;U>4, 305, 36G, holding void N. Y. acts 1893 and 1805. directK. ,

municipalities to assess whole expense of paving highways VLi^:^m^^mo
abutting lands in proportion to frontage without Judicial inqiM. ^^^gff,
as to benefits; reversed in 181 U. S. 391; Charles ▼. Marion. q^

Fed. IGG, 167, holding validity of Ind. act of 1889. providing ti ^^r -^^^
lotowners shall be liable to city for street improvements acconS. ^Kn^
to frontage, is sufilciently doubtful to warrant granting of
liminary restraining order in suit by lotowner to enjoin enfc»i
ment of assessment made thereunder; Kelly v. Chad wick, 104
733, 29 So. 300, upholding assessment on abutting property for stzm mJ^tt
improvement under act No. 142 of 1894. authorizing impositiovm of
three-quarters of cost of improvement on abutting owners aceor«fl. Mog
to frontage; White v. Gove, 183 Mass. 334. 67 N. B. 360. holcftl s^
void Stat. 1892. chap. 402, providing for sewer assessment si in
Boston; Dexter v. Boston, 176 Mass. 251, 79 Am. St. Rep. 30T^ 57
N. E. 380, holding void Stat. 1892. chap. 402. making expense of
constructing sewer, to amount not exceeding $4 per lineal ^oot
assessable on adjacent lands, according to frontage; Ramsey
County v. Robert P. Lewis Co., 82 Minn. 392. 393, 399. 401, 85 M. ^.
208, 211, 212, holding void St. Paul charter. SS 26. 27. providing tor
annual asv^ossnient of ten cents per front foot on all lots In froot
of which water pipes are laid; reversed on reargnment; State v.
Pillsbury, 82 Minn. 372, 373, 85 N. W. 178. 179, holding void MinB^-
apodis charter, chap. 10, § 8, for assessing and apportioning tAXe$
upon abutting proiHTty wliore sewer has been constructed in street
on which such proiK^rty abuts, according to frontage; Matter of
Munn. 105 N. Y. 155, 58 N. E. 883, holding under Laws 1895. cbajx
113, autliorizing courts to vacate assessments for local Improve-
ments wlien based on erroneous principles, assessment for tev^^*
which has been confirmed by board of revision, cannot be set ««*<*•
on ground of ineciuality where it appears that assessment Is ba^e^l
on correct principle; dissenting opinion in Tonawanda v. Lyon. 1^
U. S. 393. 45 L. 911, 21 Sup. Ct. 611, majority upholding N. Y. •^^
of 1893 and 1895, directing municipalities to assess whole expeo*
of paving any hijjhway ui)on lands abutting upon highway in P^
portion to frontage without judicial inquiry as Jto benefits; dl8»eiit*
ing opinion in Wiglit v. Davidson, 181 U. S. 386, 387. 45 L. 907. 21
Sup. Ct. 622, majority upholding act of March 3. 1899, to extefl<J

Narwood v. Baker.

172 U. S. 2ti9-^303

street In District of Columbia, and providing that payment of not
Ks than half of damage In respect to land condemned shall be
tsessed against abutting owneria and on adjacent owners of lands
meflted; dissenting opinion in French v. Barber Asphalt Paving
>., 181 U. S. 349, 351, 354, 350, 368. 45 L. 892, 894, 895, 898, 21
ip- Ct* 634, 635, 636, 641, majority upholding assessment for street
iprovements according to frontage without preliminary hearing
I to benefits; dissenting opinion hi Matthews v. Kimball, 70 Ark.
O, m S. W. 548, majority holding Const. 1874, art 19, § 27, author-
kig assessments ou realty for local Improvements, does not In-
blt council from making assessments for public park upon prop-
ty "Which does not actually touch park grounds; dissenting opinion

Indianapolis r. Holt, 155 Ind. 242, 243, 260, 57 N. K 988, 1102,
Bjority upholding Acts 1895, p. 384, § 74, providing for assessment

costs of street improvements against abutting property by front-
lOt rule; New York, etc., R. R. Co. v. New York, 186 D, S. 272, 46
, lieo, 22 Sup, Ct, 917, and Scranton v: Levers, 200 Pa. St 58, 49
tL 981, both arguendo. See 82 Am. St Rep. 457, 458, 459. note.

Distinguished in Shumate v, Heman, 181 D. S. 403, 45 L. 924 (see
. Sup. Gt 645J, affirming Heraan v. Allen, 156 Mo. 547, 57 S. W.
$2, and French v. Barber Asphalt Paving Co., 181 U. S. 344, 345,
► L. 890, 21 Sup. Ct 632, alHtiniug Barlx^ Aspbalt Pav. Co. t.
rendi, 158 Uo. 538, 539. 540, 545, 549, 551, 552, 554, 58 S. W. 935,
kC, 937, 938, 940, Ml, both upholding assessment for street im-
'ovements according to frontage without preliminary hearing as to
Miefils: Detroit v. Parker, 181 U. S. 400, 401, 45 U 921, 21 Sup, Ct
t^ 645. and Cass Farm Co. v. Detroit, 181 U, S. 398, 45 L. 916, 21
^V Ct 645, affirming 124 Mich. 435, 436, a3 N, W. 109. both uphold-
f^ Detroit charter and paving ordinance providing for assessment

eo«t of paving upon abutting property in proportion to fronla^je;
^^bster V, Fargo, ISl U. S. 395, 45 L. 914, 21 Sup. Ct. 624, 645, up-
Elding power of State legislature to create special taxing districts
^^ to charge cost of local improvement, In whole or In part upon
"operty In said districts, either according to vailuation or superflclal
"^a or frootage, affirming 9 N, Dak. 209. 210, 211, 212, 82 N. W,
t3, 734; Tooawauda v. Lyon, 181 U. S. 391, 392, 45 L. 911, 21 Sup.
^ 610, upholding N. Y. acts 1893 nnd 1S95. directing municipalities
' assess whole expense of paving any highway upon Iniids abutting
>fHi highway in proportion to frontage without Jurllcial Intjulry as

• tj€nellts; Wight v, Davidson, 181 U. S. 383, 384, 385, 45 L. 9U6, 21
l»l>» Ct 621, 622, upholding act of March 3, 1899, to extend S street
' IJlstrlct of Columbia, and providing that payment of not less tbaa
■^r of damage in resiJ^ct to land condemned shall be assessed
^^iast abutting owners and on adjacent owners of lands benetlted?
*^h V. Trustees of Columbia Township, 179 U. S. 47G, 48T, 488, 489.

* ib 285» 289. 299, 21 Sup. Ct 176, determining validity of secUou 3,
Vol 111 — 02

172 U. S. 26^^03 Notes on U. S. Reports. Vi

Ohio Act Gen. Assembly of 1893, providing for making street In
provements and assessing lots therefor according to frontage; BoU
City T. Wilson, 113 Fed. 1016, 1017, upholding front-foot assessme]
for street improvements; Zehnder v. Barber Asphalt Pav. Co., 1(
Fed. 570, 571, upholding Ky. Stat., §§ 2832-2839, providing for Btra
improvements at exclusive cost of owners of lots in each fourl
of a square, to be apportioned according to number of square fe<
owned by parties, respectively, within abutting fourth square; Bu
lington Sav. Bank v. Clinton. 106 Fed. 273, 274, upholding lo^
Acts Twenty-third Gen. Assem., chap. 14, { 10, relating to asses
ments for street improvements, which requires council to asce
tain entire cost of improvement, and what proportion may be m
sessable on adjacent property and to assess such portion upon sue
property as provided by law; Matthews v. Kimball, 70 Ark. 45
40G, 6G S. W. 654, 655, holding Const. 1874, art. 19, $ 27, authorisin
assessments on realty for local improvements, does not luhlb
council from making assessments for public park upon properl
which does not actually touch park grounds; Duncan v. Ramisl
142 Cal. 691, 692, 76 Pac. 663, holding where property-owner hi
opportunity given him, under prescribed proceedings, to appei
and contest question of benefits before city council by propc
remonstrance against proceeding, determination of that body o
subject of benefits is final; Chapman v. Ames, 135 Cal. 246. 67 Pa<
1125. upholding Vrooman act relating to assessments for street in
provements; San Francisco Paving Co. v. Bates, 134 Cal. 40, GO Pa<
2, upholding street assessment law providing that expense of stree
work be assessed in proportion to frontage; Hadley v. Dague. 13
Cal. 217, 221, 222, 62 Pac. 503, 505. upholding Vrooman act pro
viding for apportionment of expense of street improvement upo
abutting lots according to frontage; Job v. Alton, 189 111. 260, 26^
59 X. E. 623, upholding sidewalk act of 1875. and ordinance und-*
it providing for sidewalk to be constructed by lotowners acoo^
ing to frontage and to be paid by special assessment, though maki i
no provision that cost or amount of tax shall not exceed beneB
to property or for hearing on question of benefits; Wray v. Fry. 3
Ind. 94, 02 N. E. 1005, upholding act of 1895, for constnictloa
sewers at cost of abutting property; Leeds v. Defrees, 157 luii. 3J1
r»l X. E. 932, and Martin v. Wills, 157 Ind. 154. 155. 156, 157. <
X. E. 1021, 1022, both holding Barrett law of 1889 provides tli:
<'xpenses of street improvement may be assessed on proper^
benelited tliereby in proportion to benefit received and witlron
repu-d to v;Une of property, and is valid; Indianapolis v. Holt. !•-
Ind. 2;il). .'7 N. E. 972. uplioMing Acts 1805, p. 384, § 74, provU-^^
for assessment of cost of street improvements against abuttii^^
property by front-foot rule: Evansville v. Frazer, 24 Ind. App. ^'
:a] X. E. 7:;o. hoUlini: under Laws 1805. p. 27G, providing that *"
cities of certain class it shall be duty of department of pul)l'^

UT&

Norwood V. Baker.

172 U. a 26^-308

I

^*o«-ks to have general siiperTlsion over streets, and to keep same

In i-epair, city Is liable for injuries caused from neglect to repair

<3e^oayed wooden sidewalk; Minneapolis^ etc.. R. E, v, Lindquist,

IXO Iowa, 145, 03 N. W. 104, holding cost of sewer may be assessed

«S'*iInst abutting lots according to frontage: Hackworth v. Ottitmwa,

H4 Iowa, 470, 87 N, W. 425, upholding Code 1897. | 818, apportion-

Sii^ cost of street pavement on aiinttlng lots according to frontage;

l^AJlsas City V. Gibson, m Kan. 502, 72 Pac. 223. upholding Cen.

S^tiat. 1901, f 740» aiitborizing assessments on city lots to pay for con-

^trniction of sewers; Barfleld v. Gleason. Ill Ky. 512. 514, 515* 517,

63 S, W. 968. 009, upholding Ky. Stat, § 2838. providing for original

<^oiistniction of streets at exclusive cost of owners of abutting

t>rop«rty according to area; Smith v. Mayor, etc.. 182 JIass. 233. 65

^- E. 41. iipboldiag Stat. ISHT. cbap. 100, | 4. relating to sewers in

'^'oroester. and providiag tliat owners of realty along line of sewer.

t*** whose realty may be benefited thereby, sball pay to city such

»*nrti as aldermen sliall a.ssess; Ramsey County v. Rol^ert P. Lewis

C?o., 82 Minn. 4Q2, 403, 404, SO N\ W. 611. 012. upholding St Paul

cliaurt:er, §| 20. 27. providing for annual assessment of ten cents per

front: foot on all lots in front of which water pipes are laid; State

^'. I^istrict Court. SO Mian. 311, 83 N. W. 188, nplioldliig assess-

*^^iit for street pavement according to frontage as made witb due

i^e&nrd to beneflts; Kansas City v. Racon. 157 Moi 471. 472, 474. 57

^- ^^- irjuO, 1Q51, determining validity of assessment for park pur-

l><*Ses; Conde v. Scbenectady. 104 N. Y. 202, 2«j3, 58 N. E. 131, up-

tool<liiig front- foot assessment for street ImprovemeatK; SchrcKler v.

* Overman, 01 Ohio St. 5, 8, 9. 10, 53 N. E. 159. 100. 161, upholding

assessment for street Improvement according to front foot rule;

Harrlsburg v. McPherran. 200 Pa. St. 34G, 347. 49 Atl. 991. upholding

frc*tit-foot assessment for street paving; Lentz v. Dallas, 96 Tex.

-'^, 72 S. W. 60, upholding assessment on abutting owners for cou-

*'^t-ucUon of sidewalks.

^yl. 3 (XII. 1075). Benefit must be considered In special assess*
^«*I1U.

^Aui)roved \n Walsh v. Barron. 61 Ohio St 24. 69 Am. St Rep.

*»5, 55 X. E. 106. following rule; Zebnder v. Bnrher Asphalt Pav.

^'^* lot; Fed. 100, 107. holding void Ky. Stat., §§ 28:i2-2.S39. providing

l^r street improvenieuts at exclusive coat of owners of lots In each

^'*^Mh of a square, to be apportioned according to number of stjoare

^*^t (jwnied t>y parties respectively, witlvin abutting fourth square;

^^you T, Tonawanda. 08 Fed. 371, holding void N. Y. acts 1SJJ3 and

^^^^*^ directing municiimllties to assess whole expense of paving

^^IsUwoy upon abutting lands in proportion to froniage without

^^^kh\ inquiry as to benefits; revepsed In ISl U. S. 3111; City

^nmi of Montgomery v, Blrdsong. 120 Ala. 051. 28 So. 520. up-

'oldini; charter provision relating to street improvements, which

^fliJw that council may assess proijcrty to be benefited tliereby

172 U. S. 26^-303 Notes on U. S. Reports.

for not more than one-half of cost, assessments to be made with
reference to property on both sides of street, and assessment against
owners on opposite sides of street not to exceed one-fourth of cost
of improvement, and malting provision for appeal to coiincll to
correct errors; Ahern v. Board Improv. Dist, etc., 69 Ark. 7d, 77,
61 S. W. 577, 578, holding assessment for local improvement in pro-
portion to benefits is not prohibited by Const 1874, art. 19, | 27,
providing that such assessments shall be ad valorem and tmiform,
and it is within discretion of legislature to require such assessments
to be made according to value of realty affected, or according to
value of benefits added by improvements; Crane v. Siloam Springs.
67 Ark. 38, 55 S. W. 957, holding cities and towns are expressly
authorized to create improvement districts and to levy assessments
for purpose of constructing water- works; Adams y. Shelby^ille, 151
Ind. 473. 475. 493, 496. 77 Am. St Rep. 490. 492, 506, 57 N. B. 117.
lis, 124, 125, upholding Barrett law of 1899, providing for assess-
ments for street improvements according to frontagre; Lincoln v.
Street Comrs., 176 Mass. 212, 214, 57 N. E. 357, 358, upholding SUt.
1893. chap. 339. and Stat. 1891, chap. 439, authorizing Boston street :
commissioners to improve street and assess benefits therefor
real estate whether situated on street or not, which board adjudj
to have been benefited beyond general advantages to all real estate
in city; Ransey County v. Robert P. Lewis Co.. 82 Minn. 392.
398, 85 N. W. 208, 209, 210, holding void St Paul charter, SS
27. providing for annual assessment of ten cents per front foot od
lots in front of which water pipes are laid; reversed on rearguoK
Nehasane Park Assn. v. Lloyd, 167 N. Y. 439, 60 N. B. 744,
struing Laws 1853, chap. 347, authorizing commissioners to tmj
tax for local improvements on certain lands; Cincinnati, etc., B.
Co. V. Cincinnati. 62 Ohio St 482, 484. 486, 57 N. E. 234, 235. hoMi-
neither compensation paid to landowner for lands taken by api>-
priatioD prooiHHliugs can be assessed back upon lands of owe
remaining after, nor can costs and expenses incurred In such ^ "^r^o
eiHHlings bo so assessed; King v. Portland, 38 Or. 418, 419, 420. 4r'^S^*
424. 427. iv> Pac. G. 7. 8, 9. upholding statute requiring council ^^
assess against abutting lots cost of improving street immeditt^^^y
in front of such lots, and providing that cost of improving stn"^?^'
Intorseetions shall be assessed five-ninths to first fifty feet, ^^^
remainder to next fifty feet in abutting quarter lots; dissentS^*^
opinion In French v. Barber Asphalt Paving Co., 181 U. S. 368. 2^^^*
370. 4r> L. Si>S. 8i>9. 21 Sup. Ct 641, majority upholding assessm^**'
for stnvt improvements according to frontage without prelimin^^^
hearing; as to l>enefits.

Disiinjruished in Hrown v. Drain. 112 Fed. 5S4, upholding O^
Stat 188o. p. 147. as amended by Stat 1889. p. 157, and S^^
ISiJS, p, S9, relating to proceedings for ordering street work; Miu^

I

Notes on U. S, Beports.

^a, etc, Land Co. v. Billings, 111 Fed. 974, npliolding city charter

tborizing council, In mtiking public Improvement* to create Sm-

Temeut district wtiicli shall Include only such property as will

[ 1>^^ benefited and to assess cost on property within district accord-

', M^^^.^ to area of lots, and which provides for hearing on notice to

^ <^oaa8lder object! one to assesBment; White v. Tacoma, 109 Fed. 33,

, upholding assessment for streel: improveraeut« according to

ontsge; Job v, Alton. 18£> III. 2t>3. 2<J5, 266, 268. 59 N. E. 624, 625.

uphold ing sidewalk act of 1875 and ordinance thereunder pro-

^^^^<Hng for sidewalk to be constructed hy lotowners according to

^^ montage and to be paid by special assessment, though making no

X^r-OTlsion that cost or amount of tax shall not exceed benefits, or

^r'^>^ hearing on question of benefits; Oliver v. Monona Co., 117 Iowa,

^^'3'^ 90 N, W. 515, holding determioation of supervisors that lands

"^^^^x^ within area of benefits to result from drainage ditch cannot

^=*^ collaterally attacked: McNamee v. Tacoma, 24 Wash, 505» 64

^^^'^c;. Till, 792. upholding Laws 1893, p. 226. providing for reassess-

^^^=»^«3t of property "with reference to benefits received" where

^^x*i^fiDaI assessment for street Improvement has been declared

^yl 5 (XII, 1076). Taxation — Tender of legal amount
-A. pproved in Zebnder v. Barber Asphalt Pav. Co., 106 Fed. 108;
^t-oss v. Portland, 105 Fed. 683, and Dumars r. City of Denver,
^ ^ CJolo, App* 304, 65 Pac, 587. all reaffirming rule: Bidwell v,
^ X vunt, 103 Fed. 373, holding where city levies speeiai assessment
^c»ir street improvement, under statute, taking no accounting of
^l>«?<^lal benetits and affording property-owner no opportunity to
*^^-^^^ benefits judicially determined, and validity of statute has
■>e^xi upheld by State court. Federal court will enjoin enforcement
*^^ a-ssessment without tender of assesBment
CXlI, 1075). Miscellaneous.

Cited In Hibben v. Smith, 191 U. S. 326, 48 L, 201» 24 Sup. Ct
*'^- folding due process of law not denied property- owner assessed
- *^** local improvement, because all members of board levying as-
^^ssinent were residents of town and taxpayers thereof, and two
^^ Hucb members were owners of abutting lots assessable there-
^^^i Adams v. Shelby vllle, 154 lad. 535. 57 N, E, 139, to dissenting
/>t>luion.

^"•^ U, 8. 303^14, 43 L. 456, WINSTON v. UNITED STATES.

55yt 1 {XII, 1076). Homicide — Verdict without capital pun-
i^^^tuent

Approved im United States v. Williams, 103 Fed, 947, hold-

[^6 Instruction in murder case which might be construed to

^^\ilre jury to find palliating clrcumstanees to authorize iiuali-

^t^aUon of verdict of gailty. without capital punishment. Is erro-

172 U. S. 314-^3 Notes on U. S. Reports,

neous; Sinclair v. District of Columbia, 192 U. S. 21. 24 Sup. Ct^^
214, 48 L. 325, arguendo.

172 U. S. 314-520, 43 L. 463, BELLINGHAM BAY, ETO., B. R. t. -
NEW WHATCOM.

Syl. 2 (XII, 1076). Taxation — Publication of notice of reas-
sessment.

Approved in Johnson y. Hunter, 127 Fed. 223, upholding Acts
Ark. 1895, p. 88, No. 71, authorizing commencement of proceed-
ings to enforce collection of taxes on lands owned by nonresidents
on notice to be published weekly for four weeks; Kansas City t.
Mastin, 169 Mo. 91, 68 S. W. 1039, holding order of publication
in proceeding by city to condemn land for park, which notifies
those whose property is to be taken and those whose property Is
liable to be assessed, and clearly defining limits of assessment
district, is sufliclent; Norfolk v. Young, 97 Va. 732. 34 S. E. 887.
holding void provision in municipal charter authorizing local as-
sessments by council for street improvements upon petition of
majority of owners of property to be assessed, or by majority vote
of council, after publication for twenty days in two or more news-
papers published in city of resolution declaring such assessment to
be expedient

172 U. S. 321-326. 43 L. 463, UNITED STATES v. BLISS.
Syl. 2 (XII, 1077). Res adjudicata must be pleaded and proved. ^
Approved in Union, etc., Bank v. Memphis, 111 Fed. 570, follow-**^

ing rule; Lowenthal v. Baca, 10 N. Mcx. 360, 62 Pac. 982, arguendo^^

172 U. S. 327-334. Not cited.

172 U. S. 334-338. 43 L. 467, CLARK v. KANSAS CITY.

Syl. 1 (XII, 1077). Judgment reversing overruling demurrer "- i_^
final.

Approved in Tampa Water-Works Co. v. City of Tampa, 124 F^^sc
935, holding where in State suit to restrain enforcement of
ordinance demurrer was overruled and on appeal judgment
reversed and remanded for further proceedings, and on rema
bill dismissed from which plaintiff appealed, and pending api^*
plaintiff brought injunction in Federal court prior suit, being •'•lil
peuding, was not bar.

172 U. S. 339-343, 43 L. 4G0. UNITED STATES v. BUFFALO X-c^T.
GAS FUEL CO.

Syl. 1 (XII, 1077). Tariff — Natural gas admitted free.

Approved in Farbenfabriken of Elberfeld & Co. v. United Sta«^*
102 Fed. (»CX>. holding coal-tar colors or dyes which are not ^^
rived from anthrocene are not ** artificial alizarin dyes" witJ^
meaning of paragraph 308 of free list of tSLrUT act of 18W.

Notes on U. S. Reports.

172 U. S. ^3^-116

■172 U- S. 343-351, Not cited.

"172 U. S. 351-361, *13 L. 474, mSSOURI, ETC.. TRUST CO. T.
KRDMSEIG.
SyL 1 (XII, 1077). Following State uaury statute constroctioiL
Approved in Hamilton v. Fowler, W Fed. 25, following rule;
Brown v, GruDdy, 111 Fed. 17, holding, under Arkansas usury laws,
mutual agreement to give and receive unlawful Interest la not
iiecessary to constitute usury, but there must have been an In-
tention on part of lender to take or reeeive more than legiil rate
of Interest; Union Mortgage, etc., Co. v, Hagood, 97 Fed, 362,
lioldlng, under South Carolina statutes, note containing In body
cbereof provisfoQ ** with Interest thereon* after maturity, until
fMiid, at rate of 10 per cent, per annum, payable annually/' 1b
misurlous, 10 per cent being in excess of lawful rate.

Syl. 2 (XII, 1077). Courts — Cancellation of uaurious contract —
rteturn of money.

Approved In diasenting opinion in Lindsay v. United States Sav.
^ L. Co.. 127 Ala. 373, 374, 2S So. 719, 720. majority holding be-
fore mortgagor can malntJiin bill to redeem under mortgage on
ST-ound that debt secured thereby was usurious contract, he must
<*ffer to pay amount due under mortgage with legal interest
Syi, 3 (XII, 1077k Fcdeml courts ignore policy of State legls-

Approved In Jone3 v. JIutual Fidelity Co., 123 Fed. 523, boldiug.
L under 19 Del. Laws, chap. 181, unsecured non judgment creditors
^ma^ petition for appointment of receiver for Insolvent corporation,

^^^2 tl. 8. 361-371. Not cited.

t*^2 tJ, S. 372^83, 43 L. 482, SIMPSON v. UNITED STATES.
Syl. 1 (XII, 1078). Designation of site for dock as warranty of

[ Approved in Groton Co. v. Railway Co., 80 MIm, 173, 31 So. 741,
M<3ing borings Id vicinity of piers for bridge to be erected under

'^act based on specifleatlons and profile showing such borings
tiot constitute warranty that diOferent strata beneath Burfaoe

*Wii by each boring exist at localion of nearest pier.

tJ. a 383-400. Not cited.

tr. 8. 401-41B. 43 L. 492, SONNENTHEIL T. CHRISTIAN
MOERLElN BREWING CO.

^\, 2 (XII, 1078). Fraudulent knowledge of preferred creditor*
ar jury.

Improved In Metcalf v. Miller, 107 Fed. 225, holding it being

of Insurance commissioner to make reciuisltion for assessment

btockbolders of Insurance company, to make up deficiency where

172 U. S. 416-425 Notes on U. S. Reports,

its capital has been impaired, and if deficiency is not made i
notify attorney-general to commence action for dissolution,
is consideration for note given by stockholder to satisfy a
ment made pursuant to such requisition, though assessmc
technically defective; Heierman v. Robinson, 26 Tex. Civ. 4)
S. W. 658, holding Jury are not bound to accept as true one
dieted testimony of interested witness; Turner y. Grobe, 24
Civ. 557, 59 S. W. 585, holding court cannot instruct jury
certain facts testified to by plaintiff, who was uncontrad
were established; International, etc., R. R. v. Johnson, 28
Civ. 192, 55 S. W. 791, upholding sufficiency of evidence to st
verdict for plaintiff in suit for death of brakeman by derai
of train alleged to have been caused by negligent constn
and maintenance of switch and defended as having been e
by tampering with switch.

Syl. 3 (XII, 1078). Suit against marshal arises under Fi
laws.

Approved in Kirk v. United States, 124 Fed. 341, nphi
Jurisdiction of Circuit Court in New York to restrain mi
from executing scire facias on forfeited bail bond on pre
of resident located therein, where scire facias as issued bj
trict Court of Georgia was void; State v. Frost, 113 Wis. 649
89 N. W. 920, 922, holding information filed by attorney-g(
in behalf of State to enjoin Federal receiver from dismai
railroad and selling materials composing it, under Federal d
Is removable to Federal court

Syl. 4 (XII, 1078). Deprivation of Jurisdiction by Joind
new party.

Distinguished In Chicago, etc., Ry. Co. v. Martin, 178 U. 8
44 L. 105G. 20 Sup. Ct. 855, boldiug action against railroad ai
receivers appointed by Federal court for wrongfully causing •
Is not removable by receivers.

172 U. S. 416-425, 43 L. 498, UTTER v. FRANKLIN.
Syl. 1 (XII, 1078). Congressional validation of municipal b
Approved in County of Coconino v. County of Yavapai
U. S. GSl, 44 L. 637, 20 Sup. Ct. 1025, following rule; Mt
V. Utter, 186 U. S. 98, 107, 108, 113, 46 L. 1074, 1077, 107
Sup. Ct. 777. 779. 783, explaiuing decision of principal case; 8c
man v. Arizona, 184 U. S. 345, 46 L. 581, 22 Sup. Ct. 407, he
Arizona funding bonds issued in place of county bonds under i
Congress of June 6. 1S9C, are not invalid because county aft<
questing their Issue withdrew request after bonds were is
Carpenter v. Greene County, 130 Ala. 632, 29 So. 198. holding ^
oounty under general statute therefor holds election for issi
of bonds in aid of railroad, any irregularity In election or Issi
of bonds is cured by subsequent act legalizing acts done, then

085

Not€i OH U. S, Reports. 172 U. S. 425-473

ander statute; Baltes v. Farmers* Iir. Dist., 60 Kebr. 814, 83 N, W.
S4, holding legislature may validate exchange of district irrigation
bonds whicli was not authorized at time such exchange made, and
It may proTlde method of disposing of such bonds different from
one existing at time they were voted; Central Baptist Cliurcb v.
Manchester, 21 R. I, 3C1. 43 Atl. 846, upholding resolution of gen*
eral assembly confirm Ing title to read estate to organized body
which for want of legislative authority of Incorporatioa at time
deed was given it could not hold; Wallace v. Goodlett, 104 Tean.
676, 58 S. W, 344, holding decree rendered prior to passage of
Acts 1S9T, chap. 81» refusing to enforce mortgage because of
stipulation for usurious interest is not adjudication on merits and
will not defeat suit to enforce same mortgage to extent of prin-
cipal and legal Interest brought after passage of said act

(XII, 1078). Miscellaneous.

Cited In Schuerman v. Arizona, 184 IT. S. 351, 46 L. 584» 22 Sup.
Ct 409, to point that principal case contains copy of memorial to
Congress to paes curative legislation for Arizona bonds.

172 U. S. 425-434. Not cited.

1T2 U. S. 434-465, 4S L. 51^5, KECK v, UNITED STATES.

SyL 1 CXII, 1079). T ar I IT ^ Indictment — Particulars of offense.

Approved in Daiton v. United States, 127 l-'ed. 546, holding in-

<5ictment under Rev. Stat, t 5480, for using mails to defraud must

»ot only charge the devising of sctieme or artifice to defraud, to be

effected by using mails, but must by direct averment set out facts

*^06tltuting scheme or artifice so devised by defendant; One Pearl

Cbain V. Uniled States, 123 Fed. 3T3, holding information alleging

^^t Importation was made contrary to law without declaring

^aui^i fQY duty, hut faihng to allege viohition of any other regu-

*atlf>n than those prescrllted In statute, limited prosecution to proof

^^ ai. violation of such provisions; State v. Parkersburg Brewing

*^^-. 53 W. Va. 59G. 45 S. E. 025, holding insufficient indictment

^tn3c?r Code, chap. 32, § 10, which as specillcation of offense alleges

^^f ely that defendant '* In house and building lo said county,

*^owliigly and unlawfully permitted intoxicating liquors to be

*^^tl and vended contrary to law."

^^1. 4 <X11, 1070). Smuggling — Concealment on entering port
approved In American Sugar Refining Co. v. Bid well, 124 Fed,
^^* holding goods arriving at port of entry of United States from
*^^HlipiueB afler exchange of ratifications and president*s proc-

L*B>Uifition of treaty of Paris were not subject to duty though shipped
^^ior to that date.

I
I

^^^ 0. S. 4G5-473. Not cited.

i

172 U.^ S. 474-493 Notes on U. S. Reports.

172 U. S. 474. 475, 43 L. 520, CHAPPELL CHEMICAL, ETC.. CO.
V. SULPHUR MINES CO.

Syl. 1 (XII, 1080). Maryland ConstltnUon — Discrimination —
Jury trial.

Approved in Mason v. Missouri, 179 U. S. 335, 45 L. 220, 21 Sup.
Ct. 128, upholding Mo. registration law of 1895, applicable to only
one city in State.

172 U. S. 475-493, 43 L. 521, COLUMBIA WATER-POWBB CO.
V. COLUMBIA ELECTRIC, ETC., POWER CO.

Syl. 2 (XII, 1080). Review of State decisions under Rev. SUt,
i 709.

Approved in Kennard v. Nebraska, 186 U. S. 307, 308, 46 L. 1176,
1177, 22 Sup. Ct 881, holding Nebraska decision that Pawnee res-
ervation lands are public lands within enabling act of 1864 does
not raise Federal question; Eastern Bldg. & Loan Assn. ▼. Welling,
181 U. S. 49, 45 L. 741, 21 Sup. Ct 532, holding contentions that
State decree denies full faith and credit to public acts of another
State and that obligation of contract is impaired wUl not be con-
sidered on error to State court where not made until rehearing.

Syl. 3 (XII, 1080). Federal question involved but not specially
set up.

Approved in Swerlngen v. St Louis, 185 U. S. 46, 46 L. 790, 22^
Sup. Ct. 572, holding State decision that courses alleged and du
tauces set forth in government patent do not as matter of fae
bring eastern boundary to Mississippi raises no Federal qnestior^K- ^j
where validity of grant not questioned and no question made at t»,
authority of government to convey to water's edge; Yaaoo ft
V. R. R. Co. V. Adams, 180 U. S.. 14, 45 L. 404, 21 Sup. Ct 2«C .. -j^
liolding Federal question as to impairment of obligation of contra^- ^f
was sufficiently raised in State court though contract clause of Co ^-o-
stitution not discussed where case turned upon existence of
contract and no question was made that if there had been
tract it was impaired by State legislation.

Distinguished in Yazoo & M. V. R. R. Co. v. Adams, 180 U. S.

48, 45 L. 418. 21 Sup. Ct 258, denying jurisdiction on ground at
impairment of obligation of contract when only question invol^s^ e<l
in State court was construction of charter though it appears th^^re
were statutes subsequent thereto which might have been but w ^re
not relied upon as raising Federal question concerning the c^^^n-
strnction of the contract; Bolln v. Nebraslia, 176 U. S. 92, 44 L. S^SS.
20 Sup. Ct. 290. holding objection that defendant was denied «* »*
process of law in being refused jury trial upon plea in abateuk*'*''
cannot be raised in Supreme Court where no violation of Fo«^
teenth Amendment was set up until after decision of State Supre«»*
Court

067

Notes 00 U. S. Reports.

172 U. S. 403^15

rT2 U. S, 493-515, 43 L. 528, PITTSBURG, ETC., RY. v. LONG
ISLAXD LOiLN, ETC., CO.

Sy4. 1 (XII, lOmu Federal qyeatlon — Effect given Federal
rox*€€losure*

Approved In Werelin v. New Orleans, 177 U. S. 30G. 44 h, 82i>. 20
Snp. Ct. 6So, following rule; National Fonndry & Pipe Works v.
Ooonto Ctty W\ Supply Co., 183 U, 8. 234, 4G L. 1G9, 22 Sup. Ct
IIS^ boldlng Federul question la presented by contention that
<iii^ effect to Federal decree was denied by action of lower court
lix sustaining plea of res ad judicata predicated on decree of such
^o<ieral court, where determination as to validity of plea necessi-
t^ote» decision as to whether hy sustain lug sucli plea rights were
denied which were vested under anottier Federal decree; Avery
^* I*opper, 179 U. S. 313, 45 L. 2WS, 21 Sup. Ct. 97. holding in action
^y chattel mortgagee of certain cattle against purchaser of same
^t niarshal's execution sale question wljctlier chatieJ mortgage upon
l^ortion of such cattle which did not Identify particular animals
covered by it was good as against purchaser of entire lot at
*^a.rshal*s sale did not preseat Federal Question; Jamee v. Central
'^^Ust Oo„ m Fed, 494, holding where Judgment creditor of rail-
t^oucl whose cause of action arose after sale of Its road by Federal
<?ourt on foreclosure aud who is seeking by suit in State court to
^Iforce his judgment against road under State statute cfinnot be
^**Joined by Federal court from mniutaiuing Bult in State court, nor
^^u it be compelled by supplemeDtary proceodlugs instituted by
Purchaser to submit rights to adjudication by Federal court.

S^-L 2 (Xll, lOSOK State court giving, due effect to Federal

Approved in Deposit Bank v, Frankfort, 101 V. B. 515, 48 L. 2S3,
*"^ Sup. CL 159, holding Federal decree adjudging that Ky. statutes
**^ 1885 created Irrevocable tax exemption, which decree rests upon
*^^<;li}Ion of inferior State court, la conclusive notwithstanding re-
^^^>"aal by highest State court and repudiation by both State and
^^oral Supreme Courts of contract exemption; Hancock Nat. Bank
^- *^arnum, 17G U. S. 045, 44 L. «22, 20 Sup. Ct. 5tl8, holding Clr-
^^It Court judgment must be given same effect In other States that
^ '«* «-ntltled to in State where rendered; James v. Central Trust Co.,

^

I*^ed. 403, holding where Federal court has foreelosetl railroad

'^^ortirage and sold property. It may enjoin stockholder from main-
^ filing In State couit suit to place road in hands of receiver In
^^'e^gard of decree of Federal court.

t»istingulshed In Railroad v. Bentz, 108 Team 675, 69 8, W,

^^^* 91 Am. SL Hep. 7GG. holding where Fetleral Circuit Court

^* Appeals reverses Judgment In favor of plaintiff and remands

^^*e for new trial and plaintiff thereupon takes voluntai^y non-

*^U and brings new action, Federal decision Is not bar to sucli

172 U. S. 516-633 Notes on U. S. Reports. 868

172 U. S. 516-533, 43 L. 535, FITTS v. McGHEE.

Syl. 1 (XII, 1080). Federal restraint of State office.

Approved in Davis, etc., Farnum Mfg. Co. y. Los Angeles, 189
U. S. 217, 23 Sup. Ct 500, 47 L. 780, denying jurisdiction to re-
strain criminal proceedings under ordinance prohibiting erection
of gasworks within certain limits; Coulter y. Fargo, 127 Fed. 913,
holding where in suit to restrain collection of tax it was averred ^^^^
that part of sum was claimed by State and balance by counties,
bill not being maintainable in so far as it affect amount claimed
by State, amount in controversy is determinable by balance; Coulter *s-<^^ei
V. Weir, 127 Fed. 905, holding under Ky. statutes of 1903, where ^^^^-^^e
valuation of corporation's franchise has been made by State boanlC^-^uil
and auditor had given final notice thereof before suit was broughttf-.^:^-!!!
against him to restrain collection of tax biU not maintainable as Vam^ 10
part due State; Morenci Copper Co. y. Freer, 127 Fed. 203,
holding suit by corporation to restrain attorney-general from
stituting suit in name of State to forfeit corporation's charter U^ [,
smt against State; Union Trust Co. y. Steams, 119 Fed. 791, 79221^288,
795, holding suit against attorney-general to enjoin him from ic^^^ij}.
stituting criminal proceedings in name of State under State status
by which they are charged with no special duty is snit agaln&a
State; Arbuclile v. Blackburn, 113 Fed. 624, refusing to enjoin Obtw
food commissioner from prosecuting for violations of pure fo
law; dissenting opinion in South Dakota y. North Carolina,
U. S. 331, 24 Sup. Ct 282, 48 L. 466, majority upholding Sopn
Court's original jurisdiction over suit by one State as donee
holders of bonds of another State and secured by mortgage
stock belonging to latter to compel payment of bonds and subjo^Hsct
stock to debt

Distinguished in Illinois C. R. R. Co. v. Adams, 180 U. S. S9,
45 L. 414. 21 Sup. Ct. 255, holding defense that suit nomina. lij
against an individual by name, is really suit against State of wh S<ii
Federal court has no Jurisdiction cannot be made on motion to |^^
dismiss; Haverhill Gaslight Co. v. Barker, 109 Fed. 695, hold*^»«
suit by gas company against State gas commission and attorm^y*
general to enjoin threatened proceedings to enforce orders ^
commission is not suit against State; Western Union TeL Co. ^•
Myatt, 98 Fed. 356, 357. holding suit in Federal court by telegn».I>^
company against members of court of visitation of Kansas ^tJ>"
State solicitor to enjoin proceedings by defendants to enforce
compliance with rates established by statute and alleged t» ^
invalid imder Federal Constitution is not suit against State.

Syl. 2 (XII. lOSl). Federal restraint of State criminal pros«^*"
tion.

Approved in Prout v. Starr, 188 U. S. 543, 23 Sup. Ct 401, 4T ^
587. affirming Starr v. Chicago, etc., Ry. Co., 110 Fed. 8. hddW
where Feileral court in suit by stockholders enjoined railroi^'

I

I

Wl Notes on tJ. S. Oeporte, 172 V. S. 534-o5T

^rom putting In force State rates and also enjoined State officers
ttxim Instituting proceedings to enforce sucli statute, it may enjoin
salt by succeeding attornej-generftl In ruune of State to re-
cover peoniUes fron* railroad offlclala for failure to enforce rate
schedule: Pacific Wliallng Co. v. United States. 187 U, S. 452,
23 Sup. Ot 156, 47 L, 255, holding where applicant filed with
Alaska District Court a petition for license for vessels and can-
neries, under Alaska Crlm. CcNle* § 460, and also protest against
1>el£ig required to take out license to which petition and protest
District Court clerk is not made party, appeal does not lie to
Supreme Cocirt from order granting license and overruling pro-
-test; Gravenberg v. Laws* 100 Fed. 4, holding in action at law
■to recover fixed sum due uoder contract and seeking sequestra-
^tSon of defendant's property persons elaimlng labor liens against
fsueb property cannot Intervene Jointly where such intervention
Involves trial of numerous separate Issues of fact; State v. Wood^
X55 Mo. 450, 5G S. W. 478, refusing to restrain State beer Inspector
from enforcing beer inspection law of 1S99; State v. Chicago^ etc.,
^ R., 61 Nehr. 540, 85 N. W. 557, holding FederaJ Injunction can-
saot lawfully forbid attorney-genera! from suing for penaltie»
<rlaimed by State under maximum freight Jaw.

Distinguished in Palatka W. W. v. Palatka, 127 Fed, 164, hoid-
lug bill seeking to maintain original contract under which com-
plainant is furnishing water to city and cltlieeaa and to prevent
enforcement of lower rates fixed ordinance is not one to enjoin
criminal prosecution, though ordinance may be enforced by tines
aJid penalties,

%l 3 (XII, 1081), Federal habeas corpus to State prisoner.
Approved in Minnesota v. Brundage, ISO U, S. 502, 45 I^- C41. 21
Sop. ct 456, denying Federal habeas corpus, where applicant held
**> tastody for violatloii of Minn, dairy law of 18LU>, had not ex-
*»«n«ted all hla State remedies. See 87 Am. St Rep. 201. note.

172 U. S. 534-557, 43 K 543, WASHINGTON GAS-LIGHT CO, T,

LANSDEN,

Sj-L 1 (XII, 1081). Corporation's liability for agent's torts,

approved In Hindmau v. First National Bank, 112 Fed. mO,

^^^ m Fed. 507, both holdieg where bank. In order to sell its

'^'^natoral, through its directors causes ciii^hier to make false state-

^^^t to insurance commissioner concern iiig dei>osits of Insurance

^'^'Upaiiy. for purpose of deieivlng him and securing license and

^^ conspires with company to make same public, Is liable for

***c«lt to one purchasing stock on strength of statement; Warner

^" MIbsouH Pac. Ry. Co.. 112 Fed. 117, 118, holding essential aver-

^^ut of malice in declaration for libel should connect corporation

'Ulj express malice of Its agent by substantive averment that It

ItttQiized writing and Its publication or that It had ratified snch

172 U. S. 557-567 Notes on U. S. Reports. 0^^

acts; Sun Life Assur. Co. v. Bailey, 101 Va. 446, 44 S. E.
holding corporation Is responsible for publication of libel or oc^
insulting words, under statute, by its agent acting within scop*^:*^^^'^
of his employment and In course of business of corporation. Se^'^^^
88 Am. St Rep. 794, note.

Syl. 2 (XII, 1081). Question for court — Agent's authority to act-i^r^.«

Approved In Marande v. Texas & Pac. R. R. Co., 184 TJ. S. 188.>*^J
189, 190, 46 L. 494, 495, 22 Sup. Ct 345, 346, holding quesUomol.
whether cotton was set on fire by sparks from locomotive U formo"^
Jury where cotton was stored in open sheds along tracks, where^-:^'^
only locomotive near cotton on day of fire did not go near 8hedE>^^«
and was not shown to have thrown any sparks, and if it dldEi^X f j
wind would have blown them the other way.

Syl. 5 (XII, 1081). Punitive damages against joint defendants.

Approved in Cunningham v. Underwood, 116 Fed. 806, holding .
in action against two persons for libel instruction that if both ar
found guilty verdict should be against both jointly for such amount
as would compensate plaintiff for entire injury, but if one wa.
found to have been actuated by malice while other was not jar
might also assess against that defendant such sum as it saw fi-
not exceeding in all amount sued for, is error.

Syl. 7 (XII, 1081). Appeal — Reversal as to all parties.

Distinguished in Strand v. Griffith, 109 Fed. 600, holding wbe
it appears that on trial evidence was introduced as to transactloi
between plaintiff and a defendant against whom the evidence
insuiilcient to sustain the verdict, which evidence would not ba
been competent against his codefendants, but which may Iul ^^«
enhanced damages awarded, new trial will be awarded as to ^maLil
defendants.

172 U. S. 557-5G7, 43 L. 552, ORIENT INS. CO. v. DAGG8.

Syl. 1 (XII, 1081). Corporation not citizen — Fourteenth Ameazmd-
ment.

Approved in Farmers', etc., Ins. Co. v. Dobney, 189 U. S. 304,. 23
Sup. Ct 5G0, 47 L. S2G, upholding Nebr. Comp. Stat., chap. 43. II -^3,
45, permitting recovery of attorney's fees where judgment rende^i"^
for total loss upon policy against loss by fire, tornado or lightniiag*
Waters-Pierce Oil Co. v. Texas, 177 U. S. 45, 4G, 45 L. 6G4. 20 SuP-
Ct. 525, upliolding Tex. act of March 30, 1890. prohibiting (oT^ifO
corporations which violated provisions of that act from doing ^V
l)Usinoss within state; Republic Iron & Steel Co. v. State, 160 1^
38^, GG N. E. 1007, holding void Acts 1899, p. 193. providing f^
wcelily payment of wajres and imposing penalty for viola ti^W
thereof: Ilawley v. Iliinl. etc., L. Co., 72 Vt. 124, 47 Atl. 402. holdW
Vt. Stat., § 130G, exemptinj; from attachment by trustee procew
negotiable paper transferred before due to bank within, does ^^
discriminate against banl;s without State.

mi

Notes on U. S. Reports. 172 U. S. 55T-567

SyL 2 IXII, lOSl), Making insurer pay policy for total loss.

Approved in Fidelity Mut, Life Assn. v. Mettler, 185 U. S, 326,

46 L. 933, 22 Sup, Ct 6G9, upholding Tex. Rev. Stat. 1895, i 3071,

wliich directs that life and health insurance eompfinlefi, who sball

default in payment of their policies, shall pay 12 per cent.

damages, together with reasonahle attorney's fees; John Hancock

Mut. L. Ins. Co. V, Warren, ISI U. S. 76. 45 L. 758, 21 Sup. Ct 536,

upholding Ohio Rev. Stat, g 3G25, provldhig that no answer to

interrogatory In application for life policy shall bar reeoveiy on

policy, or be used in evidence in action to recover or, policy, unlei^®

answer shown to be willfully false, that it is material anrl Induceil

company to Issue policy; Callahan v. St. Louis, etc., Ry., 170 Mo.

492, 494, 71 S. W. 214, 94 Am, St. Rep, 759, 700, holding under Rev.

Stflt. 1S99, I 2873, member of raiiroac! section gang who la set to

''^arn passers-by of danger Incident to work of other members of

Bang is fellow servant of memberB of gan^; Condon v. Maloney, 1G8

Tenn. 91. 97, 65 S. W. 873, 874, upholding Knox county road law of

XtKH; State v. Cook, 107 Tenn. 511. 04 B, W- 723. upholding Acta

J ^7, cliap. 77. punishing taking of notes for patent rlglits without

stating that fact on face of note; dissenting opinion in Missouri.

^tc„ R. R. Co. V, Simonson. 04 Kan. 815, 817, 91 Am. St. Rep. 254,

<5S Pac. 657, majority holding void Laws 1803, chap. 100, making

«pe<?lflcatJofi of weights In bills of lading issued by railroads for

^'^y^. etc., sl^ipped over their lines, conclusive evidence of correct-

**ess of such weights. See 91 Am. St Rep. 254, note.

55.VI. 3 {XII, 1081). State regulation of corporations.

Approved in Dayton C-oal & Iron Co. v. Barton, 18\' U. S. 24, 40

^^- C4. 22 Sup. Ct. 5, and Kuoxvlile Iron Co. v. Harbison, 183 U. S.

-2* 40 L. 01, 22 Snp. Ct. 4, hotb upholding Tenn. Stat. 1899, chap.

XI,

p. 17, requiring redemption in cash of store orders or other evi-

«^iice of Indebtedness Issued by employers in paj^ment of wages due

^^n*loyees; New York Life Insurance Co. v. Cravens, 178 U. S. 390,

^'v>0. .§01, 44 L. 1122, 1123, 1124, 20 Sup. Ct. 905, 966, holding exerap-

^^t% Qf i]f(» policies Issued by foreign Insurance companies, which

*'^*DiTlate tfint they shall be governed by laws of another State

*^^i operation of MissKJurl. § 59S3, making poiicle.*! nonforfeitable

^^ default tn pa^^meut of premiums, cannot be claimed on ground

^^t It Interferes with contractual liberty of corporation; Petit v.

^^^nnesota, 177 U. S. 103, 44 L. 110, 20 Sup. Ct. 0^8, upholding

^^**in. Gen. Stat. 1894, § 0513, prohibiting Sunday lal>or, excepting

^'*^rU8 of necessity or charity* and providing that keeping open

***tber sbop shall not be deemed work of necessity or clinrity;

Clurk V. Kansas City, 170 U. S. 119, 44 L. 397, 20 Sup. Ct. 2S0.

"**^<^hng provision of Kan. Laws 18!U. cijap. 74, S It anthorlzing cer-

^*tu first-class cities to annex conthigent territory by ordinan<*M

ttTid excepting therefrom agricultural lands not owned by rail-

or other corporatiooa is valid, when exercised by city to

172 U. S. 55t-667 Notes on U. S. Reports. OTiT^^^ W

take In lands belonging to railroad and used for railroad pur-rzc^cxp
poses; Union Gent. Life Ins. Go. v. Skipper, 115 Fed. 72, holding^ ex 1 £il
provision In life policy that no suit can be brought thereon aftcrrv^^^'^^f
one year from death of insured cannot be extended to apply too:» ^<y
action on bond, which State required company to give to secure^^nr «:j"a?i
payment of claims under its policies as condition to its doing^s ex 1 <3>i
business In State; McGlain v. Provident Sav. Life Ateur. Soc., IIOOX X l
Fed. 92, holding Pennsylvania decisions construing Pa. P. Ij&vf^^^^^r Mx>a\
1885, p. 134, providing that no misrepresentation in appUcatioDCVoft^tio
for life policy made in good faJth shall effect forfeiture or b^^M * b
ground of defense to suit on policy unless it is material, as ap— czjCK ap
plying to contracts made in State by foreign company notwitb- m:S :S' ft 'ith
standing provision in policy that it is governed by laws of com- «iM:x^3)n)-
pany's domicile, are binding on Federal court; Fidelity & Casualtjc ^ ^ -^Ity
Co. V. Freeman, 109 Fed. 856. upholding Acte Tenn. 1895, chap. IGOOi^ -MOO,
§ 22, providing that no representation or warranty made in ne--^ ^* ne-
gotiation of application or policy for insurance shall be deeme<£>'^ ^^^
material or affect validity of policy, unless made with intent tcvu^ to
deceive or unless matter misrepresented, increases risk; Corles*^'"'®^
v. Travelers' Protective Assn., 105 Fed. 858, holding Ky. StaU:*'-«X'at,
§ 679, providing that unless life policy containing reference to.^ to
application, corporate constitution or by-laws shall have attachec>-^ eaed
copy of them, they shall be inadmissible in evidence, appliet-^^ M iiet
where foreign accident company was composed of divisions nnm^^MMUd
local posts, and posts received applications which were for^^^o^
warded to divisions subject to approval by general office; WowTb rn'mth
son V. State, 69 Ark. 529, 65 S. W. 468, holding foreign niipi ■ < WXi
rations en^a^ed in business of mining coal in this State are snt^^^^^Db-
ject to provisions of act of April 10, 1899, requiring coal coDCV^m-
panics to Iveop scales to weigh coal mined; Cowilth v. Nutting, 17K" -M7S
Mass. 15G, 78 Am. St. Rep. 485, 55 N. E. 896, holding legislatur «uir»
has power to prohibit agents of foreign insurance companies aac^c ad
brokers from soliciting or acting in regard to foreign insurani^ -^ce
in this State; Pietri v. Seguenot, 96 Mo. App. 266, 60 S. W. 10E^fe^7,
holding policy declaring that it should be construed according ' to

laws of State of New York, but delivered in Missouri where i-^KIn-
sured at time was resident, was governed by laws of Missooc^ — rt;
Insurance Co. v. Craig, 106 Tenn. 630, aS2, 62 S. W. 157, refuii^e=iV
to enjoin insurance commissioner from revoking license of forei;^ iff"
insurance company that undertakes to repudiate its contract; 8t^»"te
V. Sclilltz Rrow. Co., 104 Tenn. 732, 737, 748, 753, 78 Am. St B^^A
940, 052, OnS, 061, 59 S. W. 1030, 1037, 1040, 1041, upholding ai^ ^
trust act of 1897.

(XII. 1081). Miscellaneous.

Cited in Parks v. State, 159 Ind. 220. 64 N. E. 866, upholding
Burn's Rev. Stat 1901, §§ 7318-73231, regulating practice of mediclfld
through it exempts physicians legally qualified to practice in Statrt

Notes on U. S. Reports.

1T2 U. S. 507-622

rbere they reside when (n coDsultation wltb legal practitioner jn
IliB State.

n U. S. 567-^76. Not Cited,

!2 U. S. 576^89. 43 L. 559, UNITED STATES T. DUELL,
SyL 1 (XII» 10S2). Review of decisiona of patent commissioner.
Approved in Chow Loy v, Unlteti States, 112 Fed. 359. holding
ght of appeal given by Chinese exclusion act of 1888, § 3 3^ pro*
Idlng that any Cbiuese convicted before commlSBtoner may*
Ithin ten daya, appeal to Judge of District Court for district, is to
Idge as special tribunal and not to District Court.

te U. S. 589-602, 43 L. 564. NORTHERN PACIFIC RY, v. MYERS.
Syl. 1 (XII, 1082). State tax on railroad land before patent
Approved Railway v. Kelly, etc., Co., 52 La. Ann. 1750, 1751, 23
n, 216, holding where lands granted to railroad within Indemnity
niits are required by law to he selected by grantee '* under di-
N?ttoD of secretary of interior, and selection has been made ac-
irding to law, they may be sold for taxes without being patented.

r2 U. S. 602-622. 43 L. 569, CONNECTICUT MUT. LIFE INS. CO.
T, SPRATLEY.

Syl. 1 (XII, 1082). Authority of corjioratlon's agent to receive
r'ocess.

Approved in Doe v, Springfield Boiler & ^tfg. Co., 104 Fed. 688,
elding where broker at own solicitation was furnished with prices
f Illinois corporation and occasionally made sale of articles to be
^vered on board cars at factory, adding to price given him
»tnmisslon for himself, lie was not corporation's agent, within
U. Code Civ, Proc, ft 411, so that service of admiralty monition
Cfculd give jiirlsdlctioij over corporation; Arkansas, etc., Co. v.
lillins, 69 Ark. 431, 04 S. W. 225, holding return of writ directed
r^lnst corporation reciting delivery of copy to one named therein
I Its agent la InsufflcieDt; Lesser Cotton Co. v. Yates, 69 Ark-
O, 63 S. W, 999, holding under Sand, & H. Dig., | 5672, proceia
f^lnst foreign corporation may be served upon agent of cor-
^I'ation residing In county of venue where such agent was In
*itrol of corporation's husiness in connty, though corporation had
*«ignated an agent residing elsewhere in State upon whom pervice
Jght be served; Eel River R. Co. v. State, 155 Ind, 449, 57 N. E.
''^, holding where domestic railroad had no agent lo State except
t^m appointed to receive and accept service of process, service
' county other than one In which suit was brought was suffl-
^nti Carroll v. New York, etc., R. R. Co., 65 N. J. L. 126, 46 Atl.
'^ holding service on engineer on defendaof s steamboat used in
Unsporting oars between Jersey City and Harlem river, In action
Vol. Ill — 63

172 U. S. 602-622 Notes on U. S. Reports. 091 ^

for injuries sustained on train running between New York and

New Haven, is not good service on defendant. See notes, 94 Am. ^.m^

St. Rep. 538; 85 Am. St. Rep. 928.

Syl. 2 (XII, 1082). Service of process on insurance adjuster.

Approved in Strain v. Chicago Portrait Co.. 126 Fed. 832. 834, ^ M-^Z^,
holding, under Missouri statute, in action for malicious prosecution .fl=r «:> ion
against nonresident corporation having no office or agency in«^^ \]
State, service of process cannot be made on solicitor working oih:s<:> o\
commission; Meyer v. Pennsylvania, etc., Ins. Co., 108 Fed. liC^O'S" .70
holding, under N. Y. Code Civ. Proc, § 423. where foreign cor--»<»2?or
poration Is doing business in State, service on director vrltbiirM K M:Mhli
State, having permanent residence in State, is valid; Abbeville f f fijje
Electric, etc., Co. v. Western Electrical Supply Co., 61 8. C. 381 XT ^^^81,
30 S. E. 566, holding personal service within State of summons mm ^dous
and complaint on cause of action arising In State, on traveling «jr An^
salesman of foreign corporation not having resident agent in States :^ .mte.
who visits State In relation to transaction out of which suit arosc^ssose,
is good service on corporation. See 85 Am. St Rep. 910, note.

Syl. 3 (XII, 1082). Changing law requiring appointment om^ of
process agent

Approved in London, Paris, etc.. Bank v. Aronstein, 117 Fec^-^^'ed.
(X)8. holding British corporation transacting business in CalifomK .^^nia
and there maintaining office in charge of managers who wei^-^^^ere
empowered to transfer stock and issue certificates, and whlc^ M. Ich
there sold and issued stock to Calif ornian, was governed by Caff j^Bmll-
iornia laws as to transfer of such shares; Milwaukee Trust U^ J^o.
Uev. V. Germania Ins. Co.. 106 La. 673. 31 So. 299, holding SU ^m it^
may enact that those who represent insurance companies with -iKz^ftla
her limits shall be considered agents upon whom service of proce^u^ew
may be made.

Syl. 4 (XII, 1082). Corporation — When ceases to do business. -^

Approved In Mutual Reserve, etc., Assn. v. Phelps. 190 U. &

157, 23 Sup. Ct 709, 47 L. 994, holding cancellation by lnsuraiK=ice
commissioner of insurance company's license to do business dr ->«
not render service of process on commissioner for It as provi(^^S«f
by State statute, Insufficient; Diamond Glue Co. v. U. S. G '^w
Co.. 187 U. S. 613, 23 Sup. Ct 207, 47 L. 332. holding obllgat^ii^oo
of contract calling for transaction of business within State bj
foreign corporation not impaired by Wis. Stat 1898, making v^^M
contract of such foreign corporation which had not filed c^^PX
of charter with secretary of State; Central Grain & S. Exch* »"•
Board of Trade, 125 Fed. 467, holding return to process l8»»J«^
for foreign corporation as defendant in Federal court shox^iog
service on officer of corporation is insufficient where it does not
appear that corporation was doing business in State; Frawley ^'

9q<s

Notes on U, S. Reports, 172 XT. S. 622-635

^^ansylvanla: Casualty Co.» 124 Fei3. 263* 265, holding collection
^S' Pennsylvania insurance company of stngle renewal premium

t^^Mxngh casbler of bank In Wisconsin, for accommodation of In-
^^ed, does not make cashier company's agent for service of process;
^ew River Mineral Co. v. Seeley. 120 Fed. 2(K), holding, under
^^L Code, § 1105, service on bookkeeper of foreign corporation
"^^'lio had no authority to represent corporation does not confer
Jurisdiction on Federal court in Virginia; Collier v. Mutual Re-
^^*nre Fund Ltfe Assn.* 119 Fed. 619, holding, under Sand. & H.
^XHig. Ark., i 4137, foreign insurance company could not after
curing policies cancel appointment of agent under statute so
to deprive policy-liolders of right to sue it therein; McCord
X^ umber Co. ▼. Doyle, t*? Fed. 23, 24, holding fact that foreign
crorporation which liad maintained office in Minnesota, and there
c^<Dnt^flcted liability before suit brought In State court to enforce

t^ijcb liability had withdrawn its local oflBce, does not exempt it
irora being subjected to personal judguient In such suit on ser-
^'i-ce made on president within State imder Minn. Gen. Stat 1894,
5200; Manofacturiug Co. v. Troell, 30 Tex. Civ. 203, 10 S. W.
upholding service upon local agent of foreign corporation
l^>ing business in State. See 85 Am. St, Rep. 918, note.

Distinguished in Louden Mach. Co, v, American, etc., Iron Co.,
LS7 Fed, 1O09, holding service of process on president of foreign
»rj>oration traveling through State is insufficient where corpora-
'tion had no property or agency in such State and president merely
»topped to settle matter in contiroversy; State v. Insurance Co.,
XOtS Tenn. 280, 292, 204, 61 S, W. 76, 77, holding where foreign
^i^surance company had done business In State and then ceased
^<» solicit or take new policies and recalled resident agents, but
*«^^f>t old poHciea alive and collected renewal premiums by mall,
*t "ivaa not liable to privilege tax on gross receipts.

< 2 D. S. 622-630, 43 L. 576, HOENINGHAUS T, UNITED STATES.
1 (XII, 1082). Tariff— Woven silk aad cotton fabrics In

approved in Hoenlnghaua v. United States, 107 Fed. lOOS, fol-
lowing rule; United States r. Nuckolls, 118 Fed. 1007, holding,
Utiaer tariff act 1897, § 32, additional duty la collectible when
^^^«tion whether goods are lo pay specific or ad valorem duty
^l^penda on whether they exceed certain value and appraisement
«ho^tt undervaluation.

^*2 U. s, (i3tMi35, 43 L. 570, MARSHALL v, BURTIS.

%L 1 (XII, 1083). Presamption that evidence sustains Judg-
^«at

^i^proved in Thompson v. Ferry, 180 U. S. 484, 45 U 633* 2]
*^» Ct 453. reatfirming rul^

I'i2 U. S. 636-653 Notes on U. S. Reports. 90

172 U. S. 636-^40. Not cited.

172 U. S. 641, 43 L. 1181, CLIFFORD v. HBLLBR.

(XII, 1083). Miscellaneous.

Cited in Clifford v. Reumpler, 177 U. S. 683, 44 L. 945, 20 Sop
Ot. 1028, affirmed on authority of principal case.

172 U. S. 644, 43 L. 1182, HARMON v. NATIONAL PARK BANE

(XU, 1083). Miscellaneous.

Cited In Rankin v. Fidelity Trust Co., 189 U. 8. 249, 23 Sup. Ct 556
47 L. 795, holding memorandum made by assignee of pledgor a
national bank stock made without knowledge of pledgee, to effee
that such stock had been converted by latter and did not sell fo;
enough to pay pledge debt, is inadmissible on issue as to ownershl]
of shares to establish stockholder's liability.

172 U. S. 044, 645, 173 L. 783, BLYTHB CO. v. BLYTHB.

(XII. 1083). Miscellaneous.

Cited in Blythe Co. v. Hinckley, 111 Fed. 837. reciting histon
of litigation; dissenting opinion in Giles v. Harris, 189 U. 8. 401

23 Sup. Ct. 647, 47 L. 913, majority denying Circuit Court's juris
diction over equity suit brought by Alabama nego to compa
board of registrars to enroll name on voting lists in county whea
he resides, under Constitution, alleged to contravene Federal Co'.
stitution; Louisville Trust Co. v. Knott, 191 U. & 235» 48 L. 16

24 Sup. Ct 123, arguendo.

172 U. S. 653, ORDERS IN BANKRUPTCY.

Cited in Metcalf v. Barker, 187 U. S. 176, 23 Sup. Ct 72, 47
127; Mueller v. Nugent, 184 U. S. 8, 9. 46 L. 409. 22 Sup. Ct IB
273; White v. Schloerb, 178 U. S. 546. 547, 44 L. 1186, 1187. 20 S^
Ct. 1008; In re Homsteln, 122 Fed. 270, and In re Baker, 104 Sm
288.

CLXXIII UNITED STATES.

I
I

^TS V, S. 1-17. 43 L, 591, PIERCE v. TENNESSEE COAL, E1X3„
CO.

Servant electing to consider discharge final breach may sue Im-
^Kxic*<l lately for entire damagea, p. 16,

^Approved in Tennessee, etc., tt. B. Co. v. Pierce, 99 Fed, 1006»

it-oaffirming rule; Roehm v. Uorst, 178 U. S. 15, 44 L. 950. 20 Sup. Ct

TSO, holding positive statement by party that he considered contract

laiill entitled other party to brln?: action at once 1 hough perform*

a^xnoe not yet due: Nortbrop v. Mercantile Trust & Deposit Co., 119

^"*e<i, 973, holding: breach of Instalment eoatract to pay money where

♦l^lTendant repudiates same entitles plaintiff to sne tor entire dam-

si-g-os; In re Stern, 116 Fed, 007, holding claim for breach of con-

*T*^.ot to furnish ice for several years constituted provable claims

tintier bankruptcy act ISOS; Marx v. Miller, 134 Ala. 352, 32 So.

"^Qtt, holding servant suing for breach of contract by defendant

rie^d not aver willingness to perform: Lee v. Dow% 71 N, H. 328, 51

-^tl. IDTS, holding under Bill of It I srljts, art. 20, awarding jury, where

^lOO Involved, servant to whom ;j^55 fs owing, six months at $50

"to serve, entitled to jury; Ulioudef^ v. Chesapeake & O. Ry. Co,, 49

^^^- Va. 5CX», 30 S. E. 212, 215, holding w^here railway broke con-

tjr^it^f with injured emplo3*ee to employ him, latter may sue at once

Q^&d recover value of contract when broken. See 04 Am. St, Rep.

««2«, note,

_t>ist;n^uisljed in Dunbar v. Duuinir. 100 U. S. 340, 23 Sup. Ct 750,

■ I-». 1000, holdinjf discharge in bankruptcy does not bar divorced

^'*^*>*8 claim for annuity during life or until remarriage, such not

Jj«*i jj^ provable; Barney v. Indiana R, R., 157 Ind, 2H2, Gl N. E. 105,

'/^^•iing no breach of cH)iuract for building of road within certain

Ujij^^ with no provision for continuance, shown by complaint alleg-

^^ cll^'ontlnuance of road after four years.

^ **"•"* U. S, 17-25, 43 L. 507, TOWSON v. MOOIUC,

^-»lft of disproportionate sb^re to child with whom parent lives
**«5^1y gmitinized but pre^uiiied valid, p. 24,

^fiproved in Meyer v. Jacobs, 12;^ Fed. 012. holding fact that

^^''Krliter to whom mother left her property to exclusion of another,

"'tidfd ui other In illness unci pt^ssessed influence over her. not

i'V

173 U. S. 26-69

Notes on U. S. Reports.

OdS

Equity and admiralty reverse successive decisions on questions o
fact for clear error only, p. 24.

Approved In Raub v. Carpenter, 187 U. S. 163, 23 Sup. Ct. 73, 4*
L. 121, applying rule State trial court's refusal to vacate decree fo
juror's Incompetency where refusal affirmed and where no othe<
verdict possible; Smith v. Burnett, 173 U. S. 436, 43 L. 459, 19 Suiiz^
Ot 445, affirming holding of Court of Appeals of District of Colunrxx
bia and trial court as to negligence of appellant wharfinger foc^l
injury to vessel from sunlten rock; The Providence, 98 Fed. 13^^^
applying rule refusing to reverse successive decisions of two courtr-x
on question of fact unless clearly erroneous, to finding of coukk^
missioner in admiralty, fixing damages.

Distinguished in The Columbian, 100 Fed. 996, holding rale iwM
applicable to appeal from District to Circuit Court where theK^»
was no finding by master or commissioner as to collision.

173 U. S. 26-32, 43 L. 601. LOMAX v. PICKERING.

Recording deed of Indian without president's approval operat>^j
as notice to subsequent purchasers, p. 29.

Approved in Lyltins v. McGrath, 184 U. S. 171, 46 L. 486, 487, r
Sup. Ct. 451, 452, holding secretary of interior may give com
for alienation by Indian patentee after patentee's death, which
sent relates to time of conveyance.

Approval of president is necessary to valid conveyance by Indi
of lands held under treaty of Prairie du Chlen, pp. 2H-36.

Approved in Jones v. Mcehan, 175 U. S. 21, 44 L. 58, 20 Sup.
9, holding lands set apart by treaty of 1863 with Chippewas
chief, without restriction, gives him alienable title in fee.

173 U. S. 32-37, 43 L. 603. WILSON v. EUREKA CITY.

Ordinance prohibiting on penalty unpermitted moving houses
obstruct public streets is valid, p. 37.

Approved in State v. Broadbelt, 89 Md. 578, 73 Am. St Rep.
43 Atl. 773, upholding Maryland act 1898, chap. 306, || 19,
requiring registration of all dairymen and individuals furnish!
milk to cities, and inspection of premises; Love v. Judge of
corder's Court, 128 Mich. 552. 87 N. W. 788. upholding Del
ordinance forbidding malving of address in public place with:
half-mile circle of city hall without permission.

173 U. S. 3S-59, 43 L. GOG, McINTIRE v. PRYOR.

Defense of laclics lost by plaintiff's gross fraud where d(
injures no innocent party, p. 59.

Approved in Saxlehner v. Eisner & Mendelson Co., 179 U. S.
45 L. 7G, 21 Sup. Ct. 14, holding right of action for fraudulent
of trade labels in this countiy not lost by many years delay
owner was seelLing to establish rights in home country; Bart^^'

«f<
*th<
r^Su]

^ ' fo
-t l3o

o-^^oiij.

-s In-
^*ei^

Ue$

to

ggg

Notes on U. S, Reports.

173 U. S. 00-83

V. Beckett, 122 Fed, 146, holding heirs of incompetent de€e<lent may
*ede<^iii land wortJi $30,000 and pureliased for $2,000* hy payitigr what
equitably doe; Alger v. Keith, 105 Fed, 120, hoifiing- right to re-
scind contract for coal lands for fraud not lost by fire years* delay
►There plalntlfT received notice of bribery of agent no sooner.

Distinguished fn French Republic v. Saratoga Vlcby Co., 191
0, S. 439, 24 Sup. CL 148, refusing to enforce exclusive right to use
)f generic term '* Vlcby " where defendant applied it to efferveseing
Saratoga water entirely dissimilar to original "* vicliy " water;
Bangor, etc., Ry. v. Slate Co., 203 Pa, St. 12, 52 Atl. 42, holding
cnowledge of corporation president derived from unauthorized
execution of agreement not imputable to corporation.

ITS U, S* 60-65, 43 L. 614, CALHOUN v. VIOLET.

Act 1889 gave discharged soldiers same rights as others to acquire
tiDmestead in territory, p. 64.

Approved in Blaek v. Jackson, 177 U. S. 36fi, 44 L, 807» 20 Sup*
CL 054, holding Oklahoma court cannot grant mandatory injunc-
tion to determine right to possession to land, being adecjuate remedy
at law.

Distinguished in Potter v. Hall, 189 U. S. 296, 23 Sup. Ct M7. 47
U 819, holding department's conclusion that entryman received no
cl vantage in race for land because of prior entry questions of
lUmate fact and unreviewable.

rs U. S. 65^77, 43 L. 616. DUNLAP v. UNITED STATES.

Act 1894 conditions rebate of alcohol tax upon use under regu-
tJons to be prescribed, p. 76.

Approved in American Aristotype Co. v. United States, 184 U. S.
>*3*, 46 L. 764, 22 Sup. Ct. 941. reatiirming rule,

XlJebates in Congress are not appropriate sources of informatloo
I" meaning of statutes, p. 75.

-Approved in Maxwell v. Dow, 176 U. S, 602, 44 L. 605^ 20 Sup.
^ 456, upholding Utah Jury of eight, since Fourteenth Amendment
i^ not extend first ten amendments to States notwithstanding
a^tements of senators tn debate.

3 U, 8. 77*-79, Not cited.

3 U. S. 79-83, 43 L. 621, COLLIER T, UNITED STATES.
dJourt will not dismiss for want of evidence where record dte-
-*ses finding based on facts, p. 82.

-A^pproved in Sallng v. Bolanden 125 Fed. 704. holding in absence
l^roof In bill of exceptions that it contains all evidence, evidence
"^«nmed to sustain ruUng that execution of assignment of policy
athoriaed.

173 U. S. 84-115 Notes on U. S. Reports.

173 U. S. 84-99, 43 L. 623. CENTRAL LOAN & TRUST CO. T
CAMPBELL.

Statute authorizing attacbment against nonreeAdent defendanf^ '*'=
property not repugnant to Fourteenth Amendment, p. 98.

Approved in State v. Broadbelt, 89 Md. 580, 73 Am. St Rep.
43 AtL 773, upholding Maryland act 1898, chap. 306, H 19,
regulating sanitary condition of premises where cows are kept bs
those furnishing milk to ** cities, towns, or villages."

173 U. S. 99-112. 43 L. 628, SIOUX CITY, ETC., WAREHOUSE CC
V. TRUST CO. OF N. A.

Iowa decisions that corporation's excess indebtedness voidable b^ *
State only bind Federal court, p. 112.

Approved in Hartford Ins. Co. v. Chicago, etc., Ry., 176 U.
108, 44 L. 92, 20 Sup. Ct 37, holding binding on Federal con
within State, State decision sustaining contract exempting ral]roa» -
for negligence in firing warehouse in right of way; Louisville, etc. -^i-
R. R. Co. V. Lansford, 102 Fed. 66, following Alabama holdinis
allowing exemplary damages for wrongful death in action pnd<*^ .
Code 1896, § 27; Schofield v. Goodrich Bros. Banking Co., 98
273, following Nebraska construction, that Nebr. Stat 1891, p. 13Sf ^^2.
requiring banks to report par value of stock or bond indebtedness -^^bl^i.
no authority to purchase stock as investment.

' Distinguished in Pickens Tp. v. Post, 99 Fed. 662, refUBlng i^f^ *Ko
follow State decision declaring invalidity of statute authorixlo
bond issue where prior rights of bona fide holders are conceme

173 U. S. 113-115, 43 L. 633, BAUSMAN v. DIXON.

Federal appointment does not entitle receiver to removal ^J

review, p. 114.

Approved in Gableman v. Peoria, etc., R. R. Co., 179 U. S. 340. -*^

L. 223, 21 Sup. Ct. 173, reaffirming rule; Pope v. Louisville, Ni *^

Albany, etc., Ry., 173 U. S. 579, 43 L. 817, 19 Sup. Ct. 502, hoWL ra;:
mere order of Federal court appointing receiver gives latter "^^^

riffht to invoke Federal Jurisdiction; Marrs v. Felton, 102 Fed. T ^X-S
770. holding receiver appointed by Federal court and prope -n^rly
joined in tort action for neglipenco cannot remove without dive -^'-*^
citizenship; Gableman v. Peoria, etc., Ry. Co., 101 Fed. 7, hold "3^*^ '^
action in State court for negligence In operation of road not ^"^

movable by receiver because of Federal appointment

Distinjruisbed in Baggs v. Martin, 179 U. S. 208. 45 L. 156. ^^
Sup. Ct. 110. holding removal by receiver of suit Into Federal co«^^^-
nppointinj? him, constitutes waiver of right to trial in State coiJ^'''*
Tomplvlns v. MacLeod, 9G Fed. 928, 929, holding action agai ^'^^
rt^'oiver. appointed by Federal court, removable under removal «.^^
regardless of citizenship; Gilbert v. McNulta, 06 Fed. 84, hold f ^^
receiver of national bank may be sued in Federal court In relati^*"

Ol

Notes on U. S, Keports, 173 D. S. 116-130

coo tract made by him concerning estate In course of ad minis-
itlon; State t. Frost, 113 Wis, C47, 89 N* W, 920, holding in-
rmatlon in equity to restrain Federal receiver from destroying
ilroad arises under laws of United States.

3 U. fcs. 116-123, Not cited.

3 U. S, 12^-130, 43 L. 637, HENRIETTA mNING & MILLING
CO. V. GARDNER.

Later act repeals earlier to extent of repugnancy, p. 12S.
Approved in Saunders v. United States, 114 Fed. 43, holding 26
at- 363, chap. 814, to reorgani;5e Puget Sound customs collection
jtrlct, fixing collector's salary ut $3,500. repeals Rev. Stat, § 2670,
owing collector fees. See 88 Am. St. Rep. 279, note.
Language taken from Code presumahly taken with meaning It
ere had, p. 130.

Approved in James v. Appel, 192 U. S. 135, 24 Sup. Ct 223» up-
IdlDg Ariz. Rev. Stat 18S7, par. 837, discharging motion for new
al by operation of law if not acted on in same term.
Miscellaneous. Cited in Arkansas Const Co. v. Mulllns, 69 Ark,
1, U4 S. W. 225, holding fnsufticieut return of writ against corpoia-
iO reciting delivery to its agent without showing his authority to
^eive service.

5 U, S, 131-lTO, 43 L. 640, MERRILL v, NATIONAL BANK.
Decree of Circuit Court of Appeals remanding with specific direc-
ns is final, p. 134.

(Approved in Beasley v. Texas, etc.. Ry. Co., 191 U. S. 494, 24
^. Ct. 1C5, holdluj? decree of Circuit Court of Appeals reversing
crree dismissing hill for specific performance without prejiulictt
final and reviewable.

Secured creditor may retain collateral and receive full dividends
tJl debt paid in full, pp. 14fj, 147.

Approved in Aldrioh v. Chemical Nat. Bank. 176 U. S. ms. 44
©19, 20 Sup. Ct. 5(Hi, holding collections from collaterals made
bank creditor after declared iusolvencj need not be deducted
•t» amount on which dividends are payable; In re Sweetser, 128
d. 1(J«. holdiag creditor of bankrupt taking new promise on old
^t after bankruptcy may prove against estate and pursue new
Utilise till full satlsfaetion; In re Cry.«tal Spring^Bottiing Co., 90
^, 94B, holding il/ibility of corporation for dividends paid not
*vent trustees from calling on Buliscrihers for unpaid siihscnp'
n^; Gilbert v. McNulta. fiG Fed. 85. holding national bank re-
^'^er may be sued in Federal court with relation to contract on
^nlf of estate in course of administration; Estate of Levin Bros,,
^ Cal. 352. 73 Pac. irirfl, holding creditor holding mortgage on
•^vldual property of partner entitled to full dividend on firm

173 U. S. 17&-205 Notes on U. S. Beportt. lOOC^^^W-

property; Hendrie v. Graham, 14 Colo. App. 17, 59 I*ac. 221, holdins. mx f M'^l
holder of note surrendering same and collaterals to assignee orc^ en

payment of agreed sum cannot claim dividend thereafter; Hale rw ^ e
Leatherbee, 175 Mass. 54S, 56 N. E. 562, holding holder of not»:S'<:>nQc
may file it against insolvent indorser's estate without parting witK-iS- i -,^9w'
mortgage securing the same; Bank Comrs. v. Trust Co., 70 N. HS-Z
539, 542, 49 Atl. 117, 118, holding claimant against insolvent trusskx^-x^ifi
company holding mortgage securing note guaranteed by company cz.^iB.c;)a
may prove full amount of guaranty regardless of collateral.

Distinguished in State Nat Bank v. Esterly, 69 Ohio St 35. ^^p ^^^ ^
N. E. 585, holding creditor realizing on collaterals before dividen*cx^^^^
declared entitled to dividend on balance of debts only after 6^M^ ^j^
ducting collateral.

173 U. S. 179-190. Not cited.

173 U. S. 191-193, 43 L. 664, NEW OBLEAN8 v. QUINLAN.

Assignee may sue in Chrcuit Court(l) on foreign bill(2) when ^ j ^^
assignment necessary(3) when note payable to bearer, p. 193.

Approved in Goldman v. Fumess, Withy & Co., 101 Fed. Ifjr ^^ j^
holding Court of Admiralty refusing to entertain suit lii Iwii m -eeo
foreigners for breach of Canada carriage contract may diam' ^^zaia
second suit by assignee under merely colorable assignment; ThomL^mm.
son V. Town of Elton, 100 Fed. 145, holding holder of mnnicir pa7
bond payable to named payee or order indorsed in blank cmn ■hmw
thereon in Federal court only when payee could.

173 U. S. 193-205, 43 L. 665, DEWEY v. DES MOINEa

Where validity of personal Judgment sole Federal queatlon on
record court reviews no other, p. 199.

Approved In Indiana Power Co. v. St Joseph, etc, Co., 187 IT — ^
636, 23 Sup. Ct 842. 47 L. 343, reaffirming rule; New York, ^"tc-
R. R. Co. v. New York, 186 U. S. 273, 46 L. 1160, 22 Sup. Ct ^l*-*
holding some provisions of Federal Constitution must be relle<S ^^°
and set forth to satisfy Rev. Stat, i 709; Sweringen v. 8t Lo'*^**'
185 U. S. 46, 46 L. 799, 22 Sup. Ct 572, holding claim of ^i*^*
under act of Congress not sufficiently asserted where record ^***'
closes no such claim made in either State court; Chapin v. ^''^^
179 U. S. 130. 45 L. 121. 21 Sup. Ct 72, holding coPStltuUonal (j-C*^
tion not sufficiently raised by contention below that State sta^^^^*
violates Fifth and Seventh Amendments nor by mentioning V^^'*^
teonth Amendment In exceptions; Bolln v. Nebraska^ 176 U. 8. ^^
44 L. :i85. -JO Sup. Ct 290. holding right to trial by jury cannot •*
olaimeil iu Supreme Court where plea in abatement below a^^*
tioned only procedure by information; Keokuk & Hamilton Br<^^
Co. V. Illinois, 175 U. S. r»33, 635. 44 L. 302. 303, 20 Sup. Ct ''<^
holding Federal iiiiestion not raiseil In State court Lot reviewable '^
Supreme Court though another disconnected Federal questiofl ^

m Notes on U. S. Reports. 173 U. S. 205-220

B^; Shannon ▼. Portland, 38 Or. 394, 62 Pac. 54, refusing to
nstder constitutionality of charter act for assessing property
lere record did not show assessment disregarding heneflts nor
thout notice; Allen v. Portland, 35 Or. 456, 58 Pac. 519» holding
ite Supreme Court will oot review aaslgnment of error Involving
estloD of due process In etreet Improvement proceedings where
;ord helow raises none.

itate cannot impose personal liabiUtj on nonresident for as-
isment for local improvement, pp. 203, 205.
Approved In Comptolr, etc, v. Board of Assessors, 52 Lau Ann.
19^ 2T So. 805, holding oonnegotlable notes representing loans In
uistaoa by corporation's agent, held In State, subject to taxation
»re; City of New York v. McLean. 170 N. Y. 3SU, m N, E. 3S:J,
Idlng N, Y. Laws 1882, chap. 409, for local taxation of bank
►ck. and New York charter, permitting suit on deMnQuency, Im-
se no personal liability: Paper Co. v. Shyer, lUS Tenn. 458, *57
"W, 859, holding unconstitutional Shannon's Tenn. Code, fl 5298,
3viding for deficiency Judgment against nonacrved, nonappearing,
nresident defendant.
Distinguished in Bristol v. Washington County, 177 tJ. S. 146,

L. 707, 30 Sup, Ct, 591, upholding Minn. Stat. 1894, || 4529,
23, for enforcing delinquent personalty taxes by sale after notice
d opportunity to contest Uiough against nonresident; Arkwrlght
IUb v. Aultman/ etc, Maeii. Co., 12S Fed. lOG, holding Rev,
iwa Mass,, chap. 170» §| 2, 3, making nonresident suitor liable

defendant's subsequent setting off of Judgment creates enlarge-
ent of set-off rights binding on Federal courts; Aidrlcb v, Blatcb-
rd, 175 Mass. ^70. 51) N. E. 760, uplioiding Mass. Pub. Stat., cliap.
4, § 2, subjecting nonresidt^nt bringing suit to liability to answer
ty suit by defendant where Judgments may be set off.

a U. 8. 205-220, 43 L, 669, FIRST NAT. BANK v. CHAPMAN.
** Moneyed capital" witbin Rev. Stat, § 5129, means that com-
ting with business of national bnnks, p, 214,

A^pproved lo Lauder v. Mercantile Nat, Bank, 118 Fed, 785, re-

iTmlng rule; Commercial Nat. Bank v. Cliambera, 182 U. S, &VAK

X-. 1229, 21 Siip.Ct.S65, holding section 5219, Revised Statutes, as to

Honeyed capltaV* did not require deduction of bona fide debts from

lue of stock of nonresident stockholders; Mercantile NaL Bank

I^ander, 109 Fed. 23, holding under Ohio Stat., g 2781, county

clltor has no power to place amount of national bank deductions

duplicate list of ensuing year as omission; Mercantile Nat Bank

Hubbard, 105 Fed. 814, 817, SID, 820, 821, holding decision erro-

-^UBly construing Ohio statutes permitting reduction of debts from

*^k credits only, denying right, not binding as to deductions for sub-

^*jeot years, reversing Mercantile Nat Bank v. Hubbard, 98 Fed.

70, 471, holding Oblo Rev, Stat, i 2730. permitting deducUon of In-

173 U. S. 221-231 Notes on U. S. Reports. 1004

debtedness from " credits " for taxation does not discriminate against
bank shares wdthin Rev. Stat, § 5019; Illinois Nat Bank v. Kinsella,
201 111. 38, 66 N. E. 839, 340, holding under Illinois law personalty
of State and private banks taxable to full value additional to realty
tax, hence no discrimination against national banks; First Nat Bank
V. Turner, 154 Ind. 460, 462. 463, 57 N. B. 112, 113, holding under
Rev. Stat, § 5219, and Indiana statutes permitting deduction of in-
debtedness from credits, national bank stockholders cannot deduct
indebtedness from assessment value; National State Bank ▼. Bur-
lington, 119 Iowa, 700, 94 N. W. 235, holding taxation of private
banks on aggregate value of property invested, and incorporated
banks on corporate shares, works no discrimination; Mechanics*
Nat. Bank v. Baker, Recr., 65 N. J. L. 118, 46 AtL 587, holding
shares of stock in railways, insurance companies not within pur-
view of Rev. Stat, § 5219; Hull v. Alexander, 69 Ohio St 84. 85, 68
N. E. 643, holding owner of bank shares not entitled to deduct
debts from taxes thereon; Primm v. Fort, 23 Tex. Civ. 612, 57 8. W.
90, holding taxpayer having no credits against which to set off
indebtedness cannot do so against value of national bank stock
without showing others so treated; Commercial Nat Bank t. Cham-
bers, 21 Utah, 344, 347, 61 Pac. 564, 565, holding Rev. Stat, i 5210.
does not require deduction of debts from value of shares of stock.
See notes, 69 Am. St Rep. 47, 48.

Ohio Rev. Stat, § 2730, does not discriminate against nationaH
bank stock, pp. 215, 216.

Approved in Lander v. Mercantile Nat Bank, 186 U. S. 470, 477
4G L. 1254, 1856, 22 Sup. Ct 913, 915, holding judgment determinlnifli
illegality of assessments for nondeduction of debts under opera tioK-
of Ohio Rev. Stat, § 2730, not conclusive on right to deduct \r
subsequent years. See 69 Am. St Rep. 50, note.

173 U. S. 221-225, 43 L. 675, HENRIETTA MINING & BIILLIN-
CO. V. JOHNSON.

Service on agent in charge sufficient though foreign corporatlc^
have special agent for service, p. 225.

Approved in Lesser Cotton Co. v. Yates, 69 Ark. 399, 63 8. ^^
008, holding sufficient under Arkansas statute service on agent
foreign corporation at place account occurred though corporati
appointed another agent to receive summons; Manufacturing C^i-
V. Troell, 30 Tex. Civ. 203, 70 S. W. 325, holding service on lo^^
agent of foreign corporation doing business in State sufficient unc:^
Tex. Uev. Stat, art 1223. See 85 Am. St Rep. 937. note.
173 U. S. 22G-231, 43 L. 677, BALTIMORE, ETC. R. R. CO. v. JO*'

Rijrht under statute to revive action for injuries not defeated ft^'
Federal removal, p. 220.

Approved in Y-Ta-Tab-Wah v. Rebock, 105 Fed. 265, holdiD^:
where tribal Indian plaintiff died pending suit action Burviied

1005

Notes oQ U, S. Reports. 173 U. S. 231^243

\

I

I

under Iowa Code^ §§ 3443-^3445, and successors hy tribal custom
could sue.

Whether pending suit may be revived In Federal court depends
on jurisdiction where commenced, p. 229.

Approved in Baltimore, etc., R. It. Co. v. Joy» 113 Fed. lOltj,
reaffirming rule; Patton v. Brady, 184 U. S. 1)12, 46 L. 716, 22 Sup. Ct
4fc94, holding right to recover money pnid to internal revenue collector
under protest to prevent unlaw fnl seizure survives defendant's
cleath by common law and Virginia Code; In re Conn way, 178 U. S.
426v 427, 44 L. 1136, 20 Sup. Ct, 953, awarding mandamus to com-
pel Circuit Court to entertain suit against executor of defendant
clying after complaint iled; Great Western » etc.* Mfg. Co. v. Harris*
:E^tate, 111 Fed. 44, holding suit to charge corporation director for
i^rrongful diversion of funds does not survive Ills death.

Distinguished In Greeu v. Barrett, 123 Fed. 349, liolding right of
plaintiff suing for infringement of patent to re\ive action on deatli
of defendant fiuhject to State statute for settlement of estates.

ITS U. S. 231-243. 43 L. 679, COVINGTON v. KENTUCKY.

Kentucliy act May 1, ISSU, in light of act 14, 1S56, created no
Irrevocable exemption, p. 238.

Approved In Stanislaus Co. v. San Joaqnin, etc., Co., 192 V. S.
SX2, 24 Sup. Ct. 245, holding section 3, California statutes 1862, em-
j>owering companies to fijt rates subject to supervisors* control, but
Kiot reducible below 1% per cent per month profit, created no con*
^^s^qU Citizens' Sav, Bunk v. Owensboro, 173 U. S, (546, 43 L. 844,
XS> Sup. Ct. 573, holding Kentucky acts incorporating bank, grauting
^*^ajc exemption for a time, created no irrevocable contract of ex-
^ttiption; Board of Conncilmen v. Deposit Bank, 124 Fed. 23, hold-
***€r Ky, Stat. 1S94, | 19S7, preserve rights against corporation for
^^^acM against repeal of charter after accrual of such rights; New-
^^ryport Water Co. v. City of Newburyport 103 Fed. 587, holding
^^Q-ssachusetts statute compelling city to purchase plaintiflTs water-
"^^^^rks^ if latter desired to sell, before city established competing
^^'sstem, did not constitute duress.

t>lstingTiisbed in Wisconsin & M. Ry, Co. v. Powers, 191 U. S.

^^T, 24 Sup. Ct. 108, 109, holding Michigan act relieving railroads

^viijt Dorth of 44 (leg. from taxation for ten years or until receipts

*^^<!bed so much, created no contract; dissenting opinion In Cltl-

^Ha* Sav. Bank v. Owensboro. 173 U, S. 659, 43 L. 849, 19 Sup. Ct

***^, majority holding Kentucky acts iacorponitlng bank, granting

tux exemption for time, created no Irrevocable contract of ex-

«UiptIon. .

MuDiclpal charter not contract and State may tax property for
public purposes, p. 241.

Distinguished in State v. Barker, 116 Iowa, 103. 89 N. W. 206,
bidding Inyalid as depriving city of self -government Iowa Code,

173 U. S. 243^276 Notes on U. S. ReportiL 1006

f 747, authorizing District Court to appoint trustees for water-
works.

173 U. S. 243-255. 43 L. 6^4, LAKE COUNTY COMRS. v. DUDLEY.

Trial court should dismiss where plaintiff's evidence shows name
used merely to confer Jurisdiction, pp. 252, 253.

Approved in Walte v. Santa Cruz, 184 U. S. 325, 328, 46 L. 567.
22 Sup. Ct. 335, holding suit by transferee of bonds not within
Jurisdiction of Circuit Court where transfer was for coUectlou only
of bond less than Jurisdictional amount; Board of Comrs.. etc t.
Schradsky. 97 Fed. 2, holding suit should have been dismissed for
collusion where resident assigned bonds to foreigner for purposes
of suit

Distinguished in Excelsior Wooden Pipe Co. v. Pacific Bridge Co..
185 U. S. 288, 46 L. 914, 22 Sup. Ct 683, holding suit by licensee -=, —
against patentee and another, alleging title under license, Talidity, ^^^
and infringement within Circuit Court's jurisdiction.

173 U. S. 255-276. 43 L. 689, GUNNISON COUNTY COMES. T

ROLLINS.

County bonds reciting compliance with law as to purpose and
amount bind though beyond limit, pp. 273, 274.

Approved in Stanley County v. Coler, 190 U. S. 451, 28 Sup.
810, 47 L. 1134, reaffirming rule; Waite v. Santa Cruz, 184 U.
318. 319, 46 L. 504, 22 Sup. Ct 332, holding city estopped by
citals in refunding bonds to deny that original bonds were part •
city's bonded Indebtedness; Board of Comrs. v. Gardiner Sav. Inst^v
119 Fed. 47. holding unconstitutional method provided for specicaK
assessments to pay county bonds does not affect holders' righ»" m
thereon; City of Beatrice v. Edmlnson, 117 Fed. 432, holding
cital by officers having duty and power to determine indebtedne
that bonds will Issue according to law, estops city to allege exce^-^^^**
indebtedness; King v. City of Superior, 117 Fed. 116, 117. holdinM- M Inp
city estopped by bond recitals to deny prior provisions for collectic^ ^-lon
of tax to pay such bonds, as required by Constitution; Perris li^ -^Irr.
Dist V. Thompson, 116 Fed. 838, holding bona flde purchaser of Irr-^ Irri-
gation bonds from president of district may enforce same thous. x^^^K^
Invalid; Municipal Trust So. v. .Johnson City, 116 Fed. 468, holdir £ ^in^
recitals in bonds dssued under statute, vesting mayor and alderm m^wt^^
with power to pass on railway's application, bind city as to co: ^c^^-om*
pliance with statute; Board of Comrs. v. Vandriss. 115 Fed. fl*^— *^^
holding: purchaser of bonds in open market may rely upon recit* ^^^ f*^
as to legality and regularity unless act and bonds show illegali' M-^ itj:
City of Kearney v. Woodruff, 115 Fed. 92, holding purchaser ' ^^

bonds Issued under Nebraska law, authorizing bonds not exceed^ '^^

10 per cent, of assessed value, may rely on recitals as to regulai 'CT

of issue; Board of Comrs. of Stanley County v. Coler, 113 Fed. 1 ^
holding recitals in county bonds, Issued in aid of constructloc of

I

Notes oo U. S. Heporte. 173 U. S, 255-27d

oad, that Issue was based on requisite vote, Wuds couDty:
•d of Comrs. of Stanley County v. Coler, 113 Fed, TIS, holding
ty Issuing bonds under statute In payment for railway stock.
ig road and paying Interest on bond.s, canoot deny necessity
sue nor Interest of county: Fairfield v. Rural etc., Dist., Ill
459, 461, holding purchaser of Iowa school district bonds
d to take notice of Const., art 11, § 3, prohibiting excess in-
^ness regardless of recitals; Independent School Dist. v,
, 111 Fed. 9, holding municipal corpomtion authorized to issue
s precluded by recital a therein to deny validity of same be-
B of invalid indehtednesa; Syracuse Tp, t, Rollins, 104 Fed.
boldlng bond recitals prevent attack on ground that records
£>t show legal canvass of votes cast at election; Hughes Comity
IviDgston, 104 Fed* 317* 321, holding recitaJa that bonds were
?d pursuant to legislative act, authorizing such issue, and that
>reUmmary steps talien estops municipality; Pickens Tp. v.
, 99 Fed. act, 6G2, holding bona fide purchaser of negotiable
,3 or his Indorsee with notice takes same free from defense of
* Irregularity; MlJler v. Ferris Irr. Dlst, 99 Fed. 145, lit], hold-
Irrigation distiict precluded by recitals to show that bonds
orting to be Issued Is compliauce with act 1S87 did not observe
act; Wesson v. Town of Mt. Vernon, US Fed. 811, holding
ishlp authorised to Issue bonds for legal indebtednesa estopped
ecitals of compliance with law to allege Invalidity of Indebted-
covered by bonds; Brattleboro Sav. Bank v. Board of Trustees,
^ed. 533, holding recitals In bonds issued under act impliedly
lorlzlng township trustees to recite validity of indebtedness
to\\Tiship In fa,vor of bona fide holder; Board of Comm, v.
Iff, 97 Fed. 273, 276, 277, 278, holding pureliaser of municipal
Ib entitled to rely on recitals therein where county clerk kept
ecord of county indebtedness as required by statute authoris^lng
a; Board of Education v. National Life Ins. Co.» 94 Fed. 32S,
ing bond coupondiolders may rely on recitals therein that
d of education issuing same dia not exceed 3 per cent of
Bsed valuation; State v, Wichita Coynty, 62 Kan. 501, 502, 64
47, holding bonds; issued by county comiuiss loners, antborized
efund bonded indebtedness, reciting compliance, bind county
,gh Indebtedness not outstanding two years; National Life Ins,
V, Mead, 13 S. Dak. 46, 47, 79 Am, St. Kep. Sm. 8Sh 82 N, W,
lolding purchaser bound to take notice of existing indebtedness
assessed valuation where statute forbid excess issue, hence
jxl» not conclusive; Cass County v. Willbarger County, 25 Tex.
57, 60 S. W, 991, holding recitals would bind where court
QeouBly estimated amount of tax to be levied to pay same;
tpeller, etc., Tp. v. School Dlst., 115 Wis. 6;j;^, 634, 92 N. W,
holding general recital in bonds that all acts required to be
|Were done, applies to acts referred to in bond, not to require^

173 U. S. 276-285 Notes on U. S. Report*.

ment of tax levy; dissenting opinion in Board of Comrs. y. Keene^ '
etc., Bank, 108 Fed. 517, majority holding county bonds, thougli^K:-
.n excess of constitutional limit, are presumptively valid and
county must show invalidity; dissenting opinion in City of Pie
V. Dunscomb, 106 Fed. 620, majority holdiing certificate on face oi
municipal bonds that they were issued in pursuance of legislative
authority to fund city indebtedness estops city.

Distinguished in Geer v. School Dist No. 11, 97 Fed. 734,
holding bonds showing on face that statutory limit has been
ceeded do not, by recitals, estop county from setting up ezc
Keene Five-Cent Sav. Bank v. Lyon County, 97 Fed. 167, holding j
holder of bonds issued within statutory limit may recover on

173 U. S. 27&-285, 43 L. 699, OmO v. THOMAa

Federal officers superintending Federal institution not wlthLK .^^hio
State's Jurisdiction in performing such duties, p. 283.

Approved in Easton v. Iowa, 188 U. 8. 236, 23 'Sup. Ct 293, ^- « 41
L. 459, holding invalid Iowa Code, H 1884, 1885, so far as pr^-v^^V^
hibiting national bank officers from receiving deposits after knoi^nr^-^DWii
insolvency; Peters v. Malin, 111 Fed. 254, holding Iowa CodC»^^ode.
§ 4761, forbidding enticing away child under fifteen, did not app'^CM^^P^S
to Sac and Fox Indians, they being und^ Federal control; In : ^3D re
J air, 100 Fed. 157, holding army officer shooting escaping desert^K^^^rter,
pursuant to orders, not liable to criminal prosecution in State.

EUstinguished in Iowa v. Easton, 113 Iowa, 520, 85 N. W. TS^'S" 7M,
holding Code Iowa, § 18S5, making it a felony for bank officer -^ky to
receive deposits, with knowledge of Insolvency, applies to natloic^^30iiai
banks.

Habeas corpus will issue to release Federal officer arrested - by

State authorities, p. 2S4.

Approved In In re Matthews. 122 Fed. 257, refusing to release -^3? on
habeas corpus acting police officer imprisoned for shooting escaplff ^::3>in;r
deserter, where necessity as well as authority doubtful; In re Tnm^^K'Tier.
119 Fed. 234. 235, holding Federal court will release on habeas C!=^ cor-
pus army officer arrested in State while building sewer under orde^^ Mern;
Cohn V. Jones. 100 Fed. 641. holding Federal court may rele«* —jm^e
prisoner on habeas corpus where State court has no Jurisdict r^r ttno
over person or crime charged; State v. Adler, 67 Ark. 477, 55 8. - ^ •

853, holding release of Federal officer on habeas corpus discharK -"^^
bail.

Distinguished in Minnesota v. Brundage, 180 U. S. 502, 45 L. ^^ W^*

21 Sup. Ct 456, refusing writ of habeas corpus to release pei ^'^

imprisoned by municipal court where alleged unconstltutionalit^^^B^ <^
law not raised in State courts; In re O'Brien, 95 Fed. 132. retum-^iBg
on habeas corpus to review State proceedings where State rem. *^^
not exhausted; United States v. McAleese, 93 Fed. 658, hol(^^''^
debtor arrested by State and tried after Federal court adjudl^i?"'
him bankrupt not entitled to release on habeas corpus^

^Ooy

Notes on D. S. Reports. 173 U* S. 2S5-;j4i

*'*3 D. 8. 285^38, 43 L. 702, LAKE SHOEE, ETC.. EI. CO. v.
I OHIO,

Ohio statute requiring three traJna to stop (3aily at places of
^,000 inBabitaiits Is valid, pp. 300-302.

Approved !n Erie H. U. v. Purdy, 1S5 U; S. 150, 46 L. 840, 22
&up. Ct- 606, reafflrmiug rak; WJseonsin M. &, P. R. Co. v. Jacob-
ttCMi, ITO U. S. 297, 301, 45 L. VM 21 Sup. Ct. 118, upholding
^^inn. Geai, Laws 1895, requiring track roads to furnish track
:?«>nnectlons at Intersections: Manigault v. S. M* Wurd» etc., Co., 123
^ed. 718, upholding South Cnroiiua act, autliorizlni; building of dan]
ii^*ro88 creek to prevent iooding of rice fields ; State v. ,TacksoDvlIle
l?erm, Co,. 41 Fla. 400, 407, 27 So. 234, 235, ut'holding regula-
ttoD of railway commissioners under Fla, Laws 189D, renuMng
Irioiida termloal company to admit road from Georgia for reason-
ftt>le compensadon; Chesapeake, etc., R. R* v. Comroonwealth (Ky,),
51 S, W* 160, wpholding Kentdckjr separate coach statute requiring
railroads to furnish and designate cars for white and blacks:
"Purdy V. Erie R. R., 162 N. Y. 51, 56 N. K 510, upholding N. Y.
I^a-vrs 1896. chap. 835, requiring railroads operating within State
ffo lasue mileage-boo ks» being couiined to State: dissenting opin-
ion In Louisville, etc., R. R. v Commonwealth, 100 Ky, 646,
90 Am. St. Rep. 242, 51 S. W. 1013, majority holding under Ky.
Const., § 218, forbidding greater price for shorter haul competi-
tion at the loag haol point does not authorize lesser charge; dis-
senting opinion in State v. Holleyman, 55 S. C. 244, 33 8. E. 36&,
majority holding unconstitutional South Carolina law permitting
person to possess liquor purchased la State for own use but Dot
purchased without State.

Distinguished In Detroit v. Detroit Citizens' Street R. R. Co., 184
XJ, S. 398, 46 L. 61, 22 Sup. Ct. 422, holding reservation in ordinance
»Ki^ntJng franchise of right to malve regulations council deems proper
oot Including right to reduce fares fixed by agreement; Cleveland,
^tc, Ry. Co. V. Illinois, 177 U. S. 519, 44 L. 870, 20 Sup. Ct. 724.
^*oldlng unconstitutfonal Illinois act, March 21, 1874, reqiiirSng all
'I>aa9eager trains to stop at county seatfit; Lake Shore, etc., Ry. Co.
i^- Smith. 173 U. S. 088, 69<>, 697, 4'^ L, ST/j, 801, 864, 19 Sup, Ct. 567,
!****ldlng micornstitutional Michigan act 1891, No. 90. requiring rail-
!*^a<l8 to keep for sale 1,000-mlle tickets prescribing conditions of
•aJe and price; Central Stock Yards Co. v. Louisville St N. R. R, Co.,
lis Fod. 120, holding State cannot compel railroad to transfer
^"^ttle cars to con nec' ting road in State where shipment received from
'^'lother State: Kansas City, etc., Ry. v. Board of Railroad Comrs.,
I "^ Fed. 358, holding Arkan.*?as railway commissioo cannot flx
j ^^^» for freight between Arkansas pointa where line lies lai'gely In
, *tiaian Territory.

^"^ U. 8. 338^^47. Not cited
Vol. 111 — 64

173 U. S. 348-410 Notes on U. S. Reports.

101^.

173 U. S. 348^63, 43 L. 725, TEXAS & PAC. RY. CO. v. CLAYTONS

Goods unloaded on carrier's private wharf before steamship
cepts are carrier's possession as carrier, pp. 358-362.

Approved In Marande v. Texas & Pac. R. R. Co., 184 U. S. 17
178, 46 L. 490, 491, 22 Sup. Ct. 341, holding question of negIigcnc»ro
of carrier in maintaining guard for cotton warehouse for juij '^^_
Texas & P. P. Co. v. Callender, 183 U. S. 633. 642, 46 L. 363, 3(
22 Sup. Ct. 258, 261, holding carrier's delivery of cotton on owr
pier does not deliver ** to steamship company or on steamship pier
to relieve former for loss by fire; Reiss v. Texas & P. Ry. Co.,
Fed. 536, 537, 539, holding carrier liable for loss by fire of cotto
piled on carrier's wharf but before steamship company notlfii
Lewis V. C. & O. Ry., 47 W. Va. 658, 35 S. E. 909, holding depos
of lumber on defendant's own wharf at Newport News for shlpme^c -^.
to Liverpool did not relieve company of carrier's liability.

173 U. S. 363-381. Not cited.

IMTd

173 U. S. 381-389. 43 L. 738, UNITED STATES v. MATTHEWS.

Deputy marshal complying with conditions entitled to rewa
offered by attorney-general, p. 386.

Approved in Merchants' Life Assn. v. Yoakum, 98 Fed. 268,
holding Tex. Rev. Stat. 1895, art. 3071, requiring insurance
panics not paying losses to pay 12 per cent, damages and attoni<
fees.

loiter act repeals former only to extent of repugnancy, p. 388.

Approved in United States v. Hampton, 101 Fed. 716, holding
Stat, § 4716, prohibiting pensions to those engaged in, or aid T il^g

rebellion, not repealed by 26 Stat., chap. 634, hence perjury n
be committed with regard thereto.

173 U. S. 380-403, 43 L. 741, ALLEN v. SMITH.

Manufacturer, not cane producer, entitled to "bounty on sugr
under act March 2, 1895, p. 403.

Distinpruished in United States v. Leonard, 108 Fed. 45, holcj
substances obtained by washing solid residuum after distlllatiov
wool grease dutiable as ** wool grease."

173 U. S. 404-410, 43 L. 746. ST. LOUIS. ETC., RY. CO. v. PAU
Arkansas act for protection of servants and employees of
ways is constitutional, p. 409.

Approved in Minneapolis, etc., R. R. Co. v. Gano, 190 U. S. ^l

23 Sup. Ct 854, 47 L. 1183, reaffirming rule; Bienville Water Siur^ PP(r
Co. V. Mobile, 1S(J U. S. 221, 46 L. 1136, 22 Sup. Ct 823. uphol — ^iag
power of Alabama legislature to revoke exclusive feature of ^^nth
chise to plaintiff water company; Knoxville Iron Co. v. Harb !K^ft
183 U. S. 22, 40 L. 01, 22 Sup. Ct 4, upholding Tennessee act M ^^It
17, 1800. requiring persons issuing store orders or scrip to emplo^"^

rmay

IdiojT
»o of

nil-

Notes on U. S. Reports. 173 U, S, 404-410

redeem same Id mooey; Cargill Co. y. Minnesota ex reL R. R* dc
. Com., 180 U. S. 467. 45 L. 626. 21 Sup. Ct 428, upholding Minn.
ML Laws 1805, eiaap« 148, requiring license for warehouse sit^iated

railroad line; Steams v. Minnesota, 170 U. S. 250, 45 L. ISO, 21
p. Ct. 87, holding unconstitutional enforcement of Minn. Laws
^, § 378, withdrawing tax exemption granted railroads by Acts
\6 and 1870; AnieHcan Sugar Refining Co. v. I^oulsana. 179 U. S.

,45 L. 105. 21 Sup. Ct 40, upholdiog La. Const. 1S70, art
It Imposing license tax upon sugar refiners exempting there-
in those who refine product of own plantation; WaterB-Plerce

Co. V. Texas, 177 U. S. 43, 44 L. S63, 2<) Sup. Ct, 524. upholding
Icaa act ISSO, providing for forfeiture of permit of foreign corpora-
n to operate within State for violation of provisious thereof;
His V. Lake Erie & Western R. R.. 175 U. S. 351. 44 L. 104, 20
p. Ct. 137, upholding Indiana statute making railroad liable to
ployee injured by fellow servant; Atchison, etc., R. R. Co. v.
tthews. 174 U. S. KM. 43 L, 012, 10 Sup. Ct 612. upholding Kansas

1885. allowing plaintiff attorneys fees when successful in suit
Utot ralh'oad for damage by tiie; Woodson v. State. 60 Ark. 527,
Hi6 S. W. 467. upholding Arkansas act» April 10, 1899. requiring
3 corporations employing over twenty men to weigh coal sold by
t^ht before screening same: Gano v, Minneapolis & St, L. R. R.
., 114 Iowa, 725, 726, 87 X, W. 718. 710. SO Am. St. Rep. 402, up-
«1lng Iowa Code, f 2(X)7. reiiuiring railroads taking land under
Inent domain to pay owner reasonalile attorney's fees: Calla-
a V. Men, etc.. Ry.. 170 Mo. 402, 71 S. W. 213. 94 Am. St, Rep,
K upholding Mo, Rev. Stat 1809. § 2873, subjecting railroads to
blllty for all damages sustained from negligence while operating
la; Thompson v. Traders' Ins. Co., 169 Mo. 30, m S. W. 803, hold-
r In suit on insura[ire contract made in Kansas, Mo. Rev,* Stat
te>. i ;"j027, allowing 10 per cent damages for vexatious delay In
^Ing loss, inapplicable; Chicago, etc., R. R. y. Zernecke. 50 Nebr.
L^S2 N. W. 28. uphulding Comp. Stat Nebr., chap. 72. art 1, f 3,
WkB right of action to persons injured while passenger where
e from negligence and not knowingly violating carrier's rules;
»Dle V. Lochuer. 177 N. Y. 140. 60 N. E. 374, upholding N. Y.
^'s 1807, p. 485. providing thfit no employee in bakery sball work
►»• sixty hours per week nor ten hours per day; Standard Oil Co.
Spartanburg, 66 S. C. 44. 44 S. E. 379, upholding under South
^ojina Constitution requiring uniformity of taxes ordinance im-
^*Hg $250 license on dealers in oils on which license has not been
'^; dissenting oi>inton in Fidelity Mut. Life Assn. v. Mettler. 185

S, 336. 46 L. 036. 22 Sup. Ct 673, majority upholding Tex. Rev.
^t., art 3071. awarding policy-holder 12 per cent damages on loss
^ attorney's fees for delayed payment

^iKtiJiguisbed in Merchants* Life Assn. v. Yoakum, 08 Fed. 266.
Jng Tex, Rev. Stat. 1805. art 31^71, requiring life Insurance

ns

l^otes on U, S. Reports, 173 U. S, 452-464

Jovey. 174 U, S. 96, 43 L. 909, 19 Sup. Ct. 606, holding State de-
iJon Involving only area of land within State patent not review-

5 U, S. 452-456. 43 L, 765, EX PARTE WARD.

Conviction by court having jiiriBdJctlon tbougb judge de facto

ly, not reviewable on habeas carpus, p. 454.

See 87 Am. St Rep. 178, note.

Title of person acting wltb color of authority not collaterally

:ackable, p. 456,

3^e 87 Am. St Rep, 177, note.

J U. S. 457^60, 43 L. 766. THIRD STREET, ETC., RY. CO. T.

LEWIS,
Suit does not arise under Federal law unless plalntlfTs statement
ows case dependent thereon, p. 460.

A^pproved in Boston^ etc.. Mining Co, V* Montana Ore Co,, 188 D.
G40. 23 Sup. Ct 43S, 47 L, 632, holding insulficient to claim B'eil-
ll Jurisdiction in suit to quiet title defense whieli defendant will
^ up, where answer disclaims such defense; Peabody^ etc., Mln,
jw ▼. Gold Hill Mln, Co., Ill Fed. 822, holding complainant cannot
poke Federal jurisdiction by setting forth probable contention of
fendfint in answering bill to show Federal question; Heiiuy v. La
tmpagnie Gen era le. etc.» 96 Fed. 49 T, holding Federal question
usi be necessary part of plaintiff's claim as shown by statement
warrant removal,

Lack of JurisdieUon cannot be cured by matter set up by defense,
460.

Approved in Pope v. Louisville, New Albany, etc., Ry., 173 TJ, S.
S, 43 L, 817. 1» Slip. Ct 502. holding decrees in ancillary suit by
:?elver apiK>inted by Circuit Court become final when original suit
bleated on diverse cJUxenshlp,

i U, S. 461-404. 43 L. 768, TURNER v. WILKES COUNTY
COMRS.

State court construction of own Constitution and statutefl eilst-
f when bonds issued, not reviewable, p, 463.

Approved in Yaxoo He M. V. R, R, Co. v. Adams, 180 U, 8, 46, 45
418, 21 Sup. Ct. 258, holding no jurisdiction to review Stale
Visions on ground of contract impairment where State decisions
iched only construction of contract

Supreme Court le bound by State construction of own Constitution
^ laws, p. 463.

Approved In Erb v. Morascb, 177 U. S. 585, 44 L. 898, 20 Sup. Ct
^. upholding ordinance regulating speed of trains within city
^ta.

173 U. S. 464-500 Notes on U. S. Reports. 1 _i^

173 U. S. 464-473. Not cited.

173 U. S. 473-479, 43 L. 772. BROWN v. HITCHCOCK.

Until legal title passes by delivery of patent land departuc — Mie\
adjudicates equitable claims, p. 478.

Approved in Kerwan v. Murphy, 189 U. S. 54, 23 Sup. Ct 60:

47 L. 705, holding courts cannot interfere with survey by land ^H d
partment of land between meander line and water of lake claic: .M im<
by department to be public; Wilbur v. C. R. & M. R. Ry. Co.. ^ ., 1
Iowa, 67, 89 N. W. 102, holding adverse possession of bomes^^aete
entryman after title passed to railway and cancellation of ck: •^=»?Dt
without notice, he having cultivated land and paid taxes; Touac ^ njr
Chamquist, 114 Iowa, 122, 86 N. W. 207, holding State accep«:^KJ)tli
land certified to it by interior department for railroad purposes . ta,

not claim same to be swamp land; Warner Stock Co. v. Calderw-i«p .ioo(
36 Or. 232, 59 Pac. 116, holding swamp land act of 1860, ptL^^^BB^
land to State and purchaser taking State's title prevails over hm^^ ^mome.
steader settling in 1886; Beale v. Hite, 35 Or. 182, 57 Pac. 324. IK^ hold-
ing occupancy of land erroneously supposed to be government K^^laotf.
intending to obtain title thereto, does not constitute adverse pot.

session; dissenting opinion in Kean v. Calumet Canal Co., 190 V. ^,
491, 23 Sup. Ct. 664, 47 L. 1150, majority holding patent from go — ^^^ern.
ment to Indiana of whole of fractional sections referring to jiUt
conveys submerged portions; dissenting opinion in Small v. JSLoti;
41 Or. 574, 577, 69 Pac. 825, majority holding determination b^r- ser.
retary of interior that lands were open for homestead binds fcwtof-
feree of swamp lands from State, where State's grant revoked. 8e^
91 Am. St. Rep. 909, note.

