985

Notes on U. S. Reports.

135 U. S. 326-403

ing withholding question of equivalents from jury, though thers is expert evidence.

Miscellaneous.- Royer v. Shultz Belting Co., 45 Fed. 51, same case on retrial.

135 W. S. 326-342, 34 L. 162, MANSFIELD ▼. EXCELSIOR REFINING CO.

Courts.

Federal court in Illinois follows State rule as to new

trial in ejectment cases, p. 327.

Mortgages.- Incorrect recitals as to sale under trust deed do not make it void or collaterally assailable, p. 332.

Internal revenue.- Summary sale of distiller's leasehold premises does not pass owner's title, notwithstanding his waiver, p. 339.

Approved in Union Mut. L. Ins. Co. v. Kirchoff, 149 Ill. 541, 36 N. E. 1033, where owner of seized property has no connection with distillers no title passes; Glenn v. Winstead, 116 N. C. 456, 21 S. E. 394, sale of premises does not pass title against mortgage, not conniving with illicit distillery.

Internal revenue.- Forfeiture issues for non-payment of taxes by distiller only if done to defraud, p. 341.

135 U. S. 342-403, 34 L. 168, YALE LOCK CO. v. BERKSHIRE BANK.

Patents.- Claim of reissue, sought thirteen days after original, held invalid where abandoned on original, p. 372.

Approved in Dobson v. Lees, 137 U. S. 265, 34 L. 655, 11 S. Ct. 73, disallowing inclusion in reissue of what was intentionally omitted; Freeman v. Asmus, 145 U. S. 239, 241, 36 L. 690, 691, 12 S. Ct. 943, collecting cases, disallowing enlargement in reissue, though applied for less than year from original; Royer v. Coupe, 146 U. S. 532, 36 L. 1077, 13 S. Ct. 169, claim withdrawn, patent not construed to include it; International, etc., Lumber Co. v. Maurer, 44 Fed. 621, question may be presented on demurrer; Peoria Target Co. v. Cleveland Target Co., 47 Fed. 734, 736, holding administrator estopped by his acquiescence in rejection; Olmsted v. Andrews, 77 Fed. 839, 46 U. S. App. 608, acquiescence in rejection of claim estops construction of patent to include it.

Distinguished in Reece Button-Hole Mach. Co. v. Globe ButtonHole, etc., Co., 61 Fed. 969, 21 U. S. App. 244, rejection and amendment of claim, as to incidental matter and not as to novelty, does not exclude liberal interpretation.

Patents.- Claims of reissue held defective because original not defective for abandonment and delay. pp. 400-403.

Miscellaneous.- Richmond v. Atwood, 52 Fed. 21, 5 U. S. App. 151, 17 L. R. A. 618, to point that injunctions are interlocutory or final.

135 U. S. 403-432, 34 L. 222, IN RE BAIZ.

Courts.- American citizens acting as foreign consuls, but not diplomatic agents, may be sued in District Court, p. 425.

Approved in Pooley v. Luco, 76 Fed. 148, consul may be sued in District Court; In re Iasigi, 79 Fed. 752, consuls may be held by States preliminary to extradition by another State; United States v. Wong Kim Ark, 169 U. S. 679, 42 L. 901, 18 S. Ct. 468, arguendo. Courts. On prohibition in Supreme Court against District Court proceedings, evidence not taken below is receivable, p. 430.

Constitutional law.- Executive's decision as to public character of alleged foreign minister, is conclusive, p. 432.

Approved in Jones v. United States, 137 U. S. 216, 34 L. 697, 11 S. Ct. 85, applied to question as to who is sovereign de jure or de facto.

135 U. S. 432-443, 34 L. 231, NEW YORK R. R. v. NAT. BANK. Damages recoverable in New York in law and equity for injuries by elevated railroad, stated, p. 440.

Approved in Hot Springs R. R. v. Williamson, 136 U. S. 130, 34 L. 360, 10 S. Ct. 958, railroad on street is liable to owners for consequential injuries; Highland Avenue, etc., R. R. v. Matthews. 99 Ala. 30, 10 So. 269, 14 L. R. A. 465, allowing recovery of prospective damages at law; Dooly Block v. Rapid Transit Co., 9 Utah, 42, 33 Pac. 233, 24 L. R. A. 613, abutters may enjoin railroad on street already incumbered, though fee be in the city; Evans v. Chicago, etc., R. R., 86 Wis. 605, 39 Am. St. Rep. 911, 57 N. W. 356, railroad entirely obstructing highway may be enjoined.

Distinguished in O'Brien v. Baltimore, etc., R. R., 74 Md, 376, 22 Atl. 144, 13 L. R. A. 131, and n., one without freehold or leasehold interest in street cannot restrain railroad, there being adequate remedy at law.

