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of party in whose favor it is made, and not interfere with interests of public. See monographic note, 92 Am. Dec. 758; also note, 95 Am. Dec. 193, and note, 59 Am. Rep. 686.

Contracts.- Where contract, in restraint of trade, contains divisible stipulations, some of which are void, others valid, courts will give effect to latter, and will not hold agreement void altogether, p. 70.

Rule reaffirmed in Western U. Tel. Co. v. Burlington, etc., Ry. Co., 3 McCrary, 136, 11 Fed. 4, Illinois Trust, etc., Bank v. Arkansas City, 76 Fed. 280, 40 U. S. App. 257, 34 L. R. A. 524, and Lincoln Sav. Bank v. Allen, 82 Fed. 153, 49 U. S. App. 507, applying principle to contracts generally. See note, 3 McCrary, 146.

Miscellaneous.- Cited incidentally in Hale v. Finch, 104 U. S. 265, 26 L. 733.

20 Wall. 72-92, 22 L. 295, NAT. BANK OF WASHINGTON v. TEXAS.

Bonds.- Bonds payable to bearer, being transferable by delivery even when overdue, to invalidate title acquired by purchaser, it is necessary to make out some defect in transferrer's title, p. 81.

Cited in Dewing v. Perdicaries, 96 U. S. 196, 24 L. 655, assignee of non-negotiable instrument takes same subject to all equities which existed against it in hands of his assignor.

Bonds. Where it is alleged that bonds, title to which passes by delivery, were not purchased in good faith, burden of establishing want of faith is on party asserting it, p. 81.

Reaffirmed in Gilbough v. Norfolk, etc., Ry. Co., 1 Hughes, 412, F. C. 5,419, case where stolen bonds, transferable by delivery, had been purchased bona fide. Approved, arguendo, in McSherry v.

Brooks 46 Md. 117.

United States.- Mere fact that bonds granted to State of Texas were issued unindorsed by Texas governor, is not evidence of their unlawful issuance as against holder after maturity, pp. 82, 83.

Bills and notes.- Transferee of overdue negotiable paper takes It liable to all equities to which it was subject in hands of payee, p. 88.

Cited and applied in Henderson v. Case, 31 La. Ann. 217, holding purchaser of dishonored bill, who purchased from one having no authority to sell, acquired no title against real owner; Walker v. Wilson, 79 Tex. 188, 15 S. W. 402, an overdue negotiable note is degraded to the rank of a personal chattel, the purchaser of which acquires only such title as the seller had. See monographic notes, 64 Am. Dec. 435, and 98 Am. Dec. 684.

Bills and notes.- Principle that transferee of overdue negotiable paper takes it liable to all equities to which subject in hands of payee, does not apply as between successive takers, p. 89.

Cited and applied in In re Gillespie, 15 Fed. 735, holding bona fide assignee of chose in action, without notice of prior assignment, who gives notice of assignment to debtor, and takes possession of evidence of debt, has superior equity over prior assignee who leaves evidence of debt with assignor, and gives no notice of assignment to debtor; Drexler v. Smith, 30 Fed. 758, the equity must be something growing out of the transaction in which the note originated, and existing at time of transfer; Y. M. C. A. Gymnasium Co. v. Bank, 179 Ill. 606, 70 Am. St. Rep. 140, 54 N. E. 299, where purchaser of note, indorsed in blank, was held protected from latent equities of third parties. Cited in Hill v. Shields, 81 N. C. 253, 31 Am. Rep. 501, holding remote indorsee of note indorsed in blank, who purchased bona fide for full value, takes note unaffected by any parol agreement between payee and original indorsee. See note, 58 Am. Dec. 281; also 64 Am. Dec. 434.

Criticised in Greenwell v. Haydon, 78 Ky. 339, 341, 39 Am. Rep. 238, 241, holding negotiable paper, taken after maturity, subject to all equities that might have been made against it in hands of transferrer.

Bills and notes. In absence of evidence, there is no presumption that holder of negotiable securities acquired title after securities matured, p. 91.

Cited in Hinckley v. Bank, 131 Mass. 149, where every known holder of interest coupons received them after maturity, there is no presumption that thief originally negotiated them before maturity.