173 U. S. 479-192. 43 L. 775, ALLEN T. SOUTHERN PAC. B. B,
CO.

Act March 3, 1891, chap. 517, did not reduce time for writ of error
to State courts, p. 488.

Approved in Excelsior Wooden Pipe Co. v. Pacific Bridge C<k
185 U. S. 285. 46 L. 913, 22 Sup. Ct. 682, holding recital in order
allowing appeal from Circuit Court that appeal allowed from order
dismissing suit for want of Jurisdiction, showed jurisdiction in \s^^'*
Holt V. Indiana Mfg. Co., 176 U. S. 70, 44 L. 376, 20 Sup. a ^
holding Rev. Stat.. § 1008, giving two years for appeal not repetl**^
by judiciary act. March 3. 1891.

173 U. S. 492-500, 43 L. 779, MEDBURY V. UNITED STATES.

Court of Claims adjudicates right to excess payment for rafl^*'
land forfeited for uonconstruction, p. 498.

Approved in Dooley v. United States. 182 U. 8. 229. 45 L 1^
21 Sup. Ct 765, holding Circuit Court has jurisdicUon of suit to rf
cover duties Illegally exacted under protest, on goods imported ^
New York from Porto Rico.

:oi5

Notes on U. S. Reports. 173 D. S. 501-527

Government not obliged to repay excess price pal^ for forfeited
allwaj grant <]audf p. 500.

Approved in United States v, Edmonston, ISl U. S. 502, 512. 45
L ^73, 21 Sup. Ct. TID, 723, bolding voluntary payment by mistake
f $2.50 Instead of |1.25 per acre for public lands gives purchaser
D rigbt against government for excess.

r3 U. S. 501-508, 43 L. 783. BLYTHE y, HINCKLEY,

No appeal lies wbere Circuit Court's aismissal did not Involve

irisdictlon as Federal court, p. 507,

Approved to Blytbe v. Hinckley. ISO U. S. 338, 339, 45 L. 561, 21

jp, Ct 393, reaffirming rule; Lrouisville Trust Go. v. Knott, 101 U.

235, 24 Sup. Ct. 123, bolding question of autborlty of Federal
^urt to admit! iBter trust after suit begun in State court of con-
irrent jurisdiction, not question of Jurisdiction as Federal court;
exican Cent Ry. Co, v. Eckman. IS" V. S. 432, 23 Sup, Ct 212, 47

24T, holding judiciary act, Marcb 3, 1S91, for certify int? jyrisdic-
jnal question, only refers to Circuit and District Courts as sueb
id does not bring up whole ease; Illinois C. R. R. Co. v. Adams,
O U. S. 35. 45 L. 412, 21 Sup. Ct 253, holding objection that plain-
T suing to enjoin taxation of corporation bad not complied v^-itb
[Uity rule 94, did not go to jurisdiction of court: HuntiiiKtoD v.
aidley. 176 U, S. 679. 6S(J, 081, 44 L. 635, 637, 20 Sup. Ct 530.
>ldia^ dismissal by Circuit Coiirt of suit to set aside deed for
ant of jurisdiction not justllied on ground of res adjudicata or
:ate control; Biythe Co. v. Hinckley, 111 Fed. 837, holding bill of
►view In Federal court must be filed witbin the six months allowed
ir appeal to Circuit Court of Appeals; dissenting opinion la Giles

Harris, 18S> U. S. 489, 23 Sup. Ct 047, 47 L. 913, majority holding
irtlfication of single queation of jurisdiction does not limit Supreme
onrf » jurisdiction to consider whole case where State Constitution
leged unconstitutional.

Difitingulsbed in St Louis Cotton Compress Co. v. American
ottOQ Co., 125 Fed. 198, 109, holding Supreme Court has jurisdic-
OD to directly review question of service of summons by Clrcnlt
oort,

rs U. S. 509^27, 43 L. 786, NICOL v. AMES,

Presamption Is In favor of validity of congressional act claimed
> be unconstltutiouaU p- 515.

Approved in Buttfield v. Stranahan, 192 U, S. 492, 24 Sup. Ct. 354,
pholdlng tea Inspection act March 2, 1897. proAiibiting Importation
t teas below government standard.

Tax authorized by act June 13, 1898, upon sale of realty not direct
ax, p. 519.

pproved la Tbomas v. United States, 192 V, S, 370, 24 Sup, Gt

173 U. S. 528-540 Notes on U. S. Reports. 1016

306, reaffirming rule; Spreckels Sugar Ref. Co. v. McGlain, 102 U.
S. 412, 24 Sup. Ct 380, upholding *' special excise tax " on sugar
refining imposed by revenue act, June 13, 1898, to be measured by
gross annual receipts beyond named sum; Fairbank v. United States,
181 U. S. 293, 45 L. 867, 21 Sup. Ct 652, holding stamp tax on foreign
bills of lading under act June 30, 1898, is substantially a tax on ^t-
ports and invalid; Knowlton v. Moore, 178 U. S. 82, 44 L. 980, 20
Sup. Ct. 764, holding tax on transmission of legacies and dIstiibutlTe
shares of personalty of revenue act, June, 1898, not direct tax;
United States v. Thomas, 115 Fed. 209, 213, upholding section 25,
war revenue act 1898, requiring revenue stamps upon memoranda
of sales of railway stock; dissenting opinion in Fidelity Mut. Life
Assn. V. Mettier, 185 U. S. 336, 46 L. 936. 22 Sup. Ct. 673, majority
upholding Tex. Uev. Stat, art. 3071, requiring insurance companies
delaying payment beyond period specified pay 12 per cent damages
and counsel fees.

Sale at exchange forms proper subject for classification, p. 521.

Approved in Kidd v. Alabama, 188 U. S. 733, 23 Sup. Ct 402, 47
L. 672, upholding Alabama Code exempting from taxation domestic
railroads and other roads listing substantially all property for taxa-
tion.

173 U. S. 528-540, 43 L. 796, GUTHRIE NAT. BANK v. QUTHRIE.

Legislature judges whether general law can apply to subject-
matter of special law, p. 533.

See 93 Am. St Rep. 107, note.

Distinguished in De Hay v. County Comrs., 66 8. C. 244, 44 8.
B. 791, holding invalid South Carolina acts fixing salary for Berkeley
county school commissioners; State v. Hammond. 66 S. C. 22.H,
44 S. E. 798, holding un<?onstitutional Rev. Stat, i 1275. as
amended by act February 19, 1900, making misdemeanor failure to
remove dams in certain counties; Carolina Grocery Co. v. Buroet.
61 S. C. 211, 39 S. E. 384, holding under South Carolina Constitution
providing same to be mandatory question whether general law can
be applied to exclude special laws is judicial.

Statute creating tribunal to decide claims against municipalltr
on nonlegal obligations is valid, p. 534.

Approved in New York, etc., Ins. Co. v. Board of Comrs., 106 Fed.
130. 134, upholding Ohio Rev. Stat. § 2834c, requiring county to «
meet moral obligation of bond issue under invalid statute; Earlf -,
V. Commonwealth, 180 Mass. 583, 63 N. E. 10, 91 Am. St Bei». -«
329, upholding doctor's right under Mass. Stat 1895, chap. 488, t*' «-»
comptnisation for loss of business from caiTying out water suppb "^
act; Minneapolis v. Janney, 86 Minn. 121, 90 N. W. 316, upholding.^i
Minn. Spec. Laws 1801, as authorizing council to release expositiou-.*
company from conditions theretofore imposed.

1017

Notes on U- S. Reports. 173 D. S. 540-555

I

Distinguished In New York Life Ins. Co. v. Boards etc.» 99 Fed,
855, holding 93 Obio Laws, p, 172, authorlzlug eouutj coinmlssLoners
to fnlfill moral obligation Incurred by issue of bonds under invalid
statute, prohibited by State Constitution; Bailey v, Raleigh, 13D N.
C. 211, 41 S. K 281, bolding city having legislative authority to regu-
late sale of liquor cannot be required under N, C. Laws 11H>1, chapw
327» to refund license money.

a73 U. S. 54(«55, 43 L. 8L1. THE CHATTAHOOCHEE.

Scbooner proceeding at immoderate speed cannot recover for in-

^iiry In collision in fog, pp. 548, 549,

Approved in The Northern Queen, 117 Fed. 911» holding moderate

speed required by 28 Stat tM8, for navigation on Great Lakes, is sucb

I peed as will permit stopping after sighting vessel at anchor; The

cZ'heruskia, ^2 Fed. 68a holding half or two-tlilrd full speed of ten

»j.:iid one-half knots required In fog^ one and one-half knots reduction

l>^ing InsufficienL

Schooner's recovery limited to difference between half the vessers

■%^«ilue and half that of cargo, p. 555.

Approved In Knott v. Botany Worsted Mills, 170 TJ. S. 75« 45 L.

s:*-*, 21 Sup. Ct 32, boldtng Harter act 1893. prohibiting contracts

^^^SBlnst liability for negligence in loading cargo, applies to bill of

l-^<Jing for foreign vessel to American port; The Albert Dumoh,

:M.T1 U. S, 257, 44 L. 7^1, 20 Sup. Ct, 602, holding amount awarded

't:^:> owner of vessel lost In collision, both being at fault, subject to

^^^^^^uction of one-iiaif amount payable for loss of paEsengers' lives;

^ITlzae George W. Roby, 111 Fed. G19, 020. 021* holding Harter act does

^^o^ affect priority of claim of innocent cargo-owner.s over vessel-

*^ '^^^ner against fund for payment of collision damages; The New

^^"«3^rk, lOS Fed. 104, holding vessel libeled for collision taking no

®^^P8 to bring in libelant's vessel as liable not entitled to recoupment

'^^^ subsequent finding of Joint negligence; The Livingstone, 104 Fed.

^*^^>r.^, holding charterer of vessel sunk in collision where both at

T^ ^^h can recover but one-half of loss as caj'go-owner; The New

^^*:*k, KM Fed. 5GG, holding where question left open by mandate

^^^ ^aprt^me Court, Dlstiict Court may consider and decide question
or

lo,

recoupment; In re Laiveland Transp. Co,, Wd Fed, 32D. ^i2, hoJd-

' ^5^ where bath vessels are at fault In collision cargo-owner has
^^^I'^^'rior lien on fund available for reparation where cargo sunk;
*^^ Providence, 98 Fed. 137, holding owner not entitled to increased
t of repairs of parts of vessel not injured In coIHsjoq but found
active when injury repaired.
'*>l8dnguished in The Union Steamboat Co., 178 U, S. 320, 44 L.
*^>5, 20 Sup, CL IKiy. holding questions of recoupment of one-half
*^*i:4agcB for loss of cargo awarded one vessel injured iu collision
^^t open undei" mandate to enforce division of damagea.

173 U. S. 555-581 Notes on U. S. Reports. KHZSZZD

173 U. S. 555-572. 43 L. 808, COOPER v. NEWELL,

Judgment of Texas State court not domestic judgment to preT«^ — en
collateral attack by Federal court, p. 571.

Approved In Cooper v. Newell, 94 Fed. 792, reaffirming nrn-^^-ulc
Union & Planters' Bank v. Memphis, 180 U. S. 75, 23 Sup. Ct €^^ 606
47 L. 715, holding State Judgment exempting bank from taxes m re

adjudicata as to certain years only has no greater effect In Fede^^^Ken
courts; Clarke v. Clarke, 178 U. S. 195, 44 L. 1033, 20 Sup. Ct ^^ 87
holding decision of courts of testatrix's domicile that will worlK -^x-^rkt
equitable conversion of property not conclusive in other State wh^iM -^he
property situated; Howard v. De Cordova, 177 U. S. 613, 44 L. £^ Qj

20 Sup. Ct 818, 819, holding Federal court may take JurisdictP^-^^ctJc
of suit to set aside State court judgment rendered in publi8:.^3K labe
service issued on forged affidavit; Thorman v. Frame, 176 U. S. ^ 35^

44 L. 503, 20 Sup. Ct 448, holding appointment of administrator -^azzajr /^j
State of decedent's death where property situated not an adjudJEizad/c^
tion that deceased was domiciled there; McDowell v. McCor
121 Fed. 6(3, holding court restraining defendant from disposl
property and appointing receiver acquires full jurisdiction
record of proceedings admissible to show title; Phelps v. Mu
. Reserve, etc., Assn., 112 Fed. 467, holding owner of property
fully seized by receiver may recover same after receiver wltbdi^— iirt
from one having same; Calderhead v. Downing, 103 Fed. 30, hoi -^tHog
appearance of defendant to contest validity of attachment for
individual liability will not affect right as partner to remove suit
against firm; League v. Scott, 25 Tex. Civ. 320, 61 S. W. 522, ^Mold-
ing Judgments of Federal courts not domestic judgments to pre^^eor
showing that no Jurisdiction was acquired of defendant's p^xwo
by State court; International, etc., R. R. v. Barton, 24 Tex. Or.
123, 57 S. W. 292, holding pendency of prior suit in Federal oourf ^
will not abate suit in State court between same parties for same
cause.

173 U. S. 573-581, 43 L. 814, POPE v. LOUISVILLE. ETC., RT. CO-

Mere order of Federal court in chancery appointing receiver
gives no right of removal, p. 578.

Approved in Marrs v. Felton, 102 Fed. 776, 778, holding right of
Federal receiver to remove suit is based on ancillary nature of w*'
and where properly joined as defendant cannot sever and remore;
Tompkins v. MacLeod, 96 Fed. 928, holding action against rec^i^**"
appointed by Federal court per se arises under Federal law tod l»
removable.

Suit by receiver appointed by Federal court is ancillary, becomto^
final with principal decree, p. 578.

Approved in Gableman v. Peoria, etc., R. R. Co., 179 U. 8. ^
341, 45 L. 223, Zl Sup. Ct. 173, and Baltimore, etc., Ry. Co. ▼• "^^^y*
93 Fed. 987, both reaffirming rule; Brookfield et al. v. HeclcerettL.

.019

Notes on U, S. Reports. 173 U. S. 582-C24

IS Fed. 942, holdlug court appointing ancillan* receivers has
itrfsdJctlon of suit by them In own names to protect trade-marks
rom Infringement; Gableman v, Peoria, etc,, Ry. Co., 101 Fed, t\
olding action against receiver for personal injuries from negiigent
peratton of road not removable on sole ground of Federal appolnt-
lent

Distinguished in Coltrane v, Templeton, lOG Fed. 378, holding
rder entered on intervening petition of stockholders appointing
^sident receiver to act with one previously appointed not final
ecree.

13 U. S. 682-586, 43 L, 818, GUARANTEE CO. v, MECHANICS*

SAVINGS & TllUST CO.
Circuit Court of Appeals cannot review Circuit Court's decree
here same not flnal decree, p- o85.

Approved In Guarantee Co. of North America v. Mechajilcs'i etc.,
O., 100 Fed, 550, holding surety on cashier's bond conditioned to
ake good losses through embezzlement or like acts not liable for
Lslxier's overdrafts not used by him*

rS XJ. S, 5S7-ri91, 43 L. 820, DULUTH» etc, R, R. CO. V. ROY.
Courts will protect one performing preliminary steps from aub-
Kitient patent issued by mistake, p. 5&0.

distinguished In St. Paul etc, Ry. v. Olson, 87 Mlnm 122. &1
, W, 2S)tJ, lU Am. St. Rep. €97, holding where homestead entry mati
tiitates claim of railway company for eleven years latter finally
djudged entitled, such time not reckoned against plaintiff as ad*
E*t'8e possession.

73 U. S. 502-024, 43 L. S23» HENDERSON BRIDGE CO. V. HEN-
DERSON CITY.

Kentucky city may ta.ic portion of bridge on Kentucky s'de of
rwliaua low- water mark. p. (J13.

Approved In Louisville, etc.. Ferry Co. v. Kentucky, 18S U. S.
03, 23 Sup, Ct. 46a, 47 L. 517, holding Kentucky ferry corporation
eprived of property without due process by State tax on Indiana
rAnohlse for ferry from Indiana and Kentucky shores Keokuk ^
t^mllton Bridge Co. v. Illinois, 175 U. S, 632, 44 L. 202, 20 Sup.
•t, 20S. upholding State tax on capital stock of bridge company
^vnlng interstate bridge but transacting no interstate business
ver It.

State taxation to violate FourteenUi Amendment must clearly
Kieroiicb upon private rights, p. 610.

Approved in San Diego Land Co. v. National City, 174 U* S. 7r»4,
a L. lom, 19 Sup. Ct. 810, upholding water rates fixed by town
^iiocil of National City under authority of California act, March
* 1881; State v, Earle, GG S. C. 202, 44 S. E. 784. holding railway

173 U. S. 624-636 Notes on U. S. Reports.

company entitled to show that ordinance requiring keeping of
man and lights at crossings is unreasonable.

Taxing bridge within city limits between low-water mark oo bot.
sides of Ohio is valid, pp. 616, 617.

Distinguished in Arnd v. Union Pac. R. R..Co., 120 Fed. 915, hol«
ing eastern half of Union Pacific railroad bridge across Mlssoti
not taxable by city of Council Bluffs since it receives no benefi^^^^
from city.

Kentucky was admitted with boundaries extending to low watii^r^^r
on opposite bank of Ohio, p. 621.

Approved in Wedding v. Meyler, 102 U. 8. 583, 24 Sup. Ct 3r=^52i
holding Jurisdiction acquired by Indiana court by service of proc«^'^:z:eft
on Indiana side of Ohio by Virginia compact making Kentucr^^cky
jurisdiction concurrent only.

Fact that bridge below low-water mark is used in Interstate crm _(iiu
merce does not exempt, p. 622.

Approved in Diamond Glue Co. v. United States Glue Co., 18ii' ^ "^Z U.
S. 616, 23 Sup. Ct 208, 47 L. 333, holding contract whereby fore^^-el^
corporation was to superintend operation of factory and sell out^r* tput
brings corporation within Wisconsin law requiring filing cbarter^^sr.

173 U. S. 624-636, 43 L. 835, SECURITY TRUST CO. T. DOET DD,
ETC., CO.

Insolvent's voluntary assignment of property in other State^iHV f«b
spected when consistent with latters' policy, p. 628.

Approved in Robinson, etc., Co. v. Belt, 187 U. S. 46, 28 Sup Ct

17, 47 L. 67, upholding under Arkansas decisions, controlling^ /o
Indian Territory, assignment for benefit of creditors, requlrln^^ n^
lease of claims as condition of preference; Zacher v. Fidelity, ^te.
Co., IOC Fed. 595, 508, holding binding on Federal courts, Keut^^JBCkj
decision that receiver appointed in Connecticut to wind up Coo-
necticut corporation cannot recover Kentucky property against loal
attachment; Bloomingdale v. Weil, 29 Wash. 624, 70 Pac. 99, M
101, holding foreign assignment concerning Washington realtj" en-
ables assignee to quiet title thereto against attachment of foreign
defendants, creditors of assignor.

Distinguished in EMdman v. Martinez. 184 U. S. 582, 46 L. 701. 22
Sup. Ct. 517, holding property passing under will of nonresident
alien and laws of Spain not subject to inheritance tax of ^^
revenue act 1898; King v. Cross, 175 U. S. 400, 407, 44 L. 213, 218.
20 Sup. Ct. 132, 135, upholding garnishment of Rhode Island debtor
of Massachusetts defendant before latter had been deprived of control
over assets by Massachusetts insolvent law; Happy v. Prlckctt 2*
Wash. 20G, 64 Pac. 530, holding assignees in another State tbonf*
not entitled to hold property in State where situated against t^
dent creditors may intervene to test creditor's claim.

^B^^^ Notes on U. S. Reports. ITS U. S. 636^-002

^Kutory asslgniQeiits operate upon property In jurisdlctJon only«

LpproTed In Hontiugton v. Chesapeake, etc., Ky. Co., 08 Fed. 4G4,
ding cooiveyaQce to receiver appointed In suit to wlud up corpo*
Ion is statutory assignment operating only on property witliin
te; Zaclier et aL v. Fidelity TruBt, etc., Co., 109 Ky. 4oO. DiJ
W, 495, holding Conneetlcut statutory assignment does not enable
l^nee to obtain fund in Kentucky attached by Kentucky cred-
■; Segnitz v. Garden City, etc., Co., 107 Wis. 175. 83 N. W. 328,
[ling statutory assignment of foreign corporation operating In
^consin did not pass property deposited with banking company
LIUdoIs. See M Am. St. Rep, 556, note.

U. S, 636^62, 43 L. SiO, CITIZENS* SAV. BANK v, OWENS-

BORO.

[ewitt act created no Irrevocable contract protecting bank from
er taxation, p. 654.

.pproved in Louisville v. Bank of Louisville, 174 U* S, 443, 444,
L., 1O40, 10 Sup. Ct 754; Third Nat. Bank of Louisville v. Stone.
U. 8. 432, 43 L. 10S6, 10 Sup. Ct. 700; Fidelity Trust Co. v. Louis^
^, XT4 U. S. 431, 43 L. 1035, 10 Sup. Ct. 878: Stone v. Farmers'
Ik of Kentucky, 174 U. S. 412, 43 L. 1028, 19 Sup. Ct 880;
ensboro Nat. Bank v. Owensboro, 173 U. S. 606. 43 L. 851, 10
). Ct 538; Farmers & Traders' Bouk of Owens^boro v. Owens-
o, 173 U, S. 664, 43 L, 850. 19 Sup. Ct 875; Deposit Bank of
ensboro t. Oweusboro, 173 U. S. 062, 43 L. 850, W Sup. Ct 875.
reaffirming rule; Deposit Bank v. Frankfort lOt U. S. 508, 510,
Sup. Ct. 157, holding 13iial decree of Federal court, based on
,te decision, holding Hewitt act binding contract res adjudicata
State court while in forco though State holding reversed; Wis-
islo & M. Ry. Co. V. Powers, 101 U. S. 387, 24 Sup. Ct. 100. hold^
I MIchlpnn act 1893, exempting certain roads to be built north
44lh parallel for ten years, creates no contract of exemption;
^th Cent R. R, Co, v, Maryland, 187 U. S. 207, 23 Sup. Ct m,
ti, 172, holding statiite fixing tax rate on gross receipts of rail-
id In settlement of pending controversy as to charter exempUoD
n of charter and subject to amendment; Stone v. Bank of Com-
??ce, 174 U. S. 419, 420, 43 L. 1031, 1033, 19 Sup. Ct 748, holding
nk accepting Hewitt act and paying taxes l^«pe<^ified therein not
?reby exempt from taxiition provided by subsequent legislation;
rat Nat Bank v. City of Covington, 103 Fed. 530, holding Invalid,
<ler Hewitt act Ky. Stat., § 4077, for taxation of franchises of

corporations, as applied to national banks.
C>l8tlngut8hed In Steams v. Minnesota, 170 V, S. 259, 45 L. 180.

Sup. Ct 87, holding Invalid Minnesota law, under reserved
Wer in Constitution, withdrawing exemption of railway and re-
Iriflg payment of portion of gross earnings; Clarksburg* etc., Co*
Clarksburg, 47 W, Va. 748, 35 S. E. 907. holding void franchise

173 U. S. 662-699 Notes on U. S. Reports. 1022^

granted to electrlc-Ught company giving exclusive use of streets foar*
twenty years.

173 U. S. 662, 663. Not cited.

173 U. S. 664-684, 43 L. 850, OWENSBORO NAT. BANK T.
OWENSBORO.

Section 5129, Revised Statutes, limits taxation to shares on stocks
and on real estate, p. 669.

Approved in First Nat Bank of Louisville v. Louisville, 17^k^
U. 8. 439, 43 L. 1038, 19 Sup. Ct 876, reversing decree regarding ta^Ki
on franchise equivalent to tax on shares of stock; Third Nat. Banft^
of Louisville v. Stone, 174 U. S. 434, 43 L. 1086, 19 Sup. Ct 76r> -
holding illegal taxes levied on franchises and property of bnnir

and not on shares in names of shareholders; Nevada Nat Bank w-

Dodge, 119 Fed. 60, holding section 5219 against State tax discrim m

nation against national bank shares does not apply to local bank^^s. ^
First Nat Bank v. City of Covingtou, 103 Fed. 526, 529, holdiim. ^^
invalid under Rev. Stat., § 5219, Kentucky act 1900, imposing ti^ -^^g
on national bank stock and providing for collection of back fra -^-^ .
chlse taxes; McKeona v. Helnlen, 129 Cal. 97, 98, 61 Pac. 779. hol.^^.
ing void under Rev. Stat, § 5219, tax on personal property ^o^
national bank; Illinois Nat Bank v. Kinsella, 201 111. 37. 43, 44, ^^c
N. E. 339. 341, 342, holding Illinois laws taxing shares of ba^xaif
stock in hands of holders and realty of bank not being dou'^^Ie
taxation; Scobee. Sheriff v. Bean, etc.; Same v. Scott, etc.. lOO
Ky. 531, 59 S. W. 861. holding under Ky. Stat, { 4020 et seq.. 8ha.x-es
of national banks taxable to holders same as personalty; Jentcfns
v. Neff, 163 N. Y. 330, 57 N. E. 411, holding trust companies tho^x^li
empowered to exercise powers of bankers not in competition ^Ith
national banks within Rev. Stat, § 5219; Cleveland Trust Co. v.
Lander, 62 Ohio St 273, 275, 2S0, 56 N. E. 1038, 1039, 1040. up-
holding Ohio taxation of shares of bank at full money value wltii-
out deducting bonds.

Distinguished in Mechanics* Nat. Bank v. Baker. Recr.. 65 N. J. L
117, 40 Atl. 587, holding New Jersey tax on shares in national baulf
held by nonresidents Is tax on shares though assessed to banks snd
payable from dividends on stock.

173 U. S. 684-699. 43 L. 858, LAKE SHORE, ETC., RY. CO. ^•
SMITH.

Michigan act ISOl, No. 00. requiring sale on prescribed condition
of 1,000-mile tickets. Invalid, p. COS.

Approved In Jack v. Williams, 113 Fed. 828. holding owner '
railroad which will not pay operating expenses cannot be made
repair and run same; A horn v. Newton & B. St Ry. Co.. 105 F
703. refusing preliminary injunction to restrain enforcement
statute fixing fares, though statute apparently unconstitutic

Notes on U. S. Reports. 173 U. S, 684r-69l>

lerc no irreparable damage shown; Bereshelm v, Arnd, 117 Iowa,

90 N. W. 5Q7» upholding section 1374, allowing suit by treasurer
' back taxes on omitted property, fees going to county; Iowa v, O,
3, B. Ry. Co., 113 Iowa, 35, 84 N. W. 985, holding invalid Coun/?iI
iffs oniinance permitting Interstate street railway to make dis-
painadve rates in favor of residents of city; Railway Co. v. Camp-
le 61 Kan. 446, 78 Am. St. Rep. 3:^3, 59 Pac. 1()54, holding nn-
istitutional Kan. Laws 18^, chap. 167. requiring railroad to
nisb free transpt^rtation to shippers of stock; Beardsley v. New
rk, etc., R, R.. 162 N. Y. 233. 234, 56 N. B. 4^8, 4S0, holding
ron&titutional N, Y. Law9 1890. chap. 1027, requh'ing roads in
Xe to issue 1,000- mile milealge tickets; dissenting opinion in
alsvllle, etc., R. R. v. Commonwealth (Ky.), 51 S. W. 1013. ma-
lty holding, under Ky. Const, | 218, prohibiting greater charge

shorter haul than for longer, including same, not avoided by
ttpedtion at distant point; dissenting opinion In Minor v. Erie
R. Co.. 171 N. Y. 574, 64 N. E. 457, majority upholding New York
leage ticket act 1805, chap. 1027, as to successor In interest of
id existing when act passed. See notes, 90 Am. St. Rep. 242, 248.
distinguished in Louisville & N. R. R. Co. v. Kentucky, 183
S. 511. 46 L. 303, 29 Sup. Ct 09, upholding Ky. Const.. | 218, and
Its, 1894, § 820, prohibiting unpermitted greater charge for shorter
IB for longer haul; Wli^eonsln, etc., R. R. Co. v. Jacobson, 17f)

S. 207, 301. 45 L. 199. 21 Sup. Ct. 119, nplioldlng Minn. Gen.
Tr» 1805, chap. 91. requiring raih^osids to furnish track connec-
ns at intersections; Matthews v. Board of Corp. Corars., 106 Fed.
11. upholding action of North Carolina railroad commission in
Ing rates for carrying fertilisiprs where company made fair net
►fit affirming Malthewa v. Board of Corp. Comrs., 97 Fed. 402,
iding North Carolina act 1891), creating railway commission em-
svered tofi.\ rates, repealed pro taiito charters permitting railroads

fix rates; Railroad Comrs. v. Grand Rapids, etc, Ry, Co., 130
<>h. 251, 89 N, W. [»67. holding reorganizing company under Mich.
T\'s 1897, § 6224, on fon^closure of mortgage, subject to law fix-
r rates though old rompany exempt: Minor v, Erie R^ R. 171
Y. rm. CA N. E. 455. upholding New York mileage ticket act 1895,
*p. 1027, as to snccessor In Interest of road existing at time of
»«4ige; Purdy v. Erie R. R., 162 N. Y. 48. 56 N, E. 509. upholdhig

If. Laws 1896, chap. 835, retjulring rallroatls operating within
Ite to issue 1,000'raile tickets.

^gislature may regulate carrier's rates where reasonably neces-
^ for public protection, p. 69il

Approved in Statv v. JackHonville Term. Co., 41 Fla. 408, 413. 27
• 235, 236, uphold I Jig riiilroad com mission's regulation reqyiring
fQaiaal company to admit certain road on just compensation*

CLXXIV UNITED STATES.

174 U. S. 1-46, 43 L. 873. CAPITAL TRACTION CO. ▼. HOF.

Constitutional provision for jury trial applies to District -^^ ot
Columbia, p. 5.

Approved In Downes v. Bldwell.. 182 U. S. 293, 361, 46 L. 1 ^^IW.
1135, 21 Sup. Ct 789, 815, upholding Foraker act 1900, temporatf^^arllj
providing civil government for Porto Rico and Imposing dutiei^K-st on
imports into United States.

Decision on Jury trial re-ezamlned only by new trial or on e^^serror
by appellate court, p. 13.

Approved in Richmond v. Henderson, 48 W. Va. 401, 87 8. E. 659,

holding appeal lies from judgment of justice on trial wltL^^B or
without jury, hence no certiorari.

Distinguished in Maxwell v. Dow, 176 U. S. 598, 44 L. 60 f, 20
Sup. Ct 455, upholding Utah jury of eight men.

** Trial by jury " means ti-Ial by twelve men in pretence tod
under direction of Juuge, p. 13.

Approved in Archer v. Board, etc., 128 Fed. 128, holding six meo
appointed by sheriff under Ark. Acts 1883, to assess valiB^ of
ruudeuiDod property, not a valid jury; Hodges v. Kimball, 104 Ted
750. holding court considers evidence before submission to iwrj^ and
if insufficient to sustain verdict for plaintiff directs verdict tor
(lelundant; Howe v. Raymond, 74 Conn. 72. 49 Atl. 855, hoMlng
verdict for plaintiff buying and using to obtain credit note for 9tock
ill company never formed, where seven to one swore he knew ftcti^
properly set aside; Home v. Rogers, 110 Ga. 371. 35 S. E. 719. bold-
Ins brief absence of judge during progress of trial, where evidence
Jiistilied verdict, not cause for reversal; State ▼. Meansf. 95 He.
'MV.), 50 Atl. 31, sustaining action of Justice In commenting upon
tostiniony to aid Jury; Richmond v. Henderson, 48 W. Va. M 37
S. E. (>r)7, holding appeal lies from Judgment of justice In trial witli
or without Jury, and certiorari does not lie; Lovmgs v. N. A W*
Ry., 47 W. Va. 58G, 588, 35 S. E. (MM, holding unconstltntlooil
W. Va. Code, chap. 50. § 1G9. authorizing jury of six.

.Justice court trial in District of Columbia, with jury, not con-
stitutional jury trial, pp. 17, 18.

Approved in Ogden v. Madison. Ill Wis. 4150, S7 N. W. 573. hoKlini
no rifflit to trial by Jury in action under city ordinance, for keep'^*
brothel, although same act offense against State law.

[1024]

1025

No tea on U. S. Eeports.

174 U. S. 47-82

DistinguiAbed In Rlelimoiid v. Henderson. 48 W. Va. 405, 37 S. E.
S60, holding appeal lies fTom judgment of ju&tlce with or without
ury trial, hence no certiorari.

Where verdict exceeds $20 either party may appea] from Justice
eclsian for District of Columbia, p. 30.

Approved in Dennee v. Cromer, 114 Fed. (524, holding appeal lies
rom mayor In Indian Territory, they hemg given same power by
[) Stat, 499, as justice of p<.^ace from whom appeal Ilea; Richmond
. Henderson. 48 W. Va, 403, 37 S, E. 659, holding appeal lies from
id^nsent of justice on trial with or without jury, hence no
srtiorarL

r4 TJ. S. 47-64, 43 L, 890, KIRBY v. UNITED STATES.

Act making conviction of persons stealing postage stamps con-
lasive of fact against one receiving Invalid, p. 61.

Approved in dissenting opinion In Dent v. State, 43 Tex. Or.
60. 161. 05 S. W, Oao, tUO, nmjorlty holding judgment convicting
Qurderer admissible under Tex. Penal Code, arts. 88, 90» against
lecessory to show conviction of prinelpaL

Distinguished in Dent w Stiite. 43 Tex. Cr. 141. 152. 101, 1Gl\
S5 S. \V. C2a 029. 033. 035. holding under Tex. Penal Code. arts. 88.
Ito, judgment convicting one of murder admissible in evidence
igalnst accessory to show conviction of principal.

Indictment need not show from whom accused received stamps
illeged to have been stolen, p. 02,

Approved in In re Bellnh, 110 F'ed. 72, 74, 75, 76, holding su'!i-
Ment averment in petition in involuntary bankruptcy, that defend-

gl received certain sum which be has since concealed with Inteat
(llelay creditors; Simon v. State, 158 Ind. 57, 02 N. E. 620, holding
ander Ind. Stat 1901 » receiving stolen goods knowingly, is sub-
itantial offense and name of thief immaterial

174 U, S, 64-09, 43 L. 897, COSGROVE v, WINNEY.

ODTender extradited for larceny cannot he tried for obstructing
marebal In executing writ, p. 69.

Approved in Cohn v. Jones. 100 Fed. 042, holding Federal court
Bmy release on w^rit of habeas corpus person conSned by State
court without jurisdiction because of Federal law or treaty,

174 tr. S. 70-82. 43 L. 890. AMERICAN REFRIGERATOR, ETC.,
CO. V, HALL.

State's taxation of cars of foreign corporation, based on average
tiiiaber employed. Is valid, p. 82.

Approved In Union Refrigerator Transit Co. v. Lynch, 177 U. S.
*^52. 44 L, 710. 20 Sup. Ct t>j2, upholding Texas tax on average nnm-
*^^ of refrigerator cars on Texas roads but belonging to foreign
Vol. Ill — 65

174 U. S. 82-125 Notes on U. 8. Reports. 1(^ r:

corporations; American Refrigerator T. Co. v. Adams, 28 CJolo. IS^
63 Pac. 412, upholding Colo. Sess. Laws 1807, chap. 70, ^^ «.
assessing cars based on number required for mileage of roac^^
Racine Iron Co. v. McCommons, 111 Ga. 547, 36 S. E. 870, upholdi :^c::
Georgia tax on soliciting agents receiving goods In bulk from nc^^
resident principals, breaking bulk, and filling executory contrae ^^^
State V. Canada Cattle Car Co., S5 Minn. 460, 80 N. W. 67, iiph(^:M.4
ing, under interstate commerce clause, Minn. Laws 1807, chmp. L^:>a
taxing freight-line and equipment companies.

Distinguished in People v. Knight, 171 N. Y. 355, 64 N. B. l^^SS
holding taxable under State laws independent cab serrice mi^ lu
tained by interstate carrier at termlnaL

174 U. S. 82-00, 43 L. 0O4, HOLMES v. HURST.

Serial publications in magazine is publication within act X.^1
and vitiates subsequent copyright of book, p. 88.

Approved in Mifflin v. R. H. White Co., 100 U. S. 261, 23 Sup. a
770, 47 L. 1042, holding copyright protection by entry in publlstm <ri*
names lost by subsequent publication in author's own name; Firsuer
v. Yack, 116 Fed. 288, holding contract for exclusive use of advcaoce
sheets of English novel, made before American international c^opjr*
right law, gave no copyright rights to numbers appearing previoiii(f
in magazine; Mifflin v. Dutton, 107 Fed. 700, 710, holding parXm of
Mrs. Stowe*s ** Minister's Wooing," appearing in magazines prior to
application for copyright, became public property.

174 U. S. 01-06. Not cited.

174 U. S. OG-125, 43 L. 000, ATCHISON, ETC., R. B, 00. r.

MATTHEWS.

Kansas act 1885, awarding reasonable attorneys* fees under d*a*
ages against railway for fire, is valid, p. 00.

Approved In Minneapolis, etc., R. R. Co. v. Gano, 100 U. 8. 557.
23 Sup. Ct. 854, 47 L. 1183, reaffirming rule; Kidd v. Alabama, 1«^
U. S. 733, 23 Sup. Ct 402, 47 L. 672, upholding Ala. Code 18M.
§ 3011, cl. 14, exempting from taxation stock of domestic roads *w^
others that list substantially all their property for taxation; Fidelity
Mut Life Assn. v. Mettler, 185 U. S. 326, 46 L. 933, 22 Sup. Ct ^
upholding Tex. Rev. Stat, art. 3071, making insurance companie
delaying payment liable for 12 per cent damages and reasonab
attorney's fees; Connolly v. Union Sewer Pipe Co.. 184 U. S. 508,
L. 603, 22 Sup. Ct. 442, holding unconstitutional Illinois trust
June 20. 1893, preventing recovery by trust of prloo of goodi t
exempting production of agricultural products; Knox\iUe IronC
Harbison, 183 U. S. 22, 4G L. 61, 22 Sup. Ct 4, upholding Tenu
act March 17, 1899, requiring redemption of store orders and
by all employees paying laborers therewith; Clark ▼. Kansa'

Notes on 0. S. Reporta. 174 0. 8. 96-125

^ tr. S. 119, 120» 44 U 397, 20 Sup. Ct 286, tipholding Kansas
Htute autbcyrlzlng Incorporation of cities of 30,000 of land ad*
Ining same, excluding therefrom agricuIturaJ lands; TulUa v-
Hce Erie & Western R, R,, 175 U. S. 353, 44 U 195, 20 Sup, Ct
f, up balding Imliana statute making railroad companies liable
BerTants injured by negligence of fellow aervaut; Hartford F.
K Co. V, Chicago, etc.* R. R, Co., 175 U. S. 101. 44 L. 89, 20 Sup.
, 37, tipholding sdpuiation in lease of land on railway right of
ty for storage warehouse, exempting railroad from liability for
B by fire, though caused by negligence; Mexican Nat R. R. Co.
Jackson, 118 Fed. 5u2, upholding Tex. Laws 1807, p. 14, defining
t>ility of railroad operators for injuries of employees an-d pro-
litingp contracts limiting liability; Nlagai-a Fire Ids. Co. v. Cornell,
I Fed. 821, holding unconstitutional Nebr. Lawa 1897. chap. 79,
IniDg* trusts declaring same Illegal, prohibiting combinations to
(itrol price, production, or competition, and providing penalties
r violation; Fidelity & Casualty Co. v. Freeman. 109 Fed. 856,
liol4ilDg Tenn. Acts 1895, chap. H30, § 22, requiring Intent to
Celve to make misrepresentation In negotiation of insurance con-
let materia]; Clark v, Russell, 97 Feil. 904, upbolding Nebr.
Bt, chap. 72, I 3, making railroads liable for all damages upon
tssenger not occasioned by lattei^'s negligence or violation of known

Ee; Skinner v. Garnett Gold Mln. Co., 96 Fed. 745, upholding Cal.
It. 1S97, p. 231, requiring all corporatloni operating within State
I pay employees once a month, making unpaid wages preferred
m; Phenix Ins. Co. v. Hart 112 Ga. 7G9, 38 S. E. 69, holding
iconstltutlonal Civ. Code. § 2140, allowing recovery of damages
|ld attorneys* fees against Insurance companies delaying over sixty
lys In paying losses; International, etc., Co. v. Weisslnger, iGO
Id. 355. 65 N. E. 524, upholding Acts 1899. p. 193, requiring em-
(oyer to pay full wages weekly and prohibiting assignment of
Uses not yet due; Gaao v, Minneapolis & St L. R. R- Co., 114 Iowa,
l6. 8T N. W. 715, 89 Am. St. Rep. .S95, upholding Code, fl 2007, re-

tiring railroads exercising right of eminent domain to pay land-
Her reasonable attorneys* fees; Railway Co. v. Simonson, 64 Kan.
to. 01 Am. St Itep. 254, 68 Pac. 656, upholding provision of chap-
** 100, Laws 1SU3, allowing attorneys' fees on successful prcseeU'
*>& of suit under siieh statute; State v. Broadbelt 89 Md. 581, 73
*tl, St Rep. 7, 43 Atl. 774. upholding act 1898, chap. 306, H 19. 20,
Quiring inspection of and authorizing sanitary regulations for
•^liies which furnish milk to ** cities, towns, or villages;*' Callahayi
* Bt Louis, etc., Ry. Co., 170 Mo. 494, 71 -S. W. 214, 94 Am. St.
P^. im. ur>lioldIng Rev, Stat ISm, § 2873, making railroad com-
'''^^ies liable for all damage sustained by servant while engaged in
^eratlng work fntm uegllgonce of other servants; Far. dc Mer. In^.
1^ t. Dobney, 62 Nebr. 221, 86 N. W. 1073, upholding Camp. Slat.

174 U. S. 125-149 Notes on U. S. Reports. 1028

1899, chap. 43, i 45, Including reasonable attorneys' fees as costs In
judgment against insurance company; Lancashire Ins. Co. v. Bush,
60 Nebr. 123. 82 N. W. 314, upholding Comp. Stat. 1899, chap. 43,
{ 45, including attorneys' fees as costs in action against insurance
company on policy on real estate; The Ten-Hour Law for Street
Ry. Corporations, 24 R. I. 606, 611, 618, 54 Atl. 603, 605, 608. uphold-
ing Pub. Laws, chap. 1004, limiting hours of labor in certain street
railway labor to ten hours a day; New York Life Ins. Co. v. Orlopp.
25 Tex. Civ. 292, 61 S. W. 341, upholding Rev. Stat 1895, art. 3071,
subjecting life insurance comimnies to 12 per cent damages and
attorneys* fees for delay in paying loss.

Distinguished in Williamson v. Liverpool, etc., Ins. Co., 105 Fed.
36, 37, holding unconstitutional Mo. Rev. Stat 1899, { 8012, allow-
ing ten per cent damages and attorneys' fees for vexatious refusal
to pay loss; In re Day, 181 111. 110, holding unconstitutional act
February 21, 1899, requiring Supreme Court to admit as attorneys
students who began study before certain date and to refuse
others; Luman ▼. Hitchins Bros. Co., 90 Md. 27, 44 Atl. 1054, hold-
ing Invalid Acts Gen. Assem. 1898, chap. 493, prohibiting railroad
and mining corporations, and officers and agents from having
interest in merchandise store within certain county; Thompson t.
Traders' Ins. Co., 169 Mo. 30, 68 S. W. 893, holding Rev. Stat 1889,
§ 5927, allowing damages for vexatious delay in payment of loss
inapplicable in suit in Missouri by Kansas citizens on Kansas
contract.

174 U. S. 125-149, 43 L. 920, AUTEN v. UNITED STATES NAT.
BANK.

Action against receiver of national bank la one arising under
laws of United States, pp. 140, 141.

Approved in Weeks v. International Trust Co., 125 Fed. 37n, hold-
ing action against national bank receiver within Circuit Court**
jurisdiction regardless of citizenship; McCartney v. Earlc, 115 Fed.
4G3, holding suit by receiver to enforce liability due bank within
Jurisdiction of Circuit Court regardless of citizenship; Hutcbin- -
son V. Le Roy, 113 Fed. 20i, holding pledgor of certificate givin? s
due notice, whose pledgee wrongfully repledged to bank wblcii^^'
sold same turning over proceeds, entitled to same on pajrment ot^^
debt; Hanover Nat Bank v. First Nat. Bank. 109 Fed. 424, hoWInj^^
national bank president having actual management of bank opei^ ^
ations has authority to procure discount of its paper; Guarante^^
Co. of North Dakota v. Han way, lOi Fed. 371, holding actlcr^^
against receiver of shareholder of national bank, chosen under a ^t
June, 187G, and amendments, is suit under laws of United Stat^^^^^
Schofield v. State Nat Bank, 97 Fed. 288, upholding contract ^
national bank to assume liabilities of another in consideratioo o/
office furniture, lease, casli, and cash assets.

i

^iMl

Notes OB U. S. Eeports. 174 U. S, 149-168

Borrowing by bank cannot be said to be Illegitimate and out of
coarse of busJnetis, p. 143.

Approved in Aldricli v. Cbemica] Nat Bank, 176 U. S, 627, 44
r. 614, 20 Sup. Ct 502, holding naUonal bank liable for loan ob-
-talned by vice-president and used in bank's busfness thougli It waa
powerless to obtain sucb loan.

National bank directors may empower president or cashier to
Indorse bank's paper, p. 148.

Approved in Auten v, Manistee Nat. Bank^ 67 Ark. 250, 54 S. W.
338, reaffirming rule; Fii-st Nat Bank v. Arnold, 156 Ind. 494. CO
^. El 137, holding bank liable for loan obtained on note of vice-
X>resident; and anotlier director indorsed by bank and Its president,
officers having apparent authority.

1.74 IT. S. 140^152, Not cited.

174 U. S. 153^158, 43 L. 930, MOHAN T. DILLINGHAM

Act 1801 disqualifies Circuit Court Judge from deciding same mat-
1:er In CirciJlt Court of Appeals, pp. 157, 158.

Approved in Dilllugham v. Morau. 101 Fed. 934, holding parties
Interested taking no steps to remove receiver cannot afterward
object to compensation retained by him.

X74 TJ. S- 158-163, 43 L. 032, KIMBALL v. KIMBALL.

Appeal to set aside letters of administration on deceased hus-
t>and*s estate dismissed where will found* p, 162.

Approved in Montana Mining Co. v. St Louis M. & M. Co., IHO
XJ. S. 32, 46 L. 1042, 22 Sup. Ct 747. holding writ of error from
drcuit Coyrt of Appeals, afflrming judgment with writ of error
from later iudgment on cross- writ revertiing same judgment must
lie dismissed, not being final; Tyler v. Judges of the Court of
:tte^8tratlon, 179 U- S, 409, 45 L. 254, 21 Sup. Ct 208, holding
Objection that person may be «!eprived without due process by
Arlassaehusetts land registration act, providing for posting notices,
^:kot rai sable by one duly notified : Mossberg v. Nuiter, 124 Fed. 067,
tiolding request from trial court pending appeal from interlocutory
«>rder for return of record to permit bill of review for new evi-
dence warrants dismissal of appeal; United States v. Norfolk &
"^V. Ry. Co., 118 Fe<i. 550, holding proceeding for mandamus should
1»« dismissed where cars furni.^iilng of which was demanded were
furnished; Montgomery v. City Council, 90 Fed. 832. holding volun*
't^ry payment of taxes by tax purchaser of property, whiih he wbs
^ntitJed to receive unincumbered, prevents determination of validity
t-liereof.

174 a S. 1G4-I0a Not cited.

174 U. S. 168-359 Notes on U. S. Reports.

174 U. S. 1G8-181, 43 L. 936, McCAIN ▼. DES MOINES.

Federal court dismisses bill where parties citizens of same St
and no Federal question raised, p. 181.

Approved in Underground R. R. v. City of New York, 116
956, holding no Federal question raised by aUegation that ^ciac
impairs railway franchise where plaintiff does not and cannot sftzE^^Di^
compliance with State law requiring municipal consent.

Distinguished in Swafiford ▼. Templeton, 185 U. S. 493, 46 L. LCXdS,
22 Sup. Ct. 786, iiolding action for damages against State electrlon
officers for wrongful refusal to allow plalntlflF to vote for congp^^e^-
man within Circuit Court's jurisdiction.

174 U. S. 182-190. 43 L. 941, BOSWORTH v. ST. LOUIS. ETC.,

R. R. ASSN.

Receiver may defend against antagonistic claims, but cannot ques.
tlon subsequent orders of court, p. 186.

Approved in Fidelity Ins., etc., Co. ▼. Norfolk, etc., R. R. Co.,
114 Fed. 391, holding railroad company may be sued after receiver
appointed for torts committed before; Kidder v. Fidelity Ins.* etc,
Co., 105 Fed. 824, holding appeal after term by one of several in-
terveners should be dismissed where citing only complalnan-t flfld
receiver of one defendant; Hunt v. Illinois Cent R. R. Co., 9(5 Fed.
647, 648, holding receiver cannot appeal from order directing him
to construct and maintain gates at crossing of another road a^
cording to prior contract

Receiver may appeal from discretionary orders affecting hl$
I>ersonal rights, p. 189.

Approved in Chapman ▼. Atlantic Trust Co., 119 Fed. 266. iJoW-
ing receiver may appeal from order of court refusing to settle re-
ceiver's account

174 U. S. 100-196, 43 L. 944. HUMPHRIES ▼. DISTRICT Of
COLUMBIA.

Opening sealed verdict in absence ©f ill Juror, others swearl^*
to his signature, valid, pp. 194, 195.

Approved in Judson v. Gage. 98 Fed. 543, holding court's or^^'
during term, setting aside report of appraisers settling value
condemned land, not reviewable on writ of error.

Distiniriiished in Macfarland v. Brown. 187 U. S. 243, 245,
Sup. Ct liX», 47 L. 101. holding decree of Court of Appeals of IP
triot of Columbia, reversing order of lower court In condemnatl
pnx^eodinirs. remanding cause to be tried by Jury, not appealable

174 U. S. 11H»-;C.0. 43 I., 94(1 MORRIS v. UNITED STATES.

Congross by act 1S;>0 did not intend to subject Potomac
merged lands to sale, p. '234.

Appn»viMl in Snowdon v. I.oree. 122 Fed. 497, holding void p
Issued by Stnte of Pennsylvania to lane, part of streets of Allcf

lOSl

Notes on U. S. Eeports. 174 U. S. 3C0-5T3

dedicated to public use forever by act 17S7; Stwkley v. CJssua,
119 Fed, S35, 83G, holding under Tennessee laws, where riparian
boundary Is low water, abandoned bed of stream still remains In
State; Ledbetter v. Borland, 128 Ala. 423, 29 So. 580, holding court
may treat as void patent appearing on face to lack authority and
may receive ejctrinslc evidence to determine,

Lots abutting oo Water street have oo riparian rights, pp, 270»
271,

Approved In Cobb v. Comraisaloners of Lincoln Park* 202 III, 4:iG,
07 N. E. 8, holding w^here State granted land under Lake Michigan,
In front of plaintiff's lot, to Lincoln park, plaintiff could not build
wharf thereover r dissenting opinion In Scran ton v. Wheeler. 179
U. S. 167, 182. 45 L. 139, 144, 21 Sup. Ct. 5S, G4, majority holding
where riparian owner may bring ejectment suit to State court for
pier erected over aubmerged land, Supreme Court will hold proper
on error.

174 U. S. 360-364, 43 L. 1005, RATON WATER-WORKS CO. T.
RATON.

Action on warrants for hydrant rentals is at law and not cog-
nizable In equity, p. 304.

Distinguished in Citizens' Bank» etc., Co. v. Union Min., etc.. Co.,
106 Fed. 99, holding intervening stockholder cannot after suit
brought, Indebtedtiess admitted, and receiver api>olntedi raise ob-
jection tbat complainant la only contract creditor.

174 U. S. 364-373, 43 L. 1007, CONCORD FIRST NAT. BANK v.
HAWKINS.

New Hampshire national bank's investment in Indiana national
bank's stock ultra vires and unenforceable, pp. 300, 372,

Approved in National Bank, etc., Loan Co. v. Petrle, 189 U. S.
426. 23 Sup. Ct. 513, 47 L. SSI. holdinj? rlf^ht to recover money paid
for bonds of nationol bank, where bank rescinds, not defeated be*
t^anse transaction llloffal; McDonald v. Thompson. 184 U. S, 74, 40
L. 430, 22 Sup. Ct. 29^S, holding action to euforce individual lia-
bility Is upon "contract not in writing" or "created by statute/'
governed by Xebrnska four-year Statute of Limitations; Robinson
*-. Southern Nat. Bank, 180 U. S. 3C«>, 45 L. 542. 21 Sup. Ct. 3S9,
holding bank receiving stock of national bank as collateral, bidding
ftame In on default, Is not liable as stockholder of biuik, no trana-
Ter occurring" on books; Whitman v. Oxford Nat. Bank, 170 U. S.
50«, 44 L. 501. 20 Sup. Ct. 41l\ holding stockholder's liability ere-
^ted by statute is contractual and enforceable in any court of
c^orapetent JnrlsdlctloD; Aldrich v. McClaine, 100 Fed. 793. holding
VVashington Datlonal bank stock liolder*s llabinty, under Rev. Stat.,
i 5151, contnictual and governed by Wasblnjcrtou statute for rou-
IfftCtB not Id writing; De Weese v. Smith, 100 Fed. 442, hotdiag

174 U. 8. 373^84 Notes on U. 8. Reports. 1^^=^

stockholder's liability is contractual to pay in such amoiints ek. -z:

at such times as comptroller shall decide as necessary; De W& m *

T. Smith, 97 Fed. 313, holding receiver recovering one assessnm. ^ *

ordered by comptroller cannot recover a second, contractual ;m. j
bility being indivisible; Howarth v. Lombard, 175 Mass. 574» i

N. E. 889, holding Washington statutory liability of bank stc^^^^i
holders enforceable by Massachusetts creditor against stockho^^iSei
of that State.

DisUnguished In Scott v. Deweese, 181 U^ S. 216, 2ia 45 L. ^^29,
830, 21 Sup. Ct 590, holding national bank certlflcate-holder camzM^zMot
escape stockholder's liability under section 5151, Revised Station, t^et,
by claiming shares illegal because part of increase where amc^unt
not paid in; McDonald v. Williams, 174 U. S. 407. 43 L. 102CX^ 19
Sup. Ct 747, holding receiver of national bank cannot recover «c3Uvf.
dend paid out of capital where bank solvent and stockholdeacr- In-
nocent; Brunswick Terminal Co. v. National Bank of BaltliKZxore,
112 Fed. 81 G, holding national bank stockholder not liable for ^H. ebts
of bank contracted after stock held by him as collateral only bad
been retransf erred to owner.

National bank purchasing bank stock cannot i^ead ultra ^^rei
against statutory liability, pp. ,'JC9-373.

Approved in Ward v. Joslin, 105 Fed. 229, reaffirming rule; City
of Ft. Scott V. W. G. Eads Brokerage Co., 117 Fed. 54. holdlnjr wd-
tract with brokerage company to Invest city's sinking fund viol^ifwl
statute requiring investment in ))onds of lowest seller and grout x)(fed
no estoppel; Ward v. Joslin, 100 Fed. G80. holding stockholder <»o-
not be held for sums due by corporation where such " dues " arlie
from guaranty executed by corporation officers without autboritj;
dissenting opinion in Naslina Sav. Bank v. Anglo-American, etc..
Co., 108 Fed. 781, majority holding in action by English corporation.
for calls, absence of evidence of insolvency or necessity for asse**-
ment does not prevent recovery.

Oblijjation of stockliolder to pay corporation debts is statuto^^
but contractual, p. 370.

Approved in I'laff v. Gruen. 02 Mo. App. 566, holding persc^^
subscribing for stock in Ohio corporation in effect promise to ansi*^'^
to creditors in proportion to stock.

174 U. S. 373-379. Not cited.

174 U. S. :i70^84, 43 L. 1014, NORTHERN PAC. R. R. CO.
FREEMAN.

Railroad entitled to direction of verdict where testimony cC
cliisively showed contributory negligence, p. 384.

Approved in Baltimore, etc.. R. R. v. Landrej^an. 191 U. S. 47
24 Sup. Ct. 141. upholding submission to jury where reasonable to
might draw different con<hi?ions as to negligence in crossing tvl

Notes on U. S. Reports, 174 U. S. 379-3»i

m closed; District of Coliimbla x. lloulton, 182 U. S. 579. 45 L.
N), 21 Sup. Ct S41» holding leaving broken steam-roller on street
IT curb for tnc^^o days witli canvas covering over It, frightening
-ses, presents no question for jury; Dunworth v. Grand Trunk,
., Ry., 127 Fed. 309, holding contribvit'ory negligence in street-car
iductor, required to look for trains, to stand between steam-car
cks after gates closed; Louisville & N, R. K. Co, v. Summers*
I Fed. 723, holding unobjectionabie where counsel read cases in
lUiDont for court to refer to former decision; Chicago, etc.* R. R.
V. Rosso w, 117 Fed. 495, holding negligence for man to drive at
rot from grain elevator upon track with fur collar turned up past
e without looking or listenings Mobile, etc., R. R. Co. v. Coerver,
Fed. 4I>3, holding driving upon track without stopplzi^ or look-
in front of slowly moving cars conclusively shows contributory
rligence; Stiite Trust Co. v. KanPas City, etc., R. R.* Ill Fed. 772,
dtn^ negligent attempt to pass over single track to meet an
»roachlDg engine instead of remaining on other track until it
sed; M'Cann v, Chicago, etc., Ry, Co., 105 Fed, 48:1 upholdhig
K'tion for defendant where plaintiff knowingly stepi>ed between
[^ks on which trains were to pass, leaving twenty Inches between
mi Nelson v. New Orleans, etc., R. R. Co.. 100 Fed. 737» liolding
t^megligeuce In law for hodcanier employwl bj railroad to cross
ek with mortar from bar while engaged *ii company's work:
bert T. Erie R, R. Co., 97 Fed. 750, holding negligent In law
» crossing track in covered huggy without stopping after seeing
iroaehing train wlien 135 feet from crossing; (lalmgan v. Rail-
a, 70 N. II. 44[>, 50 AtL 150* upholding direction for defendant
ere plaintiff with view of track for 400 feet crossed without
king or listening; dissenting opinion in Southern Pac. Co. v.
iradit, 1<>!> Fed. :^S5. 38^1, 300. majority upholding submission to
^y where plalntllT after seeing headlight on nearest track crossed
d was 8 track hy train.

Distinguished In Baltimore & Potomac R. R, v. Cumberland. 176
S. 241» 44 L. 452. 2^ Sup. Ct. 3lS3* holding question whether person
OHalng tracks at place other than crossing used due care for jury;
Vlft V. Langbein, 127 Fed. 114, holding where pialntiff fell Into
seen hole in sidewalk at night question of contributory negligence
r jury; Delaware, L., etc., W. R. R. Co. v. Devore, 122 Fed. 793.
'fling proper BubmIs,sion to jury questions of contriinitory negll-
Ht p where infant injured while parents crossing dangerous eross-
* »t night with no signal from train; Hemingway v. Illinois Cent.
Jt. Co,» 114 Fed. 847. S4S, holding question for jury wdicre dc-
^8€»d was killed while driving across track on a curve at night,
*€re evidence confliited as to looking and engines whistling;
^itliern Pae. Co. w Harada. IfU* lM>d, :J80, upholding sulmilsslon to
^ wliere plalntlfT i^fter seeing headlight on nearest trai:k crossed
*r luid was struck hy same train which had switched; Chesapeake,

174 U. S. 385-128 Notes on U. S. Reports.

etc., Ry. Co. v. King, 99 Fed. 256, holding passenger^s failure to ^^><\
look or listen while crossing tracks between alighting place and ^
station question for Jury; Illinois Cent Ry. Co. v. Jonee, 95 Fed. "^
388, holding child of ten killed while riding in wagon across cross-
ing obscured by warehouse and cars where switchman warned not ^
negligent in law.

174 U. S. 385-397. Not cited.

174 U. S. 397-408, 43 L. 1022. McDONALD v. WILLIAMS.

National bank receiver cannot recover dividend received In good '
faith paid out of capital, p. 408.

Approved in Great Western Min.. etc., Co. v. Harris, 128 Fed. 832, -

holding stockholder not liable to creditors for dividend received in m.

good faith while corporation solvent; New Hampshire Sav. Bank t. «.'

Richey, 121 Fed. 9C0, holding creditors of solvent corporation have ^

no lien on dividends paid to stockholders; Lawrence ▼. Greenvip. ^4

97 Fed. 909, 910, 911, holding national bank receiver cannot recover ^-w

at law sum received by stockholder in good faith in Tolnntary ^^

liquidation during solvency; Jewett v. United States, 100 Fed. 838, ^c

holding president of national bank appointed by shareholders to 04

liquidate affairs indictable ** as agent ** under Rev. Stat, i 5208^ for <s<«
misappropriating funds.

174 U. S. 409-il2, 43 L. 1027, STONE v. FARMERS' BANK.

Decree below in favor of defendants not iMurties to prior Judgment jr.^t

affirmed, following 173 U. S. 636, p. 412.

Approved in Union, etc.. Bank v. Memphis, 111 Fed. 56S, reiLfflrm- ^^s-
ing rule; First Nat. Bank v. City of Covington, 103 Fed. 6S1, hold- ^MM-
ing national bank may sue in equity in behalf of shareholders to
cujoin collection of alleged illegal taxes.

Distinguished in Coulter v. Weir, 127 Fed. 006, 906, holding bill
to restrain auditor from collecting tax due State under Ky. Stat
1003, § 4077 et seq., cannot be maintained.

174 U. S. 412-428, 43 L. 1028, STONE v. BANK OF COMMERCE.

Determining invalidity of stipulation entered into between city c^^^ |
Louisville, the sinking fund commissioners, and the banks as to lat^^^^/s
ter's liability under Hewitt act, pp. 420, 421.

Approved in Louisville v. Bank of Louisville, 174 U. S. 442, 43 L^E~ l,
1040. 19 Sup. Ct. 754, and Fidelity Trust Co. v. LoulsviUe, 174 U. ft Si
431, 43 L. 1035, 19 Sup. Ct 876, both reaffirming rule.

Ajjreeinent set forth between city attorney and attorneys of hf"^' fa
not within attorney's power, p. 421.

Approved in Brown v. Arnold, 127 Fed. 392, holding attorney ^
stockholder after verdict in his favor cannot after term stlpolfli^/ip
that client would be bound by proceedings in error in other soi- <*;
Louisville V. Louisville Ry., Ill Ky. 21, 63 S. W. 19, holding dty ^t-

1035

Notea on U. S. Reports. 174 "U. S. 428-492

torney hag no power to compromise for less tlian due from tax-
payer neither before nor after suit brought; Smith v. Epplng, Ci)
N. H. 560. 45 Atl. 410, liolding paj'eea of notea executed by town
selectmen with power to borrow money for certain purposes take
risk of agenfs authority; Bush v. O'Brien, 104 N. Y. 212, 58 N. E,
108, holding taxpayer may sue to prevent payment of Judgment
taken on offer of counsel without authority from comptroller who,
by charter, had power to settle claims,

174 U. S. 428, 43 L. lO:^, LOUISVILLE v. BANK OP COMMERCE.
Adjudged in conformity with Stone 7. Bank of Commerce, supra,
p. 42S.

ApproTed in Louisville v. Bank of Louisville, 174 U. 8, 442, 43
h. 1040, 19 Sup, Ct 754, reaffirming rule.

174 U. S. 429-431. Not cited.

174 tr. S. 432-434, 43 L. 1035, THIRD NAT. BANK v, STONE,

Following Citizens* Sav. Bank of Owensboro v. Owensboro,
on construction of Hewitt act, p. 433.

Approved in I^uisville v. Citizens' Nat Bank. 174 D. S. 437, 43
Xu 103S, 19 Sup. Ct. 874, reaflirming rule

Taxes on franchises and proi>erty of bank are In violation of act
of Congress, p. 433.

Approved in Louisville v. Third Nat, Bank, 174 U. S. 435, 43 L.
1037, 19 Sup. Ct. 874, reaffirming rule.

X74 U. S. 435, 43 L. 1037, LOUISVILLE v. THIRD NAT. BANK.

Adjudged according to Third Nat. Bank of Louisville v, Stotie,
Bupra, as to illegality of taxes, p. 435.

Approved in Louisville v. Citizens' Nat Bank, 174 U. S. 437. 43
X^ 1038, 19 Sup, Ct 874, reaffirming rule.

174 U, S. 436-439. Not cited.

X74 IT. S. 439^45, 43 L, 1039, tOUISVILLE v. BANK OF LOUIS^
VILLE.

Doubts arising as to statutory exemption are resolved against
exemption, p. 445.

Approved in Stearns v. Minnesota, 179 U. S. 259. 45 L. 180, 21
St3p. Ct 87. holding contract whereby Minnesota exempted railway
from all other taxes in return for percentage of receipts not re-
t>ealable leaving receipt provision In force,

^T4 U. S, 445-492, 43 L. IIHI, STEPHENS v. CHEROKEE NATION.

Legislation auOiorlzlug Dawes' comniisalon to determine Indian
^Itlieasliip and for appeals^ therefrom fs conBtltutional^ p. 488.

Approved In Ex parte Jon Is, 191 IT, S. 100, 24 Sup. Ct 27, refusing
Prohibition to Choctaw and Chickasaw Citlxenshlp Court from an*

174 U. 8. 492^10 Notes on U. S. Reporte. 10^

nulling Federal decree admitting to citizenship where court had
certified to commission; United States v. Rickert, 388 U. S. 439. 23
Sup. Gt. 481, 47 L. 537, holding State cannot tax lands allotted to
Indians in severalty by act 1887, nor personal property- thereon;
Lone Wolf v. Hitchcock, 187 U. S. 567, 23 Sup. Ct. 222, 47 L. 307,
holding Indian treaty cannot limit power of Congress to pass act
June G, 1900, for allotments of land in severalty formerly held in
common; Cherokee Nation v. Hitchcock, 187 U. S. 305. 306, 23 Sup.
Ct 117, 119, 47 L. 189, holding action of secretary of interior under
act June 28, 1898, authorizing leasing tribal lands for mineral pur-
ix)ses, matter solely in executive control; Ansley v. Ainsworth, 180
U. S. 258, 259, 260, 45 L. 520, 21 Sup. Ct 366, holding appeal to Su-
preme Court from United States court for central district Indian Ter-
ritory, not involvlni? Indiaji appropriation act 1898, not allowed by
act 1891; Jones v. Meehan, 175 U. S. 10, 44 L. 53, 20 Sup. Ct 5. hold-
ing Indian ti*eaty must be construed in sense in which Indians
would understand same; Muskogee Nat. Tel. Co. v. Hall, 118 Fed.
385, holding congressional action in 31 Stat 1083, for granting fran- -
chises for telephone lines in Indian Territory, prevents territorial .J
grant of exclusive franchise.

174 U. S. 492-498, 43 L. 1058, OFFICE SPECIALTY MFG. CO. t« -
FENTON METALLIC MFG. CO.

Hoffman patent No. 450,124, for storage case for books, sbowae
old combination, p. 498.

Approved in American Saddle Co. v. Sager Gear Co., 122 Fed. <54^^
holding Wheeler patent No. 594.451, for bicycle saddle, void for lac' ^=
of patentable invention; Goodyear Tire, etc.. Co. v. Rubber Tir^
etc., Co., IK; Fed. 369, 371, holdim; void, for lack of invention. Grai==«
patent No. 554,075, for rubber-tire wheel; Sperry Mfg. Co. v. J. l^E
Oweus Co.. 96 Fed. 976, holdiuj; Sperry patent No. 267,032, for fair
uing-mill, void for want of invention.

Distinguished in Parsons v. Seelye, 100 Fed. 453, holding cou.^^
cannot take judicial notice of state of art where same consists
single patent

174 U. S. 499-510, 43 L. 1000, WADE v. TRAVIS COUNTY.

91 Tex. 301, followed to point that bonds issued under l^^w
requiring provision for interest are valid, p. 508.

Approvetl in Gulf & Ship Island R. R. Co. v. Heroes, 183 U. ^<?.
72, 40 L. 89, 22 Sup. Ct. 28, holding charter granted by Mississl jr*P'
act 1882, subject to constitutional power to amend or repeal; Lot*
V. lYustees of Columbia Tp., 179 U. S. 493, 45 L, 291, 21 Svp-
Ct. 182, holdinf:: Circuit Court bound by Ohio court's decision as to
validity of l)onds at time of issue unaffected by later contrary bold-
ing; Hartford Ins. Co. v. Cliicapro, etc., Ry., 175 U. S. 108. 44 L. ^•
20 Sup. Ct 40, holding Federal court sitting in State bound by ^tite
decision upholding contract whereby railroad is exempted from

1037

Notes on U. S. Reports. 174 IT.

510-551

negligence liability for firing leased warehouse; Christie Gralo &
Stock Co. V. Board of Trade, 125 Fed. 1(J7, following Illinois declcion
construing State statutee, deny Jug aid of court lo Chicago board
of trade to protect property rljrht In quntntionR, deals belnj? in
futures; Duluth Brewing, etc., Co. v. City of Superior, 123 Fed. 356,
apholding munlclpn! ordinance of Wisconsin city, requiring all deal-
ers in liquors to obtain license from city; National, etc.. Pipe Woriis,
T, Oconto City, etc.. Supply Co., 313 Fed. 801, holding where Stafe
court holds water-works not subject to mechanic's Hen, unsecured
creditor cannot maintain suit to redeem from sale; In re Dille, 119
Iowa< 582, 93 N. W. 574, holdhig- jiidg:ment exempt' ng property of
colle^je corporation from taxation as school property not res ad-
Judicata le favor of subsequent grantee uelng same for profit;
Moller V. Galveston, 23 Tex. Civ. 702, 57 S. W. 1121, holding delay
of two years In issue of authorized drainage bonds does not In-
validate same; Falconer v. Simmons, 51 W. Va. 177, 41 S. E, ItXl.
holdiDg overruling decision does not destroy force of overruled hold-
In^ where contracts enteral on faith thereof; Town of Westou v.
Ralston, 4S W. Va. 190, 3(5 8. E. 4.15, holding public easement estab-
ilshed over public highway prevails over all titles; Clarksburg, etc.,
Co. V. Clarksburg, 47 W. Va. 747, 35 S. E. 997, following West Vir-
ginia decisions hohling municipal grant of nonexclusive right to use
streets for electricity creates valid contract.

Distinguished in Theological Seminary v. People, 189 111, 455, 5M
;>!. E. 983, holding State not estopped by judgments of County Court

tax lands held exempt by such court.

l74 U. S. 510-539, 43 L. 10t>5, THE OLINDE RODItlGUES.
One modern cruiser may maintain effective blockade, if entry
bndered dangerous thereby, p. 518.

[Approved in The Newfoundland, 170 U. S. 114, 41 L. 392, 20 Sup.
2S0, holding forfeiture as prize should not be made on evidence
suspicions circumstances pointing to attempt to run blockade.
' Oltnde Rodrigties'' restored without damages, costs except
|orney'B fees charged against vessel, p. 539.

approved in The Buena Ventura. 175 U. S. 395, 44 L. 210, 20 Sup.
152. denying damages and costs to Spanish vessel seized as
le -\pril, 1898, on probable cause but subsequently exempted by
^lamatlon.

S. 539-54(5. Not cited.

jj. S. 545-551. 43 L. 1079, NEW MEXICO v. UNITED STATES
rUUST CO.
[July 27, ISim, did not exempt railway right of way acquired

private owners, p. 547.
3ved in United States Trust Co. v. Territory, 10 N. Mex.

17, 430, n2 Pac. 9&8, OHl, mz holdiag taxable right of way and

174 U. S. 552-577 Notes on U. S. Reportt. 1088

Improvement of Atlantic & Pacific railroad In New Mexico over
land not part of public domain ou June 27, 1866; Territory v. Santa
F6 Pac. R. Rm 10 N. Mex. 412, 41S, 62 Pac. 985, holding decision as
to invalidity of taxes on railway property binds same parties as to
all matters offered or offerable to sustain or defeat claim.

174 U. S. 552-^77, 43 L. 1130, LOUISVILLE, ETC., RY. CO. v.
LOUISVILLE TRUST CO.

Corporation created by Indiana laws, though reincorporated
elsewhere, retains Indiana citizenship for Federal jurisdiction,
p. 563.

Approved in Richards v. Michigan Cent R. R. Co., 186 U. 8. 479,
46 L. 1266, 22 Sup. Ct. 942, reaffirming rule; Southern Ry. Co. v.
Allison, 190 U. S. 336, 338, 23 Sup. Ct 717, 718, 47 L. 1083, 1084,
holding Virginia corporation becoming domestic in North Carolina
not citizen of latter State for Federal Jurisdiction; Goodwin v.
New York, N. H. & H. R. R. Co., 124 Fed. 359, 367. 868. holding
corporation incorporated in Massachusetts and Connecticut cannot
be sued In former State by citizen thereof, alleging corporate citizen-
ship in Connecticut; Seattle Gas, etc.. Electric Co. v. Citizens' Light
etc.. Power Co., 123 Fed. 593, holding New Jersey corporation with-
out charter power to engage in gas business cannot do so in State of
Washington; Winn v. Wabash R. R. Co., 118 Fed. 64, holding rail-
road incorporating in several States, In Missouri under Rev. Stat
1899, § 1059, becomes citizen of each State and Misnouri cause not
removable; Goodloe v. Tennessee Coal, etc., R. R. Co., 117
Fed. 351, holding Ala. Acts 1892-93, " Relating to Tennessee Coal,
Iron & Railroad Company, and to confer certain rights on such
corporation," does not reincorporate same; Westhelder v. Wabash
Ry. Co., 115 Fed. 841, holding Ohio corporation organized to pur-
chase railroad property owned by roads of five States citlzeo
of Ohio for Federal jurisdiction; Collins v. City of Ashland, 112
Fed. 177, holding diversity of citizenship when suit brought suf-
ficient, though plaintiff subsequently became citizen of defendant's -
State; Walters v. Chicago, etc., R. R. Co., 104 Fed. 378, 879, 380.
holding foreign corporation reincorporating in Nebraska to acquire -^
right of eminent domain, still nonresident for Federal JurlsdlctioD; ^
Willson V. Winchester, etc., Ry. Co., 99 Fed. 646, holding action bj -i^
citizen of West Virginia against Maryland railroad, as lessee of^fc
West Virginia road, removable to Federal court; Smith v. Neii^^
Yorli, etc., Ry. Co., 96 Fed. 505, 507, holding railway corporatioca^
formed by concurrent acts of Massachusetts and Connecticut less^T-
islatures, merging Massachusetts road Is citizen of Massachusetts*
for jurisdiction; Wilson v. Railway Co., 64 S. C. 168, 169, 36 a l^S
702, 971. holding railroad incorporated in Virginia, though conKi-
plying with South Carolina laws for becoming domestic. Is Don-
resident of latter State for jurisdictional purposes; Calvert v. Ball-

tmt

Kotes cm O, S. Reports. 174 t7. S. BT^-59f>

wjgy Co., 64 S. C. 146, 41 S. E. 9C4» 965, Lolding Virginia corporation
be\^*x'?^mg domeBtic through compliance with S, C. Laws 1S9G, re-
mains nonresident of latter State for Federal Jurisdiction.

Distinguished In Debnam v* iSoQthera, etc., TeL Co., 126 N. C. 845.
W7, 36 S, E, 274, holding New York corporation becoming domestic
l)y compliance with Pub. Laws ISfKJ, cannot remove suit of South
[Carolina citizen involving no Federal question; dissenting opinion
n Calvert v. By. Co., 64 S. C, 150, 41 S. E. 96G, 068, dm, 971.
najorlty holding Virglaia corporation becoming domestic hj com-
plying with South Carolina laws remains nonresident for pur-
>oses of Federal jurisdiction.

Unauthorized guaranty of another corporation's bonds void, ex-
cept as to bona tide purchaser, p. 576.

Approved in Board of Comrs. of Stanly Co. t. Coler, 113 Fed.
16, 717, 723, holding county Issuing bonds for railway stock sub-
crlbed as autliorlzedp holding stock and taxing road, estopped
hereby to deny necessity of subscription or interest of county;
:eDtral Tnist Co. v. Indiana, etc., II. R. Co., 98 Fed. 669, 670, bold-
og company leasing line across Indiana not witliin Indiana statute
lermlcting road with line extending thus to guarantee l>onds of
nother.

Distinguished In Terre Haute & I. R. R. Co. v. Cox, 102 Fed.
37, holding lease of road In another State tinauthorlxed when made
alldated by subsequent statute.

r4 D. S, 57a 57a Not cited.

tr4 V. S. 5S(M>90, 43 L. 1093, MISSOURI, ETC., RY. CO. v.
McCANN.

Missouri statute charging carrier for own and connecting carrier's
giigence as construed Is valid, p. 587.

approved in Tullis v. Lake Erie & Western It, R., 175 U. S, 353,

iL. 1SJ5, 20 Sup. Ct 138. upliolding Ind. Sess. Laws 18.93, p.

as construed by Stiite court, rendering railways iial>le to eni-

Ipees for injury by fellow servtiiit; Kansas City, etc., Ry. v. Board

It, Comrs,, lOti Fed- 358, holding Arkansas rallro,id commission

lot fix freight rates between Arkansas points where line lies

tly In Indian Tenitory; Western Sash, etc., Co. v. Chicago, etc.,

Il77 Mo. G51, 654, 656, 657, 70 S, W. 1001, 1002, upholding Rev.

^1889, i 944, making railway issuing bills of lading in Missouri

I for own and connecting carrier's negligence; Marshall, etc,

[Kansas City, etc., Ry., 176 Mo. 488, 4S9. 490, 75 S, W, 640, 641,

liijp Rev, Stilt. LSDtK | 5222, making railway issuing tjills of

1 Id 'Missouri liable for own and connecting i arrler's negli-

ICallahan v. St, I^uls, etc., Ry. Co., 170 Mo. 491, 71 S» W. 214,

St. Rep. 761, upholding Mo, Rev. Stat 1809, § 2873,

Irnliroad liable for fellow servant's negligence in operating

IhstrUed to include section hands; Pacltlc Express Co. r.

174 D. »• 59l)-51«r Notes on U. S. Reports. 1040

Pittmao, 30 Tex. Cir. 32S, 71 S. W. :313, upholding IllinoU sUtute
making it unlawful for common carrier to limit common-law iia-
bility to deliver property safely.

Distinguished in Elliott v. Felton, 119 Fed. 272, holding Tennessee
decision that conductor was vice-principal and not fellow servant
of brakeman not construction of act for survival of actions.

174 U. S. 590-599, 43 L. 1098, WEST CO. v. LEE.

General assignment warrants adjudication in involuntary bank-
ruptcy, hence denial of insolvency is no defense, p. 599.

Approved in Elliott v. Treppner, 187 U. S. 330, 23 Sup. Ct 134,
47 L. 202, holding under section 3, clause c, bankruptcy act 1898,
proof of insolvency is complete defense to proceedings after general j
assignment; Bryan v. Bernheimer, 181 U. S. 193, 45, L. 818, 21 Sup.
Ct 559, holding general assignment an act of bankruptcy, vesting ^
assignee with agency to distribute property among bankrupt's ^
creditors; Couts v. Townsend, 126 Fed. 250, holding whether debtor — ^
is insolvent or not, general assignment by him is act of bankruptcy; .^:
In re Chase, 124 Fed. 758, 759, holding assignment fairly made to <^c:

facilitate equal distribution of property of bankrupt does not pre-

elude assignee's recovery for services rendered; In re C. Moench. ,.^. .
etc.. Sons Co., 123 Fedw 908, holding vote of cor];>orate dlrectorsa^Bs
declaring inability to pay debts and willingness to be adJudget^Ej
bankrupt warrants adjudication regardless of solvency; In r^^^
Slomiva, 122 Fed. 631, holding void, under 30 Stat 564, assignmen*' t

for creditors executed within four months of filing petition; Daj ^

V. Beck, etc.. Hardware Co., 114 Fed. 835, holding under 80 Sua^c
544, actual solvency of debtor making general assignment co^^bk
stitutes no defense; In re Mayes, 114 Fed. 601, holding assIgDe---^
entitled to actual expenses in preserving property but not for le-^^
vices rendered; In re Tatum, 112 Fed. 51, holding assignee aUowei^
actual expenses in protecting property but not for services rend«re-^f;
Wilbur V. Watson, 111 Fed. 493, holding assignees under genet-ay
assignment not entitled to compensation from estate for 8ervit*«>«r
prior to filing of petition; Green River Deposit Bank v. Craig, llv
Fed. 139, holding sufficient to sustain petition charge that indi-
vidual partners as well as firm made general assignment; Id re
West, 108 Fed. 941, holding burden of proving insolvency does doc
rest on petitioning creditor after general assignment, oppo«In»
creditor must prove solvency; Drussel v. North State Lumber C^.
107 Fed. 257. holding general assignment by lumber compaajr irt
of bankruptcy within meaning of statute; In re Plotke, 104 Fed. 96^
holding validity of general assignment under national bankroptfT
law decided independently of State decision; In re Miner, 104 FeA
r»21, holding creditors assenting to debtor's general asslgnmeot oot
to be reckoned in determining number of creditors under bankrnptfT
act 1898. § 59b; In re Taylor. 102 Fed. 730, holding answer by <t^
itor to petition in involuntary bankruptcy that debtor is engap^

It^

Notes on U. S. Eeiwrts. 174 U. S. OOO-OOS

fefly In farming, states good defense under bankruptcy act ISOS;
irk V. American Mfg.» etc., Co., 101 Fed. OtM, liolding ifeiiernl
flgnment by officers of corporation wnder directors' resalvitton,
rsuant to majority vote of stock liolders, warrants petition in
oluntary banUniptcy; SimonsoD v. Sinsheimer, 100 Fed. 429*
ding debtor not entitled to jury in petition in involuntary bank-
ftcy^ since only Issue for jury is solvency and tbat Imnaateriai;
K. V. Wall. 99 Fed. 548, bolding State courts have concurrent
Isdiction of actions by trustee to set aside fraudulent transfers
baol^rtipt; In re Meyer, 9S Fed. 9Sl>. holding general asslgiinieni
firm act of bauliruptcy, though not including partner's separate
perty; In re EmsliOp 98 Fed, 721, holding preference for an te-
en t debt as by mechanic's lien would, if not discharged. Can-
ute an act of bani^ruptcy; In re Rome Planing Mill, 96 Fed. S14,
[ling petitioning creditors in involuntary hnukryptey must sliow
>lvency of bankrupt when preference made; Leidigh Carriage
V. Stengel, 95 Fed. 642. holding under bankruptcy act 1S9S, § 3.
eral assignment is sufficient to warrant adjudication of bank-
tcy without proof of insolvency at time of assignment; Ketcham
H'Namara, 72 Conn. 712. 4*i AtL 147, hoUlmg under baukruf>tcy
18D8, trustee of assignment under State insolvency law cannot
to set aside frfiudulent preference; Duryea v. Muse, 117 Wis,
» 94 N. W. 367, holding creditor may recover from assignee
ler geDeral asslgnmeut amount of debtor's debt where assets
eed amount thereof.

>lstlnguished In Randolph v. Scruggs, 190 U. S. 536, 23 Sup. Ct,
, 47 L. 1170. holding though deed of assignment avoided by sub-
uent adjudication of bjiakruptcy. charge for preparing same
♦vable as unsecured claim; In re H, G. Andrae Co., 117 Fed. 5*J3»
ding chattel mortgage wltliheld from record an unreasonable
te until after mortgagor made assignment not validated by
^sequent record; Vaccaro v. Security Bank, 103 Fed^ 438, holditig
Tointment of receiver on request of administrator of deceased
*tner whose death dissolved firm not a general assignment:
nonsoti V, i8insheimer» 95 Fed, 952, holding creditors made parties
proceedings to enforce general assignment, not repudiating as-
nment allowing sale of property, estopped to petition for In-
ixntary bankruptcy.

i U. S. 600^003, 43 L. 1102, COLUMBUS CONSTRUCTION CO. Y*
CRANE CO.

Tudiciary act 1891 does not contemplate several separate appeals

Write of error, p. G02.

Approved in Clncfnnan, Hamilton, etc., Ry. Co. v. Thiebaud, 177

8. 029, 44 L. &13. 20 Sup. Ct, 824, dismissing writ of error from
ipreme Court to Circuit Court, wliere taken while prior writ from
fcult Court of Appeals pending.
Vol. 1 11 — (30

174 U. S. 60a-638 Notes on U. S. Reports. 1(H2

174 U. S. 603-610, 43 L. 1103, RIO GRANDE, ETC., COLONIZA-
TION CO. V. GILDERSLEEVE.

Judgment for default may be entered where attorney withdraws
appearance without leave of court, p. 609.

Approved in State ex rel. v. Lankford, 158 Ind. 36, 62 N. B. 624,
dismissing appeal where appellant disregarded Supreme Court role
3, requiring index of record.

Distinguished in Jenkins v. York Cliffs Imp. Co., 110 Fed. 800,
holding withdrawal of apearance, entered through a misapprehen-
sion, does not authorize attack on service on ground of form.

174 U. S. 610-621, 43 L. 1100, McDONALD v. CHEMICAL NAT.
BANK.

Payments made to national bank by another before insolTency
and not contemplating same are valid, p. 619.

Approved in Easton v. Iowa, 188 U. S. 232, 23 Sup. Ct 291, 47
L. 457, holding unconstitutional Iowa Code, SS 1884, 1885, prohibit-
ing national banks from receiving deposits when msolvent, pnnith-
ing violations thereof; dissenting opinion in Clark v. Colton, 91
Md. 233, 237, 46 Atl. 398, 390, majority holding payment by insolvent ^
bank of president's check for large amount one day before hopeleta^
insolvency a fraud on creditors and recoverable.

174 U. S. 622-638, 43 L. 1111, NORTHERN PAC. RY. CO. v
De LACEY.

Successor to pre-emption settler who failed to prove within thir
months cannot file homestead, pp. 632, 633.

Approved In Oregon & Cal. R. R. v. United States, 190 U. S. 19
23 Sup. Ct 67C, 47 L. 1015, holding lands settled but abandone*-^
fifteen years prior to railway selection as lien lands were not r ^l
served from grant; Northern Pac. R. R. v. Amacker, 175 U. SL
568, 44 L. 275, 20 Sup. Ct. 232, holding amended pre-emption docltm J^
atory statement excluding land in original statement and sim^
stituting other lost any rights acquired under original; M'Cune ▼.
Essig, 118 Fed. 280, holding wife of homesteader, completing proof
and receiving patent, takes full title to exclusion of children;
Chicago, etc., Ry. Co. v. United States, 108 Fed. 313, holding pre-
omption settlement under act 1841, to prevent attachment of svb-
sequent railroad grant, must be followed by proof and ^jmeDt
within twelve months; United States v. Northern Pac. R. B. Co..
103 Fed. 390, holding default for thirty months in proof of occupaiKT
and payment for land filed prevents exception of such land from
railroad grant of 13 Stat. 3G5; Murray v. Polglase, 23 Mont 41».»
Pac. 443, holding entryman of mining claim obtaining recelTer'i
receipt on final entry not thereby relieved from doing assignffl*"^
work thereon.

Notes on TT. S* Reports,

174 U. K

J, S. 639-670, 45 L. 1117, McMULLEN v. HOFFMAN.
iwrt will not enforce rights under contract tor combining bids
ssen competition, p. 654,

►proved in Diamond Glue Co. v. United States Glue Co,, 187
:. 614, 23 Sup. Ct. 207, 47 L. 332, holding contract wlierebj
gn corporation is to manage factory within State governed by
'onsin law reciulring filing of charter; Cumberland TeL, etc., Co*
vansville. 127 Fed, 108, holding city may question attempted
ifer of franrhiso to use streets for telephone purposes, such
J Illegal; Central Trust, etc., Co, y, Respass. 112 Ky, 615, 620,
W, 423, 424, holding equity will not entertain bill for account-
>f profits of " bcokmalting '' copartnership; Clark v. Needham.
rlich. SS, 83 N. W, 1028, holding void agreement whereby manw-
irer agreed to cense manufacturing ehaplets for one year with
lege of renewal for four years; dissenting opinion in Harcrow v.
Iner, m Ark, 20, G4 S, W. 8S1, majority holding defendant
Dt defend on ground that note was given for land conveyed by
& Id fraud of Intter's erHjltors.

?tiiigul.*ihed In Connoliy v. Union Sewer Pipe Co,, 184 U» S.
iG Tj. G85, 22 Sup. Ct. 435, holding formation of combination to
■ol production and sale of sewe'r pipe contrary to Sherman
trust act dops not preclude recovery of price of goods sold; Hai-
\ ^'ew England Koll**r-Grate Co,, 105 Fed. 222, holding innocent
aaser of stock declared Invalid for nonpayment of par value re-
rd by statute may recover money paid for certificate so declared

[L S, 670-674, 43 L. 1129, UNITED STATES v, DUDLEY.
urds planed and grooved or tongued and grooved are admitted
as dressed lumber, p. 673.

iproTcd In R. Brauss & Co, v. United States, 120 Fed, 1017,
;»g Split bamboo for use in making brooms entitled to free
T as bamboo unmanufactured under paragraph 700, act 1807;
ed States v. Leonard, 108 Fed. 45^ holding substances obtained
washing solid residuum left after distillation of wool grease
ible as wool grease under customs act 1S07,

D. S. 674-6.89, 43 L, 1130, LOUISVILLE TRUST CO. v.
LOUISVILLE, ETC., RY, CO.

was error, under c^lrcurastance disclosed, to confirm decree of
without Investigating collusion, p. 689.

►proved In State Trust Co. v. Kansas City, etc., R. R. Co., 110
17, holding purchaser at railway foreclosure sale may enjoin
ltor*8 suit in State court to enforce claim against property,
*king good faith of foreclosure proceedings; St Louis Trust Co.
es Moines, etc., R, R. Co., Wl Fed, r>:]5, holding Invalid transfer
lUroad'a property on foreclosure to reorganized company which

1045

Notes on U. S. Beports, 174 U. S. 710-718

65 Pac* 276. affirroJuij dlsmlesal of bUl to enjolo erection of dam
icross Rio Grande on ground of impairing naFlgabillty, where no
evidence of effect of dam offered.

Act September 19* 1800, relative to obstructiona In navigable
waterSt controls since Its passage, p. 707.

Approved in dissenting opinion In Keao v, Calumet Canal Co., 100
Q. S. 4m, 23 Sup. Ct 661, 47 L. 1147, majority holding Federal
)Atent of *• whole of fractional sections/* referring to official plat,
lonveyed to Indiana submerged portions thereof.

174 U. 8, T10-7ia 43 L. 1144, CHICAGO, ETC., RY. CO, v. STURM.

Exemption laws are part of remedy and subject to law of forum,
?. 717.

Approved In Baltimore, etc.. R, R. Co, v. Adams, 159 Ind. 09:?,
t6 N. E. 45, holding In absence of evidence common law as to ex-
smptions presumed to prevail In sister State; Sexton v. Phoenix
MB. Co., 132 N. C. 2, 43 S. E. 480, holding North Carolina citlnen
tamiot set tip personal property exemption in action In New York.

Kansas court reversed for failure to consider Iowa decision in
farnisheelng debt in suit, p. 718.

Approved In Rothschild v. Knight, 1S4 U. S. 341, 46 L. 580, 22
Sup. Ct 393. alfirming Rothschild Y, Knight, 176 Mass. 53, 54, 57
<f. B. 337, 338.' holding under Pub. Stat., chap. 157, U 96* 97, an
bsolTenfs assignee may seixe Iiy trustee process debt due nonresi-
lent defendant iiHeged to i>e fraudulent preference; Blaclcstooe
t. Miller, 188 U, S. 205, 23 Stip. Ct. 278, 47 L. 445. upholding New
fork inheritance tnx law as to transfer under will of nonresident
4f debts due decedent by residents of State* King v. Cross, 175
J. S. 399, 44 L. 213, 20 Sup. Ct 132, holding garnishment of resi-
tent debtor to reach debt due nonresident defendant does not de-
irive latter of property without due process; Tootle v. Coleman,
07 Fed. 43, 44, 45, holding garnishment by citlKen of one State of
esideDt debtor of nonresident creditor gives court power to sura-
Don defendant by publication; Johnson v. Foster. (19 Ark. G18, Cfi
?. W. 106, holding under act April 19, 1805. constructive service upon
(efendant and person a 1 service on garnishee gives Jurisdiction to
*dju<licate pUiiutlirs claim; Baltimore, etc., R. R. Co. v. Adams,
^9 Ind. <>81>. (ilKJ, t>95, m N. R 44, 4tj, holding railroad company
^misheed in Kentucky for money due Indiana employee and pay-
ne judgment protected therel>y although garnishment violated
Adiana statntes; Williams v. St. Louis, etc., Ry. Co., 109 La, 112.
t3 So, 05. Uolding eicmption laws are part of remedy and sut)Ject
o law of forum : Sexton v. Plicpuix Ins. Co,. 132 X. C, 2, 43 S, K. 480,
lolding situs of detit on insurance policy executed in New Yorl; or
Vorth CaroJimt is New York, where it is subject to attachmMOt;
f»ennyivania R, R. v. Rogers. 52 \\\ Va. 4fK), 44 8. E. 304, riolcling
aonreeident temporarily withiti State may be summoned lo answer

174 U. S. 718-760 Notes on U. S. Beports. lOlC^^

as garnishee, but when shown to be such cannot be held except for^^
property In hands.

Distinguished in Strouse v. iEtna, etc., Ins. Co., 126 N. G. 231, 3S^S^
S. E. 473, holding garnishment of Connecticut corporation for debl^^
due resident of North Carolina in action in Pennsylvania, no defens^^.^
to action against garnishee, debt having no situs in Pennsylvania ^^a
Paper Co. v. Shyer, 108 Tenn. 451. 67 S. W. 857, holding unconstl^^rn
tutional Shannon's Tenn. Code, § 5298, so far as authorizing de
cicncy judgment against nonappearing, nonsecured, nonresident

174 U. S. 718-727. Not cited.

174 U. S. 728-739, 43 L. 1150, SPURR v. UNITED STATES.

Refusing counseFs request to explain act 1882, imposing poialtr
for act charged, was error, p. 739.

Approved in Roberts v. United States, 126 Fed. 906, npholdlD .
instruction that *' willful Isilling," within Rev. Stat, f 5341, me
with evil intent or l^illing under circumstances showing reckle
disregard for life.

Distinguished in Rieger v. United States, 107 Fed. 924, holdia
refusal to reread to Jury charge as to presumption of innocenc
wliere jury did not desire rereading, not error.

174 U. S. 739-760, 43 L. 1154, SAN DIEGO LAND & TOWN CO. r.

V. NATIONAL CITY.
State may subject use of water to reasonable public control, p. 7BMt
Approved in Stanislaus Co. v. San Joaquin, etc., Co., 192 U. S. 2^1. Ct
215, 24 Sup. Ct 245, 247, holding reduction of water rates iiiidB.<r
Cal. Stat. 1885, p. 95, § 5, to give 6 per cent upon the value cf
property, does not amount to talking of property; San Diego LazB<t
etc., Town Co. v. Jasper, 189 U. S. 441, 442, 23 Sup. Ct 672, 47 I.
8M, holding depreciation in vaiue of plant and value of servleci
rendered due to drought may be considered in determining reasoa-
ableness of rates: Cotting v. Godard, 183 U. S. 85, 89, 90, 46 L. 99,
101, 22 Sup. Ct 33, 35, holding Kansas act March 3. 1897, limitiiv
charges to be made by stockyard's corporation without Umittoj
those of smaller concerns, thougli general in terms, is unconstitu-
tional; Freeport Water Co. v. Freeport 180 U. S. r.00, 45 L. 689, 21
Sup. Ct 498, holding Illinois statute June 6, 1891, not invalid beam
requiring no notice by cities fixing water rates; Spring VaL Wata^
works V. City, etc., of San Francisco, 124 Fed. 586, 592. 602, holdiU
unconstitutional San Francisco ordinance reducing water rti»
nllowinc: net earnings of 4 4-10 per cent on necessary property *^
3 3-10 after fixed charges paid; San Diego Land, etc.. Town Co. ^•
Jasper. 110 Fed. 713, holding nonallowance for deterioration of pl*"'
does not authorize court to declare rates unreasonable; affirmed ^
180 U. S. 441; Chicago Union Traction Co. v. Chicago, 199 lU. ^
(k> X. E. 492. upholding rate of fares fixed by Chicago Ret. C<K
I 17-3. did not deprive railways of property without due proc^

mi

Notes on U. S, Reports.

174 U. a 761-778

Kennebec Water Dist. v. WatervUle, 97 Me. 203, 204, 207, 214, 215.
54 AtU 13, 14p 15, IS, holding io fixing compensation for water- works
plant appraisers reasonable value of realty, and for all franchise's
rights and privileges, value based on reasonable rates.

judiciary interferes only when enforcement of rates amounts to
taking property without compensation^ p. 750.

Approved in Cotting v. Godard, 183 U. S. 90, 22 Sup. Ct. 35. hold-
ing Kansas act March 3, 1897, general in terms but discriminating In
fact against large stockyard by limiting its charges j Palatka W.
W, r. Palatka, 127 Fed. 166, granting preliminary Ii*JunctIon agalast
city fixing rates alleged by bill as destroying value of plaintifT's
property; Spring Valley Water- Works v. City, etc., of San Francisco^
124 Fed. 55^9, holding unconstitutional San Francisco ordinance fix*
Ing rates allowing return of 4.4 per cent on necessary property and
S.3 after fixed charges paldj Matthews v. Board of Corp- Comrs..
106 Fed. 9, 10, upholding finding that rates fixed for carriage of
rertilizers were not unreasonable where for four years carrier
?amed fair net profit.

Distin;?ui8hed In Cedar Rapids Water Co. v. Cedar Rapids. 118
fowa. 259, 260, 261, 91 X. W. 1090, holding water rates fixed by or-
dinance are not unreasonable where they allow net profit of be-
tween 4 2*5 and 6 1-2 per cent.

Fixing of rates Is legislative act, p. 750.

Approved in San Diego Lan(3, etc., Town Co. v. Jasper, 189 U. S,
140. 23 Sup. Ct 571. 47 L. 894. holding disappearance of petitioners
who commenced proceedings before sn per visors Immaterial where
supervisors defend suits.

Railroad corporation maintaining highway cannot fix rates ignor-
ing rights of public, p. 755.

Approved in In re New York, etc, Water Co.. 98 Fed. 716, holding
tt'flter supply company furnlslilng city wHth water is not subject
to Involuntary bankruptcy proceedings within bankruptcy act 189S,

Miscellaneous. Cited In San Diego Land, etc., Co. v. Jasper, 110
Fed. 704, 705, In statement of facts as part of history of litigation.

174 U. 8. 701-Tr8, 43 L. 1162, RICHMOND v. SOUTHERN BELL.
ETC., CO.

Act July 24, 1S06. in aid of construction of telegraph lines not
ipplicable to telephone, p. 777.

Approved In Atlantic & Pacific Tel. Co. v. Philadelphia, l&O U,
S. 1C3, 23 Sup. Ct 818, 47 L. lOUO. holding interstate telegraph com-
pany liable for reasonable municipa! license to cover local govern*
mental supervision of poles and wires; Cumberland Tel,, etc., Co.
V, Evansville, 127 Fed. 105, holding 14 Stat 221, granting telegraph
^mpanies right of way over military axid postroadii. does not give

174 U. S. 77a-800 Notes on U. S. Keports. 104S

telephone rights In city streets without local grant; City of Toledo ^=> Mo
V. Western Union Tel. Co., 107 Fed. 15, holding district telegraph m E ^\\
system not within Rev. Stat., §§ 5263-5208, permitting telegraph «:«'#h
lines to use public domain to enable company to use streets without ^ mlm
consent; Southern Bell Tel., etc., Co. v. City of Richmond, 98 Fed. • mj^.
672, holding under Va. Code, S 1287, telephone company accept- — _^.
ing terms of ordinance granting use of streets bound by reserved .K-»>^
power to repeal same; Krueger v. Wisconsin Tel. Co., 106 Wis. 105,^ ^35,
81 N. W. 1044, holding Terr. Laws 1848, p. 257, granting right to«z» rro
telegraph companies to occupy land with owner's consent, did nocz^^t
warrant errectlon of telephone line without additional compensation, m— «.

Distinguished in Michigan Tel. Co. v. St Joseph, 121 Mich. 510,^^3).
80 N. W. 386, holding municipality giving telephone company stree^^ -^3t
privileges cannot impair company's right to extend by refusing Kn:^ -o
make reasonable regulations for erection of poles; S. A., etc., Ry ■*^^.
V. S. W. Tel., etc., Co., 93 Tex. 320, 77 Am. St. Rep. 887, 55 8. W ^^'.
118, holding Rev. Stat., arts. 698, 699, giving telegraph corporatlonw- ^b
right to erect poles on public roads and conferring power of emi.^ i-
nent domain, extends to telephone companies.

Rights of telephone company under local ordinance determined b^. -j
court of original Jurisdiction, p. 778.

Approved in Southern Bell Tel., etc., Co. v. City of RlchmoDfT J.
103 Fed. 32, holding proper for Circuit Court to determine right .i
acquired by telephone company under Richmond ordinance.

174 U. S. 778-798, 43 L. 1169, OAKES v. UNITED STATES.

Act July 28, 1898, confers on Court of Claims Jurisdiction to d^^*-
termine merits of claim involved, p. 785.

Distinguished in Watts v. United States, 123 Fed. 114, holdii^^?:

special act (32 Stat. 242, chap. 887), for hearing In Circuit Court fc >r

British vessel injured in collisiou, conferred Jurisiliction to rend^^^f
decree against government for loss.

174 U. S. 800, 43 L. 1188, ADAMS v. COWEN (MEMORANDU ^

CASE).

Petition for certiorari allowed and affirmed by divided con
p. 800.

Cited in Glidden v. Cowen, 123 Fed. 49, holding counsel associata
in litigation having no partnership relation cannot be treated
partners in awarding compensation.

174 U. S. 800, STONE v. DEPOSIT BANK OF FRANKFORT.

• Affirming with costs by divided court, p. 800.

Cited in dissentiDg opinion in Deposit Bank v. Frankfort 191
S. 524, 24 Sup. Ct. 1(>3. majority holding decree of Circuit Court i
ing on State decision dodnrinj: Ky. Stat 1885-86, created exempt!
res adjudicata although State holding reversed.

CLXXV UNITED STATES.

S, 1-52. 44 L. 4a JONES v. MEEHAN.
Qdlan treaties construed as words would be understood bj
iaoB, p. 11.

pproved Id Sloan v. United States, 118 Fed. 288. holding* in
Btrulng Indian treaties, words ** half bloo(3 '* and *' mixed blood *'
based on bo dlstioction between derivation of blood from father
nother; United States v. Oregon Cent M, R. R. Co., 103 Fed. 5515,
Ung 13 Stat. 333, granting lands for wagon road purposes
sequent to Indian treaty relinquishing certain landa and re-
ring others, coavejed no land occui>led by Indians.
»i8tJnguished in United States v. Choctaw Nation, 179 U. S. 532,
L. 300. 21 Sup. Ct. 1G4. holding ordinary meaning of words of
IBM treaty not disregarded hecause of dependent character
iougb it includes an absolute cession.

reaty October 2, 1803, with Chlppewas, setting apart G40 acres
chief, granted alienable fee, p. 22.

pproved in Ex parte Joins, 191 U. S. 100, 24 Sup. Ct' 27.
ling prohibition against Choctaw and Chickasaw citizenship
rt to prevent e^ectuating of judginent of Federal court admlt-
f to citizenship will not issue wbere court had rendered jiidgmeat;
hWnj-BIn-Ness v. Eehelby. 87 Minn. 109, 01 N. W. 201, holding
ol Indian may maintain action in Circuit Court to recover un-
ided interest in section of la ad.

;Ighl fo inherit from tribal Indian grantee of land governed by
al cnstoms, p. 29.

pproved in Peters v. Malin, 111 Fed. 252, holding court of
te of Iowa has no authority to appoint gimrdian for ralaora
Sac and Fox tribe: Y-Ta-Tnii-Wiih v. Rehook, 105 Fed. 261,
ling property of deceased tribal Indian descends in accordance
h trihu! customs.

liscellaneous. Cited la Issnquah Coal Co. v. United States, etc-,
iranty Co.. 12(i Fed. 9fi, holding where evidence in supiiort of de-
se wtis Introduced without objection, objection cannot he first
je in appellate court.

U. 8, 32-30, 44 L. 62. SCUDDER v. COMPTROLLER OP NEW

YORK,
!onatltutionallty of State tax on nonresident's property not re-
wable on error unless raised below, p. 36.

ipproved In Harlclns v. AslivUle. ISO U. S. 635p 45 L, 700, 2J
}. Ct. 922. reatl5rmlng rule.

i;i(>49]

175 U. S. 37-90 Notes on U. S. Reporta. 1060

175 U. S. 37-40. Not cited.

175 U. S. 40-60, 44 L. 65, DE LA VERGNB GO. T. GERBiAN
SAVINGS INST.

Corporation without express power cannot purchase stock io ^
another corporation to control latter, pp. 54, 55.

Approved in Cumberland Tel., etc., Co. v. Evansyille, 127 Fed.

190, holding 2 Burns* Rev. Stat Ind. 1901, S 5517, conferring on .mz
telephone companies organized thereunder power to hold and con- — ^
vey necessary realty, does not authorize sale of entire property;^ -
Robotham v. Prudential Ins. Co., 64 N. J. Eki. 682, 53 Aa 845,..^
holding Laws 1896, p. 129, enumerating investments allowed toc^ ^
Insurance companies, does not warrant expenditure of $8,000,00(1^^^
to acquire controlling interest in trust company.

Distinguished in Bancroft v. Bloede, 106 Fed. 399, holding Frli ^m
ware Constitution expressly giving corporations power to hol^^ ^fl
stock in other corporations where prior law silent shows prlonc^s,
public policy not opposed.

175 U. S. 60-71, 44 L. 72, UNITED STATES v. CONWAY.

Court of Private Land Claims should respect titie confirmed
Congress, p. 71.

Approved in United States v. Baca, 184 U. S. 659, 46 L.
22 Sup. Ct. 543, holding, under act March 3, 1891, S 13, Court ^tf
Private Land Claims has no power to pass upon claims unA.^
Spanish grant confirmed by Congress and patented to grant^sit;
United States v. Chavez, 175 U. S. 525, 44 L. 260. 20 Sup. Ct 1«A
holding confirmation of grants to persons claiming by legal ra«>
cession from grantee may be made under act 1891, f 8, to claimmiit
alone without naming " assigns and legal representatives.**

175 U. S. 71-76. Not cited.

175 U. S. 76-90, 44 L. 78, AINSA v. NEW MEXICO, BTO, B. B.
CO.

Arizona territorial courts since 1891 determine validity of noo-
confirmed Mexican grant before cession, p. 90.

Approved In Ainsa v. New Mexico, etc., R. R. Co., 175 U. 8. 91.
44 L. 84, 20 Sup. Ct. 33, reaffirming rule; United States v. Btcci.
184 U. S. 657, 46 L. 735. 22 Sup. Ct 542, holding, under act March
3. 1891, Court of Private Land Claims has no authority to pass opo'
merits of Spanish grant confirmed by Congress and patented t
grantees: Mitchell v. Furman, 180 U. S. 435, 45 L. 611. 21 Sup. C
443, holding duty of securing private rights In territory ceded
Spain in Florida might be discharged by Congress or throf
boards or courts; United States v. Chavez, 175 U. S. 525. 44 L.
20 Sup. Ct. 1G5. holding confirmation of grant to claimants i
may be made under act 1S91, § 8, without naming " assigns and
^presentatives."

Den

Notes on U. S, Reports.

175 U, S. 91-114

Distinguished In United States v. Martinez^ 184 U. S. 445, 46 L.
34, 22 Sup. Ct. 424, holding unexplained delay of seven years after
onfirmation of land grant by Court of Private Land Claima bars
Ight to sue government.

75 U. S. 91-108, 44 L, S4, HARTFORD INS. GO. v, CHICAGO,
ETC., RAILWAY.

Common carrier may obtain insurance against losses by negll-
eoce, p. 98.

Approved in Wabash Ry. v. Ordelheide, 88 Mo. App. 592, uphold-
ig contract of indemnity against loss by fire made by lessee of
ortloo of right of way to erect elevator thereon.

Validity of contract releasing railway for negligence toward
»aBed premises determined by local law, p. 100,

Approved in Christie Grain & Stock Co. v. Board of Trade, 125
'ed. IGT, holding, according to Illinois construction, biuird of
•ade of Chicago not entitit^d to protection of rights In quotations
n dealings in futures: M'Cormlck v. Shippy, 124 Fed. 51, albrming
19 Fed- 230, upholding stipulation in charter demising vessel
Thereby owner assumes risk of loss through master's negligence;
a re Antlgo Screen Door Co., 123 Fed. 253, following Wisconsin
LW and decisions holding chattel mortgage fraudulent by agree-
lent giving mortgagor right to sell for own benefit and voidable
y general creditors; O'Brien v. Chicago, etc, llj. Co., 116 Fed, 507,
oldlng Invalid under Iowa laws abrogating fellow servant rule
in tract wherebj^ express messenger relieved express company of
ability and autborissed similar contract with railroad; L. Bucki &
f»n Lumber Co. v. Fidelity, etc.. Co.. 109 Fed. 401, following State
>nstrnctiou of Fla. Rev. Stat 1S92, § 1640, allowing reasonable
ttorney's fees as damages on attachment bond; Williams v. Gay-
►rd. 102 Fed, 374, following California construction of Stat 1880,
. 131, prohibiting any mining corporation from selling or dis-
oslng of ground as including foreign corporations; Southern Ry.
o. V. North Carolina, etc., Comra., 99 Fed. WtX holding decision of
fghest State court on question whether a statute lias bc^n repealed
y later statute binds B>deral court; Greenwich Ins. Co. v. Louis-
lUe & Nashville R. R., 112 Ky. 604, m S. W. 412, upholding con-
•act whereby railway company relieved itself from loss by Are of
nildiDg permitted to be built on right of way; Missouri, etc, Ry.
, Carter, 95 Tex. 477. 68 S. W. 1G5, upholding contract whereby
illlowner In consideration of construction of switch relieved com-
nny of liability for Injury to stock or employees.

75 U. S. im>-114, 44 U 92, BIENVILLE WATER SUPPLY CO. v.

MOBILE.
Corporation having nonexclusive water franchise cannot enjoin
!lty from making similar contracts, p. 114.

pproved In Joplia v. Light Co., 191 U. S. 158, 24 Sup. Ct 45,

175 U. S. 114-148 Notes on U. S. Reports. 1052 :

holding ordinance under Mo. Laws 1891, p. 60, granting twenty-year
nonexclusive electric-light franchise, does not impliedly bind city
not to engage in commercial lighting; Helena v. Helena Water .
Works Ck>., 122 Fed. 14, holding ordinance granting nonexclusive -^
use of streets for water purposes for twenty years reserving right j
of city to build sewers and other public works did not preclude -^
city water- works; Austin v. Bartholomew, 107 Fed. 352, holding ^q
grant of water-works privileges to supply city for twenty years .^^^
does not prevent city from contracting with other company for — ^
more water when needed; Cunningham v. Cleveland, 98 Fed. 052, ^ ^
holding ordinance granting water and electric franchise for term ^:m3
of years providing for rental for certain number of lights and^E:.^(
hydrants creates no monopoly.

175 U. S. 114r-120, 44 L. 94, IN RE BLAKB AND OTHERS. EX^.-DC
PARTE.

Writ of error and not mandamus proper remedy for review or ^cDf
State decision, p. 118.

Approved in State v. Nelson, 105 Wis. 115. 80 N. W. 1100, holdl^" art-
ing mandamus will not lie to compel county treasurer to repa^ ..^y
to town school trustee money erroneously paid by town treasurer.

Distinguished in Baltimore, etc., Assn. v. Alderson, 99 Fed. 4\)Tr l
holding where appellate court's mandate directs Circuit Court ta^wo
vacate order ratifying receiver's sale and to pay money to po -ir-
chaser, Circuit Court may award same to sureties of receiver.

175 U. S. 120-148. 44 L. 96, NEW ORLEANS v. WARNER,
Statute of Limitations does not bar cestui's suit against eiprc -s«

trustee, p. 130.

Approved in New Orleans v. Warner. 101 Fed. 1005, reaffirml^^Kifr
rule: New Orleans v. Fisher, 180 U. S. 196, 202. 203. 45 L. 401. 4Sn5.
21 Sup. Ct. 352, holding judjrment creditors of city whose clai^::«i»
payable out of school taxes not barred by statute from enforcfc. wg
accounting: against city collecting taxes as trustee.

Exemption from taxation does not exempt from special a8s^«-
ments, p. 130.

Approved in Edwards, etc.. Construction Co. v. Jasper County.
117 Iowa, 373. iX» N. W. 1009, 94 Am. St Rep. 301. holding cifr
property owned and used by county for courthouse not exeojpr
from special assessment for street improvement

Louisiana constitutional amendment 1S74 meant to validate dralfl-
as:e warrants, p. 144.

Approveii in Inited States v. Capdevielle. 118 Fed. 813, holding
drainajxe warrants payable out of drainage assessments in purcbiw
of drainajie plant under La. act lS7i» created no new indebtedi««-

MiscellaneiMis. Cited in Vickrey v. Sioux City. 104 Fed. 167. boM-
inp equity will eouipel city to collect and proi>erly apply assessrueflW
levied pursuant to Iowa statute though city liable to action it !**•

1053

Notes on U, S, Itoports,

ITo U. S, 148-177

175 U. S. 148-161, 44 L. 109, BRADY v. D^LY.

Revised Statutes, $ 49CC, awardiog damages for [nfrJnglng copy-
rights. Is Dot a penal statute^ p, 154.

Approved in Atlanta v. Cbattonooga Foundry, etc.. 127 Fed. 29.
holding action brought la Tenuessee for tliree-foid damages im-
posed by the remedial aatltiust act of 18*J0 governed by the throe-
year State statute, afflrmiag 101 Fed. 902. 010^ Boston, etc., R. R,
V, Hurd, lOS Fed. 120. 121. holding. Pub. Stat Mass, 18S2, punish-
ing railroads for wrongful death by $dTO to $5,(100 fine, recoverable
by indictiMent for widow and ehlldren, remedial in its nature.

