The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and Distarct Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citations of such cases is to the volume and page of Fed. Cas.. not to the number of the case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: Atl. Atlantic Reporter, Pac. Pacific Reporter, N. E. Northeastern Reporter, N. W. Northwestern Reporter, So. Southern Reporter, S. W. Southwestern Reporter, S. Ct. Supreme Court Reporter. We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text-books. U. S. Notes 20 Wallace, 22 L. ed. 464-84 p. EDITOR. XX WALLACE. 20 Wall. 1-8, 22 L. 307, HABICH v. FOLGER. Attachment.- Where corporation has been dissolved and foreign attachment in another State has resulted in judgment against it and the garnishee, the latter cannot plead, on scire facias, that corporation was not dissolved for lack of jurisdiction in court decreeing it, p. 7. Cited and followed in Priest v. Folger, 154 U. S. 597, 14 S. Ct. 1209, a case involving same questions. Cited in collection of authorities in Insurance Co. v. Harris, 97 U. S. 336, 24 L. 962, and same collection in Whiting v. Burger, 78 Me. 294, 4 Atl. 696, as to rule of comity, where judgment rendered in one State is sought to be enforced in another; Graham v. Spencer, 14 Fed. 606, no special application. Appearance. Receivers of defunct corporation are bound by appearance of their attorneys, p. 7. Referred to in Lackett v. Rumbaugh, 45 Fed. 27, holding appearance of garnishee, places funds in his hands in custodia legis. Appearance. If corporation was in existence so that it could appear in a suit, it was concluded by appearance of its attorney, p. 7. Appearance by authorized attorneys is equivalent to personal service of process on parties, p. 7. -- Miscellaneous. Cited in Creighton v. Kerr, 20 Wall. 13, 22 L. 311, incidentally in Kelley v. Miss. Cent. Ry. Co., 2 Flipp. 586, 1 Fed. 568, as instance where corporation put in plea of its own nonexistence. 20 Wall. 8-14, 22 L. 309, CREIGHTON v. KERR. Appearance. General appearance waives all question relating to service of process; the question of jurisdiction only is saved, p. 12. Cited and relied on in Lackett v. Rumbaugh, 45 Fed. 31, holding general appearance of defendant partner not served with process, is not waiver of lack of jurisdiction of court, in respect to subject-matter; L'Engle v. Gates, 74 Fed. 515, applying fore part of rule to appearance in attachment proceedings; Atlantic, etc., Ry. Co. v. Peake, 87 Va. 140, 12 S. E. 351, and Moore v. Green, 90 Va. 183, reaffirm and apply rule. Approved, arguendo, in Seattle, etc., Ry. Co. v. Union Trust Co., 79 Fed. 187. 48 U. S. App. 269. 288 Appearance. Withdrawal of a general appearance, "without prejudice to plaintiff," does not unfavorably affect plaintiff's rights acquired by defendants' appearance; hence that appearance having cured failure to serve preliminary notice under foreign attachment, its withdawal does not affect it, p. 12. Rule reaffirmed and applied in Rio Grande Irrigation Co. v. Gildersleeve, 174 U. S. 606, 19 S. Ct. 762, holding withdrawal of appearance, without leave of court, leaves record in condition, in which judgment by default for want of appearance can be entered; Graham v. Spencer, 14 Fed. 607, under such circumstances as above, court may proceed as if defendant were still in its presence; White v. Ewing, 69 Fed. 454, 37 U. S. App. 365, where, in suit to foreclose vendor's lien, non-residents voluntarily appeared, but subsequently withdrew appearance; Rogers v. New York, etc., Co., 134 N. Y. 219, 32 N. E. 35, where injunction is vacated without prejudice to either party, neither is in position to take advantage thereunder. Cited, arguendo, in First Nat. Bank v. Cunningham, 48 Fed. 517, in general discusion as to effect of withdrawal of an appearance. Cited in collection of authorities in Romaine v. Union Ins. Co., 28 Fed. 638. Cited in dissenting opinion in Bloxham v. Florida Central Ry. Co., 39 Fla. 294, 22 So. 708, as to meaning of phrase "without prejudice." 20 Wall. 14-20, 22 L. 311, McQUIDDY v. WARE. Equity. One leaving home to join in a rebellion against the government, cannot have judgments given against him in his absence, set aside in equity on ground that he was not served with notice of suits, p. 18. Cited and applied in Jenkins v. Hannan, 26 Fed. 664, holding party who voluntarily leaves his country for purpose of engaging in hostility against it, cannot complaint of legal proceedings, regularly prosecuted against him in his absence; Bush v. Sherman, 80 Ill. 174, holding right of mortgagee to execute power of sale, given in mortgage, is not affected by mortgagor leaving State and going within lines of enemy, for purpose of uniting with those in rebellion. Distinguished and explained in Haymond v. Camden, 22 W. Va. 194, 195, 202, where West Virginia statute was held invalid, which sought, by publication, to confer jurisdiction on courts over persons who had gone into Confederate lines during war. Equity always refuses assistance, where there has been gross laches in the prosecution of rights, p. 19. Cited and applied in Ketchum v. Mobile, etc., Ry. Co., 2 Woods, 542, F. C. 7,737, where party who was removed from trusteeship during war, and who made no effort to reclaim same for a period of ten years, was held to have acquiesced in appointment of his successor; Bell v. Hudson, 73 Cal. 288, 289, 2 Am. St. Rep. 793, 794, VOL. VIII- 19 ( 14 Pac. 792, 793, where a delay of twenty-five years by