Miscellaneous.- Cited incidentally in Morgan v. United States, 113 U. S. 493, 28 L. 1050, 5 S. Ct. 594, and McSherry v. Brooks, 46 Md. 118.

20 Wall. 92-114, 22 L. 320, CONFISCATION CASES.

Forfeitures. Proceedings, under confiscation acts of 1861, 1862, are in rem, and are to conform as nearly as may be to proceedings in admiralty or revenue cases, not to criminal proceedings, p. 104.

Cited with approval in Oakes v. United States, 174 U. S. 790, 19 S. Ct. 868, where, in proceedings against a vessel, it was held allegations were sufficient to show she was used in aiding Rebellion, with the knowledge and consent of her owners; arguendo, in Pasteur v. Lewis, 39 La. Ann. 9, 1 So. 310, as authority for holding, in cases of seizure on land, under confiscation acts, proceedings are at common law; The Oriental, 2 Flipp. 47, F. C. 10,570.

Forfeitures.- Charges in an information, under confiscation act of 1862, may be in the alternative, p. 105.

Distinguished in United States v. Fifteen Hundred Barrels of Spirits, 51 Fed. 421, 422, information held bad, because all allegations were in alternative and too general.

Forfeitures.- Where final judgment of condemnation, under confiscation act of 1862, has been entered after default, it will not be set aside for mere formal faults in pleading, p. 105.

Courts.- Jurisdiction of District Court being limited, it must affirmatively appear that it has jurisdiction of particular case which it attempts to adjudicate, p. 108.

Cited in collection of authorities in Risley v. Phenix Bank, 83 N. Y. 337, 38 Am. Rep. 433, holding court, authorized by statute to entertain jurisdiction in a particular case only, acquires no jurisdiction over case to which statute has no application.

Forfeitures.- Property must be seized under executive order before courts have power to condemn, p. 108.

Cited and applied in United States v. Winchester, 99 U. S. 376, 25 L. 480, where property, not having been so seized, it was held court acted without jurisdiction; to same effect, Henry v. Carson, 96 Ind. 425, it must appear from record that property was seized under executive order. Approved, arguendo, in Pike v. Wassell, 94 U. 8. 712, 24 L. 309.

Courts.- Jurisdiction, depending on existence of a fact, may be shown by confession of party as well as by any other evidence, p. 108.

Courts.- Jurisdiction cannot be conferred by consent of parties, where none would exist without it, p. 108.

Approved in Handford v. United States, 92 Fed. 883.

Forfeitures.- Direction given by attorney-general to seize property liable to confiscation, under act of 1862, must be regarded as a direction given by the president, p. 109.

Cited in Runkle v. United States, 122 U. S. 557, 30 L. 1171, 7 8. Ct. 1147, as authority for holding the president may exercise his executive power through heads of departments; In re Neagle, 14 Sawy. 272, 39 Fed. 860, 5 L. R. A. 93, where act of attorney-gen eral, in directing United States marshal to protect a justice of the Supreme Court, was said to be act of the president. Approved, arguendo, in United States v. Badeau, 31 Fed. 699.

Forfeitures. In condemnation proceedings, at common law, if there be no questions of fact to be tried, a jury is unnecessary, p. 110.

Reaffirmed in Pasteur v. Lewis, 39 La. Ann. 10, 1 So. 311, holding jury trial unnecessary in condemnation proceedings, where monition was published and interested parties defaulted.

Forfeitures.- Where proceedings for condemnation, under confiscation act of 1862, were carried on according to common-law forms for proceedings in rem, they will not be held invalid, because the information was called a libel of information, and the warrant and citation a monition, p. 110.

Forfeitures.- Where warrant, citation and monition in condemnation proceedings in District Court have been attested by judge, sealed with seal of court and signed by deputy clerk, this is sufficient without signature of clerk, p. 111.

Cited and applied in National Acc. Soc. v. Spiro, 94 Fed. 751, holding deputy clerk of Circuit Court may authenticate a copy of a record of the court; Small v. Field, 102 Mo. 119, 14 S. W. 817, and Steinke v. Graves, 16 Utah, 299, 52 Pac. 387, in general, a deputy may do whatever his principal may do. Cited in Ex parte Burdell, 32 Fed. 681, as authority for holding a deputy clerk of the District Court may sign, as clerk, all process issuing from the court. Officers. Deputy of a ministerial officer can do every act his principal might do, p. 111.