Distinguished in BoUes v. Ontiug Co.. 175 U. S. 204. 44 L. 157,
20 Sup. Ct. 95, holding penalty of ^1 imposed by Rev. Stat.» g 4DG5.
for every sheet found In defenduut's possession, covers only those
la his bands for purposes of forfeiture; Newgold v. American, etc.,
Mfg. Co., 108 Fed. 343. holding qui tarn action to recover penalties
under Rev. Stat, g 4001, for falsely marking article patented la
penal and defendant cannot Ite compelled, under sectioa 724, to
produce incriminating books; Fuik v. Curtis Pub. Co., 100 B'ed. 79,
holding, under Rev. Stat., § (t29. Circuit Court has jurisdiction of
suit under section 4[)(iij for penalty of :fl for each infringing copy of
copyrighted eugravlng found in defendant's possession.

Action under Rev. Stat, f 40(10, are governed by State Statutes of
Llnjitatious, p. 101.

Approved la Atlanta v. Cbattonooga Foundry, etc., 127 It'ed. 28,
holding action brought in Tenuessee to recover three-fold damages
imposed by remedial antitrust law of ISDO governed by three-year
State statute; Green v. Barrett 123 Fed. 350, holding plaintiff's
right to revive action for iufriugement of patent against executor
of defendant subject to Massachusetts statute governing suits
against executors.

175 U. S. 1G2-172, Not cited.

175 U. S. 172-177, 44 L. 11(1, BROWN v. NEW JERSEY.

State has full control over procedure consistent with constitu-
tional guarantees, p. 175.

Approved in dissenting opinion In The Robert W. Parsons, 191
U. S. 45. 24 Sup. Ct 18, holding enforcement of Hen on cofial steam-
hotit for repairs wholly within jurisdiction of Admiralty Courts.

New Jersey law limiting peremptory challenges to five in cases
«f struck Jury is constitutional, p. 175.

Approved in Hall v. Johnson, ISO U. S. 4S0, 46 L. 1250, 22 Sup. Ct
^H3: Dobbs V. Kansas, 184 U, S. 697, 46 L. 764, 22 Sup. Ct 940;
Bessert v. Hagau. 1S3 U. S. GOt 40 L. 303, 22 Sup. Ct 935; Day v.
Conley, 179 U. S. *ji^, 45 L. 383, 21 Sup. Ct. 917; Clifford v. Heumpler,
177 U. S. 093, 44 L. 945, 20 Sop. Ct 1028, and Clifford v. Reampler,
175 U, 8. 723, 44 L. 337, 20 Sup, Ct 1024. all reaffirm lug rule;

175 U. S. 17^-187 Notes on U. S. Reports.

i«s>^

Capital City Dairy Co. v. Ohio, 183 U. S. 245, 46 L. 175. 22 8u^^^^
Ct 123, upholding Ohio statute prohibiting sale of oleomargarin ^^^ ^ ^
containing any coloring matter; Mallett. v. North Carolina, 181^^ *^
U. S. 599, 45 L. 20, 21 Sup. Ct 734, holding not unconsUtutiona ^» ^^^
allowance of appeal to State from court of one district but nor^^^^^t
from another district of State In case of grant of new trial; Mc-'^^^^*^^^
Donald v. Massachusetts, 180 U. S. 313. 45 L. 547, 21 Sup. Ct 390^O^»>.
upholding Mass. Stat 1887. imposing heavier punishment upoii::^ ^i^^on
person convicted of felony if twice before convicted and impriBone«:^-^ed
over three years; Erb v. Morasch, 177 U. S. 585, 44 L. 898, 200^2^20
Sup. Ct. 819, holding Federal receiver must run road subject tai^^' to
city ordinance regulating speed of trains within city limits; .^stta;
Murphy v. Massachusetts, 177 U. S. 163. 44 L. 715, 20 Sup.'^^ip.
Ct 642. upholding sentence of conviction under Massachusetts stat- '^ Ax-
ute after reversal of former judgment on application of accusef^^^sd
because former sentence was illegal; Maxwell v. Dow, 176 U. S-^^^^S.
584, 587, 603, 605, 44 L. 598, 599. 605. 606. 20 Sup. Ct 450. 451. -■: -1,
457. 458, holding Utah statute authorizing jury of eight does nor^c::*ot
deny defendant due process; Williams v. Gay lord. 102 Fed. 375*y^>'5.
following Cal. Stat. 1880, p. 131. prohibiting mining corporation
to dispose of mining ground, construed by State court to Include *
foreign corporations; State v. Comer, 157 Ind. 613, 62 N. R
holding Fifth Amendment providing that no person shall be con
pelled to testify against himself in criminal case operates solely ^K' ly
upon Federal power; State v. Taylor. 68 N. J. L. 279. 58 Atl
upholding lower courtIs order on motion of State that Jury
struck to try indictment against defendant

175 U. S. 178-183. Not cited.

175 U. S. 184-187, 44 L. 124, MARKUSON v. BOUCHER.

Judgments of State courts in criminal cases should not be
viewed on habeas corpus, p. 186.

Approved in Moss v. Glenn, 189 U. S. 506. 23 Sup. Ct 851, ^^ <*
L. 921; Tsukamots v. Lackmann, 187 U. S. 635. 23 Sup. Ct 842. ^^ ^7
L. 343; Bissert v. Hagen, 183 U. S. 6W. 46 L. 393. 22 Sup. Ct 93-^B5;
Day V. Conley, 179 U. S. 680, 45 L. 383, 21 Sup. Ct 917. and Drey»- — 'er
V. Pease, 176 U. S. 681, 44 L. 637, 20 Sup. Ct 1025. aU reafflrmJL i^ig
rule; Stori v. Massachusetts, 183 U. S. 141. 46 L. 124, 22 Sup. Ct 7-^— ^A
refusing to review on habeas corpus construction of State statut — «•
as validity governor's respite; Minnesota v. Brundage. 180 U. S.

502, 45 L. 641, 21 Sup. Ct 456, holding application for habeas corp ■»

should be denied without prejudice where accused has not avail ^■'^
himself of State remedies against alleged Invalid law; Davis ^•
Burke, 179 U. S. 402. 45 L. 251, 21 Sup. Ct 211, denying petiti-^^^o
for habeas corpus to interfere with execution of State cour-t**
sentence where State law alleged to be Invalid was not question ^^
in State court; lu re Stone, 120 Fed. 101, refusing to dischar^^
peddler convicted of peddling without license on ground that 1^

Notes on TJ; S. Reports.

175 U. S. 187-210

conviction violated Interstate commerce clause. See 87 Am. St.
Rep. 201, note.

175 U. S. 187-210, 44 L. 126, THE NEW YORK.

Navigation on Great Lakes In 1801 governed by Congressloniifl
Regulations of 18fM, p. 103.

Approved in The Albert DujboIs, 177 U. S. 245, 44 L, 756. 20 Snp.
Ct 597, holding navigation of Mississippi below New Orleans was
subject in 1S@7 to original rules of act 1^64, in Rev. Stat., § 423B.

Approaching vessel whose signals remain unanswered must stop
and reverse If necessary, p. 201,

Approved in The Zampa, 113 Fed, 544, holding schooner at fault
for holding lier course too long after seeing signals of other ship;
The J. B. King, 106 Fed. 981, holding vessel at fault for not revers-
ing When first and second signals were unanswered; The Mahar &
Bums, 106 Fed. 87. holding both tugs at fault where one signaled
passage to right continuing when signal onanswered, and other
eoj] tinned without observing vessel or signal.

Unexplained failure to hear signals and see lights on clear night
(^resumptive of negligence, p. 204.

Approved in The Clilcago, 125 Fed. 717, holding "Chicago" at
fault In not observing privileged ** Augusta ** and in seeking to
pass In front iontrary to rules of navigation; The Mauitou, 116
Fed. 64, holding where steam found In hold and valves partially
open vessel must show valves closed when voyage begun, or Infer-
BDce of unseaworthiness may he drawn.

The lesson that steam vessels must stop their engines In prusence
Df danger difficult, p. 207.

Approved In The Delmar, 125 Fed. 132, bobllng tug at fault for
collision with schooner for passing too near with barge In tow oo
800-foot hawser; The Straits of Dover, 120 Fed. 90;i, holding both
vessels In fault where Blueflelds, the burdened vessel, attempted to
cross bows of '* Straits of Dover/' wliere latter did not persist In
l^ourse nor signal; The Joseph M. Clark, 119 Fed. 401, holding
iteamer Hortou at fault for casting off and attempting to pass
icross bows of Clark, the privileged vessel, while latter was within
100 feet of landing; The Elizabeth, 114 Fed. 759, holtling ferry-boat
It fault In calling on sloop to give way where no dMculty prevented
Conner from observing rules of navigation; The Alabama. 114 Fed.
^17, holding duty rests on steamer to keep clear of tug incumbered
>vltb low; The Richmond, 114 Fed. 213, bolding disappearance of
Igbt was warning to steamer to exercise extraordinary diligence,
'ailing to do which is negligence; Wllder's SS. Co, v. Low, 112
?ed. 172, holding steamer at fault for collision with barkeiitlne,
pvhere former did not slacken speed to ascertain latter 's course
Immedijitely prior to collision.

175 U. S. 211-248 Notes on U. 8. Reports. VC^ '^^

Rules to be observed by approaching vessels discussed, p^^^ ^^*
208-210.

Approved in The City of Augusta, 102 Fed. 096, holding \^.^ — :^'^^'^
vessels to blame where neither observed the other until withi ^ ^^^in
400 feet of collision and neither heard other*8 signals, showini.^:^ **^K
intent to cross ahead.

PlaintifP injured by two vessels can recover entire damages froocx ^3om
either, p. 210.

Approved in The Delta, 125 Fed. 137, holding tug libeled for loai mm ^^sa
of scow cannot avoid liability on ground of negligence of third boa .a^^^at
unless latter brought in under admiralty rule 59; The Nesaba, 111 ^Kl -11
Fed. 223, holding both vessels at fault where overtaking vesse^^^^el
attempted to pass without receiving assenting signal from overr^K^^aer-
talsen vessel; The Livingstone, 104 Fed. 923, holding bond giveiK'^^en
for release of vessel libeled for collision brought Jointly by vesseK'^f^ael-
owner and owner and bailee of cargo stands for payment of same M"nit
recovered by insurers; In re Lalseland Transp. Ck)., 103 Fed. 33CO»'J0,
holding where- both vessels at fault cargo-owner*s remedy Is agalns^^^at
steamer solely and he may recover entire damages.

175 U. S. 211-248, 44 L. 136, ADDYSTON PIPE & STBBL CO. mf^ r.
UNITED STATES.

Congress may prohibit contracts directly and not Incidentall.
regulating interstate or foreign commerce, p. 228.

Approved in Bement v. National Harrow Co., 186 U. 8. 92, 98,
L. ]0G9, 22 Sup. Ct. 756, holding reasonable restrictions In licen
upon use of patented article not prohibited by act Congress Jn
2, 1890; Booth v. Davis, 127 Fed. 879, upholding contract by stocl^C: dL-
holders of corporation selling property not to engage in saic^^HM
business within certain territory for ten years; Phillips v. lola Por^M^t-
land Cement Co., 125 Fed. 595, upholding contract of sale by man' -^o-
faccurer to Jobbers for product to be shipped into another Stat^^Bie.
whereby latter are prohibited from selling outside such State; Wh It-
well V. Continental Tobacco Co.. 125 Fed. 458, holding contrac 'd

which substantially restrict interstate commerce and main purpo^^afe
is not to foster business of maimers; Edison Phonograph Ca v. Pi^hfe
lie Fed. 866, upholding condition in license to use and vend patt — Dt
articles, whereby licensee was not to sell for less than specific. ^
price; Chesapealce, etc., Co. v. United States, 115 Fed. 621. holdYx^
invalid contract between fuel company and coke producers for ti-if-
posal of whole output at minimum price, former not to ham€ik
product of competing mines; People v. Butler Street Foundry. 2Vi
111. 251, 60 N. E. 353, upholding 111. anti-trust law of 1891. /^
quiring corporation to answer under oath secretary of State's ^
quiries as to violations, without subjecting them to criminal proee
cution for truth.

057

Notes on U, S, Reports.

176 U. S. 211-248

Commerce dauBG limits liberty of citizen, p, 230.

Distinguished in Greenwich Ins. Co. v, Carroll, 125 Fed. 127,
Dlding invalid Iowa Code, § 1754, proliIbitiDg; 0re insurance com^-
injes In State from entering Into agreement Hxlug commissions
lowed agents; dissenting opinion in Lottery Case, ISS U. S. 307,
I Sup, Ct, 331, 47 L. 505, majority lioiding carriage of lottery
ckets between States by interstate express carrier within pro-
bltion power of Congress.

Combinations restricting sale of article of interstate commerc«
lolate act Jnly 2, 18110, p. 235.

Approved In Lottery Case, 188 U. S. 359, 23 Sup. Ct 328, 47 L,
e, holding carriage of lottery tickets between States by express
mpany within prohibitory power of Congress; United States v,
letft, etc.. Co.. 122 Fed. 533, holding Illegal agreement to refrain
Dm bidding against each other in purchasing cattle, and to bid
f prices; United States v. Northern Securities Co., 120 Fed. 725,
17. T28, 729. holding illegal, under Sherman act, combination be-
reen stockboiders of parallel lines to form consolidated eorpora-
>n controlling both to prevent eomperitlon; Chesapeake^ etc., Co.

United States, 115 Fed. C19, 1322, G23. 624, holding invalid cou-
aet between fueJ company and coke producers for disposal of
hole output at minimum price, former not to hamlle product of
»mpeting mines; Montague v. Lowry, 115 Fed, 2i), aTliiming Lowry
. Tile, etc., Assn., 100 Fed. 45, hoidlug invalid uuder '* Sherman
ct" "Tile, Mantel A: Grate Association of California,*' for uniting
all acceptable dealers*' on payment of fee, and prohibiting mem-
er« from purchasing from outsiders; Union Sower-ripe Go. v,
^nnelly. d^J Fed. 354. upholding note made for balance due on goods
►fought from corporation organized as trust to carry out restrlc-
cn» of trade contra to Sherman act; State v. Smiley, 05 Kan. 250,
51, 6& Pac. 205, 200. holding m^ilviug of anti-competitive trade
&reements as limiting dealers' rights to purchase grain on market
against public policy and void under Kan. Laws 18D7; Helm
*ew. Co. V. Belinder, 97 Mo. App. 77, 71 S. W. 605, holding illegal,
ider Kansas statutes, agreement between brewers within city,
hereby each agixed not to sell to customer indebt€*d to another
fewer for beer sold; dissenting opinion in Park, etc., Co. v. Nat.
^tnaggists* Assn., 175 N. Y. 30, tlT N, E. 149, majority upholding
^^ement between mannfaeturers of proprietary medicines and
*Wl(*aaie dealers to sell goods at uniform price for fixed tiuaiitltleB
^ those agreeing to maintain price. See noteSt 96 Am. St. Hep.
NJ: 74 Am. St. Kep. 240. 272.

Distinguished in Atl. & I'ac. Tel, Co. v. Philadelphia, 190 U. S.
te, 23 Sup. Ct. 818, 47 L. 990. holding municipality may Impose
Misonable license fee on Interstate telegraph company to cover
>«t of local supervision over poles and wires; Whitwell v. Con-
Vol. HI— 67

175 U. S. 211-248 Notes on U. S. Reporte. 10!«SO J

tinental Tobacco Co., 125 Fed. 460, upholding practice of mannv mzm. m
facturer selling to those who persisted in dealing with former"" -rr-^
competitors, at price so high as to make purchase unprofitable X ^J*]
Gilbert v. American Surety Co., 121 Fed. 502, holding agent holdio mzm. 2 1
property in trust for employer who bought same by executed corm^i^Ti,
tract in restraint of trade cannot deny employer's title.

Reasonableness of price is immaterial where contract enable M. mU
combine to charge unreasonable rates, p. 238.

Approved in Brown v. Jacobs Pharmacy Co., 115 6a. 437, 90 Adc^ ^m^
St. Rep. 134, 41 S. E. 556, holding illegal combination of mercantir Mjzil^
dealers to compel another dealer in similar goods to sell at fix^^ ^e«f
prices or be blacl^listed by combination.

Contracts in this case violate act July 2, 1880, p. 238.

Approved in Atlanta v. Chattanooga Foundry, etc., 127 Fed.
holding municipal corporation operating water or lighting plan
may recover under section 7 of " Sherman act " for injury due
combination to enhance price of pipe; Gibbs v. M'Neeley, 118
123, holding unlawful under Sherman act association of Washingt ^n
shingle manufacturers to control production and price of shingHE. ei
sold principally outside State; United States v. Chesapeake ft O.
Fuel Co., 105 Fed. 105, holding invalid contract between fuel co "Mm-
pany and coke producers for disposal of whole output at mlnimuj^ni
price, former not to handle product of competing mines; Atlacr^u
V. Chattanooga Foundry, etc., Co., 101 Fed. UOl, holding action -^Cor
three-fold damages under Sherman act not action for penalty g^cDr-
erniHl by limitation period of Rev. Stat, S 1047, but by State statim le;
People v. Coler, IGG N. Y. 151, 59 N. E. 778. holding unconstitutio-^CMl
N. y. Laws 181)7. § 14, prohibiting use on municipal works of i
. not prepared for use within the State. See 82 Am. St Rep.
note.

Distliipuished in Gibbs v. M'Neeley, 102 Fed. 508, holding
elation of ts^iate shinglo manufacturers orgnnizeil to establish •-■nJ-
form priivs and grading and prevent overproduction is thus fu
valid.

C\intraot or combination intending increase of price is in ^
St rain t of trade, p. 240.

.Vpprovod in Atlantic v. Chattanooga Foundry, etc., 127 Fed- 2i,
holilini: munioipal corporation operating water plant may recover
uiulor soctlon 7. Sherman act. for injury to business due to coin-
binatlon to enhance price of pipe.

Such enterprises may be of same nature as manufactaring ot
ivllned sujjar. p. 21(1

Approved in Louisiana v. American, etc.. Refining Co., 108 I*
i\\\l, i\\X ;*- So. *.K^0. i>Sl. holdinj: sugar refiner is manufacturer ex-
empt fivn» license taxation under Louisiana Constitution.

1050

Notes OD U, S, Reports. 175 U. S. 248-268

Congress has no power over commerce wholly within State, p. 247.
I Approved in Robinson v. Suburhan Brick Co.. 127 Fed. 807, hold-
ing antKni&t act ISDO Inapplicable to contract between factory
ftwners agreeing on sa!e of plants not to engage !n same business;
Atlantic V. Chattanooga Foundry, etc., 127 Fed. 20, holding munic-
ipal corporation operating water or lighting plant may recover
^der Sherman act for injury from combination to enhance price
If pipe; Gihbs v. M*Neeley, 107 Fed. 211, holding combination con-
Njlling manufacture and sale of cedar shingles within State gives
K> right of action under Sherman act

^5 U. S* 24a-262, 44 L. 150, UAYS v. UNITED STATES.

Under Mexican laws alcalde had no power to make grant of
iublie lartds, p. 25S.

[ Approved in United States v. Elder, 177 U. S. 121, 44 L. 697, 20
mp. Ct. 543, holding Inaurticient to pass title to grantee governor's
lldorsement on petition directing prefect to ascertain whether land
i&d owner and to deliver same; United States v. Fena» 175 U. S.
bs, 44 L. 254, 20 Sup. Ct. 168, holding neither prefect nor alcade
Ud power to make grant of lands In behalf of Mexican government
I Possession since treaty of Guadaloupe Hidalgo of itself gives no
[alid title, p. 260.

Approved In Chavez v. United States, 175 U. S. 5C3, 44 L. 274,
b Sup. Cl. 2<35. holding possession until 1848, from alleged grant In
fel. Insufficient to raise presumption of grant*

Distinguished In Sena v. United States. 180 U: S. 240, 23 Sup,
3t. 598. 47 L, 791, holding Court of Private Land Claims will not
loafirni title to Spanish grant abandoned nine years before treaty
ff 1848, heirs assexthig no title for fifty years.

is U- a 262-268, 44 L. 156v BOLLES v, OUTING COMPANY.

Penalty of Rev. Stat, § 4965, for Infringing copyright limited to
bpies tn actual possession, p, 208.
Approved in Uegeman v. Springer, 110 Fed. 375, holding demand
id refusal unnecessary to action under Rev. Stat., § 4005, fur
rfelture for Infringing pheeta of copyright picture; Falk v. Curtis

b. Co., 107 Fed. 128. affirming 102 Fed. um, Ofli>, 970, 071. hold-
S action of assumpsit to recover penolt3^ under Rev, Stat., § 4905,
t malntainjible until copies found In defendant's possession;

Ik V. Curtis Fub. Co., OS Fed. 91H. holding bad on demurrer decla-
tion to recover penalty under Rev. Stat., | 40t>5. for infringing
py right, which failed to allege finding of any copies In defeml ant's
^8sesaion,

Person not iiaklng out writ of error cannot complain of rulioga
low. p. 208.

Distinguished In Guarantee Co. of North America v. Phenix Ins*

^'

175 U. S. 26^-309 Notes on U. 8. Bepora. 10a»€3

Co., 124 Fed. 172, holding ^Tit of error maintainable to rerie^'^i
questions ol law arising at trial below after reversal of judgmeiS'^
in appellee*8 favor; Currier v. Trustees of Dartmouth College, ir: .^
F-ed. 47, holding defendant may support verdict on writ of err^ jb. ■
upon any ground fairly presented in his motion for verdict regan^^Lj
less of court's reasons.

175 U. S. 269-274, 44 L. 159. ARKANSAS BUILDING ASSN.
MADDEN.

Federal court will not enjoin collection of State tax on tai^ti^m
ground of illegality, p. 272.

Approved in Cruickshank v. Bidwell, 176 U. S. 80, 44 L. SS:.^
20 Sup. Ct 283, refusing to enjoin collector of customs from ^^
forcing act 1897, prohibiting importation of unwholesome teas
ground of inadequacy of legal remedy.

175 U. S 274-280. 44 L. 161, SIEBER6ER y. McCORMICK.

Supreme Court cannot review State decision based upon doclrE. -in
of general law, p. 280.

DUtinguished in Jacobs v. Marks. 182 U. S. 586. 45 L. 1244, 21 S — ujn
Ct 866, holding Federal question sufficiently presetted for writ of
error by assignments of error to refusal to give full faith to j^bwo-
ceedings of another State court.

175 U. S. 281-291, 44 L. 163, MALON^ v. AD8IT.

Bill of exceptions must be signed by judge who sat at U. ^
p. 284.

Approved in Niver v. Fields. 179 U. 8. 682, 45 L. 384, 21 Sop. Ct
919, reaffirming rule: Heckman v. Sotter. 128 Fed. 396. holA^^i
23 Stat. 24. 2tj, establishing civil government for Alaska, prot ^?wt-
ing Indians and others in possession of lands occupied by tt:»*nj
applied to tide lands adjoining: Western, etc.. Imp. Co. v. H ^W-
maier. 111 Fed. 124. holding Rev. StaL, f 953. allowing signing of
bill of exceptions by another judge when the trial judge inctp^^^*
tated by death, sickness or other disability, does not cover ir»<**
absence: Manning v. German Ins. Co., 107 Fed. 54. affirming GerxxJ4J>
Ins. Co. V. Manning. 100 Fed. 5S1. granting application for new t:ri«i
though made after year from judgment where illness and deatl> ^
judge below prevented signing bill of exception.

175 U. S. 291-300. Not cited.

175 r. S. 3C«0-309, 44 L. 171, NILES V. CEDAR POINT CLUB.

Meacvier line is actual boundary where surveyor's fleld-DOt«*
show survey stopped there, p. 3«-»6.

Approveii in French Glenn Stock Co. v. Springer. 1S5 U. S. 52.
40 I.. S" V. 22 Sup. Ct. 5»*»5. holding whether lake existed wber^
:r.ear.vUr line r:n \u Oresron swamp land grant a question of fact iK>f
ioi.v Ir.dtv* by oali :or such line on official plats: Bates v. Bnlft^^
loO Cal. ii5, tv2 rao. :X»d. holding where plat of lands selected un^

Notes on U. 6, Reporta. 175 U. S. 309-323

ramp land grant 1850, oo^erlng only lands inithln meander tine,
le to portions of sections wltliout remained In government;
UT V. Moore. 119 Iowa, 158, 93 N. W, 64, folding meander line
I body of water does not render same a lake to confer rights of
cretlon and reliction; Schlosaer v. Hempliill, 118 Iowa, 45T, 90

W. 843, holding where evidence show^ed nonexistence of lake
here meander line ran such line marked boundary of grant;
ate V. Lake St Clair Fishing, etc.. Shooting Club, 127 Mich. 003,

N. W. 126, holding land at time of Federal swamp land grant,
nnected with Island in navigable lake, but few Inches above
ater. not part of lake bed; Brown v. Parker, 127 Mich. 3t>2. 394,
i N. W. 900, holding swampy land adjacent to Lake Erie sur-
'yed by Federal government bounded by meander Hue not part of
ke bed and owner may prevent huntings Security Land» etc.,
J. V. BwDS, 87 Minn. 100, 91 N. W. 30/, 94 Am. St Rep, 691, hold-
g meajider line marks boundary where evidence showed
ke never existed where line draivn; dissenting opiuion in Kean
Calumet Canal Co., 190 U. S. 490, 491, 497, 23 Sup. Ct. 664, 067, 47

1150, 1152. majority holding Federal patent to Indiana, under
camp land grant, of *' whole of fractional sections " referring to
Bcla! plat conveyed submerged portions thereof.
Dlatlngulfibed in Murphy v. Kirwan, 103 Fed. lOS, holding plat

township surveyed and sold by government, showing meander
le and riparian rigbts, estops Jand department from Questioning
►curacy of such line.

5 U. 8. 309-323, 44 L. 174, NEW ORLEANS v. STEMPEL,
Asaesament of nonresident's credit, though made In wrong name,
arranis no Injunction, p, 311.

Approved ia Western Assur. Co. w Halilday, 126 Fed. 267, holding
lulty win not enjoin assessment because made to resident trustee
itber than to nonresident beneficiary.

Federal courts follow construction placed on State statute by
ate courts, p. 316.

Approved In Board of Assessors r. Comptolr National, 191 U.
400, 24 Sup. Ct. 112, holding La. Acts 1898. No. 170, authorizes
tation of credits arising out of loans made on collateral by lo-
l agent of nonresident corporation retaining collateral; Black-
Hae V. Miller, 18S U. S. 203, 23 Sup. Ct. 277. 47 L. 444, holding
LUsfer, under will of nonresident, of debts due blm from citi-
es meant to be taxed by New York statute; Amd v. tJniou Pac,

R. Co., 120 Fed, 915, holding Invalid, nnder Iowa rule, that
>perty receiving no benefits cannot be taxed for municipal pur-
ees, Council Bluffs' tax on railroad bridge.
Bank-bills and municipal bonds taxable wbere found regardless

<>wner*s domicile, p. 322.

Approved in Board of Assessors v. Comptoir Natloaal. 191 L. S.
3, 24 Sup. Ct 113, holding State may tax credits arising

175 U. S. 323-347 Notes on U. S. Reports. im '^^^'^

out of loans made by resident agent of foreign corporation on cr:
lateral held by agent; Blackstone v. Miller, 188 U. S. 204; 205. 20
23 Sup. Ct. 278, 279, 47 L. 444. 445. holding State of New Yo:^
may tax transfer, under will of nonresident, of debts due dec-ede ^
by citizens; Bristol v. Washington County, 177 U. S. 144. 44
706. 20 Sup. Ct 509. upholding, under Minn. Stat 1894. {{ HXJl^
4529. collection of personal property tax on investments of no^
resident made by agent by attachment on published notice; W<
ern Assur. Co. v. Halliday. 120 Fed. 259. 2C0. upholding taxati
under Ohio statutes, of Ohio bonds held in State by superinteiLKjx '^ao
ent of Canadian insurance company as trustee; Armour Pacl^iK M. Jug
Co. V. Armour. 118 Ga. 556. 45 S. E. 425. upholding taxation T Uy

city council of Augusta of notes and accounts due Armour Faciei: .M log

Company in hands of its agent; Comptoir. etc. v. Board of Asser- ttg.

ors. 52 La. Ann. 1331, 27 So. 805, holding nonnegotiable notes rci^ -op.
resenting loans in Louisiana made by resident agent of fore! ^^;:u
corporation taxable under State law; Corry v. Baltimore City, !fG

Md. 322. 53 Atl. 943. holding shares of stock held and owned by

nonresident of State in Maryland corporation taxable by Sta-s. re;
State V. London, etc.. Mtg. Co.. 80 Minn. 283, 83 N. W. 340. Ikm^M-
ing personal property of nonresident mortgage company in ba^rr^ds
of agent settling up affairs on insolvency subject to State taxati *^>Q.
Distinguished In Eidman v. Martinez, 184 U. S. 582. 46 L. r^ ^»1.
22 Sup. Ct. 517. holding war revenue act June 13, 1898, impos Snj?
inheritance tax, did not extend to American securities passing ^^d-
der will of nonresident alien and laws of Spain; Mackay v. Sr^«n
Francisco. 128 Cal. C87, 61 Pac. 385. holding lK)nd8 of fore* *^
railroad owned by two trustees, one resident and other nonresid^^^nt,
did not lose situs within State, though held in New York by i^ ^d*
resident trustee; Board of Council v. Fidelity Trust etc., Ca, '^^^
Ky. 674, 64 S. W. 472, holding mortgage on Kentucky realty ^r^nJ
bonds secured thereby held by nonresident not taxable in St ^snie,
though trustee resides within State.

175 U. S. 323-347, 44 L. 181, NEW ENGLAND RAILROAD CO^ - ^•
CONROY.

Laborer assumes risk of incident to particular employmeoC: u
from fellow servants, p. 327.

Approved in Shannon v. Consolidated, etc.. Min. Co., 24 VTsi^
132, 64 Pac. 173, holding duty imposed upon withdrawing i^i^ift
boss to warn new -shift of missed holes was part of master's ducr
not that of servant.

Conductor and brakeman are engaged in same common entet-
prise and are fellow servants, p. 340.

Approved in New England R. R. Co. v. Conroy. 99 Fed. 1006,
and New t:ngland R. R. Co. v. Conroy, 98 Fed. 1006. both reaflnD-
ing rule: Fournior v. Pike, 128 Fed. 994, 996. upholding Instructioo
that foreman was fellow servant with men under him to precIiKit

1003

Notes on U. S. Reports. 1T5 U. S. 323-347

recovery for Injury due to his negllgeiiee In permitting dangerous
tnetliod of work; Hale v; Kansas City Soutbern Ry. Co., 120 Fed.
735, dismissing petition for damages for death caused throu^fh
w>le negligence of fellow servants: Elliott v. Felton, 119 Fed. 271,
2f79, holding Tennessee decision, under State Code preserving ac-
tions, that eonductar and brakeman not fellow servants, being mat-
ter of general law, not binding on Federal court; Davis v. Trade
Dollar Consol, Mia. Co., 117 Fed. 123, holding foreman of one
shift fellow servant with men of other shifts; Weeks v. Sc barer,
111 Fed. 335, holding shift boss and members of shift are fellow
servants assuming risk of each other's negligence; McDonald v.
Buckley, 1C»9 Fed. 294, holding foreman of piled riving gang direct-
ing operation of the pOedriver, giving signals for fall of hammer,
fellow servant of members of gang; Louisville, etc., R. R, Co. v.
Stuber, lOS Fed. 93S. 939. holding divlsioa water foremao Intrusted
with care of pumps and tanks fellow servant of engineer with
whom he was riding when in juiced; Lafayette Bridge Co. v. Olsen,
108 Fed. 337, holding bridge company iiahle for death of servant
caused by breaking of defective plank where plank selected by
workman without proper Inspection; Kelly v. Jutte & Foley Co.,
104 Fed. 956, 958, holding employee Injured by falling derrick be-
cause of Insufficient bolts, due to negligence of superintendent,
cannot recover from company; Olson v. Oregon Coal & Navigation
Co., 104* Fed. 576, holding sliipowning corporation not lialjle to
member of crew for injury from falling through hatch negligently
left open by another member of crew; Stevens v. Chamberlin,
100 Fed. 381, 382, 383, holding machinist having authority over
fireman, assistant machinist and helpers, fellow servant of em-
ployee called to assist in repairing machine; Brlegal v. Southern
Pac. Co.» 98 Fed. 962, holding engineer directing fireman to oil
turntable and by whose negli;ieiice tirenian was Injured was lat-
ter's fellow servant precluding recovery; Brush EI L. Co. v.
Wells, 110 Ga. 202, 35 S. E. 3&K holding engineer of light and
power company fellow servant with linemao killed by former's
negligence In turning on cuncnt, within Ga. Code, § 2610: Mc-
tQtieeny v. Chicago, etc., Ry.. 120 Iowa, 526, 94 N. W. 1120, hold-
ing foreman in charge of steam shovel and laborer mjured by
caving of bank while assisting foreman replace shovel chain are
fellow servants; Rounds v. Carter, 94 Me. 540, 48 Atl. 176, hold-
ing administrator cannot recover for death of brakeman killed
by falling from car by striking of standard against a bridge, stake
being too long; McVex v. St Clair Co,, 40 W. Va. 425, 38 S. E.
*j53, holding foreman and coal shoveler directed by him to assist
in running electric mining machine fellow servants; Wiskle v.
MonteDo, etc., Co., Ill Wis. 450, 87 N. W. 464, holding foreman
conducting blasting in granite quarry aud employee working with
him are fellow servants assuming risk of other's negligence; dis
i^M opinion in St Louis, etc., R. R, Co, v. Furry, 114 Fed.

175 U. S. 34^-^54 Notes on U. S. Reports,

904, majority holding, under Ark. Dig., S 6248, declaring employe^-^ -^
in same department of service fellow servants, fireman and teUf '^^:3
graph operator under dispatcher not fellow servants; dissentiiEx M :^
opinion in Missouri, etc., Ry. CJo. v. Elliott, 102 Fed. 109, 111. m^m^mzm^i
Jority holding train dispatcher not fellow servant of employc<fc g^ -v
operating train and required to obey his orders. See notes, 75 ^"-^ f^
St Rep. 608, 610.

Distinguished in Southern Pacific Co. v. Schoer, 114 Fed. 46^^,^^
holding, under sections 1342, 1343, Utah Rev. Stat, making scs^^g^ei
vants having direction of others vice-principals, company liabczV^^;^
for negligence of engineer on mining train; Texas, etc., Ry. ^

Carlin, 111 Fed. 779, holding, under Texas statutes, declaring k. ^^
railroad employees having direction of other employees vIce-prT — ar/n.
cipals, foreman of bridge gang not fellow servant of gang me _ jm
bers; Stuber v. Louisville, etc., R. R. Co., 102 Fed. 422, holdi^^Bii^
skilled machinist employed to keep pumps and tanks in repair i^^miot
fellow servant of engineer with whom he was riding, reversed la

108 Fed. 938; Hicks v. Southern Ry., 63 S. C. 576, 41 S. B. < 58.

holding conductor not fellow servant of brakeman acting also st§
fiagman on same train; Railroad v. Jackson, 106 Tenn. 442, (H

S. W. 772, holding conductor of freight train not fellow servii^aiot
of station agent precluding recovery for latter's negligence In
leaving "pinch bar" on track; Peterson v. Seattle Traction C — :»m
23 Wash. 621, 63 Pac. 541, holding one employed to lay brack w^ 5th
transportation to and from work not fellow servant of emplojr *«?w
operating car.

Railway v. Ross, 112 U. S. 377, so far as asserting vice-princS. ImiI
doctrine, overruled, p. 341.

Approved in Scott v. Chicago G. W. Ry. Co.. 113 Iowa. 385,, 85
N. W. 632. holding erroneous charge that employer is liable*- to
all underservants for negligence of vice-principal either In persc^**!
conduct within employment or in hiring other servants; New Om^ ^i*
etc., Co. V. Baldwin, 02 Nebr. 180. 87 N. W. 30. holding, follow' ^ng
Ohio rule, that foreman controlling branch of light compa K^.^'i
work not fellow servant of men under him; Knutter v. New Vork.
etc., Co., 67 N. J. L. Go2, 52 Atl. 567, holding telephone WueMMiaa
fellow servant of " district manager " having supervision of i^oe
gang and its foreman, and precluded from recovering for his n<^-
ligence; Mast v. Kern, 34 Or. 249, holding superintendent bbsIsUbx
in preparing hole for blast and servant putting in powder aiv
fellow servants. See notes, 75 Am. St Rep. 609. 625, 686.

175 U. S. 348-354, 44 L. 192, TULLIS V. LAKE ERIE & WEST-
ERN RAILROAD.

Statute making railroad and other corporations liable to «»•
ployees for injuries is constitutional, p. 351.

Approved in Tullis v. Lake Erie, etc., R. R. Co., 99 Fed. lOOC.
reaffirming rule; Chicago, U. I. & P. R. R, Co. v. Zerneckc 1S3

W€5

" S.

Notei OB U. S. Reports.

175 U, S. 354-305

K S. 587. 46 L. 341, 22 Sup. Ct 231, hoItHog corporation organ-
ized under Nebr* act 1867 cannot complaiu of section 3 imposing
absolute liability for passenger^s Injury not caused by own willful
negligence; John Hancock Mut L. Ins, Co. v. Warren, 181 U. S.
76, 45 L. 75S. 21 Sup. Ct. 536. upholding Oliio Rev. Stat, | 3625,
proTidlng applicant's answer shall not bar recovery on policy un-
less willfully false and material, and inducing Issue of policy; Car-
glU Co, V. Minnesota ex reL R. R. & W. Comm., 180 U. S. 4G6, 45
L. 626, 21 Sup. Ct 428, upholding Minn. Gen. Laws 1895. ciiop.
146, requiring license for elevators and warehouses on railroad
right of way; Waters Pierce Oil Co. v. Texas, 177 tJ, S. 43, 44
L. 6«^, 20 Sup. Ct 524, upholding Tex. act 1889, granting per-
mission to foreign corporations to operate within State subject
to forfeiture of right for violation of same; Clark v. Kansas City,
176 U, S. 119. 44 L. 397, 20 Snp. Ct. 2m, upholding Kan. Gen. Stat.
1897, chap. 32, empowering cities of 30,000 to Incorporate by or-
dinance land not Bgriculturai, bounded on three sides by platted
land; Cincinnati, etc., R, R. Co. v, Thiebaud, 114 Fed, 922, up-
holding Ind. employer's liability act. Laws 1S03, subjecting corpora-
tions to liability for Injury of servant by negligence of feilov^^ ser-
vants In certain coses; Callahan v. Jler,, etc., Ry., 170 Mo. 491,
n S. W. 213, 94 Am. St, Rep. 758, upholding Rev. Stat. 1899, § 2873,
rendering every railroad corporation In State liable for Injury of
servant while operating road from negligence of fellow servant;
National Protective Assn. v. Cummiag. 170 N, Y. 324, 63 N. E,
371, holding employees have no right of action against union
threatening strike unless eraployer discharged ra embers of rival
organization; State v. Schlitz Brew, Co,. 104 Tenn. 732, 737, 78
Am. St. Rep. 949, 952, 59 S. W, 1036. 1037, upholding Acts 1897.
chap, 94, prohibiting on penalty of fine combinations to lessen
competition In Importation of articles of domestic growth or of
domestic raw material.

Distinguished in Ballard v. Oil Co,, St Miss. 5G0, 507, 5G8. 669,
576, 95 Am. St. Rep. 485, 486, 487, 4SS. 493, 34 So. 552, 553, 555,
556, holding unconstitutional Laws 1S9S, chap. 66, giving *' every
employee of any corporation " same right to recover therefrom
for negligence of fellow servant as from Individual employer;
Thompson v. Traders* Ins. Co.. in9 ^SIo. 30. 68 S, W, 893, holding
Rev, Stat, 1889, § 5927, allowing recovery of damages for vexatious
delay Id paying Insurance loss, inapplicable to suit on Kansas con-
tract between Kansas citizens in Missouri.

175 U. S. 354-383. Not cited.

175 U. S. 384^05. 44 L. 206, THE BUENA VENTURA,

Innocent Spanish vessel with cargo of lumber exempted from
eaptnre by president's proclamation, p. 391.

Dlstingulsheil in The Panama, 176 U. S. 541, 44 L, 679, 20 Sup.
Ct 482, holding president's proclamation of April 26, 1898, ex-

175 U. S. 30&-423 Notes on U. S. Reporta.

empting ** Spanish merchant vessels '' from capture did not exte
to armored mail steamship.

175 U. S. 396-408, 44 L. 211, KING v. CROSS.

Rhode Island attachment of debt due Massachusetts citizen b^cz^e-
fore latter's assignment Is valid, pp. 406, 407.

Approved in Rothschild v. Knight, 184 U. S. 341. 46 L. 680, =" 22
Sup. Ct. 393, affirming 176 Mass. 54, 57 N. E. 337, holding, und-^R3er
Massachusetts statutes, debt due nonresident may be seized IH^ by
trustee process; Johnson v. Foster, 69 Ark. 618, 65 S. W. IC^^-M,
holding, under act April 19, 1895, constructive service upon C^^de-
fendant and personal service on garnishee confer Jurisdiction to

determine amount due and order payment; Bloomingdale v. Wt^mm- eli,
29 Wash. 624, 626, 70 Pac. 99, 100. holding assignee, under f«»^ "for-
eign deed of assignment, will prevail in suit to quiet title agaiizi^Kast
foreign attaching creditors, though acknowledgment of deed c^mmot
sealed.

Distinguished in Paper Co. v. Shyer, 108 Tenn. 451, 67 S. * W.
857, holding unconstitutional Tenn. Code, { 5298, providing ^^zTor
deficiency Judgment against nonserved nonappearing nonreside — Dt

175 U. S. 409-414, 44 L. 217. ABBOTT v. TACOMA BANK mmDF
COMMERCE.

Affirming State court's dismissal of suit for libel committed in
pleadings in Circuit Court, p. 414.

Approved in De Lamar's Nevada G. M. Co. v. Nesbitt, 177 U.
S. 529. 44 L. 874, 20 Sup. Ct 718, holding decision of State a^ ^«rt .
in favor of right claimed by party, under act of Congress, ^^-m-
pending forfeiture of mining claims not reviewable on error.

Distinguished in Wade v. National Bank of Commerce, 114 F"^ed.
o78, holding action will lie for injuries to reputation from t^^^^
and defamatory matter contained in complaint.

175 U. S. 414-423, 44 L. 219. HAMILTON v. RATHBONE.

District of Columbia Rev. Stat, { 728, enable wife to devise all ^
property, pp. 418, 419.

Approved in State v. Sopher, 157 Ind. 369, 61 N. E. 788. hol^^^°^
under act March 17, 1875, as construed on appeal from order gr^^°^*
Ing license, appellee protecte»l only for sales made prior to o^^o*^
of term when appeal possible.

Province of construction lies wholly within domain of ambigc^^O"-
p. 4?!.

Approved in Southern Ry. v. Machinists' Local Union, 111 Fed- •".
holding Tennessee Acts 1875, chap. 93, prohibiting knowingly eof^o
ing away of any one under employ of another prevented \sbor
unions from influencing apprentices to leave employ; In re Ftx^^.
102 Fed. 298, holding under § 57g, bankruptcy act 1898, vequ^rinf:
surrender of preferences by creditors desiring to prove balance o'

1067

Notes on U. S. Reports. 175 U. S. 423-51:8

ileht applies to payments received in due course; Jay v. School Dist-,
24 MoDt. 225, Gl Pac. 252, holding under PoL Code, § 1750, prevent-
ing hiring teacher for more than three months or one having leixai
eertiflcate in force prevents hiring teacher for nine months; dissent-
ing opinion In People v. Harrison, 191 IlL 271, ill N. E. 104* majority
holding under Illinois statutes general provisions of statute are con-
strued to effeetnate main intent though particular provisions oot
given literal reading.

175 U, S. 423-500, 44 L. 223, LA ABRA SILVER MINING CO. v.
UNITED STATES.

Suit by attorney-general under act 1892, la Court of Claims,
i3 a "case" within Coast., art 3, § 2.

Approved In South Dakota v. North Carolina, 192 U. S. 320, 24
Sup. Gt. 277, uphoitling Supreme Court's jurisdiction of foreclosure
*ult by South Dakota as donee of bonds issued by North Carolina
ind secured by railway mortgage; Hale v. Cotfin, 114 Fed. 574,
lolding Federal court has jurisdiction to subject to decedent's debts
;>roperty in hands of distributees after Probate Court's administra-
:ion complete.

175 IT. S. 500-509. Not cited.

175 U. S. 5m>-525, 44 L. 255. UNITED STATES V* CHAVEZ.

Upon long utUnterrupted possession the law bases presumptloa of
tiUe, p. 520.

Approved In United States v, Pendell, 185 U. S. 197, 200, 46 L.

K. 872, 22 Sup, Ct. 027, 029, holding existence of valid Spanish
nt and proper record thereof presumed from evidence of unin-
terrupted possession from 1790 until filing of confirmation petition.
DiBlinguished in Chavez v. United States, 175 U. S, 563, 44 L. 273,
20 Sup. Ct. 20ci. holding possession until 1S48, wnder alleged grant
In 1S31, insullicient to raise presumption of grant

175 U. S. 520-li2S. 44 L, 261. BAHDES V. HAWARDEN FIRST
NATIONAL BANK,

Review by writ of error under judiciary act 1891, chap, 191, re-
'juires certificate after 13na! judgment, p. 528.

Approved in Elliott v, Toeppner, 187 U. S. 334, 23 Sup. Ct 130,
47 L. 203, holding proceedings upon jury trial In bankruptcy pro-
ceeding cannot be re-examined upon appeal from judgment that
defendant was not ijonkrupt; Arkansas v. Schllerholz, 179 U. S- 601,
45 L. 337» 21 Sup. Ct, 231, holding question of Circuit Court's juris-
diction not sutllcientiy certified by order allowiug appeal from
decision on merits discliarging laud office agent from custody of
RherilT; Bardes v. Ha warden Bank. 178 U. S. 526, 44 L. 1177, 20 Sup.
Ct lOOl, holding District Courts have no jurisdiction under bank-
rui^tcy act 1898 of actimis to reduce to possesKion alleged assets

^bankrupt; In re Jacolis, 99 Fed, 542. holding appeal may be taken

175 U. S. 528-588 Notes on U. S. Reports. 10C>O.K:

to Circuit Court of Appeals from final decree of District CouVt i< ^--
ordinary way from decree setting aside fraudulent conveyance bcJT ^
banluoipt.

Distinguished in Hutchinson v. Otis, Wilcox, etc., Co., 123 Fe^r^-i^
18» holding bankruptcy act 1898 excludes appeal to Supreme Courx:v«>Q
from Circuit Court of Appeals' decision allowing or rejecting claliry m m^\
except on certificate from Supreme Court; In re Lewin, 103 Fed. fff i^nj: gi
holding proceeding under section 60d, bankruptcy act 1898, to r^ < f
examine transaction by which bankrupt transferred property " ^ |

attorney is statutory and requires no regular process.

175 U. S. 528-563. Not cited.

175 U. S. 5G4-570, 44 L. 274, NORTHERN PACIFIC RAILROAD ^ZD r.
AMACKER.

Law deals tenderly with one entering land bona fide to iiiii ■ ■ iHi
home thereon, p. 567.

Approved in Manley v. Tow, 110 Fed. 248, holding 13 Stat "* 72.
granting land to Iowa in aid of railroad construction, did not cc^-^^od-
vey unearned portions for use of company to prefer company to

prior settlers; Northern Pac. Ry. v. Nelson, 22 Wash. 533, 61 Pt "^•ac.
707, holding withdrawal of lands by land department in filing p' -^Ki^lat
of proposed route by railroad withdrew land from homestead ent — ^Mxj.

Distinguished in Tarpey v. Madsen, 178 U. S. 220, 44 L. 1045, 20

Sup. Ct. 850, holding law grants no consideration to claimant i** en-
deavoring to oust railway company whose claim after abandonm^^*-«ot
of prior entry remained undisputed.

175 U. S. 571-588, 44 L. 276. BLACKBURN v. PORTLAND GOC: — LD
MINING CO.

Adverse claims to mining property cognizable in State or Fede ^f«i

court under Rev. Stat.. § 2326, p. 579.

Approved in California Oil, etc., Co. v. Miller, 106 Fed. ^SiW.
reaffirming rule; Reals v. Cone, 188 U. S. 186, 23 Sup. Ct 276, 4» I-
438, holding action under Rev. Stat.. § 2325, in support of adv^^rw
mining claim is not necessarily reviewable by Supreme Court on
error; Sweringen v. St. Louis, 185 U. S. 44, 45, 46 L. 199, 22 ^^up.
Ct. 572, holding no Federal question raised by decision of 8"^^^^**
court that distances set forth in Federal patent do not b^r^^D/r
boundary of land to Mississippi river; Mountain View M. k -V.
Co. V. McFadden, 180 U. S. 534, 45 L. 656, 21 Sup. Ct 488, holcS^Dff
judicial notice of facts which plaintiff did not rely on in pleacSioy
cannot make them part of complaint to raise Federal questi^o;
Kennard v. Nebraska, 180 U. S. 308, 46 L. 1177, 22 Sup. Ct SSl.
holding Nebraska decision that Pawnee reservation • lands a^
public lands within 13 Stat, at Large. 47, does not question valf^J'O'
of statute to raise Federal question; Gableman v. Peoria, etc.. B. &
Co., 179 U. S. 339, 45 L. 223, 21 Sup. Ct 173, holding mere fact tii^t
Federal court appointed receiver does not render all actions against

torn

Notes on U. S. Rpports. IT^l U. S. 571-588

him removable to Federal coiirt: Avery v. PuiiiM'r, 170 U. S. 310,
45 L. 205p 21 Sup. Ct* 96, halditig mere fact of imreliase at raarshura
sale of property sold under execution from Federal court wbere
vaJidity of judgment not questioned not reviewaiile on ermr:
Chicago, etc., Ry. Co. v. Martin. 178 U. S, 251, 44 L. 1057. 20 Sup,
Ct. 856, holding railway and receivers sued jointly for wrongful
death must all join in petition for removal; De Lamar's Nevada
G. M. Co. V. Nesbltt, 177 U. S, 527. 44 L. 874, 20 Sup. Ct. 717. hold-
ing mere fact that mining company claimed title under location made
under general mining laws raises no Federttl questiou; Shoeshone
Mining Co. v. Rutter» 177 U. S. m'>, 44 L. 8C4, 2u Sup. Ct. 720, hold-
ing suit in support of adverse claim to mine under Rev. Stat..
U 2325. 2326, not within Federal jurisdiitloa regardless of citizen
ship; Florida Cent., etc., R. R. v. Bell. 170 U. S. 329, 44 L. 400, 2u
Sup. Ct 402, holding plaintiff cannot create Federal jurisdiction
by alleging that defendant will set up defense under Federal law;
Joy v. St. Louis. 122 Fed, 527, 528, holding action for recovery of
land claimed under Spanish gr^nt and confirmation of Congress
without diversity of citizenship not within Fe<leral jurisdiction;
Larned v. Jenkins, 109 Fed. 101, holding action, under Rev. Stat,
ft 2320, to determiae right to possession to mining claim does not
necessarily come within Federal cognizance; Johnson v. Munday,
104 Fed. 594, holding action in support of adverse mining claim
does not involve Federal question; dissenting opinion in TuUock
V. Mulvane. 1S4 U. S. 519, 4G L. 608, 22 Sup. Ct. 380. majority
holding Federal question presented by claim that no breach of in-
junction bond condition caused by filing stipulation In cause or
by pendency of appeal.

Distinguished In Vlcksburg Water-Works Co. y. Viel^sburg, 185
U. 8- 68, 46 L. SIO, 22 Sup. Ct 580. holding bill alleging that
water- works contract Is Impaired by ordinance deny log liability
for use of li^'drants and by bond election for municipal plant
raises Federal question; Tullock v. Mulvane, 1S4 U, S. 508, 46 L.
065, 22 Sup. Ct 370. holding Federal questions presented by claim
that DO hreacli of condition of injunction bond resulted from tiling
stipulation and by pendency of appeal; M'Cune v. Esslg, 122 Fed.
590, holding removable suit by daughter of deceased home*^tead
settler to recover interest In land patented to widow after his
death.

Circuit Court's jurisdiction depends upon statement as In good
pleading showing Federal question involved, p. 581.

Approved in Bankers', etc., Co. v. Minnesota, etc.. Ry., 102 U.
8. 386, 24 Sup, Ct 330, dismissing writ of error from decision of
Circuit Court of Appeals, holding no Federal question raised by
suit against railroad to recover for value of lost mail package;
Defiance Water Co, v. Deflanco, 101 U. S. 191, 24 Sup. Ct mi,
holding no Federal question of impairment of contract raised by
aance denying validity of contract, but allowing rentals with

n

175 U. S. 588-626 Notes on U. S. Reports. 107^S"CDyiO

provision to prevent estoppel; Boston, etc., Mining Co. ▼. Montana fx. mssa
Ore Co., 188 U. S. 640, 23 Sup. Ct. 438, 47 L. 632, holding Federal tk «r^
question cannot be raised by averments as to probable defenses -^ ^ abc
to be raised by defendants; American Sugar Refining Co. v. Newsr-^'^He^
Orleans, 181 U. S. 281, 45 L. 862, 21 Sup. Ct. 648, holding Cour-x.KLrou!
of Appeals has Jurisdiction where Circuit Court's Jurisdiction re8te<»^^ :jr ^tc
on diverse citizenship, though some questions could have beev'^-^^ee
certified to Supreme Court; Lampasas v. Bell, 180 U. a 283, 41^- . ^
L. 530, 21 Sup. Ct 370, holding city cannot complain that ne'^^^^MZie^
incorporation bringing in new inhabitants violates constitutioni^ «nv ^d^
rights of such persons by giving them no hearing; Western Unio:^=»^ Mion
Tel. Co. V. Ann Arbor R. R. Co., 178 U. S. 244. 44 L. 1054. 20 BnjM: mlm- 9up,
Ct 869, holding insufficient to show Federal question bill alle^-^^ Jie^.
ing simply that telegraph company has right to maintain line oc^ oo
railroad under Federal statute; Owensboro v. Owensboro Wate-^» water-
works Co., 115 Fed. 321, holding Supreme Court has exdusi^ m. 4n>e
Jurisdiction of appeal in case involving constitutionality of Sta* jKK.are
statute as regards Federal Constitution.

A case may arise, under Rev. Stat, ii 2325-2326, presenting ques:^ sec-
tion essentially Federal, p. 587.

Approved in State v. Frost, 113 Wis. 658, 89 N. W. 924. bolKI --Jd-
ing information in equity to restrain Federal receiver from (K^i»de-
stroying railroad, alleging amoimt involved therein exceeds |2.0^«C-jri(>
exclusive of costs, is removable.
175 U. S. 588-609. 44 L. 284, UNITED STATES V. GLEASON.

Where parties mal^e decision of engineer on disputed mattc^i^rB
conclusive courts will not revise, p. 602.

Approved in American Bonding, etc., Co.. v. Gibson Co., 1^^M27
Fed. G73, holding owner cannot recover ** per diem damages ■c=for
uoncompletion of building" where no certificate of architect re-

quired by contract was shown; Parlin, etc., Co. v. Greenville. * 327
Fed. 61. holding committee of council charged with acceptance o^

garbage furnace could not capriciously and unreasonably refi^^*^****
to accept furnace properly built; United States v. Bonness. z — ^25
Fed. 400, holding government bound by Judgment honestly ec "^^r-
cised of logging superintendents chosen to supervise cutting <^^

timber on Indian reservation; United States v. Venable Const CT -^o-
124 Fed. 273, holding estimate of engineer of amount of stone u -^sed
in coast batteries, settlement to be based on engineer's estima'^*''
binds contractor in absence of fraud; United States v. SmyC if.
120 Fed. 33. holding superintendent of mint liable for loss of p^ ^^
lie moneys destroyed by fire through negligence of subordin** '^•*
IJoyce v. United States Fidelity, etc., Co.. Ill Fed. 143, holAi^^
where municipal public work was to proceed to satisfactioD o^
trustees having char^'e thoivof forfeiture by trustees cannot ^
impeached without showing fraud.

175 U. S. 60^-62a Not cited.

Notes oa 0. S» Reports.

175 U, S, 626-047

■F. S. 62G-635. 44 L. 290, KEOKUK & HAMILTON BRIDGE
CO. V. ILLINOIS.

The record must show Federal questioo raised and settled ad-
rsely to appellant, p, 634,

approved in New York, etc., R. R, Co, y. New York, 18G U, ^3.
■J. 4ti L. 1160, 22 Sup. Ct. 917, dismissing writ of error where
?ord raises no Federal question and State decision rested eDtlrcly

charter power of New York city to consider benefits of assess-
iuti Chapin t. Fye, 179 U. S, 130, 45 L 121, 21 Sup. Ct. 72, hold-
f reference to Fourteenth Amendment in assignment of errors
lufflelent raising of Federal (iuestlou; Henkel v. Cincinnati, 177

S. 171» 44 L. 721, 20 Sup. Ct. 573, holding certificate of chief
Itlce of State Supreme Court that assessment violated Federal
Eistitution could not confer jurisdiction.

t U. S. 635-C38, 44 L, 303, WHITCOMB v, SMITHSON.

CVhere plaintiff insists on joint liability receiver cannot remove,

mgih railroad held not liable, pp. fi37, 638.

^pproved io McGilvrnj v. Knott. 179 U, S. 680. 45 L. SS^, 21

fc Ct. 917, reaffirming rule; Kansas City, etc., Co, v. Herman,

rXJ, S, 68, 71, 23 Sup. Ct. 20, 27, 47 L. 78, 79. upholding denial

second application for removal, alleging fraudulent Joinder of
Pendants, where averments of fraud denied and after defend-
t*s demijrrer to evidence was su stained; Chesapeake & O. R. R,
. V. Dixon, 179 U. S. 140, 45 L. 125. 21 Sup, Ct. 71. holding
tion against railroad and engineer and fireman for concurrent
pli^ence in causing person*9 death is joint and not separable
acago, etc., Ry. Co. v. Martin. 178 U. S. 248. 44 L. 105B, 20 Sup.
. 855. holiling all defendaiits must unite in petition for removal
lere Jointly sued for death of person; Douglierty v, Yassoo, etc..
V. R. R. Co., 122 Fed. 211, holding complaint charging injury
fin being thrown from palace car operated jointly by both de-
3daiits alleges joint cause of action; Yarnell v. I'elton^ 104 Fed.
i, atlirmlng 102 Fed, 370, liohling. under act 1887-88, corpora-
u and receiver must both join in petition for removal; Railway
• T, Heruiao, C4 Kan, 549, GS Fac. 47, holding railroad company
tile for Injury caused by running train In excess of sta cory
5<;d w^here such speed was proximate cause of Injury; Howe v.
'rthern Pac. Ry., 30 Wash. 570. 70 Pac, 1102, holding dismissal

Suit against division Biiperlntcndent and train dispatcher against
»^ lutings protest does not entitle railroad to removal.

S U, S. I539-U47, 44 U 305, TELLURIDE POWER CO, v. RIO
GRANDE, ETC. RY.

Setting up general right under Federal statute without attack-
K statute not Federal fiuestion, p, 045.

Approved in Tellnrhle Power, etc., Co. v. Rio Grande, etc., Ry.
K 1S7 U. S. 579, 581, 23 Sup. Ct. 182. 47 L. 311, reaffirming rule.

175 U. S. d4a-676 Notes on U. S. Reports.

10

Miscellaneous. Cited in Rio Grande W. Ry. ▼. Power Co., 2
Utah, 33, 63 Pac. 997, holding State Supreme Court cannot reTie
on appeal order of Federal court remanding cause to State coui

175 U. S. 64S-676. 44 L. 309. LOUISVILLE, ETC., RAILROAD O
V. BEHLMER.

Where several carriers transported hay on through bills of ladin.
they constituted continuous line, p. 6G2.

Approved in East Tennessee, etc., R. R. Co. v. Interstate Co:
merce Comm., 181 U. S. 12, 15. 16, 18. 45 L. 723, 724, 725, 21 Su
Ct 520, 521, 522, upholding discrimination in favor of competiti
points on account of competition compelling reduction of rates
low those for shorter distance; Interstate Commerce Comm
Louisville, etc., R. R. Co., 118 Fed. 626, holding making of throim. ^^^i
rate on interstate shipments by Joint action of connecting ro^^^.^-^^
brings each within interstate commerce act; Interstate Comme-K^^:*^
Comm. V. Southern Ry. Co.. 105 Fed. 709, 710, 711, holding wU^re
commission erroneously refuses to weigh evidence in regard zo
competition between carriers' subject to act, court dismisses ac^ioii
without prejudice to new application.

Distinguished in People v. Knight, 171 N. Y. 358, 64 N. E. 1S3.
holding cab service maintained by interstate carri^ at terminsl,
but under separate contract, subject to State taxation.

Competition malies conditions of long and short haul substanti*
ally dissimilar, p. 667.

Approved in Interstate Commerce Comm. v. Cincinnati, P. & '^-
R. R. Co.. 124 Fed. 629, holding low rates on through shipmea^^
from Richmond and Norfollt to Chicago points because of comi^^^
tition not unlawful discrimination against Wilmington.

Where commission erred in finding facts Circuit Court of AJ^*
peals remands for further proceedings, p. 675.

Approved in Interstate Commerce Comm. v. Chicago, B. ft ^'
R. R. Co.. 186 U. S. 342, 46 L. 1191, 22 Sup. Ct 833, holding Su-
preme Court will not investigate facts on appeal from decree r^
fusing to enforce interstate commerce commission's order; Inte^'
state Commerce Comm. v. Clyde Steamship Co., 181 U. S. 32, -*^
L. 731. 21 Sup. Ct. 512, holding court will not investigate fac«^
on application to enforce commission's order where commlMlo**
by niisconstruction of statute failed to find facts; East Tennessee-
etc., R. R. Co. V. Interstate Commerce Comm., 181 U. S. 27. -*^
L. 729, 21 Sup. Ct. 520, holding comrts wUl not find facts whicU
interstate commerce commission failed to find because of miscoO'
struotion of statute, but will dismiss without prejudice; Interstat*?
Com. Comm. v. Southern Pacific Co., 123 Fed. 604, holding orJi'^
of interstate commerce commission, requiring railroads to dosi.-*
from practice of routing certain kind of freight, prima facie valid-

Notes on IJ. S. Reports.

I'T* U. S. 677-723

P.B, 077-721, 44 L. 320, THE PAQUETE HABANA.
of 1891 renders appealable coDvIctioD for capital crime, p. 582.
iroved In Fitzpatriek v. Unked States. 17S U, S. ;^07, 44 L. 1080,
X Ct. M5t holdiug coavictiou of murder capital crime allowing
1 to Supreme Court although jury may waive capital punish-
and impose life imprlsoumenL

1891 gave oppelJate jurisdiction without regard to amount
itroversy, p. 6SQ.

.roved in Woey Ho v. United States. 191 U. S. 558, 24 Sup. Ct,
?amrmliig rule; Giles v. Harris. 1S9 U. S. 485, 23 Sup. Ct ti4l,
911* holdmg ei:juity will not compel county board df registrars
■oil qualified negro on voting lists,
tiuguisiied in Holt v. Indiana Mfg. Co.» 176 U. S. 73, 44 L,

0 Sup. Ct. 274, holding suit to restrain collection of taxes less
$2,000 In amount not within Circuit Court's JuriBdlctlon

act 1S88: Puruell v. Page, 128 Fed. 498, bolding under act
making jurisdictional amount ?2,<XM} Circuit Court has no
iction of suit to restrain collection of eighty dollars personal
tiough clouding valuaWe realty; dissenting opinion in Giles
rrls, 189 U. 8. 4!j7. 498, 23 Sup. Ct, 044, 47 L. :>10. majority
ug to compel hoard of registrars to register a qualifled negro
ting Hat uiMler Alabama Constitution.

rt is authorized to consult records In navy department, p. G96.
►roved In dissenting opinion in Tucker v. Alexandroff, 183 U.
\ 46 L. 282, 22 Sup, Ct. 212, majority holding memliers of
in naval service sent to United States as crew of cniiscr
built here, deserting before completion, subject to arrest under

1832.
St fishing vessels pursuing their vocation, exempt from
•e, p. 71 a

roved in The Paciuete Habana, ISO U. S. 404, 23 Sup. Ct 5IM,
903. holding naval captors of prizes cannot be held liable for

1 thereof nor for damages wiicre government itself filed
on owD behalf; The Manila Prize Cases, 188 U. S. 273. 279. 23
2%, 423, 425, 47 L, 473, holding barges propelled by poling and
ig derricks without means of propulsion not subject to capture
Kes.

icellaneous. Cited in The Adula. 127 Fed. 858, holding Rev,
SI 4646, 4647. permitting district attorney to retain sum for
e in prize cases additional to maximum legal salary not re-
1 by act fixing saiarles.

. 8. 723. 44 L. 337, MISSOURI. ETC., RY. CO. Y. EVANS,
error to Circuit Court of Appeals for fifth circuit dismissed.

^d In Loveless v. Ransom, 107 Fed. 627, holdiug where decree

Vol m — 68

175 U. S. 723-724

Notes on U. S. Reports.

107

is Joint all parties against whom rendered must Join in writ a
error.

175 U. S. 723, 44 L. 337, FORDYCE v. TRIGG.

Writ of error to Supreme Court of Arkansas dismissed, p. 728.

Cited in Loveless v. Ransom, 107 Fed. 627, holding where d(
is Joint all parties against whom rendered must Join in writ

175 U. S. 723, 44 L. 337, CLIFFORD v. RUEMPLER.
AflOirming order of Circuit Court for District of New Jersey, j^
Cited in Clifford v. Reumpler, 177 U. S. 693, 44 L. 945, 20 8i

Ct. 1028, reaffirming rule.

175 U. S. 724, 44 L. 337, L. BUCKI & SON LUMBER CO. ▼. i^^<^
LANTIC LUMBER CO.

Petition for certiorari to Circuit Court of Appeals for Ikj^fj^
district denied, p. 724.

Cited in dissenting opinion in L. BuclLi, etc., Co. ▼. Atlantic L^oxd-
ber Co., 116 Fed. 8, majority holding bill for amount of Judgmcor
by correcting amount of set-off erroneously stated by court Mtmte§
cause of action.

175 U. S. 724, 44 L. 338, BRYAN v. BERNHEIMER.

Petition for certiorari to Circuit Court of Appeals for fifth drvo/r
granted, p. 724.

Cited in Holden v. Stratton, 191 U. S. 119, 24 Sup. Ct 47, boUliiv
certiorari not appeal proper method for review of decision of Qt-
cuit Court of Appeals in action under act July 1, 1898.

CLXXVI UNITED STATES.

S. 1-28. 44 L, 347, LOUISIANA T. TEXAS.
t graDted leave to file bill against State of Texas, p. 2.
'oved la Washlugton v. Nortbem Securities Co,, 185 TJ, S,
6p 46 L. 897, 898. 22 Sup. CL 624, holding leave to file original

Supreme Court may be granted wltbout tntlmatlDg any
I on Jurisdictional question,

-antine laivs are valid until displaced by OoiigTeds, p. 21*
»oved in Gompagnie Fraaeaise v. State Board of Healtli,
S. 389. 393, 4a L. 1214, 1216. 22 Sup. Ct. 815, upboldlng ac-
' Louisiana State board of bealth, under Acts 1898, in pro-
g Freucli steamer from landing passengers at New Orleans,
jcted port; State t. Superior Ct, of Milwaukee Co., 105 Wis.

N, W. 1053, holding court cannot enjoin passage of town
ice, under Rev. Stat., § 1862, granting tise of streets to
railway company.

by one State to enjoin health officers of another State from
ng quarantine laws in particular manner, not coutroTersy
n Slates, p. 22.

nguished In Missouri t. Illinoifl, 180 XT. S. 234, 240» 243, 45
. 512, 21 Sup. Ct 341, 343, 344, holding threatened daily
^rtatlon of sewage by sanitary commission of Chicago,
h unnatural channel into Mississippi river, basis of controversy
!n States; State v. Frost, 113 Wis. 655, 89 N, W. 923, hold-
ormatlon in equity to prevent Federal receiver from destroy-
llroad within Jurisdiction of Federal courts.
s cannot make war or enter treaties, though they may en-
npacts, p. 22.

roved in State of Kansas v. State of Colorado, 185 U, S.
I Sup. Ct. 557, holding controversy between States presented
filed by Kansas against Colorado to ascertain whether latter
vert waters of Arkansas river.

ellaneous. Cited in New^ York, etc, Ry, Co. t. Plscataqua
2o., 108 Fed. 94, holding owner of seagoing vessels may
r damages aa demurrage for obstruction of navigable chan-
drawbridge.

S. 28^51. 44 L. 358, UNITED STATES T, OREGON, ETC..
R. CO,

1 grant of 1864 was In nature of float until definite location,

raved In Oregon, etc., R, E, v. United States, IS9 U. S. 105,
[1075]

176 U. S. 51-67 Notes on U. S. Reports. 1^ ^76

23 Sup. Ct 616, 47 L. 728, holding secretary of interior not anltz::=ioT-
ized on acceptance of railway map of definite location to w uh-
draw indemnity lands from settlement; Hewitt v. Scliultz, ISO^^ U.
S. 146, 45 L. 468, 21 Sup. Ct 311, following land departme -nt'8
construction of Northern Pacific land grant of 1864 that such gc^^ant
did not warrant withdrawal of indemnity lands from settlem eot-
Messinger v. Eastern Oregon Land Co., 173 U. S. 59, 44 L. 3*1

20 Sup. Ct. 272, holding land within exterior lines of general r— i^q^^
of Northern Pacific not appropriated by act Congress 1864—- ^ j^
prevent disposal before definite location filed; Wilcox v. Ea^K^ f^^
Oregon Land Co., 176 U. S. 52, 56. 57, 44 L. 368. 370. 20 Sup _ ^t
271, holding lands within exterior lines of general route of y^zi^rth-
em Pacific not appropriated by grant of 18G4 to prevent tz^r/i^;.
disposition before definite location; United States v. Northern J>ae.
R. R. Co., 103 Fed. 390, holding, under 13 Stat. 3G5, granting wUter
nate sections to Northern Pacific company, grant attached to aU
land with limits not sold or subject to entry when general route
located.

Filing map of general route does not prevent grant to anotlier
company, p. 46.

Approved in Nelson v. Northern Pac. Ry. Co., 188 U. 8. 118, 120,
23 Sup. Ct. 305, 306, 47 L. 411, 412. holding filing map of general
route did not vest title to alternate sections granted to Northern
Pacific company in 1864 to preclude bona fide homestead eotrj;
Southern Pac. R. R. Co. v. United States. 109 Fed. 921. holdlni:
where Texas Pacific route never definitely fixed lands incladetl
in grant to it subject to claim by Southern Pacific on locating
road under 16 Stat. 573.

Distinguished in dissenting opinion in Nelson v. Northern Pa**-
Ry. Co., 188 U. S. 143, 151, 23 Sup. Ct. 315. 318, 47 L. 420. ma
jority holding filing by railroad company of map of general route,
under grant July 2, 1864, did not withdraw such lands from home-
stead entry.

176 U. S. 51-57. 44 L. 368, WILCOX v. EASTERN OREGON LAND
CO.

Congress could dispose of lands within exterior lines of Northern
Pacific general route, p. 57.

Approved in Nelson v. Northern Pac. Ry. Co., 188 U. S. H^*
23 Sup. Ct. 30G, 47 L. 411, holding alternate sections of grant of
1SG4 to Xorthern Pacific company not vested by filing ni>P ^*
general location to prevent making of bona fide homestead enir.v:
Messingor v. Eastern Oregon Land Co., 176 U. S. 58, 59. +* L
371. 20 Sup. Ct. 272, holding land within exterior lines of general
route not withdrawn by grant July 2, 1864, to prevent conpresal**^^
disposition before filing of map of definite location; Messinj:er ^^
Warehouse Co., 39 Or. 547. 65 Pac. 808, holding where lessee or

1077

Kates on U. S. Reports.

176 U. S. 5&-13

micls of disputed title attoriuHl to persons ndjntlged owners thereof
] nest Ion of colluaion In attornment for the Jury.

Oistinguished in dissentiu^; uijluion in Nelson t. Northern Pac.
Sy. Co*. 18S th S. 151. 2:i Sup. CL 318, 47 L. 42.% majority holding
Uternate sections, under grant of 1864 to Northern Pacific com-
pany, not vested by Jiiing map of general location against snbse-
tueDt bona fide homestead entry.

76 U. S. 58, 59. 44 L. 370. MESSINGER v. EASTERN OREGON
LAND CO.

Congresa could dispose of lands witlilo exterior lines of Northern
Pacific's general route, p. 59.

Approved in Nelson v. Northern Pacific Ry. Co., 1S8 U, S. 119,
3 Sup, Ct 306 » 47 L, 411, holding alternate sections, under grant
►f lSt»4 to Northern Faeilie company, did not vest on filing of maps
tf general location to prevent Imna fide homestead entry.

Olstinguished In dissenting opinion In Nelson v. Northern Pac,
ly. Co., 188 U, S. 151, 23 Sup. Ct 318, 47 L, 423, majority holding
;rant of 1864 to Northern Pacific company did not vest alternate
lections in company on tiling map of general location to prevent
^ona fide homestead entry.

1711 U. S. 59-68, 44 L. 371, BLAKE v. McCLUNG.

Citizens of Ohio entitle<l to share In distribution of as.sets of in-
lolveut eijuaily with cltizeuB of Tennessee, p. 68.

Approved in MacMurray v. Si dwell, 155 Ind. 50G. 58 N. E. 725,
holding foreign hulldiiig do in;!: no business In State, but colleetlng
dues on stoclc and premiums on loans already made, gave local
stockholder no preferential right on insolvency.

Biatingnished in State v. Travelers* Ins. Co., T^ Conn. 270, 47 Atl
306, upholding Gen. Stat., || :i830, 3916, assessing insurance stock
of residents at market value, deducting value of taxed realty and
ihares of nonresidents at Wi per cent, on market value.
17tJ U. S. *)8-73. 44 U 374. HOLT v. INDIANA MAKUFACTURING
CO.

Provisions of act 1871 were brought forward and preserved, p. 72.

Approved In Giles v. ILirris, 180 U. S. 485, 23 Sui>. Ct, 041, 47
L. 911, holding eiiuity will not compel county bt^ard of registrars
to enroll negro ou voting lists nuder registration provisions of
Alabama Const it uti^u.

Circuit Courts have original cojjuizance of suits of civil nature,
p. 73.

Approved In West on v. Tierney, 101 V, S. 5m 24 Sup. Ct. S4S:
Douglas Co. V. Stone, 101 IL S. *")7, 24 Sup. Ct 843, and Weston v.
Tlpruey, 184 U. S, GlHI, 40 L. 703. 22 Snp. Ct. 0:i8, all reafiJrmlng
rule: Excelsior Wond^ni Pipe Co. v. I'aciftc Bridge Co,, 185 U. S.
2K5, m L. 013, 22 8 up. Ct, (1^2. holding recital in order allnwisig
ical from Circuit Ct)urt'8 decree that nppeai alloweil from final

176 U. S. 73-92 Notes on U. S. Reports. lOT^ ^

order dismissing for want of jurisdiction shows jurisdiction ^^^_^
issue; Cincinnati, Hamilton, etc., Ry. Co. v. Thiebaud, 177 U. ^^
620. 44 L. 913, 20 Sup. Ct. 824, holding writ of error from Suprei^^^-.
Court will be dismissed where prior writ from Circuit Court of -^^^
peals already pending in Circuit Court; Carter v. Roberts, 177 — ^
S. 500, 44 L. 863, 20 Sup. Ct. 714, holding direct appeal from C^s. ^
cuit to Supreme Court on question of double punishment by coi^^^^^
martial cannot be taken after decision by Circuit Court of uJli^j

peals; Purnell v. Page, 128 Fed. 498, holding, under act Aujc m^bi

13, 1888, making jurisdictional amount $2,000, Circuit Court can^ -nor
entertain suit to restrain collection of $80 personal tax, tho^^ui^li
clouding valuable realty; Falk v. Curtis Pub. Co., 100 Fed. 79.

holding suit, under Rev. Stat., § 4965, to recover penalty for in-
fringing copyrights involves validity of copyright, hence wi^i^Bbiii
Circuit Court's jurisdiction; dissenting opinion in Giles v. Ha-^Hrris,
189 U. S. 495, 496, 497, 502, 23 Sup. Ct 643, 644, 646, 47 L. ^15,
916, 918, majority holding equity will not compel county regi8tr^:»an
to enroll negro on voting lists as duly qualified voter.

Distinguished In Pendleton v. Lutz, 78 Miss. 333. 29 So. IM,
holding Federal receiver cannot remove suit to Federal court m-
der act 1887, § 3, where amount in controversy less than $2,000 wmJ
State court in possession of property.

176 U. S. 73-82, 44 L. 377, CRUICKSHANK v. BIDWELL.

Mere fact that law is unconstitutional does not warrant luff ^d<^
tion, p. 80.

Approved in Kirwan v. Murphy, 189 U. S. 54, 56.23 Sup. Ct 003^ OW,
47 L. 705, 706, holding claimant ot land within meander line ***J'*
not oppose government survey as public lands on grouncJ* ®^
Irreparable injury or multiplicity of suits, where survey wilL "^^
injure timber or land; Indiana Mfg. Co. v. Krehne, 188 U. S. ^•
23 Sup. Ct. 453, 47 L. Go4, holding insufficient bill to enjoin cc^ "ac-
tion of State tax on corporation stock and franchises where °°^
cloud on title sliown nor multiplicity of suits threatened, and ^ ^
remedy adequate; People v. District Court, 29 Colo. 195. 68 ^^^•
247, holding court will not enjoin State board of assessors iC'roni
valuing railway telegraph and other transportation property ^^
ground of unconstitutionality of law; State v. Wood. 155 Mo- ^
50 S. W. 479, refusing to enjoin enforcement of Missouri *^
inspection law on ground of injury to beer by opening bottles wi^^
Inspection could precede bottling.

17G U. S. 83-92, 44 L. 382, BOLLN v. NEBRASKA.
First eiglit amendments apply to Federal not to State courts, p- ^
Approved in Hawaii v. Maukichi, 190 U. S. 220, 23 Sup. Ct 7Si
47 L. 1024, holding constitutional provision concerning grand and
petit juries not extended over Hawaii on annexation; MaxweU ^•
Dow. 17(5 V. S. 584. 003, 44 L. 598. 605. 20 Sup. Ct 450, 457. holding
due process afforded by prosecution by information before j^^

1079

ICotes an U. S. Reports.

176 U. S. 92-120

of eight: Willmma v. Hert. 110 Fed, 170, holding State of Indiana
has power to provide for prosecution of offenses by information:
Bahaud v. Bize, 105 Fed. 4m. holding all Inhabitants of Nebraska
Territory having signified intention to become citizens became
citi24?n8 of United States on admission of Nebraska as State,

lie U. S. 92-114, Not cited.

1T6 U. S. 114-121, 44 L. 392, CLARK v. KANSAS CITY.

Objection to const) tntionality of act cannot be made by one not
aiTected thereby, p. 118.

Approved in Smith v. Indiana, 191 U. S. 148, 24 Sup. CL 52» hold-
ing cotiniy auditijr has no personal interest to maintain writ of
error to review State decision requiring deduction of mortgage
from realty values; Red Itiver Valley Nat. Bank v. Craig. ISl U. S.
558, 45 L. lOtMi. 21 Sup. Ct. 707, holdiug mechanic's lienor cannot
question new statute where property was sold subject to his ben
under existing laws before enactment of law in question; Lam-
pasas V. Bell, ISO U. S. 283, 45 L. 530, 21 Sup, Ct 371, holding city
sued OD bonds issued after iacorporatiug new territory cannot
raise Federal question by claiming incorporation proceedings invalid
for failure to give inhabitants hearing ; Waters rierce Oil Co, v,
Texas, 177 U. S. 43, 44 L. 663, 20 Sup. Ct 524, holding foreign cor-
poration operating in Texas under act 188t> cannot object to forfei-
ture of right for violation of said act as provided therein; Brlgham
City V. Tultec Itauch Co., 101 Fed. 87, holding defendant in eject-
ment disclaiming interest in property cannot maintain writ of
error to adjodication for pialntitr on ground of title in third person;
State T. Smiley, 65 Kan. 247, 69 Pac. 201, holding objections to
validity of statute can be made only by those affected thereby and
against whom enforcement is attempted.

Distinction in law authorizing annexation to cItieB between agri-
cultural Jands and other land is valid, p. 120.

Approved In dissenting opinion in Connolly v. Union Sewer Pipe
Co., 184 U. S. 567. 46 L. 61)2, 22 Sup. Ct, 442, majority holding
unconstitutional III. anti-trust act 1893, prohibiting recovery of
price for goods sold by combination in restraint of trade, excepting
therefrom agriculturQl products In hands of producer.

X76 U. 8. 121-12G, 44 L. 393. RAB ▼. HOMESTEAD LOAN &
GUARANTY CO,

Where oiijectloa to validity of act Congress waa not auatained,
plain tier cannot appeal, p. 12rj.

Approved in Baker v. Baldwin, 187 U. S. 63, 23 Sup. Ct. 20, 47 L.
T6, holding judgment of State court sustaining 20 Stat, at Large, 25,
making silver dollar of 412.5 grains full legal tender cannot be
reviewed In Supreme Court; De Lamar's Nevada G. 51. Co. v.
Nesbitt, 177 U. S. 529, 44 L. 874, 20 Sup. Ct. 718. holding plaintiff
Cannot maintain writ of error where right claimed under laws

176 U. S. 12&-180 Notes on U. S. Reports.

suspending forfeiture of mining claims for failure to work decided
in his favor.

176 U. S. 126-155, 44 L. 400. LINDSAY AND PHELPS COMPANY
V. MULLEN.

Lien given on logs of one owner for scaling those of another is
valid, pp. 144, 145.

Approved in Nester v. Diamond Match Co., 105 Fed. 571, holding
plaintifTs voluntarily using defendant's boom cannot maintain
suit based on illegal obstruction of stream nor for delay in iiassins
logs; dissenting opinion in Hutton v. Webb, 126 N. C. 906, 36 8. £:.
343, majority holding invalid Acts 1897, chap. 588, authorisini^
exaction of tolls from owners of logs floated down river to cove^
expense of removing driftwood.

Miscellaneous. Cited in Mandeville v. Cartwright, 126 Fed. lOO^,...^
holding corporation engaging in business unauthorizedly in othe* ^l— ^ -
State does not mal^e stoclcholder liable as partners for torts t^*^^^
servants.

176 U. S. 156-167, 44 L. 412, CHEW HING LUNG V. WISE. COIL. _ -
LECTOR.

Commercial designation of article governs construction of tarft. *SV
law unless something else in law, p. 161.

Approved in Shaw v. United States, 122 Fed. 444, holding tapio
Hour entitled to free entry under paragraph 646, tariff act 18
Littlejuhn v. United States. 119 Fed. 484, holding sago flour entitl
to free entry under tariff act 1897, as ** sago crude " not dutiable
*' starch;'' Evans v. Collector, etc.. of S. F., 107 Fed. 111. ho "^c3-
in? anthracite coal containing less than 92 per cent fixed cart^'On
dutialtle as ** bituminous coal** and not entitled to free entry MttM
antliraoite unprovided for; United States ▼. Mass. Gen. HospiflE-^BX
100 I\h1. IKM. holding surgical instruments imported in good fa. S'Kb
i>y jronoral hospital maintaining training school entitled to f i^" ^^
oniry inulor paragraph 585. tariff act 1S94.

irr. r. S, 1G7-180. 44 L. 417, CHICAGO. MILWAUKEE. ETC.. C^^-
V. TOMPKINS.
State legislation prosumeil valid unless invalidity clearly appt.*;::^- 1***.
p. it;;.

Approved in Minneapolis, etc.. R. R. Co. v. Minnesota. ISO U— ^•
'2{V2. JtVI. 40» L. 1155. 115G. '2'2 Sup. Ct, OCX). 903. upholding ihrom:Mgb
ratios on hard coal in carload lots from Duluth to interior pot ^*^'
lixtd l>y State commission whore such coal insignificant item tho«-*^*
into if goiiorally applied inadequate. See 89 Am. St. Rep. 529. S^^-

:>istinj:uishtHi in Cotting v. (Uniard. 1S3 U. S. 85. 91. 46 L. 99. :^^
-- Sup. rt. :io. holding illojr.U limit^uion on charges of stocky*^'
\vitlii>m npird to difforoiu c in oliaraetor and value of servi^^*
iiMilond opi rating as t'.isv riiuination against one stockyard.

2i£l

Notes on U. S. Reports.

176 U, 8. 1S1-20G

In fixing rates cost of doing local biisiness muBt be considered,
I), 177.

Approved In CUIcago, etc., Ry. Co. v. Smith, 110 Fed. 474, hoia-
inc: uureiisonoljle reduction of existliig rates which master found
InKufiicient witli efficieEt and economical management to pay one-
lialf interest on valid debt.

§ Distinguished in Kansas City, etc., Ry. v. Board of R. R. Corars.,

lOCi Fed. 357, holding Arkansas railroad commission cannot fix rates
iiecween ArliaQsas points where ilae lies largely in Indian
*Territory; State v. Minneapolis, etc., R, R., SO Minn. 204, 83 N, W.
0<X iioidiiig under Minnesota statutes making tarliT rates of com-
tjiissioD prima facie reasonable, carrier has burden of proving
lanreasonahleness.

Aid of triai court shouid be had where case requires clear ftnd-
ijig of facts, p. 179.

Approved in Owensboro v. Owensboro Water- Works Co.» 191 U.

^5. 372, 24 Sup. Ct. 88, holding better practice for trial court to

«-leteriniue questioa of reasoiiabieness of water rates flxed by city;

<::''liesapeake & Potomac Te!. Co. v. Manning, 186 U. S. 250, 4G L.

X 1411* 22 Sup, Ct, 88G, reversixig and remanding to lower court with

<Ll.lrections to inquire into reas^ouiibleness of telephone rentals

«^liarged under act June 30, 1898; Western Union Tel. Co. v. Ameri-

c^iin Bell Tel. Co,, 125 Fed. 35S> holding where record shows right

to accounting for nse of electrical patents decision denying same

m-^ versed and remanded for determination below.

Miscellaneous. Cited in Haverhill Gaslight Co. v. Barker, 109
X!»""ed. 695, holding suit m equity against State gas commission and
^m ctoniey general to restrain enforcement of rate order within Jarls-
^-^ Sction of Federal court.

JL -^'U tJ. S. 181-200. 44 L. 423, DICKERMAN y. NORTHERN TRUST
COMPANY.

Rights of minority stockholders are lights of corporation, p. ISS.

Approved in Big Creek, etc.. Iron Co. v. American Loan, etc., Co.,

X-^^^T Fed. C3,'i.% holding minority stockholders seeking denial of fore-

<^X«:>*iure alleging invjillifity of mortgage seeking no atllrmative relief

l-ft..a:x. ve rigid s oiien to cori*tiration.

JLaw does not eoiH-ern Itsrlf with motives of parties, pp. l&O, 192.

^Approved in South Diilaita v. North Carolina, 102 U. S. 311. 24

^5^^!^ p. ct. 272. holiling where individual owners of North CaroZina

^^^oiads made gift tliereof to South Dakota^ their motive tlierel'or not

'^^•^l-iject of iU.iuiry; In re C. Moemh, etc.. Sous Co., 123 Fed. ilU7.

^^^=*ldlng where State court seized alleged bankrupfs property and

**^ttt)iuted receivers, directors could theresifler deeiare Inability to

iY«i^_y fi^ij^^ and willingness to be adjudged bankrupt; Farmers' Loan,

*^^<:?,, Co V. LouisviMe. etc., R. U. Co.. ItKi Fed. 120, holding fore-

*^^sure decree cannot lie imt>e!iehed because of prior agreement

ITt) U. S. 207-257 Notes on U. S. Reports. . 10S2

of bondholders to form reorganization company wher^ agreement
did not cause default; Johnson v. Langdon, 135 Cal. 627, 87 Am. St
Rep. 159, 67 Pac. 1052, holding stockholder entitled to mandamus
to compel compliance with Civ. Code, § 377, requiring corporation
to keep book open though his motives are alleged improper.

** Forthwith ** In matters of pleading and practice means usually
twenty-four hours, p. 193.

Approved in Empire, etc., Co. v. Propeller, etc., Co., 108 Fed. 905,
holding where Federal court remanded suit to take eflPect " forth-
with " it was immediately deprived of Jurisdiction.

Miscellaneous. Cited in Lyman v. Kansas City, etc., R. R. Ca,
101 Fed. 638, holding Mo. Laws 1897, p. 3, providing that recorder
of deeds shall require releasor of mortgage to present for cancella-
tion notes secured inapplicable to railway bond mortgage.

176 U. S. 207-210, 44 L. 436, GLASS v. CONCORDIA PARISH
POLICE JURY.

Purchaser of warrants at Judicial sale is within act Congress 1873
ns to assignees, p. 210.

Distinguished in Virginia, etc.. Chemical Co. v. Sundry Ins. Co«- ^^^
ISO Fed. 459, holding insurance policy issued to Individual los;^..^
payable to him or plaintiff as loss may appear, where individo^^j
indorses disclaimer thereon, plaintiff sole insured.

176 U. S. 211-221. Not cited.

176 U. S. 221-231, 44 L. 443, ROBERTS v. UNITED STATES.

Treasurer compelled to pay money by mandamus where soeto ^
a ministerial duty, p. 231.

Distinguished in United States ex rel. Riverside Oil Co. v. K I tch-
cock. 190 U. S. 325, 23 Sup. Ct. 702, 47 L. 1078, refusing mand£». in««
to compel secretary of Interior to vacate decision rejecting ^^Iw-
tion of land in lieu of forest reservation.

1<'6 U. S. 232-241, 44 L. 447. BALTIMORE & POTOMAC R. 'B. f-
CUMBERLAND.

Mere crossing track at convenient point Is not trespass per ift
p. 240.

Approved In Scott v. St. L., K., etc., Ry., 112 Iowa, 50, 83 X. ^•
819, holding deviation from path to round end of freight cu
obstructing same does not constitute person trespasser.

170 U. S. 242-257, 44 L. 452, UNITED STATES v. TENNESSEE
& COOSA R. R.

Conditions In grants like that of 1856 are subsequent, not prece-
dent, p. 250.

Approved in Vanklrk Land, etc., Co. v. Green, 132 Ala. 352. 81
So. 4S5. holding noncompletion of road on time did not of \w^
deprive railroad grantoo of risrht to dispose of land.

1088

Notes on U. S* Reports.

176 V. S. 257-29^7

176 a S. 257-2$)7, 44 L. 458. SOUTHERN RAILWAY ?. CARNE-
GIE STEEL CO.
Unsecured creditor preferred to mortgage creditor when debt is
for current expense ^ not otherwise, p. 21)6,

Approved in Laekuwanna, etc.p Co. v. Farmers* Loan, etc., Co.,
17<3 U. S. 313. 316, 44 L, 483. 484, 20 Sup. Ct. 309, holding claim for
rails furnished where quantity so large as to amount practically
to reconstruction not entitled to protection within rule; Atlantic
Trust Co. Y. Dana, 128 Fed. 227, holding claims for permanent Im-
provemeota made by receiver by order of court cannot displace
prior mortgages or income; State Trust Co* v, Kansas City, etc,
R. R., 128 Fed. 130, holding court may compel election to enforce
mechanic's Hen or rights as preferred creditor, and dismiss suit aa
to dJscarded cause of action^ Louisville & N. R. R. Co. v. Memphis
Ga slight Co., 125 Fed. lUO, holding claim for coal and coke used
in defendant's business, alleging diversion to pay Interest on bonds,
not preferred to mortgage debt; Southern Ry. Co. v. Ensign Mfg.
Co., 117 Fed. 42(1 421, 422, holding claim for car wheels sold with
knowledge of intended use on leased road, In reliance upon pay-
ment in sixty or ninety days as per course of dealing, not pre-
ferred; Nlles Tool Works Co. v. Loyisville, etc., Ry. Co., 112 Fed.
o64. holding claim for machinery sold to mortgagor railway and
used in construction of shops owned by another road under lease
by mortgagor not preferred debt; Gregg v. Mercantile Trust Co*,
109 Fed. 225, 227. 229, holding debt lncurre.d by railroad company
for locomotives not withia class of operating expenses preferred to
mnrtgage liens; Rhode Island Locomotive Works v. Continental
trrust Co., 108 Fed. 7, 8» 9, holding claim for twelve loco -t olives
il^ld to railroad not preferred debt where no showing of necessity
ror such extension of equipment nor of diversion of funds; Guar-
anty Trust Co. V. Galveston City R. R. Co., 107 Fed. 320, holding
elninis for current expenses of street railway within few months
jirior to receivership properly preferred, but not claim year and a
half old; Illinois Trust, etc. Bank v. Doud. 105 Fed. 141, 142. 143,
X49. 150, 151, 152, 155, holding claim for money advamed to pay
Interest oo prior mortgage not preferred to mortgage claim; First
Xat, Bank v. Ewlag. im Fed. 184. holding receiver's certliicates
firing holders preferential lien on properly properly ordered by
court to raise money to complete road and pay operating expenses.
Sec S3 Am. St. Rep. 74, note.

Distinguished in Fidelity Insurance, etc.. Co. v. Norfolk, etc., R.
U, Co.. 114 Fed- 392, holding Judgment against railroad under re-
ceivership for tort committed by company prior to receivership not
preferred to mortgage claim.

Misrellaneous. Cited in Lewis v. American Naval Stores Co.,
119 Fed. 3U7, holding ancillary suits obtaining appointment of re-
mver in different jurisdictions properly brought where corpora tloa
*'n9 property in such Jurlsdictioua.

1085

jrotes on IT. S. Reporta* 1T6 U. S. 335-35(5

ration lands within State were public lauds witUln meaning of
act 18114; Arliansas v. Kansas & T. Coal Co.. 183 U. S- ISS, 46
L. 146, 23 Sup. Ct. 48, boiding suit in State court to restrain threat^
ened importation ol! arnietl men Into region wbere strike existed
on ground of nuisance does not disclose Federal question; De La-
mar's Nevada G. M, Co. v, Nesbitt, 17T U, S. 527, 44 L. 8T4» 20
Sup. Ct 717, holding claim of title by defendant, under general
mining law, does not of itself entitle hlra to review by Supreme
Ci»urt; Joy v. St. Louis. 122 Fed. 525, holding Federal qnestion can-
not be raised by allegation in ejectment that defendant disputes
proper construction of confirmation acts under .which plaintiff
claims: Wichita v. Missouri, etc., K. Telephone Co., 122 Fed. liKi,
hokUng not removable bill disclosing no right based on Constitn-
tion or any law of United *Statca sufficient to support original
suit Id Federal court: Fllhlol v. Torney, 119 Fed. 976, holding
complainant cannot disclose Federal question by alleging that
defendant in ejectment wiH claim under uncon.stltutlonaI law:
dissenting opinion in Tnilo< It v. Mulvane, 184 U. S. 519, 46 L. Ofia
22 Sup. Ct. 3S0, majority holding question whether any liability
exists on Injunction bond where part of case dismissed by stipula-
tion involves Federal question.

Where plaintiffs assert Joint ownership and show no Federal
question suit will be dismissed, p. 334.

Ajiproved In Files v. Davis, 118 Fed. 47Q» holding action on
attachment t^ond executed in suit pending in Federal court involves
Federal question; Forest Oil Co. v, Crawford, 101 Fed. 852, hold-
ing where comphiiufnit prevents diversity of citizenship by volun-
tary Joining of cotenants la suit to establish title entire suit falls.
1T6 U. S. 335-350, 44 L. 492, ADIRONDACK RAILWAY v. NEW
YORK STATE.
There is no property in naked railroad route which State must
pay for, p. 34a

Approved in Underground R. R. v. New York, 116 Fed. 956, hold-
ing street niilroad has no vested right in franchise to construct
i*oad where it foiled to obtain municipal consent as required by
^ew York law.
X 76 U. S, 350-356, 44 L. 500, THORMANN v. FRANCE.

Adjudication of domicile where not necessary to decree not
l->indlng ex frateni tori ally. pp. 355, 350,

Approved In Overby v. Gordon, 177 U. S. 224, 44 L. 745. 20 Sup.
Ot. WHJ, holding adjudicntiou of domicile of decedent made In
KTunt of administration in Georgia court not competent evidence of
tact In court of District of Columbia; Maldaner v. Beiirhans, 108
Wis. a% m N. W. 27. holding portion of decree distributing re-
siduum of estate to legatees which specified aaiounl to each was
uit-te surplusage and not bar to legatee to ask redistribution,

176 U. S. 357-448 Notes on U. S. Reports. 1098

Full faith and credit clause does not prevent inquiry Into
Jurisdiction, p. 366.

Approved in Dunn v. Dilks, 31 Ind. App. 679, 68 N. B. 1037, hold-
ing no suit can be maintained in Indiana on Pennsylvania Judgment
against nonresident defendant over whom latter court acquired no
Jurisdiction.

176 U. S. 357-n398. Not cited.
176 U. S. 398-413, 44 L. 520, ROLLER v. HOLLY.

Nonresident having property within Jurisdiction may be called
in by published service, p. 405.

Approved in Overby v. Gordon, 177 U. S. 221, 44 L. 744, 20 Sup.
Ct 606, holding adjudication of domicile of decedent made in grant-
ing administration in Georgia court without contest Int^ partes has
no force in contest in District of Columbia; Connor ▼. Tennessee
Cent Ry. Co., 109 Fed. 936, holding Tennessee court may bring in
nonresident claiming lien on railway property in court's possession
by publication of service; Wilson v. National Bank, 27 Tex. Cir.
56, 63 S. W. 1069, holding, under Texas statutes. Judgment by de-
fault may be taken against nonresident owning property within
State by personal service outside State.

Distinguished in Paper Co. v. Slyer, 108 Tenn. 450. 67 S. W. 857,
holding unconstitutional Shannon's Tenn. Code, f 5298, so far
as authorizing deficiency Judgment against nonserved, nonappeariaf(r
nonresident.

Five days' notice to citizen of Virginia to appear in Texas %Ji^B
insufficient, p. 413.

Approved in Pinney v. Provident L., etc., Co., 106 Wis. 402, ^^B^
N. W. 310, holding unconstitutional Rev. Stat., f 1775b, authorisli^:^ ^
service on private corporation by leaving copy of process wi. "<fc-^
register of deeds.

Distinguished in Johnson v. Hunter, 127 Fed. 223, apholdL:^c».g
Ark. Acts 1895, p. 88, No. 71, authorizing commencement of nm. M ^•s
for taxes against nonresidents after four weeks' published notL ^c=-^

176 U. S. 413-422, 44 L. 526, MOSS v. DOWMAN.

Decisions of land department in contested cases as to facts ^^:m^
conclusive, p. 415.

Approved in Benner v. Lane, 116 Fed. 414, holding conveyance ^o
State as trustee for railroad is not for use of company giving ^^
preference under 24 Stat. 555; Manley v. Low, 110 Fed. 248, hoW-
Ing land patented to Iowa for railroad construction unearned t?/
failure to complete road was not ** for use of " company to ^i^*
preference over prior settlers.
176 U. S. 422-448, 44 L. 529, UNITED STATES V. ORTIZ.

Law casts on applicant for confirmation burden of showing V^
sumptively valid grant, p. 426.

Approved In Whitney v. United States, 181 U. S. 110, 114. 45 L

Notes on TJ. S. Reports. 176 U. S. 448^-469

774, 775, 21 Sup. Ct. 56S, 5tjO, holding incomplete title under Moiicao
^Tiint of New Mexico lands made by groTernor In 1845 where no evJ-
dencR shown of approval by assembly or Mexican government;
United States v. Elder. 177 U. S, 109, 44 L. 092, 20 Sup. Ct 539,
liolding governor's Indorsement on petition directing prefect to as-
certain whether land covered therein had an owner and If not to

■ deliver to petitiouer.
Photographic enlargementa of genuine handwriting are admis-
©Ible. p. 430.

Approved In First Nat Bank v. Wisdom, 111 Kj. 148. 63 S. W, 4G5»
tiolding admissiiile photographic enlargements, authenticated by
r»hotographer. of genuine signatures of testator,

ITG U. S. 448^58, 44 L. &40, GUARANTY SAVINGS BANK T-
BLADOW.

Power of reviewing action of local laad office exists fn general
land department, p. 452.

Approved In Cosmos Exploration Co. v. Gray Eagle Oil Co., 190
TJ. S* Sm, Zi Sup. CL iJOr*. 47 L. HJ71, holding general land depart-
j^ient has Jurisdiction uader statute Jone 4, 18117, to review decisions
«-»f local oificers on application for landa thereunder.

Cancellation of entry on notice concludes entity man, but not If
'*^;^rlttaout notice, p, 453.

Approved in Thayer v. Spratt, 189 U. S. 351. 23 Sup. Ct 578, 47

. 84S, holdiog transferee of entryman under timber act 1878, hav-

g no notice of nor opportunity to contest eaucollation of entry,

M:m:MRy prove validity of entry; Small v. Lutz, 41 Or. 57r», till Fac. 825,

-t*:^2(i, holdln^c J«ccretary of interior's determination that larids were

^ cubject to lioiiiestead conclusive on i?tate's grautce of lands listed

^m^smB swamp lands where approval of list withdrawn.

Distinguished In Whitney v. Spratt, 25 Wash. HT*, 67, 64 Pac.
2^2^ 0, holding grantee of eatr^vman showing validity of entry and
«:^«^^xiilicate entitled to relief from caucellation of entry by depart-
^»'m:M. ^^nt on ex parte hearing.

:i^ ^^^i U. S, 4ol^"4CD, 41 L. c44, UNITED STATES v. MRS. GUE LIM.
"^Vlfe of Chinese raorchant is entitled to enter without certificate,
I*- 404.

Approved In Tsol Sim v. United States, 110 Fed. 92a, holding

^-^i:»iuese woman subse'inently marrying American citizen not sub-

^^^^t to deportation under 28 Stat 7, for failure to obtain certititate.

»istinffuished in Lee Lung v. Patterson, 186 U. S. 172, 4fJ L. IIW),

"~— - Sup, Ct. tiWi, holding plural wife of Chinese merchant domiciled

"^ tills country not entitled to enter without certificate.

Chinese merchants leaving country animo revertandi need not,
*^^^t laborers must procure a certificate, p. 468.

-approved in United States v. Tuck Lee, 120 Fed. 092, holding
^^Inese laborer holding certificate forfeits right to remain In United

176 U. S. 469-521 Notes on U. S. Reporitf. 1068

States by department without permission and return to undesig-
nated port.

Miscellaneous. Cited in In re Ah Tai, 125 Fed. 797, to point that
Chinese alien may be admitted to bail during pendency of deporta-
tion proceedings.

176 U. S. 469-^81, 44 L. 548. WALSH v. COLUMBUS, ETC., RAIL-
ROAD CO.

Supreme Court determines existence and impairment of contract,
p. 475.

Approved in Wisconsin v. Commissioners of Public Lands, 183
U. S. 693, 46 L. 393, 22 Sup. Ct. 934, and Vought v. Columbus, etc.,
R. R. Co., 176 U. S. 481, 44 L. 554 (see 20 Sup. Ct 398), both re-
affirming rule; Stearns v. Minnesota, 179 U. S. 233, 46 L. 170, 21
Sup. Ct. 77, holding Supreme Court on error to State court in case
involving impairment of contract decides independently upon ex-
istence and validity of contract; Illinois Cent. R. R. t. Chicago,
176 U. S. 657, 44 L. 626, 20 Sup. Ct. 513, holding charter of Illinois
Central railroad, authorizing it to enter and use lands, streams
of every kind, gave no right to occupy lands under Lake Michigan.

176 U. S. 481-483. Not cited.

176 U. S. 484-497, 44 L. 555, WARBURTON v. WHITE.

Territory of Washington had a right to regulate testamentary
disposition of community property, p. 489.

Approved in Griffin v. Warburton, 23 Wash. 234, 285, 242, 62 Pac.
766, 1 69, holding attachment on community property levied peed- —

ing administration of wife's estate, and sale with husband's ac- ^

Quiesence, passed latter's interest to purchaser.

Miscellanccus. Cited in White v. Warburton, 122 Fed. 912, in mm

statement of facts.

176 U. S. 498-521, 44 L. 560, BALTIMORE & OHIO, ETC.. RAIL- -^

WAY V. VOIGHT.

Attempts of carrier by contract to limit liability for negligence ■> ."i

to passengers are invalid, p. 507.

Approved in The Kensington, 183 U. S. 268, 46 L, 193. 22 Sap. ^^^
Ct. 104, holding arbitrary limitation of 250 francs for baggage of ^t«/
any passenger on Atlantic steamship unreasonable and void.

Express messenger if common employee could not recover for — ^^.
fellow servant's negligence, p. 513.

Approved In Johnson v. Southern Pac. Co., 117 Fed. 464, hold — -
ing iute]li.£:ent and experienced brakeman assumes risk of coupDo^^-
cars provided with different kinds of well-known couplers tnc^
bumpers; King v. Morgan, 109 Fed. 451, holding experience^/
miner injured by explosion of blast while tamping charge wltli
bar consisting of gas pipe plugged with clay, assumed risk im/
cannot recover.

lom

Notes on U. S. Reports. 17G U* S. 498-521

An express messenger la not a passenger so as to avoid bis con-
tract assuming risk for railroad's negligence, pp. 513, 514.

Approved Id Nortliern Pac. Ry, v. Adams, 192 U, S. 452, 453,
24 Sup. Ct* 410» 411, holding railroad not liable for death of person
riding on free pass conditioned on nonliability to us^r for all in-
juries; New York Cent, etc., R. R. Co. v. DifendoEfer, 125 Fed. S95,
holding failure of Pullman porter to read contract signed when
entering employment by which he assumed risks does not vitiate
same; Whitfield v. .52tna Life Ina. Co., 125 Fod. 270. upholding con-
tract reducing $5,000 accident policy to $500 in caae of self-inflicted
injury though Rev. Stat Mo. ISDll § 7896, make only contemplated
suicide a defense; M'Cormick v. Shippy, 124 Fed. 5, affirming 110
Fed. 231, upholding stipulation in charter demising vessel toy which
owner assumed risk of loss through master's negligence; M' Derm on
V, Southern Pac. Co., 122 Fed. 071, 016, 678, upholding Pullmiin
porter's contract, releasing company from liahility for negligence,
ratifying similar contracts with carriers and agreeing to assign-
ability of same; Donovan v. Pennsylvania Co., 120 Fed. 218, up-
holding railway company's contract with transfer company con-
f erring exclusive right to solicit baggage from passengers; Kenncy
T, Meddaugh, 118 Fed. 217, holding locomotive fireman familiar
with the situation of mall crane near track assumes risk of Injury
therefrom; 0*Brien v. Chicago, etc., Ry. Co., 110 Fed, 504, 505, ooa
<S00, holding invalid, under Iowa Code, § 2071, rendering railway
-corporations liable to every person injured by servant's negligence,
<:?on tract exempting railw^ay from liability to express messengers;
Duncan r. Maine Cent. R. R. Co., 113 Fed. 510, 511. 512, 513» hold-
ing plaintiff injured by defendant's negligence while riding on free
^ass given on condition of assuming risks cannot recover from
^'ompany; Pittsburg, etc., R. R. Co. v. Mahoney, 29 Ind. A pp. 656,
^3 X. E, 231, holding express messenger or administrator may
^e precluded by contract from recourse against railway for injury
^^r death; Republic Iron & Steel Co. v. State, 100 Ind. 387, 60 N. E.
X008, holding unconstitutional Indiana weekly w^age law requiring
^tiU weekly payment of wages; Russell v. Pittslmrg, etc., R. R..
:i.57 Ind. 313, 314, 01 N. E, 6S1, upholding contract of Kleeplng-car
employee releasing carrier from liability for negligence of servants;
iVorfolk, etc., Ry. v. Tanner. 100 Va. 389, 41 S. E. 724, holding in-
'^•alid under Code, § 1290, prohibiting agreements limiting carrier's
liability, contract In free pass as limiting liability; Peterson v.
^entUe Traction Co., 23 Wash. 037, 030, 040, 05 Pac. 54(i, 547, 54«,
lidding contract between street railway company and emploj^ees
limiting its liability for injuries received while riding to and from
MTork not against public policy.

Distinguished in Mexican Nat. R. R. Go. v. Jackson, 118 Fed-
5^, upholding Tex. Laws, Spec. Sess. 1897, p. 14, prohibiting
conlractA limiting employer's liability to employee for damages;
Vol. Ill — 00

176 IT. S. 521-550 Notes on U. S. Reports. 1090

WWtncy T. New York, etc., R. R. Co., 102 Fed. 854, 855, holding
onployee of railroad obtaining change of employment with free
transportation as part of change may recover for injuries not-
withstanding contract exemption; Payne v. Terre Haute, etc., R. B^
157 Ind. 617, 62 N. E. 473, holding passenger on free pass cannot
recover for injuries dne to carrier's negligence where pass exempts
from liability; Rlchmcmd v. Southern Pacific Co., 41 Or. 56, 67 Pac
948, 93 Am. St Rep. 696, holding railroad liable for injurj to
passenger riding in caboose of freight train designated to carrj
passengers though ticket stipulated exemption; Gulf, etc^ Bj. t.
Darby, 28 Tex. Civ. 416, 67 S. W. 448, holding invaUd stipulation
in railway switchman's application for position assuming risk of
dangerous structures near the track.

176 U. S. 521-532, 44 L. 571, MATTESON T. DENT.

Obligation of subscriber to stock is contractual arising from sub*
■cription, p. 525.

Approved in Earle v. Carson, 188 U. S. 44, 65, 23 Sup. Gt 2SS,
259. 47 L. 375, 379, reaffirming rule; McDonald v. Thompson, 184
U. S. 74, 46 U 439, 22 Sup. Ct. 298, holding bank stockholder's in-
dividual liability is implied from express contract to take and pa7
for shares.

Transfer of stock in good faith where officers fail to alter booki
Is effective, p. 531.

Approved in Earle v. Carson, 107 Fed. 640, holding owner ^
national bank shares who sold same bona fide without knowled^
of insolvency, doing everything possible to obtain transfer, DO*
liable as stockholder.

Pledgee keeping stock In name as pledgee to protect interest tt^
liable as stockholder, pp. 531, 532.

Approved In Robinson v. Southern Nat Bank, 180 TJ. S. 806, ^
L. 540, 21 Sup. Ct. 387, holding bank receiving national bank sto^^
as collateral to note, bidding in same on default, remains pledg^'*
and not liable as stockholder.

176 U. S. 532-535. 44 L. 576, JACKSON v. EMMONS.

Failure to amend declaration after leave and failure to pay cotf*^
not ground for dismissal, p. 535.

Approved In Wilson v. Merchants' Loan & T. Co., 183 U. S. \Z^
46 L. 115, 22 Sup. Ct. 57, holding defective agreed statement of fac^^
in suit to enforce stockholders' assessment containing no flndlra^
of consent of pledgor but leaving same to inference.

17G U. S. 535-550, 44 L. 577, THE PANAMA.

Merchandise for peaceful purposes contraband when destined fo^
use in war, p. 545.

Approved In The Carlos T. Roses. 177 U. S. 675, 44 L. 937, ^
Sup. Ct. 811, holding cargo shipped from neutral port before w*f

t

Notes on U. S. Reports. 176 U, S. 550-508

enemy^s vessel to enemy's port, invoice reading "by order of*

hllM>wner's subject to capture,

panlsh armed mallsbip not exempt from capture as merchant

ael, p. 540.

pproved In Tlie Mangrove Prize Money, 188 U. S. 725, 23 Sup,

345, 47 L. 667, reaffirming rule.

U. S. 550-559, 44 L. 583, MEYERHAUSER v, MINNESOTA.

[iBDesota statute 18^3 for revaluation of n&dervaiued property
alld, p. 558.

pproved In Volgbt v. Detroit, 184 U. S. 122, 22 Sup. Ot 340,
olding Mich, Com p. Laws 1S97, S 3046, for assessments for
rovements providing no notice to those included in district,
ortunity being given to contest assessment amount; Hubbard v.
B. 157 Ind. 490, 02 N. E. 38, upholding Ind. Stat 1901, autborlz-
couutj board of review to equalize values made by assessors
notice served on landowners and published; Galusha r» Wcudt,
Iowa, 607, 611. 87 N. W. 515, 517, upholding Code, § 1374, au-
Izlng county treasurer to collect takes omitted from assessment
wltbin five years or bring action therefor; State Tax Comrs. v.
rd of Assessors. 124 Midi. 4&9. 83 N, S. 211. holding apportion-
it of taxes among city wards made under city charter cannot be
urbed by State tax commissioners but omitted names may be
ed; Yazoo, etc., R. R. Co. v. Adams, 81 Miss, 114, 32 So» 046,
oldlDg assessment for back taxes where property has changed
ds.

U. S. 55^-568, 44 U 687, WHITMAN v, OXFORD NATIONAL
BANK.

tatutory individual liability of stockholdera is contractual and
orceable In any competent court, pp, 5t>3. 567.
pproved in Ward v, Joslin, 1S6 U. S. 151, 40 L. 1099. 22 Sup.
810, holding corporation's ultra vires obligations not within
tsas CoustlttJtion, providing that '* dues from corporations se-
^ by stockholder's iBdlvidual liability;" McDouald v. Tliompson,
tJ. S. 74, 46 L, 439, 22 Sup, Ct. 298. holding action by receiver
tiforce bank stockholder's individual liability Is not action on
4tract In writing'' within Nebrasica Statute of LImltiitiona;
eock Nat. Bank v. Fanium, 176 U. S. 641. 44 L. 620, 20 Sup,
507, holding judgment against corporation binding on stock-
^rs by State law must be given like effect in another State
ti stockholder Kued; Middle town Nat. Bank v. Toledo, etc., Ry..
S*ed. 87, 88, holding Circuit Court of Appeals unable to decide
ther New York Constitution, imposing stuck holder's Individual
llty, Is self-executing will certify question; American Nat. Rank
^tipplee, 115 Fed. (358. holding jucigtnent against Kiinsiis cor-
ition rendered in that State binds stoekholder sued on individual
'Ulty unless impeached for fraud; Whitiiian v. Citizen's Bank.

