of the contents of a paper is admissible; The Alice, 12 Fed. 924, where secondary evidence of the contents of a bill of lading was held inadmissible, it appearing the original bill was accessible; Jaques v. Horton, 76 Ala. 246, when a certified or examined copy of a paper required to be recorded, or a letter-press copy of a writing, is shown to be in existence, it is better evidence than the memoriter statements of a witness.

Judgment.-Jurisdiction having attached in a case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of parties unless impeached for fraud, p. 250.

Cited and principle applied in Ex parte Reed, 100 U. S. 23, 25 L. 539, where acts of a court-martial were attacked in habeas corpus proceedings instituted by party convicted before such court; Keyes v. United States, 109 U. S. 340, 27 L. 956, 3 S. Ct. 204, holds similarly; White v. Crow, 110 U. S. 189, 28 L. 115, 4 S. Ct. 74, holding court will make all necessary presumptions to support a judgment by confession; Laing v. Rigney, 160 U. S. 542, 40 L. 528, 16 S. Ct. 368, reaffirms the rule; Manson v. Duncanson, 166 U. S. 548, 41 L. 1110, 17 S. Ct. 653, where under decree of Probate Court real estate of decedent had been sold for purpose of paying his debts, and there had been no personal service on non-resident minor having interest therein; Smythe v. Henry, 41 Fed. 713, court of competent jurisdiction having declared a restored record proof of contents of original, the holding will not be impaired in collateral proceedings; Penn. Ry. Co. v. Nat. Docks Co., 58 Fed. 931, holding decision of State court that it has power under State statute to allow certain amendments to pleadings on appeal is binding on Federal court into which cause is taken; Foltz v. St. Louis, etc., Ry. Co., 60 Fed. 318, 19 U. S. App. 576, holding judgment of condemnation not subject to collateral attack; Whitlow v. Echols, 78 Ala. 211, holding where proceedings in Probate Court have ripened into a decree, a liberal construction will be given the petition by which the proceedings were initiated; Suitterlin v. Insurance Co., 90 Ill. 488, holding decree of mortgage foreclosure directing sale but not providing for right of redemption, cannot be attacked collaterally; Kelly v. People, 115 IN. 389, 56 Am. Rep. 187, 4 N. E. 646, holding judgment cannot be attacked collaterally for irregularities in proceedings in which it was rendered; Pennybacker v. Switzer, 75 Va. 687, applyIng rule to adjudications of Virginia County Courts; Belles v. Miller, 10 Wash. 267, 38 Pac. 1053, holding judgment of foreclosure, although erroneously rendered, cannot be attacked in collateral proceedings; Wells-Stone Co. v. Truax, 44 W. Va. 536, 29 S. E. 1008, reaffirms the rule. Approved, arguendo, in Odell v. Reynolds, 70 Fed. 662, 37 U. S. App. 447, Baldwin v. Baer, 10 Wash. 417, 39 Pac. 118, and Board of Commrs. v. Platt, 79 Fed. 571, 49 U. S. App. 222,

all holding further judgment of court which had jurisdiction of sub. ject-matter and of parties cannot be attacked collaterally, even if it was obtained by fraud and collusion. Cited, arguendo, in Thomas V. American Freehold Co., 47 Fed. 557, 12 L. R. A. 687, and n., no special application.

Distinguished in Windsor v. McVeigh, 93 U. S. 283, 23 L. 918, and Henry v. Carson, 96 Ind. 423, on ground that court which tried cause and rendered judgment in question proceeded without jurisdiction; to same effect are, United States v. Walker, 109 U. S. 266, 27 L. 929, 3 S. Ct. 282, Culver v. Hardenbergh, 37 Minn. 230, 33 N. W. 794, and Williams v. Monroe, 125 Mo. 589, 28 S. W. 857.

Judgments. Where State court had jurisdiction to authorize and did authorize a sale of real estate, question of propriety of making the sale cannot be collaterally reviewed in Federal courts, p. 250. Cited in May v. County of Logan, 30 Fed. 255, court having jurisdiction to authorize sale, its acts are not open to examination in collateral proceedings.

Evidence. As regards public officers, acts done which presuppose existence of other acts to make them legally operative, are presumptive proofs of latter, p. 250.

Cited and applied in Commonwealth v. Carr, 143 Mass. 88, 9 N. E. 30, holding the action of the selectmen of a town in laying out a street presupposes that preliminary steps had been complied with; Commonwealth v. Vincent, 160 Mass. 281, 35 N. E. 852, a police court not being allowed to continue a trial for more than ten days without consent of defendant, the consent of defendant will be presumed where continuance was for his benefit and he appeared after expiration of period.

