Taxation. Where, at time bill to enjoin levy of State tax on rallroad lands was filed, United States had no interest in said lands which would forbid the tax, and it was not clear that such interest existed at time assessment was made, court refused injunction,

p. 478.

22 Wall. 479-491, 22 L. 789, TAYLOR V. THOMAS.

War.- Act of Mississippi legislature of December 19, 1861, anthorizing issue of cotton notes," was an act passed in aid of the Rebellion and void, and such notes are not receivable for taxes,

P. 486

War.- Act passed in aid of Rebellion is void, though passed by legislature elected before secession, and otherwise innocent of any treasonable act, pp. 488, 489.

States.-- Legislature of Mississippi, after that State became member of insurrectionary Confederacy, ceased to represent the State as constitutional member of Federal Union, p. 489.

Approved in Pennywit v. Foote, 27 Ohio St. 622, 22 Am. Rep. 354, reviewing authorities, judgment of court in rebel State not within full-faith-and-credit clause of Constitution.

War.- Acts necessary to peace and good order among citizens are valid, when proceeding from an actual, though unlawful govern. ment, p. 489.

Distinguished in Bragg v. Turts, 49 Ark. 562, 6 S. W. 161, col lecting authorities, and holding treasury warrants, issued as war measure, void.

War.— Judicial and legislative acts of Confederate States, hos tile in their purpose or mode of enforcement to authority of national government, or which impaired rights of citizens under the Constitution, are void, p. 491.

Approved and applied in Isaacs v. Richmond, 90 Va. 31, 39, 17 8. E. 761, 763, currency notes Issued by Richmond held vold.

22 Wall 492-496, 22 L. 736, UNITED STATES V. SAUNDERS.

Statuto should be construed according to its intent and meaning as evidenced by state of law previous to its enactment, as well as its language, pp. 494 496.

Cited in School Directors v. School Directors, 81 Wis. 433, construing word "credits" in act concerning erection of counties; State v. Shove, 96 Wis. 9, 65 Am. St. Rep. 20, 70 N. W. 314, 37 L. R. A. 146, citing cases, where certificate of deposit payable in future, was issued for money banked, such money WAS deposit.”

* OD

United States. — Act of July 28, 1866, providing for addition of 20 per cent. to salaries of certain government employees, did not include superintendent of public garden of agricultural department, p. 496.

22 Wall. 496-618, 22 L. 858, PITAT'S ADMR. v. UNITED STATES.

Evidence.- Parol evidence of what passed between parties be fore contract was put in writing, or while it was in preparation, is not, in general, admissible to vary terms of written contract,

p. 506.

Evidence.- Subsequently to reducing contract to writing, and before breach, parties may, by new contract, waive same, annul It or vary it in any way, which new contract may, in proper case, be proved partly by original written agreement and partly by subsequent verbal terms, p. 506.

Cited in extensive notes in 37 Am. Dec. 153, 161, and 56 Am. St. Rep. 662.

Contracts.- A benefit to defendant, and loss to plaintiff, directly resulting from defendant's promise, is suficient consideration moving from plaintif to enable him to maintain action on the promise, pp. 507, 508.

Evidence. - Where army contractor furnished rations for some time, under written agreement, when, government being unable to carry out its part of contract, said written contract was abandoned, and pursuant to oral agreement with secretary of war, he continued to furnish rations at a diferent rate, parol evidence was admissible to prove the new contract, p. 507.

United States.- Commissioners appointed by Congress to audit and adjust claims against government do not possess judicial power to bind parties; but if claimants appear and accept terms awarded as ipal settlement without protest, they preclude themselves from further claim and litigation, p. 509.

United States.-- Where commissioners are forbidden by law to allow claimant more than specified amount, it would be unreasonable to suppose Congress meant that he should relinquish large balance found to be due him, p. 510.

Miscellaneous.— Miscited in State v. Whitworth, 8 Lea, 623.

22 Wall. 513-527, 22 L. 758, ROBINSON V. ELLIOTT.

Ohattal mortgage which simply allows mortgagor to retain pos session and use of property until breach of condition is, when duly recorded, prima facie vald in Indiana, p. 521.

Cited and principle applied in Juvell v. Knight, 123 U. 8. 434, 31 L 193, 8 8. Ct. 195, collecting cases, question of traud in sale to

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bona fide creditor one of fact; Waterman v. MacKenzie, 138 U. 8. 200, 34 L. 927, 11 S. Ct. 337, citing cases, holding mortgage of patent, by recorded assignment, valid; Frankhouser 7. Ellett, 22 Kan. 147, 31 Am. Rep. 177, collecting authorities, holding stipulation for retention of possession not even prima facie fraudulent; Reichert v. Simons, 6 Dak. 242, 42 N. W. 658, fact that chattel mortgagor remained in possession, not fraudulent.

Chattel mortgage containing provisions which vitiate whole instrument, is not rendered even prima facie good against creditors by recording it, p. 521.

Cited in Means v. Dowd, 128 U. S. 284, 287, 32 L. 435, 436, 9 8. Ot. 68, 70, assignment, with beneficial interest reserved to insolvent debtor, held void; Lutz v. Kinney, Nev. - 49 Pac. 455, and Pelser v. Peticolas, 50 Tex. 646, 32 Am. Rep. 623, mortgage void, where mortgagor retained possession with unrestricted power of disposition.