176 U. S. 659-568 Notes on U. S. Reports.

110 Fed. 506, holding action against stockholder to enforce reme
of Gen. Stat. Kan., chap. 23, § 32, is transitory and maintainat
in any court of competent Jurisdiction; Kirtley y. Holmes, 107 Fc
5, 6, holding Federal court in another Jurisdiction should on princi|
of comity recognize receiver's right under Ohio statutes to enfoi
stockholders' liability; Ward v. Joslin, 105 Fed. 227, 229, 230, ho
Ing word "dues," used in Kansas Constitution secunng **di
from corporations" by stockholders' liability, does not Inrlii ^j
ultra vires obligations; Wigton v. Bosler, 102 Fed. 72, holding wl^h^ -^en
plaintiff based action on statute for enforcing stockholders' '^LU-

bility and was nonsuited, he cannot have same set aside by cal^B^ m ng
forth another statute; Evans v. Nellis, 101 Fed. 923, 924, holdm^Mag
unconstitutional Kan. act January 11, 1899, repealing prior act ^or

enforcing Constitution securing dues from corporations by st^c:^<:^.
holder's liability; Hobbs v. National Bank, etc., 101 Fed. 75, l^^^z^ld-
ing term ** moneyed corporations," used in New York Code j^or-
erning actions against stockholders, applies to foreign mort|^^B^;?e
trust company operating within State; Love v. Pusey, 3 PenK^^'Hr.
(Del.) 579, 52 Atl. 543, holding Delaware stockholder in K&z^i^^
corporation liable in suit in Delaware for debts of corpont'KJoQ.
enforcing Kansas statutory remedy; Pulsifer v. Greene, 96 Me. -^-^^
52 Atl. 923, holding double liability Imposed upon stockholders ^J
Kansas laws is contractual in nature and transitory; Chil<l0 ^*
Cleaves, 95 Me. 509, 50 Atl. 717, holding Minnesota receiver iii«J
enforce stockholder's liability by suit in Maine; Broadway ^'^
Bank v. Baker, 176 Mass. 295, 298, 57 N. E. 604, 605, holding stock-
holders' liability under Kansas statutes is several and enforceable
In other Jurisdictions subject to set-off of claims purchased ^^
stockholder in good faith; Howarth v. Lombard, 175 Mass. 580. 56
N. B. 892, holding subscribers of national bank bound by proceed-
ings under Washington statute to enforce double liability imposed
and liable to suit by receiver; Pfaff v. Guien, 92 Mo. App. 57d
holding ancillary suit against nonresident stockholders to enforce
statutory liability maintainable in courts of their domicile after
declared insolvency of corporation; Commonwealth, etc., Ins. Co.
V. Hayden, (51 Nebr. 456, 85 N. W. 444, holding court having Juris-
diction to wind up affairs of insolvent corporation cannot reoder
personal judgment against stockholder not a party to action: BeJ»-
bein v. Rahr, 109 Wis. 151, 85 N. W. 320, holding owners of $2,500
worth of shares in bank liable to full extent to c .editor for targer
amount where no other creditors contest; dissenting opinioo to
Fiuney v. Guy, lOG Wis. 281. 82 N. W. G03, majority holding Mlfl-
nesota action under Minnesota laws to enforce stockholders' la-
bility barred subsequent suit in Wisconsin.

Distinguished in Finney v. Guy, 189 U. S. 345, 23 Sup. Ct. 561
47 L. 845, holding State courts decide whether they shall p«rn^'
action on foreign statute uuder principle of comity; Hale v. Allinios
188 U. S. 67, 23 Sup. Ct. 248, 47 L. 388, holding receiver cannot brir

m

Notes OB U, S» Reports.

17a U* S. 56S-617

lit IB equity In foreign Jurisdiction to enforce statutory liability of
orkholders; Erana v, Nellis, 187 U* S. 2T7, 23 Sup. Ct 76, 47 L.
rft, holding receiTcr of corporation cannot maintain action to en-
ffce atockbolders* liability under Kan. Stat, 18G8, remedy being
callable to creditor only; Burget v. Robinson, 123 Fed. 267, denying
►hearing where application to Supreme Court for writ of certiorari
► Circuit Court of Appeals Involving same issues was denied;
ale V. Coffin, 114 Fed. 570, 572, holding Minnesota statutes relat-
\g to credltor*s suits for enforcing stockholder's liability give re-
viver no right to sue In own name la common daw Jurisdictions
squiring title In plaintiff.

'6 U. S. 568-581, 44 L. 592. THE BENITO ESTENGER,

Property engaged In Illegal Intercourse with enemy Is presumed
lemy property, p. 571.

Approved in The Carlos F. Roses, 177 D. S. 661, 44 L. 932, 20
up. Ct 811, holding where vessel Is enemy vessel cargo Is pre-
inaed also to be enemy property until shown to be otherwise.
Provisions not generally deemed contraband but become so when
»stlned for military use, p, 573.

Approved in The Carlos F, Roses, 177 U, S. 675, 44 L, 937, 20
ap, Ct. 811, holding cargo of Jerked beef shipped to Cuban port
mtraband.

Consul has no authority to exempt enemy vessel from capture,
>. 5T4, 575.

Approved in The Adula, 176 U. S. 380, 44 L. 513, 20 Sup, CI. 439,
jlding direction of officer of blockading vessel to enter harbor
in not authorize violation of blockade, such being beyond his
ithority.

*6 U, S, 581-617, 41 L. 597, MAXWELL v, DOW.

Common -law Jury consists of twelve Jurors, p. 586,
Approved in Richmond v. Henderson, 48 W, Va. 398, 37 S. B. 657,
>ldlng appeal and not certiorari lies from Judgment of Justice ren-
jred on verdict of jury.

Fourteenth Amendment does not secure all persons same laws
id remedies, p. oOlJ.

Approved In McDonald v, Massachusetts, 180 U. S. 313, 45 L. 547,
Sup. CL 390, upholding Mass, Stat. 1887, chap. 435, | 1, Imposing
'avier Bentence upon felon twice before convicted of offense pun-
tiable by three years* Imprisonment or over; Mason v. Missouri.
« U. S, 335, 45 L, 22, 21 Sup. Ct 128, holding different reglstra-
)ii law In force in St. Louis and in other cities under legislative
•ts not violative of Fourteenth Amendment; State v. Travelers'
IB. Co., 73 Conn. 270, 271, 273, 47 AtL 304, 305, upholding section
il6» Conn. Gen. Stat., Imposing different taxes upon sbfires in
fitirABce compfiny held by residents and those held by aonreaidenib.

176 U. S. 618-645 Notes on U. S. Reports. lOW

What senators urge in debate not proper source for seeking con-
struction of law, p. GOl.

Approved in Knowlton v. Moore, 178 U. S. 72, 44 L. 082. 20 Sup.
Gt 760, eliminating attempt of counsel to show expression of
senators in debate in construing amount on which progressive tax
on legacies imposed under revenue tax 1808.

Question of number of Jurors is for State to decide, p. 604.

Approved in Archer v. Baltimore Bldg. & Loan Assn., 179 U. S.
679, 45 L. 383, 21 Sup.Ct 017, reaffirming rule; Hawaii v. Mankichl,
100 U. S. 220. 23 Sup. Ct. 792, 47 L. 1024, holding mere annexation
of Hawaii did not effect extension of constitutional provisions an
to grand and petit Juries; State v. Imlay, 22 Utah. 157, 61 Pac 558.
upholding prosecution for rape before Jury of eight

176 U. S. 618-639, 44 L. 611, ALDRICH v. CHEMICAL NATIONAL
BANK.

Under special facts parties allowed opportunity to introduce
further evidence, pp. 622, 623.

Approved in Mossberg v. Nutter, 124 Fed. 967, dismissing appeal
where appellants through trial Judge request leave to file supple-
mental bill based on newly discovered evidence in infringement
suit.

There is nothing in acts of Congress authorizing bank to appro-
priate money without liability, pp. 636, 637.

Approved in Hallett v. New England Roller-Grate Co., 105 Fed.
222, holding nonresident honestly purchasing stock In corporatloD
below par in violation of State statutes may recover money paid
therefor; Mechanics* Bank v. Woodward, 74 Conn. 693, 51 Atl. 1086.
holding husband liable for money given him by wife, who had
forged bis name, representing to him that money was proceeds of
investment; First Nat. Bank v. Arnold, 156 Ind. 404. 00 N. E. 137.
holding bank liable for loan obtained by officers of bank on note
indorsed by bank through its officers though they converted pro-
ceeds.

170 U. S. 640-645. 44 L. 619, HANCOCK NATIONAL BANK v.
FARNUM.

Judgment against corporation binds stockholder subject to set-off.
p. 643.

Approved in Ward v. Joslln, 180 U. S. 152, 46 L. 1009, 22 Sup. Ct
811, reaffirming rule; Burget v. Kobinson, 123 Fed. 268, holdiDj:
statute of 1899 susceptible of different interpretation than Minn.
Gen. Stat 1894 in Hale v. Ailinson, that thereunder receiver
could not sue; American Nat. Bank v. Supplee, 115 Fed
058, holding unimpeacbed Kansas Judgment against Kansas trust ^
company binds stockholder sued in Pennsylvania on individiui ^^
liability imposed by Kansas laws; Hale v. Coffin, 114 Fed. 570, 571- ^^
holding where receiver could sue stockholder in Massachusetts Irm- j
own name such right must be recognized in suit in Maine on caos^^fer

1095

Notes oil U* S. Reports.

176 U. S. 640-645

arising In Massachusetts; Whitman v. Citizens' Banli, 110 Fed. 511,
holding decision of District Court for New York against corporation
of Kansas binds stockholden Ball v. Werrtngton, lOS Fed. 473*
holding judgment of Kansas court against corporation fe binding
In Pennsylvania jurisdiction unless obtained by fraud; Cbilds t.
Cleaves, 95 Me. 508, 50 Atl. 717, holding oonresident stockholder in
Minnesota sued in Maine on double liability imposed by Minnesota
BtatiUes bound by Minnesota decree appointing receiver; Howarth
V. Lombard, 175 Mass. 580, 56 N, E, Sy2, holding under Washington
Constltuiion making stockholders of banking, insurance and joint
stock associations liable ratably, receiver of Washington bank may
sue in Massachusetts in own name; Straw v. Kiibourne, etc., Co,»
80 Minn. 13G, S3 N. W\ 39, holding members of corporation con-
cluded by adjudication nnder Law^s 139d, chap. 272, of amount
of assets and liai^llitles and of assessment; Hinckley v. Kettle
Riv. R. R., SO Minn. 39, 82 N. W, 1090, holding judgment against
corporation res ad judicata and binding upon stockholder made
paxties; Commonwealth, etc.. Ins. Co. v. Hay den, 01 Nebr. 457, S5
N, W. 444, holding deeision assessing atoekbolders of insolvent
corporation binding as determination of amount of assets and
liabilities and necessity for asseRsment.

Distinguished in Hale v, Allinson, 1S8 U, S. 67, 23 Snp. Ct 248,
47 L. 388, holding under Minnesota laws receiver cannot sue stock*
holders In foreigu Jurisdiction to enforce Individual liability; Ward
V. Joslln. 105 Fed. 228, 229, holding stockholder not liable under
Kansas laws for *' dues " from corporation Incurred In ultra vires
guaranties of corporation.

Credit given to judgment In home State must be given in other
States, p. 644.

Approved In Hale v. Alllnson, 106 Fed. 259, reaffirming role;
Martin v. Wilson, 120 Fed. 206, holding since Kansas Judgment
adjudging bank liable for assessment binds stockholders, stock-
holder in another State cannot question bank*s power to become
stockholder; Tompkins v. Blakey, 70 N. H, 585, 580, 587, 49 AtL
112, 113, holding Iowa decision decreeing validity of assessment to
pay corporation debts conclusive in receiver's suits against stock-
holder In New Hampshire.

Distinguished in Fuuey v. Gtiy, 189 U. S. 345. 23 Sup. Ct. 502,
47 L. 845. holding Wisconsin decision for defendant, stockholder In
Minnesota corporation, not denial of credit to Minnesota Judgment
where Minnesota statutes enabled suit against stockholders who
could be served; Hale v. Alllnson, 18S U, S. 79, 23 Sup. CL 253, 47
L. 393, holding equity is without jurisdiction to enforce statutory
liability of stockholders on ground of multiplicity of suits wheri-
liability and amount thereof have been adjudged, affirming 106
J'ed. 258, which affirms 102 Fed. 792; ,Tohnson v. Stebbins-Tliomp-
aou Realty Co., 177 Mo. 602, 76 S. W. 1020, holding corporation
president cannot question for fraud validity of judgment to »et

176 V. S. 64e-667 Notes on U. S. Reports. lOOG

aside deed of corporation to him to subject land to corporation's
debt; Railroad v. Bentz. 108 Tenn. 675, 91 Am. St Rep. 766, 69 S. W.
319, holding decision on appeal reversing Judgment against railroad
in suit for engineer's death on ground of fellow servant not bar to
second suit in another Jurisdiction.

Question whether decision given full faith Is Federal in nature,
pp. 642, 645.

Approved in National F. & P. Works v. Oconto City W. Supply
Co., 183 U. S. 233, 46 L. 169, 22 Sup. Ct 118, holding Federal ques-
tion raised by contention that due effect to Federal decree in cred-
itor's suit was denied, by allowance of plea of res adjudicata based
thereon; Broadway Nat Bank v. Baker, 176 Mass. 296, 57 N. E^ 604.
holding Massachusetts stockholder in Kansas trust association liable
on liability imposed by Kansas laws when sued in Masaacbusetts;
McCullough V. Hicks, 63 S. C. 544, 41 S. E. 761, holding construc-
tion of '* full faith and credit " clause oi Constitution raises Fed-
eral question.

176 U. S. 646-^67, 44 L. 622, ILLINOIS CENTRAL RAILROAD v.
CHICAGO.

In determining existence of Federal question setting up in good
faith is enough, p. 656.

Approved in Manigault v. S. M. Ward, etc., Co., 123 Fed. 71U
holding Federal Jurisdiction established by allegation in good faitb
that South Carolina statute authorizing dam across river violate
Federal Constitution; Riverside & A. Ry. Co. v. Riverside, 118 Fe
740. holding existence of valid contract not essential to Feder-^^i
Jurisdiction based on impairment of contract if claim made in go^cxt
faith.

Under Illinois decisions the State owns lands under Lake Ml<^lii-
gan in trust for people, p. 059.

Approved in State v. Lake St. Clair Fishing, etc., Shooting Club.
127 Mich. 595, 87 N. W. 123, holding State's right of entry to sw^nap
lands under swamp land act 1850 accrues on survey and Statute
of Limitations did not run before survey.

By general rule term " lands *' includes natural timber, structuret
and water, p. G60.

Approved In dissenting opinion in Kean v. Calumet Canal Co., ^^
U. S. 479, 23 Sup. Ct. G59. 47 L. 1145, majority holding Federal
patent to Indiana of ** whole of fractional sections," referring ^
government plat, carried submerged portions.

Proviso for municipal consent for laying tracks not confined to
main track, p. 005.

Approved in Chicago Union Traction Co. v. Chicago, 199 IlL 5K*.
r»5 N. E. 470, holding Cblrago Rev. Code, S 1723, fixing rate of f***
to be charged ** on any street railway " applied to gubsequentl/
organized companies.

Notes on U. S. Reports.

IW U, S. G(IS-6S4

17C U. 8, 6GS-080, 44 U 630, HUNTINGTON v. LAIDLET,

Direct appeal from Circuit Court to Supreme Court must Involve
sole ground of Jmisdlction, p. 6TG.

Approved Id Excelsior Wooden Pipe Co. T. Pacific Bridge Co.«

1S5 U, S, 285. 46 L. 913. 22 Sup* Ct 682, holding Bufllcleut averment

of question of Jurisdiction made by recital in order allowing appeal

*' from final order and decree dismisaiug said tjult for want of

iurlsdlctlonr Bardes v. Hawarden Bank, 178 tJ. S. 526, 44 L. 1177.

20 Sup. Ct 1001, holding Supreme Court may entertoln appeal

-from District Court on sole ground of jurisdiction over independent

I ^uit of trustee In bankruptcy; dissenting opinion in Giles v. Harris,

189 U. S. 41M>. 23 Sup. Ct 647. 47 L. 913, majority holding jurisdic-

tJoD of Supreme Court on appeal not limited to sole question of

Jurisdiction by Circuit Court's certificate raising that question only.

Distinguished In Stori v. MassachusettB, 183 U. S. 143, 46 L. 124.

22 Sup. Ct 74, holding, under section 761, Rev. Stat,, appeal to

Supreme Court on habeas corpus not confined to question of Juris-

«llctloo; Arkatisas v. Sciilierholz, 179 U. S, 6(X), 45 L, 337. 21 Sup.

C^t. 230. holding Federal question warranting direct appeal to 8u*

^reme Court not suttlciently presented where no issue of District

C;!ourt'» Jurisdiction made below; St Louis Cotton Compress Co. v.

^American Cotton Co., 125 Fed. 198, holding Supreme Court on

appeal has jurisdiction to review question of validity of summons

Ixi Circuit Court.

Order discharging rule for attachment for violating injunction
llCBj State court proceedings correct, p. 67S.

Approved in Laldley v. Jasper, 49 W. Va. 527, 39 S. E. 168/ hold-
iMig void by Rev. Stat.* f 720, Injunction of Federal court against
i^it In State court.

Circuit Court should not dismiss for want of jurisdiction on

round of res adjudicata In State court, p, 670.

Approved In Swafford v, Templeton, 185 U. S. 494. 46 L. 1008, 22

- xip. Ct 786, holding Circuit Court erred in dismissing for want

jurisdiction suit for damages against State election officers for

•Dying plaintiff right to vote In congressional election; Illlno^«

l^nt R. R, Co. V. Adams, 180 U. S. 31, 45 L. 411, 21 Sup. Ct 252,

aiding appeal from Circuit Court's decree refusing Injunction

ralnst collection of taxes not dismissed on ground that taxes have

^<*n held law^ful by State court; Howard v. De Cordova, 177 U. 8.

44 L. 910, 20 Sup. Ct. SIO, holding Federal court may take

isdlction of suit to set aside State court judgment rendered on

rice by publicatfon on alleged false affiilavit

U. 8. 684, 44 L. 638. CARTER v. ROBERTS.

Ilacellaoeous. Cited In Carter T. MXlaughryt 105 Fed. 610,
kttng history of litigation^

CLXXVII UNITED STATES.

177 U. S. 1-14. 44 L. «7, JELLBNIK ▼. HURON COPPER
MINING CO.

Law of State making corporate ghares personalty enforced In
Circuit Court, p. 13.

Approved in Einstein v. Georgia Southern & F. Ry. Co., 120 Fed.
1008, holding suit against railroad of Georgia to recover shares of
stock properly brought in district of principal place of business
where requisite citizenship existed; People's Nat Bank ▼. Cleve-
land, 117 Ga. 915, 44 S. E. 23, holding Superior Court of county
has Jurisdiction of suit involving shares of foreign corporation
having principal place of business therein.

177 U. S. 15-20. 44 L. 652, THORP v. BONNIFIELD.

Voluntary settlement by debtor leaving amount unpaid leas than
Jurisdictional amount fatal to appeal, p. 19.

Approved in Pacific Coast Steamship Ca v. Panch, 180 U. S. 6M
45 L. 709, 21 Sup. Ct 922, reaffirming rule.

177 U. S. 20-28. Not cited.

177 U. S. 28^7, 44 L. 657, WATERS-PIBRCB OIL CO. ▼. TEXA&

Where meaning of statutes is plain courts will not change IiJi
construction, p. 42.

Approved in State v. Smiley, 65 Kan. 255, 69 Pac 201, hnklln^j
objections to validity of statute cannot be made \xj those no^«
within legislative intent; Ballard v. OU Co., 81 Miss. 576; 96 An
St Rep. 493, 34 So. 555. 556, holding unconstitutional Laws
providing that every employee of any corporation should hi^^^"
same remedy for injury from fellow savants as others not serrans^^^

Distinguished in dissenting opinion in State ▼. Smiley, 69 Ki^^^
27a 69 Pac. 211. 212. majority holding objections to validi^r ^
anti-trust law of 1897 cannot l>e made by persons not witt^iB
legislative intent.

Foreign corporation subject to conditions imposed by State pe^
mitting operation therein, pp. 43, 45.

Approved in Cable v. United States Life Ins. Co., 191 U. a W. 24
Sup. Ct 7S, holding corporation created by one State can opertte tu
another only so far as permitted by consent of latter, vabitci to
conditions imposed: Fidelity Mut Life Assn. ▼. Mettler, 185 C S.
S26. 327, 46 L. 933, 22 Sup. Ct 669, upholding Rev. Sttt TW.

[1098]

i09&

Kotfis on U» S. Keports.

177 C. S, 2S-I1

I

1885» art 3071, imposing liabilitjr for 12 per ce&L damans auA
reasonable counsel fees for failure to pay loss witliiu Wun* ^pecitied
by policy; Chicago, R. 1. & P. R. R. Co. v. Zeruecke. 1S3 T. S. T^SS.
22 Sup. Ct. 232, boldlni^ corporation organized under Nebr. act
18C7, accepts section 3. imposing absolutt* liability fur injury ex-
cept when caused by passenger*^ criminnl negligence or violatton
of known rule; John Hancock >Iut. L. Ins* Co. v, W.-irren, ISl
U. S, 7G, 45 L. 75S. 21 Sup. Ct. 53U, upholding Ohio Rev. Stat. ISIH,
{ 3625, providing that answers of applicant to bar recovery must be
wilfully false, and induce issuance of policy; New York Life Ins. Co.
V. Cravens, 178 U. S. 3im. 44 L. 1122, 2ti Svip, CL 905. upholding
exemption of policies of foreign insunince companies trom opera-
tion of Mo. Statf § 5983, rendering policies nonforfeitable for de-
fault in premium: Jones v. Mutual Fidelity Co.. 123 Fed. 532. hold-
ing complainants entitled to recover money paid to corporation
under illegal contract without knowledge of illegality, consisting In
noncompliance with statute; London. Parls» etc.. Bank v. Arou-
stein, 117 Fed. 608, holding under California Constitution and laws
executrix of stockholder of foroign corporation opeiating within
State entitled to have stock transferred to her name at California
ofQce; M'Clain v. Provident Sav. Life Assur. Soc.» 110 Fed. 02.
holding State decisions that Pennsylvania law that mistakes made
In good faith In answers in appUcatiou warrant no forfeiture applies
to foreign companies bind Federal court: Corley v, I'raveler^s' Pro-
tective AssiL, 105 Fed. S50, holding cert i lien te issued by nonresident
Insurance company through post in Kentucky subject to Ky. Stat.,
I 679, requiring attachment of copy of corporation constitution to
policy; Woodson v. State, G9 Ark, 528. 65 S, W. 468, upboldiag Acts
1899, p. 165, requiring coal corijorations selling coal by weight to
weigh same before It Is screened: Anglo-American Prov. Co. v.
Davis Prov. Co., ICQ N. Y. 511, G2 N. E. 5S8. upholding Code Civ.
Proc, I 1780, prohibiting actions between foreign corporations,
except where cause arose within State: Insurance Co, v. Craig, liHl
Teun. 630, 631, 62 S. W. 157. holding insurance commissioner can-
Bot be restrained from revoking insurance company's license to
operate within State for violation of Acts 1895, chap. ItX); State v.
Sebllt* Brew. Co.. liH Tenn, 753, 78 Am. St. Hep. 961, 59 S. W.
X041, upholding Acts 1897, chap. 94, prohibiting combinations lessen-
ing competition in commodities and providing that foreign corpora-
ttotis violating same shall be excluded from State; State v. Corn-
Ureas Co., 95 Tex, 611, 69 S. W, 61, upholding anti-trust act of
1895. preventing combinations in restraint of trade, so far as au-
thorizing State to forfeit licenses of foreign corporations for violat-
ing same: Cook v. Howland, 74 Vt 397* 93 Am. St. Rep. 914, 52
-«\tL 974, upholding Vt Stat.. | 41S1, prohibiting foreign insurance
Companies from operating within State unless filing statement with
Bcrcretary of State and appointing agent resident of Stale; Ashland
l.umber Co. v, Detroit Salt Co., 114 Wis. 78. 89 N. \\\ 908, uphold-

177 U. S. 48-62 Notes on U. S. Reports. 11-^

lug Rev. Stat 1898, as amended, providing conditions for operati.^
within State of foreign corporations declaring contracts ukm^
oefore compliance with conditions wholly void.

Foreign corporation not citizen within constitutional guaranty
equal privileges and immunities, p. 45.

Approved n Anglo-American Prov. Co. v. Davis, etc., Co. (No.
191 U. S. 376. 24 Sup. Ct 93, upholding N. Y. Code Civ. I^ir^
§ 1780, limiting actions by one foreign corporation against ano^A
to certain specified cases.

Repeal by implication not affected where repealing act \m m;
constitutional, p. 47.

See 88 Am. St Rep. 295, note.

Distinguished In Niagara Fire Ins. Co. ▼. Cornell, 110 Fed. aS
holding unconstitutional, law Nebraska, Laws 1897, preventJ-JQi
combination between fire insurance companies, does not withdrsB-n
foreign company's right to operate within State.

177 U. S. 48-51, 44 L. 665. IN RE GROSSMAYBR, PBTITI0NB5».

Mandamus is proper remedy to compel court to take JorisdictK'o
after sufficient service, p. 49.

Approved in In re Connway, 178 U. S. 425. 44 L. 1136, 20 Sop. Ct
953. holding mandamus proper remedy to compel court to bring io
party to action after improper refusal to do so.

Plain tifT cannot sue out writ of error before final Judgmeot
entered, p. 50.

Approved in L. E. Waterman Co. v. Parker Pen. Co., 107 Fed.
143. liolding not final, under 29 Stat 695, order vacating serrice on
foreign corporation for nonservice at place of business wbere order
did not show that defendant had no place of business within district

177 U. S. 51-62, 44 L. 667, FARMERS* LOAN, ETC., CO. v. UK^
ST. RD. CO.

A suit in equity is commenced by filing a bill of complaint, P- ^«

Approved in Humane Bit Co. v. Barney, 117 Fed. 318, boldlni
suit in equity in Federal court commenced by filing bill.

Possession of res vests court first acquiring JurisdictioD witl»
power to hear all controversies relating thereto, p. 61.

Approved in Farmers' Loan, etc.. Trust Co. v. Lake St El*^'
R. R. Co., 122 Fed. 919, holding tiling of bill in Circuit Court to
foreclosure suit acquired jurisdiction to determine its own i^^*
diction; McDowell v. McCormick, 121 Fed. 65, holding court enter
ing order restraining corporation from disposing of property •tid
appointing receiver acquired Jurisdiction to exclusion of coort ot
concurrent Jurisdiction; Baltimore, etc., R. R. Co. v. Wabasb B. B
Co., 119 Fed. 679, 680, holding In cases of concurrent jurisdictio"
in rem court first acquiring jurisdiction of res has exclusire coOr

1101

Kotes on U. S. Reports,

177 U. S. 63-104

irol of matter; M'KecliDey v. Weir, 118 Fed. SOT, holding Federal
court having entered order restraining sale of firm's assets, motion
for receiverstiip being pending, has exclusive control of whole
matter; Hutchinson v. American Palace-Car Co., 1C>4 Fed. 184, liold-
Ing interlocutory receivership of corporation should not be granted
without public notice exeept in emergencies, but wlien granted
covers assets within bill.

Distinguished lo Knott v. Evening Post Co., 124 Fed. 352, hold-
ing Federal court entertaining suit for appointment of receiver sub*
sequeet to suit in State court for inspection of hoolis only acquires
exclusive jurisdiction; Uaie v. Coffin, 114 Fed. 575, holding where
ndinlnlstratlon of estate completed by Probate Court, equity has
Jurisdiction to subject property in hands of distributee to decedent's
debts; Oliver v. Parlin & OreudoriT Co., 105 Fed. 275, holding Fed-
eral court not vested with jurisdiction suflicient to restrain State
suit, where In suit to concel deed for fraud grantee alleged trans-
fer to plaintiff in State suit.

Remanding cause to State court for further proceedings, p. 62.
Approved In Lake Street Elev. R. R, Co. v. Farmers' Loan &
Trust Co,, 182 U, S. 418, 45 L. 1162, 21 Sup. Ct. 870, holding re-
versal of injunction decree pursuant to mandate, and direction of
•lismissal of hill to restrain proceedings tn Federal court presents
mo I'ederal question.

Distinguished In Cable v. United States Life Ins. Co., Ill Fed.
82, holding Judgment on appeal sustaining Circuit Court's Jurisdic-
tion Is res adjudlcata on second appeal.

177 U. S. 63-66, Not cited.

177 U. S. 60-104, 44 L. 673, HOUSTON & TEXAS CENTRAL R. R.
CO. V. TEXAS.

Federal court determines for Itself existence, construction, valid-
ity, and Impairment of alleged contract, p. 77,

Approved In St. Paul Gaslight Co. v, St. Paul, ISl U. S. 147, 15<1,
i5 L. 791, 793, 21 Sup. Ct 577, 578, holding decision of State court
that charter of plain tlJT company did not Impose duty on city to
t>ay for unused lamps did not preclude Federal court from inquiring
into alleged Inpairment.

Federal character of suit must appear In plaintlU'a own stale-
ikient of case, p. 7S.

Approved In South Carolina v. Virginia-Carolina, etc., Co., 117
^ed. IS'2, holding action by State to subject foreign corporation to
^naitles under law passed under police power not removable
>vhere neither complaint nor statute mention Federal laws; Yazoo,
btc, R, R. Co. V, Adams. 81 Miss. 114, 32 So. 946. holding wher©
*bl1road property escaped taxation, legislature may aubseqtiently
lubject lame to payment of back taxation*

177 U. S. 104-149 Notes on U. S. Reports.

Distinguished in Scott ▼. Choctaw O., etc., R. R. Ck>., 112 Fed.
181, holding right to removal not conditioned on showing of Fed-
eral question or Federal nature of railway in complaint, showing
of such facts in petition being sufficient

177 U. S. 104-124, 44 L. 600, UNITED STATES v. ELDER.

To Justity confirmation claimant must establish validity of title
by preponderance of proof, p. 109.

Approved in Whitney v. United States, 181 U. S. 110, 114, 45 L.
774, 776, 21 Sup. Ct 568, 569, holding no presumption of delegation
of power by Mexican president to governor of province to make
valid grant of land.

177 U. S. 125-132, 44 L. 698, JAMESTOWN & NORTHERN R. R.
CO. V. JONES.

Right of way may be definitely located by construction of road,
pp. 130, 181.

Approved in Pennsylvania, etc.. Imp. Co. ▼. Everett, 29 Wash. .j

106, 69 Pac 629, holding title of railroad to right of way under IS ^

Stat 482 vests on construction of road, though profile not filed Jb

because land resurveyed.

177 U. S. 133-149, 44 L. 701, BRISTOL v. WASHINGTON CO.

State may tax credits represented by investments within Juris- — «.

diction, p. 141.

Approved in Board of Assessors v. Comptoir National, 191 U. 8. ..S.

403, 24 Sup. Ct. 113, upholding Louisiana tax on credits arising from miml

loans on collateral made by agent within State of foreign corpora- —m-

tlon, agent holding collateral; Blackstone v. Miller, 188 U. S. 3M. . m,

23 Sup. Ct 278, 47 L. 444, upholding imposition of tax under -m^r

N. Y. inheritance tax law on transfer under will of nonresident of ^«f

debts due decedent by residents; Armour Packing Co. v. Armour, «.*xr,
118 Ga. 556, 45 S. E. 425, holding notes and accounts in liands of %^
local agent of nonresident packing corporation taxable by dty; ^ ^;
Corry v. Baltimore City, 96 Md. 322, 5^ Atl. 943, holding city may -^y
tax shares of domestic corporations owned by nonresidents; .\llen Mc^p
V. NaUonal State Bank. 92 Md. 513, 515, 48 Atl. 79, 80. upholding .^^ g
Acts 1896, chap. 120, imposing tax on interest payable on mort-~ j^.
piges hold by nonresidents, fixing situs where property located^- ^;
State V. London, etc., Mtg. Co.. SO Minn. 283, 83 N. W. 340, holdin^^s^
credits of nonresident Insolvent in hands of resident agent to' ^f
winding up affairs subject to State taxation.

Distinguished in Eidman v. Martinez. 184 U. S. 582. 46 L. 70:!3V.

22 Sup. Ct. 517, holding war revenue act 1898 imposing inheritanc «

tax upon property passing by will not applicable to Americi^ a
securities passing under wnll of alien nonresident; Board of Coon^^l/
V. Fidelity Trust etc.. Co., Ill Ky. 673, 64 S. W. 472. holding Ti»

1103

Notes on IT. S. ReportB

absence of statute mortgage od Kentucky realty and bonds Be-
cured thereby lield by nonresident not tajcable In Kentucky,

Proceeding by attactinient and publication accords nonresident
<lue process, p. 146.

Approved In Arkwrigbt Mills y, Aultman. etc.» Macb. Co., 128

Fed. 11#C, upholding Mass. Rer. Laws, chap. 170, providing non*

resident bringing suit against resident Is liable to aet-ofC of subae-

<:iuent Judgments of same defendant as extension of set-off rlghta.

A tax is a "* liability created by statute," p. 148.

Approved in Board of Go, Comrs, v. Story, 26 Mont, 521, 69 Pac. 58»

Ijoldlng obligation to pay a tax is liability *" created by statute "

^vltbin Montana Statute of Limitations.

i 77 V. S. 14£^-155. Not cited.

X77 U. S. 155-163, 44 L. 711, MURPHY v. MASSACHUSETTS.
Appellate court has power, on erroneous sentence, to remand for

a^entence according to law, p, 157.

Appro v-ed In Watson v, Rhode Island, 179 U. S. a7£>, 45 L, 383. 21

5Sup. Ct. 915. reatllrmlng rule; Whitworth v. United States, 114

E*^ed. 305. holding Circuit Court of Appeals, on discoverlag error la
cr^iminai case, may enter proper judgment or remand with direc*
t ions to lake proper proceedlngw; Haynes v. United States, 101 Fed.
^tiO, holding errors in sentence in directing manner or place of
^:3tecution may be corrected by remanding for correction without
n<:;w trial.

XT7 U. S. 164-168, i4 L. 716, PETIT v. MINNESOTA.

Keeping barber shops open on Sunday is not work of necessity
ox- charity, p. 168.

-Approved in Ex parte Northrup, 41 Or. 491, 69 Pac. 446, upliold-
log Sess. Laws 1901. p. 17, making it a misdemeanor to work as a
t>arb^f an Sunday; State v, Sc^litz Brew% Co., 104 Tenu. 732, 737.
•** Atu. SL Eep. 9^9. 952, 59 S. W, 1036, 1037, upholding Acta 1897,
t^Uap, i>4, proliibitiu;^ and punis^Jiing combinations calculntod to
l^sjiejj conJiietition in trade or lessen price of commodities; Ex parte
1 ^'^t^impji^,^ 42 Tex. Cr. 150, 58 S. W, 130, holding in absence of special
l^i**cuiiigtance8 barber* s work on Sunday not work of necessity:
J^tate V. Sopher, 25 Utah, 326, 71 Pac. 487, holding keeping open
** Sunday of barber shop connected with hotel not work of neces-
State V. Nichols, 28 Wash. 633, 69 Pac. 373, upholdhig Bal-

H^y;

i*^f?er'8 Code, f 7251, prohibiting Sunday opening except of drug
U**^es, stables and hotels, and holtels not for sale of liquorg; dls-
^'^titig opinion Id Connolly r. Union Sewer-Pipe Co.. 1H4 U. S. 567,
L. 603, 22 Sup* Ct. 442, majority holding uncotistitutional 111.
|*^st act 1S93, exempting therefrom agrieultural products or live
^^^ in hands of producer or raiser. See notes, 78 Am, St. Eep.
205.

177 U. S. 169-182 Notes on U. S. Reports. 1101

Class legislation, unless palpably arbitrary, does not violate
Constitution, p. IQS,

Approved in State v. Cook, 107 Tenn. 510, W S. W. 723, up-
holding Acts 1897, chap. 177, punishing taking of note given in
purchase of patent or interest therein which does not state such
fact on face.

177 U. S. 169. 44 L. 720. CHRYSTAL SPRINGS LAND, ETC., CO.
V. LOS ANGELES..

AfQrming 82 Fed. 114, dismissing, for want of jurisdiction, bill
to establish water rights, p. 169.

Approved in Boston Mining Co. v. Montana Ore Co., 188 U. 8. ..^31
643. 23 Sup. Ct 439. 47 L. 633, holding Federal Jurisdiction, it'^M i
conferred by averments as to probable defense, Is ousted by an — .k^co
swer disclaiming reliance on such defense; Hooker v. Los Angelen^.^m'sg,
188 U. S. 318. 23 Sup. Ct. 397, 47 L. 491, holding State declsioncK «do
adverse to claim of riparian rights and subterranean waters undei^'^aer
Mexican grants confirmed by Congress raised no Federal questioa .^i^d.

177 U. S. 170, 44 L. 720. PHINNEY v. SHEPPARD, ETC., H08
PITAL CO.

Dismissing writ of error to State court sustaining statote
Ing name of corporation, p. 170.

Approved in Joesting v. Baltimore, 97 Md. 694, 55 Ati. 458, hoU
lug city cannot complain that property of persons In annexed dii
trict Is taxed by State law alleged to impair obligation of oontrac
of prior law.

177 U. S. 170. 171. Not cited.

177 U. S. 172-177, 44 L. 721, CAMDEN & SUBURBAN RY.
V. STETSON.

Rev. Stat. § 21. authorize Federal courts to follow State la^^ ^
providing for compulsory physical examination, p. 177.

Approved in Smith v. Northern Pac. Ry. Co., 110 Fed. 342. hol*^- d-

Sng admissible under act March 9. 1892. in suit in Federal cour rt

depositions taken in accordance with Washington State law; Car t>-
den & S. Ry. Co. v. Stetson, 101 Fed. 653, holding under Rev. Sto" ^t.
§ 721, defendant In suit In New Jersey for personal injuries entiti^^s*'
to compel plaintiff to submit to surgical examination.

Miscellaneous. Cited in Camden & S. Ry. Co. v. Stetson, 104 Fe — ^

1004, certifying question of principal case.

177 U. S. 177-182. 44 L. 723. FORSYTH v. VEHMEYER.

** Fraud *' In bankruptcy act means fraud in fact involving mo"^^
turpitude, p. 181.

Approved in Giawford v. Burlie. 201 111. 589. 66 N. E. 836, hcz^ld-

im

Notes on U. S. Itopoits, 177 U. S. 183-212

g under bankruptcy acts 1898 and 18C7, debt created by fraud of
iiikrupt not acting In fiduciary position not discharged.
Representation falsely made to obtain money from another in-
>iyes moral turpitude within bankruptcy act 1808, p. 182.
Approved in Santa Rosa Bank v. White, 139 CaL 705, 73 Pac 578,
aiding under bankruptcy act 1898, excepting unscheduled claima,
tea of discharge may be met by showing that debt was within
tceptlon*

Distinguished in Knott v. Putnam, 107 Fed. 910, holding bankrupt
itltled to injunctive protection from arrest upon State court execu-
on upon dtibt for proceeds of cotton sold as broker, discharged by
mkruptcy; In re Stud. 1U7 Fyd. (JS4, holding false reports to com-
lercial agencies not within banliruptcy law, i 14, as ground for
^f using discharge; Goodman \\ Herman, 172 Mo. 354, 72 S, W* 549^
>ldlng judgment creditor cannot go behind judgment entered on
mple account tosliow sale Induced by debtor's fraud,

^7 U. S. 183-189, 44 L, 72o, GUNDJ.ING v. CHICAGO.
Ordinance empowering mayor to grant license to suitable sellers
' cignrettee accords due process* p. 186.

Approved in Capital City Dairy v. Ohio, 183 U. S. 24^ 46 L. 176,
t Sup. Ct 123, uplioldijig Ohio statutes proliibiting manufacture
' sale of oleomargarine conlaiulng any coloring matter; dissenting
)lnJoQ Id Counully v. Union Sewer-Pipe Co., IJil 11 S. 5ti7, 4ti U
12, 22 Sup. Ct. 442, majority holding unconstitutional lU. timst
*t 18f»3, exempting therefrom agricultural products and live stock
hands of producer or raiser.

Regulations of pursuit of business in cities unless utterly unrea-
^oable are valid exercise of police power, p, 1S4J.
Approved in State v. Capital City Dairy Co., 62 Ohio St. 865, 57
. E. 65, upholding Ohio Laws March 1, 1890, *'to prevent decep-
oo in sale of dairy products and to preserve the public liealth."
Distinguished in Jones v. Stewart, 117 Ga. 9Su, 44 S, E- 881,
>1dfng one Illegally conducting stock exchange not treated as tax
efaulter under tax act 1900, but subject to fine under criminal
roce«8.

n tJ. 8. 190-212, 44 U 740, OHIO OIJU COMPANY V. INDIANA

iSo, 1>,
ladrtina act of 181*3 prohibiting How of oil or gas for more thfiw
vo days after gas or oil struck In well does not deprive property
it bout due process of law, pp. 210, 211.

Approved In Ohio Oil Co. v. Indiana (Xo, 2), 1T7 U. 8. 212, 44 L,
WJ, 2<J Sup. Ct. 585, reafflrmlng rule; Federal Oil Co. t. Wcptern
n Co., 121 Fed. 675» 070, holding grant of oil prirlleges In certain
iiadi conveyed mere use of premises for prospecting, title being
Vol III— 70

177 U. S. 214-239 Notes on U. S. Reports. IS^^M

incomplete nntll gas or oil found; Richmond Nat Gas Co. y. En^^^f.
prise Nat. Gas Co., 31 Ind. App. 231, 66 N. E. 785, holding no Sq.
Junction granted for use of pumps to aid transportation of natrs^xtii
gas where pressure not thereby increased beyond limit set by 1^ ^.
Manuf., etc., Co. v. Ind., etc, Co., 155 Ind. 470, 57 N. B. 915, -^p.*
holding Acts 1891, p. 89, prohibiting use of artificial means to K>2t>-
duce unnatural How of gas from well; Stillwater Water Co. t.
Farmer, 89 Minn. 67, 93 N. W. 910, holding landowner cannot ^trmln
percolating waters from neighbor's spring except for own domestic
beneficfial use.

Distinguished in Huber v. Merkel, 117 Wis. 368, 94 N. W. 3S8,
holding percolating water is absolute property of landowner in
whose land it is, and right of diversion is an absolute right

Indiana statute requiring confining of gas or oil flow within two
days is constitutional, pp. 210, 211.

Approved in Given v. State, 160 Ind. 554, 66 N. B. 751, uphold-
ing Acts 1893, as amended 1899, prohibiting owners of gas or oil
wells to permit product to escape more than two days after strike.
See 78 Am. St. Rep. 256, note.
177 U. S. 214-229, 44 L. 741, OVERBY v. GORDON.

Point not necessary to decision not rendered res adjndlcatt
thereby, p. 224.

Approved in Maldauer v. Beurhans, 108 Wis. 33, 84 N. W. 27.
holding County Court's decree reciting amount due each in SBtign-
ment of residue being to that extent surplusage, no bar to suit tor
redistribution.

Adjudication of domicile in grant of letters of adminlstrttioD
without contest has no effect beyond Jurisdiction, p. 227.

Approved in In re Estate Neubert 58 S. C. 475, 36 S. E. 910,
sustaining appointment of second administrator for same estate to
South Carolina after appellant appointed by Florida court
177 U. S. 230-239, 44 L. 747, LOUISVILLE & NASHVILLE B. B-
CO. V. SCHMIDT.

Sufficient notice and adequate opportunity to defend constitute
due process, p. 236.

Approved in Simon v. Craft, 182 U. S. 436, 437, 45 L. 1170, H'^'
21 Sup. Ct 839, holding person adjudged lunatic in absence, oimJ^
Ala. Code 1886. where physician deemed presence inconsistent witii
health and safety, not deprived of due process.

Party properly served cannot after Judgment, complain of ^^
of due process for defenses not presented, p. 239.

Distinguished in Tilley v. Coykendall, 172 N. Y. 593, 65 N- ^
575, holding Judgment against nonexistent corporation for d^"*
gence in managing tug cannot be enforced against president <>^
whom service made, where latter not negligent

Notes on U. S. Reports. 177 U. S. 240-260

U. S, 240 260, 44 U 751, THE ALBERT DUMOIS.

teles laid down governing yessels approaching eacb other, pp.

-253.

Lpproved In The Chicago, 125 Fed. 718, holding "Augusta," being

^*ileged, not at fault for maiutainlng her speed of elgbt miles

hour until imDiodiateiy preceding collision; The Straits of Dover,

Fed. 903. tMM, boldiug ** Blueflelds " at fault for trying to cross
vs of privileged *' Straits of Dover," instead of slackening speed
reversing, and latter at fault for falling to keep ber course; The
Ha. 120 Fed, 461, affirming 108 Fed. 982, holding *^Acilla" In
It for going at dangerous speed, and for violation of rules by

pilot, the *" Cratborne " rigbtly relying an Acilla's obedience
rules; Hall v. Chisholm, 117 Fed. 813, holding vessel at fault

poor control in trying to pass 2,000-foot log raft In St. Clair
»r, and tugs at fault for allowing raft to strike bank; The City
Augusta, 102 Fed, 91)0, holding inepector'a rules 3, 6 and 9,
»osed on vessel duty to reverse, and to blow timely signals when
Toaching near each other.

\rhere both vessels at fault one Buffering least must pay other
ugh to equalize loss, pp. 256, 257.

approved in Workman v. Mayor, etc., of New York, 179 U. S.
, 45 L. 221, 21 Sup. Ct. 216. holding admiralty law and not
|] law governs liability of city for uegllgence of fireboat re-
nding to fire; The Union Steamboat Co,, 17S U. S. 320, 44 L.
5, 20 Sup. Ct 905. boldiug if court erred in refusing recoup-
Qt of oae-half damages to cargo from moiety of damages
arded to damaged vessel, remedy is by appeal, not mandamus;
e New York, 108 Fed. 104, holding where no question of vessers
Ut to recoupment presented to District Court except in rejected
ift for decree, refusal to grant recoupment not error; The Liv-
tstone, 104 Fed. 925, holding vessel Jointly at fault may recover
e-half loss of innocent cargo -owners, paid by such vessel under
:r^ awarding full recovery, though no cross-libel filed; The New
rk, 104 Ff}(l. 5(jij, holding Circuit Court of Appeals may review
?ree of District Court as to matter of recoupment of half of dam-
^ left opeu in Supreme Court's mandate; In re Lakeland Tnmsp.
. 103 Fed, 330, holding where vessels equally at fault, each liable
half the loss regardless of rlgbts of cargo-owners; The St. Johns,

Fed. 471, 477. holding where Injury to one vessel alight, both
^B culpable, such vessel must pay other one-half of total loss.
*> Civ, Code conferring lien for damages for veBsers uegllgence
8 not extend to damages for death, pp. 258, 259.
Pproved in The Onoko, 107 Fed. 987, holding water craft stat-
* of Wisconsin and Illinois giving Hens for Injuries did not
itid to UenB of next ot kin for Injuries causing death.

^otes on ^3. 9- ^,„uvn« «

«mon to'* "" ,n 'Sffo^^^^f is. *"^*"* t due W

>^<1. sup. c^;^>^ ot B^;y. ^od^'^j^.p, ot ^r^vftcte.-:;:,.

^4'S^^- ^.Sd X^«>1 S^weJ. o* S: Cau^^: S>to^' ^'^'^
^ ^^^":S o^«- ^tper V. «°;r^or.<V. -; rituP- ,^

V«S f!' Vutti*^^^* ^^„ .^ insurance v^ , Md. 3C». '^^ trttlA*-"*

V'^^^^*'"' \.v c\ause" ;'\^,uved. P- 2*>° g^. 9* ^^ ^odge. P»» , M
" -^^e^f ,„ tavor ot W8 ^^^a l>oo» grand ^j ac

,ret and \« _^* ^ .josser v. ^^-stuution oi ^baU ^pp. *

surer an« '" ^^losse; - eoust"-;- ^^ereoi - ^^ ^'.r ^.

to

im

Notes on U. S. RoportB. 177 U. S. 281-317

177 U. S. 281-200, 44 L, 771, HYDE v. BISHOP IRON CO.

Miscellaneous. Cited In Mid way Co. v, Eaton, 79 Minn. 445, S2
V. W. 861, reciting history of litigation.

.71 U. S. 211)^21)6, 44 L. 774, KEIM v. UNITED STATES,

The power of reinovjil from olilce Is Incident to the power of
ippointmeut, p. 21*3.

Approved In Horstman v, Adfinisoa, 101 Mo. App. 125, 74 8» W.
09» holding where unlimited by law, county clerk's removal power
\rer deputies lawfyOy oppointed is absolute; dissenting opinion in
S'hite V. Ayer, 126 N. C. 611, 36 S. R 145, laajority awarding man-
lamus to compel State auditor to issue warraut for salaiy of chief
uspector of oyster Industry, though name of office changed.

,77 U. S. 2^0-305. Not cited.

77 U. S. 305-310, 44 L. 780, UNITED STATES T. HARRIS.

Penal statotea are to be strictly coostrued, and intention must
ippear in language used. pp. 309, 310.

Distinguished in Johnson v. Southern Pac. Co», 117 Fed* 467,
lolding aet March 2, 1S03» requiring use of improved couplers on
are does not require same on locomotives engaged In interstate
lommerce; Fidelity, etc.. Casualty Co. v. Dorough. 107 Fed. 3D3,
loldlng Rev. Stat. Tex. lSt>5, imposing on '* life or health insur-
lace compau3' " additional Uiihility tor detault in paying loss, in-
ipplieabte to accident insurance company^ dissenting opinion In
ileGhee v. JPCarley, 103 Fed. 61. majority holdhig railroad re-
elver llahle in pualtive damages to personal representative of minor
lecedent for hitter's death, throngh railroad's negligence.

Distinguished in Powell v. Sherwood, Hi2 Mo. (il6. tj3 S. W, 4S7,
lolding Laws 1897. p. 9t}, defining liability of railroad corporations
or Injuries to servants, and declaring who are fellow servants,
ncludes receivers.

77 U. S. 311-31T, 44 L. 782, CREDITS COMMUTATION CO. v.
UNITED STATES.

Circuit Court's denial of petition to loterveoe waa discretionary
md not appealable, p, 317.

Approved iu Laud Title, ete., Co. v. Asphalt Co., 127 Fed, 21,
loldiug denial of right to iaterveae In foreclosure proceedings wliere
lefeudant does not elalm right to property, being discretionary, is
lot appealable; Kidder v. Northwestern Mut. Life Ins, Co., 117 Fed.
►OH, holding where defendaut in State suit has no right to remove,
olutitary interveners cannot nuike cause removable; In re Colum-
>ia Real Estate Ca.. 112 Fed. r»45, lUH. holding dlsitilj<8al of strang-
er's petition for intervention In involuntary biinkruptcy not Uual
lee i si on on merits of his claim; Mass. Loan, etc., Co. v. Kansas
Jlty» etc., R. R. Co., 110 Fed. 30, holding order refusing right to

177 U. S. 332-345, 44 L. 793, MINNEAPOLIS & ST. LOI
CO. V. GARDNER.

Consolidation of railroads by Minn, act 18S1 created ne^
ration, p. 342.

See 89 Am. St Rep. 614, note.

Stockholders of new corporation not exempt from ttatut
bility unless expressly released, p. 344.

See 89 Am. St Rep. 625, note.

177 U. S. 346-349, 44 L. 801. CAFFREY v. OKLAHOMA '
TORY.

County clerk cannot as clerk appeal to Supreme Court fro
to increase assessment, pp. 348, 349.

Approved in Smith v. Indiana, 191 U. S. 149, 24 Sop. Ct I
ing county auditor has no personal interest warranting ai
Supreme Court to review State decision requiring dediK
mortgage from value of certain realty.

177 U. S. 349^65, 44 L. 801, BLACK v. JACKSON.

Injunction not used to take property oot of possession ol
favor of another, p. 361.

Approved in Cosmos Exploration Co. v. Gray Eagle Oil <
Fed. 9, holding Federal court of equity without JnrisdU
determine right to possession to lands where bill shows de
in possession.

Question of right to possession to land oinder homestead i
jury trial, pp. 363, 364.

Approved in Downes v. Bidwell, 182 U. S. 293, 45 L. 1100,
Ct 789, holding Congress in legislating for Porto Rico n

nowprAfl to not onlv within nnnlipflhio llmlf'JiHnnn nf tha H

nil

Notes on U, S. Reports, 17T U, S, 378r421

»

in U. S. 378-390. 44 L. S13, EX PARTE BAEZ.

Where tliere is no subject-msitter on which Judgment will operate
court will not proceed, p. 300,

Approved in Fisher v. Cushman, 103 Fed. 867. holding Joint
licensee to sell liquor In devising license for sale on court's order
on bankruptcy of other licensee has no remedy by appeal.

177 U. S. 390-403, 44 L. 817, MERLEIN v. NEW ORLEANS.

Estoppel results where question underlying second recovery bat
been decided under identical circumstances, p. 397.

Approved In United States v. California, etc., Land Co., 192 U. S.
358, 24 Sup. Ct. 2«7, holding dismissal of hill to avoid land patents
by way of forfeituiri Ijars second suit to avoid same as for lands
Included within Indian reservation; The New Brunswick, 125 Fed.
568, 570, holding decree on merits dismissing intervening petition
to establish general maritime lien on mariue vessel for Boston
supplies precludes second suit for same purpose; Eastern Bldg.,
etc.p Assn., V, Weill ng, 116 Fed. 105, holding Judgment that mort-
gage was discharged by payment bars second suit between same
parties to foreclose; Hoscasou v. Keegen, 178 Mass. 251, 59 N. E.
C28, holding judgment for grantee in suit for reconveyance for fraud
bars second suit for reconveyance for undue influence.
177 U. a 404-411), 44 L. 823, AMERICAN EXPRESS COMPANY v.
MICHIGAN.

War revenue act 1898 does not prohibit shifting of taxes by per-
sons taxed, p. 411,

Approved in Crawford v. Hubbeli, 177 U. S. 421, 44 L. 830, 20 Sup.
Ct. 701, hnlding express company not forbidden by war revenue
act 1898 from increasing rates to cover cost of stamp required
thereby; People v. Wells, Farj^o & Co., 135 Cal. 504, 505, 507, 509.
67 Pac. 896, 897, holding express company may refuse to accept
package at regular rates and charge additional amount to cover
staoip imposed by war revenue act; l*ulted States Express Co. v.
People. 195 111. 15G. €2 N. E. 820, holding Federal decisioa that
express company may sliift burden of revenue stamp upon shipper
binds Illinois court: dissenting opinion in Trammell v. DInsmore,
102 Fed. 804, 805, 806, majority holding State railroad commission
may under State statute prohibit express company from increasing
rates beyond maximum limit to cover cost of revenue stamp.

Dlstiuffulslied ia lYauuneil v. Dlnsraore, 102 Fed. 801, holding
State n*ilroad commission may nnder State statute prohibit express
compfiny from exceeding maximum rates to cover cost of revenue
Ittainp.
177 D. S. 419-421, 44 L. 829, CRAWFORD v. HUBBELL.

War revenue act 1898 does not prohibit express company from
adding stamp to rate, p. 421.

Approved In United States Express Co. v. People, 195 111. 156,

177 U. S. 421-149 Notes on U. S. Reports.

62 N. E. 826, holding Supreme Court decision that express company
may shift burden of revenue stamp binds Illinois court.

Distinguished in Trammell v. Dinsmore. 102 Fed. 801, holding
under Georgia laws express company cannot add cost of revenue
stamps to maximum rate allowed by commission.

Miscellaneous. Cited in Crawford v. Hubbell, 104 Fed. 1004.
certifying question of principal case.

177 U. S. 421-435. 44 L. 830, DOHERTY v. NORTHERN PACIFIC
RAILWAY CO.

Northern Pacific Railroad Company selected Ashland as eastern
terminal, p. 435.

Approved In Humblrd v. Avery, 110 Fed. 467, holding, under
30 Stat. 620, accepted by company all settlers claiming under
Federal laws whose rights attached before 1808, had option of
retaining or transferring claim.

177 U. S. 435-442, 44 L. 836, UNITED STATES V. NORTHERN
PACIFIC RY. CO.

Failure to complete road within time limited in act of grant !•
condition subsequent, p. 441.

Approved in California Reduction Co. v. Sanitary Reduction ^

Works, 126 Fed. 43, holding garbage contract not attackable by
private person because of alleged irreg^ularities in granting and ^
nonperformance of conditions; Utah, etc., R. R. Co. v. Utah, etc.. ^
Ry. Co., 110 Fed. 890, holding 18 Stat. 488, providing for forfeiture ^
of land granted if road not completed in five years, states condl- ^^
tiop subsequent entitling State to enforce forfeiture*.

Eastern terminus of Northern Pacific railroad is Ashland, p. 441..^ ^^

Approved in Humbird v. Avery, 110 Fed. 467, holding under 30^^^
Stat. G20, settlers whose right accrued prior thereto might ele
whether to retain railroad land or exchange.

Miscellaneous. Cited in King v. McAndrews, 111 Fed. 863. '^^^^
afliniiiiig lower court in holding patent of land department not cac:::^^^,
laterally assailable for errors of law.

177 U. S. 442-44t», 44 L. S30. CARTER v. TEXAS.

Exclusion of all Africans because of race from grand jury tryL ^^
nojrro violates Fourteenth .\mendment, p. 447.

Approved in Roi::ors v. Alabama, 192 U. S. 231. 24 Sup. Ct. ^ZSQ^
hohlinjr striking from files because of lenjjth motion to quash indlof.
nu'iit for exclusion of negroes from jury violates constitutiona/
guaranty; Brownfielil v. South Carolina. 180 U. S. 427, 23 Sup. Ct
r»14, 47 L. 883. hohlinj? court will not take as true recital in writ of
error that negro was iloprivtHl of liberty by exclusion of negroes
from jury whert* judges lindings disclosed no intentioaal dis-
crimination; State v. Warner, lOo Mo. 415. 416, 65 8. W. 58S, boW-

US

Notes on D, S. Reports. 177 U. S. 442-449

Ig denial of moOon to quash intlictmeivt on ground of exclud-
ig negroes not tured by hearing of evidence thereon br right
aimed is constitutional; State v. Peoples. 131 N. C. 788, 791, 7tJ4,
S S. E. 815, 81G. 817, holding exclusion because of color of negroes
om Jury to try colored defendant constltntea unlawful discrimiua-
>n; Whitney v. Stute, 43 Tex. Cr. 109. G3 S. W. 880, holding
here two negroes sat In grand jury representing the ratio of the
ro races accused cannot complain; Whitney v. State, 42 Tex, Cr*
5, r)9 S. W. SiK). quashing indictment where negroes excluded
>oi jury, commissioners declaring them unflt to serve; Smith v.
ate, 42 Tex. Cr. 221, 58 S. W, 97, holding defendant entitled to
>tlOD to quasli indictment on showing negroes persistently ex-
ided from grand jurj- for twenty years.

Distinguished in Ilubhard T. State, 43 Tex. Cr. 5GG. 67 S. W. 414.
Ming no discrimination against negroes shown w*here commls-
iners declared they were instructed not to discriminate and erl-
nce showed negroes not qualified; Lewis v. State, 52 Tex. Cr. 280,
S. W. 1117, holding conviction will not be set aside on appeal from
itlon to quash indictment for exclusion of negroes from jury
lere no bill of exceptions (lied.

Defendant having no opportunity to cliallenge grand jury may
•ject by plea or motion, p. 447*

Approved in State v. Brownfield, CO S. C. 514. 39 S. E. 4. hold-
g overruling of motion to quash indictment proper where no
ridencc olTered In support of motion; Kipper v. The State, 42 Tex.
p. (lid, 62 S. W. 421, holding erroneous refusal of defendant's
lotion to quash indN^tment for discrimination against negroes in
tcludiiig them from jury.

Whether right claimed under Federal Coostitutlon was sufficiently
leaded Is Itself a Federal question, p. 447.

Distinguished in Erie R. K. v. Purdy. 183 U. S. 152. 4G L. 850, 22
ap. Ct- (j06, holding State decision nonrevlewable where no
lallenge of State statute made in s^tate court and Supreme Court
f State did not consider it raised.

Refusal of court to hear wltnei^ses of defendant on motion to
litis h Indictment Is erroneous, p. 44 [K

Approved In Castleherry v. State, 09 Ark. 349, 63 S. W. 071,
ddlng ern^ncous overruling motion to quash Indictment for ex-
usiou of negroes from Jury without hearing evidence therean.
Distinguished In Tarrauce v. Florida, 188 U. S. 521, 23 Sup. CI.
\?^ 404. 47 Ia. 574. upholding denial of motion to quash indictment
here only evidence offered in favor thereof was defendant's affl-
ivit attiiched thereto; Gastllng v. SUite. 09 Ark. 190. 107* 02 S. W,
*7, 588. holding motion to qu:ish should not be granted where no
lowing made of exclusion of qualified negroes aud whexe com-
lasiouer aelected men believed to be best qualltled.

177 U. 8. 449-470 Notes on U. S. Reports. 1114r- --

177 U. S. 449-458, 44 L. 842, GREAT SOUTHERN FIRE PROOF -"^
HOTEL CO. V. JONES.

On every appeal first and fundamental question is that of Juris ^b-

diction, p. 453.

Approved in Continental Nat Bank v. Buford, 191 U. S. 120, 24.^^24
Sup. Ct 54, holding jurisdiction to review Judgment of Circuits iT ait
Court of Appeals must be first considered where question arises^K^aet
on face of record.

The bill must allege citizenship to confer Jurisdiction, p. 454.

Approved in Winkler v. Chicago, etc., R. R. Co., 108 Fed. SO&^^JjOS,
holding insufficient petition for removal averring corporation to b^^ztfbe
citizen and resident of another State, without showing Ini iiiji im ai ji
tion under laws thereof.

The rule as to corporations' citizenship has not been applied t*.^ to
partnership, p. 456.

Approved in Great Southern Fireproof Hotel Co. v. Jones, 11-^ 16
Fed. 799, upholding under Ohio bill of rights Ohio mechanic's liei-^a^en
statute giving independent lien to subcontractors; Ralya Market C<^^I3a
V. Armour & Co., 102 Fed. 533, 535, 536, holding suit against part '^mii-
nershlp cannot be removed to Federal court on ground of dlverslt^P" itj
of citizenship, since citizenship cannot be predicated of partnership -Kp*

Where citizenship of members of partnership does not appm ^^r,
cause reversed without prejudice, p. 458.

Approved in Houston v. Filer & Stowell Co., 104 Fed. 164, \^ -■«•
versing Judgment where citizenship of partners not shown K^ ^
record, and remanding with order to allow amendment

Miscellaneous. Cited in Boatner v. American Exp. Co., 122 Ft* ■ ^^-
718, holding joinder of resident agents of foreign express compaic ^7
in suit on contract for loss of package fraudulent to prevL^g" "^
removal.

177 U. S. 459-470, 44 L. 846, BOSKE v. COMINGORE.

Internal revenue regulations of 1898 prohibit collectors from
nishing copies of records, p. 460.

Approved in In re Lamberton, 124 Fed. 450, 451, holding Inte
revenue collector cannot be compelled to disclose as a witne
names of persons In whose places special tax stamps are posted.

In cases of urgency Federal courts Interfere with State courti '
habeas corpus, p. 466.

Approved in Ex parte Shicker, 109 Fed. 149, holding person su.
madly adjudged guilty of contempt without a hearing where St^v.^^
law gives no appeal entitled to discharge on habeas corpus. •

Case of revenue officer imprisoned by State authorities la one* of
urgency warranting habeas corpus by Federal court, p. 467.

Approved in Minnesota v. Brundage, 180 U. S. 503. 45 L. Wl* -^
Sup. Ct 457, holding application for habeas corpus should be deniei/

Illl5

Notes on U. S, Reports.

U. S. 471-4D5

^here sole ground is unconstltutloDallty of statute and St&te
reraedj not exhausted*

aT7 C. S. 471-485, 44 L, S51, ADAMS v. COWEN.

Cited In Clidden v. Cowen, 123 Fed. 49, reciting history of lltiga*
tlon.

177 C. S, 485-495, 44 L. 856. MAST. FOuS & CO, T. STOVER MFQ.
CO.

Comity is not a rule of law but one of eonvenienee, pp. 48S» 489.

Approved in Cimiotti Uuhairing Co. v. Am. Fur Ref, Co., 120 Fed.
874, holding on independeut cons idiira lion thiit Sutton patent 383,258^
tor plucking oiachlne, was valid and infringed; New York Filter*
Mc, Co, \\ Jackson, 112 Fed. 680, iiolding by rule of comity Oireait
Dourt will follow adjudications on siiwe patents in other cireuita
iritliout requiring legal pi oof of identity of patents beyond opinions
BJed; Browu v. Piiget SSound Iteduelion Co.. 110 Fed. ^85, holding
Srowo patent 471, 2G4, for ore-roasting furnace, infringed by eoa-
Itruction following Kopp patteat 532,01^; Weli^bach Light Co. v.
Cosniopolltan Incand. Light Co., 104 Fed. 84, holding refusal of
Injunction in patent case contrary to rule in another circuit not
ground for reversal; Seller v. Fuller & Johnson Mfg. Co., 102 Fed.
^45. holding preliminary Injunction not warranted Tsvhere Infringe*
ment nlJeged and denied and aot proved and where injunction would
prevent sales for a year.

Distinguished in Consolidated Rubber Tire Co. v. Finley, etc.
Tire Co.. 11 G Fed. G40, holding question of effect of prior decision in
another circuit Iraoiaterial where licensee attacks patent after grant
to third person.

Comity ha a no application to questions not considered by prior
court, p. 485X

Distinguished in Westlnghouse, etc., Mfg. Co, v. Royal Weaving
Co., 115 Fed, 734. holding defendant to avoid effect of former
decision must show new matter involved which might require
difTereut decision as to validity of patent.

Applying old device to new use increasing Dumber of teeth In
wheel not Invention, p. 493.

Approved in Wisconsin, etc., Co. v. American, etc., Co., 125 Fed.
7G8» holding moditied Sorenson and MeCluin machines consisting
in using known means for directing air currents upon goods to be
cleaned not invcuiion; Betteudorf Patents Co. v. J. R. Little Metal
Wheel Co.. 12:i Fed. 435, holding not patentable Betterdorf patent
&5(),815, for securing metal spokes to hubs, being but adaptiitioo of
Oendlon patent 419,009; Johnson Co. v. Toledo Traction Co., 119
Fed. 81)2. holding hi valid M ox ham pjitent 540J9tl, for Improvem'ent
]d railway swit flies, utilizing moUeu zinc to secure removable plate
in fipocket; Farmers', Jlfg. Co. v. Sprnks Mfg. Co.. 119 Fed, 596, hold-
ing East patent 20,021, for ventilating barrel of slieet veneer, Invalid

atitoToa*^'' ^ tV0T» ol ^^cH CO" coott ot *-^^ „ol ^.

Ca8t»«^ \' court ot -7 \.8e ot ""^ pectba* - teot •" ttW^T-*rt

Fed. ^^^^ „tc c^aVO* »« ^^ co. '• °"; V)S ^««'*!!reW «P"° ^ -C-^.

estaA^^^^^Wa^ *^Cus. -^''' "^ "^ . ttattoe^^' ^^,,s2. to^^w

tf'^J "".^rt \«J«^'* „ etc.. CO- ^:, ^^ pa«°\^tt-. 8»°til^

V.!!r:>.ed Au CoOP , pj^^^^^ ^.ore

; Savge«^' fSA>a*ed on a^ ^^,,t;eB '^ ocecd^^J 48S. ^

o*-^- ,, court ot ^^luUC. P;^-,,e.. ^^^^^^,>AoO a^/,;^

aec^'^« ^2 ^« CVnc^r^^up. C^^i'^iised Vn «^;;/ov tro^ ^j d^
VT>ptove<l yvi. -\.„,„te W*V.. sustn^» L, vvX^c^*^ ?.„oe«"*

co«tt^;;;;e«c.vtcou

V'eiv^

^IT

Nates on U. S. Heports.

177 U. S, 501-514

tatter court maj decide constltutlona] question or certify It; Dnluth
Brewing, etc., Co. v. City of Superior, 123 Fed. 35(>, retiitnlnjij jmis-
<iiction on appeal of ease Involving construction of Federal Con-
stitution and question whether State !flw contravenes Federal Con-
stitution; Watkins v. King, IIS Fed. 532, tiolding Incidental Intro-
<3uctxon of constitutional question by cballenge of constittitlonality
of leg^islatlve act as muniment of title does not defeat appellate
Jurisdiction of Circuit Court of Appeals; Keyser y. Lowell, 117
I^^ed. 4€1, holding Circuit Court of Appeals may de^We whether
State statute violates Federal Constitution where criminal juris-
diction based on diverse citlzeiiBliip, constitutional question aris-
ing- subsequently; Owensboro v. Owensboro Water- Works Co., 115
I^'cd. 322. 323t holding Supreme Court has exclusive jurisdiction
^o exclusion of Circuit Court of Appeals in a[»peai from Circuit
Oourt involving solely question of coustilutiomility of !5tate law:
United States v, Lee Yen Tal, 113 Fed. 467, holding court of appeal
may reverse or affirm case involving coostUutional question or
eertify question, but cannot decide upon construction of Chinese
treaty of 1894; Carter v. MX'ianghry, 105 Fed. Gia holding denial
of ivrit of habeas corpus by court of one circuit not res adjudicata
in aJ3otlier: Pike's Peak Power Co. v. City of Colorado Springs, 105
Fed, 7. holding Circuit Court of Appeals will not decline jurisdic-
tion of suit Involving impairment of contract where dismissal
would cause indefliiite delay.

Distinguished In American Sugar Refining Co* v. New Orleans,
ISl U. S. 282. 45 L, 862, 21 Sup. Ct. IMS, holding Circuit Court of
Appeals not justified in declining Jurisdiction of cause based upon
diverse citizensljlp. because of presence of constitutional question
appealable to Supreme Court.

177 U. S. 501-504. Not cited.

177 U. S. 505-514, 44 L. 804. SHOSHONE MINING CO. T. RUTTER,

Record must show as required in good pleading that suit involves
Federal question, p. 507.

Approved in Boston, etc., Mining Co. v. Montana Ore Co., 188
U. S, 040, 23 Sup. Ct. 43S. 47 L. ^2, holding Federal jurisdiction.
If conferred by allegation of defense to be raised, is ousted by
defendaurs disclaimer of reliance on such defense; Gableman v.
Peoria, etc., R. R. Co., 179 U. S. 331*, 45 L. 223, 21 Sup. Ct. 173,
holding Federal receiver appointed under general equity power
of court and sustaining liability, under general law, not entitled
to remove suit because of appointment alone.

Suits to enforce rights originating In law of United States not
aecessarlly Federal, p. 507.

Approved In Joy v. City of St. Louis. 122 Fed. 527, holding eject-
ment to recover land claimed, under Spanish grant, contirmed by

ngresB not of Federal cognizance.

4-

177 U. S. 514-523 Notes on U. S. Reports.

Adverse mining suit need not necessarily InTolye constmction
or effect of Constitution, p. 509.

Approved In Bankers', etc., Co. v. Minnesota, etc., Ry., 192 U. S.
384, 24 Sup. Ct. 329, 330, holding suit against railway carrying
mail for loss of mail package, based on general law, not InvolTing
constitutional question preventing finality of Circnlt Court of
Appeals decision; Reals v. Cone, 188 U. S. 186, 23 Sup. Gt 276,
47 L. 438, holding mere fact that action is brought, under Rev.
Stat., SS 2325, 2326, does not of itself warrant direct appeal to ^

Supreme Court; Sweringen v. St Louis, 185 U. S. 45, 46 L. 799, ^,

22 Sup. Ct 572, holding decision that distances In patent did not ,^

in fact bring boundary to Mississippi river raises no Federal ques-
tion; Mountain View M. & M. Co. v. McFadden, 180 U. S. 584,
45 L. 656, 21 Sup. Ct 488, holding suit in support of adverse mining ^^g
claim, brought under Rev. Stat., SS 2325, 2326, does not of Itself ^^ jf
entitle defendant to removal; Bunker Hill, etc., Co. ▼. Shoshone -^^^e
Mln. Co., 109 Fed. 507, holding dismissal of adverse mining suit :^' Mil
on sole ground of lack of Jurisdiction constitutes no bar to second Mj^Md
suit in State court; Larned v. Jenkins, 109 Fed. 101, holding bring- ^ wag-
ing of suit, under Rev. Stat, S 2326, for mining claim, does not
establish case of Federal cognizance; Johnson v. Munday, 104
Fed. 594, holding suit in support of adverse mining claim not oi
itself sufficient to sustain Federal Jurisdiction; dissenting oplnioi
in Tullock V. Mulvane, 184 U. S. 519, 46 L. 669, 22 Sup. Ct 380.
majority holding question whether there can be liability on Federal^
injunction bond raises Federal question.

Purpose of Rev. Stat, SS 2325, 2326, was to obtain trial befoi
tribunal where land lay, p. 513.

Approved in Bardes v. Hawarden Bank, 178 U. 8. 538, 44
1182, 20 Sup. Ct 1006, holding section 23, bankruptcy act 189a
eluding from District Court suits by trustee to recover bankrupt'
goods, except on defendant's consent showed Intent to make suit
triable In local courts.

177 U. S. 514-523, 44 L. 868, CLEVELAND, ETC., RY. CO. ^^^ r.
ILLINOIS.

Reasonable regulation of railroads may be made by local ]aw-^=rit
pp. 516, 517.

Approved in Pennsylvania R. R. Co. v. Hughes, 191 U. S. i'- tf^,
24 Sup. Ct 136, upholding refusal of State to limit liability of

common carrier on contract for interstate carriage to valuati ^oo
agreed upon; Erb v. Morasch, 177 IT. S. 585, 44 L. 898, 20 Sup. ^CTt
820, upholding city's regulation of speed of railway trains wit^=aln
city limits; Chicago & A. R. R. Co. v. City of CarlinvlUe. 200 ^ML
327, 328, 93 Am. St Rep. 199, 200. 65 N. E. 734, upholding c=Jty
ordinance passed, under police power, regulating speed of
within city limits, including mail trains.

1110

Notes on U* S. Reports. 177 U. S. 523-584

a77 U. S. 523^529, 44 L^ 872, De LAMAR'S NEVADA G, M. CO, v.
NESBITT.

Writ of error will lie only when decision 1b adverse to right
Claimed, pp, 528, 529.

Approved in Lowry v. Silver City GoM & Silver Mining Co., 179
tJ. S. 108, 201, 45 L, 152, 21 Sup. Ct 105, holding no writ of error
bo State court In mining suit maintaionble where decision rested
IB ground of estoppel against plaintiff lessees.

Writ of error requires construction of acts of Congress not mere
^lalm thereunder, p. 520.

Approved in Iowa v. Rood, 187 U, S. 92, 23 Sup. Ct 51, 47 L. 90,
lolding decision adverse to claim of State to beds of lakes mean-
tered by United States government presents no Federal question;
^very v. Popper, 179 U. S. 310, 45 L. 205, 21 Sup. Ct. 90. holding
mere fact that plaintiff purchased at marshal's sale, under Federal
bcecutioD, raises no Federal question: dissenting opinion in Tul-
lock v. Mulvane, 184 U. S. 519, 40 L. OGD, 22 Sup. Ct. 380, majority
lioldlng claim of Immunity from liability for attorney's fees on
Federal injunction bond raises no Federal question.

in U. S. 520-538, 44 L. 874, JOHN BAD ELK v. UNITED STATES.

No Btatnte of United States or South Dakota gave any right to
Urrest wUhout warrant, p. 535.

Approved In Good Shot v. United States, 104 Fed. 258, holding
murder of one Indian by another punishable with death under
Eev. Stat, § ^339. See notes, 84 Am. St. Rep. 082, 098. 099,

Person may use reasonable force In resisting unlawful arrest,
p. 537.

See 84 Am. St Rep. 700, note.
177 U. 8. 538-648, 44 L. 878, APACHE COUNTY v. EARTH.

Act of 1874 provides for review of territorial decisions where
exceptions taken, p. 542.

Approved in Armijo v. Armijo, 181 U. S, 561, 45 L. 1002, 21 Sup.
Ct, 709, holding Suiuenie Court cannot reverse territorial decision
Where there are no findings of latter court and no bill of exceptions,

^7T D. S. 549-558. Not cited.

177 U. S. 558^584, 44 L. 686, LOS ANGELES v. LOS ANGELES
CITY WATER GO.

Reservation of power to regulate rates limits city's power as
governmental agent, p. 570.

Approved In Rogers Park Water Co, v. Fergus, 180 U. S, 632,
K^ L, 706, 21 Sup. Ct 493, linkling act ill, 1872, enabled city 1o
pmake contract authorizing fixing of rates for public and private
iwpply; American, etc.^ Co. v. Howe Water Co., 115 Fed. 180, bold-

177 U. 8. 584-600 Notes on U. S. Reports. ' 1120

lug action of city, duly authorized, in granting exclusiye franchise
to use streets is legislative; Los Angeles City Water Co. v. Los
Angeles, 103 Fed. 712, holding city cannot reduce water rates to
private consumers below rates fixed pursuant to contract with
water company; dissenting opinion in Freeport Water Co. ▼. Free-
port, 180 U. S. 009, 45 L. 692, 21 Sup. Ct 502, majority holding
contract authorizing water company to charge certain rates for
thirty years not authorized by 111. act 1872.

The State may give city power to bind it by hreyocable contract
p. 570. ,

Approved in Vicksburg Water- Works Co. v. Vicksburg, 185 D

S. 82, 46 L. 816, 22 Sup. Ct. 592, holding city may bind Itself foRH
thirty years by contract for water supply and ordinance threat-^ -
ening repudiation thereof raises Federal question; Detroit y.
troit Citizens' Street R. R. Co., 184 U. S. 382, 46 L. 606, 22 Sup^
Ct. 416, holding legislature may authorize municipal corporatioz^c -^xi
to bind future councils by contract fixing street railway faret^^Bt*;
Freeport Water Co. v. Freeport, 180 U. S. 593, 45 L, 686, 21 SnpE^jH- p.
Ct. 496, holding municipal corporations may be given power t»^^to
bind themselves by irrevocable contract to fix water rates; Rlver^-s-DT-
side & A. Ry. Co. v. City of Riverside, 118 Fed. 741, holding (Atz :^ ty
with legislative authority to operate public utilities cannot Tl<Z3»'flO'
late contract to furnish electric power; Reed v. City of ilnoka, 8^5^ 85
Minn. 297 (see 88 N. W. 982), holding charter of city of Anolr -ggto
confers power upon municipality to enter into contracts with pr -^ pri-
vate individuals for purposes stated therein; KnoxvlUe v. Knoa
ville W. Co., 107 Tenn. 679, 680, 687, 64 S. W. 1083, 1084, 10
upholding Knoxville ordinance reducing water rates in absence c^ of
express legislative authority to bind Itself to fixed rate.

177 U. S. 584-587, 44 L. 897, ERB v. MORASCH.

A city when authorized by legislature may regulate speed of i^^K-til
trains within city limits, p. 585.

Distinguished in Kansas City, etc., Ry. v. Board of R. R. Comr^ »..

lOO Fed. 358, holding Arkansas railroad commissioners canoot t-^Krtix
freight rates between State points where line lies largely In Inilii^ u
Territory.

177 U. S. 587-600, 44 L. 899, L'HOTE v. NEW ORLEANS

Course adopted by legislature conclude courts in respect to

matters of police nature, p. 597.

Approved in State v. Thompson, 160 Mo. 342, 60 S. W. 10
upholding Mo. act April 7, 1897, providing for awarding by ^t
auditor of pool selling licenses to reputable racecourses.

Ordinance may limit location of bawdy-houses, p. 597.

See 78 Am. St. Rep. 272, note.

LVIl

Notes on IT. 8. Rtn>orts. 177 U. S. 601-655

177 U. S, 6111-604, 44 L. 905, WILLIAMS r. WINGO.

A contract binding the State Is only created by clear language,
p. 603.

Approved in Ferry Co. v. Russell, 52 W. Va. 360, 43 a E. 109,
Iiolding owner of nonexclusive ferry franchise cannot recover dam-
«gea for injury caused by estabiJsbmeut of second ferry,

^77 U. S. 605-614. Not cited*

:i77 U. S. 615-621, 44 L. 911. CINCINNATI, HAMILTON, ETC.,
RY. CO. V. THIEBAUD.
Constitutional question, under judiciary act 1891, cannot be
raised in assignment of errors, p. 620.

Approved In Watkins v. King, 118 Fed. 532, holding introduction
!3f question of constitutional conatruction by objection to act of
legislature as muniment of title does not defeat jurisdiction of
Circuit Court of Appeals; PIIjg'b Peak Power Co. v. Colorado
Springs. 105 Fed. 7, holding where dismissal of appeal in case
bavolvlng use of streets would occasion long delay Circuit Court
>f Appeals will not decline jurisdiction; American Sugar Refiniag
Co. V. New Orleans, 104 Fed, 3, holding writ of error should be
dismissed by Circuit Court of Appeals where controlling question
Involves conatruction of Constitution.

Miscellaneous. Cited in Cincinnati, etc., R. R. Co. v. Thiebaud,
104 Fed. iW4, transferring principal case to Supreme Court on
writ of error.
177 U. S. 621-637, 44 L. 014, LEROY v. UNITED STATES.

Subject to paramount power of Congress over navigable waters
State control Is complete, p. 625.

Approved in Snllivan Timber Co. v. Mobile, 110 Fed. 190, Iiold-
ing court bound by Mobile Transportation Company v. Mol>ile, con-
iflrtilng grants in navigal>le water to extend to high water; Ben-
liieli et al. V. Scobel et al., 107 La. 247, 31 So. 705, holding bayou
La Chute nonnavigable and subject to State control and to State
tolerance of cut-off Interfering with oyster beds.

Where one end of crevasse had closed up and become marah it
is not navigalile, p. G27.

Distinguished in Dal ley v. New York, 128 Fed. 797, holding ad-
miralty has Jurisdiction of suit for injury to scow towed through
gap ill Kilmer's Island during filling in and left there to settle on
projection-

177 V, S. 63&-048. Not cited.

177 XT. S. 64JM555. 44 L. 926, BRTAR v. CASIPBELL.

Where neither party sets up former decree court need not notice
same. pp. 654, 653.

Approved in Tampa Water-Works Co. v. City of Tampa, 124
Vol. Ill — 71

177 U. S. 655-605 Notes on U. S. Reports. 1122

Fed. 836, holding lis pendens in State court does not bar proceed-
ing on same cause by same parties in Federal court; Union, etc..
Bank y. Mempliis, 111 Fed. 570, liolding question of res adjudicata
not before court wliere prior Judgment not pleaded or proTen.

177 U. S. 655-691. Not cited.

177 U. S. 695. 44 L. 946, COLES T. COLLBOTOR.

Denying petition for writ of certiorari to Circuit Court of Ap-
peals, p. 695.

Cited in Evans y. Collector, etc., of S. F., 107 Fed. 111» affirming
holding of Circuit Court that anthracite coal containing less than
82 per cent carbon is dutiable under paragraph 41fi^ tariff act 1807. ^^ ^^

ft

CLXXVIII UNITED STATKS.

( U. B. 1-^21, 44 L. 953, ROEHM v. HOKST.

>n renunciation of executory eon tract, injured party has option
sue immediately or wait, p. 10.

Lpproved in Warner v. Cocliraue* 128 Fed. 557, holding lessees
ier renewnble lease of asphalt lauds on lessor's wrongfyl refusAl
renew may tender rent and ask speciHc perforroance or sue for
ach; Daix v. Supreme Council. 127 i^^cd. 375, holding members
y sue to recover amounts paid in where fraternal life insurance
ociatlon by tiy-law reduces amount payable on certificate;
»reme Couacii A, L. H. v. Black, 123 Fed. €52, holding members
rraternal beuellt association may sue at once where association

by*law levies assessment in violation of inssurance contracts;
rtbrop V. Mercantile Trust, etc., Co., 119 Fed. 971, holding refusal
paity to pay instalment under executory contract of stock sub-
Iptloo in new company, warrants suit at once for breach; Belton

Co. V* Kentticky Retinini? Co-, 115 Fed. 1017, reaffirming rule that
er renunciation of continuing agreement, hy one party, the other

I oplioD of suing immediately or waiting till time of performance;

II Coal, etc., Co. v. Empire Coal, etc., Co., 113 Fed. 261, holding
Ier of coke by weekly shipments may repiuliate contract where
fer refused to pay for past deliveries as per contract; In re Swift,
» Fed. 5fKi. holding general assignment by Massachusetts broker

0 purchased stock for customer on margin not a conversion but
ter has option to claim contract; Oklahoma Vinegar Co. v. Garter,
t Ga. 145. 94 Am. St. Kep. 112, 42 S. E. 38t). holding notice from
^'er of goods counterinaiiding order amounts to breach of contract

to rescission, and vendor may sue for breach; Smith y, Georgia
Co.. 113 Gn. fl77, 39 S. E. 410, holding where one party renounces

1 tract of nuitual obligation other party may treat same as finally
lien and sue for damages or await performance: Speirs v. Union
>p Forge Co,, 180 Mass. 02, 61 N. E. 827, hohling where defendant

*m1 to perform contract to furnish plalntilTs shop with work In
i^hig drop forgings latter may sue before end of time; P. P,
<:jry Manuf. Co, v, Salomon, 178 Mass. 58:3 <see GO X. E. 377),
Ibig damages in anriripatory breach of contract for sale of
^1s is difference Itetween contract and market price oo date of
rormance; Gearty v. Mayor, etc., of X. Y,. 171 X. Y. 71, 63 N. E.
• holding contractor eomi>elled to relay pavement may refuse
€5found of complhince with ctiuti^act and sue for work and ma-
Ols or relay same and sue therefor; Mut, R. Fond Assn. v.

[1123]

1125

Notes on U. S. Keporta.

178 U. S. 41-111

"Right to regulate sticcessiona is vested Id States, p. 58.

Approved In State v. Travelers' Ids. Co*» 73 Conn. 2&4» 2C5, 266,
4T Atl. 302, 303. upholding Gen. Stat, § 3916, for assessing at dif-
ferent rates shares in insurance companJes lield by resident and by
nonresident; dissenting opinion in Snyder v. Bettman, 190 tJ. S. 251*
23 Sup. Ct 805, 806, 47 L. 1036. majority upliolding auccessioo tax
imposed by act CongresB June 13, 18^8, on bequest to municipality
for poblic purposes*

Exercise of lawful attributes of taxation by State or nation does
Dot affect other* p. 60*

Approved in Snyder v. Bettnian, 190 U. S* 251, 252, 253, 23 Sup.
Ct. 804, 47 L, 1036» upholding succession tax imposed by act of
Congress June 13, 1898, on bequest to municipality for public
purposes.

Power to destroy, by taxation, limits taxing power to subjects
lawfully embraced therein, p. 80,

Approved in dissenting opinion in Snyder v. Bettman, 190 U. S* 259,
23 Sup. Ct 807, majority upholding succeselon tax imposed by act
[!oQgresa June 13, 1898, on bequest to muntcipallty for public
purposes,

Inberitance tax is burden cast upon recipient, p, 60,

Approved in dissenting opinion in Snyder v. Bettman, 190 U, 8.
i56, 258, 23 Sup. Ct 805. 47 L, lOSa 1039, majority npboldlng sue-
resslon tax imposed by act Congress June 13, 1808, on bequest to
uvuiicipality for public purposes.

Legacy tajc of act of 1808, Is reproduetlon of act 1864, p. 76,

Approved In Ruckgaber v. Moore, 104 Fed. 954, holding American
iecuritleij passing under will of citizen of France to her daughter
Uso nonresident alien not subject to Inberitance tax of 1898.

Title of statute showing subjects taxed considered when ambiguity
&xista. p. 65.

Approved In Mackey v. Miller, 126 Fed, 162, holding marginal
notes in Revised Statutes may be considered in Indicating intention
of Congress not to alter previous actj Johnson v. Rutan, 122 Fed.
fHMJ, holding medicinal plasters made up according to well-known
pnedleal formula not ** me^licinai proprietary articles *' within 30
Itftt 462; The Kestor, 110 Fed. 438. holding 30 Stat 755, act to pro^
teet American seomen prohibits prepayment on American soli or
In American waters of wages of Britisii seamen on American ships.

Inheritance tax Imposed by war revenue act is on the legacies
ttnd distributive shares, p. 77,

Approved in Sherman v. United States, 178 U. S. 151, 44 L. 1014,
20 Sup. Ct 78iK holding tax Is on distributive shares and not on
personal estate of testator; Pennsylvania Co., etc. v. M'Claln, 105
Fed, 367. 370, holding trustee holding property under testamentary
fllspositioo when act June 13, 1898, was passed Is not within its

178 U. S. 41-lU Notes on U. S. Reports. 112<>

terms and may recover interest on taxes paid; dissenting opinion In^
StUlwagen v. Wayne Probate Judge, 130 Mich. 171, 89 N. W. 730^
majority holding under Michigan inheritance tax law not taxing
transfer unless property worth $5,000, that amount deducted an<M
tax levied on balance before legacies paid.

Where particular construction will occasion great inconyenienccs
or inequality reasonable interpretation will be adopted, p. 77.

Approved in United States v. Lucius Beebe, etc.. Sons, 122 Fed
766, 7G9, holding 28 Stat 552, authorizing reliquidation of entry, i^
based on fluctuation in market value of silver.

All legacies not exceeding $10,000 are not taxed by war revenu—
act 1898, § 29, p. 78.

Approved in Murdbck v. Ward, 178 U. S. 149, 20 Sup. Ct T
holding executor representing legatees may recover taxes paid o-^^^do
legacies under $10,000.

Inheritance tax is an excise and not direct tax, p. 81.

Approved in Spreckels Sugar Ref. Co. v. McClain, 192 U. C 8.
412, 24 Sup. Ct. 381, holding special excise tax on sugar refinic^K' ng
imposed by war revenue act of 1898 not a direct tax; Thomas t.

United States, 192 U. S. 370, 24 Sup. Ct 30G, upholding stamp
on memorandum of sale of certificate of stock imposed by
June 13, 1898, and affirming United States v. Thomaa, 115 F(
213, 214, 216; Eidman v. Martinez, 184 U. S. 589, 46 L. 703, 22

Sup. Ct 520, holding inheritance tax of act June 13, 1898, ina^^mjh
plicable to American securities passing under will executed abro^^vad
of nonresident alien or by laws of Spain; Orr v. Gilman, 183 U. 8.

287, 289, 4G L. 201, 202, 22 Sup. Ct. 217, 218, upholding New Y< )rk

transfer tax law for taxation of exercise of power of appointme nt,

though property appointed be exempt by statute; Murdock v. Wa nt

178 U. S. 143, 145, 147, 149, 44 L. 1011, 1012, 1013, 20 Sup. Ct 7 7S,

holding United States bonds in legacy of decedent's estate taxa "*Je
under war revenue act 1898; Sherman v. United States, 178 V.
S. 151, 44 L. 1014, 20 Sup. Ct 780, upholding tax imposed by
act June 13, 1898; Fidelity Ins., etc., Co. v. McClain, 178 U. &
114, 44 L. 998, 20 Sup. Ct 775, upholding constitutionality of i^^w
revenue act 1898; High v. Coyne, 178 U. S. 112, 44 L. 997, 20 St- '■P-
Ct. 747, upholding legacy taxes levied by sections 29 and 30 of ^^^
revenue act of 1898; Vanderbilt v. Eidman, 121 Fed. 593. holdft as-
under act 1898, tax on residuary estate left by testator to tru^"^^
for son, income to be paid, becomes fixed on passing of prope^r'tj;
Ruckgaber v. Moore, 104 Fed. 949, 951. holding inheritance *«"
of war revenue act 1898 does not extend to property pas^ ^^
under will of nonresident alien; Union Trust Co. v. Probate Joc^^*
125 Mich. 492, 84 N. W. 1102, holding Michigan inheritance ^^^
Pub. Acts 1899, is tax on privilege of transfer; Matter of Git»^"-
1G9 N. Y. 447, 02 N. E. 5G1, holding inheritance tax imposed */

1127

Notes on U. B. Rpports. 178 U, S. 111-114

war revenue act 1S98 not to be (deducted from value of estate
for purpose of transfer tax; DLxon v. Ricketts, 26 Utah, 218, 219,
72 Pac. 948 upholding Laws 1901 to tax gifts, legacies and inherit*
ances In certain cases. See notes, 88 Am. St. Rep, 518, 520.

Proliibltton as to preferencea in regulation of commerce between
ports and duties cocsldered, p. 104.

Approved in Downes v. Bidwell, 182 U, S. 278, 45 U 1103, 21
Sup. CL 783, holding there may be territories subject to Jurisdic-
tion of United State which are not of United States.

The uniformity clause as to taxation imported but geographical
uniformity, p. 106,

Approved in Patton v. Brady, 184 U. S. 622, 46 L. 720» 22 Sup.
Ct. 498, upholding tax levied on tobacco by war revenue act June
13, 1898, in liee of tax previously imposed by law; United States
V. Southern P. R. R. Co., 184 U. S. 56, 46 L. 429, 22 Sup. Ct 2S8,
holding bona fide purchasers of uapa tented Southern Paeifle railroad
lands are protected by act March 3, 1887, whether purchasing before
or thereafter; Fairbank v. United States, 181 U. S. 29T, 306, 321,
4*** L. 868, 872, 878, 21 Sup, Ct. 654, 657, 658, holding practical con-
struction of constitutional provision by legislative action confined
to cases of doubt: De Pass v. Bid well, 324 Fed. 623, upholding
Foraker act April 12, 190O, taxing goods previously imported from
Porto Rico; Lyon v. Boston, etc., R. B. Co,, 107 Fed. 387, bold-
log New Hampshire statute, providing for survival of action for
death of intestate, enforceable only within State; Matter of Dows,
167 N, Y. 231, m N. E, 441. holding, under New York transfer
law, trust funds with power of appointment exercised liable to
taxation, though Invested in bonds exempt from taxation; dis-
nenling opinion in Dooley v. United States, 183 U. S, 168, 46 L.
135, 22 Sup, Ct. 69, majority upholding Foraker act April 12,
1[*00, imposing tax on goods imported into Porto Rico; dissenting
opinion in Downes v. Bidwell, 1S2 U. S. 3Ct2, 350, 45 L. 1131, 1133,
21 Sup. Ct. 811, 813, majority holding Porto Rico not part of United
States within uniformity clause.

When progressive tax becomes arbitrary It Is time to consider
judicial remedy, p. 109,

Approved in Downes v. Bidwell, 182 U. S, 278, 45 L, 1103, 21
Hup. Ct. 783, holding Congi-esa has large powers conferred upon
it and presumed to be Judicially exercised.

War revenue act 1808 imposes inheritance tax with reference to
whole amount of personalty, dissenting opinion, p, 110,

Approved in Dixon v. Bicketts, 26 Utah, 223, 225, 72 Pac, 950, 951.
Upholding Laws 1901, to tax gifts, legaclefl and InherltanceB in
certain cases.

ITS U. S, 111-114. Not cited.

178 U. S. 115-149 Notes on U. S. Reports. 1128

178 U. S. 115-139, 44 L. 998, PLUMMER v. COLER.

State may tax capital stock of corporation holding United States
bonds, p. 127.

Approved in Snyder v. Bettman, 190 U. S. 250. 23 Sup. Ct. 803.
804, 47 L. 1036, upholding succession tax imposed by act Jane 13.
1898, upon bequest to municipality for public purposes; Ruckgaber
y. Moore. 104 Fed. 951. holding war revenue act 1898, imposing
inheritance tax. does not refer to property of nonresident alien not=> _
passing under intestacy law of any State.

Distinguished in dissenting opinion in Snyder y. Bettman, 190 V 4.

S. 256. 23 Sup. Ct. 805. 806. 47 L. 1038. majority upholding ■ n

sion tax imposed by act June 13, 1898. upon bequest to municipaMg^ ^\.
ity for public purposes.

Right to take property by will or descent is regulated by munlcf -^^ xV-
pal law, p. 134.

Approved in Orr v. Oilman, 183 U. S. 287, 289. 46 L. 201, 202, ST 22
Sup. Ct. 217. 218. upholding New York transfer tax law taxiing m .ing
exercise of power of appointment; Murdock v. Ward, 178 U. r g,

146, 147, 44 L. 1012. 20 Sup. Ct 778. holding United States boo» .«=x^ q()j
included in legacy or distributive share of estate taxable und^C^^der
inheritance tax of war revenue act 1898; Matter of Dows, 167
Y. 231, 60 N. E. 441, holding trust funds as to which appointir
power is exercised are taxable under transfer tax law, thou
invested in bonds exempt from taxation. See notes, 88 Am. t
Rep. 518, 520.

Distinguished in Black v. State, 113 Wis. 223, 89 N. W. ff "ET^
holding invalid for discrimination Laws 1899, taxing inheritanc^n?^
gifts and sales exempting inheritances from estates under $10»9^Boq
in value.
178 U. S. 130-149, 44 L. 1009, MURDOCK v. WARD.

State may tax descent or devise of property, including Fed^r«/
securities, p. 146.

Approved in Snyder v. Bettman, 190 U. S. 252, 23 Sup. Ct 80^.
47 L. 1037, upholding succession tax, under act June 13. 1898. on
bequest to municipality for public purposes; Orr v. Gilman. 183
U. S. 280, 4G L. 202, 22 Sup. Ct 218, upholding New Yorlc trans-
fer tax law taxing remainders created by will before precedent
estates terminate and remainders vest; Sherman v. United States.
178 U. S. 151, 152, 44 L. 1014, 1015, 20 Sup. Ct 780. holding bond*
of United States and income therefrom are taxable under In-
heritance tax law; Matter of Dows, 167 N. Y. 231. GO N. E. 441.
holding trust funds, after exercise of power of appointment, taxable
under N. Y. transfer tax law. though invested in nontaxable
bonds. See 88 Am. St Rep. 520, note.

Whore by mutual mistake question of construction of act not
raised court will reverse, p. 149.

Approved in Mossberg v. Nutter, 124 Fed. 9G7, holding dismissal

Notes on U. S, Reports,

178 U. S. 150-216

f appeal warranted by trial court's reqiaest for return of record
or newly discovered evidence In patent case; Greene v. United
ihoe Maclilnery Co., 124 Fed. 962, holding Circuit Court of Appeals
aDDot remand without reversing or modifying decree,
18 U. S, 150-152. Not cited.

ITS tr. S. 153-167, 44 L. 1015. CHESAPEAKE & OHIO RY, CO, v.
HOWARD.

LSzecutlon of lease does not necesBarlly terminate management by
Pttor, p. 163.

Approved in Pennsylvania R. R. Co. v. Anoka Nat Bank, 108
Fed. 487, affirming judgment for plaintiff where evidence showed
Inferentlally that line on which loss occurred was managed and
controlled by defendant, though leased to another.

17S U. S. lUS-lSe, 44 L. 1021, CASTNER v. COFFMAN.

No exclusive right to tradename "Pocahontas" applied to coal,
p. l&l.

See 85 Am. St. Rep. 107, note.
178 U. S. 180-195, 44 L. 1028, CLARKE v. CLARKE,

In Supreme Court local law of State as to realty Is as declared
by State court, p. 1I>2.

Approved In WIUiMms v. Gaylord, 186 U. S. 1U8, 46 L. 1108, 22
Bwp» Ct 802, holding Federal courts concluded l>y Calif or u la de-
cision as to ratitlralion by stockholders of Incumbrance of mining
corporation on its ground; Orr v. GUman, 183 U. S. 2SG, 40 L. 201,
K'Bup. Ct 217, upholding N. Y. transfer tax law, Imposing tax
in exercise of power of appointment as construed by State court;
Biythe v, Hinckley, ISO U. S. S41. 45 L. 5G2, 21 Sup. Ct 304, up-
boldiog Cal. Civ. Code, | 671, declaring alien capable of Inheriting
und holding land within State; Abrnham v. Casey, 179 U. S. 218,
15 L, lliO, 21 Sup. Ct. fn, holding highest State court's decision
IS to sale and record of title and right of mortgage creditors binds
federal court See 88 Am. St. Rep. 518, note.

178 U. S. 196-205. 44 U 1033, BROWNING v. De FORD.

Attaching creditors must show fraudulent purchase v?lth mort-
gagee's party thereto, p. 198.

Approved in Nicholls v. McShane, 16 Colo. App. 168, 169, 170, VA
Pac. 376, 377, holding mortgagee of goods procured by morcliant
through fraud may hold same as against seller where Ignorant of
fi-aud.
178 U. S. 205-215, 44 L. 1038, MORAN v. HORSIvY.

Defease of laches is independent nonfederal defeusej p. 215.

Approved In Hale v, Lewis, ISl U. S. 480, 45 L. 963. 21 Sup. Ct
ISO, holding State decision that corporation Is estopped by action
>f directors to question constilutionaliiy of statute not reviewable;

178 U. S. 215-239

Notes on U. S. Repo

Jopling V. Chachere et al., 107 La. 529, 5
Ing tax title not attackable for latent de
chaser in possession for thirty years.

178 U. S. 215-229, 44 L. 1042, TARPEY V.

Right of occupant intending to homeste
of place to record intent, p. 219.

Approved in Oregon, etc., R. R. v. Unite
Sup. Ct. 620, 47 L. 731, upholding rights of I
nity land before selection to supply place h
Northern Pacific Ry. Co., 188 U. S. 123, 2
holding settler occupying In good faith lane
of railroad grant after withdrawal, but I
road, may complete title; United States
706, holding homestead settler cutting
filing entry not liable as trespasser whe
same by prohibition against record.

Mere occupation of public lands gives
ment, p. 220.

Approved in Cosmos Exploration Co. t.
Fed. 15, holding where land is being ex
vacant and open to settlement occupao
rights.

Distinguished in dissenting opinion iii
V. Gray Eagle Oil Co., 112 Fed. 20, maj
not interfere to decide right of possess!
land exploring for oil.

Congress in making railroad grant ii
with reasonable certainty of identlficatioi

Approved in Toltec Ranch Co. v. Babc<
Pac. 879, holding open, notorious possessit
filing of railroad's map of definite locati
right than railway's grantee.

Kigbts of company and entryman must
evidence, p. 228.

Approved in Southern Pac. R. R. Co. v
923, holding railroad must select definite
map thereof with the government; Orej
Fisher, 26 Utah, 186, 72 Pac. 933, holdin
of way does not include land then subject
entry.

178 U. S. 229-239, 44 L. 1048, McDONNEI
Removal application must be filed at

tried, p. 238.

Approved in Chauncey v. Dyke Bros, ]

act 1895 gives mortgagee preference ove

/^

1131

Notes OQ U. S. Reports,

178 U,S. 23^^244

I

here former's advance used on iDiprovemenls ou proper ry;
fcicDonnell v, Jordan, 108 Fed. 989, dismissing api>eal when Siiprpuie
pourt remanded canse to State court; Empire Min. Co. v. Propeller,
etc.. Co., 108 Fed. 904, ]iolding act 1SS7-8S was intended to restrict
right of removal from State court

ITS U. S. 23&-244, 44 L, 1D52. WESTERN UNION TEL. CO. v.
AJsN ARBOR R. R, CO.

I Act Congress 1SG6 gave telegraph companies no right to enter

l^rlvate property without owner's consent, p. 243.

Approved in Western Union Telegraph Co. v, Pennsylvania Ry.

pc, 123 Fed. 3S, liolding act ISGD* allowing teiegrapli companies to

occupy post roads, gave no power to occupy private property by

eminent domain, affirming 120 Fed. 374.

I Distinguished In St. Paul, M, & M. Ry. Co. v. Westerti Union
Tel, Co,, lis Fed. 518, holding equity will not compel telegraph
company occupying railroad right of way with consent to remove
therefrom at expiration of lease.

Record must show Federal question involved by statement as
In good pleading, p. 244.

Approved in Baiikers\ etc., Co. v. Minn., etc., Ry.. 192 U. S. 384,
24 Sup, Ct. 329, holding suit against railroad based on general law,
to recover for loss of registered mail iKicicage, cognizable In Circuit
Court of Appeals; Spencer v. Duplaii JSilk Co., 191 U. S. 53U, 24 Sup.
Ct 170, holding suit removed to Circuit Court on diverse citizen-
Bhip for conversion of bankrupt's property, within jurisdiction
thereof; Defiance Water Co. v. Defiance, 191 U. S. 191, 24 Sup. Ct
6G, holding claim that ordinance deaylng rental contract but allow-
ing rentals Impaired obligation of contract raised no Federal ques-
tioD; Lampasas v. Bell, ISO U. S, 282. 45 L. 530, 21 Sup. Ct. 370,
holding city cannot raise Federal question by claim that incorpora-

itlon of new Inhabitants was without due process where latter muue

'no objection; Oableraan v. Peoria, etc., R. R. Co., 179 U. S. 3^S9,
45 L. 223, 21 Sup. Ct. 173, lioldiug Federal appointment of receiver
does not of itsell? enable him to remove suits to Federal court;

^Joy V. St. Louis. 122 Fed. 528, holding suit to recover land within
Spanish grant protected by Louisiana purchase treaty, not remov-
abJe where sole controversy Is whether land is within such gravjt;
South Carolina v. Virginia-Carolina, etc.. Co., 117 Fed. 728, hoUUug
action by State against foreign corporation for penalty under Stiite
statute not removable w^here statute passed under police powur;
Owensboro t. Owensboro Water- Works Co., 115 Fed. 321. holding
Supreme Court has exclusive jurisdiction of appeal of case based
iolely on ground, clearly disclosed, that State law contravenes
Federal Constitution.

' Dlstlnguifibed in American Sugar Refilling Co. v. New Orleans,
181 U. S. 281» 45 L, S02, 21 Sup. Ct, (>48, holding Circuit Court of

178 U. S. 245-251 Notes on U. S. Reports. 1132

Appeals does not lose Jurisdiction of appeal based on dlyerae dtizeo-
sliip because of question enabling direct appeal to Supreme Court

178 U. S. 245-251, 44 L. 1055, CHICAGO, ROCK ISLAND, ETC.,
RY. CO. V. MARTIN.

Where suit arises under Federal law, defendant or defendants
may remove, p. 247.

Distinguished In Pendleton y. Lutz, 78 Miss. 383, 29 So. K
holding where State court acquired Jurisdiction before insolTenc.^^
and appointment of Federal receiver, State action not ancttlai — -^^
nor removable.

Under act March 3, 1887, all defendants must join in remove -^%\
application, p. 248.

Approved in Gableman y. Peoria, etc., R. R. Co., 179 U. 8. 33^SS37,
45 L. 222, 21 Sup. Ct 172, holding for removal of cauae inyolvi^^^og
Constitution of United States, all defendants must Join; Miller - f.

Le Mars Nat. Bank, 116 Fed. 552, 553, holding suit against natioci^K' .ntl
hsLuk and receiver to establish preferred claim not removable 5j

receiver alone; German Sav., etc., Soc. v. Dormitaser, 116 Fed. 4'r^^ij^
holding insufficient petition for removal signed by one of aeve -^ any
defendants; Scott v. Choctaw O., etc., R. R. Co., 112 Fed. t-^^m82,
holding Federal corporation sued Jointly with State corporat— _zz/on
cannot remove without both Joining in petition; Yamell t. Felti^^Boji.

104 Fed. 162, 163, 102 Fed. 370, 371, holding under Acta 1887 asi

receiver and railroad jointly sued must both Join in r^ma^^t^
petition.

Suit against railroad and receiver for concurrent negligence not
a separable controversy, p. 248.

Approved in Chesapealse & O. R. R. Co. v. Dixon, 179 U. 8. 3#o.
45 L. 125, 21 Sup. Ct 71, holding action against railroad and en-
gineer and fireman for concurrent negligence is nonseparable ooo-
troversy; Dougherty v. Yazoo, etc., M. V. R. R. Co., 122 Fed. 207,
liolcling action against railroad company and palace-car comfMHU-
alleging Joint operation and negligence of servants is Joint; Smed-
ley V. Smedley, 110 Fed. 258, holding nonseparable, suit against 8^
plaintiff's parol grantor, E., subsequent grantee of S., and H.. grantee
of E., to enforce gift and cancel deeds; Charinan t. Lake Erie ft ^•
R. R. Co., 105 Fed. 454, holding Joint action under Indiana sUtnte.
against railroad and foreman of switchyard, for latter*s negligence
not separable; Marrs v. Felton, 102 Fed. 780, holding Federil re-
ceiver joined with defendant without diversity of citizenship c»n-
not remove cause.

Distinguished in Boatner v. American Exp. Co., 122 Fed. TlS.
holding fraudulent joinder of resident agents of foreign exprei*
company in suit on contract for loss of package where liability ^
former not shown.

1133

Nates on IT. S, Reports.

178U,S. 251-280

; ITS U. S. 251-261, 44 L, 1057, RIDER v. UNITED STATES.

]n error to Circuit Court to review conviction for noucompliance
with Federal orders, p, 252.

Approved in Motes v. United States, 178 U. S, 460, 44 L. 1153, 20
Sup. Ct» 990, holding under act 185)1 criminal case may be taken
from Circuit Court to Supreme Court when arising under Federal
statutes.

ITS L\ S. 2a2-2aa 44 L. 1001, NORTH AMERICAN TRANSPORTA-
TION, ETC., CO. V. MORRISON.

Claim which plaintiff cannot be legnlly permitted to sustain can-
not furnish jurisdictional amount, p. 207.
I Approved in Battle v. Atkinson, 115 Fed, 385, 380, holding under
Arkansas statute governing unlawful detainer suites amount la con-
troversy Is rental value.

Damages Incident to breach of contract for transportation to
Dawson City cannot be foretold, p. 207.

Approved in Globe Refining Co. v. Landa Cotton Oil Co.. 190 U.
S. 541, 23 Sup, Ct. 754, 47 L. 11T2, holding mere notice to seller
that buyer would have to send tanks a long distance docs not
enhance damajjes for breach of oil contract; Wiley v. Sinkler, 17Q
U. S. 65, 45 L. 88, 21 8up. Ct 20. holding court cot justified In
ruling that damages for deprivation of right to vote laid at ^2,500
is less than $2.0iiu; Beatty Lumber Co. v. Western Union Tel. Co.,
52 W. Va, 417, 44 S. E. 312, holding damap^s for failure to deliver
message not Increased by value of possible contract lost by non-
delivery; dissenting opinion in Giles v. Harris, 189 U, S. 4ti2, 23 Sup,
Ct 648, 47 L. 914. majority holding equity wi!l not compel county
board of registrars to enroll negro on voting lists.

Distinguished in Johnson v. San Juan, etc., Co., 31 Wash. 243,
71 Pac. 780, holding damages of fisherman for delayed transporta-
tion to fishing grounds not incapable of proof; Kyle v. Railroad, 4t>
W. Va. 300, 38 S. 'E. 490. holding partially matured crop of grass
bay furnishes safe basis for estimating damages for loss by fire.

, ITS U. S. 270-280, 44 L. 1065. PITTSBURGH, ETC. IRON CO. T.
CLEVELAND IRON MIN. CO.
Suit involving con file ting claims under F'ederal patent not re-
viewable where decision based on plaintiff's laches, p. 270.

Approved In Wright Seminary v. Tacoma, 187 U. S. 039, 23 Sup.
Ct. 847, 47 L. o:.5. reaftirming rule; Speed v, McCarthy, 181 U. S.
275, 45 L. 858, 21 Sup. Ct 01 1^. holding question of estoppel to assert
miuljig claim presents no Federal question; Morao v. Horsky, 178
\ U. S. 214. 44 L. 1041. 20 Sup. Ct. 800, holding decision based on
laches iu asserting title to mining claim rested on nonfederal
j ground.

f 178 U. S. 280-280. Not cited.

178 U. S. 289-320 Notes on U. S. Reportn. liafc

178 U. S. 289-304, 44 L. 1072, SULLY y. AMERICAN NATIONAl
BANK.

Invalidity of State statute raised in State Supreme Ck>urt and
decided adversely is not too late, p. 298.

Approved in RothschUd v. Knight, 184 U. S. 339. 46 L. 579.
Sup. Ct 393, holding Federal question raised on writ of error
State court is sufficient claim.

Tenn. agt 1877 does not discriminate in favor of Tenne
mortgagee against nonresident mortgagee, p. 302.

Approved in MacMurray v. Sldwell, 155 Ind. 566, 58 N. B. 72
holding local stockholders of foreign building association have n^i»>
preference over foreign stockholders on insolvency as to
within State.

178 U. S. 304-316, 44 L. 1078, FITZPATRICK v. UNITED STATES

Where statute Inflicts death penalty the crime is neverthele
capital, though Jury remit punishment, pp. 306» 907.

Approved in Good Shot v. United States, 179 U. S. 88, 45 L. lOr^
21 Sup. Ct 33, holding certified question touching Jurisdiction
Circuit Court of Appeals may be answered after withdrawal whei
answer is against Jurisdiction; Good Shot t. United States, IH^ Mi
Fed. 258, holding murder of one Indian by another being punisbabi^v ^IHe
with death by Rev. Stat, S 5339, is capital crime, though jui
remit to life imprisonment

Any fact bearing upon guilt of defendant is admissible, wh<>— j
there is evidence of Joint act on part of several defendants, p. 3^^

Approved In Musser v. State, 157 Ind. 433, 61 N. E. 4, holdli
where evidence shows three parties were present at crime, fac=?
tending to connect any of them with crime is admissible.

178 U. S. 317-320, 44 L. 1084. EX PARTE THE UNION STEA^
BOAT CO.

Inferior court may decide any question left dpen by manda 'K
p. 319.

Approved in Southern Building, etc, Assn. v. Carey, 117 F^
327, holding where decree of Circuit Court on mandate from Co«^^^
of Appeals awards costs according thereto, review is by appci^ ^ •
The New York, 108 Fed. 104, 105, 106. holding rejected draft ^'
decree for District Court, pursuant to mandate, cannot be brou^**'
into record on appeal to Circuit Court of Appeals; People v. O^^^
penter, 29 Colo. 371. 68 Pac. 223. holding mandamus will not lie ^
compel District Court to withdraw order contrary to mand^^^
where appeal available.

Inferior court is bound by decree (mandate) as law of the cs'^
p. 319.

Approved in Murphy v. Utter, 1S6 U. S. 99. 46 L. 1074, 22 SflA
Ct. 777, holding where case argued upon demurrer accompanied ^J

^*otes on U. S* Reporta.

178 U. S. 321-344

kteiiable i>lea of res fidjudicata, defendant nbould Introduce no

w defense wltboiit leave.

Supreme Court will tiot order division of damages where que&-

in not raised below, p. 320,

Approved in The New York. 104 Fed, 56a holding Circuit Court

Appeals has jurisdietlou of appeal from decree alleged to be
Dconformable to mandate of Supreme Court on point left open
Breby.
3 V. S. 321-326, 44 L. 1085, WHEELER v. NEW YOHK, NEW

HAVEN, ETa, R, R. CO.
Defendants not shown to be taxpayers cannot question con-
tnnatkm of land under special statute, p. 327.
Approved in New Yorli, etc.. R. R, Co. v. McKeon, 189 U. S. 509»

tJup, Ct. 853. 47 L. 922, aftirming McKeon v. New York, etc., R.