representatives of one partner in bringing action against representatives of other partner for partnership accounting, was held such laches as to bar claim; Horr v. French, 99 Iowa, 82, 68 N. W. 584, holding a delay of twenty-six years barred right to bring suit to set aside administrator's sale; Bliss v. Pritchard, 67 Mo. 186, where delay of eight years was held to bar suit of party to compel his attorney to transfer to him property which he had instructed attorney to purchase for him, but which had been purchased in name of attorney; Bradshaw v. Yates, 67 Mo. 232, each case, as it arises, must be determined by its own circumstances; Orr v. Pennington, 93 Va. 271, 24 S. E. 929, dismissing bill seeking to have deed set aside on ground of undue influence; Wickham v. Sprague, 18 Wash. 471, 51 Pac. 1057, where claim by ward against guardian for an accounting for lands sold forty years before, was held stale; Bausman v. Kelley. 38 Minn. 209, 8 Am. St. Rep. 666, 36 N. W. 337, where, through claimant's delay, equities had intervened in favor of third parties. Cited, arguendo, in Logansport v. Uhl, 99 Ind. 545, 30 Am. Rep. 116, as bearing on question of equitable estoppel. See note, 23 Am. St. Rep. 150. Equity. General allegation of ignorance of things, a knowledge of which was readily ascertainable, is insufficient to set in action equitable remedies, p. 19. Cited and relied on in Naddo v. Bardon, 51 Fed. 497, 4 U. S. App. 642, affirming S. C., 47 Fed. 788, holding an allegation, that complainant only recently obtained knowledge as to his rights, is too vague and uncertain; Bliss v. Prichard, 67 Mo. 188, facts set up as an excuse for laches must be specifically and definitely pleaded. 20 Wall. 20-30, 22 L. 279, HUMASTON v. TELEGRAPH CO. Arbitration.- Where contract provides that certain matters therein shall be referred to arbitrators for settlement, one party cannot arbitrarily ignore stipulation and resort in first instance to courts of law, p. 27. Reaffirmed in Denver, etc., Co. v. Stout, 8 Colo. 66, 5 Pac. 630, Thorndike v. Wells Assn., 146 Mass. 620, 16 N. E. 749, and Meyers ▼. Construction Co., 20 Or. 610, 27 Pac. 586, in which cases plaintiff's demand was held premature, because of failure to refer to arbitrators or show excuse for not doing so. Sales. If performance of condition for valuation of thing sold be rendered impossible by act of vendee, price of thing sold must be fixed by jury on quantum valebat, p. 28. Damages. In suit for breach of agreement to give shares of stock in exchange for other property, not money, such stock on day of contract having fixed market value, evidence of value at any other date is inadmissible, p. 30. 20 Wall. 31--36, 22 L. 313, KEHR v. SMITH. Husband and wife.- Where husband and wife enter into contract of separation, stipulating therein as to property rights of each, entire contract becomes avoided on their subsequent reconciliation, p. 33. Reaffirmed in Knapp v. Knapp, 95 Mich. 477, 55 N. W. 354, holding, under such circumstances, a wife entitled to dower rights, although in contract of separation she had waived them. See monographic note, 90 Am. Dec. 369. Husband and wife.— Voluntary settlements are valid as against existing creditors, unless such settlements be greatly disproportionate to means of party making same, taking into view his debts and means, p. 35. Cited and relied on in Lloyd v. Fulton, 91 U. S. 485, 23 L. 365, prior indebtedness is only rebuttable presumption of fraud; Herring v. Richards, 1 McCrary, 575, 3 Fed. 443, where voluntary settlement made by parent on children at time parent was solvent was held valid; Wiswell v. Jarvis, 2 Hask, 497, 9 Fed. 87, where conveyance of property valued at $5,000, made by husband to wife at time he had property in excess of debts valued at $12,000, was held not fraudulent; Morgan v. Hecker, 74 Cal. 542, 16 Pac. 318, and French v. Holmes, 67 Me. 191, the question of fraudulent intent is one of fact, not of law; Hume, etc., Co. v. Condon, 44 W. Va. 557, 30 S. E. 58, holding conveyance by husband to wife not fraudulent where he retained tangible property largely in excess of his debts. Cited in Spaulding v. McGovern, 22 Fed. Cas. 892, holding voluntary settlement by one indebted void, if debts and contingent liabilities existing at time of conveyance are paid by contracting other obligations, which afterwards result in insolvency; Rose v. Dunklee, 12 Colo. App. 412, 56 Pac. 345, in discussion as to amount of property which must remain in hands of debtor in order to relieve transfer from taint of fraud. Approved, arguendo, in Flory v. Houck, 186 Pa. St. 268, 40 Atl. 482. Cited in Perry v. Ruby, 81 Va. 326, holding the burden of showing that a postnuptial settlement was not voluntary, but for consideration, is on those claiming under it. See note, 90 Am. Dec. 735. In the following the conveyances were held to be fraudulent and, therefore, vold: Hawkins v. Wills, 49 Fed. 509, 4 U. S. App. 274, where husband had conveyed his real property to his wife and retained insufficient personalty to pay his debts; Adams v. Edgerton, 48 Ark. 424, 3 S. W. 630, where husband having creditors, settled all his property on his wife; Pursel v. Armstrong, 37 Mich. 331, and Foster v. Foster, 56 Vt. 548, where father had settled most of his property on his children in order to prevent the collection of alimony decreed his wife; Hunter v. Hunter, 10 W. Va. 349, voluntary settlement by husband on wife at time he was largely indebted, to degree of embarrassment. |