Trial. One procuring or acquiescing in rulings at trial waives right to object, p. 441.

Approved in Koenigsberger v. Richmond, etc., Min. Co., 158 U. S. 52, 39 L. 893, 15 S. Ct. 756, party filing remittitur of part of damages and obtaining affirmance thereon, cannot object thereto; Michigan Ins. Co. v. Wich, 8 Colo. App. 420, 46 Pac. 691, party requesting special finding cannot urge they were not involved in the is

sues.

135 U. S. 443-449, 34 L. 219, IN RE LANE.

Habeas corpus is not writ of error; Supreme Court only issues when inferior court without or in excess of powers, p. 446.

Approved in Ex parte Ulrich, 43 Fed. 663, collecting cases, dis allowing habeas corpus where State court had complete jurisdiction; In re Greene, 52 Fed. 107, discharging prisoners from Federal court awaiting removal to another district where indictment shows no

ANN

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Notes on U. S. Reports.

135 U. 8. 449-468

offense; In re Rowe, 77 Fed. 166, 40 U. S. App. 516, collecting cases, refusing to discharge extradited prisoner for defective information.

Rape.— Revised statutes, fixing age of consent, held applicable in Oklahoma, p. 447.

Indictment covering both common-law and statutory rape is not bad where defendant compelled no election, p. 448.

Indictment, properly indorsed as true bill by jury foreman, is not bad for want of district attorney's signature, p. 449.

135 U. S. 449 456, 34 L. 193, BURNS v. ROSENSTEIN. Partnership dissolution, consented to by. defendants in answer, cause therefor need not be proved; accounts may be settled, p. 454. See 69 Am. St. Rep. 419, 421, 425, note.

Equity. Party objecting to construction of contract on which master takes an account must file exceptions, p. 455.

Approved in Cutting v. Florida Ry., etc., Co., 48 Fed. 508, excep tions to master's report must be precise and specific.

Appeal. Generally decree is not reviewable for costs merely, though appellate court has full control thereof, p. 456.

Approved in The City of Augusta, 80 Fed. 304, 50 U. S. App. 51, allowing appeal on costs alone, where statute or positive rule of law is involved.

135 U. S. 457-466, 34 L. 200, RANDOLPH v. QUIDNICK CO. Equity will not aid execution sale for grossly inadequate sum, or keep alive worthless securities for speculation, p. 459.

Approved in Claypool v. Board of School Commrs., 132 Ind. 269, 31 N. E. 668, refusing specific performance for inequality or unforeseen events rendering it a hardship; Stone v. Engstrom, 19 R. I. 205, 32 Atl. 918, no equitable estoppel where consideration is grossly inadequate.

Distinguished in Palmer v. Bank of Zumbrota, 72 Minn. 280, 75 N. W. 383, purchaser of claims for price not shockingly inadequate is entitled to dividends; Minzesheimer v. Doolittle, 56 N. J. Eq. 210, 39 Atl. 388, validity of judgment not attackable in suit to set aside fraudulent conveyance.

Equity. Delay of nine years is fatal to opposition to transfer for equal benefit of creditors, p. 461.

Approved in De Grauw v. Mechan, 48 N. J. Eq. 225, 21 Atl. 195, collecting cases, delay till conditions change bars rights; In re Powel's Estate, 163 Pa. St. 371, 30 Atl. 380, disallowing creditors as senting to formation of corporation to charge assignees.

Courts.- Federal court usually follows State decision upholding transfer for creditors, p. 463.

Approved in Chicago, etc., Bank v. Kansas City Bank, 136 U. 235, 34 L. 345, 10 S. Ct. 1017, and South Branch Lumber Co. Ott, 142 U. S. 628, 35 L. 1138, 12 S. Ct. 320, both following Sta decision as to assignment; May v. Tenney, 148 U. S. 64, 37 L 31 13 S. Ct. 493, applied whether conveyance is chattel mortgage general assignment; Marbury v. Kentucky, etc., Land Co., 62 Fe 355, 22 U. S. App. 267, following decision on fraudulent preferenc rendered after decree in lower Federal court; New York Securit etc., Co. v. Lumbard Inv. Co., 65 Fed. 274, applied to constructio and operation of mortgages; First Nat. Bank v. Glass, 79 Fed. 70 49 U. S. App. 232, collecting cases, applied to homestead exemptions Union Pac. Ry. v. Reed, 80 Fed. 239, 49 U. S. App. 241, collectin cases, applied as to competency as evidence of records of deeds Independent District v. Beard, 83 Fed. 15, applied as to fastenin special trust on funds held by receiver of national bank; dissentin opinion in Ottenberg v. Corner, 76 Fed. 269, 40 U. S. App. 320, 34 L. R. A. 624, majority holding chattel mortgage valid.