Co.. 75 Conn. 345, 53 AtL 656, holding wbere railroad coro-
Lnded by State to elevate tracks, persons whose property might

laken cannot complain; Providence, etc., i3S. Go, v. Fall Itiver,
I Mass. 542. 07 N. E. (MS, upliolding Stat. liMM), p. 471, providing

B for .aboil tiou of grade crossings to be flled by mayor of city
1 railmad engineer.

% V, S. 327-344. 44 L. 1088. MUTUAL LIFE INS. CO. T.
PHINNEY.

^'here proceedings for review are taken within three months, no
^silon of time arises, p. 336.

approved in Lochiiaum v. Oregon Ry. & Nav. Co.. 104 Fed. 853*
lying njotion to dismiss writ of error because not su«d out within

mouths after entry of judgment.
To mere technical omiBiiou not prejudicing appellee will oust
► ellrtte Jurisdiction, p. 337.

k-pproved In Moore v. Moore, 121 Fed. 738, holding where a&sign-
tn of errors in record purports to have been died at same time

petition for appeal it is presumed to be so unless disproved;
t>ud V. MeDaniel, lUG Fed. 4J)4. holding failure to take appeal
iiln statutory ten days not fatal where no motion to dismisa.
olicy made in one State and payable in another Is governed by
« of latter, p. 338.

^ pproved In Mllhird v. Bray ton, 177 Maes. 537, 59 N. B. 436,
Jiug policy issued In .\ew York to be delivered In Massachusetts
tiayinent of prumiumH lliere governed by Massachusetts law,
'iiriles to insurance contract may treat same as inoperative for
E4uU. though not forfeitable therefor, p. 341.
^ pproved In Mutual Life Ins. Co. v. Sears. 178 U. 8. 340, 44 L.
2", 20 Sup. CL l>13, hnltiiug termination of Insurance contract by
tual iigreenieut for default in payment concludes Insured, at*
UgU statutoi-j^ notice not given; Hi!l v. Mutual Life Ins. Co., 113
L 47, holding where Supreme Court reverses Cireuit Court and

178U.S.34&-d53 Notes on U. S. Reports. U36

Circuit Court of Appeals, latter court's decision on all points except
ground of reversal is law of case; Sea Ins. Co. y. Johnston, 105 Fed.
287, holding provision in insurance policy for cancellation on thirty
days' notice does not prevent agreement to rescind without such
notice.

Distinguished in Mutual Life Ins. Co. v. Cohen, 179 U. 8. 2^.
265, 45 L. 184, 21 Sup. Ct. 106. 107, holding unless so provided. tn>
Burance business of New Yorlc companies transacted in other
States not governed by New York statute prohibiting forfeitur«=^
without notice.

178 U. S. 345-347, 44 L. 1096, MUTUAL LIFE INS. CO. v. SEAR^3.

Adjudged in conformity with Mutual Life Ins. Co. v. Phlnne-^^.
supra, p. 346.

Approved in Mutual Life Ins. Co. v. Allen, 178 U. 8. 351, 44 I L.

1099, 20 Sup. Ct 913, holding agreement to terminate policy of II ^^(e
insurance for default of premium ends the contract; Hill v. Mun^Ei=3il
Life Ins. Co., 113 Fed. 47, holding Circuit Court of Appeals Audi ^dng
except on point of reversal by Supreme Court is law of case; W^^ est
V. Terrell, 96 Tex. 557, 74 S. W. 906. holding lease subject un^^::^»der
Rev. Stat 1895, to cancellation by commissioner for nonpayme^^ eot
of rent may be canceled informally by agreement of parties.

Distinguished in Mutual Life Ins. Co. v. Cohen. 179 U. S. "^ ^ 'tfl.
45 L. 183. 21 Sup. Ct 107, holding unless so provided. New Y^ orfc
statute prohibiting forfeiture of policy without notice doea not

govern policies executed by New York companies in other State^^K.

178 U. S. 347-350, 44 L. 1097, MUTUAL LIFE INS. CO. v. HI~rX£^

Abandonment of life policy by insured after default in premivM juj^
together with beneficiaries* refusal to keep up policy, ends conti— ^ajoc
p. 350.

Approved in Mutual Life Ins. Co. v. Cohen. 179 U. S. 261. 4S £.
184. 21 Sup. Ct 107. holding unless so provided. New York sta tute
preventing forfeiture without notice does not apply to pol/c/et
executed by New York company beyond State; Mutual Life la*.
Co. V. Hill. 118 Fed. 710, holding decision of Circuit Court of Ap.
peals, except to point for which Supreme Court reversed wme,
remains law of case, atlirming Hill v. Mutual Life Ins. Ca, 113
Fed. 44.
178 U. S. 351-353, 44 L. 1098. MUTUAL LIFE INS. CO. V. ALLEN.

Adjudged in conformity with Mutual Life Insurance Co. v. Seirs,
supra, p. 351.

ApproviMi in Mutual Life Ins. Co. v. Cohen, 1T9 U. S. 264. 45 L
184, 21 Sup. Ct 107. holding unless so provided. New York statute
preventing forfeiture without notice inapplicable in policies execut^l
by Now York company beyond State; Hill v. Mutual Life ln»- ^^•
113 I\h1. 47. holding finding of Circuit Court of Appeals, ncept ts
to point of reversal by Supreme Court, remains the law of the ctse

Notes on U. S. Reports,

178 U. S. 35^-401

178 U. S. 353-373, 44 L. 1099. CHICAGO, M., ETC., RY. CO. v.
CLARK.

Receipt acknowledging sum received In full of amount due on
estimates binds parties, p. 372.

Approved In Greenlee v, Moenat, 116 Iowa, 538, 90 N* W. 339,
holding where debt for legal services was In dispute, acceptance
of ctoeck by client coveiirrg amounts collected binds blm.

Distinguished in Twoliy M. Co. v. McDonald, lOS Wis. 23, 83 N.
W. 1108, holding where writing purports to be only receipt, not
contract, it may be shown by parol to have been given for
accommodation.

178 U. S. 3S^-401, 44 L. IHC, NEW YORK LIFE INS. CO* v.
CRAVENS.
Supreme Court is bound by MisBourl declBloQ that State law is
t law of policy, p. 39^,

Approved in M'Clain v. Provident Sav. Life Assur. Soc.« 110 Fed.
I 93, holding Peon, statute 1885, tliat mistiike in good faith made
Iq answers warranted as true will not avoid insurance policy,
binds Federal courts; Pietrl v. Seguenot, 96 Mo, App, 205, 09 S. W.
1057, holding policy delivered in Missouri governed by Missouri
taws. tUough providing for consli-uction by New York law; Nichols
V, Mutual Life Ins. Co., 171) Mo. 374, 371*, 75 S, W. COO, 0*59, hold-
lug option in policy as to what character of insurance insured will
accept does not remove same from operation of Rev, Stat., | 5S5U.
Power of Stute over foreign corporations admitted therein same
as over domestic, pp. 39, 401.

Approved in Cable v. United States Life Ins, Co., 191 TJ, S, 307,
24 Sup. Ct 78, holding Federal court of ei|uity will not cancel In-
surance policy for fraud for want of adequate legal remedy in local
Jurisdiction, where eompauy could remove cause; I'^idellty Mut. Life
Assn, v» MetUer, 185 U. S. 327. 40 L. 9:j3. 22 Sup. Ct. 009. upholding
^ Tex. Rev. Stat» art. 3071, rendering fire and life insurance com-
' paniea liable for 12 per cent, damages, and attorney's fees for
delay In paying loss; Joim Hancock Mut. L, Ins. Co. v. Warren,
181 V. S. 76, 45 L. 758, 21 Sup. Ct. 530, upholding Ohio Rev. Stat,,
I 3625, providing that answers of at)t>ncant for insurance shall not
bar recovery (inle.sa willfully false iitul acted on by company; Lon-
don, Paris, etc.. Bnuk v. Aronstein. 117 Fed. 008, holding British
. corporation complying with California law in operating within
^ StfttCt subject to State law governing transfer of stock; Corley v.
Travelers" Protective Assn., 105 Fed. 859, upholding Ky. Stat.
f 679, requiring all policies of companies operating within State to
have appended thereto copies of portions of by-laws or coestltutlon
referred to therein.

YoLIII-72

8. Bepottf- fl^itf*'.

8-*"*^ ot »«^*^** case, i** "llvrge ^

Bvi»»es« ot *^^etce. P-^^^^,„„ va 1^^^,,^ ^oVaV^» ^^^W ^

«?rll oK^i,S' «<*•»?« .. <=»-^ _.. twe

-Si" •"',£? »«'r»» T^- V'.^^'t--

a ^^^^ A 8pe^^ . cr vr^c^® for car«

Notes on U. S. Reporta. 178 U, S. 436-476

ojted States v* Bullard, 103 Fed. 257, holding administrator of
one of several Joint contracting parties cannot be sued jointly with
iurvivors under Alabama statute.

Distinguished in Dillard's Admn v. Central Virginia Iron Co.,
125 Fed. 159, holding revival of equity suit cannot he had on mo-
tion therefor but hy flling hill of revivor under equity rule 56.

178 U. S, 436-449, 44 L. 1140. SMITH v. REEVES.

Suit againet State treasurer for return of money under Illegal
issessment Is suit against State, p, 440.

1 Approved in Standard Fire Proofing Co, v. Toole, 122 Fed. 652,
holding State commission letting contract for State building can-
not be held for infringement of patent in building in use of fire-
proof partition; Flagg v. Bradford. 181 Mass. 316, 63 N. E. SOD,
holding suit against treasurer and receiver- general on claim for

r mages under statute 1895 Is suit against State,
Suit cannot be brought in Federal court against State by corpora-
Itlon created by Congress, p. 449.

Approved in dissenting opinion in South Dakota v. North Caro-
jhua, 192 U. S. 334, 335. 337, 339, 342, 24 Sup^ Ct 282. 283. 284, 286,
.majority holding original jurisdiction of Supreme Court extends to
•foreclosure siiit brought by South Dakota as donee of bonds issued
by North Carolina and secured by railroad mortgage.

78 U. S. 449-450, 44 L. 1146, BARLB v. PENNSYLVANIA.

State court has no authority to order execution of money on
jdeposit for receiver, p. 455.

Approved In Langtry v. Wallace. 182 U. S. 549. 45 L. 1225, 21
pup. Ct. 8S3, holding stockholder sued by national bank receiver on
'individual liability cannot set up false representations inducing his
{purchnse of stocli; Earle v. Conway. 178 U. S. 456, 457. 44 L, 1145,
ai4(i, 241 Sup. Ct 018, holding attachment Issued by State court upon
tiatlonal t>ank cannot operate as lien upon specific assets In re-
jeeiver'B liands.

|l78 U. 8. 456^58, 44 L. 1149, EARLE v. CONWAT.

.^.ttachraent on hank and receiver cannot operate as lien on
»peeific assets, p. 457.

Distinguished in Corbitt v. Farmers' Bank, 114 Fed. 004. holding
moneys paid Into Federal court pending litigation not subject to
attach men L

178 U. S. 458=476, 44 L, 1150. MOTES v. UNITED STATES.

Sections 5508, 5509, Rev. Stat. U. S., are constitutional, p. 462.
I Approved in United States v. Morris. 125 Fed. 322, upholding Rev.
fetat, U. S.. 5 55ns. prohibiting conspiracy to deprive persons of
Constitutional rights

178 U. S. 47^-496 Notes on U. S. Reports. 1140

Grime against State laws is but aggravation of crime against
government, under Rev. Stat, §§ 5508, 5509, p. 460.

Approved in Fitzpatricli v. United States, 178 U. S. 307, 44 L.
1080, 20 Sup. Ct. 945, liolding conviction for murder punishable witli
death is capital crime, although Jury may void the death penalty ^,
Davis V. United States, 107 Fed. 755, holding sections 5508, 550^^^
Rev. Stat., contemplate single crime against United States " felony. '•" ^
being but aggravation of conspiracy.

Statement of codefendant is immaterial where defendant coc
fessed himself guilty, p. 475.

Approved in Morgan v. BarnhiU, 118 Fed. 29, holding rlrfrniltiw ^^

not entitled to new trial to present self-defense after negativing tlr i^ ,^
fact under oath.

Admission of deposition taken at trial where witness* absea ^zre

due to prosecution's neglect is unconstitutional, p. 474.

Approved in State v. Wing, 66 Ohio St 425, 64 N. B. 517. ho ^«^.
ing inadmissible evidence given by witness, still living, at previc::^ «js
trial where absence not shown to result from defendac^ t'h
procurement

178 U. S. 476-496, 44 *L. 1157, HAWLEY v. DILLER.

Purchasers from entry man before issue of patent are not b^^DH
fide purchasers, p. 485.

Distinguished in United States v. Clark, 125 Fed. 775, bolAIa;?
purchaser from vendee of entryman who had obtained final cer^lO-
cate and to whom patent subsequently issued is bona fide par-
chaser; United States v. Detroit Timber & Lumber Co., 124 W^ed
402, holding person charging fraud in suit to cancel land patesti
must prove by clear and satisfactory evidence.

Land department has Jurisdiction until patent issued to invesri-
gate original entry, p. 488.

Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co., H-
Fed. 12, 13, affirming Cosmos Exploration Co. v. Gray Eagle Oil Co..
104 Fed. 42, 44, holding equity will not grant relief to entrymin
on lieu lands under forest reserve act on afl3davit false as to agri-
cultural character of land and in other respects; Olive Land, etc
Co. V. Olmstead, 103 Fed. 574, holding equitable title of entrymM
defeated only by finding by land department that entryman wm
disqualitied or that land at time of entry was not subject to entry.

Entryman has right to notice of and to appear In proceedings la
land dopartmeut, p. 489.

Approved In Thayer v. Spratt, 189 U. S. 351. 352. 23 Sup. Ct.
578, 47 L. 848, holding cancellation of entry not binding on entry-
man who had no notice nor chance to be heard; California Red^^^
Co. V. Johnson, 179 U. S. GS2, 45 L. 384. 21 Sup. Ct 919, affirmlaJ

1141

Notes on U. S» Reports.

178 U, S. 49(V-524

decree and remnnding to Circuit Court for northern district of
California; Small v. Lutz, 41 Or. 575, m Pac, 825, holding deter-
tninatlon hy Becrptiiry of interior that lands were subject to entry
binds prior transferee of State under list as 9wauji> lauds*

DiBttngulshed in Cltirk v. Herington, 18(3 U. S. 210, 40 L. 1131,
J2 Sup, Ct* 874, holding innocent purchasers for value of lands
tinlawfuUy selected hy railway conipauy not protected hy act March
l^ 1886, where railway received no psitent*

Pre-emptioner has redress lu courts when department withholds
als rights, p. 490,

Approved In McCord v. HilK 111 Wis, 51S. 84 N. W. 33, holding
wliere land department issues patent to wrong person patentee
:ioI(ls In trust for per sou entitled.

Land department may cancel fraudulent entries and control land
intll patent issues, p. 4L*0.

Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co*. 190
V. S* 309, 2:i Sup. Ct, 6lJi;. 47 L. 1071, holding land department has
full Jurisdiction over riglit of parties to patent of land and over
Jecisiona of local land offleera.

178 U, S, 4UG^510, 44 L. 1105, MAY v. NEW ORLEANS.

Original packages of imported ^oods which are nonassessable
locally consist of cases in which goods shipped, and not smaller
trackages therein contained* p. 5u8*

Approved in Ameriran Steel, etc., Co. v. Speed, 192 U. S. 519, 24
Blip. Ct. 370, holding State may impose merchant's tax on nou-
resident manufarturer establishing dlstrihutkig warehouse; Austin
r. Tennessee, 17y U. )S. 354. 45 L. 230, 21 Sup. Ct. I'M, holding un-
Iddressed cigarette ptickages containing ten cigarettes and taken
from factory loose in basket not original packages; Sauls bury v,
^tnte. 43 Tex. Cr, OG, 03 S. W. 570, 90 Am. St. Itep. . holding
felilpping buggy to reshlent agent who put them together and sold
them not interstate coinmerce hence subject to license,

178 U. S. 510-524, 44 U 1170, DEWEY v, UNITED STATES.

Court's province is to declare what the law regardless of qiiea-
tluna of policy, p. 521*

Approved In In re Wolf, 122 Fed. Vil^, holding where creditor
was paid In full within four months of debtor's bankruptcy with-
out knowlcilge of baukruiitcy and later made another assignment,
first payment no prefercnee; Southern Ky. v. Machinists', etc.,
Inlon. Ill Fed. 57» holding where language of statute is unain-
biguoim and applicalile to al! persons courts will not limit its
applh-atii^n for reasons of policy.

Distlngulstied in White v. United States. 191 U. S. 552. 24 Sup,
Ct. 172, holding credit of service for future pay only and not for
readjustment of iiast pay ia(» ih1c<1 by act March 3, 1800, fi 13.

178 U. S. 524-539 Notes on U. S. ReporU.

178 U. S. 524-539, 44 L. 1175, BARDES v. HAWARDEN BANK.

Federal court Jurisdiction for benefit of assignee under act 1867
was concurrent with State courts, pp. 532, 533.

Approved in Lyon v. Clark, 124 Mich. 105, 83 N. W. 094, holding
trustee in banlvruptcy under act 1898 may sue in State court to set.
aside alleged fraudulent conveyance; Truda v. Osgood, 71 N. H. 185.
51 Atl. 633, holding State courts have concurrent Jurisdiction of
action of trover for goods of plaintifT sold by trustee in bankruptcy
as belonging to bankrupt; Furth v. Stahl, 205 Pa. St. 441, 55 AtL 2£
holding State court has Jurisdiction to distribute fund in own hand
from foreclosure of bankrupt's property; Texas Brewing Co.
Mallette, 28 Tex. Civ. 466, 67 S. W. 443, holding State court
Jurisdiction of suit to foreclose mortgage against bankrupt whe
validity of mortgage is conceded.

Any opinion cannot be relied on as authority onleBS tbe
called for its expression, p. 534.

Approved in In re Tune, 115 Fed. 914, holding Bankruptcy Cox:
may proceed summarily to decide adverse claim to bankrup^^
property and if claim unfounded order transfer, otherwise leave to

plenary suit; The Manitoba, 104 Fed. 152, holding negligeczis^ <<e
whereby port was left open when ship sailed was failure '^^^ in
proper stowage" within Harter act

Proceedings in bankruptcy generally are in nature of iiinrr m J
ings in equity, p. 535.

Approved in In re Rochford, 124 Fed. 185, 187, holding adnzm M n.
istration and distribution of banlu'upt's property is proceeding' ^^
equity; In re Herzikopf, 121 Fed. 545, holding, under bankrui»^<^y
act, S 18, bankrupt only and not intervening creditors entitled ^o
Jury trial of question of involuntary bankrupt's insolvency; Iim *ne
De Gottardi, 114 Fed. 341, holding hearing before referee In bm^MMMt-
ruptcy is in nature of hearing in equity and governed by rule^ <''
equity procedure.

Bankrupcy act, $ 2, nowhere mentions plenary suits in eqi&Ity.
p. 535.

Approved in In re Kellogg, 121 Fed. 336, holding, under b».«»**
ruptcy act, S 2, subd. 7, Bankruptcy Court has JurisdictioiB. ^
determine by summary proceedings before referee validity of n»ort-
gage In property In trustee's possession; Real Estate Trust Co* ^•
Thompson, 112 Fed. 946, holding District Court has no JurisdicrtJ^""
of plenary suit in equity to order transfer of property sold or ^
tablish claim of complainants as creditors.

National courts are not given Jurisdiction because rights of bM^'
rupt and creditor vest in trustee, p. 536.

Approved in Spencer v. Duplan Silk Co., 191 U. S. 531. 24 Svp.
Ct. 176, holding mere fact that plaintiff was trustee In bankrop^Cf
gives no Federal jurisdiction; Hutchinson v. Otis, Wilcox, etc., C*K
123 Fed. 16, dismissing petition to appeal to Supreme Court to

1143

Baxdes v, Hawarden Bank. 178 U, S. 524-539

revise proceedings of District Court In bankruptcy; In re Nugent,
105 Fed. 585, 586, holding ont? obtaining property as agent of bank-
rupt before filing of petition not subject to suit without consent
In Dlfltriet Court under bankrupt act 1898.

Distinguished In In re Kellogg, 113 Fed. 124, holding Bankruptcy
Court tiaving custody of property, title being in trustee* may de-
termine validity and amount of mortgage lien.

By section 70. bankruptcy act 1808. trustees vested with bank-
rupt's title by operation of law, p. 536.

Approved in In re Bresiauer, 121 Fed. &13, holding filing of
petition gives notice to all parties and on quallflcatloa trustee takes
bankrupt's title; United States v. Union Surety^ etc.. Co.. 118 Fed,
486, 487, holding District Court has Jurisdiction of action by trustee
in Dame of United States on bond of former trustee for value of
property unaccounted for.

Congress by omitting provisions as to concurrent Jurisdiction
from act 1808 meant to discontinue same, p, 537.

Approved In Wilson Bros. v. Nelson, 183 U. S. 194, 46 L. 149. 2l'
Sup. Ct 75, holding failure to file voluntary petition within five
days before sate of property under long existent irrevocable power
of attorney constituted act of bankruptcy within act 1898; Pirie v.
Chicago 'ntle & Trust Co,, 182 U, S. 448, 45 L, 1177, 21 Sup. Ct
910, holding omission in act of 1898 of provision preventing proof
of debt of one receiving preference knowing or with reasonable
ground of knowledge of violation of act 1869 signified Intention of
discontinuing same.

Bankruptcy act 189S, § 23, cl. 2, concerns Jurisdiction only, not
merits of case, p. 537.

Approved in In re Baird, 116 Fed. 765, holding District Court
should dismiss trustee's petition for summary order to compel de-
fendant to deliver property where iatter's claim thereto is real.

District Courts can only, with defendanrs consent, entertain
trnstee*8 suits to vacate transfers before bankruptcy, p. 538.

Approved in Jaqulth \\ Eowley, 188 U. S. 023, 624, 626, 23 Sup.
Ct. 371, 372. 47 L. 622. 623, holding Bankruptcy Court without
jurisdiction to enjoin plaintiffs from collecting judgments against
bankrupt Id State court from surety on bail bonds; Pickens v. Roy.
1S7 U. S. 180, 23 Sup. Ct. 79, 47 L. 120, holding Bankruptcy Court
without jurisdiction of suit to enjoin prosecution of suit pending
in State court by Judgment creditor to set aside deed and to sell
property; Louisville Trust Co, v. Comingor. 184 U. S. 24, 46 L.
416, 22 Sup. Ct. 296, holding assignee does not assent to court's
jurisdiction to compel payment of sums retained as commissions
by pleading claims and objecting to Jurisdiction before final order;
Mueller v. Nugent, 184 U. S. 15, 17, 46 L. 412, 22 Sup. Ct. 275. 276.
upholding District Court*s Jurisdiction to compel sun^ender of goods
conveyed before bankruptcy to third person as agent of bankrupt

178 U. S. 524-539 Notes on U. S. Reports. 1144

asserting no adverse claim; Wall v. Cox, 181 U. S. 247, 45 L. 846, 21
Sup. Ct. 644, denying District Ck)art's Jurisdiction where defend-
ant, stranger to proceedings, appeared and denied jurisdiction;
Hicks V. Knost, 178 U. S. 542, 44 L. 1183, 20 Sup. Ct 1007, holding
District Court has Jurisdiction over equity suit by iMUikmptcy
trustee against transferee of bankrupt to recover property of bank-
rupt's estate fraudulently conveyed to defendant, only by consent
.of defendant; Mitchell v. McClure, 178 U. S. MO, 44 L. 1183, 20 Sup.
Ct. 1000, holding District Court has no Jurisdiction of suit in re-
plevin to recover goods alleged to have been fraudulently conveyed
by bankrupt within four months of bankruptcy; In re Teschmacber,
127 Fed. 730, holding where third person claims property claimed to
belong to bankrupt District Court may inquire summarily as to char-
acter of claim and if adverse has no Jurisdiction; Gregory v. Atkin-
son, 127 Fed. 184, holding, under bankruptcy act 1808, District Court
hi^s no Jurisdiction of suit by trustee against nonconsenting defend-
ant to set aside transfer claimed to be preference; Pond v. New York
National Exch. Bank, 124 Fed. 003, holding action by trustee to re-
cover payment of bankrupt as alleged fraudulent preference main-
tainable as suit in equity regardless of remedy at law; In re Chase.
124 Fed. 759, holding assignee under assignment for beneflt of cred -
iters fairly made may recover for disbursements and serrices foe
benefit of estate; Ross-Mecbam Foundry Co. v. Southern Car, etc. *»
Co., 124 Fed. 406, holding District Court will not appoint receive ^c^
for alleged bankrupt's property* on summary application wlthou "^C^
proper notice to parties in possession; In re Williams, 120 Fed. 3P^"» •
holding Bankruptcy Court has no Jurisdiction to enjoin paymei^. "^^
of cljiims to alleged bankrupt where bankruptcy proceedings ar— ^l^
peiiiliu;; in anutber district: Id re Davis, 119 Fed. 953. boldin^ ^z
Bankruptcy Court has jurisdiction by summary proceeding to r ■ --
tjuire bank holding funds in tiduciary capacity to surrender sani-^* - :
In re Michie. IIG Fed. 750. 751. holding District Court witliom^ zt
jurisdiction of suit between trusti*e and transferee of bankru^^B>t
where third person has possession and objects to Juristliction: lu r*-

liosenlnrj:. 110 Fed. 4u3. holding where referee orders dismi.<s ii'

of trustee's petition for want of jurisdiction In District Coui
referees findings fall with dismissal: In re Rusch. 116 Fed.
dismissinjr petition to review proceeding by bankrupt's
tee to enjoin interference with property, such not l>ei' ^'^
*• bar. k nipt* y pro<:«»t^linjr *' within bankruptcy act I'^^S, f 2-^^^— **>'•
Stellini: v. G. W. Jones Lumber Co.. 1I« Fed. 2*>5. holdi ^n«f
suit i>y bankrupt's trustee airainst third per-son to enjoin interferei^cn^-'*'''
with property claimed by both is not "bankruptcy proceed! us " a °'^

dtpcn.K ou ileftii'lant's »onsent: In re Tune, 115 Fed. 912, 913. 9r J-*-
liu'.ilir.L: Bankruj !• y 'v'-^urt may inquire in summary way into :^^^-
vtTse claim t-^ b:inkri:;«t's property and if unfounded may on^^*''
transit r. oilurwisc leave to plenary suit: Scott v. Wilson, lir> F«cr— *^
-N"*. iioldiuj; final decree rendered in favor of third person for ^^**-

1145

Bardes v. Hawardeo Bank.

178 U. S. 524^30

CO very of property in rerelver*s bands is reviewable by direct appeal
as In equity cases: Philips v. Turner, 11-1 Fed. 728, sustaJnlng
District Onirt^s Jurisdiction to onler tliinl pereon to account for
property where record showed latter's consent; In re Wells, 114
Fed. 223, 224* holding District Court will not restrain prosecution
of replevin suit to obtain property in bankrupt's possession begtin
before Bankruptcy Court begun action; M*Lefiu v. Mayo, 113 Fed. 107^
iiolding District Court will not restrain prosecution of suit against
United States marshal for sei/Jug goods under warrant from Bank-
ruptcy Court; In re t^lioemaker, 112 Fed. 050, C51, holding Bank-
ruptcy Court will not interfere to restrain aaJe of property by <jrder
of State court which acquired jmisdictiou over suit liefore bank-
ruptcy; In re San Oabriel, etc., Co.. IH Fed.. 802. holding District
Court has no jurisdiction to grant Injunction to prevent trustee
from proceeding with roreclosure proceedings in State court; In re
Xixou, llu Fed. a37» holding, under bankruptcy act 1898, § 3€,
parties claiming as own goods seized as partnership assets and es-
tabJishing such claim may recover on bond costs, expenses, counsel
fees; In re Green, 108 Fed. <j1G. holdiug referee in bankruptcy with-
«jut power to determine by summary order disposition of money
l>aid hy bankrupt to wife claimed to represent loan made before
*iuirrlage; Sinsheimer v. Simonson, lt>7 Fed. 1KI4, 905, holding ap-
XJea ranee of assignee before referee to contest order to turn over
aasi!?cts is not " consent of defendant ** within bankruptcy act 1898,
^ 23b; Boonville Nat. Bank v. Blakey, 107 F'ed, 8tJ3. holding District
^Juurt has jurisdiction to recover jireferences where defendants
*"aiBe no objection on hcJiriiig on merits; In re Steed. 107 Fed. 085,
Biolillng District Court cannot adjudge title of lot held by wife of
1 laukrupt under coiivcyaiice from husband to he held l>y her as
trustee; Jn re Shelnbaum, 107 Fed. 240, holding title of third f^firty
i n possession of goods and claiming title thereto under bill of sale
Executed before bankntptcy cannot be tried by summary proceed-
»kb; Pickens v. Dent, 106 Fed. 05f*, holding District Court without
tiHsdicnon to enjoin decree of State court In proi^eedings begun
before bjuikruptcy for setting aside conveyance and ordering sale;
u re Seebohl, 105 Fed. 915. holding Bankruptcy Court without
J iirisdictlon to stop proceedings In State cowrt where court liolds
liroperty and has decreed sale before filing of petition; Woodruff v,
^ -^beeves, 105 Fed. 000. 007, holding District Court without Jurlsdic-
^ ion uniler bankruptcy act 1808 to entertain plenary suit in equity
V»y cre^lltors against exempt property because exemption %vaived in
»ir>tes held; In re Tollett. 105 Fed. 427, holding Bankruptcy Court
'^v^ltbout Jtirisdiction to determine cliiim of wife to homestead right
111 pro[»erty of husband; In re Finlriy. 104 Fed. nUl holding where
l*i*oceedB of voidable sale of l>nid;rupt's property by assignee to
\^lte of bankrupt turned over to trustee sale will not be set aside:
Orman v. Laue. Klu Ala. im*. rii) So, 442, holding sumdent plea in
abatement of pendency of suit which niiglit pruceed to linai judg-

178 U. S. 524-539 Notes on U. S. Reports. 1146

ment with consent of parties as against subsequent suit In an-
otlier forum; Mueller v. Bruss, 112 Wis. 410, 88 N. W. 231. holding
State court will entertain suit to set aside conyeyance made within
six months before banlvniptcy under bankruptcy act 1898, g 70.

Distinguished in Bryan v. Bernheimer, 181 U. S. 194, 197, 45 L.
818, 21 Sup. Ct 559, holding property of bankrupt in hand of third
persons is included within bankruptcy act 1898 for appointment ** of
receivers or marshals " to take charge of estate; Burleigh t. Fcre-
man, 125 Fed. 218, holding, under bankruptcy act 1898, Bankruptcy
Courts have power to marshal assets in hands of trustee as betweeu
partnership and individual creditors; In re Knight, 125 Fed. 45,
holding Court of Bankruptcy has Jurisdiction of proceeding bj
trustee to recover property of bankrupt transferred to assignee
within four months of bankruptcy; In re Lucius, 124 Fed. 456, hold-
ing, under bankruptcy act 1898, chap. 541, Bankruptcy Court has
Jurisdiction to determine creditor's claim to equitable lien on
money claimed as exempt by bankrupt; In re Antigo Screen Door
Co., 123 Fed. 253, holding where mortgagee surrenders property
to trustee, reserving lien, court having control thereof may decree
disposition; Havens & Geddes Co. v. Pierek, 120 Fed. 245, hold—
ing District Court without Jurisdiction of plenary suit in equity t«^^
determine right to fund in court where defendant is nonconsei&'C:- —
ing foreign corporation; In re M*Callum, 113 Fed. 394, holdin;
under bankruptcy act 1898, § 2, cl. 7, Bankruptcy Couit
Jurisdiction of suit by creditors to establish claim for goods
signed to bankrupt; In re Kellogg, 113 Fed. 124, 126, holding BaiM. liibK-
ruptcy Court having custody of property, title being in trustee, Ik. ^m^§
Jurisdiction to determine existence and amount of mortgage "<"■ ' -^n:
In re Columbia Real Estate Co., 112 Fed. 647, holding intenrec^ ^ar
not a creditor of bankrupt cannot maintain bill to set aside mdjm^^rmL
cation of bankruptcy; In re Macon Sash, Door, etc., Co., 112 f* ^^^1
334, holding State insolvency laws are suspended by enactment ^if
uniform system of bankruptcy and State court's appointment €9f
receiver subsequently thereto is void; In re M*Cartney, 109 F^«<r.
(>23, holding, under bankruptcy act 1898. S 67f, court may reces-^re
amount due from one indebted to bankrupt although garnisheecS to
State court within four months of bankruptcy; Sinsheimer v. SIok^od-
son. lOG Fed. 871, holding assignee's objection to Jurisdiction iL^:^ter
referee has rule<l him to turn over assets comes too late; Ir^ ^
Steuer, 104 Fed. 977. 978, 979, holding where trustee files petl"^^
in nature of bill in equity to set aside preference wherein defenc*M<
has opportunity to appear and does so without objecting he ^crta-
not object later.

Clause 2. § 23. of bankruptcy act meant to leave controveK"***^
mentloiuHl to State courts, p. 538.

ApproviHl in In re Johnson. 127 Fed. 619, holding Bankro^^CT
Court may grant leave to holder of chattel mortgage to sue ther^**^
in suite court; French v. Smith. 81 Minn. 344, 345. 84 N. W. ^

114T

Notes on U. S. Reports,

178 U. S. 539, 540

upholding subdivision b of section 23, baDkruptcy act 1898, under
whicb State court has Jurisdiction of action to set aside preferential
payment by banlcrupt where latter not party.

Supervisory jurisdiction given Circuit Courts by act 1808 does
not affect case, p, 538.

Distinguished in HutcMnsou v* Otis, WUeox, etc., C(x, 123 Fed.
18, dismissing petition for leave to appeal to Supreme Court to re-
rise action of District Court in bankruptcy.

Section 2 of bankruptcy act 18£*S does not authorize forcible
seizure from adverse claimant, p. 538.

Approved In Foreman v. Burleigh, 109 Fed> 314^ holding bank-
ruptcy act ^ 2oa, does not authorize creditor's appeal to Circuit
Court of Appeals from Circuit Court's allowance of another cred-
itor's claim; In re Bender, lOtJ Fed. 8T5, 87G, holding where property
in bankrupt was surrendered as his property mortgagee cannot
obtain return or property by mere summary motion; In re Ward,
104 Fed- USG, 0S7. holding bankruptcy act 1898 does not confer
Jurisdiction on Cotirt of Bankruptcy to take property claimed to
belong to bankrupt from third person or to enjoin bis sale of same.

Distinguished In In re Young. Ill Fed, 160. dismissing petition
to review order of District Court in 106 Fed. 873.

MIscelhinoous. Cited in In re Porter, lOD Fed. 112, holding Bank-
ruptcy Court will not enjoin prosecution of foreclosure suit in
State court against bankrupt; Smith v, Belford, lOG Fed, €G0» hold-
ing erroneous leaving of question of commitment for contempt to
referee, bankruptcy act 1S98, § 1, cl. 16, investing court with sole
power thereover.

178 U. S. 53a 540, 44 U 1182, MITCHELL v. McCLURE.

Adjudged In conformity with Bardes v. First National Bank,
eupra, p. 540.

Approved in Wall v. Cox, 181 B. S. S47, 45 L. 84G, 21 Sup. Ct.
C44, holding District Court without Jurisdiction of suit in equity
l)y trustee in bankruptcy to set aside conversance of bankrupt to
Third person w^ho claims title; Bryan v. Beruheimer, 181 U. S. 1^,
-^5 L. SIS, 21 Sup. CL 550, holding exception iu subdivision 7, bank-
^•uptcy act 181*8. i 2, refers to section 23 by which District Court can,
^'ith derendant's consent, entertain suits to recover property for
Third persons; In re Tune, 115 Fed. 912, holding Bankruptcy Court
ijiay inquire summarily Into adverse claim to bankrupt's property
x^iid if unfounded order transfer, otherwise leave to plenary suit;
In re Wells, 114 Fed. 223, holding Bankruptcy Court acquires no
Jurisdiction over property of bankrupt taken on writ of replevin
Issued by State court; In re Shoemaker, 112 Fed. 650, G51, dis-
Bolving restraining order on State court preventing sale of bank-
rupt's property under execution prior to bankruptcy; In re Seebold,
105 Fed. D15, holding Bankruptcy Court cannot entertain suit to

17SU.S.W1-548 Notes on U. S. Reports.

recoTer int>pert7 beld by executive officer of State court of compe-
tent jurisdiction.

178 U. S. 54i, 542. 44 L. U83, HICKS v. KNOST.

District Court has Jurisdiction of bill in equity by bankruptcy
trustee to recover property from transferee fraudulently conveyed
by bankrupt only by consent of defendant, p. 542.

Appro*'ed in Wall v. Cox. 181 U. S. 247. 45 L. 846. 21 Sup. Ct. W4.
holding, under act 1898, District Court without jurisdiction of
trustee*s suit in eiiuity a^inst nonconsenting purchaser from bank-
rupt to set aside cuuveyance; Bryan v. Bcmheimer, 181 U. 8. IW, 15
L. 8ia 21 Sup. Cl Cri9. holding exception in subdivision 7, section 2,
bankruptcy act ISOS. refers to section 23, giving District Courts,
with defendant's consent, jurisdiction of suits to recover property
from third pers^ius; In re Tune. 115 Fed. 912, holding Bankrupted"
Court may inquire summarily into adverse claim to lMinkrupt*«
property and if unfounded order surrender, otherwise leave ^^
plenary suit; In re Wells, 114 Fed. 224, holding Bankruptcy Cou^
acquires no jurisdiction over property of banl^rupt taken on wt^ '
of replevin prt-viously issued by State court; In re Shoemaker. 1
Fed. G50. «;51. dissolving restraining order on State court
venting sale of bankrupt's proiK^rty under execution prior to tMiiMh. '^fe-
ruptcy; In re Matthews. liiO Fed. tt>7. holding referee in bankrupt -<^t_ ^y
has jurisdiction to settle priority of liens on bankrupt's propeL ^^y
where all lienliolders voluntarily appear and submit claims; In -w^

Seebold. 105 Feil. 015. holding Bankruptcy Court cannot entert^s^ ]q
suit by trustee to recover property held by executive officer <if

competent State court: Lyon v. Clark, 124 Mich. 105, 83 N. W. iBT^^^I.
holding trustee in bankruptcy under act 1890 may sue in St ^rwL, fe
ci>urt to set aside alleired fraudulent conveyance of bankrupt

M:sr» Ilanoous. Cited in Hi«ks v. Knost. 104 Fed. lOW. certJI ^J-
in^ «luostion of principal case.

IT'^ r. S. r.42-,M<. 44 L. llsl, WHITE V. SCHLOERB.

Referees in l»ankrui-r*.y are appointed by the courts and exer<r*^P

miuh of their jik'.!' ial authority, p. 546.

Apiruve^l in In re Matthews. HI* Fed. G08. holding referee 1^^^
power to ord' r <alt' of p-^perty free from liens where llenbolrlc*n
voliintar:ly a:pe:>r ar.d s;:* ::::: tlieir claims.

«;o.»as in :M'<stss:on of Var.knipt on adjudication are in custody' of
I*ar:kri:; :«y Court, p. ''4>\

\]'\'Tv\i\\ in In re Ar.t:::«^ S.^ret^n Dtx>r Co.. 123 Fed. 252, bo/rf-
in:; a::y oour: l.avir.;: i:: ::s j-'S<»^ssion a fund in controversy l***
:r.i>rvn: exvh:s:vo : w»r ;-^ .!-':ori:::ne such controversy: In ^
I.eir.Tv.on. etc.. Co. \V2 FV.. ':^Ak h Liing Banltruptcy Court l^**
; ;r <.!.. tior. to .!• :»'r:v:::e .r.t-^re^t im-ler lien under suhsequ*"^
1. v\ *>y Smto ^ '.:rt v.; • r. irr^rty in pt>ssession of court: Id ^
I . :1k tt. 1'^ Ft^! Sr^. 1. >:i:u.i ^. is transferred to attorney ^^

U49

Notes OB U.S. Reports. 178 U. S. 542-54S

adjiidicatioa are in cuHtodIa Ifgis an(3 must be surrendered; To re
Glbba, 103 Fed. 782, holding Bankruptcy Court acciulres jurisdic-
tion on acljudieatJon of tiankruptey of property In possession of
bankrupt; Mirhnwaka Wfg. Co. v. Powell, 08 Mo. App. 538. 72
S. W, 725, holding property of bankrupt In possession of trustee or
receiver is in custodia le^Is and cannot be replevied in State court:
Weeks v. Fowler. 71 N. H. 221. 51 Atl. 624, holding trustee's pos-
Besslon of bankrupts goods prevents taklogr under replevin from
State court; Truda v. Osgood, 71 R H. 185. 51 AtL 633. boldinj;
State cotjrts have concurrent jurisdiction of suit In trover to re-
cover for goods of plaintiff sold by trustee as property of bankrupt.

Action cannot be commenced in State court to replevy property
In referee's hands, p. 547.

Approved in Crosby v. Spear, 98 Me. 543, 544, 545. 57 Atl. 882, aS3,
holding action of replevin cannot be commenced and maintained In
State court after property held by bankruptcy at time of adjudl-
cntloQ has come into referee's hands; Texas Brewing Co. v. Mallette,
28 Tex. Civ. 4G(j. 67 8. W. 443, holding mortgagee cannot maintain
suit in State court to establish bis lien on funds in custodia legls
though validity of mortgage be conceded.

By section 720 of Revised Statutes writ of Injunction shall not be
granted except in bankruptcy, p. 547.

Approved in Metcalf v. Barker, 187 U. S. 176, 23 Sup. Ct 71,
47 L, 127, holding Bankruptcy Court without jurisdiction to enjoin
enforcement of judgment in State court entered before bankruptcy
setting aside certain transfers.

Application for injunction to stay proceedings shall be decided
by judges, p. 547.

Approved In In re Hornsteln, 122 Fed, 270, holding Bankruptcy
Court may j-tay nJI pending proceedings in State court that tend to
put the property beyond reach of trustee when appointed; In re
Uutman, 114 Fed. 1010, holding Bankruptcy Court vsrill enjoin
action against trtistee where trustee's taking of bankrupt's prop-
erty was not wrongful and action will embarrass administration
of estate.

District Court has Jurisdiction by summary proceedings to compel
return of property taken from coui't's custody, p. 548.

Approveii in Mueller v, Nugent, 184 U. S, 13, 16, 48 L. 411, 412,
22 Sup, Ct. 274, 275, holding Bankruptcy Court has jurisdiction to
compel surrender to trustee of property held by third person as
jigetit of bankrupt, asserting no adverse claim; In re Union Trust
Co., 122 Fed. 1)40. holding BaoUruptey Court has Jurisdiction to
order sale of mortgaged property of bankrupt free from liens under
section 2. bankruiUcy act 1S1I8; In re Kellogg, 121 Fed. 33tS. holding
Bankruptcy Court has Jurisdiction to determine In summary pro-
i^Yalldlty of mortgage on property in trustee's iiands.

178 U. & &48-609 Notes on U. S. Reports.

afflrming 113 Fed. 125; Knott ▼. Putnam, 107 Fed. 900, holding Fed-
eral court determines for itself whether debt is one from which
the bankrupt will not be released by bankruptcy act 1808, ( 17;
In re Whitener, 105 Fed. 185, holding District Court has power to
enjoin proceedings under sequestration issued by State court and to
compel return of property previously in trustee's hands; Wayne
Knitting Mills t. Nugent, 104 Fed. 535, holding referee has juris-
diction under bankruptcy act 1898, ( 2, to order surrender in sum-
mary manner of bankrupt's property, assigned to son as agent.

Distinguished in Burleigh v. Foreman, 125 Fed. 220, holding ap-
peal lies to Circuit Court of Appeals from decision of Bankruptcy
Court on distinct Issue arising between parties intervening; In re
Wells, 114 Fed. 224, holding Banluruptcy Court acquires no juris-
diction over property taken on writ of replevin from State court
before Bankruptcy Court acted; Carling v. Seymour Lumber Co.,
113 Fed. 490, holding possession of mortgaged property by receiver
appointed by State court will not be disturbed by District Court;
In re Ward, 104 Fed. 988, holding bankruptcy act 1888 does not'
vest Bankruptcy Court with jurisdiction to take property held by
third person, without latter*s consent •

Miscellaneous. Cited in White v. Schloerb, 104 Fed. 1008, certify-
ing questions of principal case.

178 U. S. 548-609, 44 L. 1187, TAVLOR, ETC. ▼. BECKHAH
(No. 1).

Supreme Court has no jurisdiction on error over State Section. .^^
decision overruling defense based on Constitution, p. 557.

Approved in Taylor v. Beckham (No. 2), 178 U. S. 610, 44 L. 121^I^K
20 Sup. Gt 904, reaffirming rule. See 94 Am. St Rep. 378, note.

Nature of public officer's relation to public is inconsistent wi^^i_^:B)
property right, p. 577.

Approved in Hartigan v. Board of Regents, 49 W. Va. 25, 38 ^3.
E. 703, boldiDg professor in West Virginia University is not a pul^^SI fl«
officer aud courts will not review removal by board of regeik. ^^^;
dissenting opinion in Powers v. Commonwealth, 110 Ky. 435, Ol
S. W. 748, majority holding where two officers claim to be 8i>::moli
de Jure, he who is so in fact is officer de facto; dissenting opinioEB. Is
Taylor v. Vann, 127 N. C. 249, 250, 251, 253, 254, 37 S. E. 265, ^^^^
majority holding plaintiff entitled to office of member of board of
education has lawful cause of action therefor; dissenting opin. Mod
in White v. Ayer. 126 N. C. 611, 36 S. E. 145, majority awardiln^
mandamus to compel auditor to issue warrant for oyster iiispect^>i"*'
salary, though State law had created new office and repealed »ct
creating old.

Distinguished in Taylor v. Vann, 127 N. C. 246. 37 S. E. 2^
holding plaintifT entitled to an office on board of education has '
lawful cause of action therefor; dissenting opinion in Hartigan ^•
Board of Regents, 49 W. Va. 5G, 38 S. E. 716, majority holding pro-

1151

Notes on D. 8. Reports,

i78U. S. 614r^l7

fesBor !n West Virginia Univeraity not a public officer and not
entitled to proliibition to prevent removal by regents.

The whole subject of elections is regulated by Conatitiitlonfi and
statutes passed thereunder, p. 577^

Approved in Morris v. Board of CaDvasserg. 49 W, Va, 255, 38
S. E. 501. holding under W, Va. Code 1899, f 34, voter must use
only one ballot on the ballot sheet use of more than one vitiates
the vote.

278 U. S. 614, 44 L. 1216, LAKE STREET ELEVATED R, R, CO,
V. FARMERS' L. & T, GO,

retitlon for writ of certiorari denied, p. 614.

Cited in Farmers* Loan, etc.. Trust Co. v. Lake St Elev. B. R.
do., 122 Fed. 919. reciting history of litigation.

niS U. S. 617, 44 L. 1223, SUPREME COURT RULE 3L
Form of printed records and briefs stated, p. 617.
Cited io Wisconsin, M. & P. R. 11, Co. v. Jacobson, 179 U. S.
■S<>4, 45 L. 198, 21 Sup. CL 117» holding rule 31 violated by prlnUog
m^Q glazed paper in small type.

CLXXIX UNITED STATES.

179 U. S. 1-19. 45 L. 49. WASHBURN & MOEN MFG. CO.
RELIANCE MARINE INS. CO.

Rider in margin merely qoalified memorandum by allowing
coTery for actual total loss in part, p. 8.

Approved in Chicago Ins. Co. v. Graham, etc, Co., 108 Fed.
holding effect of rider on marine policy "warranted free fr"^:>'n
particular average under 5 per cent." was merely to change MM^-
bility as to loss, not rules governing contract.

Federal courts exercise own judgment In passing on poB^^^^7
governed by general law, p. 15.

Approved in Devitt v. Providence, etc., Ins. Co., 173 N. Y. 22^ ^®
N. E. 77S, holding insurer liable for loss of whole of articr-B^
Insured und«* policy for estimating loss by cash value at pL^B-^^
of loss and providing against abandonment.

Distinguished in In re Swift, 105 Fed. 495, holding contract w^l^^
broker who has l)ought stock on a margin governed by State l^i-^^*

Plaintiff cannot recover for constructive total loss where no rl^^^
to abandon, p. 18.

Approved in Soell>erg v. Western Assur. Co., 119 Fed. 36, ho^^"
Ini: uuiier sue and labor clause of marine policy action of insur^"^"'*
a^^ut iu making repairs and removing vessel to another port cro*^*
stiiutes no acceptance of abandonment after express refusal ^^^
insurer.

17l> r. S. 11^1. 45 L. GO. SAXLEHNER v. EISNER, ETC., CO-

Name ** Hunyadi " was proper subject for trademark, p. 30.

Set* Sr» Am. St, Kep. 112, note.

Abandonment of tradename requires an actual intent to abandon.
p. 31.

Approvevi in Manhattan Life Ins. Co. v. Wright, 126 Fed. ^»
boKiini: test of abandonment of insurance policy is existence or
uonexistenoe of intent to abandon: Sinjrer Mfg. Co. v. Hippie. ^^^
Feii. irv>. holdius: use of name " Sinsrer " on dissimilar macbin*^
to dtveive purchasers may be enjoined: Actiengesellschaft, etc. ^•
Amlvrt:. l»Xi Feil. 152, holdins: mere fact of user by others do^
not establish aMndonmen: of exclusive use of distinctive styl*
of dr\^sing for goods.

[11321

/

Iiisa

Notes on U. 8. Reports.

179 U: S. 19-41

Contract of sale did not make Apolllaarls company agent of
Saxlehner, p. 33.

Approved In American Press Aaan. x. Dally Story Pub, Co., 12(J
Fed. 768, holding sale of exclusive right to publish copyrighted
itory within limited territory confers no agency to waive copyright
rights, '

Twenty years* Inaction loses ptaEntlff right to resuscitate original
atle, p. 37,

Approi'ed In French Republic v. Saratoga Vichy Co., 191 U, S*
IS7* 24 Sup, Ct 147, holding defense of laches applies where term
* Vichy " used to designate entirely dissimilar water, effervescing
nstead of stilL

Distinguished in Thackeray v. Saxlehaer, 125 Fed. 911, 912. hold-
Dg use of name *' Hunyadl '* for bitter watera manufactured from
lecret foraaula is infringement and plaintiff not estopped where
protesting from first use.

In cases of actual fraud laches to defeat recovery must ajnount
D asseutp p. 3D.

Approved in Bissell Chilled Plow Works v. T. M, Blsaell Plow Co.,
21 Fed, 37 5» holding laches for six years to institute suit for un*
sir competition will not defeat right lo injunction where right Is
tear: Alger v. Keith, 105 Fed, 120, holding laches In asserting right
o rescind contract for coal lands no bar where right asserted as
Don as deception known.

DlstlngniBhed In French Republic v, Saratoga Vichy Co., 191
X S. 430. :M Sup, Ct, 14S, holding equity will not enjoin use of
^me '* Vichy" to designate mineral waters where by long use the
erm has become generic.

Use of additional label which is mere Importer's private mark
» defense to infringement of label and bottle, p. 41.

Approved In Enoch Morgan's Sons Co. v. Whittler-Cobum Co,,
tS Fed. UU1» holding name ** Sappho/' when wrapped in packages
P same size and similarly labeled as sa polio, cons titu tee Infringe-
l«*nt; Sterling Remedy Co. v. Spermiae Medical Co., 112 Fed. 1003,
K>Mlng defendant enjoined from imitating name and form and
t>lor of medicinal tablets manufactured bj plain tiffs j Shaver v.
teller, etc., Co., lOS Fed. 832, enjoining use of term ** American " In
^'laection with hall or wash blue confusing same with well-known
^Icle of that name. See 85 Am. St Rep. 90, note.

Distinguished in Gannett v, Ruppert, 119 Fed. 223, 224, holding
*>t>li8her of country magazine " Comfort " not entitled to enjoin
^« of name " Home Comfort '* for paper devoted to hygiene of
Grants.

Vol, III — 73

179 U. S. 42-67 Notes on U. & Reporta. 1154

179 U. S. 42, 43. 45 L. 77, SAXLEHNER v. SIEGELrCX>OPEB CO.

That infringing company acted innocently does not ezoner&ta
it from charge, p. 43.

Approved in Beebe v. Tolerton. etc., Co., 117 Iowa, 605, 91 N. W.
906, holf^ing defendant liable for selling cigars with counterfeit lab^
where it innocently failed to instruct shipping clerk.

Infringer acting in good faith not liable for gains and profits,
p. 43.

Approved in Bradford v. Belknap Motor Co., 105 Fed. W, hold-
ing equity will not award nominal damages.

179 U. S. 43-45. Not cited.

179 U. S. 46-54, 45 L. 79. LOOKER v. MAYNARD.

Statute securing right of cumulative voting for corporate dlrecton ^^
is coutftitational, p. 54.

Approved in C. H. Venner Co. v. United States Steel Corp., l^^,,^^
Fed. 1013. upholding amendatory act enabling corporations ^
increase bond issue passed under pow^ reserved in incorporatic
statute; Gregg v. Granby Min.. etc., Co., 164 Mo. 627, 65 8. W. SI
upholding Const. 1875. art 12. $ 6. allowing cumulative voting C"
corporate airectors.

Distingaished in Bcrger v. United States Steel Corp., 63 N. J.
Eq. 52'.. 53 At). 22, holding unconstitutional act March 2S, lOCX^
authorizing certain corporations to issue bonds to retire prsCerx'cd
stock.

179 U. S. 55-57. Not cited.

17J U. S. 58^^, 45 L. 84, WILEY v. SINKLER.
Right to vote for member of national Congress is based on OM-

tional Coustitutlon and laws, pp. 64, 65.

Approved in SwaCford v. Templeton, 185 U. S. 491, 46 L. 10O7, Iff
Sup. Ct. 7&1, holding action against State election officers for pre-
venting plaintiff from voting for national representative involvef
Federal 'luestion; Yazoo, etc., R. R. v. West 78 Miss. 811, 29 So.
47G. holding where sheriff failed to sell property assessed for taxet
within time limit he cannot do so after subsequent suit to deter-
mine validity of exemption.

Amount of damages suffered by deprivation of right to vote li f^
jury to estimate, p. G5.

Approved in dissenting opinion in Giles v. Harris, 189 U. 8.
4D1, 4D2. 498, 23 Sup. Ct. 644. G48, 47 L. 914, 916, majority boldlnf
absence of averment In bill in Circuit Court showing jurisdictlontl
amount in dispute not available on appeal where omission not ob-
jectetl to below.

Distinguished in Giles v. Harris, 189 U. S. 485, 23 Sup. Ct ««•
47 L. 911, holding ai)sence of averment in bill in CU-cuit Court

1155

Kotet OD U, S, Reports.

171+ U. S, fiS^TT

showing Jiirlsdictioual amount In dispute not avaOable on appeal
where oo objection made to omission of sueb allegations; Mason
V, Missouri. 170 V. S. 333, 45 L. 219, 21 Sup. Ct. 127, holding Mo.
registration law May 31, 1S95, upheld by State Supreme Court does
not deny voters of single city over 300.000 of protection of lawa
though applicable to them only.

Complaint for unlawfully rejecting vote muat state tbat plaintiff
was registered as qualified voter, p, 66.

Diatluguished in Winlcler v. Chicngo. etc., R. R. Co., 108 Fed. 310,
holding declaration showing that plaintlff w^aa deprived of right to
vote because of failure to comply with valid State law raises no
Federal question.

170 U, S. SS. Not cited.

179 U, S. 6^77, 45 L, GO, KNOTT v. BOTANY MILLS.

Courts In England permit exemption from liability by contract
stipulation, p. 7L

See 88 Am. St. Rep. 101, note.

Before Harter act 1893 and by It afterward carr!er*B stipulation
for exemption is void, pp. 71, 72.

Approved In The Keuslugtan, 183 U. S. 268, 269, 271, 40 L. 193,
104, 22 Sup. Ct. 102, 104. 105, holding courts of United States will not
enforce contract executed abroad limiting steamship company*B
liability for baggage to 250 francs; The Manltou, 116 Fed. 62. hold-
ing unenforceable in this country exemptions In bill of lading
against ILibility for damage by steam; The New England, 110 Fed,
417, holding InefTectual to validate ticket Issued by English com-
pany to American passenger exempting former from liability stipu-
iation that English law should govern. See 88 Am. St, Rep. 97,
uote.

Owner of vessel must by Harter act 1893 use due diligence to
make vessel seaworthy, p. 73.

Approved In Lazarus v. Barber, 124 Fed. 1008, holding charterer
of rcbsel liable for damage to goat akins caused by leakage of brine
from citron casks negligently stowed near skins; Insurance Co. of
North America v. North German Lloyd Co., 106 Fed. 076, holding
where lighter used to convey goods to vessel capsized In still water
unseaworthiness Is presumed.

Damage to wool from drainage from damp sugar held due to
negligence In stowage or loading, p. 73.
' Approved in The Germanic, 124 Fed, 3. 5» affirming 107 Fed. 299,

hold I u;^ damage to cargo by sinking of ship due to toplieavlness
Ik irom Ice w*heu cargo was being removed within first section of
I Harter act; The Hudson. 122 Ketl. 08, holding ship not exempted
I (rom liabiilty lor damage to cargo from odor of hides placed in
l^^d though storm regnired closing of ventilators; The Seaboard,

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1157

Notes on U. H. Reports.

179 0. S. eC-^130

179 U. S, 96-99. Not cited.

179 U. S. 100-nC» 45 L. 106. GROSSMAN v. BtJERILK

Cesser clause of charter party not construed to give up rights
stipulated for, p. 107.

Approved In Burrill v. Grossman, 111 Fed. 193» 104, denying leave
to amend defense based on cesser clause where such defense as
worded had been declared tnsufflclent in District Court, appellate
and Supreme Courts.

Crowded state of docks Is no excuse for vessera failure ta unload
in time, p. 112.

Approved in The Prudence, 124 Fed. 939, holding charterer liable
for delay in unloading caused by crowding of docks by foreign
vessels though charter party exempted for delays from strikes and
unavoidable causes.

Vis major pleaded was unusual nod extraordinary Interruption
which could not have been anticipated* p. 113.

Approved in Burrill v. Grossman, 124 Fed. 840, holding evidence
did not sustain allegation that firing between vessela and forts pre-
vented unloading of vessel libeled.

179 U, S. 116-12(1, 45 L. 113» SIGAFUS v. PORTER.

The loss sustained and not the profits whicb might hare been
made constitutes measure of damages, p. 123.

Approved Id Trenchard v. Kell, 127 Fed. 602> holding where
vendor and agent misrepresent ed boundaries of property under
tlnilH?r options purchaser may set off against purchase notes dif-
ference between actual and represented value; Simon v. Goodyear
Metallic Rubber Shoe Co,, 105 Fed. 579, holding if contract Is
executed without knowledge of fraud damage is confined to loss
suffered by executing contract.

179 U. S. 12G, 127. 45 L. lia IN RE VIDAL,

Supreme Court is not empowered to review proceedings of mili-
tary tribunals by certiorari, p. 127,

Distinguished In Ex parte Joins, 191 U, S» 102, 24 Sup. Ct 28,
refusing prohibition against Choctaw and Chickasaw cttizenshlp
court where court had rendered its decision on question of cltJzeu-
sbip and certified same to commission.

179 V. S. 127-^130, 45 L, 110, CHAPIN v. FYE.

Where one Federal question raised In State court such another
question not raised below cannot be urged here, p. 129.

Approved In Herold v. Frank, 191 U. S. 559. 24 Sup. Ct 844,
reatflrming rule; New York, etc., R. R. Co. t. New York, 18^ D. S.
273. 4« L. 1100. 22 Sup. Ct. 917, holding WTlt of error must he dis
missed where no question under Federal Constitution shown, case
going on provision of New York charter; State of Wiscousln v.

4

179 U. S. 131-141 Notes on U. S. Reports. 1158

Ck>mmis8ioiiers of Public Lands, 183 U. S. 693, 46 L. 393, 22 Sup.
Ct. 934, dismissing for want of Jurisdiction; Arkansas v. Schlierholz«
179 U. S. 601, 45 L. 337, 21 Sup. Ct. 231, holding constitutional Ques-
tion not presented by record does not sbow that court below passed
upon same.

179 U. S. 131-141, 45 L. 121, CHESAPEAKE, ETC., BY. CO. v.
DIXON.

Where petition for removal does not allege fraud or facts sbowing
same question not open, p. 135.

Approved in Boatner v. American Exp. Co., 122 Fed. 718, bolding
joinder of resident agents of nonresident express company in suit
ou contract for loss of package without showing partnersbip pre-
sumed fraudulent to defeat removal; Swann v. Mutual Reserve, etc..
Life Assn., 116 Fed. 233, 234, bolding suit on insurance policy not
removable on allegation in petition that plaintiff sued to recover
$1,990 for premiums paid instead of full amount in order to defeat
removal.

Cause of action created by statute for wrongful death is inde-
pendent of any right deceased might have had, p. 135.

Approved in Northern Pac. Ry. Co. v. Adams, 110 Fed. 329, hold-
ing right of action given heirs or representatives of decedent killed
by wrongful act by Washington statute is independent of decedent*i
right of action.

Liability of master for negligence of servant rests on policy of
law, p. 136.

Approved in JBelms v. Missouri Pac. Ry. Co., 120 Fed. 392, hold-
ing separable action against railroad and employee based on sole
negligence of employee.

The cause of action is whatever plaintiff declares it to be in his
pleadings, p. 138.

Approved in Dougherty v. Yazoo, etc., M. V. R. R. Co., 122 Fed.
207, 208, 210, 211, holding complaint alleging that defendant rail-
road company and defendant palace-car company jointly operated
car In which plaintiff was injured states joint action.

Distinguished in Carothers v. M'Kinley Min., etc.. Smiting Co..
122 Fed. 307, holding resident agent of nonresident corporation can-
not be made party defendant to prevent removal of ejectment iult
simply because former served plaintiff with notice to vacate.

Speed in running of train if constituting negligence is that of
company, p. 130.

Approved in Northern Pac. Ry. Co. v. Adams, 116 Fed. 329, hokJ-
Ing question whether company was negligent in running train to
make up lost time with passengers allowed on platform is for jury.

Distinguished in Helms v. Northern Pac. Ry. Co., 120 Fed. 39i\
31)1. holding joint action cannot be maintained against railroad and
employee for injury from latter's sole negligence.

1150

Notes OQ U. S. Reports.

179 U. S. 131-141

Where declaratloo shows Joint liability action Is not separable
in law, pp. 135, 140.

Approved in Gableuian t, Peoria, etc., R. R. Co., 179 D. S. 337,
45 L, 222, 21 Sup. CL 172, holding Federal receiTer cannot hy virtue
of appointment alone remove all suits to Federal court; Dougherty
V, Atchison, etc, Ry., 126 Fed. 240, holding complaint againat rail-
road company and conductor alleging negligence In accepting and
not removing from traJu an Insane person states action for joint
tort; Fo^arty v. Southern Pac. Co., 123 Fed, 076, holding complaint
against railroad company and employees with Joint negligence in
operating car states Joint cause of action; Bryce v. Southern Ry.
Co., 122 Fed. 711, 712. holding allegations of complaint determine
whether cause la removable unless defendant proves wronj^ful
joinder of defendants; Union Terminal Ry, Co. v. Chicago* B. & Q.
R. R. Co., 119 Fed. 211, holding w here complaint alleges joint cause
of action against resident and nonresident cause is not removable
though petition denies interest of resident; Person v. Illinois Cent.
R. R. Co., 118 Fed. 347, holding action against lessor and lessee of
railroad for employee's death caused by lessee's negligence in-
volves no separable controversy; Riser v. Southern Ry. Co., 116 Fed.
215, 216, 217, holding action against railroad and conductor for
collision due *'to the joint and concurrent negligence*' of defend*
ants states Joint cause of action; Ward v. Franlclin, 111) Fed. 795,
holding action against several defendants to recover for assault
and false imprisonment committed at instigation of one through
her agent is on joint liability: MeCabe v. Maysvtlle, etc., R, R., 112
Ky, 868. GO S. W. 1055, holding nonresident defendant cannot re-
move suit when properly joined with resident; Winston v. lUlnoIa
Cent. R. R.. Ill Ky. 958, 65 S. W. 14, holding nonresident rail-
road sued jointly with resident engineer and fireman for latter^s
negligence cannot remove suit; Sebum pert v. Southern Ry„ 65 S. C.
330, 43 S. E, 815, holding railroad and engineer jointly liable for
latter's negligence in causing collision in which plaintiff was In-
jured,

Disttngnished in Shaffer v. Union Brick Co., 128 Fed. 99, 103, hold-
ing complaint against brick company as master and employee for
latter's negligence states separable cause of action; Gustafson v.
Chicago, etc., Ry., 128 Fed, 87, 88, holding complaint charging rail-
road with negligence in absence of proper flag and speed rules
charges no joint negligence on eDglneer'a part; Free v. Western
Union Tel. Co.. 122 Fed. 311, holding unsupported allegation of
unverified complaint that resident operators of nonresident tele-
graph were jointly liable for delay does not prevent removal where
petition verified and supported by affidavits; Southern Ry. Co. v.
l^dwarils, 115 Ga. 1023, 42 S. E, 375, holding where comoiiiint stat-
ing joint cause of action also states independent cause for negll*
geace of one defendant it is thus far separable.

179 U. S. 141-198 Notes on U. S. Reports. lioo

It is proper for Federal courts to follow State courts as to nature
of action, p. 140.

Approved in Helms v. Northern Pac. Ry. Co., 120 Fed, 398, hold-
ing following State decisions motion, to remand will be denied
where no concurrent negligence of company is charged.

179 U. S. 141-190. 45 L. 126, SCRANTON v. WHBBLrBR.

Compensation must be secured to the owner when private prop-
erty taken for public use, p. 153.

Approved in United States v. Lynah, 188 U. S. 471, 23 Sup. Ct
857, 47 L. 549, holding destruction of rice plantation by Federal
improvements in navigation of Savannah river is a talcing of land
within Fifth Amendment

Distinguished in Sullivan Timber Co. v. City of Mobile, 110 Fed.
192, holding riparian rights are governed by laws of several States
subject to rights granted by Federal Constitution.

Agents designated to perform work ordered by Congress may
proceed in all proper ways, p. 165.

Approved in Slingerland v. International, etc, Co., 169 N. Y. 68,
61 N. E. 996, 997, holding riparian owner on Hudson cannot sue
contractor dredging channel under Federal authority.

Landowner has no such right of property in submerged lands
under pier to warrant suit, p. 165.

Approved in Salliotte v. King Bridge Co., 122 Fed. 382, holding
riparian owner holds subject to injury from improvements in navi-
gation, deepening of channel or building of bridge; Cobb v. Comrs.
of Lincoln Parle, 202 111. 436, 438, 67 N. E. 8, 9, holding riparian
owner abutting on Lake Michigan has no right to build wharf with-
out consent of park commissioners; Frost v. Railroad Co., 96 Me. 87,
51 Atl. 809, holding building of trestle over tide water to damag«? ^

of plaintiff's business and depreciation of value of property gives m

no action against road; dissenting opinion in United States v.
Lynah, 188 U. S. 484, 23 Sup. Ct. 362, 47 L. 554. majority holding ^

destruction of rice plantation by Federal improvements in navigation ^

of Savannah river is taking of property within Fifth Amendment.

179 U. S. 191-196. Not cited.

179 U. S. 196-198, 45 L. 151, LOWRY v. SILVER CITY, ETC, MIX.
CO.

Writ of error dismissed where ground of estoppel sufficient to ^

sustain State decision, p. 198.

Distinguished in Tonopah, etc., Min. Co. v. Tonopah Mln. Co..
125 Fed. 415, holding valid Silver Top location overlapping pre-
viously located but subsequently withdrawn boundary of Valley
View claim.

iiex

Notes on U. S. Reporti.

170 U, a 190-282

179 U. S. 109-201. Not cited,

179 U, S, 201-206. 45 L. 153, LAS AMINAS LAND GRANT CO. T.
UNITED STATES.

Court of Private Land Claims cannot paaa upon claim when pro*
hiblted from exercising jurisdiction, p. 206.

Approved In United States v. Baca, IM U. S. 659, 46 L, 736. 22
Sup. Ct. 543, holding Court of Private Land Claims la prohibited by
act 1891 from passing on merits of claim under Spanish grant

179 U. S. 206-200, 45 L. 155, BAGGS v» MARTIN.

Circuit Court has jurisdiction of suits against receive* appointed
by It, p. 209.

Distinguished in Hupp v. Wheeling & L. E, R. R. Co., 121 Fed.
820, holding receiver cannot remove suit when Jointly sued with
railroad of same citizenship as plalntlfT.

Where receiver waives right to trial in State court Federal court
will retain jurisdiction, p. 209.

Approved in Gableman v. Peoria, etc.. R. R. Co,, 179 U. S. 342,
45 L. 224. 21 Sup. Ct. 175, holding appointment by Federal court
in exercise of equity powers does not enable receiver to remove ail
Buits to Federal court; Philadelphia, etc., Boston Face Brick Co. v.
Warfortl, 123 Fed. 843, 844, holding entry of general appearance In
Federal court, and year's delay before seeking to remand, Is waiver
6f receiver's right to object to n on reside nee in district.

Miscellaneous. Bagg v. Martin, 106 Fed. 9S5. Certifying ques-
tion of principal case.

179 U. S. 210^220. Not cited.

179 C. S. 220-222, 45 L. IGO. BALDWIN v. MARYLAND.

Judgment establishing tax liability of ward's estate is res adjndl-
cata In subsequent suit, p. 222.

Approved in Kansas City, etc., Park v. Kansas, 174 Mo. 442, 74
S. W. 984, holding judgment exempting leasehold of corporation
fruin State and county taxes is res adjudicata for taxes for subse-
quent years.

179 U; S. 223-202, 45 L. 162, STEARNS v. MINNESOTA,

Reserved right to alter or amend does not confer arbitrary power,
p. 259.

Approved in Dulnth & Iron Range R, R. Co. v. St, Louis Co., 179
U. S. 303, 304, 30n, 45 L. 202, 2t^3, 21 Sup. Ct 124, 125, holding
Slate cannot under preserved power to alter or repeal statute ex-
empting railroad from taxation preserve obligation of railroad and
impose tax.

179 U. S. 262-278 Notes on U. S. Reports.

179 U. S. 262-270, 45 L. 181, MUTUAL LIFE INS. CO. OF NEW
YORK V. COHEN.

Contract executed elsewhere may by its terms incorporate New
York law, p. 267.

Approved in dissenting opinion in Keene Five-Cent Sav. Bank v.
Reid, 123 Fed. 228, majority holding provision in note that same
is governed by Kansas laws means general laws as to negotiable
instruments, not local decisions as to mortgage securing same.

Ordinary construction of language used in statute makes it appli-
cable to business done within the State, p. 269.

Approved in Johnson v. Mutual Life Ins. Co., 180 Mats. 409, 62
N. E. 734, 735, holding Massachusetts statute requiring attachment
to policy of application inapplicable to contract between foreign
company and person domiciled within State, though purporting to
govern.

New York statute does not control policy issued in other State,
p. 270.

Approved in Mutual Life Ins. Co. of New York v. Dingley, ISl
U. S. 695, 46 L. 763, 22 Sup. Ct. 937, reaffirming rule; Hill v. Mutual
Life Ins. Co. of New York, 113 Fed. 47, holding decision of Circuit
Court of Appeals, except as to point of reversal by Supreme Court
constitutes the law of the case; Mutual Life Ins. Co. v. Hathaway.
106 Fed. 817, holding policy delivered in Washington by New York
company not subject to New York law requiring notice before for-
feiture for default in premiums; Millard v. Brayton, 177 Mass. 537.
59 N. E. 436, holding policy issued by New York company, delivered
and accepted in Massachusetts on payment of premiums there, if 4
governed by Massachusetts law.

Distinguished in Mutual Life Ins. Co. v. HUl 118 Fed. 711. 712, ^^
holding policy of New York company issued to insured In Washing- — ^
ton on application declaring that contract when made to be coo — ,^
sidered as made in New York governed by New York law.

Miscellaneous. MacMahon v. United States Life Ins. Co^ 12fiL --^
Fed. 392, holding New York insurance company accepting dni^^^
dr.iwn by Mexican bank in payment of premiums cannot ctoc^=>->y
policy because drawer bank failed before collection.

179 U. S. 270-278, 45 L. 186, WILLIAMS v. FEARS.

Right to pursue any lawful calling is protected by Constitntion
p. 274.

Approved in State v. Associated Press, 159 Mo. 450 (see 6Q S. W.
101). holding right to contract or pursue any lawful calling socb if
newsgathering is within constitutional protection.

Tax on *' immigrant agents " is constitutional, p. 278.

Approved in Atkin v. Kansas. 191 U. S. 220. 24 Sup. Ct 12a. np-
holding Kan. Gen. Stat 1901, $§ 3827, 3829, making it cHmiml (or

1163

Notes on TT. S, Reports.

179 U. S. 270-302

contractor od public work to permit laborers to work over eigbt
hours per day; Cent. Ry. Co. v. Murphy, 110 Ga. 870, 43 S. E. 2tB.
upboMlng Civ. Code, S§ 2317. 2318, requiring initial carrier or any
connecting carrier on application to trace Injury or loss of goods
or be liable for value; State v. Hunt. 129 N\ C- 087» 688, 089, 40
S. E, 216, 217, upholding Laws 1901. chap. 9. Imposing tax on per-
Bons engaged in procuring laborers to accept employment in another
State; State v. Napier. 63 S. G. OS, 41 S. E. IB, upholding emlgraot
agent act requiring licetige for carrying on business of emigrant
agent; dissenting opinion in Lottery Case, 188 U. S. 3G9» 23 Sup,
Ot 332, 47 L. 500. majority holding carriage by Interstate express
company of lottery tickets* between States constitutes interstate
commerce, which Congress may control and prohibit; dissenting
opinion In Connolly v. Union Sewer- Pipe Co., 184 U. S» 5e7» 48 L.
683, 22 Sup. Ct. 442, majority holding unconstitutional III. trust act
1893, exempting from operation agricultural products and live stock
In liands of producer or raiser,

179 U. S. 279-287, 45 L. 190, NEW YORK STATE v. BARKER.

N. Y. Laws 1857, as construed, for correcting undervaluation of
corporate property is valid, p. 285.

Approved In Blue Jacket, etc., Co, v. Scherr, 50 W. Va. 551, 40
S. E. 522, upholding Acts 1901, chap. 35, If 86, 87, classifying cor-
porations according to location of principal place of business* within
or without State.

1T9 U, S. 287-^02, 45 L. 194. WISCONSIN, ETC, R, R, CO, v.
JACOBSON.

Mlna. Gen, Laws 1885, chap. 91, § 3, requiring facilities for Inter-
change of cars at railroad intersections, is valid, p. 2VK).

Approved In Central Stock Yards Co. v. Louisville, etc., R. R. Co.,
112 Fed. 825. holding Injunction will not He to enforce section 3,
Interstate commerce act, requliiag furnishing of equal connecting
facilities, since sections 8, 9 give remedy In damages.

Judgment directiog track connections to be made, on facts, Is
valid, pp. 301, 302.

Approved in Minneapolis & St L. R. R. Co. v. Minnesota, 166
U. S. 260, 2(j3. 46 L, 1155, 1156, 22 Sup. Ct 002, holding State legis-
lature may authorize railroad commission to reduce unreaaonabie
joint rate of railroads and apportion same among lines, atflrming
Stute v. Minneapolis, etc., H. K., 80 Minn. 190, S3 N. W, 62. up-
holding provision of Laws 1805, chap. 91, authorizing commission
to establish rates over connecting lines within State and enforce
same. See notes, SO Am, St Rep, 527, 530.

Distinguished In Central Stock Yards v, Louisville, etc., Ry., 102
tJ. S. 571, 24 Sup. Ct. 311, holding railroad maintaining stock depot

Notes OQ U. S. Reports.

179 U. S. 335-n388

tW U. S. 335-342, 45 L. 220, GABLE MAN v, PEORIA, DECATUB,
ETa» RY. CO.

Separable coatroversy muBt appear on face of plaintilf's plead-
inga, p. 337.

Approved la Bi-yce v. Soutliern Ry. Co., 122 Fed, 712, holding
Insufficient compLnlnt in action Ity passenger for InjurleSi statlog
general allegation of negligence against railroad engineer.

Wtien application for removal rests on claim of Federal law all
'defendants must Join, p, 337.

Approved in Miller v. Le Mars Nat Bank, 116 Fed. 553, holding
[All defendants must join to remove suit based on laws or Constitxi-
tioD of United States.

Act 1887-SS abrogated the rule that receiver could not be sued
I without appointing court's permission, p* 338.

Approved in Malott v. Hawkins, 159 Xnd. 130, 03 N. E. 300, hold-
ing action may be maintained in State court against receiver for
killing of decedent, without leave of Federal court appointing re*
iceiver; MaJott v. State, etc*, Board of Comrs. of Clay Co., 158 Ind.
|679, 64 N. E. 458, holding demurrable an application for mandamus
Ito compel receiver to restore highway, where applicatit>n did not
nllege appointment bj Federal court; State v. Frost, 113 Wis, 646,
TOlt B9 N. W. 920, 921, holding information in equity to enjoin
Federal receiver from destroying railroad discloses Federal
42uestl0D.

Bare fact of Federal appointment does not entitle receiver to
removal » p. 340.

Approved in Bankere\ etc., Co. v. Minn., etc.. Ry.. 192 U. S. 384,
|N Sup* Ct 320, holding suit against railway company for value of
Registered mall package does not arise under Federal law to de-
g>rive Circuit Court of Appeals judgment of fluality; Central Ohio
JB. R. Co. V. Mahoney, 183 D. S. (594, 48 L. 393. 22 Snp. Ct. 930,
Ptoswering In negative questions certified by Circuit Court of .Appeals
tor sixth circuit; Pepper v. Rogers, 128 Fed. dSH, holding suit by
t'ederal receiver cannot be removed In absence of Federal question;
teottora V. National R. Y. Bldg., etc.. Loan Assn., 123 Fed« 745. 748,
holding Circuit Court has Jurisdiction of suit by receiver appointed
tjiereby to foreclose mortgage of insolvent loan association.

179 V. S. 343-388, 45 L. 224, AUSTIN v. TENNESSEE.

I ** Commerce clause *' does not of itself override State action under
boUce power, p. 382.

Approved in United States v. Swift, etc.. Co., 122 Fed. 533. hold-
ing interstate as well as domestic commerce is subject to police
and taxing power of State; Cook v. Marshall Co.» 119 Iowa, 388, '
aso, 393, 93 N. W. 373. 374. 375, upholding Code. I 5007, assessing
jtax of ^300 on persona selling cigarettes, not applying to JobbeTP
iolng Interstate business.

votes or>- ^- ** CO., ^^* j coi»»»'»

I

pa^^*' v>u. cause t^^T^^ot 6^«* 3T3BG«* "" .^

P^^''^ »A » ST»\ Lr tas »» * LattVtWS *tr l*«- ^ .obco'

bo\dVug *=f^SrVeV State ^^isea. " 4, ^,^^cetoet»t ol *

"» .vt^^. .„..- '• ;rx -;. ss« -" •*

Notes OD U, S, Reports.

179 U. S. 45CM^

ilquors by tJ^ose maintaining place separate from manufactaiy, not
applying to sales In quantity made at mannfactory,

179 U, S. 456^63. Not cited.

179 U. S. 463-471. 45 L. 277. ROTHSCHILD v. UNITED STATES.

Unstemmed leaf tobacco mixed with Mler tobacco is dutiable as
** wrapper tobacco*' nnder act 1S97, p. 471.

Approved in United States v. Carcaba, 119 Fed. 1022, following
rule.

Miscellaneous. Certifying question of principal ease. Rotbs-
child. etc. V. United States. 109 Fed. 1062.

179 D. S. 472^94, 45 K 280, LOEB v. COLUMBIA TOWNSHIP
TRUSTEES.

Circuit Court of Appeals act gives Hgbt to appeal In all cases
where State Jaw violates Federal Constitution, p. 478.

Approved in Fidelity Mut. Life Asan. v. Mettler, 185 U. 8. 315,
46 L. 928. 22 Sup* Ct. 063, bolding Supreme Court lias jurisdiction
of writ of error to Circuit Court in case in wliicb validity of Texas
statute was drawn in question by defendant below; Connolly v.
Union Sewer^Pipe Co., 1S4 U, S. 544, 46 L. 685, 22 Sup. Ct, 433,
liolding Supreme Court has jurisdiction of writ of error by defend-
ant, who based defense on law which court held unconstitutional.

Judiciary act 1S91 does not give party right to review by Supreme
Court and Circuit Court of Appeals, pp. 478, 479.

Approved in Union & Plfiuters* Bank v. Memphis. 189 U. S, 74,
23 Sop. Ct (105, 47 L. 714, holding Circuit Court of Appeals without
Jurisdiction of appeal of suit resting solely on question of impair-
ment of contract; Ay res v, Polsdorfer, 187 U. S. 589, 590, 591, 502,
593, 594, 23 Sup. Ct. 197, 198, 199, 47 L. 315, 316. 317, holding Sti-
pn*me Court will not review Judgment of Circuit Court of Appeals
where Circuit Court's Jurisdiction rested solely on diverse citizen-
ship, though other Federal questions subsequently arose; Huguley
Mfg. Co. V, Galeton Cotton Mills, 184 U. S. 295, 46 L. 548, 22 Sup.
Ct. 4.54, bolding no right of appeal from decree of Circuit Court of
Appeals is given by provision of act 1891 for review '* by certiorari
or otherwise;" American Sugar ReJining Co. v. New Orleans, 181 U.
S, 284), 45 L. 861, 21 Sup. Ct. G47, holding where Circuit Court's
jurLsdiction ilepended on diverse citizenship, fact that question war-
rtiiitlng appeal to Supreme Court arises does not Justify Circuit
Court of Appeals from dismissing appeal

.ludgment of Circuit Court of Appeals Is final tn cases based on
diversity of citizenship, p. 479.

Approved in Keyser v. Lowell, 117 Fed. 402, bolding Circuit Court
of Appeals may finally determioe question of validity of State
statute arising in suit based originally on diverse citizenship.

170 U. S. 404-662 Notes on U. S. Reports.

Distinguished in Owensboro y. Owensboro Water- Works Co., 115
Fed. 822, holding Circuit Court of Appeals has no jurisdiction on
appeal from Circuit Court, where case below rested on sole ground
that State law contravened Federal Constitution.

Record showed that claim that State law contrayened Federal
Constitution was well made, p. 481.

Approved in Mutual Life Ins. Co. y. McGrew, 188 U. S. 308, 23
Sup. Ct. 378, 47 L. 485, holding Federal question cannot be first
raised in State Supreme Court on petition for rehearing, where such
petition was dismissed without opinion; Arkansas y. Schlierhols.
179 U. S. 601, 45 L. 337, 21 Sup. Ct 231, holding no Federal quesUon
sufficiently presented by record which does not show that question
was presented to court below.

Words ** any corporation " in judiciary act 1888 include munid**
pal corporation, p. 486.

Approved in Waite v. Santa Cruz, 184 U. S. 324, 46 L. 567, 22
Sup. Ct. 335, holding city of Santa Cruz is a corporation within
judiciary act 1888.

Municipal bonds governed by State law as declared when securi-
ties were issued, p. 492.

Approved in Wilkes County Comrs. v. Coler, 180 U. 8. 531, 45 L.
655, 21 Sup. Ct 468, holding righU of holders of county bonds ar«
determined in Federal court by State law as declared when bonds
put on market.

Federal courts use independent judgment in determining effect
of State laws at creation of obligations, p. 498.

Approved in Bancroft v. Wicomico County Comrs., 121 Fed. 882,
holding grant of exemption from taxation made to railroad company
for stated period inures to benefit of purchaser and cannot be im-
paired; Board of Comrs. v. Gardiner Inv. Inst, 119 Fed. 47, boldlnf
valid bonds issued under law valid at time, though means for pay-
ing same invalid; Board of Comrs. of Wilkes Co. v. Coler, 113 Fee
732, holdiug decision of State Supreme Court long after Issne of
bonds, construing effect of ordinance, cannot affect validity of
bonds; Board of Comrs. of Stanly Co. v. Coler, 113 Fed. 708, hold-
ing State decision adjudging invalidity of bonds issued under Stat^*
statute is not binding on Federal court in subsequent suit by bond—
holders against county.

Distinguished in Spreckels Sugar Ref. Co. v. McClain, 192 U. ft-
408, 409, 24 Sup. Ct. 379, holding Supreme Court will review deci-
sion of Circuit Court of Appeals in suit to recover amount of tax
wrongfully exacted under protest under war revenue act 1898L

179 U. S. 4W-552. Not cited.

1169

Notes on U* S. Reports.

179 U. S. 552-G21

119 V. S. 552-501, 45 L. 314, WORKMAN v. NEW YORK CITY
MAYOR, ETC.

dty of New York liable In admiralty for negligence of servants
of flreboat, pp, 565, 570.

Approved In Tucker v. Alexandroff, 183 U. S. 43a 46 L. 210. 22
Sup. Ct 201, holding vessel launched bat unfinished, under con-
tract to build protected cruiser for Russia, Is Russian ship of war
within treaty of 1832, for aiTest of deserters; The Major Reybold.
Ill Fed, 415, holding municipal corporation liable In admiralty for
collision caused by servants* negligence In operating corporation's
vessel under its orders; New York, etc., Ry, Co. v. Piscataqna Nav.
Co., 108 Fed. 04p holding seagoing vessels may maintain suit in
admiralty' against owner of drawbridge over navigable water for
obstructing channel

Distinguished in Faust v. City of Cleveland, 121 Fed. 814, hold-
ing mynicipal corporation not liiLble for injury to vessel from ob-
struction in navigable stream, where duty of supervision not im-
posed by statnte; Powers v. Muss. Homceopathic Hospital, 109 Fed.
207. holding patient in public hospital chartered as cbiintable cor-
poration cannot recover for negligence of nurse selected wUh due
care,

179 U. 8. 591-^97. Not cited.

179 U. S. 598-601, 45 L, 335. ARKANSAS V. SCHLIERHOLZ.

Record must show that constitutional question was presented
to court below, p, 601,

Approved In Richards v. Michigan Cent. R. R. Co., 186 U. S. 479,
€6 L, 1259, 22 Sup. Ct. 942, reaffirming rule.

IT9 U. S. 602-606. Not cited.

179 U. S. 006-^621, 45 L. 339, KENADAY v. SINNOTT.

Orphan*s Court of Maryland exercisea testamentary Jurisdiction
under act 1898, p. 615.

Approved lii Sherman v. American Congregational Assn., 113 Fed,
€13, holding Federal court has jurisdiction to construe will where
It does not appear that State Probate Court construed will an
equity side.

Court will follow testator*8 intent and construe to prevent partial
intestacy If possible, p. 610.

Approved In Young Women*8 Christian Home v. French, 187 U.
S* 411. 23 Sup. Ct. 186, 47 L. 237, holding where testator's will gave
to charity on her death If she survived husbatMl and son, charity
takes where wife and son survived husband and died in common
dlsaater.

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1T9 U, S. G58-665

erideDce as whole Is not Biifflelent to sustain verdict for plaintiff;
Boudrot V. Cochrane CUeraical Co., 110 Fed. 922, holding Circuit
k Court has power to direct verdict, even where each party offers
direct testimony coveritig entire case; Shoemaker v. Bryant Lumber*
etc., Co., 27 Wash. 6-14, 68 Pac. 382, holding where plaintiff was
Injured by falling of block of wood from broken lug on conveyor,
on showing that proper lug would have prevented accident plaintiff
may recover; dissei^tlng opinion In Judd v. New York, etc., SS, Co.,
117 Fed. 215, majority holding question of company's negligence In
storing wool in shed adjoining dock, and adjoining shed fllled with
jute» where fire protection poor. Is for jury.
Cases are not to be lightly taken from the Jury, p. 6G0.
Approved in Snpreme Lodge, K. of P. v. Beck, 181 U» S, 52, 45
L. 745, 21 Sup. Ct, 533, holding refusal to direct verdict for defend-
ant on life Insurance policy on ground of suicide no cause tor re-
versal where suicide not clearly shown; Wabash Screen Door Co.
V. Black, 126 Fed. 725, holding proof that wooden pulley broke,
flying In all directions, and that deceased working in room was
found dead with skull crushed, warranted submission to jury;
Fidelity, etc., Co. v. Love, 111 B^ed. 776, holding refusal to direct
verdict for Insurer on ground of insnred*s suicide, where evidence
ahowed deceased shot himself, but not whether accidentally or In-
teatloually; dissenting opinion In King y, Morgan, 109 Fed* 454,
lioldjng experienced miner injured from e:splo8lon while tamping
lilast cannot recover on ground that the tamping bar of pipe
ilugged with wood was dangerous.
Where step was tightly secured and Inspected at beginning of
trip company performs duty. p. 661.

I Approved In Glenmont Lumber Co. v, Roy, 126 Fed. 528, hold-
ing master's duty discharged by furnishing sawmill reasonably
mate, for use of employees.

The mere fact of accident carries no presumption of employer's
fcicgligence, p. G63.

L Approved in Mountain Copper Co. v. Van Buren, 123 Fed. 62,
oldlng fact that mine caved in causing decedenrs death carries no
t>resumptive nefrligence, burden of proving same rests on plaintiff;
^lexlcan Cent. Ry. Co. v. Townsend, 114 Fed, 741, holding question
t.^f company's negligence In suit by brakeman for Injury occasioned
kyy breaking of running-board on ear on ground of noniuspectlon Is
ror Jury; Brady v. Western Union Tel. Co., 113 Fed. 910, holding
kxia^ter^s liability for negligence of Incompetent servant not shown
\^y proof of incompetency and of injury caused either by negligence
Of Incompetent or of another servant; Duntley v. Inman, 42 Or.
341, 70 Pac. 530^ holding mere proof of death of employee from
breaking of pulley at machine oi>erated by hSm does not establish
lnaster*s negligence; Hansen v. Seattle L. Co., 31 Wash. 608. 72

179 U. S. 665-678 Notes on U. S. Reports.

Pac. 459, holding employee does not prove case hj showing injarj
while using drcnlar saw and showing causes which might liave
resulted in injury-
Distinguished in 0'Ck>nneU t. Pennsylyania Ck>., 118 Fed. 993,
holding where employee sues for injury from defectire car-step
and step is found defective though not identified conclustvely he-
cause car switched upon one of two tracks, submission to Jury war-
ranted; Bradford Glycerine Co. v. Kizer, 113 Fed. 897. holding negli-
gence in manufacture of nitroglycerine presumed from explosion
where no other explanation given.

179 U. S. 665-678. 45 L, 365, ELGIN NAT. WATCH CO. T. IL-
LINOIS WATCH CASE CO.

Name of district or country cannot be subject of tradename for-^
well-known comm»t;ial article, p. 673.

Ai^roved in Chickering v. Chickering ft Sons, 120 Fed. 73, hoM

ing Chickling and Son entitled to preliminary injunction agains's^K
** Chickering Bros " to prevent use of name on pianos so as to con
fuse public; Computing Scale Co. v. SUndard, etc, Co., 118 Fed — .
967, holding term ** computing " not proper subject for teclmictw i
tradename for scales; Draper v. Skerritt, 116 Fed. 208, holding ten^mm
*' French Tissue ^ not proper subject for exdusive tradename.

Where geographical name has acquired secondary signiflcanc e

use will be protected, p. 674.

Approved in French Republic v. Saratoga Vichy Co., 191 U. ^^S.
435, 24 Sup. Ct 146, affirming 107 Fed. 46t which holds use of nan: — -we
** Vichy " in connection with Saratoga vichy water may be enjoine mmi:
Faber v. Faber, 124 Fed. 611. holding plainUffs entiUed to enjo^ 5o
defendant from using latter's name ** Faber" in connection wk, -^A
pens without adding first name ** Ebertiard ** or ** B." to distingn&.^li
from ''A. W. Faberr Sterling Remedy Co. v. Sperling Medical Cr<jL,
112 Fed. 1003. holding manufacturer of "Candy Cathartic Oa^f-
carets** entitled to enjoin use by defendant of imitation ^Cum^
Cathartic Castorets:** dissenting opinion in Shaver v. Heller, etc
Co., lOS Fed. S3S, majority holding use of name ^'American " lo cao-
nection with wash or ball blue will be enjoined.

Distinguished in Vacuum Oil Co. v. Climax Refining Co., 120 Fed.
246, holding evidence did not sustain charge of unfair competitJoa
where defendant used symbol " 600 V " to indicate quality of oil
but used barrels differently labeled and painted; Searle, etc. Ca ''.
Warner. 112 Fed. 6TG, holding manufacturer of substance and niDe
• Panoreopepsine '' cannot enjoin use of word ** Pancro- Pepsin ** (^
substance composeti of pancreatin and pepsin.

Circumstances must show wrongful intent in fact or Justify to
ference of intent to infr.njre alleged trademark which has codj
to denote particular vendor, p. 674.

Approved In Ohio BAk-r.s: Co. v. National Biscuit Co.. 127 F

1173

Notes on U. S, Reports. 179 U. S. G81-686

121» holding biscuit cartons similarly iabelel save for substitution
of " Factory Seal " for '* In*er-Seal/' and containing afime red
seal. Infringed plaintilTB product

Name eaimot be need in generic significance to delude public.
p. 675.

Approved In Computing Scale Co. v* Standard^ etc., Co., 118 Fed.
967. boldlng tliough term " computing " witli reference to scalea
cannot form exclusive trademark If it acquires secondary meaning
It will be protected; Draper v. Skerrett, llfi Fed. 207, 2fJ8. 200,
holding plaintiff entitled to enjoin defendant from using labels for
French Tissue subHtanilally similar to those of plaintiff though
having right to sell in limited territory only: Peck Bros.» etc, Co. v.
Feck Bros, Co., 113 Fed. 298. holding *' Peck Brothers and Com-
paoy " entitled to enjoin use of name by new company organised
under name of ** Peck Brothers Co." where It contained no Peck
Brothers; Shaver v. Heller- etc., Co., 108 Fed. S;U. 832, holding use
of term **American " in connection with wash or ball blue will
be enjoined; Watkins Medical Co. v. Sands, 83 Minn, .^30, 80 N. W.
341, holding words '' Vegetable Anodyne Liniment " cannot be
utilized as trademark; Barrett Chem. Co. v. Stern, 176 N. Y. 30, G8
N. E. 66. holding plaintiff can have no technical tradename in
word ** Roachsault/* designating poison for exterminating roaches.
See notes, 85 Am. St. Kep. 84. 85, 111.

179 IT. S. 081, 45 L. 384, BALTIMORE, C. & A. RY. CO. v. MAYOR,
ETC., OCEAN CITY.

Writ of error dismissed for want of jurisdiction, p. 681.

Cited In Harklns v; City of Aahville, ISO U. S. 635, 45 L. 709, 21
Sup. Ct 922, reaffirming rule.

179 U. S. 682, 45 L. 384. REED v. STANLEY.

Petition for writ of certiorari denied, p. 682.

Cited in Hendryx v, Perkine, 114 Fed. 804, holding right to file
hil! of review for error in law must be filed within time allowed for
appeal.

179 U. S. G82, 45 L, 3S4. WOODWORTH v, NUTB.

Petition for writ of certiorari denied, p. C82.

Cited in Cuddy v. Cl«/ment 113 Fed. 455, holding no lien from
labor or services implied hy maritime law.

179 U. S. 68*J. 45 L. 386, RICHARDS v. MICHIGAN CENT. R, R.
CO.

Petition for writ of certiorari denied, p. <>86.

Cited in Richards v. Michliiaa Cent. R. R. Co., 186 U, S. 479,
4C L. 125D, 22 Sup. Ct. &42, dismissed for want of Jurisdiction,

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1175

Notes on TJ. S. Reports.

180 U. S. 28-58

180 U. S. 2S-41, 45 K 410, ILLINOIS CENT. R R. CO. v. ADAMS.

Claim made in good faith that State law ImpairB contract gives
Federal jurisdiction, p. ST.

Approved in ManJgault v, S. M. Ward, etc.» Co., 123 Fed. 711, 712,
holding claim in good faith that act of legislature under which
flefendanta purpose to build dam violates Federal Constitution atatea
federal cause where injury claimed reaches $2,000; Riverside, etc.,
Ry. Co. V. City of Riverside, 118 Fed. 740. 741, 743, holding claitii In
good faith of existence of contract and its impairment is aufflcleot
for Federal Juriadiction; People v. District Court, 29 Colo, 233, m
Pac. 253, holding in suit to restrain State hoard of assessors from
issessing railway and telegraph companleB question Is one of ju-
risdlctlon.

Admitted power to decide question is admission of court's juris-
llction, p. 35.

Approved in Interstate Building, etc., Assn. t. Edgefield Hotel
Do., 100 Fed. 692, holding amount claimed by complainant In good
faith determines amount in dispute.

L80 U. S. 41-49, 45 L. 415, YAZOO & MISSISSIPPI VALLEY R. R.
CO. V. AD.^IS.

Record must show that Federal question was presented l)elow
md considered, p. 48.

Approved in Home for Incurables v. New York, 187 U. S. 158,
S3 Sup, Ct 86. 47 L. 119, holding certificate of chief judge of State
:ourt stating presentation of Federal questions insufficient in ab-
jence of appearance thereof In record lo confer Federal Jurlsdictioa;
Jult & Ship Island R. R, Co. v. Hewes, 183 U, S. 69, 46 L. 88, 22
Sup. Ct 27, holding certificate of State chief justice may be re-
iorted to to sliow that Federal question appearing In record was
lassed on below where no opinion rendered; Mountain View M. M.
)o. v, McFadden, 180 U. S. 530. 45 L. 657, 21 Sup. Ct. 489, holding
federal court has no Jurisdiction on removal of suit wherein plaln-
ifTs complaint dlacloses merely that It is In support of adverse
Dining claim.
80 U. S. 49-58, ^ L. 419, QUEEN OF THE PAGIFIO.

Restrictions upon carrier's liability must be narrowly construed,
K 52.

Approved in Texas & P. R. R. Co. v. Relss, 183 U. S. C26. 40 I^
;C0, 22 Sup. CL 255, holding bill of lading carefully framed to
Imlt carrier's 11 ability most strictly construed against Itself; The
^'ew England, 110 Fed. 417, holding Ineffectual stipulation in ticlcet
ssued by English steamship company to American passenger tbat
Cngiish law should govern; Parker v. Railroad, 133 N. C. 342, 45
L E. 660, holding unenforceable for want of consideration stipuia-
lon in contract for shipment of perlflhable freight "subject to
lelay." See 88 Am. St Rep. 119, note.

180 U. S. 69-125 Notes on U. S. Reports. 1176

Reasonable stipulations requiring notices of losses to be giveL
haye been upheld, p. 54.

Approved in The Westminster, 127 Fed. 682, upholding stipulation
in bill of lading against liability where claim not made before re-
moval of goods; The Arctic Bird, 109 Fed. 175, holding common
carrier has right to require by contract that notice of loss be given
within certain reasonable time. See 88 Aul St R^. 114.

Carrier may restrict liability for loss by fire without his negli-
gence, p. 56.

Approved in Cunard SS. Co. v. Kelley, 115 Fed. 685, holding com-
mon-law liability of carrier may be limited by special contract as
to losses not due to negligence; Cau v. Texas, etc., Ry. Co., 113
Fed. 92, holding shipper bound by clause in bill of lading exempt-
ing carrier from liability for loss by fire where shipper charged
with notice. •

180 U. S. 59-71. Not cited.

180 U. S. 72-^1, 45 L. 432, THOMPSON T. LOS ANGELES FARM-
ING & MILLING CO.

The purpose of act Congress 1851 was to give repose to titles,
p. 77.

Approved in Barker v. Harvey, 181 U. S. 489, 45 L. 968, 21 Sap.
Ct G93, holding Mission Indians claiming right of permanent oc-
cupancy of lands in California are within act Congress 1851.

180 U. S. 81-87. Not cited.

180 U. S. 87-92. 45 L. 438, TURNER v. RICHARDSON.
Federal question must be raised in State court before judgm^i

p. 92.

Approved in Hughes v. Kepley, 191 U. S. 557, reaffirming mle.
180 U. S. 92-109. Not cited.
ISO U. S. 10^125, 45 L. 448, NEELY v. HENKEL.

Cuba is foreign territory, p. 119.

Approved in Downes v. Bidwell, 182 U. S. 343, 344. 45 L.
21 Sup. Ct. 808. 809. holding Porto Uico by treaty of cession
not become part of United States within commerce clause; I
States V. Assia, 118 Fed. 91(5, 918, holding Cuba, under the m
governor, was foreign territory and person committing offe
vessel registered in Cuban port not amenable to Federal la
senting opinion in De Lima v. Bidwell, 182 U. S. 205. 45 J
21 Sup. Ct 75G, majority boldiug Porto Rico was no long*
eign country " within commorce clause after treaty of cesf
claimed at Washington.

Distinguished in dissenting opiuiou in Downes v. Bidwe
S. 387. 45 L. 114r>. 21 Sup. Ct. 825. 820, majority hold?

1177

Notes on TT. B. Reportg.

ISO U. S. 126-167

Rico did not by treaty of cession become part of United Stateii
within the commerce clause,

180 U. S. 126-132, 45 L. 457, DOOLEY v. PEASK

In Illinois sale of personal property mnst he followed by change
of possess! on » p* 12t>.

Approved in In re Rodgers, 125 Fed, 177, boldlng invalid, noder
Illinois law, baokrupt^B hypothecation of warehouse receipts cov-
ering seeds where there was no sufficient sign to indicate transfer
of bankrupt's warehouse; Swedish, etc.* Nat* Bank v. First Nat
Bank. SD Minn, 115, t>4 N. W. 223. holdiug validity of receipts of
pledge of grain determined by law of State tu which grain is
stored.

DlBtingulahed Id In re George M. Hfll Co., 123 Fed. 868, holding
neither bankrupt nor roeeiver can claim acceptance of machine pur-
chased under contract whereby title was to pass when accepted
and paid for where payment refused until bankruptcy.

Court's findings of fact In trial without jury are conclusive on
review, p. 131.

Approved in Kruger v. Constable, 128 Fed. 1K>9, holding Circuit
Court of Appeals limited to review of exceptions to rulings in evi-
dence and on question of law where court found facts by stipulation.

180 U. S. 132-13S, 45 L. 400, LIVERPOOL & L., WTC, INS. CO. v.
KEARNEY.

Policy susceptible of two interpretations is construed most
strongly against Insurer, p. 138,

Approved la Royal Ins. Co. v. Martin, 192 IT. S. 162. 24 Sup. Ct.
2ril, holding provision of policy for proof that loss by fire did not
occur from riot waived by denial of all liability therein,

180 U. S, 139-167, 45 L, 463, HEWllT v. SCHULTZ.

(Iratitlng act of 1864 did not authorize withdrawal of indemnity
lands, p. 151.

Approved In Southern P. R. R. Co, v. Bell, 183 U, S, 679. 682, 685.
ri87. 080, 45 L. 38r», 387, 3S8, 389, 390, 22 Sup. Ct 233, 235. 230,
237, holding secretary of interior not authorized to withdraw from
settlement lands within Indemnity limits before selections of land
in lieu of place lands; Lock hart v. .Johnson, 181 U. S. 520, 45 L.
082, 21 Sup. Ct. (ifiO, holding land within claimed limits of Spanish
grant Is not withdrawn from entry because such situation Is in
dispute: Powers v. Slaght 180 D, S. 180. 184. 45 L. 482. 21 Sup. Ct
:i22, holdiug in conformity with practice of land department that
withdrawal order of lands within indemnity hmits was uu%var-
ranted by act 1800; Holmes v. United t>tates. 118 Fi^d. ms, hold-
ing bona fide settlement on unsurveyed public lands with intent
to complete proof on survey is *' valid settlement '* within procla-
mation December 20, 1892; Southern Pac. R. R. Co. v. United

180 U. S. 167-250 Notes on U. S. Reports. 1178

States, 109 Fed. 926, holding settler upon lands granted to railroad
entitled to same where evidence showed no definite location of
road; Oregon & C. R. R. Co. v. United States, 109 Fed. 515, hold-
ing, under land grant to Oregon and California railroad of 1866,
title to lands within indemnity limits remained in United States
and subject to entry until deficiency ascertained and indemnity
lands selected and selection approved.

Until valid selection is made from indemnity lands they remain
open to settlement, p. 152.

Approved in Clark v. Herrlngton, 186 U. 8. 209, 46 L. 1130, 22
Sup. Ct 874, holding approval of railway selection of land in in-
demnity limits cannot vest title where Congress baa provided that.
such lands are open only to homestead entry.

In case of ambiguity judicial department will follow construe —
tion of department charged with executing statute, p. 157.

Approved in Oregon, etc., R. R. v. United States, 189 U. 8. IIO,^
23 Sup. Ct 618, 47 L. 730, holding secretary of interior not au. —
thorized upon acceptance of map of definite location to withdrav^B*
indemnity lands from operation of settlement laws; dissentin^^
opinion in Nelson v. Northern Pac. Ry. Co., 188 U. 8. 139, 23 Sufz^.
Ct 313, 314, 315, 316, 317, 47 L. 419, majority holding bona fiA«
settler upon indemnity lands after order of withdrawal, bnt b^s^
fore definite location, entitled to complete settlement.

Miscellaneous. Cited in Fairbank v. United States, 181 U. 8
308, 45 L. 873, 21 Sup. Ct 658, holding practical construction ^t
Constitution by legislative action is of no force except in case of
doubt.

180 U. S. 167-185. Not cited.

180 U. S. 185-199. 45 L. 485, NEW ORLEANS v. FISHER

Interest on nonpayment of school taxes runs from failure to paj
when required, p. 198.

Approved in Board of Liquidation v. United States, 106 Fed.
985, allowing interest in accordance with mandate of principal cate.

180 U. S. 199-207. 45 L. 493. NEW ORLEANS v. WARNER.

After merits of case have been considered new defense canoot
be set up, p. 203.

Approved in Murphy v. Utter, 186 U. S. 99, 46 L. 1074. 22 Sop.
Ct 777, holding where case was argued on demurrer which was
accompanied with plea of res judicata adjudged untenable new
defense should not be allowed without leave of court
180 U. S. 208-250, 45 L. 497, MISSOURI v. ILLINOIS & CHICAGO
DISTRICT.

Jurisdiction of Federal courts attach whenever one State vsiM
choose to make complaint against another, p. 239.

Approved in State v. Frost. 113 Wis. 654. 656. 89 N. W. 922, 923.

1119

Notes on U. S. Reports.

ISO U, S. 250-295

holding Clrcoit Courts laave original jurisdiction of Information
In equity on behalf of State to restrain Federal receiver from de-
stroying railroad.

Federal jurisdiction exerciseil in cases directly affecting prop-
erty rights of State, p. 240.

Approver! in Soutla DaJkota v. North Carolina, 192 U. S. 314, 318* 24
Sup. Ct. 274, 276. holding Supreme Courl: has jurisdiction over fore-
closure suit by South Dakota as donee of bonds issued by North
Carolina and secured by railroad mortgage; Kansas v. Colorado, 185
U, S. 140, 141, 4a L. 844, 22 Sup, Ct 557, holding controversy between
States within original jurisdiction of Supreme Court shown by bill
by Kansas questioning right of Colorado to obstruct flow of Ar-
Itansas river.

Federal court will not exercise Jurisdiction to enforce penai laws
of State against nonresident, p. 240.

Distinguished in McCreary v. First National Banlc, 109 Tenn.
i:i8» 70 S. W. S23, holding Chancery Court has jurisdiction of suit
against national hautk to recover penalty under Rev. Stat., § 5197,
for charging usurious interest

Acquiescence by Missouri in proceedings of sanitary district in
carrying out sewer system no bar to relief against pollution of
waters by sewerage through drainage canal, pp. 245-247.

Approved in Wincheil v. City of WaiiUesha, 110 Wis. 110» 85 N. W.
070, holding plaintiff entitled to injunction restraining defendant
city from using stream for sewage without first deodorizing sewage.
See notes, 84 Am. St Rep. 915, 920.

180 U. S. 254>-276. Not cited.

ISO U. S. 276'2&4, 45 L. 527. LAMPASAS v. BELL,

City cannot complain tbat in habitants of district annexed on re-
incorporation had no opportunity to be heard, p. 283.

Approved in Anglo-American Prov. Co. v. Davis, etc., Co. (No. 2),
191 U. S. 378, 24 Sup. Ct. 94, holding defeated party not enUtled to
direct appeal to Snpreme Court when Federal qaestion set up below
was decided in his favor; Smith v. Indiana, 191 U. S. 148, 24 Sup. Ct
52. holding county auditor cannot maintain writ of error to decision
requiring deduction of mortgage from assessed value of realty;
Red River Valley Nat. Bank v. Craig, 181 U. S. 558. 45 L. 1000. 21
Sup, Ct 707, holding one who cannot be Injured by statute giving
additional rights to mechanic's lienor cannot complain thereof.

180 U. S, 2S4^296, 45 L. 531, HOLLY v. MISSIONARY SOCIETY,
ETC,

Court of equity will not transfer loss from one Innocent party to
another, p. 295.

Approved in Hallett ?, Fish, 123 Fed. 202, holding where plaintiff

^

180 U. S. 286-355 Notes on U. S. Reports. 1180

furnished securities to insolvent bank whose condition was con-
cealed and paid same may recover from receiver funds coming into
his hands, subject to intervening rights; Crocl£er-Wool worth Banlt
V. Nevada Bank, 139 Cal. 571, 73 Pac. 458, holding where " raised
check" is deposited with bank for collection and is restrictively
indorsed drawee cannot hold bank after collection and payment

180 U. S. 295-310, 45 L. 536, ROBINSON v. SOUTHERN NAT.
BANK.

Pledgee of stock entering same in own name is not liable u
owner, pp. 309, 310.

Approved in Rankin v. Fidelity Trust Co., 189 U. S. 249, 23 Sop.
Ct 556, 47 L. 795, holding pledgee of national bank stock not liable
as stockholder unless estopped by representation to deny pledge;
Brunswick Terminal Co. v. National Bank of Baltimore, 112 Fed
816, holding where one In whose name stock stood for short time
reconveyed same to owner before indebtedness in question arose
former cannot be held.

180 U. S. 311-313, 45 L. 542, McDONALD v. MASSACHUSETTa

Writ of error was sued out from Federal Supreme Court to Su-
perior Court, p. 312.

Approved In Rothschild v. Knight, 184 U. S. 339, 46 L. 579, 22 Sap.
Ct. 393, holding Superior Court is proper court to which writ of
error from Federal Supreme Court should issue where State Supreme
Court has affirmed Judgment sending back rescript.

180 U. S. 314-332. Not cited.

180 U. S. 333-342, 45 L. 557, BLYTHE v. HINCKLEY.

Writ of error will be dismissed where taken only for delay, p. 33.*<.

Approved In Equitable Life Assur. Society v. Brown. 187 U. S.
311, 315, 23 Sup. Ct. 124, 47 L. 192, 193. holding writ of error to
Hawaiian Supreme Court will be dismissed instead of judgment
atfirmed where all questions have been definitely settled agreebly
to Supreme Court.

ISO U. S. 343-355, 45 L. 563, UNITED STATES v. BEEBE.

Fraud which does not prevent full presentation of case Is unavail-
ing, p. 309.

Approved in Bailey v. Willeford, 126 Fed. 807, holding where de-
fendant elects to litigate charge In State courts he cannot obtain
Federal review on allegation that complaining witnesses* testimoo.v
was perjured.

Laches of government officers cannot be set up against govern-
ment's claim, p. 354.

Approved in United States v. Michigan, 190 U. S. 405. 23 Sop. Ct
751, 47 L. 1113, holding laches no defense in suit by United States

1181 Natea on U. S, R<?ports. ISU U. S. :i5ii-^T'J

against Michigan for accounting for surplus proceeds from public
land sales above cost of ship canal.

180 U, 8* 356^62, 45 L. 570. BIRD v. UNITED STATES.

Testimony as to defendant's conduct towiird deceased over momh
l>efore murder is Inadmissible, p* 3m.

See 89 Am. St Rep. 6dT, note.

Instructions omitting defendant's view of necessity of killing
are erroneous, p. 361.

Approved in United States v. Lewis, 111 Fed. 035, holding neces-
sity of killing in self-defense must be " apparently imminent.'*

Miscellaneous. Cited in Bird v. United States, 1S7 U. S. 120, 23
Sup. Ct 43, 47 L. 101, reciting history of migation.

180 U, S. 302-370, 45 L. 574, GARDNEK v. B0NE8TELL.

Determination of land department within its jurisdiction is con-
cluslve^ p. 369.

Approved in Gertgens v. O'Connor, 191 U. S, 240, 24 Sup. Ct. 96.
holding patent of land department Issued after contt^st conveys
legal liOe; De Cam bra v. Rogers, ISO U. S. 122. 23 Sup. Ct. 521, 47
L, 735, holding decisions of land department on questions of facts
are conclusive In the courts; Edwards v, Begoie. 121 Fed. 8, hold-
ing land depart men ra tinding of fact that contesting homesteail
settler did not become actual occupant until certain date is con-
clusive upon the courts.

Distinguished in School of Magnetic Healing v« McAnnulty. 1S7
U. S. lOS, 23 Sup, Ct 39, 47 L. 96, holding postmaster-geueral has no
power to refuse delivery of letiers to magnetic healing society under
Eev. Stat, S 3929, against fraudulent use of malls.

Supreme Court does not review State eonrt'e findings of facts,
p. S70.

Approved In Thayer v, Spratt. 189 U. S. 353, 23 Sup. Ct 579, 47
L, 849, holding evidence on which flndiogs of fact in State court
rest cannot be reviewed on writ of error; Western Union Tel. Co. v.
Call Publishing Co., 181 U, S, 104, 45 L. 771, 21 Sup. Ct 5G5. holding
questions of fact decided In State court not subject to review in
Supreme Court

180 U. S, 371-579, 45 L. 577, RICE v. AMES.

Section 1014, Rev. Stat, timits Circuit Court commissioner's au-
thority to crimes against the United States, p. 377.

Approved in Wright v. Henkel. 190 U. S. 62, 23 Sup. Ct 786, 47 U
956, holding section 1015, Rev. Stat., providing for baE In criminal
cases appljea only to crimes against United States,

180 U. S. 379^^1 Notes on U. S. Reports. 1182

180 U. S. 379-383, 45 L. 683, WHELESS v. ST. LOUIS.

Distinct demands of parties whose interests are distinct cannot
be Joined for Jurisdictional amount, p. 382.