Appeal and error.- Where defendant, in confiscation proceedings, under act of 1862, makes default, and judgment of condemnation is entered by District Court, it will be presumed on appeal that the court found all facts necessary to support its judgment, p. 112.

Followed in United States v. Hatch, 154 U. S. 596, 22 L. 827, 14 S. Ct. 1212.

Forfeitures.- Confiscation acts were not repealed by the president's proclamations of amnesty, in 1868, and property condemned and sold prior thereto was not affected by these proclamations, p. 113.

Cited and relied on in Semmes v. United States, 91 U. S. 27, 23 L. 195, holding pardon for treason will not restore rights in property previously condemned and sold in exercise of belligerent rights; to same effect is Ill. Cent. Ry. Co. v. Bosworth, 133 U. S. 104, 33 L. 554, 10 S. Ct. 234.

Miscellaneous.- Cited incidentally in Shields v. Schiff, 124 U. S. 354, 31 L. 447, 8 S. Ct. 512, and Slidell v. Huppenbauer, 27 La Ann. 384, suit growing out of same cause of action.

20 Wall. 114-115, 22 L. 327, CLAIMS OF MARCUARD.

Forfeitures. In proceedings under confiscation act of 1862, holders of liens against real estate, concerning which proceedings are being had, are not entitled to intervene, p. 115.

Cited in Avegno v. Schmidt, 113 U. S. 302, 28 L. 978, 5 S. Ct. 491, holding District Court, in proceedings for confiscation of real estate, had no jurisdiction to pass upon validity of a mortgage upon property proceeded against.

Forfeitures.- Liens against real estate, condemned under con fiscation act of 1862, are not divested, p. 115.

Reaffirmed in Avegno v. Schmidt, 113 U. S. 297, 28 L. 977, 5 S. Ct. 488, where decree of confiscation was held to not affect interest of mortgagee in confiscated property. Cited in Citizens' Bank v. Hyams, 42 La. Ann. 732, 7 So. 701, holding the fee is never divested from owner of confiscated property; he merely loses his life estate.

20 Wall. 115-117, 22 L. 328, CONRAD'S LOTS.

Appeal and error.— Circuit Court, having reversed District Court decree of confiscation, under act of 1862, but confirmed the sale, directing proceeds to be paid claimant, Supreme Court, which, on error by the United States, has reversed the Circuit Court, will also enter a similar reversal on error by claimant to portion of decision below, which confirms the sale, p. 116.

Not cited.

20 Wall. 117-124, 22 L. 328, KNAPP v. RAILROAD CO.

Appeal and error.- Unauthenticated recital by clerk of Circuit Court, of matters which he says were proved at trial, and of certain stipulations and admissions, form no part of record which may be considered on appeal, p. 121.

Appeal and error.- To preserve evidence, in order to raise a question of law upon it on appeal, party must ask to have it incorporated in bill of exceptions, or obtain an agreed statement of facts, p. 121.

Reaffirmed in Sessions v. Gould, 63 Fed. 1002, 26 U. S. App. 368.

Trusts.- Legislature cannot, without consent of cestuis que trust, substitute a new trustee in place of persons named in trust deed, p. 123.

Cited in Rinker v. Bissell, 90 Ind. 378, law providing that nonresidents could not be appointed trustees, had no retroactive effect. Parties. In suit to enforce claim accruing to trustees in execution of their trust, they are the real plaintiffs, p. 123.

Cited with approval in Foss v. National Bank, 1 McCrary, 477, 3 Fed. 187, holding trustees, executors and the like, when in fact interested in litigation, cannot be considered formal parties; to same effect are Goodnow v. Litchfield, 4 McCrary, 216, 47 Fed. 753, and Popp v. Railroad Co., 96 Fed. 467, both holding administrator real party in interest when he brings sult for next of kin of intestate. Cited, arguendo, in May v. St. John, 38 Fed. 771, no specia application.

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