Miscellaneous. Cited in Dewing v. Perdicaries, 96 U. S. 195, 24 L. 655, and Hull v. Dills, 19 Fed. 659, not in point.

20 Wall. 251-264, 22 L. 275, UNITED STATES v. HERRON. Bankruptcy. Classes of creditors entitled to preference under act of 1867, enumerated, p. 256.

Cited in dissenting opinion in Merrill v. National Bank, 173 U. S. 177, 19 S. Ct. 378, to the effect that the United States is entitled to preference over all other creditors; In re Duryee, 2 Fed. 70, that debt due State for taxes is preferred.

Bankruptcy.- "Creditor or creditors," as used in the several provisions of bankruptcy act of 1867, do not apply to United States, p. 260.

Rule reaffirmed in Lewis v. United States, 92 U. S. 622, 23 L. 514, affirming S. C., 26 Fed. Cas. 924, holding the government under no obligation to prove its claim in bankruptcy proceeding before

filing bill against the assignee for the enforcement thereof; In re Strassburger, 4 Woods, 558, F. C. 13,526, holding clause which prescribes a marshalling of assets between partnership and individual creditors has no application to the United States; United States v. Barnes, 24 Blatchf. 471, 31 Fed. 708, holding assignee personally liable to government when he distributed assets among creditors, knowing of the preferred claim, although it had not been proved in bankruptcy; Tiffany v. Morrison, 3 Colo. 46, holding a payment by deputy collector of internal revenue to his principal of money received on behalf of the government, made within four months next before his bankruptcy, is not an unlawful preference.

Distinguished in Fink v. O'Neil, 106 U. S. 283, 27 L. 200, 1 S. Ct. 833, holding homestead exemption applies to United States as well as other creditors; United States v. Murphy, 11 Biss. 418, 15 Fed. 592, where government has knowledge of proceedings in bankruptcy and fails to prove its claim, it cannot assert any rights against the assignee after the estate is fully administered.

Bankruptcy.- Certificate of discharge given a bankrupt, under act of 1867, does not release debt due United States, pp. 261, 262. Cited and relied on in State v. Shelton, 47 Conn. 405, 406, holding discharge in bankruptcy of person indebted to State school fund as a borrower, does not affect State as creditor; Johnson v. Auditor, 78 Ky. 285, debt due Commonwealth by a defaulting sheriff is not released by his discharge in bankruptcy; Cape Elizabeth v. Skillin, 79 Me. 595, 12 Atl. 544, holding discharge in insolvency does not release insolvent from arrearages of taxes; Smith v. Hodson, 50 Wis. 283, 285, 6 N. W. 812, 814, holding where one surety has paid judgment rendered against him and his co-surety in action brought by the United States, he may compel contribution from his co-surety, notwithstanding latter has been discharged in insolvency.

Approved, arguendo, in Lamp Chimney Co. v. Copper Co., 91 U. S. 664, 23 L. 340, In re Baker, 96 Fed. 956, 957, and Brady v. Brady 71 Ga. 78, in discussion as to claims which are barred by discharge of bankrupt. Referred to in Fleitas v. Meraux, 47 La. Ann. 237, 16 So. 851, no special application.

Distinguished in Hamilton v. Reynolds, 88 Ind. 193, holding such discharge will release bankrupt from liability to pay his surety who has paid claim of the government.

A statute will not be so construed as to divest the sovereign power of any right, privilege, title or interest, unless such intent be clearly expressed therein, p. 263.

Cited and principle applied in United States v. Godbold, 3 Woods, 551, F. C. 15,219, in holding United States not bound by statute of limitations; United States v. Howell, 4 Hughes, 485, 9 Fed. 677, and Commonwealth v. Ford, 29 Gratt. 688, debts due the government may be collected on execution regardless of debtor's right to