Approved in Brown v. Denver, 186 U. S. 480, 46 L. 1259, 22 Sup.
Gt 943, reaffirming rule; Washington Co. v. Wiliams, 111 Fed. 813,
holding separate bondholders cannot unite In equity to establish
validity of bonds, each having an adequate legal remedy.

Distinguished in Jones v. Mutual Fidelity Co., 123 Fed. 511, hold-
ing under 19 Laws Del., chap. 181, Jurisdictional amount exists where
assets of insolvent corporation proceeded against thereunder exceed
$2,000 regardless of Individual claims; dissenting opinion in Wash-
ington Co. V. Williams, 111 Fed. 814, majority holding separate
bondholders cannot unite in equity to determine validity of bondi,
each having adequate legal remedy.

. 180 U. S. 383-401, 45 L. 586, HOBBS v. BEACH.

Adopting Dennis and Terk type of addressing machine to work
of Beach device, for attaching strap to boxcorners, involved inven-
tion, p. 392.

Approved in Boyer v. Keller Tool Co., 127 Fed. 138, holding
patentable Boyer patent No. 537,629, for pneumatic tool usefully
combining old elements; Lowrie v. H. A. .Meldrum Co., 124 Fed. 762,
holding patentable Steel patent No. 652,407, garment fastener to
give waist an elongated appearance in front; Peters v. UdIoo
Biscuit Co., 120 Fed. 685, holding patentable Peters patent No. 621.-
974, for method of packing crackers in ordinary collapsible, lDte^
locking carton; Camiotti Unhairlng Co. v. American, etc.. Machine
Co., 115 Fed. 502, holding patentable Sutton patent No. 383,258, for
unhairing machine, the main feature being brush operated with
rotary motion; George Frost Co. v. Cohn, 112 Fed. 1012, holding
patentable Gorton patent No. 552,470, for hose supporter with button
made of rubber; Hallock v. Davison, 107 Fed. 480, holding patentable
Hallock patent No. 600,782, for weeding machine with distinctivel/
new tooth with lateral stiffness and forward flexibility.

Reissue sought in good faith to secure invention, not injurlnf
others, is allowable, p. 394.

Approved in Diamond Drill & Mach. Co. v. Kelly Bros., 120 Fed.
292. holding valid but not infringed Jackson patent No. 482,965, for
machine for making and inserting wire coil fastenings in bolts:
Western Electrical Instrument Co. v. Stevens, 119 Fed. 185. uphold-
ing Western reissue patent No. 433,637, for electrical measuring
instrument.

Court will review action of patent commissioner for accident or
mistake appearing on record, p. 395.

Approved in Westinghouse, etc., Mfg. Co. v. Stanley, etc., Mfg.
Co., 115 Fed. 813, holding court has power to review commissioner'!

11S3

Notes on U. S. ReportB.

180 U. S. 402-451

action In grunting relssne for system of electrical distribution where
law ft u thorites no eueli reissue.

Courtis regard with disfavor attempt to enJarge scope of patent*
once granted, p. :]96.

Approved in American Bell Tel. Co. v. National TeL Mfg. Co..
10§ Fed, 11)05, hoidiag patentee disclaiming speech transmitting
nature of inveation cannot amend application to include such
feature.

Patent does not expire by Rev, Stat. § 48S7, when foreign patetit
ends UDlesi latter obtained with patentee's consent, p. 397.

Distinguished in John li. Williams Co. v. Miller, etc., Co., 113*
Fed. 52tj, holding patent expires when foreign patent ends under
Rev. Stat., § 4SS7. where applicant assigned right before pateut and
patented in foreign country before patent obtained here.

Words " substantially as described " In patent application do not
limit to exact structure outlined, p. 400,

Approved In Kirchberger \\ American, etc.* Burner Co.» 123 Fed.
601, holding where original specilieations sufflclentiy show claims
finally made* same may be amended to secure whole benetit of in-
vention; General Electric Co. v. International Specialty Co., 12G
Fed. 758, holding words In claim " to operate substantially as de-
scribed" do not limit claim by Introducing elements described in
gpeclications.

Distinguished in Otis Kiev. Co. v. Portland Co., 127 Fed. 5G:i
holding void Kassett patent No. 453.^55, for elevator controlling
machine since by liberal construction claimed original patent would
cover reissue.

180 U. S. 402-440, 45 L. 596, GOVERNOR MITCHELL, ETC., OF

FLORIDA V. FORM AN.

Act 1828 contlrming Mexican land grants applied to all claims
perfect and imperfect, p. 438,

Approved in Barker v. Harvey* 181 U. 8. 489, 45 L. t)BT, 21 Sup.
Ct* tJy3, holding Mission Indians claiming right to permanent occu-
pancy of land must present cialm to commissioners within two
years under section 13, act ISol; Ashley Co. v. Bradford, 100 La.
053» 33 So. 639» upbolding article 233, La, Const,, requiring eon-
tract of tax titles to be brought within three years.

180 U. S. 440^51, 45 L. 613, JOHKS v, WILSON.

Where owner of equity Is omitted by mistaket mortgagee la
entitled to second foreclosure, p. 450.

Approved in London, etc., Bank r. Horton» 12G Fed. 607, holding
mortgagee has right to second foreclosure wbere grantee of mort-
gagor was not made a party.

180 U. S. 452-495 Notes on U. S. Reports. 1184

Miscellaneous Cited in Hudson v. Wood, 119 Fed. 771, holding
Rev. Stat., § 916, does not extend to remedies or Judgments In equity
»uuder State statutes.

180 U. S. 452-470, 45 L. 619, W. W. CARGILL CO. v. MINNESOTA.

Supreme Court follows State courts' interpretation of State
statute, p. 466.

Approved in Pabst Brewing Co v. Crenshaw, 120 Fed. 147, uphold-
ing Mo. act 1899, for license tax on beer and malt liquors construed
to be Inapplicable to beer manufactured outside State.

State law licensing elevators situated on railroad right of way is
valid, p. 468.

Approved in Peacock v. Pratt, 121 Fed. 777, upholding Hawaiian
income tax law of 1901, allowing person or family $1,000 exempt
therefrom.

Distinguished in dissenting opinion in Fidelity Mut. Life Assn. t.
Mettler, 185 U. S. 333, 336, 46 L. 935, 936, 22 Sup. Ct. 672. 673.
majority upholding Texas statute imposing on life insurance com-
panies 12 per cent, damages and attorney's fees for nonpayment of
loss within time limit.

180 U. S. 471-483, 45 L. 627, MITCHELL v. FIRST NAT. BANK.

Judgment in State court denying bank's claim against insolTent
bars Federal suit, p. 480.

Approved in United States v. Eisenbeis, 112 Fed. 196, holding
State court's Judgment offered in evidence in Federal court cannot
be questioned for errors not affecting the Jurisdiction; Gorham t.
Broad Uiver Tp., 109 Fed. 776, holding Judgment of State Supreme
Court establishing invalidity of bonds binds purchaser of bonds lo
privity with former owner as to such Judgment

Distinguished in Gilbert v. American Surety Co., 121 Fed. 501
liolding question ruled by appellate court not res adjudicata be-
tween parties where trial court dismisses for want of prosecution.

180 U. S. 484, 485. Not cited.

180 U. S. 48G-495, 45 L. G34, LI SING v. UNITED STATES.

Spction 12 of unratified treaty with China of 1888 is not biDdinjf
ou courts, p. 490.

Approved in Fok Young Yo v. United States. 185 U. S. 299, 302.
4G L. 1)19. 22 Sup. Ct. 687, 689, holding last clause of section 8 of
act 1888 giving secretary of treasury power to regulate rights of
transit of Chinese under treaty of 1888 became inoperative since
treaty was never ratified; In re Lee Gon Yung, 111 Fed. 1000. bol»l-
iiii; portions of act 1888 dependent upon ratification of treaty of that
year never became operative

1185

Notes on tJ. S. Reports.

laO tr. S. 4^6^533

Under act lSf»3, Chinese seeking entrance aa merchant must show
he was not engaged In mannal labor, p. 402,

Approved In United States v. Hung Chang. 126 Fed. 404. holding
deportutinn proceed in ga to extent of determining whether person
i^bat'jjed in Chinese citizen are criminal.

Proceedings hefore United States judge under exclusion not a trial
for offense, p, 494,

Approved in In re Ah Tai. 125 Fed. 706, holding proceeding before
Federal Judge for deportation of Chinese Is not criminal but Judge
may admit to bail pending appeal.

Judicial dei>art men t cannot properly express opinion upon wisdom
of congressional measures, p. 41)5.

Approved in United States v. Wong Chow, 108 Fed. 3T8. holding
court has no Jurisdiction on habeas corpus to review legality of
immigration officer*! order for deportation of Chinese under 28 Stat.
:il*0.

Miscellaneous. Cited In In re Chin Ark Wing, 115 Fed. 413, hold-
ing Federal Judge has Jurisdiction as on agreed statement of facts
where Chinese alien appeals from commissioner's order without ob-
jecting to findings,

180 U. S. 4DG-4D8. Not cited.

180 U. S. 499-505. 45 L. CvSO. MINNESOTA V. BRUNDAGE.

Federti! court Interferes by habeas corpus only In cases of urgency,
pp, ^ri, 503.

Approved in Moss v. Glenn, 189 U. S. 506, 23 Sup. Ct 851, 47
L, 021. and Tsitkamoto v. Lackmanm 18T U. S. 635, 23 Sup. Ct. 842.
47 L. 343. both reaffirming rule; Held v. Jones, 187 U, S, 154, 23 Sup.
Ct. 00, 4T L. 117. holding Federal court will not grant haheas corpus
to [lerson convicted by State court on grtJimd of violation of Federal
Constitution until review in Stale courts; Sortl v. Massachusetts,
1S3 U. S. 141. 4*j L. 124. 22 Sup. Ct, 73, holding Federal courts will
seldom permit writ of iialicas to he suljstituted for writ of error,
aflirmiiig in re Sorti, 109 Fed. SOT, 808; In re Stone, 120 Fed. 101,
refusing writ of luibeas corpus to petitioner convicted of peddling
without license, leaving him to remedy in State court; Ex parte
Ueariek. 118 Fed. 031, diselinrging writ of halH?as corpus to release
agent of nonresident coriwration arrested for violating license
ordinanee alleged to regulate interstate commerce. See 87 Am. St.
Hep. 202. note.

180 U. S, 506-533, 45 L. 642, WILKES COUNTY v. COI.EH.

Entering of yoas and nays on second and tliird readings of act,
U'lder N, C. Const, art. 2, $ 14, was condition precedent, p. ijlT,
Approved In Dehaam v, Chitty. 131 N. C. 683, 43 S, E, 11, hold
Vol. Ill -75

180 U. S. 533-536 Notes on U. S. Reports. 1188

ing Inyalld statute authorizing county bond issue where Joomtl
did not show that no members voted nay, nor recorded such vote.

Federal court follows State court's ruling as to whether act was
so passed as to become law, p. 524.

Approved in Stanley County v. Cooler, 190 U. S. 442, 23 Sop.
Ct 813, 47 L. 1131, affirming Board of Ck)mrs. of Stanley Ckx v.
CJoler, 113 Fed. 706, 707, 708, 714, 715, holding State decision cod-
struing a valid statute, and holding invalid county bonds issued
thereunder, is not binding on Federal courts.

Power of municipal corporation to issue bonds governed by de-
cisions of State court when bonds issued, p. ^1.

Approved in Wilkes County v. Coler, 190 U. S. 108, 109, 111, 23
Sup. Ct. 738, 47 L. 972, 973, affirming Board of Comrs. of Wilkei
Co. V. Coler, 113 Fed. 727, 728, 732, 733, holding ordinance of N.
C, March 9, 1868, chartering railroad and authorizing county
bonds, authorized county into which road was subsequentiy ex-
tended to issue bonds; Board of Comrs. v. Travelers* Ins. Co., 128
Fed. 819, 821, 823, holding Federal court will not declare invalid
bonds issued under statute held valid by State courts when bondf
issued, though State holding subsequently reversed; Board of
Comrs. V. Gardiner Sav. Inst, 119 Fed. 47, holding valid bonds
issued, under 89 Ohio Laws, S 66, authorizing counties containing
cities of first grade of second class to issue improvement bonds
assessing cost on abutting property.

Miscellaneous. Cited in Board of Comrs. of Wilkes County t.
Coler. 109 Fed. 1057, certifying questions of principal case.

180 U. S. 533-536, 45 L. 656, MOUNTAIN VIEW MINING, ETC^
CO. V. McFADDEN. .

State legislation as Judicially known to courts cannot be im-
ported into record in order to give Federal court Jurisdiction, pp. 535,
53G.

Approved in Indiana Power Co. v. St Joseph, etc., Co.. 187 U.
S. 03G, 23 Sup. Ct. 842, 47 L. 343, reaffirming rule; Bankers', etc..
Co. V. Minnesota, etc., Ry., 192 U. S. 383, 24 Sup. Ct. 329, holding
suit against railroad company to recover for loss of mail packa^
does not arise under Federal law so as to warrant review of Cir-
cuit Court of Appeals* decision; Mutual Life Ins. Co. v. McGrew,
188 U. S. 309, 312, 23 Sup. Ct. 379, 380, 47 L. 485. 486. holding ques-
tion of full faith denied to Hawaiian Judgment cannot be rai9e<i
in Supreme Court where not presented to State court; Arkansas
V. Kansas & T. Coal Co., 183 U. S. 190, 46 L. 147. 22 Sup. Ct 49,
holding Circuit Court cannot take Judicial notice in petition to
remove suit to prevent importation of armed men into strike re-
gion, that such men must be brought through another State; State
of Washington v. Island Lime Co.. 117 Fed. 777, 778» 779, holding

1187

Notes on U. S. Reports.

180 U. S. 53CMJ18

^u^t^movable suit by State to recover land and value of limes tone
quarrier tbereon where no facts are alleged nor claim made show-
ing such to be mineral land; State of Soutli Caroltua v. Virglala-
Carolina^ etc, Ck>., 117 Fed. 720. holding unremovable suit against
foreign corporation for penalty under State statute purporting to
be passed under police power.

180 U. S. 53(^551, 45 L. 657, IN HE McKENZIE.

Writ of habeas corpus cannot be availed of as writ of error,
p. 54a

Approved In In re Chow Loy, 110 Fed. 954, holding irregularities
in appeal, under Chinese exclusloa act ISSS, are reviewed by appeal
to Circuit Court of Appeals, not by habeas corpus.

Circuit Court of Appeals may grant supersedeas and punish con-
tempt in disobeying same, p. 550.

Approved in Anderson v. Comptols* 109 Fed. 975, 976, holding
where appeal has been regularly allowed by Circuit Court of Ap*
peals, citation issued and superseadea bond approved, appellate
court may punish for contempt

180 U. B. 0o2-5S7, 45 L. 6G3, THROCKMORTON v. HOLT.

Court's withdrawal of evidence from jury In general cures error,
p. 567,

Approved In Bullock v. State, 65 K J, L. 576, 86 Am. St Rep.
(jS3, 47 Atl. 62, holding erroneous admission of evidence cured by
subsequent witbdrawal; State v. Hill, 52 W. Va. 301, 43 S. E.
161. holding error, if any, In alloTvlng questions purged by subse-
quently ruling out such evidence.

Declarations and letters of testator whose will Is alleged a forgery
are not admissible, pp. 571, 579.

Approved In Matter of Kennedy, 167 N. Y* 176» 60 N. E. 446,
holding inadmissible declarations of alleged testatrix before death
as to testamentary disposition of property in lost will.

180 U, S, 587-618, 45 L. 679, FREEPORT WATER CO. V. FREE-
PORT CITY.

^lunlcipal corporations may be invested with power to bind
themselves by irrevocable rates, p. 593.

Approved in Detroit v. Detroit Citizens' Street R. R. Co.. 184
U. 8, S82, 40 L, one. 22 Sup. Ct 416, holding legislature may au-
tiinri35e municipal corporation to bind Itself by contract with str-i-et
railway company for lixing fares.

Power of regulation can be bargained aw^ay only by positive
prrant, p. 500*

Approved In Stanislaus Co. v. San .Toaquln. etc., Co., 102 D. S.
208, 24 Sup. Ct 244, boldlug section 3. Cat iJLat. 18G2, giving water

180 U. S. 61^-633 Notes on U. S. Reports. llSs

companies power to fix rates subject to regulation by supervisors
to certain minimum rate created no irreyocable power; Owensboro
V. Owensboro Water-Works Co., 191 U. S. 371, 24 Sup. Ct 87.
holding city empowered by Ky. Stat. 1899, S 3290, to regulatt*
water rates does not lose such right by ordinance giving company
right to make all needful rules; Rogers Park Water Co. v. Fergus.
180 U. S. 628, 46 L. 705, 21 Sup. Ct. 491, holding provision iq
ordinance granting use of streets for water purposes that granted
shall charge certain rates gives no contract right to charge sucb
rates during life of franchise; Danville Water Co. v. Danville.
180 U. S. 623, 45 L. 701, 21 Sup. Ct 507, holding ordinance grant-
ing right to construct water-works to supply city witli water con-
taining agreement of city to pay fixed hydrant rental creates oo
Irrevocable contract; People's Gaslight, etc., Co. v. City of Chicago.
114 Fed. 380, holding, under 111. Const. 1870, and laws city of Chi-
cago may regulate rates of gas company as to lines acquired by
consolidation subsequent to ordinance giving company power to
fix same; Chicago Union Traction Co. v. Chicago, 199 111. 540. 65
X. E. 4G8, holding railway corporation leasing street railway linen
having contracts with city allowing charging of unreducible fare
takes same subject to power of city to regulate; Knoxvllle v.
Knoxvllle Water Co., 107 Tenn. 678, 690, 64 S. W. 1083. 1086. 1087.
upholding Knoxville ordinance of 1901, reducing water rate fixetl
by prior ordinance.

Distinguished . in dissenting opinion in Rogers Park Water Co.
V. Fergus, 180 U. S. 631. 632. 45 L. 706. 21 Sup. Ct. 492, 403. ma-
jority holding no contract created by ordinance granting use of
streets for water purposes giving power to charge certain annu.il
rates; dissenting opinion in Danville Water Co. v. Dauvill«». 1*«j»
U. S. 623. 024. 45 L. 701, 21 Sup. Ct. 507. majority holding onll
nance provision for payment of certain annual hydrant rental d«M>s
n<^t create irrevocable contract.

180 U. S. G19-624, 45 L. 096, DANVILLE WATER CO. V. DAN
VILLE.

Adjudged in conformity with Freeport Water Company ▼. Fnv-
port, supra, p. 023.

Approved in Knoxville v. Knoxvllle Water Co., 107 Tenn. t»7\
64 S. W. 108.3, upholding Knoxville ordinance of 1001. rciinoin,'
water rates established by contracts enacted into prior ordin;mri*>

180 U. S. r,24-('»33. 45 L. 702, ROGERS PARK WATER CO. v
FERGUS.

Contracts concerning governmental functions must be strictly
construed, p. C28.

Approved in Owensboro v. Owensboro Water- Works Co., 1I>1 V
S. 371, 24 Sup. Ct. 87, holding city empowered by Ky. Stat, ivr"
i 3290, does not surrender sucn power by ordinance giving wat«:

1180

Notes on U. 45. Eleports.

180 U. S. 637-640

company power to make and enforce needful regulations ; Koox^
Tille v; Knoxville Water Co.. 107 Tenn, 678, 64 S. W. 1083, up-
holding Knoxville ordinance of 1901, reducing water rates preFiously
established by contracts enacted Into ordinances.

180 U, S. 637, 45 L, 710, OHIO RIVER RAILROAD CO. V. LOCK-
WOOD.

Petition for writ of certiorari denied, p. 637.

Cited lo Ubl v. Railroad Co.» 51 W. Va. 116, 41 S. E, S44, hold-
ing covenant in deed granting right of way» to execute deed of
fee, is construed in ligljt of granting clause and calls for no estate
greater than right of way,

180 U. S. 640, 45 L. 711, MUELLER v. NUGENT.

Petition for writ of certiorari grantedt p. 640.

Cited in Holden v. Stratton, 191 U. S. 119. 24 Sup. Ct. 47, hol(^
Ing certiorari is proper method of reviewing decision of Circuit
Court of Appeals in reviewing decision of Inferior court oa. petition
under bankruptcy act 18d8» | 240,

OLXXXI UNITED STATES.

181 U. S. 1-29, 45 L. 719, EAST TENNESSEE V. & G. RY. CO. v.
INTERSTATE COMMERCE COMMISSION.

Competition brings into play the dissimilarity of rates warrant-
ing lesser charge for long distance, p. 19.

Approved in Interstate Commerce Comm. v. Cincinnati. P. &
V. R. R. Co., 123 Fed. 628, holding lower rates to Norfolk and Vir-
ginia from Mississippi valley points than to Wilmington, N. C.
are Justified by the competition at former places due to being in
"trunk line territory;" Interstate Commerce Comm. v. Southern
Ry. Co., 122 Fed. 801, holding where rates to nearer point are rea-
sonable they do not violate interstate commerce act, though rates
are less to more distant point due to legitimate competition, affirming
117 Fed. 743.

Decree prohibiting greater charge for shorter haul does not show
rate unreasonable per se, p. 23.

Approved in Interstate Com. Comm. v. Louisville, etc., R. R, 190
U. S. 284, 23 Sup. Ct. 692, 47 L. 1056, holding greater rates to
nearer competitive point than to more distant competitive point not
obnoxious to interstate commerce act.

Where interstate commerce commission has erroneously failed to
find facts courts will not investigate independently, p. 27.

Approved in Interstate Commerce Com. v. Clyde Steamship Co.
181 U. S. 32, 33, 45 L. 731. 21 Sup. Ct. 513, 514, holding courts will
not investigate facts which commerce commission by error of law
failed to find but will dismiss without prejudice to new investiga-
tion by commission; dissenting opinion in Missoiiri Pacific Ry. ^^'o-
V. United States, 189 U. S. 288, 23 Sup. Ct. 510, 47 L. 816, majority
holding new remedies given by act 1903, for enforcement of act to
regulate commerce, require reversal of pending suit and remand
for further proceedings.

Law attributes prima facie effect to findings of fact made by
commission, p. 28.

Approved in Interstate Commerce Commission ▼. Southern Pac-
Co., 123 Fed. 603, 604, holding finding of commission that rule re-
serving right to carrier to route certain kind of traffic was unreasoo*
able and should cease was prima facie lawfuL

181 U. S. 29-33. Not cited.

[1190]

1101

Notes on U, S» Reports.

181US. 33-Tr

181 U, S, 33^5, 45 L. 731, LAMBARD v. WEST CHICAGO PARK

COMMISSIONERS.
Miscellaneous. Cited In Farrell v. West Chicago Park Commls-
slonerg, 181 U, S. 404, 45 L. 025. 21 Sup. Cte09» referring to principal
case for history of proceedings.

181 U. S. 45-49, Not cited.

181 D. S. 49^-50, 45 L. 741, PYTHIAS KNIGHTS* SUPREME:
LODGE V. BECK.

Trial court has right under certain conditions to direct verdict
p. 52,

Approved in Morse v, St. Paul Fire & ilarine Ins. Co., 124 Fed.
453. holding case will not he lightly taken from jury; Fidelity, etc,
Co. V. Love, 111 Fed. 777, holding proper refusal to direct verdict
for defendant where evidence showed that insured shot himself
but not whether such action was Intentional or accidental! dissent-
ing opinion In King v. Morgan, 109 Fed. 454, majority holding that
experienced miner assumed rmk incident to use of bar furnished
him for tamping of dynamite blasts.

Appellate court seldom reverses for refusal to direct verdict, p* 52.

Approved in Thomiisoii v. Southern Ry, Co., 113 Fed. 81, holding
where trial court deems evidence insufficient to sustain verdict for
plaintiff intimation of intention to direct for defendant Is not
improper.

Statements made in proof of death are aot estoppel, p. 50.

Approved la Hassencamp v. Mut Ben, Life ins. Co., 120 Fed.
479, holding proofs of death including verdict of suicide by coroner's
Jury are prima facie proof of fact but may be shown to be erro-
neous; Supreme Tent v. Stensiand, 20ti III 131, 6S N. E, 1100, holding
where beneficiary notified insurer before trial of inteniion to con-
trovert admission of suicide lu proofs of death, admission of such
testimony was proper: Sartell v. Royal Neighbors of America. 83
Minn. 373» 88 N. W. 0S7, holding where proofs of suicide are ex-
plained case should be given to Jur3\
181 U. S, 57-67, 45 L. 747, TEXAS, ETC., RY. CO* v. HUMBLE,

Loss of ability to make earnings outside household dntles is wife's
loss under Arkanf?a8 statutes, p. 67.

Approved In Hcaley v. Ballentine & Sons, 66. N. J, L. 351, 49 Ati
TiId, holding in action liy husband and wife for injuries to wife
evidence of loss of her private business was competent*
181 U. S. 68-72. Not cited.

181 U. S. 73-77, 45 L. 755. HANCOCK MUT. LIFE INS. CO. v.
WAHREN.

State prescribes purposes of corporation and means of executing
those purposes, p. 76.

Approved In Cable v. United States Life Ins. Co., 191 U. S. 3^>7,

181 U. S. 77-142 Notes on U. S. Reports. 1182

24 Sup. Ot 78, holding the fact that Federal law Is more favorable
to insurance companies than that administered in State courts does
not warrant Federal Jurisdiction to cancel policy; Fidelity Mut Life
Assn. V. Mettler, 185 U. S. 327, 46 L. »33, 22 Sup. Ct 669, uphold-
ing Tex. Rev. Stat art 3071, imposing 12 per cent damages and
counsel fees upon life insurance companies for failure to pay losses
within statutory limit

Legislature of Ohio defines public policy of that State toward life
insurance, p. 77.

Approved in Farmers & Merchants* Ins. Co. v. Dobney, 189 U.
S. 304, 23 Sup. Ct 566, 47 L. 826, upholding Nebr. sUtute, Ck>mp. SUt
chap. 43, S 43, allowing reasonable attorney's fees in successful suits
against insurers of realty totally destroyed from risks covered;
McClain v. Provident Sav., etc., Soc., 110 Fed. 91, 92, holding fol-
lowing State court construction that Pa. Stat 1885, p. 134, provid-
ing that warranty of truth of material matters only works forfeiture
applies to foreign corporations.

181 U. S. 77-92. Not cited.

181 U. S. 92-104, 46 L. 765, WESTERN UNION TEL. CO. v. CALL
PUB. CO.

Principal of equality forbids any difference in charge not based
upon difference in service, p. 100.

Approved in dissenting opinion in Ohio Coal Co. v. Whitcomb.
123 Fed. 364, majority holdmg discriminative rate of $2 per car
charged one shipper only for carrying cars from docks over portion
of defendant's line to main line.

181 U. S. 104-117. Not cited.

181 U. S. 117-130, 45 L. 776, BAKER v. CUMMINGS.

Dismissal without words ** without prejudice " or equivalents is
general, p. 125.

Approved in Greene v. United Shoe Machinery Co., 124 Fed. 9G4.
holding where case is not heard on merits, decree should express
words " without prejudice."

Defendant may look to opinion for ground of dismissal, p. 125.

Approved in National Foundry & Pipe Works v. Oconto City W.
Supply Co., 183 U. S. 234, 46 L. 169, 22 Sup. Ct. 118. holding resort
may be had to pleadings and to opinion to ascertain scope of de-
cision where decree leaves same doubtful; United States v. Norfoili
& W. Ry. Co., 114 Fed. 686, holding opinion of court is to be treated
as part of record and may be examined to ascertain questlooi
presented.

181 U. S. 131-142. Not cited.

iioa

Notes on V. S. Reports. U- a 142-175

181

181 U. S. 142-151, 45 L. TS8, ST. PAUL GAS-LIGHT CO. v. ST.
PAUL.

Muuicipal ordinance exercising delegated legislative power may
be considered as law of State, p. 148.

Approved in Davis, etc,, Mfg. Co. v. Los Angeles, ISO U. S, 217.
2^ Sup. Ct. 500, 47 L. 780, holding apiM^ul lies to Supreme Couri
from decree of Circuit Court dismissing bill based on impairment
of ordinance contriit't by subsequent ordinance; Anoka Water
WorivS, etc., Co, v. Anolva, 109 Fed. 584. holding *' ordinance pas.sed
by municipal council within scope of their powers has force of law."

Distinguished in New Orleans Water- Works Go. v. Louisiana. 185
U. S, 350, 46 L. 943, 22 Sup. CL 690, holding Supreme Court does nor
acquire jurisdiction to review Slate decision which Impairs or fails
to give effect to contract,

W^here legislative act is shown which could possibly impair con-
tract there is no Federal question, p. 151.

Distinguished in Riverside & A, Ry, Co. v. Riverside, 118 Fed.
742, holding suit to enjoin city from impairing contract by enforc-
ing subsequent ordinance is not suit for specltlc performance but
for protection of contract rights; American* etc., Co. v. Hfune Water
Co.» 115 Fed. 180, holding ordinance of city empowered to grant
exclusive franchise for use of streets granting right to water com-
pany has force of State law and is subject to impairment.

181 U. S. 161-154. Not cited.

181 U. 8. 155-175, 45 L. 794, ATHERTON v. ATUERTON,

If wife unjustifiably refuses to live with husband she cannot
acquire a dlflTerent domicile, p. 164,

Distinguished In Watertown v. Graves, 112 Fed. 184, 187, 188,
holding married woman whose husband has deserted her and gone
10 parts unknown may acquire citizenship in another State if agree-
able to laws of such State.

Divorce obtained by husband at his domicile In Kentucky Is bind-
ing In New York, pp. 171, 173.

Approved in Andrews v. Andrews, ISS U. S. 38. 40. 23 Sup. Ct.
242. 243. 47 L. 372, 37^, holding full faith and credit clause not
violated by refusal of .Massachusetts courts to recognlsie divorce
granted by South Dakota court to Massachusetts citizen temporarily
absent from home.

Wife deserting husband and served by publication where stopping
is bound by decree, p. 173.

Approved in W%illace v. Wallace, 62 N. J. Eq, 515. 519, 5t> Atl. 790.
791, 792, holding w^ife moving into New Jersey for purpose of ob
tatning divorce acquires no domicile there to confer jurisdiction
where defendant not personally served in New Jersey. See notes,
m Am. St Rep. 554; 83 Am. St. Rep. 619. 617.

181 U. S. 175-187 Notes on U. S. Reports. IIW

181 U. S. 175-179, 45 L. 804, BELL v. BELL.

No valid divorce can be decreed on constructive service without
domicile, p. 177.

Approved in Manning v. Spiirck, 199 111. 450, 65 N. B. 344, hold-
iug void divorce obtained by husband in State wherein neither were
domiciled, and on constructive service.

Where husband has no bona fide domicile Pennsylvania courts
have no Jurisdiction, p. 178.

Approved in Winston v. Winston, 189 U- S. 507, 23 Sup. Ct 852.
47 L. 922, reaffirming rule; Andrews v. Andrews, 188 U. S. 38, 39,
40, 41, 23 Sup. Ct. 242, 243, 47 L. 372, 373, holding appearance of
nonresident defendant in divorce suit cannot confer JurUdlctioD
where plaintiff has acquired no bona fide domicile; Streitwolf t.
Streitwolf, 181 U. S. 182, 45 L. 810, 21 Sup. Ct 555, holding husband
acquired no domicile In North Dalcota to confer Jurisdiction to grant
divorce by secretly removing thence when wife sued for divorce
without showing intent; Wallace v. Wallace, 62 N. J. Bq. 517, 519.
50 Ati. 790, 791, 792, holding wife removing Into New Jersey to
obtain divorce acquires no domicile sufficient to confer Jurisdlctloo
where defendant not served within New Jersey. See notes, 94 Am.
St. Rep. 554; 83 Am. St Rep. 616.

181 U. S. 179-183, 45 L. 807, STREITWOLF v. STREITWOLF.

Husband seel^ing divorce in North Daliota pending wife's suit io
matrimonial domicile must have domicile in good faith for ninety
days, p. 183.

Approved in Winston v. Winston, 189 U. S. 507, 23 Sup. Ct 852.
47 L. 922, reaffirming rule; Andrews v. Andrews, 188 U. S. 38, 39.
40. 41, 23 Sup. Ct 242, 243, 47 L. 372, 373, holding appearance of
nonresident defendant cannot confer Jurisdiction to grant divorce
where plaintiff has acquired no bona fide domicile; Carter v. Morris
Bldg., etc., Assn., 108 La. 146, 32 So. 474, holding wife domiciled
in Canada cannot sue in Louisiana courts for separation of property:
Wallace v. Wallace, 62 N. J. Eq. 517, 50 Ati. 790, holding wife re-
moving to New Jersey to obtain divorce acquires no domicile to
support action where defendant not served within New Jersey.
See notes, M Am. St Rep. 554; 83 Am. St Rep. 616.

181 U. S. 183-187, 45 L. 810, LYNDE v. LYNDB.

Where husband appeared generally, decree for alimony binds Wto-
p. 186.

Approved in Audubon v. Shufeldt, 181 U. S. 578. 45 L. lOlO. 21
Sup. Ct 730. holding decree of court of one State granting alimony
may be enforced by suit in another; Lynde v. Lynde, 64 N. J. E*l-
741, 52 Ati. 696, holding wife's claim to alimony is personal and not
assignable to her solicitor; Wallace v. Wallace, 62 N. J. Eq. 517. 5t'
Ati. 790, holding deserted wife removing into New Jersey to obtiin

1195

Notes OB U. S. Reports,

181 V. S, lSS-iy8

divorce acquires oo domicile sufficient to confer jurisdiction, where
no service liad on defendant within State,

Provision for receiver in divorce suit bas no eitra territorial effect,
p. 187.

Approved In Hilliker v. Hale, 117 Fed. 225, holding receiver ap-
pointed by court under its equity power, to enforce and collect judg-
ments against stockholders of insolvent corporation, cannot sue
extraterritoriaJiy,

Judgment can be executed In another State only as its laws
permit, p, 187.

Approved In Anglo-American Prov. Go. v. Davis Prov. Co.,- 169
N. Y. 513, G2 N. K 580, upholding Code Civ. Proc, § 1780, prohibit-
ing action by foreign corporation agiiiust another, except where
cause arises within State.

Provision in divorce decree for payment of alimony in future is
not final, p. 187.

Distinguished in Arrington v. Arrington, 131 N. C. 145, 42 S. E.
554, 555, 92 Am. St Rep. 7T0, 771, holding final judgment for all-
mony is provable against bankrupt's estate and discharged with
his discharge.

181 U. S. 188^198, 45 L. 814, BRYAN v. BERKHEIMER.

Supreme Court reviewed case on certiorari, p. 192.
^^^pproved in Holdeu v. Stratton, 191 U. S. 119, 24 Slip. Ct 47,
^^bding certiorari Is proper method for review by original petition
^^^oceedings of inferior courts of bankruptcy revising District Courf a
allowance of exemption.

Distinguished in Hutciiinsoa v. Otis, Wilcox, etc., Co., 123 Fed-
18, holding l)ankriiptey act 1898 gives Supreme Court no appellate
jurisdiction from Circuit Court of Appeals.

A general assignment is Itself an act of bankruptcy and makes
•iftlgnee agent for distribution, p. 193.

Approved in In re Krinsky, 112 Fed. 975, holding service of copy
of Bankruptcy Court's injunction restraining assignee frooi dispos-
ing of property Is unnecessary where he was advised of Ita issuance;
In re Tatura. 112 Fed. 51, holding assignee under general aaaign-
ment within four months of bankruptcy is agent for bankrupt and
not entitled to allowance except for cost of preserving property ^
WUbnr v. Watson, 111 Fed. 493, 494, holding assignees under as-
signment amounting to act of bankruptcy cannot retain portion of
proceeds as compensation.

Bankruptcy act 1808, § 2, invests Bankruptcy Court with power
to appoint receivers, p. 194.

Approved in In re Lucius, 124 Fed. 455. holding under bankruptcy
act lSi*S. i 2, Bankruptcy Court has jurisdiction to decide claim of
creditor on bankrupt's property claimed to be ejcempt; In re Itoch

181 U. S. 188-198 Notes on U. S. Reports. 1196

ford, 124 Fed. 186, holding District Court has plenary anthoritj to
take property from hands of adverse claimants when absolutely
necessary to protect estate; M'Gahan y. Anderson, 113 Fed. 117,
holding Bankruptcy Court is given jurisdiction by bankruptcy act
1808, S 2, cl. IV, to determine all claims of bankrupt as to exemp-
tions; In re Young, 111 Fed. 159, holding bankruptcy may In its
discretion refuse on mere motion to order marshal who seized prop-
erty under court's direction to return same to mortgagee; Mishawata
Mfg. Co. V. Powell, 98 Mo. App. 540, 72 S. W. 720, holding Bank-
ruptcy Court's Jurisdiction under bankruptcy act 1898 is exclusive,
and State court's writ of replevin does not authorize officer to
invade such Jurisdiction.

Distinguished in In re Klein, 116 Fed. 525, holding Bankruptcy
Court has no Jurisdiction to compel assignee by summary proceed-
ings to account for disbursements for attorney's fees, made before
filing of petition; McLean v. Mayo, 113 Fed. 107, dissolving restrain-
ing order against suit by third person against marshal for trespait,
where third person disclaims any interest in property and elects to
pursue remedy against marshal individually; In re Shoemaker, 112
Fed. 650, 651, holding where State court has acquired Jurisdictioo
over debtor's property by levy thereon under Judgment before flllnf
of petition, Bankruptcy Court will not interfere by injunction.

By section. 23, bankruptcy act 1898, defendant's consent is necei-
sary in suits by trustee for property, p. 194.

Approved in Jaquith v. Rowley, 188 U. S. 623, 624. 23 Sup. Ct
371, 47 L. 622, holding surety on bankrupt's bail bond holding prop-
erty as indemnity is adverse claimant within act 1898, and not
suable in Bankruptcy Court without his consent; In re Thompson.
122 Fed. 179. holding Bankruptcy Court has Jurisdiction to bring in
assignee and require him to turn over property; In re Kellogg, 121
Fed. 336. holding under bankruptcy act 1898, § 2, subd. 7. Bank-
ruptcy Court has Jurisdiction to determine by summary proceedings
validity of mortgage on bankrupt's property; In re Wooten, 118
Fed. 672, holding bankruptcy act 1898, S 2, authorizes Bankruptcy
Court to enjoin sale of bankrupt's goods by mortgagee, pending
bankruptcy proceedings; In re Kellogg, 113 Fed. 124, holding con-
troversies not strictly or properly part of proceedings in bankruptcy
sliould not come within Bankruptcy Court's Jurisdiction without
defendant's consent.

A remark upon question not arising in the case is not law, p. 1^*

Approved in Foreman v. Burleigh, 109 Fed. 314, pointing to dangef
of following expressions found in opinion and not necessary to
<le(ision of pending case; Kennedy v. Pierce's Loan Co., 100 Ma
App. 275, 73 S. W. 358, upholding pledge of personalty made iV
bai.krupt after filing petition in involuntary bankruptcy and before
adjudication.

1197

Notes on O: 6. Reports.

ISl U. S. 18a-lt)8

Parchaser from assignee in insolvency witli knowledge of petition
takes no title superior to banlirnpt's estate, p. 19T,

Approved in RauiJolpli v. Scruggs, 190 V. S. 536, 23 Sup. Ct 711.
47 L, 1170, boMlag adjudication of bankruptcy witliin four months
after general deed of assignment defeats preferential claims tliere^
under; Mueller v. Ntigeut, 184 U. S. IG, 17. 18, 46 L. 412. 413. 22
Sup. CL 275, 276, holding Bankruptcy Court has jurisdiction to com-
pel surrender to trustee of property held by one as agent of bank-
rupt and not adversely; In re Thompson, 12S Fed. 576, holding
Bankruptcy Court has jurisdJctlon to compel assignee under void
State assignment to render account; Burleigh v. Foreman, 125 Fed,
220; holding appeal lies under bankruptcy act 1S98. § 24a. from order
made on distinct and separate issue arising between parties inter-
vening In bankruptcy proceedings; In re Knight, 125 Fed. 39. 40, 41,
42, 45, holding creditors of bankrupt are entitled after general as-
signment to have estate administered under bankruptcy law, and
Bankruptcy Court's juritfidictioii is exclusive; In re Chase, 124 Fed.
756» 759, 760, holding assignment falriy made without intent to
defraud creditors does not preclude assignee from recovering for
disbursements and services; In re Breslauer, 121 Fed. 914, holding
Bankruptcy Court has jurisdiction to compel bank to pay over to
trustee funds of bankrupt not held adversely; In re Goldberg, 121
Fed, 581. 582, htplding son of attachment plaintiff pnrehasiug itfter
petition filed property of bankrupt attached before petition filed
obtained no title; In re Davis. 119 Fed. 953, holding Bankruptcy
Court has jurisdiction to compel bank by summary process to iJay
to trustee funds of bankrupt to whicli no adverse claim la made;
Abbott V. Summers, 116 Fed. GS)2. 694, holding trustee In chattel deed
of trust executed by Insolvent, which was act of bankruptcy, Is
not entitled to compensation; In re Talbott, 110 Fed. 418, holding
bankinipt may claim exemption as to property Id eluded in general
assignment after trustee has recovered same; In re Mays, 114 Fed.
001. holding assignee under general assignment entitled to no com-
pensation for services, but only to reimbursement for expenditures
In preserving property; In re Smith, 113 Fed, 993, holding court will
restrain third person from removing property claimed to belong to
one against whom an involuntary petition in bankruptcy is filed;
In re McCartney, KK> Fed. 023, holding under bankruptcy act 1898,
i 67 f, for release of liens obtained within four months of adjudica-
tion» court may receive debt from debtor of bankrupt though same
garnfslied within four months.

Distinguished In Carting v, Seymour Lumber Co,, 113 Fed. 490,
holding Bankruptcy Court will not take property of bankrupt out
of possession of receiver of State court having jurisdiction; In re
Swift. 112 Fed. 320, tiohllng customer of Ijroker who makes general
assignment and suhaequently is adjudged bankrupt may claim
breach of contract on adjudh at'on without tender.

181 U. S. 198^218 Notes on U. S. Reports. 1198

Where claimant submits claim no question of Jurisdiction arises,
p. 197.

Approved in In re Tune, 115 Fed. 912, holding Bankruptcy Court
may inquire in summary way as to adverse claim made by stranger
to bankrupt's property; In re Soudaa Mfg. Co., 113 Fed. 805, hold-
ing express submission amounts to consent to Jurisdiction thoufeb
Jurisdiction questionable; In re Sanderiin, 109 Fed. 858, holding
where mortgage claimants have submitted their claims, no question
of Jurisdiction can arise.

Distinguished in In re Wells, 114 Fed. 224, holding where goods
of bankrupt were seized in replevin by State court before bank-
ruptcy Court acted, latter will not interfere where creditor protests.

Miscellaneous. Cited in Wilson Bros. v. Nelson, 183 U. 8. 194,

46 L. 149, 22 Sup. Ct. 75, holding failure of insolvent to file volun-
tary petition at least five days before sale under Judgment entered
upon long existent irrevocable power of attorney amounts to act
of bankruptcy.

181 U. S. 198-202, 45 L. 820, RASMUSSEN v. IDAHO.

Idaho sheep quarantine act 1899, authorizing governor to exclude
infected sheep, Is constitutional, pp. 201, 202.

Approved in Williams v. Parker, 188 U. S. 502, 23 Sup. Ct 442.

47 L. 562, upholding Mass. act May 23, 1898, imposing restrictions
on height of buildings on certain Boston streets; Reid v. Colonido,
187 U. S. 147, 23 Sup. Ct. 96, 47 L. 114. upholding Colo. Sess. Laws
1S85, p. 335, prohibiting importation of cattle from south of thirtj-
sixth parallel without Inspection. See* 93 Am. St Rep. 84, note.

Distinguished in Smith v. Lowe, 121 Fed. 756, 757. holding State
officers cannot, under Idaho sheep quarantine act, interfere with in-
terstate commerce where sheep In question are not in fact infected.

181 U. S. 202-218, 45 L. 822, SCOTT v. DEWEESE.

Rev. Stat., § 5205, does not make void subscription for increased
stock, where amount is unpaid, p. 210.

Approved in Langtry v. Wallace, 182 U. S. 537, 550. 551, 552, 45
L. 1220, 1225, 1226, 21 Sup. Ct 878, 883, 884, holding fraudulent rep-
resentations inducing defendant to become stockholder do not re-
lieve him from statutory liability when sued by receiver.

Every one must take notice of power of national bank, p. 218.

Approved in Merchants* Nat. Bank v. Wehrmann, 69 Ohio St 174,
G8 N. E. 1007, holding every one is chargeable with knowledge that
national bank cannot be partner.

Whether national bank can become stockholder within section
5151, Rev. Stat, not decided, p. 218.

Approved in Merchants' Nat. Bank v. Wehrmann, 69 Ohio St 172,
GS N. E. 1006, holding national bank taking shares in partnership

nm

Notes on u. s. Reports.

181 U. S.:il8-243

as collateral does not thereby become a partner but an owner in
I severalty.

I 181 U. S. 218-227, 45 L. 830, INTERNATIONAL NAVIGATION CO.
V, FARE, ETC, MFG. CO.

I Due diligence to relieve from Harter aet includes diligence of aO
serrants in equipping for voyage, p. 225.

Approved in The Southwark, 191 U, S, 13> 24 Sop. Ct 5, holding
vessel liable for damage to meat due to defective refrigerating

i apparatus; The Abbazia, 127 Fed. 49(J, holding vessel liable for por-
tion of cargo burned as fuel on exliaustlon of coal supply* shortage
being due to defet'tive boilers and foul condition of bottom; The
Germanic, 124 Fed. 4. holding vessel liable for damage to cargo, due
to ship's rolling over while cargo unloading, ice on her declt render-
ing her topheavy; The C. W. Eiphicke, 122 Fed. 440, affirming 117

I Fe<l. 281» 2S2, holding vessel liable where cargo was damaged by
water, due to nonrepair of hatch coamings and covers; American
Sugar Refining Co. v. Ricitlnson, 120 Fed. 502, holding vessel liable

I under Harter act for Injury to sugar cargo, due to leakage of water

I through manhole which was not properly inspected; The Manltou,
11<\ Fed. 68, G7. holding where cargo was damaged by steam escap-
ing through lire valves, ship to escape liability must show proper

I inspection of valves before voyage begun; The Oneida, 108 Fed.

I 8S8» holding owner liable for negligence In stowing cargo so as to
make ship topheavy, where ship rolled over when master removed
portion of cargo to take la coal.

Vessel not exempt unless seaworthy when she sailed or due dili-
gence exercised, p. 226,

Approved in The Soiithwark. 191 U. S. 12, 24 Sup. Ct 4, holding
veesel liable for loss of meat, due to defective condition of refrigerat-
ing apparatus; American Sugar RehuSng Co. v. Rtckinson, 124 Fed.
18il. holding vessel not liable for leakage from manhole Joint from
great pressure from leaving sea valve open on voyage, vessel being
considered seaworthy.

181 U. S. 227-243* 45 L. 834, BEDFORD v. EASTERN BUILDING
& LOAN ASSOCIATION.
State cannot Impair contract of foreign loan association to make
loan, p. 241.

Distlnguitshed in Chattanooga Btiilding & Loan Assn. v. Denson,
18n V. S. 416. 23 Sup. Ct. 633. 47 L. 875, liolding granting loan to
' Alabama cilizen by soliciting agent of Tennessee association eon-
fititiites doing of business with In State within Ala. Code, requir-
ing agent and place of business?; Diamond Glue Co. v. Unlttd
States Glue Co., 187 U. S. (Uo. 23 Sup. Ct. 207. 47 L. 3Z2. holdiii-
Wis, Stat.. {I 808, requiring foreign corporations to file artlch's,
I otherwise contracts to Iw void, does not Impair obligation of con-

181 U. S. 244r-247 Notes on U. S. Reports. 1200

tract of corporation not complying therewith; National, etc., Bldg.
Assn. V. Brahan, 80 Miss. 420, 422, 425, 433. 31 So. 842, 843. 844, 845.
847, holding contract of foreign loan association with no office in
Mississippi, made by traveling salesman, and stipulating perform-
ance at home office, is Mississippi contract

Contracts made and performed in different places follow place of
performance as to usury, p. 242.

Approved in Pacific States, etc., Co. v. Green, 123 Fed. 44, hold-
ing mortgage of member of California building and loan associa-
tion governed by California law, where mortgage payments to be
made at home office; Alexander v. Southern Home B. & L. Assn.,
120 Fed. 965, holding loan of Georgia loan association, made \n
Georgia, payments to be made there, is Georgia contract governed
by Georgia law; Interstate B. & L. Assn. v. Edgefield Hotel Ca,
120 Fed. 425, holding contract of borrowing member of Georgia loan
association governed by Georgia law, where payments to be made
there, though security situated in South Carolina; Kinney v. Colum-
bia Sav., etc., Assn., 113 Fed. 363, holding contract to be performed
in Colorado is to be construed as a Colorado contract; United States
Sav., etc., Co. v. Harris, 113 Fed. 33, 37, holding Minnesota law
governs loan made by loan association of that State to citizen of
Kentuclcy on Kentucky realty, interest and principal to be paid at
home office; M'liwalne v. Ellington, 111 Fed. 584, holding bond of
borrowing member of loan association is governed by laws of home
office where so provided, bona fide to secure uniformity; Mansbip
V. New South Building, etc., Assn., 110 Fed. 861, holding contracts
of building and loan association governed by laws of home State
where both contracts and by-laws of association make obligations
solvable there.

Distinguished in Hicinbothem v. Loan Assn., 40 Or. 515, 60 Pac.
1020. holding mortgage given nonresident building association, wiilch
mortgage is usurious by law of State in which association is operat-
ing but not in home State, will not be enforced; Pacific Building Co.
V. Hill, 40 Or. 294, 67 Pac. 107. 91 Am. St. Rep. 4^4, holding bond
of Oregon citizen given to California loan association operating in
Oregon payable In San Francisco, where contract is usurious by
Oregon law, will not be enforced.

Miscellaneous. Cited in Bedford v. Eastern Building, etc.. Assn.
of Syracuse, 109 Fed. 1057, principal case transferred to Supreme
Court on certiorari.

ISl U. S. 244-247, 45 L. 845, WALL v. COX.

District Court has no jurisdiction over suit by bankruptcy trustee
to recover assots of bankrupt against strangers to bankruptcy pr*^
ceediiigs. witlioiit defendant's consent, p. 247.

Approved in Wilson v. Nelson, 183 U. S. 194. 46 L. 149. 22 Snp-
Ct. 7(). hohiing iubolvont debtor's failure to file voluntary pi»titIi'D

1201

Notes on U. S. liepotts.

ISl U. S.24S-2S'^

at least five days before &ale of property under judgment on Jong
existent power of attorney Js an act of bankruptcy; MeLeaD v. Mayo.
113 Fed. 107, boldlng restraining order jigainst suit against tuarsluil
for trespass In seizing goods will be dissolved wbere defendant
disclaims interest in goods, electing to hold marshal individually.

Miscellaneous, Cited in Burleigh v. Foreman, 125 Fed. 220, to
point that Supreme Court feas permitted bankruptcy ease before it
based on revisory petition to Circuit Court of Appeals,

181 U. S. 248-263, 45 L. S47. SMITH v. ST. LOUIS, ETC., RY. CO.

Where charge not made out law attaehes presumption of validity
to officer's acts, p- 258.

DlBtiuguislied in Smith v. Lowe, 121 Fed. 750, 757, holding State
authorities cannot, under Idaho sheep quarantine act, prevent trans-
portation Into State of uninfected sheep.
181 U. S. 204-260, 45 L, 853, TREAT v. WHITE,

The power of Congress in imposing stamp tax la unlimited^
p. 2G9.

Approved In Thomas v. United States, 192 U, S. 370, 24 Sup, Ct.
306, affirming United States v. Thomas, 115 Fed- 210, upholding
war revenue act 18li8, imposing tax on memoranda of sales of
railroad stock.

Miscellaneous. Cited in Treat v. White, 109 Fed. 1063, certifying
question of principal case.
181 U. a 2m-2'i^, 45 L. 855, SPEED v. MCCARTHY.

Whether a party l8 estopped or not Is not a Federal (luestion,
p, 275.

Approved in Wright Seminary v. City of Tacoma. 187 U. S. 039,
23 Sup, Ct 847, 47 L. 345, reaffirming rule.

181 U, S. 277-283, 45 L. 859, AMERICAN SUGAR REFINING CO,
T. NEW ORLEANS.

Circuit Court of Appeals renders final judgment where case rested
on diverse citizenship, p. 280,

Approved in Cary Mfg. Co, v. Acme Flexible Ciasp Go,, 1S7 U. S,
428, 23 Sup. Ct 211, 47 L. 245, holding judgment of Circuit Conrt of
Appeals is final and cannot be reviewed on writ of error, though
Involving constitntional questions; Watkina v. King, 118 P^ed. 532,
lioldlng Clrcnit Court of Appeals' Jurisdiction over suit resting on
diverse citizenship not defeated by Introduction of objection to State
statute as evidence on ground of unconstitutionality.

Intention of judiciary act 18^1, I 5, was not to give two appeals,
p. 281.

Approved in Union & Piantera' Bank v. Memphis^ 189 U, S. 73.
74, 23 Sup. Ct 005, 47 h. 714, reversing for want of jurisdiction
VoL III — 76

181 U. S. 277-283 Notes on U. S. Reports. 1202

decree of Circuit Court of Appeals, affirming Circuit Court Judgment
where cause did not rest on diverse citizenship; Huguley Mfg. Co.
V. Galeton Cotton Mills, 184 U. S. 2^, 295, 46 L. 548, 22 Sup. Ct
454, holding no right of appeal from Circuit Court of Appeals is
given in cases where decree is made final by act 1891, by proTision
for review ** by certiorari or otherwise."

Writ of error lies from Supreme Court where case rests partially
on constitutional question, p. 281.

Approved in Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 40ft,
410, 24 Sup. Ct. 379, holding Judgment of Court of Appeals in suit
to recover amount of tax exacted under war revenue act 1898 may
be reviewed in Supreme Court as of right.

Where plaintiff's pleading shows right based on Federal law,
Supreme Court has exclusive appellate Jurisdiction, p. 281.

Approved in Fidelity Mutual Life Assn. v. MetUer, 185 U. 8. 315,
46 L. 929, 22 Sup. Ct 665, overruling motion to dismiss writ of
error from Supreme Court to Circuit Court in case involving validity
of Texas statute awarding damages against insurance companies;
Filhoil V. Maurice, 185 U. S. 110, 46 L. 828, 22 Sup. Ct 561, holding
writ of error properly taken to Supreme Court from Circuit Court
of Appeals, decree in case resting entirely on constitutional ques-
tion; Wright V. MacFarlane, etc., Co., 122 Fed. 774, holding Circuit
Court of Appeals has no Jurisdiction of appeal in case resting en-
tirely on constitutional questions; California Oil, etc., Co. ▼. Miller,
115 Fed. 1017, dismissing appeal to Circuit Court of Appeals where
case rested solely upon construction of laws of United Statei;
Owensboro v. Owensboro Water- Works Co., 115 Fed. 321, 323, hold-
ing where plaintiff's pleadings clearly disclose case based on con-
tention that State law contravenes Federal Constitution, appeal If
exclusive to Supreme Court; Seattle v. Thompson, 114 Fed. 97, hold-
ing under Judiciary act 1891, § 5, Supreme Court's appellate Jurlf-
diction in cases involving controversy as to right depending on
Constitution is exclusive.

Constitutional questions arising in suits based on diverse citizen-
ship do not disqualify Circuit Court of Appeals, p. 288.

Approved in Wirginan v. Persons, 126 Fed. 455, holding on appetl
to Circuit Court of Appeals questioning Circuit Court's Jurisdiction
and rulings on merits, case may be certified or decided; Keyser t.
Lowell, 117 Fed. 401, holding Circuit Court of Appeals has Jurisdic-
tion to determine validity of State statute in suit resting originall.^
on diverse citizenship.

Distinguished in St. Louis Cotton Compress Co. v. American
Cotton Co., 125 Fed. 202. holding Supreme Court under act creating
Circuit Court of Appeals has Jurisdiction to review service of suni-
uons by Circuit Court

I

1208 Notes on U. 8- Beporta. 181 U, S. 283-323

181 U. S. 283-323, 45 L. 862, FAIRBANK t, UNITED STATES.

Purpose of constitutional restriction as to taxation of exports la
that all esxMJrtatiou shall be free from national burden, p. 292,

Approved In dissenting opinion in Cornell v. Coyne, 192 U. S.
436, 24 Sup. Ct. ass, 389. majority upholding under act June 6, 1896,
same tax on fille<i cheese manufactured for export as on other filled
cheese,

Distinguislied in Cornell v. Coyne, 192 U. S. 429, 24 Sup. Ct. 385,
upholding act June 6, 1S9G sanctioning Imposition of same manu-
facturing tax on filled cheese for export as on any other filled chee8»».

Construction of department charged with execution is weighty,
p. 307.

Approved In dissenting opinion In Nelson v. Northern Pac. By.
Co., 188 U, S. 137, 23 Sup. Ct. 313^ 47 L. 418» majority holding grant
to Northern Pacific Company of 18t>4 does not so vest in company
alternate sections within exterior limits as to preclude bona fide
settlement before de Unite location of road.

Distinguished in United States v. Southern Pac. R. R. Co., 184
U, 8. 56, 4G L. 429, 22 Sup. Ct 288, holding persons contracting with
Southern Pacific Company for unpatented lands appareully within
Us grant are protected by act 1887 as to all purchases before final
adjustment.

Stamp tax on foreign bfil of lading is tax on exports and uncon-
stitutlonal, p, 312.

Approved in Dooley v. United States, 183 U, a 154, 155. 161,
162. 165. 46 L. 130. 131, 133, 134, 22 Sup. Ct 64, GO, 68. upholding
Foraker act 1900 imposing duties upon goods Imported into Porto
Rico from United States; Downes v. Bidwell, 182 U. S. 292, 293,
45 L. 1108, 1109, 21 Sup. Ct, 789, upholding Foraker act imposing
duties upon imports from Porto Rico; New \'ork & Canada Mall
S8. Co. V, United States, 125 Fed. 329, holding uuconstitutlQUi!!
provision of war revenue act 189S, imposing stamp tax on manifestos
for clearance of cargo of ships for foreign porta; State v, Allgeyer,
no La. 840, 34 So, 799, holding license tax on business ot! buying
cotton for export is tax on exports within constitutional prohibition;
dissenting opinion in Lottery Case. 188 U. S. 361*, 23 Sup. Ct 332.
47 L. 506, majority holding carriage of lottery tickets between
States by interstate express company ^constitutes interstate com-
merce and is subject to power of Congress to prohibit

Distinguisked In Thomas v. United States, 192 U. S. 371, 24 Sup.
Ct atKl, afiinniiig United States v. Thomas, 115 Fed. 209. uphold-
ing war revenue act 1898, imposing tax on memoranda of certain
sales of aharee of railroad stock.

^

-^

^*^.

nit court ot^f^jvctse -cV^r^
decree otCl^*=irnot test »"^*; 8. -a^^,. ^,

gvve" *ffw certiorari 0^^^^ 'C^V C''' A >^

410' ^ !.7ainou«t ol ^* couirX:vj *«^o' »/
to recover au* g^pre>»e ^ * «fa, <«<>

^eVevlev.ed Vn J^^ ^^oK "''^t, -

/»

on

I

ot

C*"^'' "n cS^tltntVo',

11"* ,„,\ solely "tlon

case '«»^'^J, oW^ , °*

•og vvliove P^'r.- V^ "•^V, <'^.

t\on to < Co^
on dive

CoUotl^c/.

|i*

188X3. S.51S.®
^te u coDftinttA tt
'•t ot street imV*^^*"
trontage; Chad^r^^ ^*
2W, tipholdliig l/)ti\ito'^
three-tourtliB ol tbe ^^
.rty aceorcling to froniaf^*'
aslonors, 18i XJ. S. 404, 45 ^
iossmonta for Improvomenl •*
o; Shumate y. Homan, ISl t- ^•
astnlnlnj; assoBsmont made undrt
J to cover cost of sower; Worml''?
,. S. 402, 4r> L. U22, 21 Sup. Ct. t^^-
thorlty of principal case: Dt-troU »•
021, 21 Sup. Ct. G2o, upholding asse*»-

on 17. S, Ropoi'ts.

181U.S.324-3TD

^ ^j

*ittii>g property for street ImproTpnietits

Valid ordinance; Cass Farm Co. t.

"^ 21 Sup. Ct, C45, uphold iijg city

iit niitlKJrlRlng assessment of cost

rty according; to front Hg**: We lister

J)14. 21 Sup. CL r.24. upholding North

cial taxing districts, and iini>uvhjg oost

u property sil\iated tlierein aeeordlng to

..yon, 181 U. 8. a!>2. 45 L. 911, 21 Snp. Ct.

K Btatutos authorizing: assessment ot entire

Against abutting owners according to front-

4, V. Xew York, IIU Fed. 9t'4J, upliolding N* V.

I, autliori/Jng riipid transit lioanl to ci>ntrae"t

oat qimlllied to liniid under street railroad; Boise

Fed. HUT. reversing judgment holding invalid as-

la aeconlance with *' front-foot ruler' Brown \\

^Si, upholding assessment onder CaL Stat. 1893,

*-*««olutioii of intention giving owners opportunity to

'^S before making of assessment-roll; Zehnder v. Bar-

^^ ^08 ped. 571. uidiolding Ky. Stat,, H 28:t2-283a for

•^ jj^^^txtu upon pi^perty in each fourth of a square aceonl-

.%»^ *^^rti y. Hoard Imp. Dist-, IB Ark. 7Q, sustaining assess-

^ ^- ^^^tler act May S, ISiJQ, amending sections ZuVSS, 5X^4,

li^^&YA ^^-i according to value of property and assessed ijcne-

^t^, ^- Hamlsh, 142 Cai. mi, m2, m:i. 7*5 Pac. tUJ3, holding

^^^« w ^^^^ fails to tiie petition of remonstrance as provldcil by

HKTy^ * ^ ^aunot attack assessment for street improvements; l^f*i-

^F^ ^^tlcJ-l Cal. 400 fseefjli Pac. 403), upholding street improve-

;^^ ^^^1 for assessment for street improvements after notice;

iJ/ ^' Wills, 157 iMd. 155, 157; 00 N. E. HyJ2, upholding Barrett

f^,^^^' lor assessment of cost of street Improvement against prf>p^

*^ oenefittHi according to benefit regardless of vaiue of property;

^^^ansoD V. Ottumwa. 118 Iowa, 191, 91 N, W, 1058, uphnldlng

^I^^Of H 742-745, providing fixed plan of taxation for creation of

^pklng fund for construction of water- works; Kansas City T.

H^gaa fifi Kan- 503, 72 Pac, 223, upholding Gen, Stat, 1001, § 740,

^PHioriasing assessments on city lots for construction of sewers;

^arfield V, Gleason, 111 Ky. 516. m S. W. 9CD, ni>lmldlng Ky. Stat.,

og38, providing for original construction of streets at exclusive

of nhutttng owners according to area; Ward v, Newton. 181

434, 6S X. E, lOlio, overrnling exceptions to assessments frr

watering in front of petitioner's land impospd under Stat.

chap, 410; State v, Robert P. Lewis Co., 82 Minn. 403, 8d

X. W, <51*» uphoiding Spec, Laws 1885, §S 26, 2T, St. Paul city

cliflrt<?r» ^^^' assessment of annujil frontage tax on lota alnittiajr

on streets where water pipes are laid; St. Cfjarles v. Deemar. 174

Ma. I-**' '^ ^' ^^* '*^'-^' "P^^^^l'^^'i^" ^'^-'*«' ^'^t'ts 1803, U 1^8, 110, for

I'tioumeut of cost of sUeet hnpiovemeut by '* front-foot rule;''

181 U. S. 324r-370 Notes on U. S. Reports. 1200

Harrisburg v. McPherran, 200 Pa. 346, 347, 49 Atl. 991, upholding
act May 23, 1880, authorizing assessment of cost of original paving
street in built-up portion of city against abutting property by front
foot rule.

See 82 Am. St. Rep. 459, note.

Distinguished in Harwood v. Street Comrs., 183 Mass. 349, tt7
N. E. 363, holding invalid assessment made without regard to bene-
fits and under an unconstitutional law, Stat. 1891, amended 1892:
White V. Gove, 183 Mass. 334, 336, 337, 67 N. B. 360, 361, holding
invalid Stat. 1892, p. 444, chap. 402, assessing cost of sewer on
adjacent lands per lineal foot of sewer fronting land.

Courts of equity will prevent depriving of property without due
process, p. 345.

Approved in White v. Tacoma, 109 Fed. 33, 36, holdin;; courts
will declare void assessments for Improvements which amount to
taking of property without compensation.

See 81 Am. St. Rep. 266, note.

Statutory rule imposing burden of street assessment regardless
of benefits is unconstitutional, dissenting opinion, p. 370.

Approved in dissenting opinion in Farrell v. West Chicago Park
Comrs., 181 U. S. 398, 45 L. 916, 21 Sup. Ct 6i5, majority sustain-
ing assessments for improvement of Douglas boulevard in West
Chicago; dissenting opinion in Shumate v. Heman, 181 U. 8. 396,
45 L. 916, 21 Sup. Ct 645, majority upholding charter and ordinances
of St. Louis authorizing assessment for cost of sewer; dissenting
opinion in Wormley v. District of Columbia, 181 U. S. 39a 45 L.
916, 21 Sup. Ct. 645, majority aflirming judgment sustaining assess-
ment; dissenting opinion in Detroit v. Parlier, 181 U. S. 398. 45 L.
916, 21 Sup. Ct. 645, majority upliolding assessments made on
abutting property by city of Detroit to cover cost of street pave-
ment; dissenting opinion in Cass Farm Co. v. Detroit, 181 U. S. 39S.
45 L. 916, 21 Sup. Ct. 645, majority upholding Detroit charter and
ordinances autliorizing assessment for street paving upon abutting
property according to frontage; dissenting opinion in Webster v.
Fargo, 181 U. S. 398. 45 L. 916, 21 Sup. Ct. 645, majority upholding
North Dalcota statute creating special taxing districts authorixing
imposing cost of street improvement upon property situated therein:
dissenting opinion in Tonawanda v. Lyon, 181 U. S. 392, 45 L. 911.
21 Sup. Ct 611, majority upholding New Yorlj statutes authorizlDj:
imposing of entire cost of street improvement against abutting
property according to frontage; dissenting opinion in Wight ▼.
Davidson, 181 U. S. 386, 387, 388, 21 Sup. Ct 622. majority np-
hoiding act March 3, 1899, for assessment on abutting or l>ene-
fited lands one-lialf damages for land condemned for new streets ^
District of Columbia,

1207 KoteB on U. S. Reports. 181 U.S. 3T1^3S8

181 U. S. 371^,§8, 45 L. EWO, WIGHT v. DAVIDSON,

Norwood V. Baker involved assessment levied witliout legis-
lative sanction, p. 385.

Distiniriilsbed In dissenttng opinion In Frencb v. Barber Asphalt
I'aving Co.. ISl U. S. 3l>9. 45 L. 899, 21 Sup. Ct &42. majority
sustaining apportionment under Kansas City charter of eotire cost
of street pavement upon abutting lots according to frontage with-
out liearlng as to benedts.

Norwood V. Baker was tiot Intended to overrule Ban man v. Rosa
and F arsons v. District, p, :isri.

Approved in Bartieitl v. Gleason, 111 Ky, 51-1, 63 S, W. 908, up*
holding Ky. Stat., § 2838, for assessment of cost of street constrne-
tlon exclusively against abutting owners according to area; Harris*
burg V. McPlierrau. 2C)0 Pa. 340, 49 Atl. 901, upholding act May 23,
1S89, authorizing cities of third class to assess coat of street paving
on abutting properly by front-foot rule.

Wliere assessment does not amount to deprivation of property
courts win not relieve against it, p. 385.

Approved In Schaefer v. Werllng, 188 U. S. 51S. 23 Sup. Ct 449,
47 L. 5T2, upholding Indiana statute for assessing cost of public
improvements, street grading, against abutting property according
to frontage; Chadwiek v. Kelley. 187 U. S. 544, 23 Sup. Ct. 177, 47
L. 21>4, upholding Louisiana statutes providing for assessment of
cost of street paving against w butting lots according to frontage
and making same a lien tljereon; Farrell v. West Chicago Park
Comrs., 181 U. S. 4<i4, 45 L. 925, 21 Sup. Ct 0O9, sustaining assess-
ment to Improve Douglas boulevard in West Chicago; Detroit v.
Parker. 18t U, S. 401, 45 L. 921, 21 Sup. Ct 625. sustaining assess-
ment under Detroit charter and ordinances levied on property
abuitiiig on pavement aceording to front foot; Cass Farm Co. v.
Detroit 181 U. S. 31>S, 45 L. 915, 21 Sup. Ct 045, sustaining assesa-
laent of street paving agalitst abutting property In accordance with
Detroit charter and ordinances; Tonawanda v, Lyon, 181 D. S. 392,
45 L. 911, 21 Sup. Ct Oil, sustaining assessment for grading streets
levied against abutting latid according to statutes of New York;
Boise City v. Wilson, 113 Fed. 1017, reversing holding that assess*
nieut under ** front-foot rule" was oecessarlly Invalid; Brown v.
Drain, 112 Fed. 581, upholding assessment for street improvement
in Ijos a tig el es under Cat Improvement act 1885, amended
1801, where complainant did not iile remonstrance as provided;
White V. Tacoma, 100 Fed, 33, holding each ease under laws for
assessing abutting property depends upon particular facts and If
Hot a eonllscation of property front- foot rule Is valid; Duncan v.
Uamish, 142 Cat GOl. 70 Fae. 063, upholding assessment under
Stat, ISOl. p. 4*jl, as amended Stat 1893, p. SO, where complainant
(lid not die remonstrance before city coiiucll a« rc(iuire4; Bard eld t.

181 U. S. 389-^3 Notes on U. S. Reports. 1208

Gleason, 111 Ky. 516, 63 S. W. 969, upholding Ky. Stat, % 2838, for
assessing cost of street construction In cities of first class against
abutting property according to area; People v. Pitt, 169 N. Y. 529.
62 N. E. 665, upholding Laws 1899, chap. 128, i 208, for assessing
portion of cost of sewer per linear foot against abutting property-
owners having opportunity to be heard. See notes, 82 Am. St. Rep.
459; 81 Am. St Rep. 266.

Act March 3, 1899, authorizing assessment without regard to
special benefits is unconstitutional, dissenting opinion, p. 386.

Approved in dissenting opinion in Farrell v. West Chicago Park
Comrs., 181 U. S. 398, 45 L. 916, 21 Sup. Ct 645, majority sustain-
ing assessment for improvement of Douglas boulevard in West
Chicago; dissenting opinion in Cass Farm Co. v. Detroit 181 U. S.
398, 45 L. 916, 21 Sup. Ct 645, majority sustaining assessment for
street pavement levied against abutting property in accordance
with Detroit charter and ordinances; dissenting opinion in Detroit
V. Parker, 181 U. S. 398, 45 L. 916, 21 Sup. Ct. 645, majority sus-
taining assessment under Detroit charter and ordinances
levied on property abutting on pavement according to front foot;
dissenting opinion In Tonawanda v. Lyon, 181 U. S. 392, 45 L. 911.
21 Sup. Ct 611, majority sustaining assessment for grading streets
levied against abutting land as provided by laws of New York.

181 U. S. 389-393, 45 L. 908, TONAWANDA v. LYON.

Norwood V. Baker did not establish invalidity of all assessments
by front-foot rule, p. 391.

Approved in Duncan v. Ramish, 142 Cal. 692, 76 Pac. 663. hold-
ing one assessed under Stat. 1891 cannot object to assessment
wliere he failed to file remonstrance with council as provided by
statute; Bartield v. Gleason. Ill Ky. 516, 517, G3 S. W. 9G9. uphold-
ing Ky. Stat, § 2838, for assessing cost of street construction in
cities of first class upon abutting property according to area.

Assessments on abutting land according to frontage in absence
of peculiar hardships are valid, p. 392.

Approved In Schaefer v. Werling, 188 U. S. 518, 23 Sup. Ct 440.
47 L. 572, upholding Indiana statute for assessing cost of street
grading against abutting lots according to frontage; Cass Farm Co.
V. Detroit 181 U. S. 308. 45 L. OIG. 21 Sup. Ct G45. sustaining as-
sessment for street pavement levied against abutting property in
accordance with Detroit charter and ordinances; White v. Tacoma.
lor/ Fed. 33, holding assessment of cost of street improvement
upon abutting property by front-foot plan is not necessarily uncon-
stitutioual: Martin v. Wills, 157 Ind. 155, GO N. E. 1022. upholding
•• lUirrett Law ** 1S80, for apportioning cost of street improvements
on property according to l)euelits regardless of value of property:
re. pie V. Pitt. IGD X. Y. 520, G2 X. E. GG5, upholding Laws l»y9.

1200 Notes on U. S. Reports. 181 IT. S. 394-^98

cliaiL 128, for assessment of portion of cost of eewer per linear
foot on property abutting thereon where owners have opportunity
to complain of assessment See notes, 82 Am. St Rep. 459; 81
Am. St Rep. 2m.

Asses em en t of property by front-foot rule without reference to
benefit Is unconstitutional, ^Jissenting opinion, p, 393,

Approved in dissenling opinion In Farrell v. West Chicago Parli
Comrs., 181 U. S. 398, 45 L. [H6, 21 Sup. Ct 645, majority upholding
a.B8es8ment of cost of conBtnietioa, and improvement of Douglas
boulevard in West Chicago; dissenting opinion in Shumate v.
Heman, 181 U. S. 398, 45 L. t)lG, 21 Sup. Ct G45, majority uphold-
iug St Louis charter and ordinances and assessments made there-
under imposing cost of sewer upon property In taKiug district j dis-
senting opinion in Detroit v. Parker, 181 U, S. 398, 45 L. 916, 21
Sup. Ct 645, majority upholding Detroit charter and ordinances
authorizing assessment of cost of grading and paving streets against
abutting property according to frontage; dieseuting opinion In Cass
Farm Co. v. Detroit 181 U. S. 398, 45 L. 91«, 21 Sup. Ct 645,
majority sustaining assessment for street pavement levied against
abutting property in accordance with Detroit charter and ordi-
nances.

ISl U. S. 3»4-396. 45 L. U12, WEBSTER v. FARGO.

Legislature may create taxing districts and assess property
therein according to area or frontage, p. 395.

Approved In Schaefer v. Werling, 188 U. S. 518, 23 Sup, Ct. 440.
47 L. 572. upholding Indiana statute for assessing cost of grading
street agaiu.st abutting lots according to frontage; Duncan v, Rain-
lsh» 142 Cat 692» 76 Pac. 663, holding person assessed under street
Improvement act 1891, as amended 181)3, cannot complain thereof
after faiUng to file petition before council showing his damages;
Martin v. Wilis, 157 Ind. 155. CO N. E. 1022, upholding ** Barrett
Law" 1889. for assessing property for street improvements accord-
ing to area and making assessment a lien on property; Kansas City
v. Gibson, 66 Kan. 5U2. 72 Pac, 223, iipbolding (ien. Stat. 1901, § 701,
authorizing assessments of city realty for construction of sewer;
Smith V. Mayor, etc., 182 Mass. 233, G5 N. E. 41, upholding Stat
1867. chap, 100, authorlyJng city of Worcester through mayor and
aldermen to assess against proi>crty benctited thereby Its share of
vest of sewers. See notes, 82 Am. St Rep. 45D; SI Am. St Rep.
200,
181 U- 8. 390^98, 45 L. 914. CASS FARM CO. v. DETROIT.

Fourteenth AmeDdment coctrols State system of taxation only
when amounting to conliscatlon of propertji p. 398.

A[»proved in J^chacfer v. Werllij;r. 18,8 U. S. 518, 23 Sup. Ct 449.
i7 L. 572. upholding Indiana statute for assessing coat of street

is: r. B. Z»-4S^ I^otes OD X. €. Bqwitk. 121

^nadinp a^sBinst abnttii^ lotB miMuiiHug Id trontsse; Detroit i
ranker. Ifil r. £. 4Q1. ^ I^ 021. 21 Bag^ Cl fiS4. npboldiiig ande
J^etroi: rhartg- aBBeBsment of cost of pHvinp mcelm Bs^iost abm
tin;: lotF by titmta^: Ihmcaii t. Tlirmteh. 14!! CbI €92. 76 Pac 66i
lioidinp peTBQi; aiatsflHcd micker street inqmiveniexit act of 1891, a
amendec ISSC. cannot compiHin of nwnHiiini iii wbere be failed t
fiit oi)>ectiaE befope cttr council bf nuiliuriaefl: State t. Smith, 15
luc ^ab C li. £. 3U. upholding ActB lSa», p. 422, proridlng fo
OfOiKmaL ol TsuBtpsLg^ indebtedseBB on tbbI estate not exceedla
Srr<^ nor om-balf Talne of property: Martin t. ^VIDb. 157 Ind. 15«
« JK X icen. npholdln? *^ Barrett Jjbm^ off ISSBL for asseflBiiij
-mtmsrzy lor srree: ingn-ovemems meeuriliug to benefit receiTed
TepardiesF of Talue: Bmlth t. Idayor. etc. 1S2 Mbbb. 233, 66 N. E
-C iQiboidmr $^ihi. IfiGT. cbap. 106. providing tbat property-owner
«:bsil. ptoT find smm^ for cnnmmgtion off sewers as major and alder
Txna. ft ^anwKBer shall asseBB as staai<e of eos tbereoC See notei
^ .^n. f^ Jl^^. 4S&: fil Am. St. B.^. 206.

us: T. f. 2!i!-4«Ti. -f » 1^ arr. detboit t. pabker.

7>rarTK"9!>xcl Amendmem prohibitB Stale taxatScM oely where piti
)m>AUxn» T/ tHvnhscBtum off property, p. 40tL

-^ipTTiW^ jt Schaefer t, Verling, 188 r, &. 51SL 23 Sup. CL 4ia
nT '^ irx iQiiiiudm^ Indiana staxnte for annrmJag cost of street
.c-»an^ tissiiMC nlTTTTTlng lois sccordlm: to tremXM^i White t
I^*.%m2k. !!(« JW. X^ bnidlnc: asBeBsmenx againft property by tiM
tr^.ar-i'i«t: luxa suj^ )»e perfect^ fair meibiid of apportionmeot
l^uii.-ia ^ l;:aTiiaa>. 14:L OaL 6$I2. 76 Pac 4163^ bokling person t»
Hr^sa^. i^iii^tr is'Tv;^ mniTPTfaDeni act 18P1, amfsid^d in 1S93, harins
i..*r*. ■. z.f. >:':ii».ai<rz*:-ii:*f ttjUi councD as jtroTid^. cannot objecl
--* j-Nv:*-v>vi.»r-:i : s:i.:t t 5jii:tL. 176 Ind. JmS. tS N. E. 30, opholdins
li.'-. IS;*.;. ;. ^"^ i.TT D^z:D:«r..iiC mortpaire inde-M^dness not exceed-
ji-4 f.^. ii.ir .ctt-iiz-if ru ^i2iH of mort|ra|?ed realty assessed: Martin
T ^v_^^. i:- izii. 1%T. -i.' N, EL 1(1211 npboMinc -Barrett Law" of
ISS.' * ."c Lsr^-s?^.i^ .'.*«:: »tf srreet improTement on property a^
.M!Ci.r -:. i-r»r^i r\\p-ri:r**5< cif -raln^ and ma ling assessment a Uen.
S?*r if.r.^. S- AH. >-! llrry. 4Zi^: Si Am. ^ Rep. 2^^

:>: r s ^.-lii iz> u i<:i. wormlky t, district of Columbia

A^*::i^l^v^i :n w:if<>.-iu;tT with French t. Barber A$phalt PtTln^
Co. «:-;'r:a. p. ♦.e

A; ;'r\ T^ in Schaefer t. V'erlini:, ISS U. SL 51S. 23 Sop. Ct 449.
47 L. i'TJL ui^»hold:n? Indiana siatine for assessing cost of street
srading ajraiust abutiin;: lots acvx^rding to frontape; Barfield t.
GVast>n, 111 Kt. 510. ('j3 S. W. l^jg), upboldlni: Ky. Stat« f 25KS. fw
assessing cost of f^treet construction in cities of first class np^n
aSutting proi>erty arr-«^>r.lin^ to area: Prior v. Constmotion Co- IT'^
Mo. 451, 71 S. \V. 1HJ8, upLoldIng SL Louis charter apirtrtioxui^

1211

Notes on U. S. Reports,

181 U. S. 402-454

cost of sewers od property abutting thereon or in tlmt Includeil In
taxing distriL't on basis of urea, division into districts being con
clneive on courts. See notes, 82 Am. St Rep. 459; 81 Am. St Rep,
266.

181 U. S. 402, 403, 45 L. 922, SHUMATE v. HEMAN.

Assefisment against property in sewer district covering coet of
sewer is vaild, p. 4U3.

Approve*! in Srhulte v. Heman, 189 U. S. 507, 23 Sup. Ct 852,
47 U UT2, reatlirming rule; Schaefer v, Werliiig, 188 U. S. 518, 23
Sup. Ct 440, 47 L. 572, uphoiding Indiana statute for assessing
eost of street grading against abutting iots according to frontage:
Duncan v. Raniisii, 142 Cal. fji>2, 70 Pac. 6C3, holding person as-
sessed uoder .street improvement act 1S91, as amended in 1SD3,
having fa lied to die protest before eouncii as provided therein can-
not eompiain of assessment; Martin v. Wilis, 157 Ind. 155, 60 N. E.
1022. wpiiolcliug " Barrett Law " 1889, for assessing cost of street
improvements against property according to benefit received, re-
gardiess of value of property and mailing assessment a iien; Prior
V. Construction Co., 170 Mo. 488, 71 S. W. 2t)7, upholding St Louis
charter authorizing assessment of cost of sewers against abutting
property proportionally or on property in assessment district ac-
cording to area. JSee notes, 82 Am. St. Rep. 459; 81 Am. St Rep.
21)6.

181 D. S. 40i, 45 L. 924, FARRELL v. WEST CHICAGO PARK
COMRS.

Assessments for improvement of Douglas boulevard, West Chi-
cago, are valid, p. 404.

Approved in Schacfcr v. Werling, 188 U. S. 518, 23 Sup. Ct. 449,
47 L. 572, upholding Indiana statute for assessing cost of street
grading agahist almttlng property according to frontage; White
V, Tacoma, 109 Fed. 33, hokllng " front-foot plan may be perfectly
fair method of apportioning the burden of paying for street im-
provements ;'* Duncan v. Ramish, 142 Cal. 602, 76 Pac, 663, hold-
ing i>erson assessed under street improvement act, Stat. ISQl, as
amended 1893, having failed to file protest with council as pro-
vided, cannot complain of assessment

181 U. S, 4(>5-4fJl>, 45 L. 926. GERMAN NAT. BANK v. SPECKERT.
Circuit Court of Appeals' order to Circuit Court to remand cause
Is not final, p. 409.

Approval in Cole v. Garland, 183 D. S. 693, 40 L. 393, 22 Sup. Ct.
183, reaffirming rule.

ISl U. S. 409^34. Not QiletL

1

181 U. S. 434-490 Notes on U. S. Reports. 12

181 U. S. 434-453, 45 L. 938, UNITED STATES RUBBER CO.
AMERICAN OAK LEATHER CO.

Court will prevent creditors from obtaining preference, leaving
to share pro rata, p. 453.

Approved in American Exch. Nat. Bank v. Ward, 111 Fed. T
holding where controlling creditors assume management of busing
and pay smaller creditor one-third of his claim, later execution
trust deed to creditors preferring them is not fraudulent.

181 U. S. 453-464. Not cited.

181 U. S. 464-473, 45 L. 954, THE BARNSTABLE.

In this country ship is personally liable for negligence of a
one in lawful possession, p. 467.

Approved in Harrison v. Hughes, 125 Fed. 869, holding unc
American admiralty law ship is liable for negligence of pilot co
pulsorily employed.

Distinguished in Homer Ramsdell Transp. Co. v. La Compagi
Gen. Transatlantique, 182 U. S. 413, 45 L. 1160, 21 Sup. Ct 8
holding shipowner not liable for damage caused by negligence
pilot whose services under N. Y. law 1882 had to be accepted.

Court may within spirit of admiralty rule 59 entertain petiti
of owner and call in charterer, p. 467.

Approved in The Planet Venus, 113 Fed. 388, holding under A
miralty rule 59, ship and its charterers charged with liability
same contract of affreightment may be Joined in same proceedic

Charterer must return property in same condition as receive
ordinary wear and tear excepted, p. 468.

Approved in Dailey v. New Yorli, 128 Fed. 799. holding charter
of scow liable for injury thereto due to settling upon piojecti<
on bottom when tide receded from the mooring place.

Case remanded ** for further proceedings not inconsistent wi
this opinion," p. 473.

Approved in The Barnstable, 114 Fed. 1017, holding mandate <
Supreme Court prevented introduction on petition of new matt
tending to show procuring of insurance contrary to opiniou (
Supreme Court
181 U. S. 473-480. Not cited.
181 U. S. 481-499, 45 L. 903, BARKER v. HARVEY.

Public laud is such as is subject to disposal under general Ian
laws, p. 490.

Approved in Minnesota v. Hitchcock, 185 U. S. 392. 46 L. 96-
22 Sup. Ct. 057, holding State of Minnesota tooic no intert^st untie
act 1857 granting school lands, in lands occupied by Indiar.s.

Distinguished in United States v. Blendaur, 128 Fed. OIX boldin,
land in Bitter Root valley, Montana, formerly occupied by Flal

I:il3

>*otes on U. S» Reports.

ISl U, S. 5<X)-o3<»

head Indians, becnme part of general domalD on removal of Indians
aad extension of bomestead laws,

181 D. S. 500-515, 45 L. 971. UNITED STATE;^ v. EDMONDSTOX.

Where there has been a voluntary payment, money so paid can-
not be recovered, p. 510.

Approved In New Orleans, etc, R. R. Co. v. Louisiana Const.,
etc., Co., 109 La. 26. 04 Am. St. Rep. 407, 33 So. 56. holding pay-
ment of wharfage dues under threat of civil suit cannot be re*
covered.

See 94 Am. St Rep. 410. note,
181 U. S. 510^548. Not cited.

181 U. S. 54^558, 45 L. 994, RED Rn'ER VALLEY BANK V,

CRAIG.

One who does not belong to class that might be injured cannot
question statute, p. 558.

Approved in Estate of Johnson. 139 Cal. 534, 73 Pao. 425, hold-
ing aliens eannot raise questions of immunitlea pertaining solely
to citizens of sister States.

181 U. S. 558-561. Not cited.

181 U. S. 562-567, 45 L. 1002, MARKS v. SHOUP.

Where levy of attachment is invalid it is no defense to officer
to sue for jroods, p. 507.

Approved in Shoup v. Marks, 128 Fed. S8, holding exclusion of
evidence that transfer was made in fraud of plaintiff's creditora
Is not error where it did not sliow title In third person.

181 U. S. 5f57-574. Not cited.

181 U. S. 575-580, 45 L. 1009, AUDUBON v, SHUFELDT.

Alimony may be altered hy court at any time, p, STL

Dlstinpnished in Arriiiffloii v. Arrlngton, 131 N. C. 146, 42 S, E.
554, 92 Am. St. Rep. 771, holding final judgment for fixed sum as
alimony is discharged by husband's discliarge in banlcruptcy.

The allowance of alimony is not In nature of an absolute debt,
p. 57S.

Approved la In re Cave, 26 Wash. 216, OO Am. St. Rep. 738. 66
Pac. 420. holding decree for alimony is not a debt within Const,
art. 1, I IT, prohibiting imprisonment for debt.

Neither alimony due on adjudication of bankruptcy nor that
«ince accrued is burred thereby, p. 580.

Approved In Dtmbar v. Dunbar, 11*0 U. S. 344, 23 Sup. Ct. 750,
47 L. lOfl^l, holding contract to pay annuity to divorced wife is not
discharged by discharge In bankruptcy; In re Le Claire. 124 Fed.
65T, holding married woman's claim for alimony pending at time

natural child for support is not barred by discharge
Arrlngton v. Arrington, 131 N. C. 145, 42 S. E. 554, t
771, holding final Judgment for alimony is discharge
of husband in bankruptcy.

181 U. S. 580-583. Not cited.

131 U. S. 584-n589, 45 L. 1013, JOSEPH SCLITZ BRE
STATES.

Bottles and corks imported for use in bottling b
to drawback under act ^890, p. 588.

Approved in West v. United States, 119 Fed. 496,
ale in bottles not liable for duty on cost of cork!
labeling under act June 10, 1890.

181 U. S. 589-eOl, 45 L. 1015, MALLETT v. NORT

Federal questions raised in petition for reargumc
by State court are sufi^ciently presented, p. 592.

Approved in Missouri, K. & T. R. R. Co. v. Elliot
46 L; 677, 22 Sup. Ct 448, holding decision of Fedi
denying rehearing confers right to writ of error
Court

Distinguished in Mutual Life Ins. Co. v. McGrew
23 Sup. Ct 378, 47 L. 485, holding Federal que
petition for rehearing which is denied without oi
too late.

Federal questions passed upon by State court in
sufllciently raised, p. 592.

Approved in Bank of Commerce t. Wiltsie, 189 U.
Ct 851, 47 L. 921, reafi^rming rule; Land & Water <
Ranch Co., 189 U. S. 180, 23 Sup. Ct 489, 47 L. 768,
question raised in State Supreme Court and decldi
appellant in court's opinion is sufi^ciently raised wi

Ul^

Notes oil U* S, Iteports.

181 IT. s. atn-<>:ii

r

below In violation of Fourteenth Amendment, Federal court will

not reriew:

181 U. S. 601-614, Not cited.

181 U. S. 016, 45 L. 1029, NORDSTROM v. STATE OF WASH*

IXGTON.

Order affirmed with costs, p. 616.

Cited in Nordstrom v. State of Washington, 181 U. S, 616, 45 L,
1029, 21 Sup. Ct 925, reaffirming rule.

181 U. S. 620, 45 L. 1031, LOUISVILLE TRUST CO. v. COMINGOE.

Certiorari to Circuit Court of Appeals granted, p. 620.

Cited in Holden v, Stratton, 191 U. S. 119, 24 Sup. Ct 47. holding
certiorari proper remedy to review decision of Circuit Court of
Appeals in exercise of Jurisdiction under section 25h, bankruptcy
act 1808, to review proceedings in inferior courts of banitruptcy.

181 U. S. 621, 45 L. 1032, PIERRE v. DUNSCOMB.
Writ of certiorari to Circuit Court of Appeals denied, p. 621,
Cited in Independent School Dist v, Bew, 111 Fed. 9, holding
city estopped to deny bonds held by innocent purchaser on ground
tliat proceeds were devoted by officers to unlawful purpoaa

CLXXXTI UNITED STATES.

182 U. S. 1-220, 45 L. 1041, De LIMA v. BI DWELL.

Appeal given by customs administrative act 1890 is Inapplicable
to goods not imported, p. 176.

Approved in Downes v. Bidwell. 182 U. S. 248, 45 L. 1091, 21 Sop.
Ct. 772, liolding action to recover duties assessed on nonimportable
property arises under act to provide revenue from imports within
section G29, Rev. Stat.; Dooley v. United States, 182 U. S. 225, 46
L. 1070, 21 Sup. Ct. 763, holding appeal given by customs adminis-
trative act of 1890 has no application to cases of goods not imported
at all.

Board of general appraisers cannot review question whether
article Is import, p. 176.

Distinguished in United States v. Brown. 127 Fed. 79d. holdhi;
board of general appraisers under customs administrative act
determines question of jurisdiction including validity of protest

Fact that appeal under customs administrative act was exclusite
did not preclude common-law action, p. 177.

Distinguished in Dooley v. United States. 182 U. S. 225. 45 L. 107»,
21 Sup. Ct. 763, holding importer has right of action In Court of
Claims for recovery of duties on goods imported from Porto Rico.

Protest or notice of mistake in assessing duties must be made
to hold collector, p. 177.

Approved in Dewell v. Mix, 116 Fed. 66, holding payment without
protest of duties imposed on cargo brought from Porto Rico after
ti-oaty of cession and before Foralier act cannot be recovered after
collector paid same in.

I'rotest against exaction of duties explains listing of sugar u
imported to escape duty. p. 179.

Approved in Dewell v. Mix, 116 Fed. 665. 666. 667. holding per-
son payinj? without protest duties imposed on cargo brought from
Porto Rico after treaty and before Foralier act cannot recover
same after collector pays in.

Whether cargoes were dutiable depends upon question whether
Porto Rico was foreign country, p. 180.

Distinguished in American Sugar Refining Co. v. Bidwell. 124
Fed. (>79, tkSO. (kS4, 686, holding article is not imported from foreign
country within tariff laws until arrival In port of entry.

1121GJ

1211

Notes on TJ* S* Exports,

1S2 U. S. 1 22n

Congress haa complete legislative authority over territorial jjov-
ernnient, p. 196.

Approved in Downes v. Bldwell» 182 U. S. 250, 45 L, 1091, 21 Sup
Ct 773, bokliug congressional power to estabHsb territorial gov
eroments ia no longer an unsettled question; Yirgiaia* ete., Cheml
cal Co. V. Sundry Ins. Cos.. 108 Fed. 454. holding defendant cao
not defeat jurisdiction of State and national court on reniovai
l>y simple motion to dismiss for want of jurisdiction.

Statute forbidding sale of liquors to minors applies to minora
Bubsequentiy bom, p. 197.

Approved lo Chicago Union Traction Co. v. Chicago, 199 111.
547, Go N. E. 470, holding Rev. Code Chicago. § 1723, regulating
fare to be charged by any stieet railway within certain city ter-
ritory applies to aubaeq«ently organized lines.

After cession Porto EIco ceased to be foreign territory and du-
ties, under Dingley act 189T, were illegal, p. 200.

Approved in Gonzales v. Williams. 192 U. S. 15, 24 Sup. Ct. 180.
holding native inliabitaut of Porto Rico at time of cession is not
on coming to New Yorlc an alien immigrant within act 1891, for
detaining and deportation of alien immigrants; The Diamond Kings,
183 U. S. 177, 178, 181. 182, 185, 4G L. 141, 142, 143. 144, 22 Sup.
CtfeO, GO, 01, holding diamond rings brought from Luzon after procla-
mation of treaty ate not Imported from foreign country within
tariff act of 1S07^ Dooley v. United States, 183 U. S. 154, 158, 163,
175, 4G L. im 131, 134, 138, 22 Sup. Ct. C4, 05, 67, upholding For-
aker act 1900, imposing duty on goods imported into Porto Rico
from New Yorli; Downes v. BidweU, 1S2 U. S. 248, 385, 380, 45 L.
K»91, 1144, 21 Sup. Ct, TT2, 824, holding Porto Rico did not be-
come part of United States on ratlflcatiou of treaty of cession
within uniformity clause of Constitution; Dooley v. United States,
1R2 U* S, 234, 45 L. 1082, 21 Sup. Ct 767. holding after cession of
Porto Rico and before congressional action military commander
cannot levy duties on Imports therefrom; Goetze v. United States,
182 U. S. 222, 45 L. 1074, 21 Sup, Ct. 743, holding board of gen-
eral appraisers has no Jurisdiction under customs administrative
act 18^10 of appeal from decision of collector as to duties on goods
Imported from Porto Rico aud Hawaii; American Sugar Refining
i Co. r. Bidwell, 124 Fed. 684, holding in 1899 there was no law Im-
posing duty on merchandise brought from Porto Rico to United
Slates: Percy Summer Club v. As tie, 110 Fed. 400, sustaining ex
parte order permitting attorney-general representing State to in-
tervene In action to restrain trespassers.

Distinguished In dissenting opinion in Dooley v. United States,
' 182 U. S. 237, 45 L. 1083, 21 Sop. Ct im> maiorlty holding Pgrto
I Vol. Ill -7?

182 U. S. 221-243 Notes on U. S. Reports. 1218

Rico not foreign territory, after cession, within Dingley tariff act
1897.

Porto Rico was neither absolutely foreign nor absolutely domes-
tic territory and was under Dingley tariff, dissenting opinion, p. 220.

Approved in dissenting opinion in The Diamond Rings, 183 U.
S. 185, 46 L. 144, 22 Sup. Ct 61, majority holding diamond rings
brought from island of Luzon after proclamation of treaty are
not imported from foreign country within tariff act 1897; dissent-
ing opinion in Dooley v. United States, 182 U. S. 237, 45 L. 1083,
21 Sup. Ct. 768, majority holding Porto Rico after treaty of ces-
sion not foreign territory within Dingley tariff act 1897.

182 U. S. 221, 222. Not cited.

182 U. S. 222-243, 45 L. 757, DOOLEY T. UNITED STATES.

Tucker act of March 3, 1887, contemplated four distinct classes
of cases, p. 224.

Approved in United States v. Lynah, 188 U. S. 476, 23 Sup. Ct
359, 47 L. 550, holding Circuit Court has jurisdiction of suit against
United States for destruction of rice plantation caused by Federal
improvement of Savannah river.

Plaintiff has right to sue in Court of Claims to recover duties
unlawfully exacted, p. 225.

Approved in Christie St. Comm. Co. v. United States, 126 Fed.
994, holding Circuit Court has jurisdiction, under act March 8,
1887, of suit to recover taxes wrongfully exacted by collector under
revenue laws.

A common-law right of action exists to recover from collector
duties on nonimported goods, p. 225.

Approved In Patton v. Brady. 184 U. S. 614. 46 L. 717, 22 Sup.
Ct. 495, holding common-law right of action exists against internal
revenue collector to recover sums paid under protest to prevent
seizure for illegal taxes.

Court of Claims, under Tucker act, has jurisdiction of suit
against government for duties paid, p. 228.

Distinguished in Pacific Whaling Co. v. United States. 187 U. S.
454, 23 Sup. Ct. 156, 47 L. 256, holding proceeding in District
Court for license for vessel plying in Alaskan waters not a suit
in which judgment appealable to Supreme Court can be rendered.

Treaty with Spain took effect upon individual rights, April 11.
1899, when ratifications exchanged, p. 230.

Approved in Armstrong v. Bidwell, 124 Fed. 693, 695. holding
treaty by which Porto Rico was ceded by Spain, though signed
December 10, 1898, became effective on private rights when ratifl-
catious exchanged, April 11, 1899; De Pass v. Bidwell, 124 Fed. 619,

1219

Kot^ cm IT. S. Reports.

182 U. S. 24^391

( boldlng Porto Rico ceased to be foreign counb'y when ratifications
of treaty were ex ch singed, April 11, 1899.

By exchange of ratifications of treaty Porto Rico ceased to be
a foreign country, p. 23^

Approved in Dooley t. United States* 183 U. S. 154, 158, 163,
40 L, 130, 131, 134, 22 Sup. Ct. 64, 65, tJT, upholding Foraker act
April 12, 1900, Imposing tax on imports into Porto Rico from
New Yorli, such articles not being exports witidn meaning of
Constitution; Armstrong v. Bid well, 124 Fed. 693, 695, holding ex-
change of ratifications of treaty renders same effective.

Distinguished in American Sugar Reflnlng Co. v. Bid well, 124

' Fed. 684, holding article Is not imported from foreign country

I within tariff laws until arrival at port of entry; American Sugar

Refining Co. v. Bid well, 124 Fed, GTS, holding goods not imported

from a foreign country within meaning of tariff laws until arrival

I in port of en try »

Tariff on Porto Rican imports collected after ratification of
I treaty were valid, dissenting opinion, p. 237,

Approved in dissenting opinion in The Diamond Rings, 183 U.
1 S, 182, 46 L. 143, 22 Sup. Ct. 61, majority holding diamond rings
I brought from Luzon after ratification of treaty of peace are not
' Imported from foreign country within tariff act 1897.

1 182 U. S. 243, 244 Not cited.

182 U. S. 244-301, 45 L. 1088, DOWNES T. BJDWELL.
I Circuit Court has jurisdiction over suit to recover duties exacted
I under Foraker act and paid under protest, p. 248.
j Approved in Warner, Barnes & Co. r. Stranahan, IDl D. S. 560,
' 24 Sup. Ct 847, and Czaruiliow, etc., Co. v. Bidwell, etc., 191 U, S.
; 550, 24 Sup. Ct. 847, both reaffirming rule.

I Porto Rico is territory appurtenant to United States, but not part
. ivitliin revenue acts, p. 287,

Approved in Hawaii v. Mankichl, 190 U. S. 219, 220, 23 Sup. Ct.
|7*J1, 71)2, 47 L. 1023, holdiii^ constitutional provisions for grand and
[I><?lit juries not substituted for Hawaiian criminal procedure by
fKewlands resolution July 7, 1808; The Diamond Rings, 183 U. S.
[181, 4t; L. 142. 22 Sup. Ct 01, liolding diamond rings brought from
• I^uzon after treaty of cession are not Imported from foreign country
UvHliin Diiigley act 181)7; Dooley v. United States, 183 U. S. 157. 158.
;1*>4, 105, 4tJ L, 131, 1312, 134, 22 Sup. Ct 64, 05, 67, 08, upholding
I t'oraker act April 112. lt)(X), Imposing duties upon Porto Rit an Im-
[ Ports from New York, such goods not being exports within Con-
stitution; De Pass v. Bldvvidt 124 Fed. 019. 022, uplioldlng Foraker
act April 12» 1900, for Impo^siug duty upon goo^ls imported from

182 U. S. 392^-397 Notes on U. S. Reports. 1220

Porto Rico; dissenting opinion in Dooley v. United States, 182 U. S.
239, 240. 45 L. 1084, 1085, 21 Sup. Ct. 769. majority holding military
commander of Porto Rico, after treaty of cession, could not impose
duties upon Porto Rican imports, it not being foreign country:
dissenting opinion in De Lima v. Bidwell, 182 U. S. 201, 45 L.
1058, 21 Sup. Ct 754. majority holding Porto Rico, after ratification
of treaty, ceased to be foreign territory within meaning of Dingley
tariff act 1897.

The government was bom of the Constitution and its iwwers de-
rived expressly or impliedly therefrom, pp. 289-291.

Approved in dissenting opinion In Hawaii v. Mankichl, 190 U. S.
237, 238, 23 Sup. Ct. 798, 47 L. 1030, majority holding constitu-
tional provisions as to Jury, grand and petit, not extended to
Hawaii by Newlands resolution of July 7, 1898.

Impost on Porto Rican merchandise after treaty was withla
power of Congress, p. 342.

Approved in dissenting opinion in Dooley v. United States, 1S2
U. S. 240, 45 L. 1085, 21 Sup. Ct. 704. majority holding military com-
mander of Porto Rico could not, after cession thereof, impose duties
upon Porto Rican imports, island not being foreign country.

So much of Porto Rican act as authorized impositions of duties
is invalid, dissenting opinion, p. 374.

Approved in dissenting opinion In The Diamond Rings, 183 U. S.
182. 46 L. 142, 22 Sup. Ct. 61, majority holding diamond rings
brought from Luzon after treaty of cession are not from foreign
country within Dingley act 1897; dissenting opinion in De Lima v.
Bidwell. 182 U. S. 201. 220. 45 L. 1058, 1065, 21 Sup. Ct. 754, 702,
majority holding Porto Rico, after promulgjition of Spanish treaty,
ceased to be foreign country within Dingley tariff act of 1897.

182 U. S. 392-<597, 45 L. 1146, HUNS v. NEW YORK. ETC..
STEAMSHIP CO.

Congress has left to States power to prescribe pilotage rules and
regulations, p. 303.

Approved in The Energla, 124 Fed. 846, 847, upholding Bali.
Code Wash., §§ 51)53, 5954, giving maritime lien on all vessels for
nonperformance of contracts; The Robert Dollar. 115 Fed. 224.
upholding Washington statute making master or person havin?
charge of repair or equipment of vessel agent of owner for con-
traction of debts.

Act April 12, 1900, regulating coasting trade intended to plact*
Porto Rico substantially on the coast, p. 396.

Approved in Gonzales v. Williams, 192 U. S. 14, 24 Sup. Ct.
180. holding native inhabitant of Porto Rico at time of cession.
subse(iuently coming to New York, is not " alien immigrant** within
act March 3. 1891.

1221 Notes oa U. S. Beporte. 182 U, S. 39S-417

MiscellaQeoTJS, Cited In Huns v. New York & P, E. SS. Co., 109
Fed. 105S, certifying question of principal case to Supreioe Court.

182 V, S. 398^^5, 45 L. 1151, CARSON v. BROCKTON SKWER-
AGB COMMISSION,

Legislature may prescribe tolls to be charged or leave same to
boards, p. 404.

Approved lu Smith v. Major, etc., 182 Muss. 234, 230, 65 N, B3.
41, 42, upholdiug Stat 1867. chnp. 106, autliorixlng city of Worces-
ter to lay sewers, and by mayor and aldermen to assess cost upon
abutting property as benefited; People v. Pitt, 10© N, Y. 529. 02
N. E. 665, upholding Laws 1899, chap. 128, § 20S, for taxing cost
of aewer partially upon abutting property on either side of street

182 U; S. 406-417, 45 L. 1155, HOMER RAMSDELL CO. ?,

COMP, GEN. TRANS.

N. Y. statute 1S07» chap. 030, imposes compulsory pilotage, p. 410,

Approved In The Energla, 124 Fed. 846, upholding Washington
statute, giving lien on all vessels for nonperformance of contracts
for transportation of persons or property from or to State points;
The rtobert Dollar, 115 Fed. 224, upholding Washington statute
making master or person having charge of repair or eQuIpmeut of
vessel agent of owner to contract debts.

Action for damages InHlcted on land cannot be In admiralty,
p, 411.

DistlngiiiBhed in Dalley v. New York, 128 Fed. 797, holding suit
for injury to scow In hands of charterer, chargeable with ordinary
care. Is within admiralty jurisdiction,

American admiralty law bolda ship for negligence of pilot, p. 413.

Approved in Harrison v. Hughes, 125 Fed, 8Sf>, holding, by Anierl*
can admiralty law. vessel Is liable for negligence of compulsory
pilot

FenDsylvaaia laws do not compel owners to supply pilot, p. 414.

Approved In Rich v. Ham burg- American Packet Co., 117 Fed*
754, holding vessel, to escape liahility for coUifiion when in hands
of licensed pilot, compulsorily taken* must show pilot at fault.

Vessel-owner is not liable at common law for aegliKCuce of pilot
accepted by vessel compulsorily, p, 410.

Approved in Tucker v. Alexandroff, 183 U. S. 43a 46 U 271, 22
Sup. Ct 201, holding war vessel, building for Russian navy. Is,
after launching, a ship within provision of Russian treaty for
apprebenslon of deserters; Crisp v. United States & Australasia
SS. Co.. 124 Fed. 749, holding shipowner or charterer not liable for
negligence of compulsory pilot.

Distinguished in Stern v. La Compagnie Oenerale Transatlau-

182 U. S. 417-^37 . Notes on U. S. Reports. 1222

tique, 110 Fed. 1001, dismissing libel brought for wrongful death
after the expiration of twelve months allowed by N. J. statute of
184a

Miscellaneous. Cited in Homer Ramsdell Go. t. Comp. Gen.
Trans., 109 Fed. 1058, certifying questions of principal case to
Supreme Court

182 U. S. 417-418. Not cited.

182 U. S. 419-427, 45 L. 1162, REGAN v. UNITED STATES.

Where causes of removal are specified by statute notice and hear-
ing are required, p. 425.

Approved in Shurtleflf v. United States, 189 U. S. 314, 23 Sup. CL
536» 47 L. 831, holding general appraiser under act 1890 entitled to
notice and hearing on removal by president for causes enumerated
in act

182 U. S. 427-437, 45 L. 1165, SIMON v. CRAFT.

The essential elements of due process are notice and opportunity
to defend, p. 436.

Approved in Parish v. Cedar Co., 133 N. C. 485, 45 S. E. 770, hold-
ing unconstitutional Laws 1889, chap. 243, p. 255, for forfeiture of
land to State board of education without Judicial hearing for failure
to pay arrearages; Phillips v. Postal Tel. C. Co., 130 N. C. 522, 41
S. E. 1025, 89 Am. St. Rep. 871, holding appropriation of right of
way by telegraph company without compensating therefor la oncoD-
stitutional; dissenting opinion in Dargan v. Carolina Cent. R. R..
131 N. C. 629, 42 S. E. 981, majority holding where land is taken by
railroad under act authorizing taking of property by eminent domain,
compensation cannot be recovered by action of ejectment

Distinguished in dissenting opinion in Jones v. Commissioners of
Franklin Co., 130 N. C. 469, 42 S. E. 150, majority holding daimaat
allowed reasonable time to make application for compensation for
property taken by eminent domain.

Constitutional guaranty of due process requires no particular mode
of State procedure, p. 437.

Approved in Glidden v. Harrington, 189 U. S. 259, 23 Sup. Ct 57(5.
47 L. 801, upholding procedure under Massachusetts statute for
assessing to trustee personalty held in trust upon public notice by
assessor for listing of personal property; New Orleans Water-Works
Co. V. Louisiana, 185 U. S. 350, 46 L. 943, 22 Sup. Ct 696. holding
due process accorded where court after full hearing decreed for-
feiture of charter for charging illegal rates; Ex parte Strieker. lUl
Fed. 149, holding person summarily adjudged guilty of contempt
without hearing or service of process Is not accorded due process.
See 94 Am. St Rep. 622, note.

12^ Pirie Y. CMcago Title & Trust Company. 182 U, S, 438^56

182 U. S. 438^50, 45 L. 1171, PIRIE v. CHICAGO TITLE & TRUST
COMPANY.

Question Is whether payment In money "without intent to prefer
creates preference, p, 44 2»

Approved In In re Delling, 124 Fed. S54, holding any payment
made and received within four months of banltruptcy even in good
faith constitutes preference*

Section 60a, bankruptcy act 1898, defines preferences, p, 443.

Approved in Swarta v. Fourth Nat Banl£, 117 Fed. 3, holding
section 6t^a furnisiies controlling definition of preference specified
in banivruptcy act.

Money Is property in matters of preference, p. 443*

Approved in New York Co* Bank v. Mnssey, 192 tJ. S. 147, 148,
24 Sup. Ct, 201, 202, holding deposit of money subject to checli of
insolvent depositor is no transfer conslitiiting preference; In re
Stege, 110 Fed. 344, holding Insolvent depositors delivery to hank
of money and checks subject to draft constituted preference which
must be surrendered; In re Col ton Export & Import Co,, 115 Fed*
161, 162, holding money and merchandise cannot he lep:ally dls-
Ihiguished in matters of preference; Shermim v. Luckhardt, fiG Mo.
App. 324, 70 S. W* 3S9, holding under bankruptcy act 1S08, § 67e*
payment of money may coustltute transfer which is a preference;
dissenting opinion in Jaquith v* Alden. 189 U. S. 83, 23 Sup. Ct. 651.
47 L, 719, majority holding payments on mining account received
In regular course of business after insolvency without intent to
prefer constitute no preference.

Distinguished in Jaqulth v. Alden, 189 U. S. 81, 83, 23 Sup. Ct
♦5oC», ^tT)l, 47 L. 718, 719, holding payments by vendees on running
account for goods sold after Insolvency, received in reguiar course
of business without intent to defraud, are not preferential,

'* Transfer*' within bankruptcy act, | 60a, is every mode of dis-
posing of property, p. 444.

Approved In United States v. Lucius Beebe, 122 Fed. 766, holding
term *' money *' used in section 25, tariff act 1897, for reliq nidation of
entries for variation in values, means ** coin;" In re Stege, 116 Fed.
344. holding Insolvent depositor's delivery of cash and checks to
bank for his credit and subject to draft was preference vrhich bank
must surrendtn*; In re Wright Furniture Co., 114 Fed. 1013, holding
where bankrupt owing bank ^1.945 and claimant $940 executed trust
deed of all property for claimant's benefit to secure payment of
both debts, claimant received preference; In re Metzger Toy, etc,
Co., IH Fed. 958, holding unless creditor return sum received from
sheriff to trustee of bankrupt company creditors claim will be
tlisallowed; Boyd v. Lemon & Gale Co., 114 Fed. 649, holding insol-
vent's sale of property to one not a creditor and apply proceeds In
l^iyment of certain creditor is act of bankruptcy.

1
1

1225 Pirie V. Cblcago Title & Trust Company. 182 U. S. 438-45C

because not recorded, vendor can claim as unsecured creditor odIj
|iy surrendering preference received; Dickinson v. Security Bank.
«te.» 110 Fed. 354p lioldlng bankmptcy act requires creditor to re-
store relations between him and bankrupt In statu quo; In re Kellar,
110 Fed. 350, 351, holding deposit with bank v^ithln four months
of bankraptey. used by bank In paying overdraft constitutes
[(reference; In re Sanderlin, 109 Fed. 860. holding void, as preference
mortgage within four mouths of adjudication, to secure existing
debt and cash consideration; In re Burlington Malting Co., 109 Fed,
779, holding petition of creditor having attachment on debtor's prop-
erty cannot maintain petition for bankruptcy; Sherman v. Luck-
hardt. 65 Kan. 612, 614, 70 Pac* 702. 703, holding preferential pay-
ment by debtor within four months with intent to defraud is not
void but must be surrendered before proof of balance; dissenting
opinion In Wilson Bros. v. Nelson, 183 U. S. 215, 46 L. 157, 22 Sup.
CL 83, majority holding failure of insolvent to file voluntary petition
at least Ave days before sale of property under judgment on Irre-
vocable power of attorney constitutes preference; dissenting opiniou
in Kahn v. Cone Export, etc, Co., 115 Fed. 291, majority holding
bankroptcy act. § iJOc, entitles creditor receiving preferential pay-
ment on account and extending new credit may deduct such credit
from surrender amount.

Distinguished In In re Busby. 124 Fed. 470. holding amendatory
act February 5, 1903, changed law as to surrender of preferences;
Pollock V. Jones. 124 Fed. H>8, holding cliattel mortgage given by
niember of insolvent partnership within four months' period consti-
tutes preference; In re Wolf tSc Levy. 122 Fed. 120, 130. 132. 134.
135, 137, 130, holding new credit extended to bankrupt within four
months before bankr»iptey and after full settlement of old account
constituted provable claim without surrender of prior payment;
In re Bullock, 116 Fed. 660, holding where debtor settled up com-
raercial account by giving negotiable notes before insolvency, pay-
ment to indorsee within four montlis Is not preference; In re Dick-
son, 111 Fed. 726. 727, holding bankruptcy act, | 57 g, does not re-
quire cre<litor to surrender partial payment received on account from
lime to time In regular course of business.

Preference provisions In acts of 3807 and 1898 are different, p. 448.