135 U. 8. 467–477, 34 L. 196, UPSHUR COUNTY v. RICH. Removal.- Appeal to County Court, acting administratively on assessments, is not a removable "suit," p. 470.

Approved in New York, etc., R. R. v. Cockcroft, 46 Fed. 882, applied to petition to railroad commissioners for consent to condemn land; In re City of Chicago, 64 Fed. 899, 900, assessment proceeding not removable, though conducted by court; Mackin v. County Court, 38 W. Va. 343, 18 S. E. 633, applied to appeal on reassessment of taxes.

Distinguished in Bridge Co. v. County Court, 41 W. Va. 665, 24 S. E. 1004, judgment of court on correction of assessment is re viewable on appeal.

Removal not allowable where State a party, p. 470.

Removal. Neither executive proceedings nor appeal therefrom to non-judicial body constitute a removable “suit," p. 477.

Approved in Chappell v. United States, 160 U. S. 513, 40 L. 515, 16 S. Ct. 401, petition to condemn land for lighthouse is an action at law; In re Jarnecke Ditch, 69 Fed. 166, 167, proceeding over establishment of drains under Indiana statute is a suit; Bailey v. Berkey, 81 Fed. 739, assessor is liable for damages for excessive assessment maliciously made, In re Stutsman County, 88 Fed. 340, proceeding to collect delinquent taxes in North Dakota is a suit; Hartford, etc., Ry. v. Montague, 94 Fed. 228, 229, condemnation proceedings in Connecticut is not a suit; Wilson v. Thompson, 56 Ark. 114, 19 S. W. 323, petition to County Court under local option law is no suit; Dunn v. Town of Pownal, 65 Vt. 119, 26 Atl. 485, petition to County Court for appointment of commission is sult; Nichols v. Bingham, 70 Vt. 324, 40 Atl. 828, proceeding under insolvency act is a suit; State v. South Penn. Oil Co., 42 W. Va. 94, 95, 24 S. E.

ANN

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Notes on U. S. Reports.

135 U. S. 478-491

693, action of court reversing reassessment is not judicial; Pitts burgh, etc., Ry. v. Board of Pub. Works, 172 U. S. 45, 19 S. Ct. 95, arguendo.

Courts. State decision that particular taxing board is purely administrative does not conclude Federal courts, p. 477.

Approved in Clark v. Bever, 139 U. S. 103, 35 L. 92, 11 S. Ct. 470, question of liability of estate is a suit and States cannot prevent removal by giving certain court exclusive jurisdiction.

135 U. S. 478-483, 34 L. 206, FREIBURG v. DREYFUS. Fraudulent conveyance not being annulled, transferee may make valid pledge of the property to bona fide taker, p. 479.

Pledge. Notes and warehouse receipts held valid pledge in Louisiana, p. 481.

Pledgee, after realty pledge is questioned, may validly pay note by, which loan made, p. 483.

Not cited.

135 U. S. 483-491, 34 L. 272, ANDERSON v. CARKINS. Courts. State court's denial that Federal homestead law violated, raises Federal question, p. 486.

Public lands.- Homestead law makes it for homesteader's exclusive benefit; State laws cannot nullify this, p. 487.

Cited, arguendo, in Woodstock Iron Co. v. Strickland, 121 Ala. 620, 25 So. 819.

Specific performance denied, as against public policy, of contract to convey homestead when acquired, p. 489.

Approved in McCrillis v. Copp, 31 Fla. 108, 12 So. 645, similar to cited case; Everett v. Todd, 19 Colo. 324, 35 Pac. 545, option to purchase is unenforceable; Carley v. Gitchell, 105 Mich. 41, 42, 55 Am. St. Rep. 430, 431, 62 N. W. 1004 (see dissenting opinion in 105 Mich. 46, 47, 62 N. W. 1005), refusing to enforce contract to sell in anticipation of entry to one who is in meantime to have use; Robinson v. Jones, 31 Neb. 29, 47 N. W. 482, party cannot enter public lands in trust for another; Kine v. Turner, 27 Or. 360, 41 Pac. 664, not enforced, though partially performed; dissenting opinion in Fitzgerald v. Fitzgerald, etc., Construction Co., 41 Neb. 402, 493, 59 N. W. 872, majority allowing recovery against officers for abuse of trust.

Distinguished in St. Louis Min. Co. v. Montana Min. Co., 171 U. S. 657, 19 S. Ct. 64, enforcing mortgage of mining location; Barnes v. Poirier, 64 Fed. 15, 27 U. S. App. 500, affirming 57 Fed. 958, and Montague v. McCarroll, 10 Utah, 26, 36 Pac. 50, both holding right to soldiers' additional homestead assignable before entry; Hatch v. Ferguson, 57 Fed. 964, disallowing Indian woman to set aside deed made by attorney in fact; Hubbard v. Mulligan,