exemption under State laws; United States v. Shaw, 39 Fed. 436, 3 L. R. A. 234, doubtful constructions should be resolved in favor of the government; Martin v. Roesch, 57 Ark. 476, 21 S. W. 882, holding act making value of improvements on land a charge thereon in favor of a person in possession under color of title, does not apply to land belonging to State; Lingo v. Harris, 73 Ga. 30, holding claim cannot be interposed in forma pauperis to property levied on by a tax execution issued by a municipal corporation; Mayor v. King, 91 Ga. 524, 17 S. E. 940, reaffirms the rule; In re Riddell, 93 Wis. 566, 67 N. W. 1136, holding assignment for benefit of creditors does not relieve assignor of liability for taxes accrued previous to assignment. Approved, arguendo, in Smith v. Morgan, 68 Wis. 363, 32 N. W. 137, and State v. Polacheck, 101 Wis. 430, 77 N. W. 709, holding no general words in a statute can operate to divest a State of vested rights or remedies. Cited, arguendo, in McIntosh Braden, 80 Va. 221, to effect that where a statute gives a new right the State is as much bound by the act, as to the manner of enjoying such right, as the subject or citizen. Cited in Cook v. Auditor, 79 Mich. 108, 44 N. W. 422, without special application. Cited in Brown v. Van Wert, 4 Ohio C. C. 415, and Brown v. Chancellor, 61 Tex. 445, as authority for holding when two statutes relate to same subject but are inconsistent, the one enacted last must prevail. See note, 26 Am. Dec. 36.

20 Wall. 264-288, 22 L. 344, McPHAUL ▼. LAPSLEY.

Trial.- Affidavit filed under act of Texas of 1846, as to fraudulent character of a recorded instrument, held properly rejected if not filed in time prescribed, p. 283.

Evidence.-A Mexican testimonio, made by officer by whom original instrument was executed, is, under Spanish and Texas law, a second original, and of equal validity with prior one, p. 284.

Evidence.— Unofficial testimony, offered to prove that an ancient testimonio of forty years' standing, was not a copy of an original instrument, held improper, p. 288.

Cited in Noyes v. Belding, 5 S. Dak. 610, 59 N. W. 1071, as supporting the rule that no evidence should be received which presupposes better evidence behind it.

20 Wall. 289-322, 22 L. 264, CITY OF MEMPHIS v. BROWN. Specific performance is never decreed where party can be otherwise fully compensated, p. 304.

Cited in Eckstein v. Downing, 64 N. H. 259, 10 Am. St. Rep. 408, 9 Atl. 629, equity will not decree specific performance of contract for sale of shares of stock, remedy at law being adequate.

Contracts. Where city loans its bonds to one who agrees to return them, with interest, in certain time, latter satisfies his contract by paying their market value at that time, p. 306.

Contracts. Measure of damages for failure to return certain bonds which a party had contracted to return at a specified time, is sum at which other party could buy them at such time, p. 306. Cited in notes, 62 Am. Dec. 137, and 67 Am. Dec. 154.

Accord and satisfaction.—If part of consideration agreed on be not paid, the whole accord fails; mere executory agreement can never be pleaded as accord and satisfaction; accordingly, agreement of contractor to release city from prior demands, is not an accord until performance by the city of the stipulated consideration, pp. 308, 309.

Cited and applied in National Bank v. Leech, 94 Fed. 311, holding agreement to accept notes of third person in part payment of a debt, and to extend time for payment of the remainder, on the giving of certain security, must be fully executed before it can be pleaded as an accord and satisfaction; Carpenter v. Chicago, etc., Ry. Co., 7 S. Dak. 587, 64 N. W. 1120, reaffirms rule; Hard v. Burton, 62 Vt. 322, 20 Atl. 272, holding mere fact that one debtor pays a portion of a joint debt, and the other, with consent of creditor, agrees to pay balance, does not discharge former from further liability; McCreery v. Day, 119 N. Y. 7, 16 Am. St. Rep. 797, 23 N. E. 199, 6 L. R. A. 505, and n., substituted parol agreement actually performed, held, good accord. See note, 86 Am. Dec. 313.

Municipal corporations.- Power conferred on city, to make contracts for pavement of its streets and assess adjoining owners for cost thereof, does not impair power of city to do work itself, p. 310.

Cited and applied in Soule v. Seattle, 6 Wash. 317, 33 Pac. 385, where a similar clause in a city charter was under consideration, and holding city was not limited to special assessments as a means of improving its streets; arguendo, in Portland, etc., Co. v. East Portland, 18 Or. 32, 22 Pac. 540, 6 L. R. A. 296, and n.

Guaranty. Upon guaranty of payment and not of collection, suit may be commenced against guarantor without any previous suit against principal, p. 311.

N. J. L.

Reaffirmed in Wilkinson Co. v. Van Ripper, 43 Atl. 676, where difference between guaranty of payment and guaranty of collection of payment is explained more fully; Esberg, etc., Co. v. Heid. 62 Fed. 963, holding, under such a contract, plaintiff need not allege, in suit against guarantor, he has exhausted remedies against principal; Cochran v. United States, 157 U. S. 296, 39 L. 708, 15 S. Ct. 632, holding such guaranty by national bank must be reported among its liabilities to the comptroller.