Approved in WiLson Bros, v, Xelson. 1S3 U. S, 194, 40 L. 140, 22
Sup. Ct. 76. holdhig insolvent's failure to Hie petition before sale of
propertj' under judgment on Irrevocable power of attorney con-
stitutes preference; In re Henschel, 109 Fed. 862, relBting proccHl-
iugs before referee for ascertainment and expunging of preferenthil
ruiyments*

Object of bankruptcy act is to secure equality of distribution
iunong creditors, p. 440.

Approved in Dressel v. North State Lumber Co., 110 Fed. 534.

182 U. S. 450-498 Notes on U. S. Reports. 1226

holding refunding to banis of money paid to be nsed by bankrupt
for particular purpose and not so used constitutes no preference;
Buder v. Columbia Distilling Co., 96 Mo. App. 561. 562, 70 S. W.
508, 509, holding trustee in bankruptcy not barred from recovery of
preferential claim by failure to contest allowance thereof.

No mere omission Justifies Judicial addition to language of
statute, p. 152.

Approved in United States v. Beebe, 122 Fed. 766, holding word
" money " in tarifiT act 1897, for reliquidating entries for variation in
value of foreign currency, means coin.

Subdivision c of section 60 of bankruptcy act permits set-offs in
case under subdivision b, p. 455.

Approved in In re ToplifiT, 114 Fed. 325, holding customer of bank-
rupt stock broker receiving payments made on indebtedness within
four months need not surrender same; In re Oliver, 109 Fed. 786,
holding petition of creditors who received payment within four
months of bankruptcy and gave new credit to set off claim against
amount received should be denied.

Distinguished in Gans v. Ellison, 114 Fed. 736, holding under
section 60 creditor giving new credit need not refund more than
excess of payments received over such credit; C. S. Morey Merchan-
tile Co. V. Schiffer, 114 Fed. 450, holding section 60c entitles inno-
cent creditor within its provision to set off new credits against
amounts required to be surrendered under section 57g; In re
Schenkfin, 113 Fed. 427, holding under section 67 attaching creditor
has in substance a lien on property constituting a preference; In re
Southern, etc., Mfg., Ill Fed. 523, holding under bankruptcy act
1898, § 60c, creditor receiving preferential payments and extending
credit may deduct amount of credit extended in good faith, without
security.

Miscellaneous. Cited in Hutchinson v. Otis, etc., Co., 123 Fed.
15, holding under bankruptcy act 1898, no appeal lies to Supreme
Court from decision of Circuit Court of Appeals except on certificate
of Justice that amount in controversy exceeds $2,000, and that ques-
tion is one which might have been taken directly from State to
Supreme Court; In re Koenig, 127 Fed. 892, dismissing petition to
review disallowance of claim where petition brought three years
after disallowance.

182 U. S. 45^-461. Not cited.

182 U. S. 461-498, 45 L. 1183, CLEWS v. JAMIESON.

Committee of stock exchange receiving deposit of funds become
trustee of fund, p. 479.

Approved in Hunter v. Bobbins, 117 Fed. 925. holding bank re-

1227

Notes on U. S. Reports,

1S2 U. S. 4riO-5C*]

coiving dei>08it bj person as treasurer of railway company had
uotice of latter's fidnolary relation and also became flduclary.

Sale for future delivery is valid until intent not to deliver is
fihown, p. 4S9.

Approved In Board of Trade v, L. A. KInsey Co., 125 Fed. 74, To,
77. holding contracts for future delivery are valid unless there be
Intent not to deliver

Gambling on stock excliauge is in violation ot and not pur-
suant to rules, p. 492.

Approved in Board of Trade v* Christie Grain, etc., Co., 116 Fed.
94*s holding sale made under stock exchange rule imposing obliga-
tion to deliver and to receive Is presumed to be valid*

Illinois cases* establishing invalidity of *' option contracts," re-
viewed, pp. 494, 495,

Approved in Christie Grain & Stock C^. v. Board of Trade, 12,1
Fed. 16", holding Chicago board of trade not entitled in equity to
protect property rights in quotations where 85 per cent of deals
contemplate no delivery; Whiward v. Lincoln, 23 K I. 483, 51 Atl.
109, holding note given by citizen of Rhode Island, delivered in
Massachusetts, is Massachusetts instrument, governed by laws of
that State.

Rules of stock exchange provide remedy for enforcement of liens
but not to exclnsion of equity courts, p. 496,

Approved in Hutchinson v. Otis. 115 Fed, 943, holding court of
bankruptcy may recognize and enforce lien for debts due from
defaulting member of stock exchange, though not proved accord-
lag to exchange's rules.

182 U. S. 499-510, 45 L, 1200, CALHOUN GOLD M, CO. v. AJAX
GOLD M. CD.

Location of land containing apex of vein Includes all other
veins within apices therein, p, 508.

Approved In Neilsen v. Champagne Mining Co., 119 Fed, 125, hold*
lag certificate of entry invests purchaser with full equitable title
to land and is equivalent to patent as to third persona; State v.
District Court, 25 Mont, 520, 65 Pac. 102G, holding owner of surface
entitled to ore therein by common law rights, where clalmaDt's
location does not contain apex. See 83 Am, St Rep. 43, note.

Patent dates bacli to location of claims and cannot be collater-
ally attacked, p. 510,

Approved in Uinta Tunnel Co. v, Creede, etc, Co,, 119 Fed. 166,
folding patents Issued by land department cannot be collaterally
•.^tacked.

182 U. S. 510-530, Not cited.

%

182 U. S. 53e-610 Notes on U. S. Reports. 1228

182 U. S. 536-^55, 45 L. 1218, LANTRY v. WALLACE.

Fraudulent representations Inducing person to become stock-
holder, afford no defense to suit by receiver, p. 550.

Approved In Hood v. Wallace, 182 U. S. 555, 45 L. 1227. 21 Sup.
Gt. 885, following rule.

182 U. S. 556-562, 47 L. 1227. COMMERCIAL NAT. BANK f.
CHAMBERS.

Moneyed capital In Rev. Stat., S 5219 does not Include that wbieb
does not compete, p. 560.

Approved In Illinois Nat Bank \. Kinsella, 201 IlL 38, 42, 06
N. E. 339, 341, holding, under Hurd's Rev. Stat 1889. shares and
personalty of other banks are taxed to full value, and such prop-
erty of national banks are also taxable.

182 U. S 562-576. Not cited.

182 U. S. 576-583, 45 L. 1237, DISTRICT OP COLUMBIA ?.
MOULTON.

Where but one inference can be drawn as to negligence, question
is for the court, p. 579.

Approved in Dunworth v. Grand Trunk, etc., Ry.. 127 Fed. 300.
holding where facts and Inferences to be drawn therefrom touch-
ing contributory negligence are doubtful, question is for jury; Priestly
V. Provident Sav. Co., 112 Fed. 272, holding where evidence of false
statement In insurance policy is insufficient to support verdict for
plaintiff, court should direct for defendant

182 u! S. 583-595, 45 L. 1241. JACOBS v. MARKS.

Whether Michigan received full faith and credit In Illinois f«
Federal question, p. 587.

Approved in Commercial Pub. Co. v. Beckwith, 188 U. S. 5G0. 23
Sup. Ct 383, 47 L. 599, holding complaint setting up right to re-
cover as result of Judicial sale under decrees of Federal and Staie
courts states Federal question; National T. & P. Works v. Oconto
City W. S. Co.. 183 U. S. 233, 46 L. 169, 22 Sup. Ct. 118. holding
determination whether court below properly applied plea of res
adjudicata, requiring determination whether due effect was given
decree, is Federal question; Railroad v. Bentz. 108 Tenn. 675. 01
Am. St Rep. 766, 69 S. W. 319. holding where on second trial plain-
tiff took nonsuit neither first decision nor decision on appeal con-
stituted the law of the case as to fellow servants.

182 U. S. 595-610. Not cited.

CLXXXIII UNITED STATES.

183 U. S. 1-13, 46 L. 49, HOLZAPFEL'S CO, y. RAHTJEN^S CO.

United States registered trademark of name Liebig's Extract of
Meat Id effective against defendant's prior right» p. 10.

ApproTed la Liebig, etc., Co. v. Walker, 115 Fed, 827, holding
defendant has right to designate product by name of Liebig's Ex-
tract of Meat

Defeniiant manufacturing " Rahtjen's Com position" after patent
expired must show defendant* i manufacture, p- 13.

Approved In Liebig, etc, Co, v. Walker, 115 Fed, S27, holding
defendant manufacturing "Liebig's Extract of Meat" cannot be
enjoined from using name, but must designate his manufacture
thereof-

183 U, S. 13-22, 46 U 55, KNOXVILLE IRON CO, v. HARBISON,

Tennessee statute, requiring redemption of store orders issued to
employees, is constitutional, p. 21.

Approved in Dayton Coal & Iron Co, v. Barton, 183 U. S. 24, 46
L. 64, 22 Sup. CL 5, holding fact that corporation Is foreign Is no
defense against Tennessee statute, valid na to domestic corpora-
tions, requiring redemption of store orders issued to emploji^es;
State X, Krentzberg, 114 Wis. 543, 90 N: W. 1103, 91 Am. St. Rep.
©44, holding Invalid Rev. Stat 1898, | 4466b, providing that no
person or corporation shall discharge employee for membership in
labor organization.

Right of contract may be restrained as to corporations, as de-
manded by safety of State, p, 22.

Approved in International, etc, Co. v. Welsstuger, 160 Ind. 355,
€5 N. E. 524, upholding Acts 1899, p. 193, § 4, prohibiting assignment
of wages to become due to employees; Kilpatrick v. Graud Trunk
Ry., 74 Vt 300, 93 Am. St Rep. 805. 52 Atl. 535, holding, under
Vt. Stat 3886, 3887, requiring car ladders to be placed on end jf
cars on penalty of liability for injuries therefrom, employee can-
cot assume risk.

183 U. S. 23, 24, 46 L. 81, DAYTON COAL 5t IRON CO, v. BARTON.

Court does not intimate that uncofistltutlonal reBtrictions may he
Imposed upon foreign corporations, p. 25.

Dlstinguisbed in Cable v. United States Life Ins. Co., 191 U. S.
307, 24 Sup, Ct 77, holding corporation created by one State can

[12201

183 U. 8. 25-78 Notes on U. S. Reports. 1230

operate In another only according to terms of tatter's consent, ex-
press or Implied.

183 U. S. 25-42, 46 L. 64. McMASTER v. NEW YORK LIFE INS.
CO.

Evidence of unauthorized Insertion of provision as to dating of
policy is admissible, p. 37.

Approved in Carrollton Furniture Mfg. Co. v. American Credit
Indem. Co., 115 Fed. 81, holding where incorrect answer to appli-
cation was induced by agent's misunderstanding of question, com-
pany is estopped to forfeit; Gwaltney v. Provident Sav. Life Assur.
Soc., 132 N. C. 928, 44 S. E. 661, holding rule that oral agreements
are merged into writing is inapplicable where written instmmeDt
by fraud executed differently from terms of agreement; Bostwicte
V. Mutual Life Ins. Co., 116 Wis. 437, 440, 92 N. W. 267. 259, hold-
ing insurer accepting policy fraudulently differing from one repre-
sented by agent must reject same within reasonable time.

Distinguished in Glass v. Masons' Fraternal Ace. Assn. of Am.t
112 Fed. 499, holding provision in policy that Insured would cairry
insurance one year and would pay assessments quarterly does not
vary or contradict application.

Insured's omission to read policy purporting to be as agreed
does not bind him, p. 39.

Approved in Carrollton Furniture Mfg. Co. v. American Credit
I. Co., 124 Fed. 31, holding company cannot forfeit policy for false
answer in application, induced by representation of agent of In-
surer, as to question's meaning.

183 U. S. 42-61. Not cited.

183 U. S. 62-66, 46 L. 85, DISTRICT OF COLUMBIA ▼. ESLIN.

Under 29 Stat. 665, 669, Supreme Court has no jurisdiction of
appeal by District of Columbia from Judgment allowing claim,
though appeal permitted prior to statute, p. 65.

Approved in District of Columbia v. Barnes, 187 U. S. 638, 23
Sup. Ct 846, 47 L. 344, reaffirming rule; Pam-to-Pee v. United
States, 187 U. S. 382, 23 Sup. Ct 147, 47 L. 226, holding Court of
Claims had Jurisdiction to find amount due from United States
to Pottawatomie Indians, under act 1890, and to render judgment
thereon.

183 U. S. 66-78, 46 L. 86, GULF AND SHIP ISLAND R. R. CO.
V. HEWES.

The fact that the act as construed impairs contract, that confer*
jurisdiction, p. 75.

Approved in Northern Cent. Ry. Co. v. Maryland, 187 U. S. 2CT.
23 Sup. Ct. 06, 47 L. 172, holding where State court has piven
effect to subsequent law Supreme Com't determines whether fudi

i231

Notes on U. S, Reports.

183 U. 8. 70-115

effect violates Federal Constltntloii; Purnell v. Page, 128 Fed.
4mJ. liolclJug^, under act August, 1888, making Circuit Court Jurls-
' dictlona! aniouat $2,fXiO, court haa no jurisdiction over suit to
restrain collection of personalty tax of |S0,

1S3 a S. 79-115, 40 L, 92, COTTING v. KANSAS CITY STOCK
YARDS CO.. ETC,

Present value of property Is test by which reasouabieness is to
be determined, p. 91.

Approved in Spring Valley Water-Works v. San Francisco, 124
Fed. 585, holding reasonableness of water rates depends on value
of property necessarily used and reasonable value of services;
Kennebec AVater Dist. v. WatervUle, 97 Me. 203, 207. 54 AtL 13,
14, holding reasonableness of water rates must be based on fair
market value of real estate used, cost of service, and quality of
fiorviee rendered; dissenting opinion in Louisville & N, R. R. Co.
V. Eubank, 1S4 U. S, 46, 4Q L. 424, 22 Sup. Ct 284, majority hold-
ing unconstitutional Ky. Const, § 218, prohibiting carriers from
charging more for short haul than for long haul extending outside
State,

Legislature's prescription of rates is prima fade evidence of rea-
sonableness, p. 97.

Approved in Chicago Union Traction Co. v. Chicago, 199 111, 642,
<]5 N, E. 491, holding rate of fare for street railways prescribed
bj city ordinance is presumed reasonable until contrary la shoi\^.

In determiniug reasouabieness of rate regulation question is al-
ways, what is tbe value of services rendered, p. 97.

Approved in Kennebec Water Dist. v. Water vi lie, 97 Me. 207. 54
Atl. 14, holding reasonableness of water rates depends on fair
market valne of realty engagedi cost of service and quality of ser-
vice rendered.

It would defeat legislation to require statute to subject all to
same burden.s, p. 111.

Approved In State v. Hammond Packing Co., 110 La. 187, ISS,
189. 34 So. 371, upholding Acts 1898, p. 192, taxing certain classes
of corporations doing business wdthin State, but domiciled else-
where.

Statute discriminating between persoua In same class of business
based on amount thereof is invaUd, p, 112.

Approved in Connolly v, Uuioii Sewer Pipe Co., 184 U, S. 501,
46 L. 04K), 22 Sup. Ct. 440, holding unconstitutional 111. trust act
1S93, dlscriminatiug in favor of agricultural products and live stock
la hands of producer or grower; Union Co. Nat. liank v. Oz:iti
Lumber Co., 127 Fed. 212. holding void Ark. act April 23, ISiU.
refiulring all negotiable instruments In pajraont of patent riglit
or thing except those of dealers therein to i'oliow printed form;

J

183 U. S. 115-129 Notes on U. S. Reports. 1232

August Busch, etc., Co. v. Webb, 122 Fed. 667, holding unconsti-
tutional article 3385, Tex. Rev. Stat. 1895, providing that physicians
who do not follow practice of medicine cannot prescribe liquor
as medicine; State v. Mitchell, 97 Me. 72, 73. 53 Atl. 889. 94 Am.
St. Rep. 484, holding Invalid hawkers and peddlers act 1901, ex-
empting from license fee those who own and pay taxes on stock
In trade to amount of $25; People v. Orange Co. Road Cons. Co.,
175 N. Y. 89, 67 N. B. 130, holding unconstitutional Penal Code.
§ 384h, prohibiting any person or corporation contracting with State
from requiring over eight hours' labor per day; Matter of Pell,
171 N. Y. 58, 63 N. B. 792, 89 Am. St Rep. 797, holding unconstitu-
tional Laws 1899, chap. 76, amending Laws 1896, providing for
tax on remainders and reversions vested before 1885, upon their
coming into possession; dissenting opinion in People v. Lochncr,
177 N. Y. 181, 69 N. E. 387, majority upholding Laws 1897, pro-
viding that no employee in bakery shall be required to work more
than sixty hours a week nor ten hours a day.

Distinguished in Consolidated Coal Co. v. Illinuis, 185 U. 8. 207.
46 L. 876, 22 Sup. Ct. 618, upholding 111. act 1879, amended 1897,
for inspection of coal mines employing over five men, giving in-
spectors control of frequency of visits; New York v. Bennett, 113
Fed. 519, upholding N. Y. Laws 1895, providing that persons re-
cording wager without transferring memorandum thereof shall
not be punished criminally if done on certain racecourses; dis-
senting opinion In Connolly v. Union Sewer Pipe Co., 184 U. 8.
570, 46 L. 694, 22 Sup. Ct 443, majority holding unconstitutional
111. trust act 1893, discriminating in favor of agricultural prodnett
and live stock in hands of producer or raiser.

Decree Is reversed and dismissal, as to attorney -general directed
without expressing opinion on question of jurisdiction, p. 114.

Approved in Union Trust Co. v. Stearns, 119 Fed. 793, holding
suit against attorney-general to enjoin criminal prosecution under
State statute is suit against State.

183 U. S. 115-121. Not cited.

183 U. S. 121-129. 46 L. 113, WILSON v. MERCHANTS' LOAN *
TRUST CO.

Special finding must find ultimate facts, otherwise only rulings
excepted to are reviewable, p. 127.

Approved in United Statea Trust Co. v. New Mexico. 183 t.
S. 540, 46 L. 319, 22 Sup. Ct. 174, holding agreed statement of facts
reciting evidentiary facts or testimony only presents nothing for
appellate court to review; McDowell v. McCormick, 121 Fed. 04,
holding general finding for defendant is conclusive upon all Issues
of fact raised by pleadings; American Nat. Bank v. Watkius. 11^
Fed. 554, holding appellate court cannot examine evidence to a*-

Notes on U. S. Reports. 183 U, S. 130-144

[Certain whether special finding warranted, inquiry being confined
to error in exclusion or admission of teatimony; Corliss v. Pulaski
Connty, 116 Fed. 291» holding special finding ehooM be complete la
itself and should not contain any statement of evidence; M'Crea
▼. Parsons, 112 Fed. 918. holding where In trial toy court only
general finding? of facts Is made appellate court can consider only
rulings to which exceptions have been taken.

183 IT. S. 130-132. 4G L. 117, HASELTIXE v. CENTRAL BANK OP
I SPRINGFIELD (No. 1).
[ Judgment of reversal merely is not final, p. 132.

Approved In Gee v. Gee, 190 U, S* 557, 23 Sup» OL 854, 47 L,
USB; Second Nat. Bank v. Fitzpatrick. 189 U, S, 508. 23 Sup. Ct
853. 47 L. l»22; White v. Wright. 1«9 U. S. 507, 23 Sup. Ct. 852, 47
L, 922; Cook v. Tennessee. 187 U. S. 639, 23 Sup. CL 847, 47 L.
S44; Siegel v. S warts. 187 U. S. 63S. 23 Sup. Ct. 840, 47 L. 344,
and Bogy v. Daugherty, 181 U. S. titKJ, 46 L. 763, 22 Sup. Ct 93^
fill reaffirming rule.

.183 U. S. 132^137, 4G L. 118, HASELTINB v. CENTRAL BANK
OF SPRINGFIELD (No. 2).

WTiere statute creates new right and specific remedy such remedy
Its exclusive, p. 13*j.

I Approved in Schuyler Nat. Bank v. Gadsden, 191 U. S. 456, 24
Bup. CL 130, holding question of usurious interest paid on note
held by natlouai bank is governed by remedy of Rev. Stat, $ 5198,
though arising on foreclosure of mortgage; Tucker v. Alexaodrofl',
183 U, S. 43G, 4(i L. 270, 22 Sup. Ct 200, holding vessel which tiaa
been launched under contract to build cruiser for Russia i« Rus-
BiiLii ship of war within treaty of 1832, for apprehension of de-
serters; First Nat Bank v. Americaa Nat Bank, 173 Mo. 158» 72
iS. W, 1()CQ» holding Federal question raised directly by record
Where answer pleads want of power in ban It under national bank-
ing act to bind Itself to pay draft of another; First Nat. Bank v.
Hunter, 109 Tenn, 90, 70 S> W\ 371, holding where usury has been
barged and received by national bank in discounting notes remedy
Of Rev. Stat U. S.. S 5198, is exclusive. See 85 Am. St. Rep, 535,
note.

Distinguished In Citizens' Nat Bank v. Donnell, 172 Mo. 409,
12 S. W. 9Q1, holding interest on renewing indebtedness at 7 per
' Cent in interest due on old note is usurious by Rev, Stat 1899,
\ t3706.

183 U. S. 138-144, 4G L. 120, STORTI v, MASSACHUSETTS,
i Writ of habeas corpus will seldom be substituted for writ of •

wor» p, 141. • I

j Approved in Hall v. Jobnsoa, 18G U. S. 4S0, 46 U 1259, 22 Sup.
Vol. Ill « 78

183U. S. 144r-176 Notes on U. S. Reports. 12SM

Ct 943, and Bissert v. Hagan, 183 U. S. 694, 46 L. 393, 22 Sup.
Ct 935, both reaffirming rule; In re Laing, 127 Fed. 216, holding
court has power and right to award writ of habeas corpus for
release of officers of Federal court indicted in State court; Ex
parte Reaves, 121 Fed. 861, holding where parties agree that facto
set forth in petition are true, demurrer to return taken aa admission
of truth of facts.

Writ of habeas corpus refused where grounds stated in petition
are frivolous, p. 144.

See 87 Am. St. Rep. 201, note.

183 U. S. 144^151, 46 L. 125, PINNEY v. NELSON.

Law to impair obligation of contract must be passed subsequent
thereto, p. 147.

Approved in Blackstone v. Miller, 188 U. S. 206, 23 Sup. Ct 279,
47 L. 445, holding where law imposing tax was in force before
deposit in question was made, it cannot impair obligation of con-
tract; Diamond Glue Co. v. United States Glue Co., 187 U. S. 615.
23 Sup. Ct 207, 47 L. 332, upholding Wis. Stat 1898, SS 1770b, 4978.
prohibiting operation of foreign corporation without filing charter,
as to contracts thereafter made; Oshkosh Water- Works ▼. Oshkosb,
187 U. S. 446, 23 Sup. Ct. 237, 47 L. 253, holding contract ot August
1891, cannot be impaired by amendment to charter made in Marcli
of that year. See 95 Am. St Rep. 893, note.

Where parties contract for business to be done in a estate, th«
laws thereof apply, p. 151.

Approved in London, etc.. Bank v. Block, 117 Fed. 905, holding
franchise of foreign banking corporation to do business in Cali-
fornia is taxable therein; Keystone, etc., Co. v. Superior Court,
138 Cal. 745, 72 Pac. 401, holding stockholders in nonresident cor
poration, doing business in California, who are themselves citizens
of such State, are presumed to know its laws; Swedish, etc., Nat
Bank v. First Nat Bank. 89 Minn. Ill, 94 N. W. 222. holding law
governing pledges of grain is law of State wherein grain is situated

Distinguished in State v. New Orleans Warehouse Co., 109 La. 72.
33 So. 85, holding foreign railway's right to operate in State wiJ]
not be taken away because its charter powers are broader tbao
State laws allow.

183 U. S. 151-176, 46 L. 128, DOOLEY v. UNITED STATES.

Power to regulate interstate commerce if unrestrained would
destroy unity sought by Constitution, dissenting opinion, p. 171.

Approved in dissenting opinion in Lottery Case, 188 U. S. 372.
23 Sup. Ct 333, 47 L. 507, majority holding carriage of lottery
tickets by interstate express carrier between States is interstal*
commerce within prohibitory power of Congress.

1235

Notes on U. S. Reports.

183 U. S. 176-191

. 183 U. S. 176-185, 46 L, isa FOURTEEN DIAMOND RINGS V.
UNITED STATES.
From date of rattflcatloa of treaty of PadR, Philippine Islands
became part of UnlteiJ States, p. 179,

Approved In Dooley t. United States, 183 U, S. 158, 163* 46 L.
132, 134, 22 Sup. Ct 65. 87, upholding Foraker act April 12, 1990,
imposing duties upon Imports into Porto Rleo from New York, aucb
not being duty upon exports within Constitution,

im U. S. 185-191, 46 L. 144, ARKANSAS v. KANSAS & TEXAS
COAL CO., ETC.
Jurisdiction must appear from plaintiff's statement of his ease,

p. isa

Approved in Commonwealth of Kentucky v. Chicago, etc.» Ry.
Co,. 123 Fed. 458, holding Circuit Court has no jurisdiction on
removal of suit by State to enforce collection of tax Imposed by
State statute; Wichita v. Missouri, etc.» K. Telephone Co., 122 Fed.
100, holding not removable cause disclosing no reliance on any
Federal law or the Constitution of the United States; South Caro-
lina v. Virginia-Carolina, etc., Co., 117 Fed. 731, 732, holding no
Federal question presented In suit against foreign corporation for
penalty under State law purporting to be police measure; State v.
Frost, 113 Wis. G51, 89 N. W. 921, holding act 1887. chap. 373. con-
cerning removal from State courts embodied requirement that
plaintiff's statement must disclose Federal question.

Jurisdiction cannot be conf^Ted by allegation that defense will
involve constitutionality of State statute, p. 188.

Approved In Boston, etc., Mining Co. v, Montana Ore Co., 188
0. S. 639. 23 Sup. Ct. 437, 47 L. 632. holding Federal Jurisdiction
cannot be conferred by allegation as to intended defense where de-
fendant disclaims Intention to rely thereon; Tllhoil v. Maurice, 185
U. S. Ill, 46 L. 829, 22 Sup. Ct . holding ejectment agamst Individ-
ual clatming ouster is violation of Constitution, and treaty with
France presents no Federal question; Board of Councllmen, etc. v.
State Nat. Bank, 184 U. S. 696, 46 L. 763, 22 Sup. Ct 940, reversing
and remanding to Circnlt Court, with direction to remand to Statt*
court; Hnguley Mfg. Co. y. Galeton Cotton Mills, 184 U. S, 294, 46 L.
648. 22 Sup. Ct 454, holding no right of appeal from final Judgment
of Cireolt Court of Appeals la given by act 1891 by provision for re-
view by certiorari or otherwise; Joy v. St Louis, 122 Fed. 525, hold-
ing Federal Jurisdiction cannot be conferred by plain tiffs allegation
tiiat his claim as to construction of confirmatory acts of Congress is
disputed by defendant; Tllhoil v. Torney. 119 Fed. 976, holding
Federal Jurisdiction not conferred by allegation in ejectment that
defendant 1ft In possession by direction of United States.

1

183 U. S. 191-237 Notes on U. S. Reports. 1236

Right of court to exercise judicial luiowledge is subordinate to
requirements of procedure, p. 190.

Approved in Bankers', etc., Co. v. Minnesota, etc., Ry., 192 U. S.
383, 24 Sup. Ct 329, holding suit against railway company for
value of registered mail package does not arise under Federal law;
Mutual Life Ins. Co. v. McGrew, 188 U. S. 309, 312, 23 Sup. Ct.
379, 380, 47 L. 486, holding failure to claim under treaty cannot
be supplied by Judicial knowledge; South Carolina v. Virginia-Caro-
lina, etc., Co., 117 Fed. 732, holding suit against foreign corpora-
tion for penalty under State statute, purporting to be passed under
police power, Federal laws not being mentioned, is not removable.

183 U. 8. 191-216. 46 L. 147, WILSON v. NELSON.

Under section 60 preference is given where enforcement of Judg-
ment gives creditor disproportionate percentage of debt, p. 197.

Approved in Bradley Timber Co. v. White, 121 Fed. 784. holdin;;
fnfliirp to dischnrjre preference obtained by legal proceedings within
five days before property disposed of is act of bankruptcy, affirm*
iw^ \viiite V. Bradley Timber Co., 119 Fed. 989, 990; In re Ed. W.
Wright Lumber Co., 114 Fed. 1013, holding execution of trust deed
of debtor's property for claimant's benefit, to secure bank's claim
of $1,945 and claimant's $940, constituted a preference; In re
Metzger Toy, etc., Co., 114 Fed. 958, holding payment to claim-
ants made under execution, with no knowledge of insolvency, con-
stituted preference under section 60a, bankruptcy act 1898; Gabriel
V. Tonner, 138 Cal. 65, 70 Pac. 1022, holding under bankruptcy act
1898, § 60, intent of bankrupt is not essential element of preference.

Distinguished in Thompson v. Fairbanks, 75 Vt 373, 56 Atl. 15.
holding mortgage lien obtained more than four months l)efore
bankruptcy is valid.

Intent to give preference Is not inferable from mere inaction^
dissenting opinion, p. 206.

Distinguished in White v. Bradley Timber Co., 119 Fed. 990, hold-
Ing failure of insolvent corporation to cause preference to be va-
cated by showing claim Illegal or by paying same is act of bank-
ruptcy.

183 U. S. 210-237, 46 L. 157, NATIONAL FOUNDRY, ETC. t.
OCONTO WATER SUPPLY CO.

Resort may be had to pleadings where decree does not show
scope of decision, p. 234.

Approved in United States v. Norfolk & W. Ry. Co., 114 Fed. 686.
holding where final judgment has been appealed from and pen-
dency of appeal is pleaded to second mandamus proceeding, opinion
and pleadings of original case may be consulted; dissenting opinion
in Wood V. Wood, 134 Ala. 566, 33 So. 349, majority holding decree

123T

Notes on U. S. Reports,

18^ TT. S. 238-2?K>

dismlssiDg foreelosiiro suit without p:ronncI tlierefor appearing Is
res adjudicata ns to quostioti of Indebtedness.

183 U. S. 238-249, 40 L. 171, CAPITAL CITY DAIRY CO. v, OHIO.

Ohio statutes preveotiug miinufactiire and Bale within State of
oleomargarine colored to represent butter are valid, p. 247.

See notes, 85 Am. St. Rep. 101. 403,

183 D. S. 249-2t>2, 46 U 177, GREEN v, HENKEL.

It must be presumed tbat evidence before commissioner, approved
by judge, established probable tause, p. 151*.

Approved In United States v, Yarborougb, 122 Fed. 299, boldiug
commissioner holding preliminary examination for removal to an*
other district should transmit to judge a full statement of pro-
ceedings.

183 U. S. 263-277, 46 L, 190, THE KENSINGTON.

ExempiioEB limiting carriers from responsibility for negligence
are against public polity, p. 2GS.

Approved in The Manitou, 116 Fed. 62, boUlIng exceptlojis in bill
of ladlDg brought into operation by negligence of shipowner or his
servants are of no avail in this country.

Distinguished in Duncan v. Maine Cent. R, R. Co*. 113 Fed. 5uS,
holding person riding on free pass a^s^entiug to condition tbat he
should assume risk cannot recover for Injury for negligence of
carrier* 8 servants.

As a general rule the lex loci governs contracts, p. 269.

Approved In Smith v. Ingram, 130 N. C. 104, 40 S. E. 985, holding
deed executed In South Carolina covering lands sitmtted in North
Carolina is construed by North Carolina laws and must be acknowl-
edged separately by wife.

Stipulations relieving carrier from initial duty of furnishing
seaworthy vessel are void, p. 2G9.

Approved in The Southwark, 191 U. S. 17, 24 Sup. Ct. 6, holding
stipulations in bill of lading cannot relieve carrier of duty to fur-
nlsh seaworthy vessel including safe refrigerating apparatus.

1S3 U. S. 278^290, 46 L. 196, OHR v. GlLMAN.

N. Y. transfer tax law imposing tax on power of appointment
is valid, p. 287.

Approved in Gillup v. Schmidt, 183 D. S. 307, 46 L. 213, 22 Sifp.
Ct. 164, hoMlug nonresident executor is accorded due process al-
thoagh Ind. Stat., § 8560, for listing of omitted property provicies no
notice to nonresidents, where he appeared; Matter of Delano, 176
N. Y. 493, 68 N. E. 872, upholding Laws 1896. p. 868. as n mended
1897, Imposing tax on transfer of property by will, or Intestate law,

183 U. S. 290-365 Notes on U. S. Reports. 1238

or by exercise of power of appointment. See 88 Am. St Rep. 513,
note.

183 U. S. 290-209, 46 L. 203, SCHRIMPSCHER v. STOCKTON.

Possession under deed of Indian possessed of fee is onder color
of title, p. 298.

Approved in Dunbar ▼. Green, 66 Kan. 566, 72 Pac. 246, holding
fact that litigant is tribal Indian does not excuse delay of twenty-
one years before questioning deed. See notes, 88 Am. St. Rep. 706,
714. 71&

183 U. S. 300-307, 46 L. 207, GALLUP v. SCHMIDT.

Due process is accorded litigants if they have opportunity to
question assessment, p. 307.

Approved in Wilson y. Standifer, 184 U. S. 415, 46 L. 619, 22 Sup.
Ct 390, upholding Tex. act March 25,. 1897, authorizing forfeiture of
lands bought of State without Judicial hearing on default, where
purchaser may sue to show payment

183 U. S. 308-365, 46 L. 213, NORTHERN ASSURANCE CO. ?.
BUILDING ASSOCIATION.

A policy of insurance in writing cannot be altered or changed by
parol evidence, p. 321.

Approved in Modem Woodmen v. Tevis, 117 Fed. 370, 372, 873,
374, holding clerk of local camp of Woodmen cannot under by-laws
of order bind society by extending time or waiving default of pay-
ment of assessments; Sternaman v. Metropolitan L. Ins. Co., 170 N.
Y. 39, 62 N. E. 772, holding applicant may show answers given to
medical examiner who failed to record them although latter was
agreed upon as agent of insured; Granite BIdg. Co. v. Saville, 101
Va. 223, 43 S. E. 353, holding where employer is required by surety-
ship contract to gjve notice of default of employee, such notice is
a condition precedent to recovery; Maupin v. Insurance Co., 53 W.
Va., 501. 503, 45 S. E. 1005, 1006, holding inadmissible parol evidence
of oral waiver of ** iron-safe clause " by soliciting agent

Distinguished in Hartford Fire Ins. Co. v. Wilson, 187 U. S, 478.
23 Sup. Ct. 193, 47 L. 266, holding operative effect of policy may, by
oral agreement between agent and insured at time of issue, be made
to defend upon company's acceptance of risk; Hagan v. Scottish
Union, etc.. Ins. Co., 186 U. S. 433, 46 L. 1234, 22 Sup. Ct. 86fi,
holding words " for account of whom it may concern " inserted Ui
printed policy and inconsistent with printed form control the same
and protect assignees of interest in vessel; -32tna Life Ins. Co. v.
Pierson, 114 Fed. 60, 61, 62, holding acceptance and retention of
premium at home office for accident insurance for trip to Alaska
with knowledge of proposed trip waived condition against extra-
hazardous trips.

1239 Notes on U. S. Reports, 183 U. S. 365-401

The public have an Interest In maintaining validity of clauses
respecting notice of other inau ranee, p. 345.

Approved In Maiipin v. Insurance Co., 53 W, Va. o6T, 45 S. E, 1007,
holding Inadxulssible parol evidence of waiver by aolidtlng agent
of *• iron-safe clause " In insurance policy.

It is reasonable for insurance companies to provide that agents
cannot alter terms of policy, p. 301.

Distinguished In Thompson v. Traders* Ins. Co., 169 Mo. 2%,
68 S. W. 801, holding notice to general agent empowered to issue
additional insurance Is notice to company grounding waiver of
condition against other insurance.

Where waiver is relied ou plaintiff must show company liad
knowledge of facts, p* 301.

Approved in Supreme"Councilt etc, v, Taylor, 121 Fed, 68, 69, hold-
ing deceased cannot assert that supreme council waived right to
prompt payment of asseaaments because of unauthorized act of
collector which council did not ratify; Modern Woodmen v. Tevis,
117 Fed. 375, 377, 378, holding under by-laws of order clerk of
local camp of Woodmen cannot bind society by extension of time or
waiver of default in payment of assessment; Maupin v. Insurance
Co., 53 W\ Va. 5«2, 45 S. E. 1005. holding inadmSssIhie parol evi-
dence to show waiver of Iron-safe clause by soliciting agent, where
policy expressly prohibited waiver by agents.

Distinguished iu CarrolUon F, Mfg. Co. v, American Credit 1. Co.,
124 Fed. 20, 30, 31» holding policy not avoided by false answer by
Insured as to sales and losses where such statement was induced
by representation of agent as to its correctness; ^Etna Life Ins.
Co, V. Plerson, 114 Fed. 03, 64, holding retention of premium at home
oftlce for accident policy covering trip to Alaska constitutes waiver
of condition against extrahassardous trips; dissenting opinion in
Maupin v. Insurance Co., 53 W. Va., 571, 572, 573, 574, 576, 577,
579. 580. 581, 587, 588, 589, 590, 45 S. E. 1009, 1010, 1011, 1012, 1013,
1015, 1016, 1017, majority holding inadmissible parol evidence of
waiver by soliciting agent, of *' iron-safe clause *' In fire Insurance
policy.

183 U. S, 365-401, 46 L. 236, CARTER v. McCLAUGHRY.

Finding of court-martial within its jurisdiction is not reviewable
by civil courts, p. 381,

Distinguished In McClaughry v. Dening, 186 D, S. 69, 46 L. 1058,
22 Sup, Ct. 794, holding Invalidity of court-martial composed wholly
of regular army officers can be shown on habeas corpus by volunteer
soldier.

Law governing courts martial is found particularly In articles
of war, p. 386,

Approved In In re Brodie^ 128 Fed. 667t holding In imposing sen-

11:41

Notes on tJ. S. Reports.

18a U. S. 424-602

questions of surety comimny as to readerlng balances to customers
not an absolute warninty but satisfied by substantial compliance,

Distinjjuisbed In Fidelity & Deposit Co. v. Courtney, 180 U. S. 346,
350, 363, 4a L, 1100. 1197, 1202, 22 Sup. Ct. 835. 837, 842, boldfng
error in exclydlng certificate of bank cashier stating tbat president's
duties were satisfactorily performed does not warrant reversal
where proper Instruction given: Onlted States Fidelity, etc., Co. v.
Muir, 115 Fed. 2CJ7, 2C8* holding false statement by president made
in good faith and without knowledge of directors or authority from
tiieuj tiot binding on bank.

1S3 U. S. 424-470, 46 L. 2M, TUCKER v. ALEXANDROFF,

Treaty is interpreted in a manner to carry out Its manifest pur-

Approved in Wright v. Henkel. 190 U. S. 57, 23 Sup. Ct. 785, 47
L. 951, holding in question of extradition identity of statutes Is un-
necessary 8ub*«tantial compliance with extradition treaty according
to its Intent being sufiicieut

Seamen become obligated to merchant vessels from time they
sign shipping articles, p. 442.

Approved In The Ida G. Farreo, 127 Fed. 767, holding libelant
was member of crow from time of signing shipping articles and
was thencefortb amenable to maritime law of United States,

183 U. S. 471^83, 46 L. 283, FLORIDA CENTRAL, ETC., R. R. CO.
V. REYNOLDS.
How far in past State will compel payment of taxes is in its dis-
eretlan, p. 475.

Approved in Yazoo, ete., R, H, Co. v. Adams. 81 Miss. 114, 32 So.
i>4a, holding State may collect back ta^ces oo property wbich escaped
laxatiiin though same has changed bauds.

1S3 U. S. 483 "502, 46 L. 289, McCHORD v* LOUISVILLE & NASH-
VILLE R. R. CO,

Ky. act Mnr^b 10, 1000. regulating railway rate charges, set out
in lull p. 484.

Cited in Louisville & N. R. R. Co. v. Kentucky, 183 U. S. 504, 46
L. 301. 22 Sup. Ct IM>, uijholding Ky. Gen, Stat 181M, § 820. pro-
hibiting grcalcr charge for shorter haul except on permission of
I'ommissinn after investigation. See 90 Am. St Rep. 243, note.

Legislative action cjiuiiot be interfered with by injunction, p. 495.

Approved in EI kins v. Chicago, 119 Fed. 960, holding no Federal
<lueiition raised by action of city council in adopting committee
report finding that franchise expires at certain time and recommend-
ing ouster iff not reiicwed.

183 U. S. 503-<»2 Notes on U. S. Reports. 1242

183 U. S. 503-519, 46 L. 298, LOUISVILLE & NASH. R. R. CO.
V. KENTUCKY.

Ky. Const, 8 218, regulating long and short-haul charges is
valid, p. 5ia

Approved in Louisville & N. R. R. Co. v. Eubank, 181 U. S. 33,
46 L. 419, 22 Sup. CL 279, holding invalid Ky. Const., 8 218, pro-
hibitlDg greater charge for shorter haul so far as applied to longer
haul to or from point outside State. See notes, 90 Am. St. Rep^
243, 262.

Distinguished in dissenting opinion in Louisville & N. R. R. Ca
V. Eubank, 184 U. S. 43, 46 L. 423, 22 Sup. Ct 283, majority hold-
ing invalid Ky. Const., 8 218, prohibiting greater short-haul charge
so far as applied to long-haul point situated outside the State.

Interference with commercial power to be unlawful must be direct
and not merely incidental, p. 519.

Distinguished in WaU v. N. & W. R. R., 52 W. Va. 497. 44 8. B.
299, 94 Am. St Rep. 959, holding cars brought into State loaded
and to be returned likewise cannot be garnished to defeat me
thereof by persons so receiving and reloading.

183 U. S. 519-535. 46 L. 307, SOUTHERN PACIFIC R. R. CO. T.
UNITED STATES.

By act July 6, 1886, Congress forfeited to United States lands
granted to Atlantic & Pacific Company, p. 522.

Approved in Southern Pacific R. R. v. United States, 189 U. 8.
450. 23 Sup. Ct 568, 47 L. 899, holding lands within twenty-mile
limit were excepted from Southern Pacific grant of 1871 by section
23 of that act

Distinguished in United States v. Southern Pac. R. R. Co., 117
Fed. 552, holding Southern Pacific Company never acquired any
interest in public lands with thirty-mile limits of grant to Atlantic
& Pacific Company in 1870.

183 U. S. 535-545, 46 L. 315, UNITED STATES TRUST CO. ?.
NEW MEXICO.

Court's adjudication in favor of petition for back taxes estab-
lishes validity of assessments, p. 541.

Approved in Yazoo, etc., R. R. Co. v. Adams, 81 Miss. 114, 32 So.
94G, holding assessment of back taxes on land which escaped taxes
is valid though the property has changed hands.

183 U. S. 545-552, 46 L. 321, EX PARTE WILDER'S STEAM-
SHIP COMPANY.

Appeals from Hawaiian courts are governed by rules of appeal
from courts of States, p. 551.

Approved in Equitable Life Assur. Society v. Brown, 187 U. S.
rA)0. 23 Sup. Ct 123, 47 L. 191, holding under act April 30. 1900,

1243

Notes OQ U. S. Reports.

1S3 U, S. 553^19

providing goveniiuent for Hawaii, JurlsdictJoa of Snpreme Court to
review territorial decisions Is same am that for review of State
decisions.

183 U. S. 553-558, 48 L, 324. NUTTING v. MASSACHUSETTS,
A contract of marine Insurance is DOt an InBtmnientallty of

coiomerce, p, 556,

Approved in dissenting: opiDlOD In Lottery Gase^ 188 TJ. S. 3T0, 23
Sup. Ct, 332, 4? K 506, majority holding carriage of lottery tickets
between States by express carrier constitutes interstate commerce^
regulable by Congress.

183 U. S. 550-662. Not cited.

183 V, S. 563-5T2, 48 L. 331, McKINLEY CE1?EK: MINING CO. v.
ALASKA UNITED MINING CO.

Notice of mining claim location by distances from McKlnle.v
creeli is sufficient, p, 570.

Approved In Oregon King Mln. Co. v. Brown, 119 Fed, 55, hold-
ing under Rev. Stat, § 2324, any marking of mining claim from
which boundaries can be readily traced is suMcient

183 U. S, 572-582. Not cited.

183 U. S. 582^588^ 46 L, 339, CHICAGO, R. I^ ETC.. EY. CO. Y*
ZERNECKB,

Law applicable to common carriers should not be applied to living
men, p. 587.

Approved in Elder Dempster Shipping Go. v. Poupplrt, 125 Fed.
738. holdlag steamship company not liable for injury to passenger
from being struck by plank thrown overboard, where cause of
Injury was plaintlfTs presence in dsngerous place.

Section 3 of Nebr. railroad incorporation act 18G7 renders rail-
way liable unless passenger at fault, p. 588.

Approved In Chicago, etc., R, R. Co. v. Wolfe. 187 U. S. 638, 23
Slip. Ct. 847, 47 L. 344, reaffirming rule; Chicago, R. I. & P. R, R,
Co. V. Eaton, 183 U. S. 589. 590, 46 L. 342, 22 Sup, Ct 229, holding
railroad liable to administrator for death of passenger caused by
derailment of train.

183 U. S. 5SiWM)l. Not cited.

183 U, S. t)02-*319, 46 L. 317, MIDWAY COMPANY v. BATON.

Building caused to be erected by attorney of lialf-breed scrip-
holder under act 1854 is sufficient, p. 6ia

Approved in Midway Go, v. Eaton, 183 U. S. 620, 48 L. 358, 22
Sup. Ct. 208. rcafflrmlog rule; Midway Co. v. Eaton, 127 Fed. 1021,
upholding locations of half-breed scrip made under act July 17,
1854

183 U. S, 610-^4 Notes on U. S. Reports. 1244

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

183 U. S. 621-^1, 46 L. 358, TEXAS & PACIFIC RY. CO. ?.
REISS.

Delivery of cotton on company's own pier is no delivery to con-
necting carrier, p. 626.

Distinguished in Marandc v. Texas & Pac. R. R. Co.. 184 U. 8.
175, 46 L. 490, 22 Sup. Ct 341, holding delivery of cotton at car-
rier's terminal wharf at West Wego no deviation from route of
shipment from Texas to New Orleans.

In cases of doubt, words of bill of lading are construed against
carrier, p. 626.

Approved in Royal Ins. Co. v. Martin, 192 U. S. 162, 24 Sup. Ct
251, holding stipulation against risk in case of riot meant relief
from liability only in case riot caused or was connected with loss;
Parker v. Railroad, 133 N. C. 342, 45 S. D. 660, holding void, for
want of consideration, stipulation in bill of lading, ** subject to
delay."

183 U. S. 632-(i42, 46 L. 362, TEXAS & PACIFIC RT. CO. v.
CALLENDER.

Delivery of cotton at carrier's own pier is not delivery to cod-
nectiDg carrier, p. 640.

Distinguished in Marande v. Texas & Pac. R. R. Co., 184 U. S.
175, 46 L. 490. 22 Sup. Ct. 341, holding delivery of cotton at ter-
minal wharf at West Wego is no deviation from route of shipment
from Texas to New Orleans.

183 U. S. G42-G74. 40 L. 306, SUN PRINTING & PUBLISHING
ASSN. V. MOORE.

Where principal is disclosed, agent cannot be held unless he bo
agreed, p. 648.

Distinguished in General Electric Co. v. Gill, 127 Fed. 243. hold
ing defendant personally liable on proposal accepted, ** G. & Co. by
S. S. G., President," with ** President " erased.

Bailee is not responsible for return of thing hired when lost
without his fault, p. 054.

Approved in M'Cormick v. Shippy, 124 Fed. 51, holding claase
rolievinjj: charterer from liability from loss of yacht includes loss
by negligence, since he is not liable unless negligent, affirming 119
Fed. 229; W. H. Beard Dredging Co. v. Hughes, 113 Fed. GS2. hold-
ing there can be no recovery from charterer of vessel for Injury
thereto In absence of proof of manner in which injury was re-
ceived.

The contract fairly construed determines whether stipulation la
for damages or for a penalty, p. 003.

Approved in L. Bucki & Son Lumber Co. v. Atlantic L. Co.. 121

Notes on U, S. Reports.

Fed. 247, holding effect of stipulation for llquldntetl damages^ as
determining right of attachment, not passed on; International Trust
Co, V. WeeliS, IIG Fed. 809, holding dennirralde defense on lease
that responsihie parties were refused premises at higher rent with-
out showing parties responsible nor willingness to abide by lease;
Broolia v. Wichita, 114 Fed. 299, holding stipulation for forfeiture
of sum deposited as liquidated damages for delay in furnishing
eleetric lights, actual damages being hard to fix; Sherman v.
American, etc,, Assn.» US Fed. 613, holding enomeratlon of pow-
ers in charter does not prevent religious association from incldeo-
taJIy complying with terms of legacy requiring payment of
annuity.

Court of law has no dispensing power; it must enforce agree-
ment, p. 670,

Approved in Hanthorn v. Quinn. 42 Or. 14, 69 Pac, 821, holding
fact that work of establishing fishery according to contract was
more expensive than anticipated is no excuse for breaking same.

Disproportion between etlpoiated sum and possible damages from
breach of contract Is simply an element determining intent of
parties, p. 672.

Approved in Wood v: ^'lagara Falls Paper Co., 121 Fed. SI 9,
holding stipulation for liquidated damages of $100 per day for
delay in completing turbines prevented showing that no actual loss
occurred: Robinson v. Centenary Fund, 68 N- J. K 726, 54 AtL 417,
holding stipulation against starting newspaper within certain
limits within twenty-five years, on penalty of $1,200, was for liqui-
dated damages.

18a U. S. a75-C90, 40 L. 383, SOUTHERN PACIFIC R. R. CD. v.

BELL.

Company takes no title to Indemnity ianda until deficiency aa*
certained and selection approved, p, 682.

Approved In Clark v. Herington, 180 U, S. 209, 46 L, 1130, 22
Sup. Ct. 874, holding approval by land department of selection as
Indemnity lands^ sections open only to homestead ajid pre-emptors,
vests no title In railway.

Act July 27, 1S66, did not authorize withdrawal of Indemnity
lands by secretary of Interior, p. 090,

Approved in Holmes v- United States, 118 Fed, 908. holding un-
der act ISSl, protecting settlers improving odd-numbered sections
wkliin railroad withdrawal In good faith, right not lost by In-
clusion in forest reservation.

183 U. S. 090-092, Not cited.

183 U. S. 693^-686 Notes on U. S. Reports. 1246

183 U. S. 693, 46 L. 393, WISCONSIN BX BEL. GATES ▼. PUB-
LIC LAND COMBS.

Writ of error dismissed for want of jurisdiction, p. 698.

Cited in Northern Cent By. Co. v. Hering, 186 U. 8. 481, 46 L.
1259, 22 Sup. Ct 944, reaffirming rule.

183 U. S. 695, 46 L. 894, SOUTHEBN PACIFIC CO. ▼. YBABGIN.

Petition for writ of certiorari denied, p. 695.

Cited in dissenting opinion in St Louis Cordage Ca ▼. Miller, 126
Fed. 518, majority holding woman Injured while operating form-
ing machine, the cogs of which were unprotected, aMomed risk
of Injury therefrom.

1S4 U. S. 1-18. 46 L. 405, MUELLER v. NUGENT.

Herein petttion for review filed tinder BUbdlvlslon h, section 24,
bankruptcy act 1898, p. 7.

Approved in Burleigh v. Foreman, 125 Fed. 220, holding appeal
lies from order made on separable issue arising between parties
tDtervening in proceedings to marshal assets In hands of trustee;
Hutchinson v. Otis, Wilcox, etc., Co., 123 Fed, 18, holding appellate
Jurisdiction of Supreme Court, under banltruptcy act 1898, does not
extend to appeals from Circuit Court of Appeals,

Ciretilt Court of Appeals are coaflned on petition for review to
matters of law, p. 9,

Approved in Elliott v. Treppner, 187 U. S. 334, 23 Sup. Ct 136,
47 L. 203* holding judgment of court of bankruptcy that person
is not a bankrupt cannot be reviewed except by writ of error.

The filing of petition in bankruptcy is caveat to all the world, in
effect an attacbmenti p. 14,

Approved in In re Reynolds, 127 Fed. 762, holding taking of bank-
rupt's property from his possession five days after adjudication is
taking from possession of court; In re Weinger, 126 Fed. 876, hold-
ing State court seizing bankrupt's property subsequent to lilin^
of petition cannot thereby gain precedence over Bankruptcy Court;
In re Beebe, 126 Fed. 869, holding general creditors of bankrupt
obtaining judgment against him after adjudication are necessary
parties to proceeding to adjudge mortgage property to mortgagee;
In re Rodger s, 125 Fed. ISO, holding trustee in bankruptcy occu-
pies same petition toward property of bankrupt after adjudication
as attachment creditor; In re Knight, 125 Fed. 39, holding after
general assignment by debtor when creditors demand winding up
proceedings in Bankruptcy Court, no action In State court can
defeat jurisdiction: In re De Lany, 124 Fed, 282, holding County
Court not deprived of jurisdiction over claim dischargeable by
bankruptcy of defendant; Chesapeake Shoe Co. v. Seldner, 122 Fed.
596, holding unrecorded contract of conditional sale of shoes void,
under Va. Code 1887, as to Hen creditors is void as against vendee's
tmstee; In re Brealauer, 121 Fed. 912. holding effect of filing pe-
tition Is '* caveat to world" with force of injunction; In re Gold-
bergs 121 Fed. 580, 581, holding son of attachment plaiutifiT pur-
chasing after filing of petition for $50 property of bankrupt worth

[1247 J

IS4: U. S. 18-26 Notes on U. S. Reports. 1260

subject to rights of general creditors; In re Breslaner, 121 Fed.
1)14, holding trustee may recover money deposited with bank on
its judgment against bankrupt within four months before adjndi-
ratiou; In re Kellogg, 121 Fed. 336, holding court of bankruptcy
lias jurisdiction, under section 2, subdivision 7, act 1898, to deter-
mine in summary proceedings validity of mortgage on bankrupt's
property; In re Shachter, 119 Fed. 1014, holding Bankruptcy Court
has jurisdiction to proceed against bankrupt for contempt for fail-
ure to turn over all property to trustee.

Distinguished in Jaquith v. Rowley, 188 U. S. 623, 624, 23 Sup.
Ct. 371, 47 L. 622, holding surety on bankrupt's bail bond is an
adverse claimant to property held to indemnify himself, and can
be sued in Bankruptcy Court only with his consent; American
Trust Co. V. Wallis, 126 Fed. 467, 469, holding court of bankruptcy
without jurisdiction to order bankrupt to pay to trustee money
received with knowledge of petition, but which has since been
paid out; In re Chace, 124 Fed. 759, 760, holding assifi^ment for
benefit of creditors fairly made without attempt to defraud does
not preclude assignee from recovering disbursements and expenses
made before filing of petition; In re Knickerbocker, 121 Fed. 1006.
holding referee has jurisdiction to determine bona fides of ad-
verse claim made to bankrupt's property in hands of respondents;
In re Wells, 114 Fed. 224, holding Bankruptcy Court does not
by filing of petition acquire jurisdiction of property of bankrupt
attached in State court before proceedings taken; Kennedy v.
Pierce's Loan Co., 100 Mo. App. 275, 93 S. W. 359, susUining
bankrupt's pledge of personalty made in good faith on adequate
coDsideration after filing of involuntary petition, but before ad-
judication.

184 U. S. 1^26, 46 L. 413, LOUISVILLE TRUST CO. v. COM-
INGOR.

Claim of assignee held to be adversely to bankrupt and outstand-
ing wlion petition in banlvruptcy was filed, p. 24.

Approved in In re Levitt, 12G Fed. 891, holding claim of assignee
of bankrupt's insurance policies for expenses incurred not dol»t
or claim against bankrupt lost by not proving within one year:
Burleigh v. Foreman, 125 Fed. 220, holding appeal lies from order
made on separable issue arising between interveners in proceediau
to marshal assets.

District Court determines whether claim asserted was adverse
when petition filed, p. 25.

Approved in First Nat Bank v. Klug, 186 U. S. 2(M, 46 L. 1127.
22 Sup. Ct. 900, holding direct appeal from District Court's dismis-
sal of petition on finding that alleged bankrupt was engaged chiefly
in farming cannot be maintained where jurisdiction not clial-

1251

Notes on U, S. Reports.

184 U, S. 18^26

Jenged; lo re Breslauer, 121 Fed. 914, hoidlDg Bankruptcy Court
has jurlsdkticm to determftie wliether claim to proceeds of sale of
property was adTerse at time of petition; In re Davis, 119 Fed.
953, 955, holding Banliruptey Court lias Jurisdiction by sumnsary
proceedings to require bank holding funds as fiduciary to pay same
to trustee.

According to conclusion reached as to adverse claim Jurisdiction
will be retained or decliued, p. 25.

Approved m In re Teschmacher, 127 Fed* 730, holding where
third party makes real claim to ownership of property Bankruptcy
Court having determined that fact caanot retain Jurisdiction; Id
re Knickerbocker, 121 Fed. lOOG, holding persons claiming prop-
erty of baulirupt cannot be deprived of right to litigate disputed
rijtrht to posfiession in plenary suit; In re Hartman, 121 Fed, 941,
holding person to whom bankrupt's property is claimed to have
been transferred in l>ad faith Is adverse claimant; In re Breslaner,
121 Fed. 914, holding Bankruptcy Court has jurisdiction where
no adverse claim exists to order payment to trustee; Furth v.
Stahl, 20tj Pa. St 441, 55 AtK 29, holding baukrupfs trustee cannot
object to jurisdiction of coart in appointing auditor to report dis-
position of fund raised on mortgage sale to which trustee agreed.

Where court erroneously adjudicates merits Its action is subject
to review, p. 26.

Approved in Holden v, Stratton, 191 U. 8. 119, 24 Sup. Ct 47,
holding certiorari is proper method for obtaining review of decision
of Circuit tIJourt of Appeals in exercise of its revising power over
inferior eoiirts of bankruptcy; O'Neal v. United States, 190 U, S.
;J8. 23 Sup. CL 777. 47 L. [MO. holditig Judgment of District Court
committing for coutempt cannot be reviewed by Supreme Court on
error where sole question was power to commit on facts; Ex parte
0*NeIl, 125 Fed, 968, holding Circuit Court cannot review on habeas
corpus errors in proceedings in District Court punishing relator for
ussaoit on trustee in bankruptcy; Burleigh v. Foreman, 125 Fed. 220,
liolding appeal lies from order of District Court on separable issue
arising between interveners Id proceeding to marshal assets-
Bankruptcy Court baa no jurisdiction where third person objects
to jurisdiction, p. 26.

Approved in Metcalf v. Barker. 1S7 U, S. 177, 23 Sup. Ct 72. 47
L. 128. holding Bankruptcy Court without Jurisdiction to enjoin pro-
ceedings in Judgment creditors" action commenced before passage of
bankruptcy act: Central Grain & S. Exchange v. Board of Trade,
125 Fed. 461). holding party does not waive illegality in service by
answering to merits after denial of motion to set aside service made
on special appearance for that purpose; In re Chase, 124 l^'ed. 755,
759, 760, holding assignee under general assignment acquires lien

1*4 U. S. 27-70 Notes on U. S. Reports. 1252

on assets for necessary disbursements as for rent, and for reason-
able value of services; In re Manning, 123 Fed. 180, holding Bank-
ruptcy Court cannot in summary proceeding decide party's obliga-
tion to pay moneys obtained before assignment ousted him from
trust; In re Hays, Foster, etc., Co., 117 Fed. 884, holding landlord
cannot prove claim for rent against tenant's estate after adjudication
of banliruptcy; In re Michie, 116 Fed. 752, 753, holding Bankruptcy
Court has no Jurisdiction over suit by trustee against bankrupt's
transferee where latter makes adverse claim and objects to Juris-
diction; In re Rusch, 116 Fed. 272, holding power of review given
Circuit Courts of Appeal by bankruptcy act 1898 does not extend
to independent suits by trustee against third persons; McFarlan
Carriage Co. v. Wells, 99 Mo. App. 648, 74 S. W. 879, holding State
court has Jurisdiction to continue replevin action begun by creditor
after filing of petition of involuntary bankruptcy and before
adjudication.

184 U. S. 27-49, 46 L. 416, LOUISVILLE & NASHVILLB R. R. CO.
V. EUBANK.

Where necessary result of provision is to limit transportation from
without State it is invalid, p. 36.

Approved in Wall v. N. & W. R. R., 52 W. Va. 496. 44 S. E. 290,
94 Am. St Rep. 958, holding laden railroad cars received In one
State to be returned reladen are not subject to garnishment in incb
State. See 90 Am. St. Rep. 254, note.

184 U. S. 49-61, 46 L. 425, UNITED STATES V. SOUTHERN
PACIFIC R. R. CO.

Section 4, act 1887, applies to transactions before its passage
and before final adjustment, p. 57.

Approved in Benuer v. Lane, 116 Fed. 410. holding equity of
bona fide settler on railroad lands forfeited for nonconstruction of
road Is stronger than that of claimant under contract with railroad.

Remedial statute ought to be construed liberally, p. 57.

Approved in Chauncey v. Dyke Bros., 119 Fed. 10, holding Arkan-
sas lien statutes should be construed to give effect to intent 9f law-
makers.

184 U. S. 61-70, 46 L. 431, KING v. PORTLAND CITY.

If notice or hearing is provided at some stage of proceedings, due
process is accorded, p. 70.

Approved in Brown v. Drain, 187 U. S. 635, 23 Sup. Ct. 842. 47 "L
343, reafl^irming rule; Glidden v. Harrington, 189 U. S. 259. 23 Sup.
Ct. 576, 47 L. 801, sustaining practice under State statute authorii*
ing assessment to trustees of personal property held in trust with
provision for public notice by auditor; Schaefer v. Werling, 188 U.
S. 518, 23 Sup. Ct. 449, 47 L. 572, sustaining " Barrett Law " of
Indiana 1899, for assessment of cost of improvement upon abutting

1253

Notes on U. S. Reports.

1^ U. S. 71-115

property according to frontage; Tolgt v. Detroit, 184 U. S. 123, 40
L. 462, 22 Sep. Ct, 340, tipliolding Midi. Comp, Stat. 1897, $ 3406, for
assessmeat of cost of improvement against abutting property as
council should deem just; Oilver v. Monona Co., 117 Iowa, 55, 90 N.
W. 514, holding notice tliat plain tlETs land was included in drainage
district formed pursuant to Code, § 1940, is sufficient for due ptocesa.
See M Am. St. Rep. 021, note,

184 U. S, 71-77, 46 L. 437, MCDONALD t. THOMPSON.

Debt becomes due when assessment made and tbea limitationa
begin to run, p. 76.

Approved in Smith v. Brown, 1S7 U. S. 637, 23 Sup. Ct 845, 47
L, 344, reaffirming rule; Hale v. Cottin, 120 Fed. 474, holding Statute
of Limitations of He. Rev. Slat., cliap. 87. for suit against decedent'a
estate one year after clue applies to suit against stociiliolder of
insolvent corporation; Hale v. Cottin, 114 Fed. 573, 577, holding
under Rev. Stat. Me., chap. 87, § 10, legatee of Maine stockholder
in Minnesota corporation is chargeable for assessment for one year,
such being period of limitation.

1S4 U. S. 77-90, 49 L, 440, ILLI>0IS V* ILLINOIS CENT, B. R.
CO.

Whatever was before the court and disposed Id law of the case
aud fiEiaiiy settled, p. 9L

Approved in U. S. v, Camon, 184 U. S. 574, 46 L, e&5, 22 Sup. Ct
50<j, holding question of validity of Spanish grant or Invalidity for
intletinite locution is determined on first appeal, second appeal bring-
log up ouiy proceedings after mandate; Arrington v, Arringlon, 131
N. C. 140, 42 S. E. 554, U2 Am. St. Hep, 771, holding decision on
prior appeal that foreign Judgment for alimony was Unal Judgment
becomes law of case binding upon second appeal; Jones v. Wilmiag-
tou, etc., R. It., 131 N. C. 1^, 42 S. E. 560, holding decision on first
hearing that waiver of preliminary hearing is prima facie evl-
deuce of probable cause becomes law of the case,

184 U. S. 00-111. IG L. 449, BRAINARD v, BUCK,

ConcuiTeut doijisions of two courts upon question of fact wiU be
followed unless clearly erroneous, p. 105,

Approved in Busch v. Jones, 184 U. 8. 604, 46 L. 711, 22 Sup. CL
513, sustaiaing Jones patent No. 204,741, for removing type iudenta-
tions from printed sheets where lower courtB fouiid in favor of
novelty.

184 U. S. 111-115, 40 L. 450, CLEVELAND TRUST CO. v. LANDER.

Tax on shares Is not tax on property of trust company requiring
deductioEi of bonds, p. 115,

Approved in German American Sav. Bank v. Council, etc, 118

184 U. & 115^168 Notes on U. S. Reports. 1254

Iowa, 86, 91 N. W. 830, holding bank cannot deduct amount of non-
taxable bonds held as part of capital stock from tax assessment on
shares of stock; Matter of Jones, 172 N. Y. 583, 65 N. E. 572, holding
shares of Joint-stock association are personal property and taxable
as such.

181 U. S. 115-123, 46 L. 459, VOIGHT v. DETROIT CITY.

Mich. Comp. Laws 1897, § 3406, for assessment according to
benefits is constitutional, p. 122.

Approved in Schaefer v. Werling, 188 TJ. S. 618, 23 Snp. Ct 450,
.47 L. 572, upholding Ind. statute 1899, "Barrett Law," for assess-
ment of cost of improvement against abutting property accord-
ing to frontage; Goodrich v. Detroit, 184 U. S. 439, 46 L. 631, 22
Sup. Ct. 399, holding notice to owners of land which may be as-
sessed for improvement is not required where such land Is not taken
and notice of assessment is given; Oliver v. Monona Co., 117 Iowa,
55, 90 N. W. 514, holding sufficient notice in proceedings to locate
drainage ditch, that commissioner had reported in favor of location
and that all objections must be filed before certain time; Erickson
V. Cass Co., 11 N. Dak. 499, 92 N. W. 844, upholding N. Dak. drain-
age law 1899, providing for hearing for landowners upon notice
before assessments for benefit become final.

184 U. S. 123-140, 46 L. 463, UNITED STATES V. BARLOW.

Under contract providing that stone must be of quality approved
by engineer, held the engineer in charge was appointee of both par-
ties and his Judgment on stone final, p. 133.

Approved in United States v. Walsh, 115 Fed. 701, holding under
contract in question for building of drydock Judgment of engineer
in charge was final as to all details left to his decision bj
specifications.

184 U. S. 140-155. Not cited.

184 U. S. 156-162, 46 L. 478, LEAGUE v. TEXAS.

State may adopt new remedies for collection of taxes and apply
them to delinquent taxes, p. 158.

Approved in dissenting opinion in The Robert W. Parsons, 191
U. S. 45, 24 Sup. Ct. 18, majority holding exclusive admiralty Jorit-
diction extends to enforcement by proceeding in rem to enforce lien
for repairs of canal-boat plying on Erie Canal.

184 U. S. 162-168, 46 L. 481, HATFIELD v. KING.

Investigation of charges of misconduct against counsel below
should be had before court where wrong was committed, p. 168.

Approved in Hatfield v. King. 186 U. S. 179, 46 L. 1112, 22 Sup.
Ct. 871, holding Supreme Court will remand cause to Circuit Court

1255

Notes on U. S. Reports.

184 U. S. 169-269

for northern district of West Virginia to judge who rendered decree
appealed from.

184 U, S. 1C9-173. Not cited.

184 U. S. 173-198, 46 L. 487, MARANDB v. TEXAS & PACIFIC
RY. CO.

WTiether proof was sufficient to go to jury Is question of law for
court, p. 186.

Approved in Mosbeuvel r. District of Columbia, 191 TJ. S. 252,
24 Sup. Ct 57, holding where all probative facts are undisputed
and but one inference can be drawn therefrom, qiue&tion Is for
court

184 U. a 199-247, 46 L. 499. ^MINNESOTA T. NORTHERN
SECURITIES CO.

No court can adjudicate directly upon right of person not actually
or constructively present, p, 237.

xVpproved In Washington v. Northern Securities Co., 185 D. S. 255,
40 L. 897, 22 Sup. Ct (124, holding leave to file original bill in Su-
preme Court may be granted without intimating any opinion upon
question of jurisdiction; Conklin v. United States Shipbuilding Co.,
123 Fed. 916, holding no decree can be made directing corporations
to tn* lister and issue new^ certlOeates without their being made
parties; Talbot J, Taylor, etc, Co. v. Sonthcru Pae, Co., 122 Fed.
152, 155, holding stockholder Is Indispensable party In suit against
corporation to enjoin voting of bis stock, and must be present

Distinguished in Interstate Com. Coram, v. Southern Pac. Co.,
123 Fed, ::*i^i), holding connecting carriers are not necessary parties in
suit by interstate commerce commission against Initial carrier to
prevent routing of freight; City Water Supply Co. v. Ottnmwa, 120
Fed. 311, holding In suit by taxpayer against city to prevent cre-
ation of debt beyond limit by contract, the third party Is not indis-
pensable party.

184 U. S. 247-257, 46 I*. 520, UNITED STATES v. ST. LOUIS,
ETC., TRANS, CO.

Anchoring government vessels In usual position In disregard of
port regulations, renders government liable to other vessels for
damages caused thereby, p. 252.

DIstlngnlshed In The Northern Queen, 117 Fed. 914, holding tug
and tow not at fault for anchoring in fairway, where density of fog
made it unsafe to proceed to other anchorage.

184 U. S. 258^269, 46 L. 528, STUDEBAKER v. PERRY.

Comptroller may levy successive assessments when necessary,
p. 264.

Approved la Smith v. Brown, 187 U. S. 637, 23 Sup. Ct 845. 47
L. 344, reaflirming rule.

184 U. S. 270-296 Notes on U. S. Reports. 1266

184 U. S. 270-290, 46 L. 534, TERLINDEN v. AMES.

Writ of habeas corpus cannot perform ofllce of writ of error,
p. 278.

Approved in Wright v. Henlcel. 190 U. S. 57, 23 Sup. Ct 784, 47
L. 954, holding writ of habeas corpus cannot serve as writ of error,
but court may examine into Jurisdiction of committing magistrate;
United States v. Tyndale, 116 Fed. 822, holding, in absence of
legislation, money found on dead body floating on high seas is to
be paid over to State statutory administrator; dissenting opinion
in People v. Hyatt, 172 N. Y. 207, 64 N. E. 835. 92 Am. St Rep.
727, majority holding action of State governor in issuing warrant
for extradition cannot be reviewed on habeas corpus. See 92 Am.
St. Rep. 727. note.

Laws of German Empire, relative to offense of forgery, con-
sidered in determining whether offense was extraditable, pp. 280,
282.

Approved in In re Taylor, 118 Fed. 197. holding in extradition pro-
ceedings court determines for itself whether place of alleged offense
was within territorial limits of demanding government

184 U. S. 290-290. 46 L. 546. HUGULEY MFG. CO. v. GALETON
COTTON MILLS.

Circuit Court of Appeals renders final Judgment when cause rests
on diverse citizenship, p. 294.

Approved in Harding v. Hart. 187 U. S. 638, 23 Sup. Ct 846, 47
L. 344, reaffirming rule; Cary Mfg. Co. v. Acme Flexible Clasp Co.,
1S7 U. S. 428, 23 Sup. Ct. 211, 47 L. 245, holding writ of error not
maintainable to judgment of Circuit Court of Appeals In suit rest-
ing on diverse citizenship.

Appellate jurisdiction of Supreme Court Is exclusive in cases aris-
ing under national Constitution and laws, p. 295.

Approved in Wright v. MacFarlane. etc.. Co.. 122 Fed. 775. hold-
ing, under judiciary act of 1801, appeals from Hawaiian courts.
based on constitutional questions, are exclusively for Supreme
Court: California Oil, etc., Co. v. Miller, 115 Fed. 1017. dismissing
appeal on motion in case depending solely upon construction of
Federal laws; Owensboro v. Owensboro Water- Works Co., 115 Fed.
323, holding Supreme Court has exclusive appellate Jurisdiction of
cause resting on ground disclosed in pleadings that State statute
contravenes Federal Constitution.

Distinguished in Filhoil v. Maurice, 185 U. S. 110, 46 L. 828. 22
Sup. Ct. 501, holding complaint In ejectment against Individual
alleging ouster In violation of Federal laws and French treaty.
Htates no Federal question warranting appeal to Supreme Court.

1357

Notes oa U. S. Reports*

184 U. S. 297-329

Where cause rests on diverse citizenship and constitutional ques-
tions intervene, Circuit Court of Appeals renders final Judgment,
p. 205.

Approved in Ayres v. Pols^orfer, 187 U, S. 589, 23 Sup. Ct 197,
47 L. 315, holding Judgment of Circuit Court of Appeals not re-
viewable where case rested on diverse citizenship, although con-
stkutioaal questions became involved.

Circuit Court of Appeals does not render final Judgment where
cause rests partlallj on Constitution, p, 295.

Approved in Spreckles Sugar Ref. Co. v. McClaIn, 192 IT. S. 407,
409, 24 Sup. Ct. 378. 379. holding suit to recover tax paid under
protest, under war revenue act 1898, depending upon construction
and constitutionality tliereof, may he reviewed in Supreme Court

Miscellaneous. Cited in dissenting opinion in Alabama, etc.,
Mfg. Co. V. Rlverdale Cotton Miiis, 127 Fed. 503, majority holding
neither Alabama iaws nor corporations can malce corporation organ-
ized In Alabama citizen of Georgia for Jurisdictional purposes.

184 U. a 297-302. 46 L. 549, IX RE HUGULEY MFG. CO.

Granting or refusal of writ of prohibition Is discretionary where
other legal remedy exists^ p. 301.

Approved in Ex parte Joins, 191 U. S. 102, 24 Sup. Ct 28. refus-
ing prohibition against Choctaw and Chickasaw citizenship court,
where such court had acted and certified its judgment to Dawea
commission.

Miscellaneous. Cited in dissenting opinion in Alabama, etc.» Mfg.
Co. T. Riverdale Cotton MtllB, 127 Fed. 505, reciting history of litiga-
tion.

184 U. S. 302-329, 46 L. 552, WAITE v. SAJ4TA CRUZ.

Purchasers of bonds of class authorized may rely on recitals of
compliance with statute, p. 320.

Approved in Stanley County v, Coler. 190 U. S. 451, 23 Sup. Ct
810, 47 L. 1134, holding recitals In county bonds that they were
issued under North Carolina Code to pay railroad su inscription!*
warranted reliance by bona fide purchasers; Tulare Irrigation Dist.
V. Sheparti. 185 U. S. 24, 40 L. 7S4, 22 Sup. Ct 540, holding iand
owners in Irrigation district cannot defeat bonds reciting compliance
with statute wliere issue was In valid for failure to give notice In
formation of district; Deiiance v. Schmidt 123 Fed. «, 7, S. holding
city estopped by recitals in bonds issued for purpose within nnmic-
ipal authority to deny that they were issued for difTerent unlaw-
ful purpose; Wetzeil v, Pnducah, 17 Fed. 0&4, holdiag city estopped
to deny bond recltais declaring compiiauce with statute made by
mayor and council authorized by chiirter to make such Investiga-
tion; King v. Superior, 117 Fed. 117, holding municipality estopped

184 U. S. 329-354 Notes on U. S. Reports. 1258

by recital in bonds to deny provision made for payment of sucb
bonds by tax levy as required by State Constitntlon; Fairfi^d v.
Rural Independent School Dist, 116 Fed. 841, 842, holding recitals
in bonds that same were issued pursuant to statute and dty
ordinance naming latter bind city though ordinance referred to
would show invalidity; Ferris Irr. DIst v. Thompson, 116 Fed.
834, 838, holding bona fide purchaser of irrigation bonds from
president of district is protected by recitals therein of compliance
with statute.

Holder of bonds for collection caimot sue unless eack owner^a
claim reached jurisdictional amount, p. 329.

Distinguished in Louisville, etc., R. R. y. Smith, 128 Fed. 4, hold-
ing in suit against landowners to enjoin interference with railroad
right of way, amount in controversy is right of way.

184 U. S. 329-334, 46 L. 569, CLARK v. TITUSVILLB.

Fourteenth Amendment only requires tax to operate on all alUce
under same circumstances, p. 333.

Approved in Pabst Brewing Co. ▼. Crenshaw, 120 Fed. 151, op-
holding Mo. act 1899, S 5, requiring affidavit of manufacturer of
beer from outside State that only wholesome ingredients were
used In manufacture. See 86 Am. St Rep. 702, note.

Ordinance classifying liquor merchants on basis of sales made
is constitutional, p. 334.

Distinguished in Standard Oil Co. v. Spartanburg, 66 S. C. 45,
44 S. E. 380, holding unconstitutional ordinance requiring dealers
in oils on which license has not been paid to pay license of |2S0
per year.

184 U. S. 334-342, 46 L. 573, ROTHSCHILD v. KNIGHT.

Writ of error from Supreme Court should issue to Massachusetts
Superior Court for review, after rescript affirming its judgment has
been sent to it by State Supreme Court, p. 339.

Approved in Wedding v. Meyler. 192 U. S. 581, 24 Sup. Ct 323.
holding writ of error from Federal Supreme Court to State court
is properly directed to lower State court where record remains.

184 U. S. 342-354, 46 L. 580, SCHUERMAN v. ARIZONA.

Ariz, territorial statute 1887 is foundation for appointment
of loan commissioners, p. 353.

Distinguished in Murphy v. Utter, 186 U. S. 110, 46 L. 1078. 22
Sup. Ct 782, holding Arizona legislature not authorized to repeal
act June 25, 1890, by provision that said act amended act 1887, sub-
ject to future territorial legislation.

1259

Notes on U. S. Reports.

1^ U.S. 354-41 n

184 U, S. 354-368. 46 L. 385. SKANEATELES WATER CO. v.
SKANEATELES.

Ordinary grant of franchls€^ raises no Implied contract tliat
grantor will not engage in stich business, p. 363.

Approved in Joplln v. Light Co., 191 U. S. 157, 24 Sup. Ct 44,
holding grant of nonexclnsive dec trie- light plant fraocliise for
twenty years raises no implied contract that city will not engage
in commercial lighting; Helena v, Helena Water-Works Co., 122
Fed. 15, holding no Implied contract that city would not buM
water-works arose from ordinance granting use of streets for
twenty years witli provision against exclusive use.

184 U. S. 308-^399, 46 L. 592, DETROIT v. DETROIT CITIZENS*
ST. RY, CO.

Under Mich* street railway act of 1867* § 20. city cannot reduce
ratef! belofw rate fixed in compliance with act, p. 385.

Distinguished !n Chicago Union Traction Co. v. Chicago, 19D
lU. 535, 536, 65 N. E. 4tM, upholding Chicago Rev. Codes, §§ 1723.
1725, limiting rate of fare on street railways to five cents*

When contract as to rates is made, city's power over matter Is
suspended during life of contract, p. 382.

Approved In Hamilton, etc.. Traction Co. v. Hamilton, etc., Traj)-
slt Co., 69 Ohio St. 410. 69 N. E. 993, holding city cannot grant
to second street railway same right of way as previously granted
to another street railway.

Distinguished in Knoxville Water Co. v. Knoxville, 18D U, S.
437, 23 Sup. Ct 532, 47 L. 891, holding obligation of contract with
water company for supply of water at certain prices Is not im-
paired by municipal ordinance reducing rates; Elkins v. City of
Chicago, 110 Fed. 900, holding Federal question of impairment
of contract not raised by action of council in adopting committee
report that railway should be dispossessed unless franchise re-
newed.

184 U. S. 399-416, 46 L. 612, WILSON v. STANDEFBR.

With reference to remedy there Is ordinarily no obligation arising,
p. 410.

Approved In Waggoner v. Flack» 188 U. S. 603, 604, 605, 23 Sup.
Ct 349, 47 L. 613, holding obligation of contract with purchaser
of public lands not violated by Tex. Laws 1897. repealing act
denying remedy of forfeiture for nonpayment of Interest

Especial respect should be paid to decisions of State courts con-
struing State tax statutes, p. 412.

Approved in Citizens' Bank v. Parker, 192 U. S. 86, 24 Sup. Ct.
ISa. holding contract exemption of capital stock of Citizens' Bank
secured by charter 1830 Included exemption from tax for carry-

18* U. S. 416-150 Notes on U. S. R^jorta. 1280

Ing on business; Theological Seminary v. lUinois, 188 U. 8. 674,
23 Snp. Ct 388, 47 L. 649, following State decision that charter
exemption of property belonging or appertaining to theological
seminary does not include rented property not used for school
purposes; Waggoner v. Flack, 188 U. S. 601, 23 ijup. Ct 348, 47 L.
612, holding obligation of contract with purchaser of public lands
not violated by Tex. Laws 1897, repealing act denying remedy
of forfeiture for nonpayment of interest.

184 U. S. 416-425, 46 L. 619, UNITED STATES ▼. RIO GRANDE
IRRIGATION CO.

On appeal in equity, whole case is before appellate court, p. 423.

Approved in Hitz ▼. Jenks, 185 U. S. 170, 46 L. 867, 22 Sup. Ct
604, holding where court recited in decree allowance of appeal,
such allowance removed whole cause to appellate court; Mossbers
v. Hutter, 124 Fed. 967, holding dismissal of appeal warranted by
request of trial Judge for return of record in patent suit because
of newly discovered evidence.

184 U. S. 425-432, 46 L. 623, BOOTH v. ILLINOIS.

Courts will not interfere unless statute is clear infringement of
constitutional rights, p. 429.

Approved in Otis v. Parker, 187 U. S. 607, 609, 610, 23 Sup. Ct
170, 171, 47 L. 327, 328, upholding Cat Const, art 4, f 26, avoid-
ing all contracts for sale of shares of corporate stock on margin.
See notes, 92 Am. St Rep. 66, 67, 68.

111. Crim. Code, $ 130, prohibiting options to buy grain in future
is constitutional, p. 431.

Approved in People v. Lochner. 177 N. Y. 149, 69 N. E, 374,
upholding Laws 1S97, p. 4S5, limiting hours of bakery employees
to sixty per week and ten per day.

184 U. S. 432^41, 46 L. 627, GOODRICH v. DETROIT.

Legislature may create new taxing districts without notice
to residents therein, p. 439.

Approved in Schaefer v. Werling. 188 U. S. 518, 23 Sup. Ct 450,
47 L. 572. upholding ** Barrett Law " of Indiana 1899, for assessiug
cost of improvements against abutting property according to
frontage.
1S4 U. S. 441^50. 46 L. 632, UNITED STATES v. MARTINEZ.

Unexplained delay of seven years amounts to waiver of claim
for pecuniary judgment, p. 449.

Approved in Sena v. United States, 189 U. S. 241, 23 Sup. Ct 599.
47 L. 791. holding Court of Private Land Claims cannot confirm
Spauish land grant where grantee's descendants abandoned pos-
session nine years before Mexican treaty, never regaining same.

1261

Notes on U. S. Reports,

l^tT.S. 450-530

184 U. S. 450-4J>6, 4tl L. 030, O'BRIEN v. WHEELOCK.

111. act 1871, pro¥ldJog for special assessments for drains, ia
tUTalid, p. 4S7.

Approved In dissenting opinion In Deposit Bank v. Frankfort,
191 U. S. 523, 24 Sup. Ct 163. majority holding Federal decree
based on effect of State Judgment enjoining like taxes is con*
elusive while It remains in force.

184 U. S, 497-524, 46 L, G5T, TULLOCK v. MtJLVANB.

Federal question held sufficiently raised below by pleadings aod
expressly passed on by court* p. 503.

Approved In German Sav. Soc. v. Dormltzer, 192 U. S. 127, 24
Sup. CL 221, holding Federal question raised below where court
Jn opinion dealt expressly with constitotlonHl rights of plaintiff
In error

Suit on Federal Injunction bond necessarily Involves decision
of Federal question, p. 505.

Approved in Fidelity Co. v. Buckl Co., 189 U. S. 137, 23 Sup. Ct
583, 47 L. 749, holding where attorney's fees are recoverable In
State court on attachment bond covering expenses in dissolving
attacliment, removal to Federal coiii't does not defeat; Missouri,
K. & T, R. R. Co. V, Elliott, 184 U. S. 634, 539, 46 L, 677, 678,
22 Sup, Ct, 44S, 450, holding rule in Federal courts governs as to
allowance of attorney's fees on Federal injunction bond although
action thereon is ia State court; Files v. Davis. 118 Fed. 46S, 469,
470, holding action on attachment bond executed In Federal court
Involves Federal question.

In equity cases where no Injunction bond required, only taxable
costs are allowed, p. 512.

Approved In In re Williams, 120 Fed. 36, 37, holding counsel
fei^s not allowed where there was no seizure of bankrupt's prop-
ert>- and no bond ordered given.

Distinguished in Wisconsin, etc., Bank v. Duraer, 114 Wis. 374,
90 N. W. 430, holding under Wisconsin statute colinsel fees for
legiil services In procuring dismissal of Injunction are properly
allowed as damages.

184 U. 9. 524^^30, 46 L. 670, MONROE v. UNITED STATES.

Rev. Stat, | 3744, contemplates final written Instrument executed
and signed by parties, p. 527.

Approved In St. Louis, etc., Co. t. United States, 191 U. S. 163,
24 Sup. Ct 48, holding contractor not entitled to recover on
quantum valehat for hay furnished government under contract
void for lack of writing.

184 U. S. 530-571 Notes on U. S. Reports. 12G2

184 U. S. 530-540, 46 L. 673, MISSOURI, KANSAS. ETC.. RY. CO.
V. ELLIOTT.

Supreme Court may review State decision involving and deciding
Federal question, though arising on ambiguous averments, p. 534.

Approved in Pennsylvania R. R. Co. v. Hughes. 191 U. S. 4S7.
24 Sup. Ct 135, holding adverse decision to party claiming that
State decision contravened act to regulate commerce entitles Su-
preme Court to review; Manley v. Paris. 187 U.' S. 550, 23 Sup.
Ct. 210, 47 L. 298, holding adverse ruling upon motions claiming
benefit of Constitution of the United States raises Federal ques-
tions.

Distinguished in Layton y. Missouri, 187 U. S. 860, 23 Sup. Ct
138, 47 L. 216, holding Supreme Court cannot review decision of
State court which refused to pass upon Federal question.

In Federal courts attorney's fees are not recoverable on injunc-
tion bond, p. 539.

Approved in Fidelity Co. v. Bucki Co., 189 U. S. 138, 23 Sup. Ct
583, 47 L, 749, holding where local law allows attorney's fees for
dissolving attachment removal of suit does not defeat right; Files
V. Davis, 118 Fed. 468, holding action on attachment bond executed
in suit pending in Federal court involves Federal question.

184 U. S. 540-571, 46 L. 679, CONNOLLY v. UNION SEfWER-PirE
CO.

Illegality of combination in restraint of trade did not prevent
recovery of purchase price of goods sold, p. 545.

Approved In National Bank, etc.. Loan Co. v. Petrie, 189 U. S.
425, 23 Sup. Ct 513, 47 L. 880, holding right to recover money paid
to national bank for unauthorized bonds on rescission of contract
for fraud is not loss because contract was illegal; Metcalf v.
American School Furniture Co., 122 Fed. 121, 122, 126. holding
corporation or stockholder cannot rescind ultra vires contract fur
sale of property after same Is executed; Gilbert v. American Surety
Co., 121 Fed. 503, holding seller of personal property after execution
of contract and delivery of goods which were turned back to hlui
as vendee's agent cannot hold same because contract restrained
trade; State v. Hammond Packing Co., 110 La. 187, 34 So. 371.
upholding Acts 1898, p. 192, levying license taxes upon certain cor-
porations operating within State but domiciled elsewhere.

No Impediment should be Imposed on pursuits of one except as
upon all under same circumstances, p. 559.

Approved In Union Co. Nat. Bank v. Ozan Lumber Co., 127 Fed.
211. holding Invalid Ark. act 1891 requiring negotiable instruments
given for patent things or rights except by dealers therein to
follow printed form disclosing consideration; August Busch, etc.,
Co. V. Webb. 122 Fed. 668, holding imconstltutional Rev. Stat Tex.

12^

Notes on U. S. Keports.

1S4 U. S. 54U-oTl

1805, art. 3385, providing that pbysiclans who do no: practice
medk'ine as calling cannot prescribe liquors as medicine; State v.
Mitchell. 97 Me. 73. 76, 55 Atl. 889, 94 Am. St. Rep. 4SH, 488,
holding unconstitutional Laws 1891, requiring license tax of ped-
dlers who do cot pay taxes on stock in trade to value of ^S'l;
Matter of Pell, 171 N. Y. 57, G3 N. E. T92, 89 Am. St. Hep. 797, hold-
ing unconstitutional Laws 1899, amending Laws 1896, providing
tax OQ reversions and remainders which vested prior to 1883, upon
their coming Into enjoyment.

Legislature may if it chooses exempt from taxation certain classes
of property altogether, p. 562,

Approved in Missouri v. Dockery. 191 U. S. 170, 24 Sup. Ct 54,
holding taxpayer admitting correctness of his tax canuot have wtu
of error to Supreme Court because of exemption of corporation.

State cannot under police power make arbitrary class iticat ion lU
domain of commerce^ p. 563.

Approved in Republic Iron & Steel Co. v. State, ICO Ind. 38(5, 66
N. E. 1007, holding invalid weekly wage law of 1899 requiring-
weekly payment of wages on peaalty of suit in uame of State after
nonpayment In ten days; Parks v. State, 159 Ind. 224, M N. E. 8<i7,
upholding Rev. Stat. 1901, §§ 73L§^7323e, making it unlawful to
practice medicine without a license; Ballard v. Oil Co., 81 Miss.
nSh 95 Am. St Rep. 498, 34 So. 557, lioldiug unconstltutloual Lawi?
ISOS, p. 85, giving employees of corporations same rights for In-
juries from negligence of fellow servants as enjoyed by straugera;
dissenting opinion In State v. Smiley^ 65 Kan. 25, tJ9 Pac. 214* 215,
majority upliolding anti-trust act 1897 prohibiting making of anti-
competitive trade agreementB as to products bought on general
market

111. trust act of 1893 is repugnant to Constitution of United States,
p. 504,

Approved in Union Co. Nat Bank v. Ozan Lumber Co., 127 Fed.
210, holding unconstltutioaa! Ark, act 1891 requiring negotlnhJe
instruments in payment of patent things or rights, except by
dealers therein, to follow priated form dLscloslng consideration;
Greenwich Ins, Co, v, Carrol!, 125 Fed. 129, holding invalid Iowa
Code, § 1754, profiiblting fire Insurance companies from forming
agreement as to compenf;ation to be paid agents; Browo v, Jaeotm
Pharmacy Co., 115 Gn. 453. 90 Am. St. Rep. 159, 41 S. E. 5G3, hoM-
Ing unconstiturional antitrust act IHm exempting therefrom a^rrl-
cuitural products or live slock while in hands of producer or ralsiT;
Matliewa v. People, 202 111. 403, 4<>4, 405, 409, 67 N. E. 33, 34, ;J5,
holding unconstitutioDal Laws 1899, p. 268, creating free euiploy-
ment agencies providing that no list shall be furnished employer
whose men are on strike; People v. Butler Street Foundry, 201 111.
259, 257, m N. E. 355. holding III. anti-trust act 1893, hetug en-

ISl U. S. 572-^77 Notes on U. S. Reports. 12ftf

tirely unconstitutional, could not have repealed act 1891; People t.
Orange County Road Cons. Co., 175 N. Y. 89. 67 N. E. 130, holding
unconstitutional Penal Code, $ 3Slh, prohibiting person or cor-
poration contracting with State or municipality from requiring
over eight hours' worlt per day; Atlanta v. Chattanooga Foundry,
etc., 127 Fed. 28, holding individual may maintain action against
member of Illegal combination for damage resulting from higher
prices for article controlled; Brandon et al. v. Miller et ai., 118 Fed
302, upholding Georgia statute sustained by State court permitting
loan association to charge borrowers voluntarily contracting there-
with a usurious rate of interest; Harrison v. Glusoee Sugar Refining
Co., 116 Fed. 308, sustaining contract whereby employee agrees
not to engage in manufacturing glucose within 1,500 miles of em'
ployer's principal establishment in Chicago; State v. Smiley, fl5
Kan. 244, 69 Pac. 201, upholding anti-trust act 1897, prohibiting
mailing of anti-competitive trade agreements as to products and
merchandise brought on general market; Standard Oil Co. t.
Spartanburg, 66 S. C. 43, 44 E. B. 379, holding unconstitutional
ordinance requiring dealers in oils to pay annual license excepting
dealers hauling oils on which the license had been paid; dissenting
opinion In People v. Lochner, 177 N. Y. 181, 69 N. E. 387, majority
upholding Laws 1807, p. 485, limiting employment in bakery or
confectionery to sixty hours per week and ten hours per day. See
note, 92 Am. St. Rep. 68.

Distinguished in Billings v. Illinois, 188 U. S. 102, 23 Sup. Ct 274, 47
L. 403, upholding 111. inheritance tax law taxing certain life estates
when remainder is to lineal but not when remainder is lo collateral
heirs of decedent; Otis v. Parker, 187 U. S. 610. 23 Sup. Ct 170,
47 L. 328, upholding Cal. Const., art. 4, $ 26, avoiding all contracts
for sales of shares of corporate stocks on margin; State v. Compress
Co.. 95 Tex. Gil, 69 S. W. Gl, upholding that portion of invalid anti-
trust act 1895, which authorizes State to forfeit corporation charter^
for carrying out restraints on trade, prohibited by invalid portions.

Statute regarded as entirety is rendered void by unconstitution-
ality of part, p. 565.

Approved in Union Co. Nat. Bank v. Ozan Lumber Co., 127 Fed.
212, holding Ark. act 1891, regulating negotiable instruments in
payment for patent rights or things being invalid in part, is invalid
in toto; Kelly ville Coal Co. v. Harrier, 207 111. 629. 69 N. E. 928.
liolding invalid act May 28, 1891, prohibiting employers from deduct-
ing from wages except for lawful money except in case of farm
laborers or servants.

ISl U. S. 572-577. 46 L. 094, UNITED STATES v. CAMOU.

Court of Private Land Claims may prescribe true boundaries of
valid i^rant. p. 574.

Approved In United States v. Green, 185 U. S. 267, 40 L. 904. 22

12C5

ifotes on tJ. S. Reports 184 U. S. 573^-624

Sup. Ct 644, boldlBg Court of Private Lacd Claims may conflrio
grant to ex lent of four sitios wbere evidence enabled court to de-
termine true boundaries of tract as limited,

184 U. S. 578-592, 46 U 697, EIDMAN v. MARTINEZ.

All civilized nations recopilze lavt^ of domicile as govenslng trana-
missioii and iaberitance of personalty, p. 592.

Approved lo Blackstone v. Miller, 188 U. S. 204, 23 Sup. Ct 278,
47 L. 444, upholding, under N. Y, inheritance tax law, tax im-
posed on transfer under will of nonresident of debts dtie decedent
from residents of State,

184 U. S. 503-508. 4i3 L, 705. MOOEE v. RUCKGABER.

An inheritance tax is not upon the property but upon its devolu-
tion or transmission, p. 59B.

Approved Id People, etc. v. Knight, 174 N. T. 482. 67 N. E. 6S»
upholding franchise tax based upon amount of capital stock of
domestic corporation all of wliose stock Ig Invested la nontaxable
patents.

184 U. S. 598-OOS, 46 L. 707, BUSCH v. JONES,

Equitable jurisdiction is determined by facta at time of hearing,
p. 599,

Approved in Raymond Syndicate v. Brown, 124 Fed. 83, holding
bJli alleging purchase of merchandise for lump sum which was paid
and delivery ot two-thirds, rest being concealed to prevent replevin,
states cause of action; W. S. MItis Co. v. Detroit Steel, etc., Spring
Co., 122 Fed. 866, boldlng court of eiiuity has Jurisdiction of bill for
temporary and tiiial injunction filed so that patent bad one tnontn
to run after time for defendant to answer.

184 U. S. C08-624, 46 L. 713. PATTON v. BRADY, EXECUTRIX.

Tort action may survive against defendant's representatives only
wbere bis estate was increased, p. 014.

Approved In Bank of Iron Gate v. Brady, 184 U. S. 667, 46 L, 740,
ir2 Sup. CL 530, holding action for unlawful tax on bank notes
brought in tort to give jurisdictional amount wbere defendant's
estate %vas not Increased does not survive.

If money is paid under protest under wrongful assessmeDt It may
be recovered in assumpsit p. 614.

Distinguished in Pacific Wbailog Co, v. United States, 187 U, S.
453, 23 Sup. Ct. 156, 47 L. 256, holding proceeding to obtain from
District Court license for coastwise vessels plying Alaskan waters
*a not suit in which final appealable Judgment Is rendered.
Vol. 111*^80

l&k U. S. e24rH675 Notes on U. S. Reports. 12GG

Tax on tobacco levied by war revenue act of 1898 is an excise,
p. 615.

Approved in Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 412.
24 Sup. Gt 381, holding special exercise tax imposed on sugar re-
fining by war revenue act 1898 is an excise not a direct tax; Thomas
y. United States, 192 U. S. 371, 24 Sup. Ct. 306, holding stamp tax
on memorandum of sale of stock certificate under June 13, 1898, is
not a direct tax.

184 U. S. 624-639, 46 L. 721, RBLOJ CATTLE CO. ▼. UNITED
STATES.

Four sitios was legal quantity of land granted under Mexican
grant p. 637.

Approved in United States v. Green, 185 U. S. 267, 46 L. 901, 22
Sup. Ct 644, holding Court of Private Land Claims may confirm
grant to lawful amount where evidence enables court to fix true
boundaries of tract as limited.

Where grant is laid out on Mexican side no claim exists against
United States, p. 628.

Approved in Ainsa v. United States, 184 U. S. 646, 653, 46 L. 730.
22 Sup. Ct 510, holding where lawful area of Mexican grant was
situated in Mexico there is no claim therefor existing against the
United States.

Claim for overplus under Mexican gi*ant is imperfect only, p. <S0.

Approved in Arivaca Land & Cattle Co. v. United States. 181
U. S. 653, 46 L. 733, 22 Sup. Ct 526, holding owner of cabida legal
under Mexican land grant has no vested property interest lu
demasias, but a preference in acquiring it

184 U. S. 039-649, 40 L. 727, AINSA v. UNITED STATES.

This government treats grant as limited by area purchased and
paid for, p. 649.

Approved in United States v. Green, 185 U. S. 269, 46 L. 905. 22
Sup. Ct 645, holding no confirmation of overplus of Mexican grant
beyond four sitios can be had in Court of Private Land Claims.

184 U. S. 649-653, 46 L. 731, ARIVACA LAND & CATTLE CO. t.
UNITED STATES.

Grant cannot be confirmed where record contains no survey,
p. 652.

Approved in Sena v. United States, 189 U. S. 238, 23 Sup. Ct 507.
47 L. 790, holding grant too indefinite to be located and never fixod
by any survey is void as against the United States.

184 U. S. 653-675. Not cited.

1267

Notes on D. S. Reports.

184 u. s. 676-eoe

184 IT, S. 670-^4. 46 L, 754, HOWARD v. UNITED STATES.

Clerk receiving monej paid Into court is liable therefor on
official bond, p. 687.

See 91 Am. St Rep. 567, note.

18i U. S. 695. 46 L. 763. TOWN OF WESTON T. TIERNET,
Jurisdiction on appeal from Circuit Court, p. 695,
Approved In Town of Weston v. Tlerney, 191 U* S, 660^ 24

Sup. Ct 848, reaffirming rule.

184 TJ. S. 686, 46 L. 763, BOGY v. DOUGHERTY.

Appeal dismissed for want of Jurisdiction, p. 696.

Cited in Cook v. Tennessee, 187 U. S. 639, 23 Sup. Ct 847, 47 K
M4, and Siegel v, Swarts, 187 U, S. 638, 23 Sup. Ct. 846, 47 I*. 344,
tKitli reaffirming rule.

J]

CLXXXV UNITED STATES.

185 U. S. 1-26. 46 L. 773, TULARE IRRIGATION DISTRICT t.
SHEPARD.

A de facto corporation receiving full consideration for its bonds \»
estopped to deny legality of its Incorporation, p. 8.

Approved in Board of Comrs. v. Travelers' Ins. Co., 128 Fed. 825,
holding county possessing authority to issue bonds is estopped by
recitals of conformity with statute to deny validity of such bonds;
W. L. Wells Co. V. Avon Mills, 118 Fed. 193, holding purchaser of
goods from Mississippi corporation cannot object to suit therefor
in Federal courts on ground that corporation failed to pay io
required amount of capital stock.

Distinguished in Gastonia Cotton Mfg. Co. v. Wells Co., 128 Fed.
373, holding corporation which never paid in as required by charter
for commencing business never acquired legal existence enabling
it to sue in Federal courts.

Cal. irrigation act of 1887, known as Wright act, is valid, p. 13.

Approved in People v. Browns Valley Irr. Dist, 119 Fed. 538,
holding allegation that "Wright Act" of California was void, such
act having been upheld by Federal Supreme Court, raises no Fed-
eral question.

185 U. S. 27-.3S, 46 L. 783, STOCKARD v. MORGAN.

Tax applied to individual within the State selling goods of non-
resident is on interstate commerce, p. 37.

Approved in Norfolk, etc.. Ry. Co. v. Sims, 191 U. S. 450, 24 Sup.
Ct. 154, holding unconstitutional N. C. Laws 1901, p. 116, impos-
ing license upon those selling sewing machines, as applied to
machines shipped in by nonresidents C. O. D.; Atlantic & Pacific
Tel. Co. V. Philadelphia. 190 U, S. 162, 23 Sup. Ct 818, 47 L. 999.
holding power of Congress to regulate commerce with foreign
countries and between the States is exclusive; Caldwell v. North
Carolina, 187 U. S. 629, 23 Sup. Ct 232, 47 L. 340, holding invalid
ordinance under which tax may be required from agent of non-
resident portrait company for delivering portraits received In bulk.
See \)i> Am. St. Rep. 851, note.

Distinguished in Stone v. State, 117 Ga. 296, 43 S. E. 742. holding
seciiou GOO, Penal Code 1895, prohibiting peddlers selling without
license, does not apply to those engaged in interstate commerce.

£1208]

riGO

Notes on U. S. K exports.

185 U. S. 3S-fi5

185 U. S. 38^T. 46 K 705, SWEMNGEN v. ST. LOUIS.

Case depending on limlta of Federal patent does not Involve
validity thereof, p. 44.

Approved in Joy v. St Louis. 122 Fed. 526, holding no Federnl
question Involved in sdlt to recover land claimed under Spaniitlj
grant protected by Louisiana purchase treaty, question being
whether land was within the grant

Claim of Federal right must be bo referred to in pleadings to
show some Tva» relied on, p. 46,

Approved In Pardee v. Aldridge, ISO U. S. 431, 23 Sup. Ct 515. 4T
L. SS6, holding question of full faith aeeurded to decision of Federal
court foreclosing mortgage gives Fedcnil jurisdiction; Mutual Life
Ins. Co. V. McGrew, 1S8 U. S. 309, 23 Sup. Ct 378, 47 L. 485, hold-
ing Federal question, claim under Hawaiian treaty, raised In State
court on rehearing Is raised too late.

185 U- a 47-54, 46 L. 8()0, FRENCH GLENN LIVE STOCK CO. v.
SPRINGER.

Where there never was a lake meander lines are taken as bound-
ary, p. 52,

Approved In French Glenn Stock Co. v. v. Colwell, 1S5 U. S. 55,
4G L. 804, 22 Sup. Ct 5O0, reafflrmlnK rule; Schlosser v. Hemphill,
118 Iowa, 455, IKl N. W, 842, holding where no body of water ex-
isted to he meandered, meander line is actual boundrtiy: Security
Land, etc., Co. v. Burns, 87 Minn. 107, 108, 91 N. W. 3ii7, 30S. 94
Am. iSt Rep. GU3, holding meander line is actual boundary of frac-
tional lota where they appear on government plat to abyt on body
of water which never existed; dissenting opinion in Kean v, Calu-
met Canal Co., 190 U. S. 491, 23 Sup. Ct, OW, 47 L. 1141), majority
holding Federal patent to Indiana of " whole of fractional sections"
on government plat conveyed submerged portions of such sections.

The making of meander line has no certain significance, p. 52.

Approved In Kean v. Calumet Cajial Co,, 190 U. S. 459, 23 Sup.
Ct. i»52, 47 L. 1137, holding Federal patent to Indiana of *' whole of
ffactlohal sections *' contnined in government plat conveyed sub-
merged portions of such sections.

Claim that proper coiiatructlon of Federal survey and patent
gives riparian rights Is Federal question, p. 54.

Approved in Joy v. City of St Louis, 122 Fed. 527, holding eject-
ment for land claimed under Spfinish grant in Louisiana purcliase
depending on whether laud lay within euch grant involves no
Federal qaestion.

185 U, S. 54-<J5. Not cited.

185 U. S. 65-108 Notes on U. S. Reports. 1270

185 U. S. 65-83, 46 L. 808, VICKSBURG WATER-WORKS CO.
V. VICKSBURG.

An intention and attempt by subsequent legislation to deprive
rights under contract involves Federal question, p. 82.

Approved in Duluth Brewing, etc., Co. v. Superior, 123 Fed. 350.
assuming without deciding that bill in equity will lie to restrain
enforcement of invalid municipal ordinance; American, etc., Co. v.
Home Water Co., 115 Fed. 177, 179, holding suit to enjoin enforce-
ment of ordinances as attempts to annul exclusive grant of water
privileges involves Federal question.

A most valuable feature of equity is to prevent threatened in-
Jury, p. 82.

Approved in Palatka Water- Works v. Palatka, 127 Fed. 164, 165.
holding equity has Jurisdiction of suit against city alleging ordi-
nance reducing rates below that fixed by prior contract.

Distinguished in Elkins v. City of Chicago, 119 Fed. 961, holdins
adoption by council of committee report of near expiration of rail-
way franchise recommending steps to oust company unless fran-
chise renewed impairs no contract.

185 U. S. 83-93, 46 L. 816, RODGERS v. UNITED STATES.

In case of general and special acts covering same subject legis-
lature presumably intended no confiict, p. 89.

Approved in Ex parte Reaves, 121 Fed. 862, holding act March 3.
1803,. making fraudulent enlistment and receipt of pay thereunder
cause for court-martial does not defeat right of nonassenting parent
ef minor to avoid enlistment

185 U. S. 93-108, 4G L. 820, NEW YORK CITY v. PINE.

Person desiring to insist upon certain legal rights must do so
promptly, p. 103.

Approved In Kessler v. Ensley Co., 123 Fed. 566. holding stock-
holder's delay of four years before taking action to set aside con-
veyances alleged to be fraudulent bars right.

Distinguished in Speer v. Erie R. R., 64 N. J. Eq. 608, 54 Atl.
542. holding landowner's right to railroad crossing not lost on
change of grade by two month's delay in suing where during such
time he had listened to company's propositions.

Equity may refuse injunction and compel submission of dam-
ages to Jury, pp. 103, 108.

Approved in Benjamin v. Brooklyn Union El. R. R. Co., 120 Fed.
429, holding property-owner though barred by laches from enjoin-
ing continuance of road built under power of eminent domain has
right to damages therefor; St. Paul, M. & M. Ry. Co. v. Western
Union Tel. Co., 118 Fed. 519, holding court of equity has Jurisdic-
tion on expiration of term of telegraph company's lease of railroad

1271

Notes OQ U* 8. Reports.

1S5 U. S. lOS-154

right of wjiy to determloe amount of compensation to be paid for
continuation.

185 U. S. 108^111, 46 L, 827, FILHIOL v. MAURICE.

Ejectment against individual for land claimed to be within
Spanisb Rnitit involves no Federal question, p. IH,

Approved in Joy v. City of St Louis, 122 Fed. 528, boldlng suit to
recover lands claimed under Spauisli grant protected by treaty de-
pending entirely on question whether laud waa within such grant
involves no Federal question; Fllhiol v. Torney, 119 Fed. 974, hold-
ing allegation that defendant is In possession by direction of United
States cannot confer Federal jurisdiction by showing contest in*
Yolving Federal law.

185 U- S. 112-114. Not cited,

185 U. S. 114-122, 46 L. 830, EASTERN BUILDING & LOAN
ASSN. V. EBAUGH.
Laws of another State are matters of fact which must be proved*
p. 121.

Approved in Eastern Bidg, & L. Asso. v. Williamson, 18& U. S.
125, 23 Sup. Ct. 529. 47 L. 739, holding courts of one State do not
take judicial notice of laws of another State; Field v. Eastern B.
& L. AssD.. 117 Iowa, 203, 90 N. W. 723, holding general statements
that court erred in failing to determine rights of corporation under
laws of another State present nothing reTiewable on appeal,

185 U, S. 122-125. Not cited.

185 U. S. 125-147, 4G U 838. KANSAS T. COXiORADO.

Whi^re questions arising on record are intricate court will oot
proceed tiutll all facts presented* p. 147*

Approved In Chesapeake & Potomac Tel, Co. v. Manning, 186
U. S. 251, 46 L. 1149. 22 Sup. Ct 886. holding trial court may pro-
vide for further evidence as to reasonableness of rates charged
by lelephone cumpany, if such be needed.

Distinguished in Uaymond Syndicate v. Brown, 124 Fed. 83, hold-
ing facts latcrvening will not defeat eQUitable jurisdiction of bill
alleging purchase of merchandise for lump sum paid and nonde-
livery and concealment of portion of goods.

ISTj U. S. 14S-154. 4(1 L. 847, BRIE RAILROAD CO. v. PURDY,

State Courtis refusal to decide Federal question not presented
below is nonreviewalde, p. 154.

Approved la Hughes v. Kepley. 191 U. S. 557, 24 Sup. Ct 842;
Bank of Commerce v. Wiltsie, 189 U. S. 5CMJ, 23 Sup. Ct 851, 47
L. 921; Illinois v. Bemls, 189 U. S. 50G> 23 Sup. Ct 851, 47 L. 021;
Carnahao v. Connolly. 187 U, S. G3C, 47 L. 343. 23 Sop. Ct 843. all af-
flrmlng rule; Mutual Life Lna. Co. v. MeGrew. 188 U. S. 308, 23 Sup.

4

185 U. S. 155^212 Notea on U. S. Reports. 1272

Gt. 378, 47 L. 484, holding State decision cannot be reviewed for fail-
ure to accord full faith to Hawaiian judgment where contention not
presented to highest State court; Lay ton v. Missouri, 187 TJ. S. 361.
23 Sup. Gt 139, 47 L. 216, holding State decision upholding State
statute claimed to violate Federal Gonstitution is not reviewable
where State court refused to decide Federal question because not
raised below; Paul v. Delaware, etc., R. R. Go., 176 N. Y. 478. 67
X. E. 1087, holding appellant cannot raise question of illegality of
contract as in restraint of trade where such question was not raised
below.

185 U. S. 155-171, 46 L. 851, HITZ v. JBNKS.

Sale without leave of court by trustee in trust deed confers no
title, p. 171.

Approved in Knott v. Evening Post Go., 124 Fed. 352, holding
l^ederal court will not surrender corporation property to receiver
of State court appointed after Federal court took action, although
State action for inspection of books was first begun.

185 U. S. 172-181, 46 L. 857. TALBOT v. SIOUX GITY NAT. BANK.

It is intorest charged and not interest as to which forfeiture might
be enforced that Rev. Stat., § 5198, regards as illegal, p. 181.

Approved in Petterson v. Bury, 125 Fed. 906, holding, under
Alaska Code 1900. §§ 255-259, raising rate of interest to 12 per cent.
defense of usury not available against note bearing 12 per cent exe-
cuted prior thereto but sued on in 1903.

185 U. S. 182-188. Not cited.

185 U. S. 189-202, 46 L. 860. UNITED STATES v. PENDELL.

Unless error clearly appears decision of Court of Private Land
Claims as to sutticiency of possession will be adopted, p. 197.

Approved in Sena v. United States, 189 U. S. 239. 23 Sup. Ct.
1398, 47 L. 791, adopting finding of Court of Private Land Claims
that the evideuce of settlement and occupation of tract claimed
as {xrauted is ** so vague as to be almost wholly wanting."

185 U. S. 203-212, 46 L. 872, ST. LOUIS CONS. COAL GO. t.
ILLINOIS.

111. act 1897 for inspection of mines employing over five men
is valid, p. 208.

Approved in Hand v. Stapleton, 135 Ala. 166. 33 So. G92, uphoUliu-.
liiuler Alabama Constitution (act February 5. 1901), providing for
leiuoval of county seat, the act not to take effect until it was as-
certained tliat tax rate would not be increased; People v. Buth-r.
Stroet For.ndry. 201 111. 256, (JO N. E. 356, holding act 1803 not un-
♦Miiistitiitional for oxenipting from its operation building, loan aD«I
homestead aj^suciatioiis; People v. Lochner, 177 X. Y. 149, 09 N. E.

lliTS

Notes QU U. S. Reports.

1S3 U. S. 213-277

374, uphojding Laws 1897, p, 485» limiting hours of employment la
bakeries to sixty per week and ten per day.

185 U, S. 213-223, 40 L. 878, UNITED STATES v. LEE YEN TAL

Section 12 of act 1882 was eat repealed by Cliinese treaty of
1804, p. 222.

Approved in Chin Bak Kan r. United States, 186 U. S. 108, 1»9,
4G L. 1125. 22 Sup, CL 8&3. St)4, tiolding Chinese treat}* of ISIM did
not operate as repeal of treaty of 1882; Lee Lung w Patterson, ISti
U. S. 17a, 46 L. 1111, 22 Sup. Ct 75)8, holding Chinese treaty of IKU
did not abrogate provisioas of treaty of 1888, relative to evidence
required for admission of exempted Chinese; In re Ong Lung, 125
Fed. 814, holding Chinese treaty of 18(*4 did not ropt^ai provision of
eiclusion act of 1892, tlisaJlowing bail on application for writ of
habeas corpus by Chinese.

183 U. S, 223-236, 46 L. 884, UNITED STATES v. BOKCHERLING.

United States in Its sovereign capacity has no particular place of
domicile, p. 233.

Approved in United States v, Tyndale, 116 Fed. 825, holding
assets found on body flouting on high seas may be administered on
In any county in district.

185 U. S. 236-254, 46 L. 890, UNITED STATES v. FIXNELL.

Construction of statute by department chnrged with execution is
followed unless clearly erroaeous, p, 244.

Approved in United States v. Somervell, 192 U. S, 001, 24 Sup.
Ct. 850, reaffirming rule; United States v. Sweet, 189 U. S. 473, 23
Sup, Ct. G38, 47 L. 907, following settled practice of war department
denying officer discharged at his request traveling expenses to phi<'e
of enroHnient, allowed under Rev. Stat., § 1289, except in cases of
discharge for punishment; United States v. Nix, 185 U, S. 2tKi 23
Sup. Ct. 497, 47 L. 777, allowing per drem fee of marshal for attend-
ing court where judge opened same for business, though none
minsacted; United States v. Natlooa! Surety Co.. 122 Fed. mi.
holding sureties on disttUer^s ottlciiil bond are not relieved of liabil-
ity by execution of wareljousing bond to secure delay In paying
tax.

18u U. S. 254-270. Not cited.

185 U. S. 270 277, 46 L. 906, COVINGTON v. COVINGTON FIRST
NATIONAL BANK.

Judgment Is not flnal where court below reserved determination
of right to enjoin tax, p. 277.

Approved In Montana Mining Co. v. Bt Louis M. & M. Co.. 186
U. S, 32, 40 L, 1042. 22 Sup. Ct. 747. holding judgment reversing
prior judgment but imposing limitation on extent of new trial

185 U. S. 278-305 Notes on U. S. Reports. 1274

awarded operates as a reversal; Mercantile Trust Co. ▼. Chicago,
etc., Ry. Co., 123 Fed. 392, holding decree on intervening petition
against receiver directing delivery of property or accounting there-
for, referring same to master for compensation, is not final.

185 tJ. S. 278-281. Not cited.

185 U. S. 282-295, 46 L. 910, EXCELSIOR W. P. CO. v. PACIFIC
BRIDGE CO.

Actions for price of patent article or on license to sell are triable
in State court, p. 286.

Approved in Raliley v. Columbia Phonograph Co., 122 Fed. 623,
holding removal of suit to prevent violation of contract for sale of
patent articles, without questioning validity of patent, dependi
solely on diverse citizenship; Pratt v. Hawes, 118 Wis. 613, 95 N.
W. 968, holding State court having Jurisdiction of action for price
of patent and machine manufactured thereunder may determine
validity of patent

Federal Jurisdiction of bill for infringement is not ousted by
question of license contract, p. 295.

Approved in Victor Talking Mach. Co. v. The Fair. 123 Fed. 426.
holding suit for infringement of patent is of Federal cognizance
though validity of license contract be also Involved.

185 U. S. 296-305, 46 L. 917, FOK YUNG v. UNITED STATES.

Power to exclude or expel aliens is vested in political depart
ments to be executed by executive authority according to treaty
or statutory regulation, p. 302.

Approved in The Japanese Immigrant Case, 189 U. S. 97, 99. 23
Sup. Ct. 613, 614, 47 L. 724, upholding power of Congress to delegate
to executive officers, as secretary of treasury, power to cause depor-
tation of immigrant within a year of entry; Lee Lung v. Patterson.
18G U. S. 175, 46 L. 1110, 22 Sup. Ct. 797, holding collector of cus-
toms does not lose jurisdiction to determine right of immigrant
Chinese to land, by disregarding certificates held by them; Lee Gon
Young V. United States, 185 U. S. 306, 46 L. 921, 22 Sup. Ct 690,
affirming order dismissing writ of habeas corpus obtained by Chinese
ordered deported by customs inspector; In re Sing Tuck, 126 Fed.
389, holding under power to exclude aliens Congress may confer on
immigration officers power to determine citizenship of aliens:
United States v. Lue Yee, 124 Fed. 303, holding decision of proper
customs officer adverse to right of Chinese to remain is conclusive
in deportation proceedings.

Distinguished in Lavin v. Le Fevre, 125 Fed. 695, holding whether
immigration officer proceeds accordini; to law in deporting an alien
is judicial question, inquired into on habeas corpus.

1275

NoteB on U. S. Reports.

185 U. S. 3*>0^354

185 U, S. 306, 307, 40 L. 921, LEE GON YUNG v. UNITED STATES.

Authority of the govemmeDt In prescribing regulatloDs of Immi-
gration Is unqualified, p. 307.

Approved in Lee Lung v. Patterson, 186 U, S. 17u, 4ti L, 1110. 22
Sup. Ct. 707, holding collector of custom s dues not, by disregarding
certificates hold bj Chinese under exclusion act, lose Jurlsdictlou
to determine right to enter; United States v. Lue Yee. 124 Fed. 303,
holding decision of proper custom's officer iid verse to right of
Chinese to remain In this country la conclusive in aubseqncat
deportation proceedings,

185 U. S. 308^.330. 40 L. 922, FIDELITY MUT. LIFE ASSN. v.
METTLER

Where erroneously admitted evidence did not aETect verdict, !t is
not cause for reversal, p. 322,

Approved in Fidelity iii Deposit Co. v. Courluej. ISO U- S. 351,
46 L. 1199, 22 Sup. CL S3T, holding error in excluding in action on
Indemnity bond of bank president cashier's certificate replying to
surety company cured by proper charge to jury.

Tex. Rev. Stat, art 3071, allowing damages against insurance
companies Is valid, p. 327,

Approved in Farmers; etc., Ins. Co. v. Dobney, ISO U. S. 304, 23
Sup. Ct. 566, 47 L. 826, upholding Nebr, Comp. Stat., chap. 43.
II 43-45, allowing reasonable attorney's fees in successful suit for
loss of real property from causes insured against; Home Life Ins.
Co. V. Fisher. 188 U. S. 727. 23 Sup. Ct. 381, 47 L. 0<>S, upholding
Florida statute authorizing jury to award reasonable attorney's fees
to plaintiff if snccessful; Iowa Life Ins. Co. v. Lewis, 1S7 U. S. 355,
23 Sup, Ct 133, 47 L. 214, upholding Texas statute authorizing
recovery of damages and attorney's fees from insurance companies
delaying payment of losses.

185 U. S. 330-354, 40 L. 936, NEW ORLEANS WATER-WOBKS
CO. V. LOUISIANA.

Forfeiture of corporate charter for violation of Its terms l>y State
decree on quo warranto involves no Federal question, pp. 352, 353,

Approved in Weltmer v. Bishop, IDl U. S. 5G1, 24 Sup. Ct 848;
Gates V. Parmly, 101 U, S. 557, 24 Sup. Ct 843, and Northern Cent
Ry. Co. V. Hering, 186 U. S. 4Sh 40 L. 125D, 22 Sup. Ct. 944, all
reaflirming rule? Sawyer v. Piper, 1S9 U. S. 157, 23 Sup, Ct. 634, 47
L. 759, holding claim that right under Federal Constitution would
be denied by foreclosure decree unless leave to file supplementary
answer granted confers no Federal jurisdiction; Equitable Life
Assur. Society v. Brown, 187 U. S. 311, 314, 23 Sup. Ct. 124. 47 L.
11»2, 193. holding writ of error to Hawaiian Supreme Court will l»e
dismissed where only Federal question involved has been decided l»y
Supreme Court In accordance with Hawaiian court; Iowa v. Kood,

185 U. S. 354r402 Notes on U. S. Reports. 127G

187 U. S. 92, 23 Sup. Ct 51, 47 L. 90, holding State decision adverse
to State's claim to deeds of lakes meandered by national govern-
ment, based upon general law, presents no Federal question; Amick
V. Ellis, 53 W. Va. 422. 44 S. E. 257, holding unacknowledged con-
tract of sale of wife's land by her and her husband cannot be
specifically enforced.

Distinguished In Swafford v. Templeton. 185 U. S. 493. 40 L. 10(18.
22 Sup. Gt 785, holding Circuit Court has jurisdiction of suit against
State election officers for depriving plaintiff of right to vote for
representative in Congress.

Impairment of contract must come from enforcement of subse-
quent statute, p. 351.

Approved in Oshkosh Water- Works v. Oshkosh, 187 U. S. 446. 23
Sup. Ct 237, 47 L. 253, holding obligation of contract of August
31, 1891, could not be Impaired by revised charter which went Into
operation March 23, 1891. See 95 Am. St. Rep. 893, note.

Distinguished In State v. Smith, 177 Mo. 96, 75 S. W. 632, holding
right to appeal to State Supreme Court where constitutionality of
ordinance was expressly raised was not defeated by prior decision
by appellate court against statute.

185 U. S. 354-363. 46 L. 945, WOODWORTH v. MUTUAL LIFE
INS. CO.

Obligee on bond may recover rents and profits during pendency
of appeal as damages, p. 363.

Approved in Brown v. Northwestern Mut, Life Ins. Co.. 119 Fetl.
149, holding obligee In bond superseding orQer confirming sale of
realty and directing Immediate execution of deed may recover rents
and profits during appeal.

185 U. S. 364-372. Not cited.

185 U. S. 373-402, 46 L. 954, MINNESOTA v. HITCHCOCK.

It Is presumed that Congress will not Impair scope of school land
grant, p. 393.

Approved in Johanson v. Washington, 190 U. S. 183, 23 Sup. Ct
826, 47 L. 1010. holding Congress Intended by act 1859 that Wash-
ington should have sections 10 and 32 unless settled upon and then
such selections as approved by secretary of Interior.

Indian reservation Is not strictly public lands, p. 493.

Approved in United States v. Blendaur, 128 Fed. 913. holding lands
In Bitter Root valley, Montana, formerly occupied by Flathead In-
dians, became public land on removal of Indians and extension of
homestead laws.

Language used in Indian treaty should never be construed to thfir
prejudice, p. 396.

Approved In United States v. Rlckert, 188 U. S. 443. 23 Sup. Ct.

12T7

Notes on U» S, Reports.

ISaU. s. 4c:v:.i4

4S2, 47 L. 538. holding permaoent improvements^ iis linnRes nnd
stmctores oa land allotted to Indians, are not taxalile as pe»*s(m:;l
property by county,

185 U. S. 403^87, 46 L, 968, CARNEGIE STEEL CO. w CAMBKIA
IRON CO.

Jones patent No. 404,414» for mixing molten pig Iron witli reser-
voir for molten metal Infringed, p. 546.

DlBtingolshed in Davla^ etc., Co, v. Lackawanna Iron. etc.. Co..
128 Fed. 457, holding Greer patent for ore-roastlng furnace willi
stack cbamt>er as distinctive feature not Inl ringed by Kleoman
patent which has no such chamber.

la'i U. S. 487-494, 46 L. 1005, SWAFFORD v. TEMFLETON.

Circuit Court has concurrent jiirisdiction over suits against State
election officers for refusal to permit plaintiff to vote for coo^eas-
man, p. 492.

Approved In Files v. Davis, 118 Fed. 4ti7. holdlnj? action on at*
tachment bond executed in suit pending in Federal court presents
a Federal question.

Denial of right to vote for congressman Is an inherently Federal
question, p. 493.

Approved In Wabash R. E. v. Flannigan, 192 U. S. 38, 24 Sup.
Ct. 22C, holding writ of error will be dismissed where Federal ques-
tion relied on lacks all color of merit; Giles v. Harris, 1S9 U, S, 485,
23 Sup, Ct. 641, 47 L. 911, iiolding absence of averment of jnrisdtc-
donai amount cannot be objected to on appeal where no objection
10 amission was made in Circuit Court; Equitable Life Asaur.
Society V. Brown. 187 U. S. 311, 315. 23 Sup. Ct, 124, 47 L. 11)2, 193,
dismissing writ of error to Hawaiian Supreme Court where no inher-
ently Federal question involved, and where Hawaiian court ruling
in qncBtion involved accords with Supreme Court; dissenting opinion
in Giles w Harris, 189 U, S. 492, 498. 23 Sup. Ot 048, 47 L. 914, D16,
majority holding absence of averment of jurisdictional amount In
Circuit Court cannot be objected to on appeal where no objection
made below.

185 U. S. 495-504, Not cited,

im U, S. 595-514, 4C L. 1012. McFADDIN v. KVANS-SNIDER-
BUEL CO.

Act February 3, 1897, was designed to validate mortgages given
before act p. 509.

Approved In Lufkin v, Lufkin. 182 Mass. 479, 65 N. E, 841» up-
holding Stat, 1895, chap. 427. providing that death of former hus-
band or wife shall validate subsequent marriage of other where
third person acted in good faith.

CLXXXVI UNITED STATES.

186 U. S. 1-24. Not cited.

186 U. S. 24r^2, 46 L. 1030. MONTANA MINING CO. T. ST. LOUIS
M. & M. CO.

Writs of error to Judgment which had ceased to be final most be
dismissed, p. 32.

Approved in Bmpire State-Idaho, etc, Ca y. Bunker EUll, etCn
Co., 121 Fed. 975, holding reversal of part of judgment upon eroM-
writs of error is reversal of whole.

186 U. S. 3^-48, 46 L. 1042, EMSHEIMER v. NEW ORLEANS.

Circuit Court has Jurisdiction where payees could have sued with-
out assignment, p. 43.

Approved in Emsheimer v. New Orleans, 119 Fed. 1019, reaffirm-
ing rule.

186 U. S. 49-70, 46 L. 1049, MoCLAUGHRY v. DBMINQ.

Under seventy-seventh article of war court-martial for other
branches cannot consist of regular army officers, p. 69.

Distinguished in In re Brodie, 128 Fed. 671, holding whether local
law is possible of ascertainment is question for court-martiaL

186 U. S. 70-95, 46 L. 1058, BEMENT v. NATIONAL HARROW CO.

Supreme Court is concluded by findings of fact made in State
court, p. 83.

Approved in Thayer v. Spratt, 189 U. S. 353, 23 Sup. Ct 579. 47
L. 849. holding upon writ of error to State court. Supreme Court
cannot review decision on ground that it is against evidence;
Jenkins v. Neff. 186 U. S. 235, 46 L. 1142. 22 Sup. Ct 907, holding
finding of fact by State court is conclusive upon Supreme Court

Patent laws arc designed to promote progress of useful arts,
p. 89.

Approved in National Phonograph Co. v. Schlegel, 128 Fed. 735.
upholding contract requiring vendee of patent not to sell below
agreed price nor to sell to any one who would not agree to maintain
price; General Electric Co. v. Wise, 119 Fed. 924, holding If patent
is valid, owner thereof has right to injunction to protect exclusive
enjoyment

[1278)

1279

Notea OD U. S. Reports,

18CU. S. IKV-IKJ

Inventor Is noltber bound to use big discovery nor allow otlieri*
to do so, p. 90.

Approved in Fuller v. Berger, 120 Fed. 277, hoMmg nonuse of
patent is do defense in equity for iufriugemeut.

Tbe very object of patent laws is monopoly. p» 91.

Approved Id National PhoDOgraph Co. v. SchlegeK 12S Fed. 735.
sustaining contract requiring vendee of patent not to sell below cer-
tain price nor to otliers who would not agree to do likewise; United
States ConsoLp etc.. E. R. v, Grlffln, etc.. Co., 120 Fed, 308. 300.
upholding contracts by which number of similar patents were con-
veyed by owner to same person to keep up piitent monopoly; Victor
Talking Mach. Co. v. The Fair. 123 Fed. 426, holding owner of
patent has right to regulate sale price of article, and those know-
ingly violating same are infringers; General Electric Co. v. Wise, 11 SI
Fed. 924, bolding violation of Sherman anti-trust law by owner of
patent does not justify infringement of patent

Distinguished in A. B, Dick Co. v. Koper. 12G Fed. MI, holding
sale of supplies for use on patented macbine hearing liibel stating
sale under license requiring certain kind of ink does not, without
proof » warrant Iniuuctiou; Straus v. Am. Pub. Assn., 117 N. Y. 47H,
60 N, E. 1107, 1108, holding invalid agreement between booksellers
not to sell any book copyrighted or not to any dealer who would not
maintain net prices.

Sberman antitrust act does not apply to restrictions on sale uf
patent rights^ p. 02.

Approved In National Phonograph Co. v. Schlegel, 128 Fed. Tl^r*.
upholding contract requiring vendee of patent not to sell below
agreed price nor to sell to any one who would not agree to main-
tain price.

Restriction imposed by patentee upon vendee to keep up price
Is valid, p. 03.

Approved in Edison Phonograph Co. v. Pike» 116 Fed. 8(r», BCTT.
Bustainiog restriction !n license that vendee should not seli below
certain price nor sell to one who would, violation to forfeit licensi'.

Distinguished in Victor Talking Mach. Co. v. The Fair, 118 Fed.
610. holding manufacturer selling patented article to jobber without
restriction cannot by notice posted on such article render selling
thereof below certain price an Infringement

186 U. S. 95-113, 46 L. 1070. MUIIPHY v. UTTER.

A later act on same subject covering sam^ and other provisions
repeals earlier, p. 105.

Distinguished in Bird v. United States, 187 U. S, 125. 23 Slip, Ct.
45, 47 L, 103, bolding criminal prosecution for murder pending when
iLCt creating criminal coiie for Alaska was passed, 1SU9, witljin
"generiLl Jurisdiction of District Court."

1281

Notes on U. S, Beporta.

186 U. S. 202-205

sioD act 1892, Cbinese applying for writ of habeas corpitis in tlie
first instance after refusal to admit Dot entitled to bail: In re Moy
Quong Shing, 125 Fed. 642, hoiiJing under act February 14, 1903,
department of labor lias jurisdiction to determine whether Chinese
seeliing admisBion was born In United States: United States v. Lne
Yee» 124 Fed. 303» holding finding of col lector refusing Chinese ad-
mission Is conclusive on fact of being unlawfully in this country;
In re Chin Ark Wing, 115 Fed. 414, holding where Chinese appeals
to district Judge from decision of commissioner without objecting
to findings, court has jurisdiction as od appeal or original pro-
ceeding: dissenting opinion in Ark Foo v. United States, 128 Fed.
700. majority holding failure of defendant to take the stand is not
fiutficlent to justify deportation.

Citizenship Is not to be conceded to those claiming it nuder pres-
sure of particular exigency, p, 200,

Approved In United States v. Sing Lee, 125 Fed. 029, holding
findings of commissioner against right of Chinese person to remain
justified by evidence.

186 U. S. 202-205, 46 L, 1127, DENVER FIRST NAT. BAKK v,
KLUG.

Supreme Court jurisdiction of appeal depends upon act March 3,
1801, p. 204.

Approved in Columbia Ironworks v. National Lead Co., 127 Fed.
101. holding appeal on question whether corporation is principally
engaged In manutacturing or mercantile pursuits lies to Circuit
Court of Appeals; Hutchinson v. Otis, Wilcox, etc., Co.. 123 Fed.
IS], IS, lOp 20. holding Circuit Court of Appeals' decision on petition
to revise proceedings of District Court In mutter of law is not
appealable to Supreme Court.

Distinguished la Elliott v. Toeppner, 187 U. S, 335, 23 Sup. Ct
130. 47 L. 213. holding Judgment that person is not a bankrupt
entered by Bankruptcy Court In jury trial reviewable only by
writ of error.

Apart from section 25, Circuit Court of Appeals have same re-
visory powers as in other cases, p. 205.

Approved In Holden v. Stratton, 191 U. 8. 119, 24 Sup. Ct. 47,
holding certiorari proper method for obtaining review of decision
of Circuit Court of Appeals revising proceedings In District Court;
Pfurleigh V. Foreman, 125 Fed. 320, holding appeal lies under eec-
tlnn 24a. bankruptcy act 1808, to Circuit Court of Appeals from
Bankruptcy Court's decision on separate matter arising between
interveners; Hutchinson v. Otis. Wiicox & Co.. 123 Fed. 17, hold-
ing act 1M>1. f G, docs not authorize appeal from Circuit Court of
Appeals on decision on petition to revise District Ckiurt*fi rulings in
baultruptey proceedings.
Vol III --81

J

186 U. S. 206-269 Notes on U. S. Reporta. 1282

ISO U. S. 206-212, 46 L. U28. CLARK v. HERINGTON.

Land department's approval cannot give railway right to land
open only under settlement laws, p. 209.

Approved in Southern Pacific R. R. v. United States, 189 U. 8.
452, 23 Sup. Ct 569, 47 L. 900, holding since Southern Padflc took
no interest in land within twenty-mile limit, because of forfeiture to
United States, company cannot claim adjoining land as indeomity.

186 U. S. 212-223, 46 L. 1132, BIENVILLE WATER SUPPLY CX>.
V. MOBILE.

Law will not permit splitting up into separate suits different
grounds for same relief, p. 217.

Approved in United States v. Calif ornia, etc. Land Co., 192 U.
S. 359, 24 Sup. Ct 267, holding dismissal on ground of estoppel of
bill by United States to avoid land patents defeats subsequent bill
to enjoin allotment of same land to Indians.

Where charter empowers State to charter other companies to
furnish city with water water company took charter with notice
that it had no exclusive right, p. 218.

Approved in Joplin v. Light Co., 191 U. S. 158, 24 Sup. Ct. 45,
holding nonexclusive municipal grant under Mo. Laws 1891, p. 00,
of electric-light franchise for twenty years, raises no implied con-
tract that city will not build plant.

ISC U. S. 224-230, 46 L. 1137, HARDY v. UNITED STATES.

The date named in indictment for crime of murder is not an
essential averment, p. 225.

Approved in Hume v. United States, 118 Fed. 696, holding wrong
date in indictment for fraudulent devising scheme to defraud by
use of mails is immateriaL

ISO U. S. 230-23S. 46 L. 1140, JENKINS v. NEFF.

Finding of facts by State cotirt are conclusive with Supreme
Court, p. 233.

Approved in Thayer v. Spratt, 1S9 U. S. 353, 23 Sup. Ct 579. 47
I.. S40. holding Supreme Court will not review evidence u^n which
State court's findings of fact resL

ISO U. S. 2:^S-256. Not cited.

ISO U. S. 257-200. 46 L. 1151. MINNEAPOLIS, ETC.. R. R. CO. v.
MINNESOTA.

State commission may prescribe joint through rates for trans-
portation between two points, p. 263.

Approved in Central Stock Yards v. Louisville, etc., Ry., 192 U.
S. r»71. 24 Sup. Ct. 341. holding railway maintaining live stock depot
vniiiiot be oompelltHl to receive stock billed to depot on another line,
similarly situated.

12S3

Notes on U, S. Reports.

ISO U. S. 269-^^12

186 U. S. 269-279. Not cited.

188 U. S. 2TJ>-29L 40 L. 11G4, PINE RIVER LOGGING CO. v,
UNITED STATES.

Where trespass was willful damages are full value of timber
wben seized, p. 293.

Approved iu Sweeney v. Ha u ley. 126 Fed. 103. holding where
majority owner of mine wrongfully exclutles minority ownen meas-
ure of damages is latter's full share of ore mined without deducting
cost of mining: Potter v. United States, 122 Fed. 53, 54, holding
measure of damages against Innocent purchaser of logs from wllU
ful trespasser is value of logs at time of purchase.

Distinguished in United States v. St. Anthony H. R., 102 U. S.
542. 24 Sup. Ct. 330. holding where timber was cut by railroad on
public domain but in belief baser! on advice of counsel that such
was railway land, damages are value of timber when cut

Courts do not give Judgment against United States for costs,
p. 200,

Approved in United States v* Diekson, 127 Fed. 775, holding on
dismissal of proceedings to coudeton land for public purposes
United States not liable to owners for costs.

186 U. S. 29^-301. 46 L. 1173, UNITED STATES v. NICHOLS.

Value of glass bottles filled with ad valorem goods h not added
under act ISOO. p. 303.

Approved in United States v, Austin. Nichols & Co., 121 Fed.
730, hnlding bottles tilled with merchandise at ad valorem rates
not subject to duty under act 1894, par. 88.

186 U, S. 304-308. Not cited.

186 U. S, 300-319, 46 L. 1177, UNITED STATES v, FREEL.

Change In contract for dry-dock in location of dock requiring extra
work released surety, p. 318.

Dlstingyislied in Guarantee Co. v. Pressed Brick Co.» 191 U. S.
424. 24 Sup. Ct. 143, holding extension of time on bill for material
furntslied obligor hy third party does not discharge surety on
bond for performance of original contract for construetloti and
prnnipt payment for materials; United States v. Richardson. 127
Fed. H04. holding sureties on distiller's annual bond are not dis-
charged by execution of warehousing bond covering certain of
name spirits.

180 U. S. 320-342, 4« L, 1182. INTERSTATE COMMERCE COM-
MISSION V. CHICAGO, ETC.. R. R. CO.
Carrier has rig! it to make reasonable terminal charge, p. 334,
Ajvproved In dissenting opinion In Ohio Coal Co, v. Whitcomb,

123 Fed. 305, majority holding charge of ^2 per car Imposed

186 U. S. 34^-158 Notes on U. S. Reports. 1284

upon one shipper for transportation over branch line oonstltutes
discrimination.

186 U. S. 342-364, 46 L. 1193, FIDELITY & DEPOSIT CO. ?.
COURTNEY.

Provision for ** immediate " notice allows intervention of period
longer or shorter according to circumstances, p. 346.

Approved In Fidelity, etc., Co. of Maryland v. Robertson, 136
Ala. 412, 34 So. 944, holding notice to be given " immediately " of
acts involving liability on surety's bond means within reasonable
time.

Certificate executed by cashier of bank is binding on bank, p. 850.

Approved in Issaquah Coal Co. v. United States, etc.. Guaranty
Co., 126 Fed. 93, 94, holding admissible in action against surety
company on bond of assistant treasurer certificate of plalntitTs
auditor wherQ general manager knew of its execution.

186 U. S. 365-380. Not cited.

186 U. S. 380-401. 46 L. 1209, COMPAGNIB FRANCAISE DE
NAVIGATION, ETC. v. LOUISIANA STATE BOARD OF
HEALTH.
La. Acts 1898, authorizing board of health to exclude healthy
persons from affected districts, is valid, p. 387.

Distinguished in Smith v. Lowe, 121 Fed. 757, holding State
officers cannot, under Idaho sheep quarantine act 1899, interfere
with removal into State of healthy sheep.

186 U. S. 401-422. Not cited.

186 U. S. 423-434, 46 L. 1229, HAGAN v. SCOTTISH INSURANCE
CO.

Words in policy ** on account of whom it may concern '* protect
assignee, p. 429.

Approved In Munich Assur. Co. v. Dodwell, 128 Fed. 414, hold-
ing marine policy insuring against general average " in name of
all persons to whom subject-matter may appertain *' protects whole
cargo.

186 U. S. 434 458, 46 L. 1234. FARMERS' LOAN & TRUST CO.
v. PENN PLATE GLASS CO.

Covenant to insure does not run with the land, p. 453.

Distinguished in American Ice Co. v. Eastern Trust Co., 188 U.
S. 621). 031, 23 Sup. Ct. 433, 434, 47 L. 625, holding proceeds of in-
surance policies taken by mortgagor's assignee for creditors inuros
to trustee for bondholders in mortgage where it required in-
surance.

12S5

Notes on U, S. Reports.

186 U. S. 408-483

Purchaser of property subject to mortgage need not Insure tliough

obllgadon to insure Imposed on mortgagor, p, 456.

Approved in Eaetern Milling, etc. Co, v. Eastern Milling, etc.,
Co., 125 Fed. 143» holding where contractual obligation exists re-
el ui ring mortgagor to Insure for mortgagee's benefit, latter Is en-
titled to proceeds*

186 U. S. 468-477, 46 L. 1247, LANDER v, MERCANTILE BANK.

Judgments based on discrimination In 1885 or 1894 do not show
discrimination In 1806, p, 477.

Approved in Lander ?. Mercantile Nat Bank, 118 Fed. 786.
holding Rev. Stat. Ohio, § 27Sla* does not authorize auditor to
piace on duplicate tax list sums allowed in past years as deduc-
tions on bank stock.

im U. S. 483, 46 L. 1261, HARDING T. HART,

Approved In Harding v. Hart» 187 U. 8. 638, 23 Sup. Ct 846.
47 %u 344, dismissing appeal for want of Jurisdiction.

CLXXXVn UNITED STATES.

187 U. S. 1-41. Not cited.

187 U. S. 41-50, 47 L. 65, ROBINSON & CO. v. BELT.

Sapreme Court will not reverse for errors not presented to lower
court, p. 50.

Approved in Hegeman v. Springer, 189 U. S. 505, 23 Sup. Ct
849, 47 L. 921, reaffirming rule.

187 U. S. 51-61, 47 L. 70, TURPIN v. LEMON.

Due process must give parties opportunity to be beard respect-
ing justice of Judgment sought, p. 58.

Approved in Glidden v. Harrington, 189 U. 8. 259, 23 Sup. Ct
576, 47 L. 801, holding due process accorded by practice under
State statute authorizing assessment to trustee of personalty held
in trust, requiring assessors to give public notice; State v. Earle.
66 S. C. 202, 44 S. E. 784, holding party affected by ordinance
requiring placing of flagmen at crossings may show that such ordi-
nance amounts to confiscation of property. See 94 Am. St Rep.
622, note.

Plaintiff must show that he has suffered injury before he can
obtain relief, on ground of denial of due process, p. 61.

Approved in Smith v. Indiana. 191 U. S. 148. 24 Sup. Ct 52,
holding county auditor has no sufficient interest to obtain review of
State decision requiring deduction of mortgage from valuation of
real estate; Davis, etc., Mfg. Co. v. I^s Angeles, 189 U. S. 22j»,
23 Sup. Ct. 501, 47 L. 781, holding subcontractor cannot enjoin
enforcement against employees oi municipal ordinance against
erection of gasworlis within prohibited territory, as impairment
of contractor's contract
187 U. S. 61-^, 47 L. 75, BAKER v. BALDWIN.

Writ of error ue^er Rev. Stat 709 requires State decisions ad-
verse to Federal right, p. C?

Approved in Iowa v. Rood, 187 U. S. 94, Zi Sup. Ct 51, 47 I-. 9a
holding State decision denying State's claim to bed of lake meand-
ered by I'nitod States surveyors does not warrant writ of ern.>r
to Supreme Court.

187 r. S. 03-71. 47 L. 76, KANSAS CITY, ETC., RY. CO. v. HER-
MAN.

Issues of fact raised on petitions for removal should be tried in
Circuit Court, p. 70.

Approved in Board of Comrs. v. Toronto Bank. 128 Fed. 159,

[1286]

1287

Notes on TT. S. Reports.

IffTU.S.n-llT

holdlDg existence of Jurlsclictmnal facts as question of fact deter-
mined by Federal court from petition or from facts deduced In
support thereof.

187 U. S. 71-87, 47 L. 79. DR^YER v. ILLINOIS.

Illinois Indeterminate sentence act of 1H99, though conferring
Judicial powers on nonjndici;*l offlcera and Investing them with
pardoning power. Is valitl, p. 84,

Approved in Moss v, Glenn, ISO U. S. &m» 23 Sup, Ct 851» 47 L.
921, reversing order and reni:in(Hiig cause with direction to quaah
writ of haheas corptis; Eutz v, Michigan, ISS U. S. 507, 23 Sup. Ct.
391, 47 L, 5C6, upholding Mich. Acts 18t>9, No. 237, providing no
special hearing to applicants before hoard of registration In medicine
for applicants, but prbvicliiig for semi-annual meetings of board;
Jacobl V. Alabama, 187 U. S. 136, 23 Sup. Ct, 4J), 47 L. 108, hold-
Ing Supreme Court will not review State dicislon for failure to pass
on admission of evidence in trial court where no objection was made
in the trial court

187 U. a 87-94, 47 L. 80, IOWA v. ROOD.

Claim to laivc beds based upon State's right of sovereignty In-
volves no Fedenil question, p, 92,

Approved in Hooker v, Los Angeles, im U. S, 318, 23 Sup. Ct,
397. 47 L. 401, holding State decision adverse to riparian rights
claimed under Mexican and Spanish grants confirmed by Congress
involves no Federal question.

187 U. S. 94-111, 47 L, 90, AMERICAN SCHOOL OF MAGNETIC

HEALING V, McANNULTY,

Land department's decisions on questions of fact are conclusive,
p. loa

Approved in Edwards v. Begole» 121 Fed, 8, holding finding of
land department that homestead claimant became actual settler
at certain date is conclusive.

Postm aster-general's order for nondelivery of mail based on mis-
lake of law not !>inding, p, 110.

Approved in United States v. Luclns Beebe, etc., Sons, 122 Fed.
770, sustaining under cnstoms administrative act 1890 power of
board of appraisers to review collector's action in rellquldatfng
entry.

Distinguishcfl In United States ex rcL Riverside Oil Co. v. Hitch-
cock, 190 U. S. 325, 23 Sup. Ct 702, 47 L. 1078, holding mandamui^
will not lie to compel secretary of Interior to vacate decision re-
jecting selection of forest reservation Ueu land for failure to show
same t^peu lo settlement.

187 D. S. lU'llL Not cited.

k

187 U. S. 118-153 Notes on U. S. Reports. 1288

187 U. S. 118-133. 47 L. 100, BIRD v. UNITED STATES.

Act June, 1900, creating government for Alaska preserred suits
commenced in former courts, p. 124.

Approved in Shoup v. Marks, 128 Fed. 34, holding under saving
clause of Alaska Civ. Code, § 368, defendant in error may prosecute
suit under prior law or new law where suit commenced under old
law.

187 U. S. 133-136, 47 L. 106, JACOBI v. ALABAMA.

Federal question first raised on assignment of errors in highest
State court is too late, p. 136.

Approved in Mutual Life Ins. Co. v. McGrew, 188 IT. S. 808.
23 Sup. Ct. 378, 47 L. 484, holding proper time to raise Federal
question is in trial court.

Claim in State court that law is " unconstitutional " asserts right
under State law, p. 135.

Approved in Layton v. Missouri, 187 U. S. 358, 23 Sup. Ct. 138,
47 L. 215, holding objections in State court that State statute Is
unconstitutional refers to State Constitution and presents no Fed-
eral question.

187 U. S. 137-153, 47 L. 108, REID v. COLORADO.

Animal industry act prohibits Interstate transportation of dis-
eased live stock, p. 145.

Approved in Lottery Case, 188 U. S. 359, 23 Sup. Ct 328, 47 L.
502, holding Congress may prohibit interstate commerce consisting
in carriage between States of lottery tickets by interstate express
company.

Congressional rules as to transportation of live stock will alone
control when interstate transportation of livestock is taken under
direct national supervision, p. 147.

Approved in United States v. Slater, 123 Fed. 121, upholding act
May 29, 1884, prohibiting driving of infected live stock from one
State into another as within commerce power.

Animal industry act 1884 does not cover whole subject of animal
transportation, p. 147.

Approved in Reid v. Jones, 187 U. S. 154. 23 Sup. Ct. 90, 47 L.
117, holding where no exceptional facts exist. Federal court will
not award writ of habeas corpus to release person arrested by State
authorities unless State remedies exhausted; Mastin v. Chicago,
R. I., etc., P. Ry. Co., 123 Fed. 831, holding action for damages
for shipping diseased cattle into State contrary to Federal law is
removable although violation of State law also claimed.

Distinguished in The Roanoke, ISO U. S. 108, 23 Sup. Ct. 494.
47 L. 774. holding unconstitutional Washington statute creating
proforred lien on ocean-going vessels owned elsewhere for work
and materials furnished.

12S9

Notes on U. S, Reports,

1»T U, S. 153^177

1S7 U. B, 153. 154. Not cited.

187 U. S. 155^158, 47 L. 117, HOME FOE INCURABLES v. CITY
OF NEW YORK.

Federal right must be claimed Id some way In State court,
p. 157.

Approved in Paul v, Delaware, etc., R. R. Co., 175 N. Y. 47S.
67 N, E. 1087, bolding appellant precluded from raising objection
to contract as in restraint of trade by failure to make objection
In either lower court

Decision by State court upon Federal question ia sufficient,
p, 157.

Approved in Mutual Life Ins. Co. v, McGrew, 188 D. S. SOD. 23
Sup. Ct. 37a 47 L, 485. holding if State Supreme Court decides
a Federal question which it assumes {a distinctly presented it Is
Bufflcient.

187 U. S. 159-104, 47 L. 119. RAUB v. CARPENTER.

Incompetency of Jury may be waived and does not Invalidate
verdict p. 104.

Approved in Queenan v. Oldahoma, 190 U. S. 551. 23 Sup. CL 764,
47 L. 117S, holding right to object to juror convicted of felony
waived by failure to object until after verdict,

187 U. S. 165-177, 47 L. 122, METCALP v. BARKER,

Instance of case reviewed on revisory petition to Circuit Court
of Appeals, p. 165.

Approved in Burleigh v. Foreman. 125 Fed. 220, holding appeal
lies from order of Bankruptcy Court on separable issue arising
between interveners la proceedings to marshal assets; In re Autigo
Screen Door Co». 123 Fed. 252, holding where mortgagee In pos-
session surrenders to trustee, reserving Hen against proceeds,
court holds proceeds as Bankruptcy Court whose action is review-
able by petition.

Filing of judgment creditor's bill over four months before bank-
ruptcy gives valid Hen, p. 174.

Approved In Pickens v. Roy, 187 U, S. 180, 23 Sup. Ct 79, 47
L. 13<X holding 8tate court does not lose Jurisdiction of eredltorV
suit to avoid deed by latter's proof of claim in bankruptcy, nor Is
anch proof consent to District Court's jurisdiction; In re vSuell. 12."i
Fed, 154. holding creditor obtaining valid lien more than four
months before conimencement of bankruptcy proceedings may
prosecute same to Judgrment; In re English. 122 Fed, 114, holding
equitable lien on partnership assets created eighteen months be-
fore filing of petition takes preeedence over trustee^a right thougli
judgment rendered thert^on within four months; In re Varlck Bank.
119 Fed. 992, boldlng obtaining appointment In State court of

187 U. S. 177-197 Notes on U. S. Reports. 1290

receiver for insolvent partnersliip is not of itself an act of bank-
ruptcy; Thompson v. Fairbanks, 75 Vt 372, 56 Atl. 15, upholding
lien of chattel mortgage on bankrupt's property given more than
four months before bankruptcy, though possession given within
that time.

Distinguished in Clarke v. Larremore, 188 U. 8. 488, 23 Sup. Ct
364, 47 L. 558, holding void, under bankruptcy act 1898, Judgment
lien on bankrupt's property under Judgment obtained within four
months of bankruptcy.

Where State court has possession of property and jurisdiction. It
determines controversy, p. 175.

Approved in In re Knight, 125 Fed. 42, 43, holding State court
retains jurisdiction where possession of bankrupt's property i«
obtained and suit commenced over four months before bankruptcy;
White V. Thompson, 119 Fed. 870, holding referee cannot enjoin
enforcement of State court when levy was made under execu-
tion issued before bankruptcy.

Distinguished in In re Hornstein, 122 Fed. 270, holding under
banliruptcy act 1898, Bankruptcy Court may stay all proceedings
in State court that tend to put property beyond reach of trustee
when appointed; In re Kellogg, 121 Fed. 337, holding State court
cannot obtain jurisdiction to defeat Bankruptcy Court by notice
of pendency of action but without service of summons required by
New York Code.

187 U. S. 177-180, 47 L. 128, PICKENS T. ROY.

State court retains control where suit was instituted oyer four
months before adjudication, p. 180.

Approved in Metealf Brothers & Co. v. Barker, 187 U. S. 17G,
47 L. 127, 23 Sup. Ct. 67, holding Bankruptcy Court cannot enjoiu
further proceedings under judgment of State court in action com-
'menced before passage of bankruptcy act setting aside transfers;
In re Johnson, 127 Fed. 619, holding holder of chattel mortpape
may, with Bankruptcy Court's permission, litigate claim in State
courts; In re Knight, 125 Fed. 43, holding where State court does
not obtain custody of property over four months before bankruptcy.
District Court's jurisdiction is exclusive; In re English. 122 Fed.
115, holding equitable lien on partnership assets created by trans
fer of interest eighteen months before petition filed is prior to
trustee's right.

187 U. S. 181-197, 47 L. 130, GRIN v. SHINE.

Ordinary technicalities of criminal proceedings are applicable to
extradition treaties only to limited extent, p. 184.

Approved in Wright v. Henkel, 190 U. S. 57, 23 Sup. Ct 785.
47 L. 954, holding in construing extradition treaty with England,
essential identity of acts regarded as criminal by laws of treaty
parties is sufficient; In re Balensi, 120 Fed. 864, holding subscriber

1291

Notes on U. S, Reports.

18T U. B, 19T-2gT

I

I

to one share of French corporation, managing corporation for
40 per cent of profits, was *' hired '* tberehy withia French extra-
dition treaty.

Judge Issuinir warrant in extradition proceedings may make (t
returnable before Uuited States commissioner, p- 187.

Distinguished in In re Walshe, 125 Fed. 573, holding under Anglo-
American extradition treaty crime for which accused is Indictable
must be crime by laws of place where accused is found,

187 U. S. 197-210, 47 L. 139, KNIGHT TEMPLARS, ETC*, LIFE
INDEMNITY CO. v. JARMAN.

Missouri suicide statnte <Rev. Stat, § 5S(J9), was intended to
be prospective In its operation, p. 203.

Approved in Eastern Building, etc, Assn. v. Williamson, 189
U, S. 130, 23 Sup. Ct 531, 47 L. 741, holding undertaking of loan
assoclatior* to mature shares of stock at certain time is not affected
by loan obtained by owner of such shares after amendment

187 U. S. 211-237, 47 L. 147, SECURITY TRUST CO. v. BLACK
RIVER NAT. BANK.

Administration laws of State are to be observed by Federal
conrts, p. 2ii[>.

Approved In Security Trust Co. v. Dent, 1S7 U. S. 239, 23 Sup.
Ct. ()2» 47 L. iri!5, reaffirming: rule; Scbumeier v, Connecticut Mut
Life Ins. Co,, 124 Fed. SlW. Iiolding nonresident of Minnesota can-
not enforce claim ngalnst estate \u Federal court after expiration
of time provided by State statute for presenting claims; Grun v.
Barretts 123 Fed. 3rA holdin;;^ right to revive action at law for in-
fringement of patent la governcrl by Massachusetts statute regu-
lating suits against executors; McPherson v. Mississippi Valley
Trust Co., 122 Fed. 373, holding Federal court Is bound by State
court's holding as to descent of tiitestate*s property within State
eourfs jurisdiction,

187 U. S. 237-239. Not cited.

187 U. S. 23f>-24C, 47 L, 159, McFARLAND v. BROWN.

Where jurisdiction has ceased to exist, Judgment ordering new
trial would be tlnal, p. 245.

Approved in Tubman v. Baltimore, etc., R. R, Co.. 190 U, S. 39,
23 Sup. Ct 778, 47 L. 947, holding Judgment dismissing case for
want of prosecution cannot be set aside on application aXter close
of term, no surprise or fraud being present
187 U. S, 240-248. Not cited.

187 U. S. 24S-257, 47 U 1G3, MENCKE v, CARGO OF JAVA
SUGAR.

An overhead bridge preventing access to place designated renders
it as un.safe as sand-bars uader water, p, 2o7.
Approved in Crisp v. United States & Australasia SS, Co., 124

1

r2&3

Notes on U* 6. Reporta.

187 U. S. 2&4^^fJl

187 U. S. 294^08, 47 L, 183, CHEROKEE NATION y. HITCH-
COCK,

Congresa possesses plenary power of control over Indian tribes,
p. 30G.

Approved In United States v. Rlckert 188 U. S. 439, 23 Sup. Ct.
481, 47 L. 537, holding under act February 8, 1887, allotting lands
In severalty, United States holds same in trust and may sue In
equity to restrain collection of improvement taxes; Lone Wolf T.
Hitchcock, 187 U. S, 568, 23 Sup. Ct, 222. 47 L. 307, opholding act
June 6. low, providing for allotment In severalty of lands beld
in common by Kiowa, Comanche and Apache Indians,

187 U. S. 308-315, 47 L. IDO, EQUITABLE LIFE ASSUR, SOC. T.

BROWN.

Where lower court's ruling on Federal question accords with Fed-
eral holding no appeal allowed, p. 314.

Distinguished la State v. Smith. 1T7 Mo. 90, 75 S. W. 632, holding
where constitutionality of ordinance was decided by trial eoiirt
right to appeal vests, although Supreme Court has previously held
such ordinance invalid.

187 U. S. 315-327. Not cited,

187 U, S. 327^335. 47 L. 200, ELLIOTT v. TOEPPNER,

Judgmeat that person Is not bankrupt on verdict of not guilty in
trial by jury, under hanliruptcy act, 1 19, is reviewable ouly on
writ of error, pp. 333-335.

Approved In Holden v. Stratton, 191 U. S, 119, 24 Sup. Ct 47,
holding certiorari, not appeal, proper method to review decision
of Ch'cult Court Appeals in reviewing by original petition proceed*
inga of inferior courts of bankruptcy; Sullivan v. King, 119 Fed.
1020, dismissing appeal to review bankruptcy proceedings.

I8T U. S. 335-355, 47 L. 204, IOWA LIFE INS. CO. v. LEWIS.

Time is essence of Insurance contract and nonpayment at day
Involves absolute forfeiture, p. 351,

Approved in Manhattan Life Ins. Co> v. Wright, 126 Fed. 85,
holding stipulation In insurance contract for avoidance of contract
on failure to pay premium on certain day Is valid and enforceable.

Distiugulslied in MacMahon v. United States L. Ins. Co., 128 Fed.
392, holding company accepting draft on New York from reputable
Mexican bank in payment of premium cannot forfeit policy on
failure of Issuing bank before payment

187 U. S. 35G-361, 47 L. 214, LAYTON v. MISSOURI.

The proper time to raise Federal question Is In trial court, p> 308.

Approved in Mutual Life Ins, Co. v. McGrew, 188 U, S. 308, 23
Sup. Ct. 378, 47 L, 484, holding Federal question of effect given to

187 U. 8. 262-436 Notes on U. S. Reports. 12»l

Hawaiian treaty not in^esented in trial court is raised too late in
petition for rehearing in State Supreme Court

187 U. S. 362-419. Not cited.

187 U. S. 419-427. 47 L. 240. WESTERN UNION TEL. CO. t.
BOROUGH OF N^EW HOPE.

It is a mlstalLe to measure reasonableness of supervisory license
fee by amount actually expended by city. p. 428.

DUtinguished in Postal TeL, etc, Co. t. Taylor, 192 U. 8. 67, 71,
24 Sup. Ct 209, 211, holding inralid license fee imposed on poles
and wires twenty times expense which would be required for
thorough inspection and measures of precaution; Postal TeL, etc.
Co. T. New Hope, 192 U. S. 60, 62, 24 Sup. Ct. 207. rerersing Judg-
ment awarding municipality less sum than was due under ordinance
taxing poles and wires since award of such less sum by Jury
stamped ordinance as unreasonable.

License fee for enforcement of local goyemmental superrisioD
is not itself obnoxious to Constitution, p. 427.

Approved in Atlantic & Pacific TeL Co. t. Philadelphia, 190 U. 8.
1^ 165, 167, 23 Sup. Ct. 818, 47 L. 1000, holding reasonableness of
municipal license fee of $1 per telegraph pole and $2.50 for escb
mile of overhead wires within city is for Jury; Duluth Brewing, etc^
Co. V. City of Superior, 123 Fed. 359, upholding city ordinance re^
quiring all dealers in liquors to procure license from city considered
as exercise of police power.

187 U. S. 427, 428, 47 U 244, CARY MFG. CO. v. ACME FLEXIBLE
CLASP CO.

Judgment of Circuit Court of Appeals in criminal case is final
under judiciary act 1S91. p. 428.

Approved in O'Neal v. United States, 190 U. S. 38. 23 Sup. Ct 777.
47 L, 940, holding judgment of District Court imposing imprisonment
for contempt in assaulting officer of court cannot be reviewed by
Supreme Court; Ei parte O'Neal. 125 Fed. 968. holding Circuit Court
cannot review on habeas corpus District Court's punishment for
contempt where latter court had jurisdiction.

187 U. S. 429-^36, 47 L. 245, MEXICAN CENT. R. R. CO. v.
ECKMAN.

*• Jurisdiction," referred to in section 5, judiciary act 1891, is that
of Federal court's as such, p. 432.

Distinguished in O'Neal v. United States, 190 U. S. 37, 23 Sup.
Ct 777. 47 L. ^6, holding Supreme Court cannot review judgment
of District Court imposing imprisonment for contempt: St. Louis
Cotton Compress Co. v. American Cotton Co., 125 Fed. 198, 190.
holding under act March 3, 1891, Supreme Court has Jurisdiction
to review directly jutiirment of Circuit Court sustaining objection
to its jurisdiction based on inadequate summons.

120S

Notes OD n. S. ReportSu

1ST U. S. 43T-I&1

Federal jurisdlctfaa depends upon Eituatlon of parties ti&ised la
record, p. 434.

Approved In Redfleld v. Baltimore Sl O, R. R. Co., 124 Fed. 930,
holding Federal court has no Jurisdiction on gronnd of diverse
citizenship of suit by stoclibolder against corporation and foreign
corporation as majority stockholder In domestic corporation.
1ST U, S. 437^47, 47 L. 240. OSHKOSH WATER-WORKS CO. v.
OSHKOSH.

Legislature may modify or change existing remedies without im-
pairing obligation of contract, p. 439.

Approved in Stone v. Drainage Dist., 118 Wis. 398, 95 N. W. 409.
upholding Laws 1901, p. 47, modifying Rev. Stat 1896, i 1379, for
revising orders eonflrming report of commissioners appointed to
create drainage dlstricL See 95 Am. SL Rep. 886, note.
187 U. S. 447-454, 47 L. 253. PACIFIC STEAM WHALING CO. v.
UNITED STATES.

lojuDctioD will not He to restrain collection of tax on mere
ground of illegality, p. 451,

Approved In Corbus v. Gold Mlniog Co., 187 IT. S. 464, 23 Sup.
Ct. If JO, 47 L. 2f)0, affirmlDg Judgment dismissing suit in equity by
stockholder to restrain corporation from paying Alaslian license tax
wbere no irreparable injury shown,

187 V. 8. 455-^65, 47 L. 256, CORBUS v. ALASKA TREADWELL
GOLD MIX. CO.

Shareholder to sue In own name must show earnest effect to
induce aellon by corporal don. p. 4412,

Approved In Davis, etc., Mfg, Co, v. Los Angeles. ISO U. S. 220,
23 Sup- Ct. 5(>1. 47 L. 781, holding subcontractor cannot obtain in-
Ju action to prevent enforcement against employees of city ordinance
prohibiting erection of gasworks within certain limits: Kessier v,
Eusley Co., 123 Fed. 551, holding minority stock holders not en-
titled to relief against corporation for sale of property with power
of redeuiptlon where no action was taken for four years.

187 U. S. 4m. Not cited.

187 U. S. 4G7-479, 47 L. 2G1, HARTFORD FIRE INS. CO. v, WIL-
SON.

rosscssion cannot he conclusive upon question of delivery, p. 478.

Approved In Coffin v. New York Life Ins. Co,, 127 Fed. 5.1(1.
bold lug In aetiott oti life insursinee policy the burden of proving:
delivery rests on plaintiff though possession is prima facie evidence.

187 U. S. 47ft-4Ql, 47 L. 206, MOBILE TRANSPORTATION CO. V.

MOBILE.
All lands below high-water mark passed to State of Alabama on
admission In 18111, p. 40O.

Approved In dissenting opinion in Kean v. Calumet Canal Co.,

1207

Notes on U. S. Reports.

1S7 U. S. 5a>-C.ll

Ct. 638, 47 L. 828* holding Supreme Court cannot review Jinigmt»nt
wliere no claim of Federal rigbt was called to attention of State
court In any way.

187 U. S. 585^96, 47 L. 314, ATRES T, POLSDORFEE.

Plaintiff suing out writ from Circuit Court of Appeals cannot
obtain second for Supreme Court, p. 590.

Approved In Spreeliels Sugar Kef. Co. v. McClaJn, lf)2 U. S. 408,
24 Sup. Ct 370, bolding wbere plaintiff elects to go to Clrj.'uit Court
of Appeals for review he cannot if unsuccessful prosecute writ of
error to finpreme Court.

Where Circuit Court's jurisdiction Is based on diversity of citizen-
ship. Circuit Court of Appeals* judsmeot is final though constitu-
tional question appears, p. 59o,

Approved in American Cotton Compress Co. r, American Cotton
Co., 125 Fed. 202, holding Siipreme Court has jurisdiction to review
judgment of Circuit Court dismissing suit on ground of inadeguate
summons. '

Certiorari will not he granted on petition two years after Judg-
ment rendered, p. 505.

Approved in Spencer v. Duplan Silic Co., 191 U. S, 532, 24 Sup, Ct.
17G. holding certiorari will not he granted on petition one year and a
haif after Judgment rendered.

1S7 U. S. 596-606, 47 L. 318, PAGE v. EDMUNDS.

Instance of revisory petition to Circuit Court of Appeals, p. 600.

Approved in Burleigh v. Foreman, 125 Fed. 220, holding appeal
lies from order made upon separable Issue arising between in*
terveners in proceedings to marshal assets In Bankruptcy Court.

Seat in a stock exchange Is property, p. 601.

Approved In In re Neimaun, 124 Fed. 730, holding certiiicate of
membership la Mlhvaukee chamber of commerce is property which
passes to trustee in bankruptcy; Matter of Heliman, 174 X. Y
257, G6 N. E. 810, 05 Am. St. Rep. 583. holding seat fn stock e.xchaoge
Is property which passes to receiver or assignee In hanltruptcy.

DfstJngulshed In Baltimore City v. Johnson, 06 Md. 738, 54 Atl.
646. holding seat In stock exchange not *' property " so as to be sub-
ject of taxation.

187 U. 8. GOOmil, 47 L. 323, OTIS v, PARKER.

Cal. Const., art. 4, § 26, avoiding contracts for corporation shares
on margin is valid, p. 610,

Approved in People v. Lochner, 177 N. Y. 140, 69 N. E. 374,
upholding Laws 1807, p, 485, limiting employment in bakeries to
sixty hours per week and ten hours per day.
Vol. Ill -82

187 XI, S. 611-638 Notes on U. S. Reports. 1298

187 U. S. 611-617, 47 L. 328, DIAMOND GLUE CO. T. UNITED
STATES GLUE CO.

That the operation of statute tends to interfere with interstate
commerce is not enough to invalidate it, p. 616.

Approved in Anglo-American Prov. Co. v. Davis, etc., Co. (No. 1),
191 U. S. 376, 24 Sup. Ct 93, upholding N. Y. Code Civ. Proc.,
prohibiting suits by one foreign corporation against another except
where cause arose within the State.

187 U. S. 637-621, 47 L. 333, HANLEY v. KANSAS CITY SOUTH-
ERN RY. CO.

Transportation for others is commerce irrespective of owner's
purpose concerning the goods, p. 619.

Approved in Lottery Case, 188 U. S. 352, 23 Sup. Ct 325, 47 L.
500, holding carriage of lottery tickets between States by interstate
express company is interstate commerce.

Distinguished in United States v. Whelpley, 125 Fed. 617, hold-
>ing act March 2, 1895, prohibiting carriage of lottery tickets from
one State into another does not prohibit carriage thereof into Dis-
trict of Columbia.

187 U. S. 622-633, 47 L. 336, CALDWELL v. NORTH CAROLINA.

License fee imposed upon agent of nonresident portrait company
for delivering pictures is invalid; p. 632.

Approved in Norfolk, etc., Ry. Co. v. Sims, 191 U. S. 450, 24
Sup. Ct 154, holding unconstitutional license tax imposed by N. C.
Laws 1901, p. 116, on all "engaged in selling" sewing machines
as applied to sale of machine shipped in on written order of cus-
tomer; Kehrer v. Stewart 117 Ga. 972. 44 S. E. 855, holding salt-
to cxistoraer in one State of goods which are in another State to
be delivered to common carrier for shipment is interstate com-
merce. See 96 Am. St Rep. 816, note.

187 U. S. 635, 47 L. 343, BROWN v. DRAIN.

Decree of Circuit Court affirmed with costs, p. 635.

Cited in Duncan v. Ramish, 142 CaL G91, 693, 76 Pac. 663. hold-
ing landowner assessed for street improvements, under Cal. street
improvement act 1891, cannot complain of assessment after fail-
ure to protest before council.

187 U. S. 637, 638, 47 L. 344, DISTRICT OF COLUMBIA v.
BARNES.

Appeal from Court of Claims dismissed, p. 637.

Cited in Pam-to-Pee v. United States, 187 U. S. 382, 23 Sup. Cl
147, 47 L. 226, holding Court of Claims has jurisdiction, under
act March 19, 1890, to inquire into execution of judjjment award-
ing amount due Potto watomle Indians from United States.

1299

Notes on U. S. Reports.

1ST U, S. 641-4352

187 U. S. G41, 47 L, 345, KtJBBER TIRE WHEEL CO. v. GOOD-
TEAR TIRE, ETC, RUBBER CO.

Petition for writ of certiorari denied, p. 641,

Cited In Rubber Tire Wheel Co. v. Victor Rubber Tire Co., 123
Fed, 86> holding void for want of novelty Grant patent No. 554,075,
for rubber tire wheel.

187 U. S. mZ, 47 L. 34G, KING v, BENDER.

Petition tor writ of certiorari denied, p. 643.

Cited in Murray v. Bender, 125 Fed, 709, holding on refusal of
Supreme Court to grant certiorari to review decree of Circuit
Court such decree became law of the case not open to review,

187 U. 8, 644, 47 L, 346, MINNESOTA MOLINE PLOW WORKS
V. DOWAGIAC MFG. CO.

Petition for writ of certiorari denied, p. 644.

Cited In Dowagiac Mfg. Co. v. Brennan, 127 Fed. 144, upholding
validity of Hoyt patent No. 446,230, for improvement Id grain drilla,
consisting of sprlug pressure rods for uneTen ground.

187 U. S. 652, 47 L. 350, DU SHEN TAW v« UNITED STATES.

Appeals from District Court for New York docketed and dis-
missed, p, 652,

Cited In In re Ong Lung, 125 Fed. 814, holding petitioner apply-
ing to Circuit Court for babeas corpus upon denial of right to ea-
ter by immigration offlcera ajid treasury department not entitled
to balk

Notes on U. S, ReportB.

188 U. S. 4S-OT

188 tr. S. 42-^5. 47 L. 373, EARLE v. CARSON,

A transfer of stock merely to avoid liability Is void and trans-
ferrer remfllDfi liable, p, 50,

Approved In Scholield v. Twining, 127 Fed. 4S7, holding fatlier
liable as stocUhoIder where prior to bank's failure be sold shares to
ills son, a dlrcctor/wbo failed to transfer same on books.

188 U. a 56-81. 47 L, 3S(.), HALE v. AT.LINSON.

Gen, Stat. Minn. 1894, does not empower receiver to sue out of
jurisdiction to enforce stockholder'a liability, p. 6T.

Distinguisbed in Rurget v. Robinson, 123 Fed". 2G2, 2C3. 267. 2S8,
holding Circuit Court of Appeals precluded from reopening case by
summary denWl by Supreme Court of application for writ of cer-
tiorari wh^re same Issues were presented.

An Ordinary receiver has no extraterritorial power of official
actic>n, p. 68.

Approved in Finney v. Guy, 189 U, S. 340, 341, 344, 23 Sup. CL
&G0, 5til, 47 L. 843, 845, holding where Minnesota courts allow only
action against resident stockholders to enforce statutory liability,
full faith and credit is not deuied by refusal of another State to
enforce such liability; Great Western Mio., etc, Co. v. Harris, 128
Fed* 326. holding receiver of Insolvent corporation appointed by
court under general etjuity powers cannot sue for fund in foreign
jurisdiction; Tyler v. Hale. 122 Fed. 1021, holding receiver cannot
maintain proceedings In foreign jurisdiction to enforce stockholder's
liability.

Distinguished In Wymau v. Bowman. 127 Fed. 205, holding re-
ceiver takes subscription liability of stockholders as choses in action
of corporation and eiin enforce same in legal proceedings.

In questions of multifariousness equitable jurisdiction must de-
pend upon convenience of all parties, p. 77,

Apiiroved in Kirwan v. Murphy, 189 U. S. 54, 23 Sup, Ct 603,
47 Ij. 705t holding equity will not interfere to prevent survey of
land claimed by goverumeui where no irrei^anible damage will re*
suit and wbere legal rt^medy is adequate; Illinois Cent, Ry, v.
CaCfrey» 128 Fed. 775, holding good on demurrer bill joining large
number of defendants where the cause against each is same and
when Joinder w-ill promote convenience of all concerned; Wyman v.
Bowman, 127 Fed. 2(j2. 2G3, allowing bill agjiinst nine defendants
to collect unpaid subscriptions where same question of law and
fact are involved and convenience of all parties will be advanced.

188 U, S. 82-?17,47 L. 304. DIAMOND MATCH CO. v. ONTONAGON.

Until goods are conuuitted to carrier for transportation beyond
State they are taxable therein, p. D4,

Approved in New York v. Knight, 192 U, S, 28, 24 Sup. Ct 203,
upholding New York tax on imlependent cab service maintained by

ISOIS

Notes OD U* S. Reports.

188 U. S. 431-^7

9(K), 970. 23 Sup. Ct 730, holding Congress did not by net Septem-
ber W, 1S90, Intend to withdraw power of States to regulate use of
navigable waters within their limits; Corrigan Transp» Co. v.
Sanitary Dist.. 125 Fed. 615. holding use of Chicafro river hj sani-
tary district of Chicago, under authority from State and Ualted
States through secreatry of war, Is danmum absque injuria*

188 U. 8. 431^45, Not eft«d.

188 U. S. 445-485, 47 L. 539, UNITED STATES v. LYNAH,

Destruction of rice plantation by flooding caused by governmental
work is a taking of property, p. 469.

Distinguished In Bedford v. United States, 192 U. S. 224, 225,
24 Sup. Ct 240, holding Injury from overflow of Mississippi causeH
by government construction of revetment along bank is not a taking
of property' within Fifth Amendment; SalUotte v. Kii?g Bridge Co.,
122 Fed. 3S3, 384, holding washing of bank caused by Increase In
volume and foree of stream due to deepening of channel and build-
ing of pier is not a taking of property.

188 U. S. 48&-490, 47 L. 555, CLARKE v. LAUEEMORE,

Petition In bankruptcy within four months after rendition of
Judgment releases proceeds in hands of sherifT, realized under
execution sale from execution creditor's claim, p. 489,

Distinguished in In re Kulekerbocker, 121 Fed. 1(M}5, holding
trustee must bring independent suit against creditor for proceeds of
execution Issued against bankrupt w^ I thin four months of petition.

Effect of payment to execution creditor on right of execution
creditor to proceeds of execution sale after petition in bankruptcy
ftled, not decided, p, 400.

Distinguished In Burleigh v. Foreman, 125 Fed, 220, holding ap-
peal lies from order on separable Issue arising between Interveners
in proceedings to marshal assets between partnership and individu-
als in Bankruptcy Court

188 U. S. 491-510. Not cited.

188 U. S. 51*^-519, 47 L. 570. SCHAEFER v. WERLING.

The construction placed by State court upon its statutes Is con-
clusive, p, 518,

Approved In Hibben v. Smith, 191 U, S. 321, 24 Sup. Ct. 90,
holding decision of highest State court upon validity of statute for
assessment upon abutting owners is conclusive upon Federal courts;
People*B Nat Bank v, Marye, 191 U. S. 276, 24 Sup. Ct. 69, follow-
ing State court of Virginia in holding statutes for Imposing tajces
npon bank stock consistent with State Constitution.

188 U. S. 519-537. Not cited.

188 U. S. 537-061 Notes on U. S. Reports. 120G

188 U. S. 537-545, 47 L. 584, PROUT ▼. STARR.

The bill did not seek to interfere with enforcement of ralid
criminal laws, p. 544.

Approved in Davis, etc, Mfg. Co. v. Los Angeles, 189 U. S. 218.
23 Sup. Ct 500, 47 L. 780, holding subcontractor cannot obtain
injunction to prevent enforcement by criminal proceedings against
employees of city ordinance against erection of gasworks in certain
limits.

188 U. S. 545-^7, 47 L. 588, GUTIERRES ▼. ALBUQUERQUE
LAND, ETC CO.

The power of States over navigable streams is limited by supe-
rior power of general government, p. 554.

Approved in dissenting opinion in Kean ▼. Calumet Canal Co.,
190 U. S. 484, 23 Sup. Ct. 661, 47 L. 1147, majority holding Fed^
eral patent to Indiana, under swamp land act, covering ** whole
of fractional sections" on government map carried portions sub-
merged under navigable water.

188 U. S. 557-619. Not cited.

188 U. S. 620-626, 47 L. 717, JAQUITH v. ROWLEY.

Bankruptcy act 1898, S 23, prohibits summary proceedings against
adverse claimant, p. 623.

Approved in In re Teschmach^, 127 Fed. 730, holding Bankruptcy
Court has power to inquire summarily whether third person hold-
ing bankrupt's goods holds them adversely or as bankrupt's agent

Surety on bail bond is adverse claimant to money held as in-
demnity, p. 623.

Approved in In re Hartman, 121 Fed. 941, holding party to whom
property of bankrupt is claimed to have been conveyed mala fide
is adverse claimant.

Distinguished in In re Knight 125 Fed. 45, holding mortgagee of
real property in Kentucky is not an adverse claimant as against
trustee in bankruptcy.

188 U. S. 626-632. Not cited.

188 U. S. 632-646, 47 L. 626, BOSTON & MONTANA, ETC., MIN.
CO. V. MONTANA ORE PURCHASING CO.

PlaintifiTs statement of claim must disclose reliance on Federal
laws, p. 639.

Approved in Boston & Montana, etc.. Mining Co. v. Chile Gold
Min. Co., 188 U. S. 646, 23 Sup. Ct 440, 47 L. 635, adjudged In
conformity with principal case.

188 U. S. 64G-661. Not cited.

1307

Notes OD U. S. Reports.

188 U. S. GG2-738

188 U. S. 662-<>Slp 47 K 041, CHICAGO THEOLOGICAL SEiH-
NARY V. ILLINOIS.

Exemption from taxation under legislative aiitbodty must be
plaiiilj aad unmistaliably granted, p. 672.

Approved in dissenting opinion in Citizens' Bank v. Parker. 132
XJ, S. 88, 24 Sup. Ct. 187, majority holding charter exemption of
capital of Citiens' Bank of Louisiana from La. act lS3tj includes
exemption from license tax for cnrrying on business.

The case of NortbwesterQ University v. llliuoiSp 99 U. S. 309,
as to tax exemption Jo charter distinguished, p* 073.

Approved in In re Nortli western University. 206 111, 67, 69 N,
E. 76, holding decision of Federal Supreme Cowrt^ upholding Laws
lS5o, p. 483, exempting property of Northwesleru University is rea
adjudicata as to all matters which might have heeu presented,

1S8 U. S, 6S1-69L Not cited.

188 tr. S. 691-719, 47 L. 657. HYATT v. PEOPLE.

Warrant of governor Ls but prima facie Bufflcient to hold accused,
p. 71L

Approved lu Bruce v. Rayner, 124 Fed. 483, holdieg question
whether accused was in demanding State when crime charged
was committed is open to inquiry; United States v. Luciws Beebe,
etc.. Sons, 122 Fed. 770, holding, under customs administrative
act of 1890, board of general appraisers had power to review no-
tion of collector in rellquidating an entry. See 92 Am. St. Rep.
727, note.

Where governor acts upon eonfiicting evidence courts will not
reverse his findings, p. 711.

Approved In In re Strauss, 126 Fed. 329, holding question whether
accused Is fugitive from Justice is one of fact; Bruce v. Rayner,
124 Fed, 483, holding when governor decides on conflicting evidence
to deliver fugitive courts will not inquire Into and reverse hia
decision.

188 U. S. 720-733. Not cited.

188 U. S, 734-738, 47 L. 673, FOURTH NAT. BANK v. ALBAUGH.

The tendency Is to enlarge admissibility of hearsay where jus-
tice would otherwise fall, p. 737.

Approved in George Adams, etc., Co. v. South Omaha Nat
Bank, 123 Fed. 648, holding where convincing evidence as copies
of records kept by third person in usual course of business have
been admitted objection thereto to avail must be properly made

^

CLXXXIX UNITED STATES.

189 U. S. 1-7. Not cited.

189 U. S. 8-25, 47 L. 689, KOKOMO PENCE liACH. CO. T. KIT-
SELMAN.

Mounting fence-making machine on track is not primary inyen-
tion, p. 13.

Approved in Wisconsin, etc, Co. t. American, etc., Co.. 125 Fed.
769, holding Nation patent No. 521,174, for duster for cleaning goods
with nap surface, not a primary Inyentlon.

Claims must be limited In their scope to actual combination as
shown, p. 19.

Approved in Milwaukee Carv. Co. v. Branswick, etc, Co., 126
Fed. 185, holding Smith and Post patent No. 443,802, for carving
machine as limited by claims, is not infringed by prior Lochman
patent No. 571.535.

The presumption from grant of letters is that there was sub-
stantial difference between inventions, p. 23.

Approved in Wisconsin, etc., Co. v. American, etc., Co.. 125 Fed.
7G7. holding Nation patent No. 521,174, for duster, not infringed by
Thurman renovator; Milwaukee Carv. Co. v. Brunswick, etc., Co..
126 Fed. 183, holding valid Smith and Post patent No. 443.802.
for carving machine, covering combination of old elements.

Identity of means and of operation must combine with identity of
result to constitute infringement, p. 24.

Approved in United States Envelope Co. v. Sherman Envelope
Co.. 122 Fed. 4GG, holding Heywood patent No. 420.792. for im-
provements in machines for making envelopes, not infringed by
Sherman patents Nos. 648,674 and 672,919.

181) U. S. 25-04. Not cited.

189 U. S. G4-T1, 47 L. 709, TENNESSEE v. CONDON.

Court will dismiss appeal where no effectual relief could l)e
granted, p. 71.

Approved in San Diego Land & Town Co. v. Jasper. 189 U. S.
441, 23 Sup. Ct. 572, 47 L. 894, upholding ordinance of board of
supervisors, fixing water rates, passed pursuant to Cal. Stat., March
12, 1885.

[1308]

idO@

Notes on U. S. Reports.

189 U. S. Tl-llf)

1^ a S. 71-76, 47 L. 712, UNION & PLANTERS* BANK v. MEM-
PHIS.

United States courts accord Tennessee judgment same efficacy
BE possessed In State wbere rendered, p. 75.

Approved In dissenting opinion In Deposit Bank t. Frankfort,
191 U. S. 523. 524, 24 Sup, Ct. 163, majority holding flnal decree
of Federal court enjoining collection of taxes, based upon similar
judgment of State court as res judicata, is binding oo State court

Distlngulsbed in Deposit Banl£ v, Frankfort, l&l U. S. 517, 24
Sup. Ct. IGO, hoIdiDg Unal decree of Federal court based upon
effect aa res judicata of similar judgement of State court enjoining
collection of taxes is binding on State court.

189 U, S. 76^78. Not cited,

188 U. S. 78-83, 47 L, 717. JAQUITH v. ALDEN,

A payment of money is a transfer of property for purposes of
preference, p. 82.

Approved in New York County Bank v. Masaey. 192 U. S, 148,
24 Sup. Ct 202, boldiag deposit of money by Insolvent subject to
check Is not a transfer of property amounting to a preference
within baniiniptcy act 18i)8: Lowenstein^v. Thomas, 128 Fed. 1018,
reversing DIstilct Court aad remanding with instructions to allow
certain claims.

189 U. S. 84,85. Not cited,

189 U. S. 8(K102, 47 L. 721, THE JAPANESE IMMIGRANT CASE,

Congress may commit enforcement of immigration regulations
exclusively to executive officers, p. 97.

Approved in In re Sing Tuck, 126 Fed. 388, 390, holding decision
of immigration inspector adverse to right of Chinese person to
enter, unless appealed from, is conclusive; Lavia v. Le Fevre, 125
Fed. G95, holding executive officers of governmeat have exclusive
jurisdiction to determine right of alien immigrant to land.

Administrative officers when executing statute cannot disregard
fimdamyutal principles that inhere In due process, p, lOG.

Approved in In re Sing Tuck, 120 Fed. 398, holding, unless ap-
pealed from, decision of Immigration Inspector on question of citi-
zenshlp adverse to right of Chinese to enter is conclusive; In re
Moy Quong Shing, 125 Fed, 042, tM3, holding, under act February
14. 11K>3, chap. 552, department of commerce and labor had au-
Iborlty to determine clti-^enshlp of Chinese seeking entrance,
189 U, S. 103-110, 47 L, 720, OREGON, EIXJ,, R, H. CO. v. UNITED
STATES.

Where settler makes bona fide entry before selection of Indemnity
lands his rights are protected, p, 115,

Distinguished la Oregon, etc.. R. R. Co. v. United States, 190

189U. S. 11(;-177 Notes on U. S. Itcports. 1310

U. S. 187, 23 Sup. Ct. 674, 47 L. 1013, holding lands on which set-
tlement had been made, under Or. donation act of 1850, were not
reserved to prevent attaching of railway grant where such settle-
ment was abandoned.

189 U. S. 116-119. Not cited.

189 U. S. 11^122, 47 L. 734, De CAMBRA v. ROGERS.

Decision of land department on questions of fact Is conclusive,
p. 122.

Approved in Gertgens v. O'Connor, 191 U. S. 240, 24 Sup. Ct SW.
holding decision of land department in contest between claimants
to land is conclusive.

189 U. S. 122-130, 47 L. 735, EASTERN BLDG. & LOAN ASSN. v.
WILLIAMSON.

Statutes and decisions of other States when proven are construed
by the court, p. 126.

Approved in Finney v. Guy, 189 U. S. 342, 23 Sup. Ct 560. 47 L.
844, holding State court construes for itself the statutes of sister
State and decisions of such State construing such statutes; Hen-
dryx V. Evans, 120 Iowa, 319, 94 N. W. 856, holding opinions of
court of last resort of State in construing its statutes are entitled
to great weight in another State.

When ultra vires contract is executed corporation cannot deny
power, p. 129.

Distinguished in White y. Bank, 66 S. C. 511, 45 S. E. 101, hold-
ing corporation purchasing shares of bank stock contrary to Laws
1902, § 1843, is not liable to creditors on insolvency of bank.

189 U. S. 131-143. Not cited.

189 U. S. 143-147, 47 L. 751. McCLUNG v. PENNY.

Supreme Court cannot review territorial decisions involving only
right to possession worth less than $5,000, p. 146.

Approved in Battle v. Atkinson, 191 U. S. 559, 24 Sup. Ct 845.
reaffirming rule.

189 U. S. 14S-158. Not cited.

189 U. S. 158-177, 47 L. 760, THE OSCEOLA,

English decisions as to shipowner's liability if injuries received
through ship's unseaworthiness, p. 171.

Distinguished in The Troop, 128 Fed. 861, holding seaman may
sue in rem for damage caused by failure of master to furnish care
and supplies after injury in service on the ship.

Seaman is not entitled to indemnity for negligence of master or
crew, but only for maintenance, p. 175.

Approved in Bottsford v. Shea, 125 Fed. 1001, reaffirming rule:
dissenting opinion in The Troop, 128 Fed. 863, majority holding

1311

Notes on U. S. Reports. 189 U. S. 177-242

seaman may sue under maritime law as administered in admir-
alty for damages for master's failure to furnish care and suppliea
after injury.

Distinguished in Tbe Matterhorn, 128 Fed. 864, holding aeamaji
may sue under maritime law for damages for failure of master
after assaulting plaintilT to furnish proper care and medical at-
tendance; The Troop. 128 Fed, 857, 858, 859, holding, under general
maritime law^ a seaman may sue Id rem for damages caused by
failure of master to furnish care and supplies after injury In service.

180 U. S, 177-185, 47 U 765, SAN JOSE L. & W* CO. r. SAN JOSE
RANCH CO.

Federal question is sufficiently set up If considered fully in opinion
of the court, p. 180.

Approved in Wedding v. Meyler, 192 U. S. 581, 24 Sup. Ct. 323,
holding Federal question sufficiently raised by decision of Kentucky
court denying any force to Indiana judgment on ground of place
of service-

188 U, S. 185-199, 47 L, 770, THE ROANOKE,

Washington statute attempting to control maritime law by creat-
Ing lien is Invalid, pp. 198, 109.

Approved in The New Brunswick, 125 Fed. 567, holding intervener
electing to stand on general maritime Hen on vessel as foreign
cannot after dismissal of petition bring action as against domestic
vessel.

Distinguished in The Energia, 124 Fed. 845, 846, 847, upholding
Wash* Stat., §| 5953, 5954, giving lien on all vessels for nonper-
formance of charter to carry cargo to or from State ports.

189 U. S, 199-206. Not cited.

LOS

189 U. S. 207-221, 47 L. 778. DAVIS, ETC, MFG. CO.
ANGELES.

Stockholders may maintain bill to restrain enforcement of un-
constitutional law iigainst corporation, p. 220.

Approved in Duluth Brewing, etc., Co. v. City of Superior, 123 Fed.
350, assuming that bill in equity will lie to restrain enforcement
invalid ordinance of municipality.

188 U. S. 221-232, 47 L. 782, NASHUA SAVINGS BANK v. ANGLO-
AMEBICAN LAND, ETC., CO.

Acta of Parliament under which corporation was organized must
l>e proved as facts, p. 228.

Approved in Enstern Bldg,, etc.. Association v. Williamson, ISO
U. S. 125. 23 Sup. Gt. 520, 47 L. 739, holding courts of one Stale do
not take judicial notice of laws of anotber State,

ISt) U. S. 233-242. Not cited.

1S9 U. S. 242-^2 Notes on U. S. Reports. 1313

189 U. S. 242-254. 47 L. T92, RANKIN v. FIDELITY TRUST CO.

Stockholders of record are liable tar unpaid instalmenu thoogb
having parted with stock, p. 246.

Approved in Schofield ▼. Turning. 127 Fed. 487, holding father,
selling shares in bank to son, a director, who failed to transfer on
books, is liable as stockholder on failure of bank.

189 U. S. 255-260, 47 L. 798. GLIDDEN v. HARRINGTON.

Due process is accorded by statute taxing personalty of non-
resident after public notice given, p. 25&

See 94 Am. St Rep. 619, note.
189 U. S. 260-311. Not cited,
189 U. S. 311-319, 47 L. 828, SHURTLEFF ▼. UNITED STATES.

Right of removal is inherent in appointing power unless ex-
pressly taken away, p. 318.

Approved in Easson y. Seattle, 32 Wash. 411, 73 Pac. 49a hold-
ing under Seattle charter, art 16, S 12, providing for removal of
employees in classified civil service by appointing power only chief
of police only can remove clerk in his department.

189 U. S. 319-335. Not cited.

189 U. S. 335-346, 47 L. 839, FINNEY v. GUY.

Receiver limited by State law to suit against resident stock-
holders cannot sue elsewhere, p. 34L

Approved in Great Western Min.. etc, Co. v. Harris, 128 Fed. 327.
holding receiver of insolvent corporation appointed under general
equity power of court cannot sue to collect money in foreign juris-
diction.

ISO U. S. 34G-391. Not cited.

1S9 U. S. 391^0a 47 L. 865, UNITED STATES v. MISSION ROCK
CO.

Executive order January 13. 1899, reserving Mission island for
naval purposes, excludes submerged lands, p. 408,

Approved in dissenting opinion in Kean v. Calumet Canal Co..

190 U. S. 498, 23 Sup. Ct 667. 47 L. 1152, majority holding Federal
patent to Indiana under swamp land act, covering ** whole of
fractional sections" referred to on government map, carried por-
tions submerged under navigable water.

ISO U. S. 40S-420. Not cited.

ISO U. S. 420-422. 47 L. S77. PULLMAN COMPANY v. ADAMS.

Miss. Code 1S02. § ooST. imposes privilege tax on sleeping-car
companies and is valid, p. 422.

Approved in New York v. Knight. 192 U. S. 27. 24 Sup. Ct. 204.
upholding* New York franchise tax upon independent cab service
maintained by Pennsylvania railroad at its terminal within the

1313

Notes on D. S. Reports.

180 U. S. 423-447

State, Allen v. Pullman Co., 191 U. S. ISl, 24 Sup. Ct 42, upholding
Tennessee tax Imposed upon sleeping-car companies carrying local
passengers wbere company may decline all local business.

189 U, S. 423-429. Not Cited.

iSa U. S. 42l>-134, 47 L. 883» PARDEE v. ALDRIDGB.

Land only temporarily used for railroad purposes, not covered by
mortgage of all property used for operation of road, p. 431.

Approved Id Central Trust Co. v. Washington County R. R. Co.,
124 Fed. 817, holding railroad mortgage of after acquired " rights,
powers, privileges and franchises." covers branch line subsequently
acquired.

189 U. S. 4.^4-438, 47 L. 887, KNOXVILLE WATER CO, V. KNOX-
VILLE.

If rates are reduced unreasonably so as to amount to a reduc-
tion In value tjf property a Judicial remedy will be found, p. 438,

Distinguished In San Diego Land &> Town Co. v. Jasper, 189 U, S.
443, 23 Sup. Ct. 573, 4T L, 895, sustaining water rates fixed by
board of supervisors pursuant to power conferred by Cal. Stat,
March 12, 1885.

Contract to pay for water according to rates "now or hereafter
In full force," may be modified, p. 438.

Approved In Stanislaus Co. v, San Joaqulu, etc., Co., 102 U. S.
213, 24 Sup. Ct. 24a holding section 3, Cal. Stat 18G2, giving com-
panies power to regnlate rates within supervising power of super-
visors to certain minimum limit created no contract against
legislative reduction.

189 U. S. 43&-447, 47 L. 892, SAN DIEGO LAND & TOWN CO. v.
JASPER.

In proceeding to declare ordinance invalid BUpervIsors are suf-
ficient parties, p. 441.

Approved In Spring Val. Water-Worlis v, San Francisco, 124 Fed.
602, holding ratepayers are bound by Injunction In suit against
municipal corporation and its officers to prevent enforcement Ot
water rates.

Company Is entitled to demand fair return upon reasonable Talue
of property when used, p. 442.

Approved In Stanislatis Co. v, San Joaquin, etc., Co.. 192 U. S. 215,
24 Sup. Ct. 247, holding water rates of Cat SUt 1885, p. 95, | tSy
giving 6 per cent upon tlieir value of property are not unreasonable;
Spring Val. Water Works v. City, etc., of San Francisco, 124 Fed,
585, holding Invalid ordinance fixing water rates so low as to give
Vot III— S3

^

180 U. & 447-^XH Notes on U. S. Reports. 1dl4

animal net earning! not exceeding 3.30 per cent. Btter dedactl>;c
fixed charges.

Supreme Court In reTiewing reasonabl^iess of rates does not sit
as general appellate board of rerision for all taxes but oonsiderB
only validity acts under Federal Constitution, p. 446.

Approved in Spring Valley Water-Works ▼. City, etc, San Fran-
cisco, 124 Fed. 5S5, tiolding invalid ordinance fixing rates so as to
give annual net earnings not exceeding 3.30 per cenL after deducting
fixed charges.

189 U. S. 447-i74. Not dted.

189 U. S. 475-504, 47 L. 900, GILES ▼. HARRIS.

The refusal to register bladu und^ Alabama Constitution was
part of scheme to disfranchise them, p. 482.

Approved in Rogers v. Alabama, 192 U. S. 229, 24 Sup. Ct. 25SL
holding unconstitutional ruling of State court striking from files
motion to quash indictment on ground of exduskm of negroes from
grand Juiy because at length of motioa.

CXC UNITED STATKS.

190 U. S. 1-36, 47 L. 933. IN RB WATTS & SACHS.

Rule that property In possessloD of receiver of one court cannot
be taken from him without courts consent has only qualified
application where winding up proceedings are suspended by those
In bankruptcy, p. 27,

Distinguished In In re Zier, 127 FetL 401, 402, holding attorney
conducting suit In State court against Insolvent corporatioae, dis-
possessing Federal receiver and obstructing bankruptcy proceed-
ings* entitled to no compensation from estate; Knott v. Evening
Post Co,, 124 Fed. 3C2, holding Baukruptcy Court first acquiring
possession of res will not aun-ender same to receiver of State court*

Passage of bankruptcy act did not in itself suspend State stat-
Qtt^s for ap[)ointing receiver, pp. 31, 32.

Approved in Ross-Meehaa, etc., Co. v. Southern, etc., Co., 124
Fed. 40G* holding Bankruptcy Court will not dispossess receiver of
State court by summary order or otherwise than by formal pro-
ceedlngyi by Federal receiver therefor; Conklin v. United Stjites.
Shipbuilding Co., 12^ Fed. 021. holdiag Federal court will appoint
receiver for insolvent corporation under State law providing for such
receiver where no Federal law applicable.

Bankruptcy proceedings operate to suspend further administration
In State court, p. 35.

Approved in In re Knight, 125 Fed. 39, holding adjudication of
bankruptcy vests Bankruptcy Court with exclusive jurisdiction as
agaiu.st State court obtaining possession by proceedings within four
months before.

Evidence of alleged contempt may be reviewed on habeas cotpofl,
p, 35.

Distinguished In Ex parte O'Neal, 125 Fed. i\m, holding Circuit
Court cannot review on haix'as corpus errors and Irregularities In
District Court's proceedini^.s for contempt In assaulting ti'Ustee In
banivruptcy,

lUO ir, S. 3C>418. 47 L. U45, 0*NEAL v, UNITED STATES.

The Supreme Court lias no jurlsdlctloo In error over judgment
in criminal case, p. 38.

Approved in Ex parte O'Neal, 125 Fed. WJS, holding Circuit
Court wilt not review on habeas corpus lo'egularltles lu proceed-

[1315 J

I'JO U. 8. 3S-1C9 Notes on U. S. Reports. 1310

Ings in District Court punishing for contempt one who assaulted
trustee in banluniptcy.

190 U. S. 38-40, 47 L. 946, TUBMAN T. BALTIMORE, ETC, R.
R. CO.

Final judgment cannot be vacated on application made after close
of term, p. 39.

Approved in Brown ▼. Arnold, 127 Fed. 393, holding motion
to set aside judgment and reinstate the case made after adjourn-
ment at end of term was properly overruled!
190 U. S. 40-63, 47 L. 948, WRIGHT v. HENKEL.

Under British extradition treaty acts must be criminal both by
laws of Great Britain and of State where fugitive is found, p. 6L

Approved in In re Walsh, 125 Fed. 574, 575, holding, under ex-
tradition treaty with Great Britain, person charged is entitled to
bearing in place where found.

Circuit Courts may admit to bail in foreign extradition cases,
p. 63.

Approved in In re Lum Poy, 128 Fed. 975, holding district judge
may admit Chinese to bail pending hearing before commissioner In
deportation proceedings; In re Ah Tai, 125 Fed. 797, holding dis-
trict judge on appeal from commissioner's order of deportation may
admit Chinese to bail.

190 U. S. 64-107. Not cited.

190 U. 8. 107-116, 47 L. 923. WILKES COUNTY v. COLER.

Decision of State court as to what is a law of State binds Federal
courts, p. 109.

Distinguished in Stanley Co. v. Coler. 190 U. 8. 442. 23 Sup. Ct.
813, 47 L. 1131. holding Federal court will exercise independent
judgment as to validity of county bonds issued in aid of railroad
under N. C. Code, §§ 1900-1999.

190 U. S. 11C-12G. Not cited.

190 U. S. 127-142, 47 L. 979. JAMES v. BOWMAN.

The Fifteenth Amendment relates solely to actions by United
States or by any State, p. 136.

Distinguished in United States v. Morris. 125 Fed. 323, uphold-
ing, under Thirteenth, but not under Fifteenth. Amendment sec-
tion 1 of civil rights act April 9, 1866. protecting civil rights from
attacks of Individuals.

ItHJ U. S. 143-160. Not cited.

190 U. S. 160-169. 47 L. 995. ATLANTIC, ETC.. 60. v. PHILA
DELPHIA.
No State can. under ordinary property taxation, place burden on
instrument of interstate commerce, p. 165.

1317

Notes on U. S. Reports.

190 U. S, 169-301

Di8tlngrulahed in New York v. Knight. 102 U. S. 20, 24 Sup. Ct
203. upholding New York franchise tax Imposed upon independent
cab service maintained by Pennsylvania railroad at its New York
termlnai

Question of reasonableness may often rightly be submitted to
Jury. p. 166.

Approved in Postal Tel., etc.. Co. v. New Hope, 192 U, S. 60. 63,
24 Sup, Ct 207, 208, holding where reasonableness of ordinance
depends upon amount of a license charge question Is properly sub*
mltted to Jury; Philadelphia v. Atlantic, etc.> TeL Co., 127 Fed.
371, 373, holding trial court cannot set aside verdict found by Jury
where Judgment for other party on saDie facts directed by Circuit
Court was reversed by Supreme Court,

Where testimony would compel decision one way or other court
may direct verdict, p. 167.

Approved in Postal TeL, etc., Co. v. Taylor, 192 U. S. 67, 69, 70,
24 Sup, Ct. 209, 211, holding unreasonable ordinance imposing
license fee on poles and wires of Interstate telegraph company
twenty times cost of careful Inspection and precautionary measures.

190 U* S, 169-179, 47 L. 1002, PATTERSON v. BABK EUDORA.

Act 1898, prohibiting prepayment of seamen's wages, is valid,
p. 173.

Approved in The Eudora, 125 Fed, 1002, holding District Conrt
erred in dismissing libel filed against vessel after completion of
voyage for wages; Kenney v. Blake, 125 Fed. 674, 675, holding
void, under act December 21, 1898, § 24, prohibiting payment of
seamen's wages in advance, eou tract whereby libelant shipped
where wages were advanced.

190 U. 8. 179-266. Not cHed.

190 U, S. 267-273, 47 L. 1044, NORTHERN PAC, BY. CO v.
TOWNSEND.

Grant to railroad by act of 1864 is of limited fee to revert unless
used for purposes granted, p. 271.

Approved In United States v. Michigan, 190 U, S, 398, 23 Snp. Ct
748, 47 L. 1110, lioldiiig State of Michigan holds surplus proceeds
from sale of lands grauted In aid of construction of Saint Mary's
falls ship canal in trust for United States. See 92 Am. St, Rep.
845, note,

190 U. S. 273-293. Not cited.
190 U. S. 294-301, 47 L. 1061, LOCKWOOD v. EXCHANGE BANK.

Bankruptcy Court has no Juvisdlctlon over exempt property of
ijaukrupt. p. 299,

Approved In In re Brumhaugh, 128 Fed, 972, holding only ques-
tion fur Bankruptcy' Court concerning exemptions Is whether bank*

190 U. S. 301-406 Notes on U. S. Reports. 131S

mpt is entitled thereto; In re Bearers, 125 Fed. 992, holding ex-
penses in bankruptcy proceedings cannot be taxed against proceeds
of sale of goods where exemption thereof is snccessfolly claimed;
Ingram v. Wilson, 125 Fed. 915, holding void Bankruptcy Coort'a
order of sale of bankrupt's homestead which under Iowa Code 1897,
f 2076, is exempt

Distinguished in In re Coddlngton, 126 Fed. 893, holding bankrupt
cannot claim exemption from goods transferred as a preference and
recovered by trustee; In re Lucius, 124 Fed. 456, holding Bank-
ruptcy Court has jurisdiction to determine creditor's claim to
equitable lien on money collected by trustee and claimed as exempt;
In re Campbell, 124 Fed. 424, holding where neither bankrupt nor
waiver creditors claimed before referee that property claimed as
ex^npt was paid for, and referee found against exemption, cause
will not be reopened.

Bankruptcy Court may postpone discharge to allow institution of
proceedings in State court, p. 300.

Approved in In re Brumbaugh, 128 Fed. 974. holding bankrupt's
discharge will be delayed to allow judgment creditor to test ciaiu
of exemption to property from judgment for breach of promise;
dissenting opinion in Waco v. Bryan, 127 Fed. Si, majority holding
city entitled to no lien on bankrupt's property for taxes where
property assessed never came Into trustee's hands.

190 U. S. 301-326. Not cited.

190 U. S. 326-339, 47 L. 1078, SOUTHERN RY. CO. v. ALLISON.

Foreign railroad corporation does not become citlxen for juris-
diction by becoming domestic, p. 339.

Approved in Goodwin v. Boston, etc.. R. R.. 127 Fed. Osi*. holiling
Circuit Court in New Hampshire without jurisdiction of suit l»y
citizen of that State against railroad chartered therein but sul>-
setiuently consolidated in Maine and Massachusetts; Goodwin t.
New York. N. H. & H. R. R. Co.. 124 Fed. 3G0. holding railroad
incorporated in Massachusetts and Connecticut is not suable in
Massachusetts Federal court by citizen of that State.

190 U. S. 340-353, 47 L. 10S4. DUNBAR v. DUNBAR.

Contract to support the wife is not discharged by discharge in
l)ankruptcy. p. 345.

See 94 Am. St. Rep. 625. note.
190 U. S. 353-379. Not cited.
190 U. S. 379-406. 47 L, 1103. UNITED STATES T. MICHIGAN.

Supreme Court has jurist! iotion of controversy between United
States aud State of Michigan, p. 396.

Approved in South Dakota v. North Carolina. 192 U. S. 317. 31S.
320. 24 Sup. Ct. 275. 276, 277, holding Supreme Court has original

1319

Notes on U. S. Reports,

190 U. S. 406-451

jurisdiction of foreclosure suit by Sotitb Daliota as doae<» of bonds
issued by Nortb Carolina aud secured by railway mortgage,

190 U. S. 406^412, 47 L- 1113, CONLEY v. MATHIESOiN ALKALI
WORKS.

Summons served upon a^ent Is effective only where corporation
Is doujj? business, p. 411.

Approved In Geer v. Matbieson AlkaU Works, 190 U. S. 432, 23
Sup. Ct 800, 47 L. 1124* boldiflg service on resident directors of
foreign corporation wbieh bas ceased to operate within State Is
insnlbcient to give court Jurisdiction of corporation ; Central Grain,
etc., Excb, V. Board of Trade, 125 Fed. 4t>7, boldlng insufficient
service on agent in Illinois of Delaware corporation not sbown to
be operating in Illinois; St, Louis Cotton Compress Co. v. American
Cotton Co., 12o Fed. 200. 201, 202, holding Supreme Court has Juris-
diction to review question whether summons was legally served on
defenilant in Circuit Court

J 90 U. S. 412-427, 47 L. 1110, WESTERN UNION TEL. CO. v.
MISSOURI EX REL. GOTTLIEB.
State tax on property of telegraph company situated therein not
forbidden by commerce clause, p. 424.

Approved in Atlantic &. Pacific TeL Co. v. Philadelphia, 190 U. S.
1(53, 23 Sup. Ct. 818, 47 L. 1000, holding interstate telegraph company
may be subjected to payment of reaisonable license fee for en-
for* ement of local governmental supervision over its lines,

190 U. S. 42&-437, 47 L. 1122, GEER v, MATHIESON ALKALI
WORKS.

Service on resident directors of foreign corporation not operating
within State la insufflcient, p. 432.

Approved In St. Louis Cotton Compress Co. v. American Cotton
Co., 125 Fed. 20O, 201, 202, holding Supreme Court on appeal has
jurisdiction to review question whether Butflcieut service of sum-
mons was made in Circuit Court

Plaintiff cannot defeat removal by joining as nominal defendants
resident agents of corporation, p. 435.

Approved In Hjde v. Victoria Land Co., 123 Fed. 973, holding
in suit to set aside land contracts register of deeds of county is
not necessary party and plaintiff cannot by joining him defeat
removal.

100 U, S. 437-451, 47 L. 1120, STANLEY COUNTY ?. COLER.

When rights have accrued under State decisions reversal tliereof
cannot affect former, p. 445.

Approved in Board of Corars. v. Travelers* Ins. Co., 128 Fed. 823,
hotdlug county bonds valid when issued cannot be Invalidated &»
bands of bona fide bolder by reversal of State decisions.

1

190 U. S. 452-547 Notes on U. S. Reports. 1320

i90 U. S. 452-507, 47 L. 1134, KEAN v. CALUMET CANAL. ETC.,
CO.

By local law of Indiana, submerged land passed with npland.
p. 459.

Approved in dissenting opinion in Hardin v. Shedd, 190 U. S. 522.

23 Sup. Ct. 686, 47 L. 1159, majority holding patentee's title to sub-
merged land bounding his grant is determined by local law.

No right of State attached to lalce bed land under swamp land
act, dissenting opinion, p. 492.

Approved in dissenting opinion in Hardin v. Shedd, 190 U. 8.
523, 23 Sup. Ct. 687, 47 L. 1159, majority holding tiUe of patentee
to submerged lands bounding grant is determined by local law.

190 U. S. 508-532. Not cited.

190 U. S. 533-540, 47 L. 1165, RANDOLPH v. SCRUGGS.

General assignment made within four months from petition is
void as to trustee, p. 536.

Approved in In re Bush, 126 Fed. 878, holding assignment invali-
dated by bankruptcy proceedings does not constitute breach of
covenant not to assign lease without consent of lessor.

Services of voluntary assignee may be allowed only so far as
benefiting estate, p. 539.

Approved in In re Byerly, 128 Fed. 638, holding where attorney
for trustee was paid $125 for services and $21.75 for expenses as
attorney for assignee in estate worth $5,500, referee rightly refustnl
more; In re Zier. 127 Fed. 402, holding attorney conducting suit
against insolvent corporation, dispossessing Federal receiver and in
every way obstructing banliruptcy proceedings, cannot recover for
services from estate; In re Levitt, 12G Fed. 890, liolding claim of
assignee for services rendered in attempting to collect insuranct'
claims constituted equitable claim and not a debt barred by dclny
of one year in presenting; In re Blue Ridge Packing Co., 12.'> FtMl.
622. holding referee is not disqualified to act because of part tak<'n
In obtaining assignment to himself for benefit of creditors: In n*
Chase, 124 Fed. 700, holding assignee in fair assignment for
creditors made without any attempt to defraud is entitled to recover
for disbursements and services for benefit of estate.

190 U. S. 540-547, 47 L. 1171, GLOBE REFINING CO. v. LAXDA
COTTON OIL CO.

Notice that buyer of oil must bring tanks from distance does nd
enhance «lamages, p. 545.

Approved in Eckington, etc., Ry. Co. v. McDevItt, 191 U. S. 111*.

24 Sup. Ct. 38. holding ditfereuco in value of land with continun"
stroot-cnr service and entirely without such service cannot be basis
for damages for breach of covenant to operate cars on right of way.

r32i

Notes on U, S. Reporta*

100 U. S. MS^^mO

100 U. S. 54&-552. Not cited,

100 U. B. 552-556, 47 L. IfTO, HUTCHINSON v. OTIS.

Writ of error allowed on ground that full faith to record prevented
proof of claim, p. 553.

Approved In Hutchinson v. Otis, etc-, Co., 123 Fed, 20, holding
Supreme Court has eo appellate jurisdlctloe to review decision of
Circuit Court of Appeals reTistng on petition proceedings of Banlc-
ruptcy Court.

Bankruptcy act 1808, § 57q, allows amendment of proof over yeai
after adjudication, p, 555*

Approved in Holden v. Stratton, 101 U. S. 118, 24 Sup. Ct. 4(i. hold-
ing appeal will not lie to Supreme Court to review Circuit Court
of Appeals in revising proceedings of inferior courts of bank*
ruptcy; Buckingham v, Estea, 128 Fed. 586, holding where hault-
rupt's wife filed petition for rents and profits within year after
adjudication she came within section 57, allowing amendment of
proof thereafter.

A petition asserting lien on proceeds of bankrupt's seat In stock
exchange is bankruptcy proceeding, p. 550.

Approved In In re Lucius, 124 Fed. 457, holding Bankruptcy Court
has jurisdiction of creditor*s petition as.«ierting lieu on proceeds of
Bale of bankrupt's property In hands of trustee*

Miscellaneous. Cited In Burleigh v. Foreman, 125 Fed. 220, hold-
mg appeal lies to Circuit Court of Appeals from order on separable
issue arising between interveners in hnnkniptcj proceeding to
marshal assets between partnership and individual creditors.

lOU U. S. 560, 47 L. 1184. AMERICAN SALES-BOOK CO. Y.
BULLEVANT.
Tetition for writ of certiorari denied, p. 500.

Cited in American Sales-book Co. v. Carter Crnme Co.» 125 Fed.
502, hoidltig denial of petition for certiorari strengthens position of
Circuit Court that Beck patent No. 647,934, for manii'oldlug sales-
book was void for lack of aoveltj.

CXCI UNITED STATES.

191 U. S. 1-17, 48 L. 65, THE SOUTHWARK.

Stipulations in bill of lading cannot reUeve carrier from
discharge initial duty under Harter act to famish seaworthy Tea-
sel, pp. 16, 17.

Approved in The Oneida, 128 Fed. 688, holding vessel cannot
be said to be seaworthy where at inception of voyage she has
little, if any, metacentric height, and a list of eight or nine degrees
and her cargo weight is so distributed that her instability must
be increased as she proceeds; The Wildcroft, 126 Fed. 229, 230,
holding where ship was at commencement of voyage seaworthy
and properly manned damage to sugar from fresh water escap-
ing into hold, by reason of valve being left open while pumping
water into engine tanks, was due to fault in management of ship
f<M: which she is exempt under Harter act, S 3.

191 U. S. 17-64. Not cited.

191 U. S. 64-69, 48 L. 96, CHOCTAW, OKLAHOMA, ETC., R. R.
CO. V. McDADB.

Negligence of brakeman killed by collision of waterspout on
tank is for Jury, where he was last seen on car where he would be
likely be struck, p. 66.

Approved in Wabash Screen-Door Co. v. Black, 126 Fed. 725,
holding in action for death of employee alleged to have been
caused by defective pulley constructed by defendant, where pieces
were in evidence and experts testified as to its improper construc-
tion, questions of negligence and defectiveness of pulley properly
left to Jury.

Employee assumes risk of injury from defective appliances only
wLen defect is known or plainly observable by him, p. 67.

Approved in Choctaw, Oklahoma, etc., R. R. Co. v. Holloway.
191 U. S. 338, 48 L. 210 (see 24 Sup. Ct 104), upholding charge
on subject of fireman's knowledge of absence of brakes on bis
engine not erroneous, where it amounts solely to direction that
man was bound to use his eyes, but was not bound to make care-
ful examination of engine; Glenmont Lumber Co. v. Roy, 126 Fed.
528, applying rule where employee injured in sawmill; St, Louis
Cordage Co. v. Miller, 126 Fed. 503. 508, holding young woman
injured by having fingers caught In machine at which she had
worked for several months assumed risk where machine was
uncovered after she had worked on it some time.

[13221

Notes OD V. S, Reports.

IDIU.S. TO"ir»

191 V. S. 70-77, Not cited.

191 U. S. 7B-m, 48 L. 103, KINNEY v. COLUMBIA SAV.. ETC.:

ASSN.

Removal petition may be amended Rfter fiHug removal papers,
but before any action on merits, pp. 83, S4.

Approved In Gustafson v. Chicago, etc., Ry., 128 Fed. 87, up-
holding riglit to amend removal petition In ClreuiL Court,

191 U. S. 84^115. Not cited.

191 U. a 115-119, 48 L. 110, HOLDEN v. STRATTON.

Certiorari and not appeal ts mode of reviewing Circuit Court of
Appeals decree made under bankruptcy act, | 24b. pp. 118, 119.

Approved in Spencer v. Duplan Silli Co.. llil II. s. r)32, 48 L. 201.
24 Sup. Ct. 176. following rule; In re Levitt, 12i; Fed. 891, holding
where prior to filing of involuntary bankruptcy pelitioE bankrupt
made assignment of claim on policies constituting sole assets and
assignee rendered services in attempting to collect same, and on
appointment of trustee turned over policies and proofs to him,
assignee's claim for expenses w^as allowable by way of deduction
from fund to extent of services.

191 U. S. 119^126. 48 L. 119, CONTINENTAL NAT. BANK v. BU-
FORD,

Supreme Court's jurisdiction to review Circuit Court of Appeals
decree must first t>e considered where question arises on face i>f
record, p. 120.

Approved In Royal Ins. Co. v. Martin, 192 U. S. 155, 48 L. 387,
24 Sup. Ct. 248, upholding jurisdiction to review Porto Rico Dis-
trict Court Judgment in action on policy issued by foreign corpora-
tion ia which matter in dispute exceeds $5,1X)0; Defiance Water
Co. V, Defiance, 191 D. S. 194, 48 L. 144, 24 Sup. Ct. 67, holding
avermcDt tliat If temporary Injuactlon granted by inferior State
court, restraining future payment of w^ater rentals because of In-
validity of contract, should be made perpetual, water company
Tvould be deprived of property without due process^ does not Jus-
tify Federal Jurisdiction over suit to restrain city from attempting
to annul water contract; White Mountain Paper Co. v. Morse, 127
Fed, 644, holding corporation of New^ Jersey may be adjudged
bankrupt, though decree of dissolution bas been entered by State
court in proceedings against it.

191 U. S. 126-150. Not cited,

191 U. S. 150-158. 48 L. 127, CITY OF JOPLIN y. SOUTHWEST
MISSOURI L, CO.
Implied contract agaiost erection of mnnlclpal light plant does
not arise from grant of nonexclusive franchise, pp, ISO-IDS.

101 U. S. 150-247 Notes on U. S. Reports. 1324

Approved in Owensboro v. Owensboro Water-Works Co., 191
U. S. 371, 48 L. 224, 24 Sup. Ct. 87, holding municipality not pr^?-
eluded from exercising statutory power to regulate water rates by
municipal ordinance grantii^ right to construct water-works, which
gave grantee right to make all needful rules and regulations not
inconsistent with law.

101 U. S. 150-183. Not cited.

101 U. S. 184-105, 48 L. 140, DEFIANCE WATER CO. v. DE-
FIANCE.

Federal question must be shown by statement in legal form in
record, p. 101.

Approved in Bankers', etc, Co. v. Minnesota, etc., Ry., 102 U.
a. 381, 48 L. 488, 24 Sup. Ct 328, holding Circuit Court of Ap-
peals decree in suit against railroad carrying mail to recover val.ie
of registered package, lost through its negligence, is final, where
Circuit Court's Jurisdiction depended solely on diverse citizenship
and constitutional question not raised; Arbuckle v. Blackburn, 191
U. S. 413, 48 L. 241, 24 Sup. Ct 150, holding bill to enjoin Staie
official from enforcing pure food law does not present case arisio;;
under Federal Constitution, so as to deprive Circuit Court of Ap-
peals decree of finality, where Circuit Court's Jurisdiction depend-
ent solely on dfversity of citizenship.

101 U. S. 105-206, 48 L. 145. WARNER v. SEARLE, ETC.. CO.

Remedies afforded by act of 1881 in case of wrongful use of
trademark apply only to foreign commerce, p. 204.

Approved in Ohio Baking Co. v. National Biscuit Co., 127 Fed.
120. holding where ground for relief in suit for infringement of
trademark was unfair competition In domestic commerce and cause
of action alleged imitation of plaintiff's trademark on Vartons
used in local trade, fact that trademark was registered and that
complainant was entitled to protection under Federal statute with
regard to foreign commerce was immaterial.

101 U. S. 207-224. 48 L. 148. ATKIN v. KANSAS.

Kan. Gen. Stat 1901, §§ 3827-3S20, making it criminal for con-
tractor for public work to permit employee to work more than
eight hours per day, pp. 222-224.

Approved in Ryan v. New York, 177 N. Y. 275, 60 N. E. m\
upholding labor law, § 3, providing that wages paid to all work-
men upon public work shall not be less than prevailing rate for
same work in locality where such work is performed in so far
as it relates to direct employees of State or municipality,

101 U. S. 224-247. Not cited.

1325 Notes on U. o. Reports. 101 U. S. 247-415

191 V\ S, 247-2CG, 4S K 170. MOSHEUVEL v. DISTRICT OF
COLUMBIA,

ElectloD to cross over uncovered small water box instead of
stepping around It is not contributory oegUgeuce as matter of law,
p. *^54.

Approved In ^witt v. Langbeln, 127 Fed. 113, applying rule
in action by pedestrian against abutting owner for injuries oc*
casfoned by stepping into open manhole tn sidewalk at nigbt.-

191 U. S. 2G7-35T. Not cited.

191 U, S. 358-372, 48 L. 217. OWEXSBORO v; OWENSBORO W.
CO.

Municipality may regulate water rates tbougli It has grauted
right to construct works under ordinance giving grantee power
to make rules and rcgulatlona. pp, 369-371.

Approved In Stanislaus Co. v. San Joaquin, etc., Co., 192 U. S.
211, 48 L. 412, 24 Sup. Ct. 245. holding Cal. Stat. 1862, p. 540, § :?,
did not create contract that State would not thereafter authorize
supervisors to reduce water rates so as to yield stockholders less
tuau 11^ per cent, per month on capital Invested.

191 U, S. 373-^7a Not cited.

191 U. S. 379-388, 48 L, 229, WISCONSIN, ETC., RY, CO. v.
POWERS.

Michigan act May 27, 1893, § 3, did not make contract exempt-
ing from taxation railroad operating north of certain parallel of
latitude, pp. 385-387.

Approved in Stanlslaua Co, v. San JoaqulUt etc., Co., 192 U. S,
2111, 48 L, 411, 24 Sup. CL 244, holding Cal. Stat, 1862, p. 540, § 3,
did not create contract that State would not thereafter authorize
supervisors to reduce water rates so as to yield stockholders less
than 1^4 per cent, per montb on capital invested.

191 U. S. 388-405. Not cited.

191 U, S. 405-415, 48 L, 239. ARBUCKLE v. BLACKBURN,

Suit does not arise under Federal Constitution unless ft sub-
BtantiuUy involves controversy as to effect or construction of Cou-
Btltution, p, 413.

Approved in Bankers*, etc., Co. v. Minnesota, etc., Ry., 192 U. S.
381, 48 U 488, 24 Sup. Ct. 328, holding Circuit Court of Appeals
decree In suit against railroad carrying mail to recover value of
lost package is final where Circuit Court's Jurisdiction depended
solely on ground of diversity of citizenship and plaintiff relied
solely on principles of general law; Spencer v. Duplan Silk Co., 191
U- S. 530, 48 L. 290, 24 Sup. Ct. 170, holding removal for diverse
citizenship of suit by banliruptcy trustee of suit for conversion of

191 tJ. S. 41&-566 Notes on U. S. Reports. 1326

property places suit in Federal court as if it had been commenced
there. on that ground, within rule making Judgment of Circuit Court
of Appeals final.

191 U. S. 416-427, 48 L. 242, GUARANTEE CO. ▼. PRESSED
BRICK CO.

Any change whatever in contract for which guarantor is liable
made without his consent, if made on good consideration dlschargen
guarantor, p. 423.

Approved in Chaffee v. United States Fidelity, etc., Co., 128 Fed.
919, holding extension of time to contractor by materialman who
might in first instance have fixed time of maturity of his claim with-
out knowledge or consent of surety on contractor's bond, given to
secure moneys due laborers, does not release surety; Shelton v.
American Surety Co., 127 Fed. 738, holding where contract called
for monthly estimates and payments, but payments not to be made
until vouchers given to architect, payment without requiring vouch-
ers discharged contractor's surety; Ziegler v. Hallahan, 126 Fed.
791, holding modification in lease in material part discharged
surety from liability for rent

191 U. S. 427-498. Not cited.

191 U. S. 499-525, 48 L. 276. DEPOSIT BANK v. FRANKFORT.

Final Federal decree enjoining collection of taxes is conclusiTe
though State decision upon which it Is based is subsequently
reversed, p. 520.

Approved in Citizens' Bank v. Parker, 192 U. S. 80, 48 L. 354, 24
Sup. Ct 183, arguendo.

191 U. S. 52G-532. Not cited.

191 U. S. 532-542. 48 L. 294, TOLTEC RANCH CO. T. COOK.

Adverse possession within limits of railroad grant under claim
of right for State statutory period of limitations passes title
though railroad's patent not Issued, p. 538.

Approved in Tolteo Ranch v. Babcock, 191 U. S. 544, 48 L.
295. 24 Sup. Ct 170. following rule.

:91 U. S. 542-555. Not cited.

191 U. S. 555. 556, 48 L. 299, NORTHERN SECURITIES CO. v.
UNITED STATES.
Miscellaneous. Cited in United States v. Northern Securitie*
Co., 128 Fed. 809, reciting history of UUgation.

CXCn UNITED STATES.

192 U. S. 1-64. Not cited,

192 U, S. 64-73, 4B L. 342, POSTAL TEL. CO, v. TAYLOR.

Ordtnance imposing Ucenee fee on poles and wires of interstate
company void where fee Is un reasonably large, pp. 62* 63.

Distinguished io Philadelphia v. Atlantic, etc.. Tel, Co*, 127 Fed.
S72, holding where judgment of Circuit Conrt based on verdict
• lirected by court was reversed by Supreme Court on ground tliat
it should have been submitted to jury, trial court is not warranted
In setting aside verdict for same party found by Jury on subsequent
trial on substantially same evidence.

192 0. S. 73-lOa Not cited.

192 U. S. 108-115, 48 L. 365, CEONIN v. ADAMS.

Municipal ordinance prohibiting women in place where liquor
Is sold or employment of females in liquor places Is valid, p, 114.

Approved in Cronln v. Denver, 192 U. S. 116, 48 L. 369, 24 Sup,
Ct 221, following rule.

102 U. S. 115^125. Not cited.

192 U. S. 125-129. 48 L. 373, GERMAN SAVINGS & LOAN SOO.

V. DORMITZER.

Divorce decree may be collaterally Impeached in another State
by showing wnnt of Jurisdiction on account of plalDtifTB want of
domicile, p. 128.

Approved in Rogers v. Alabama, 192 U. S, 231, 48 L. 419, 24
&up. Ct. 258, bolding Federal question is Involved in State ruling
on motion to quosh Indictment because of exclusion of negroes
from grajid jury, but which such motion though but two pages in
leugth was struck from tiles for prolixity btH?ause it contained
allegations that provisions of new Constitution claimed to disen-
trancliise negroes biased jnry commissioners.

192 U. S. 129-138. Not cited,

102 U. S. 138^149, 48 L. 380, NEW YORK COUNTY NAT. BANK
V. MASSEY,

Deposit by iusolvent of money in bank subject to check does not
create preference under bankruptcy act ISDS. £ 60a, pp. 146-14S,

Approved in In re Koeulg, 127 Fed. St 12, arguendo*

192 U. S, 14JM70* Not cited.

[1327]

102 U. S. 470-599 Notes on U. S. Repents. 1328

192 U. S. 470-498, 48 L. 525, BUTTFIELD v. STRANAHAN.

Tea Inspection act of March 2, 1897. is vaUd, pp. 492-497.

Approved in Buttfleld v. United States, 192 U. S. 500, 48 L. 537,
24 Sup. Ct 357, and Buttfleld v. BIdwell, 192 U. S. «9. 48 L. 537.
34 Sup. Ct 356, both following rule.

192 U. S. 498-543. Not cited.

192 U. S. 543-566, 48 L. 555. UNITED STATES EX RBL. STEIN-
METZ V. ALLEN.

Mandamus lies to compel patent commissioner to require primary
examiner to forward inventor's appeal upon second rejectloo of
his claim, pp. 563-^66.

Approved in Ex parte Frasch, 192 U. S. 567, 48 L. 566» 24 Snp^
Ct. 424, reaffirming rule.

192 U. a. 556-59(». Not cited.

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