Chattal mortgages. — Whether chattel mortgage is on its face vold as against creditors is question for court; provision of statute that fraudulent intent shall be deemed question of fact applies to cases of actual fraud, p. 522.

Followed in Sparks v. Mack, 31 Ark. 671, conveyance with reservation to Insolvent debtor held void as to creditors; Leopold v. Silverman, 7 Mont. 276, 16 Pac. 582, Greeley v. Winsor, 1 S. Dak. 622, 48 N. W. 215, and Wineburgh v. Schær, 2 Wash. Ter. 334, 335, 5 Pac. 300, 301, holding mortgages void as matter of law.

Chattel mortgage in Indiana, by which mortgagor is permitted to retain possession of goods, and to sell same for express purpose of applying proceeds on mortgage debt, would seem to be valid, p. 524.

Cited and principle applied in Etheridge v. Sperry, 139 U. 8. 272, 274, 35 L. 174, 175, 11 S. Ct. 567, 568, and Meyer, etc., Co. v. Shenk. berg Co., S. Dak. –, 80 N. W. 128, reviewing authorities, holding mortgage valid, where net proceeds were so applied; Overman v. Quick, 8 Biss. 136, 137, F. C. 10,624, a case such as stated in rule; Maish v. Bird, 22 Fed. 579, and Murray v. McNealy, 86 Ala. 236 11 Am. St. Rep. 34, 5 So. 566, reviewing authorities, Bannon V. Bowler, 34 Minn. 418, 26 N. W. 238, Red River Nat. Bank v. North Star, etc., Co., 8 N. Dak. 442, 79 N. W. 885, and Langert v. Brown, 3 Wash. Ter. 107, 13 Pac. 704, mortgage sustained where proceeds of sales were so applied; Lepin v. Coon, 54 Neb. 666, 74 N. W. 1080, power of sale did not per se render mortgage invalid; Wilson V. Sullivan, 58 N. H. 264, mortgage valid, where proceeds of sales were 80 applied, though power of sale did not so provide; Brackett v. Harvey, 91 N. Y. 221, where mortgagor was to sell and account for proceeds to mortgagee.

Chattel mortgage of stock of goods, authorizing retention of possession and sale of same for sole benefit of mortgagor (e. g., to replenish stock with new goods to which lien shall attach), on its face shows that its legal effect is to hinder and delay creditors; the law imputes to it a fraudulent purpose, regardless of parties' motives, and equity will not enforce it against creditors, pp. 523, 524, 526.

Cited and relied upon in following cases: Means v. Dowd, 128 U. 8. 284, 287, 32 L. 435, 436, 9 S. Ct. 68, 70, and Sparks v. Mack, 31 Ark. 670, 671, reviewing authorities, assignment, with beneficial interest reserved to insolvent debtor, held void; Crooks v. Stuart, 2 McCrary, 17, 18, 7 Fed. 803, 804, setting aside mortgage, where mortgagor continued business on his own account, with mortgagee's assent; Simon v. Openheimer, 20 Fed. 556, Rumsey v. Town, 20 Fed. 567, and Jewett v. Lundback, 5 S. Dak. 124, 58 N. W. 25, mortgage vold as to persons dealing with mortgagor, after its execution, and before recording; In re Bloom, 3 Fed. Cas. 726, and Lyon v. Council Bluffs Sav. Bank, 29 Fed. 573, 575, 576, 578, reviewing numerous authorities, Wilson v. Voight, 9 Colo. 617, 619, 13 Pac. 728, 729, Logan v. Logan, 22 Fla. 566, 567, 1 Am. St. Rep. 215, 216, Lewiston Nat. Bapk v. Martin, 2 Idaho, 705, 706, 23 Pac. 921, 922, Mobley v. Letts, 61 Ind. 20, Harman v. Hoskins, 56 Miss. 148, Leopold v. Silverman, 7 Mont. 275, 276, 277, 278, 16 Pac. 582, 583, Rocheleau v. Boyle, 11 Mont. 461, 462, 463, 466, 28 Pac. 875, 876, 877, Lutz v. Kinney, Nev. 49 Pac. 455, and Greeley v. Winsor, 1 S. Dak. 622, 48 N. W. 215, all following rule upon similar state of facts; In re Foster, 9 Fed. Cas. 525, such mortgage a fraudulent convey. ance, under bankrupt act; Wells v. Langbein, 20 Fed. 184, 185, reviewing cases, possession, taken under such mortgage, void against subsequent attachment; Benedict-Hall Co. v. Renfro Bros., 75 Ala. 124, 125, 127, 51 Am. Rep. 429, 430, 432, reviewing numerous authorities, mortgage void against creditors, where such power was necessarily implied; McDermott v. Eborn, 90 Ala. 260, 7 So. 752, and Eckman v. Munnerlyn, 32 Fla. 374, 13 So. 924, reviewing authorities; Stein v. Munch, 24 Minn. 394, Spiegelberg v. Hersch, 3 N. Mex. 283, 284 (205, 205), 4 Pac. 706, Bank v. Cooke, 3 Okl. 547, 549, 551, 41 Pac. 633, 634, and Orton v. Orton, 7 Or. 483, 33 Am. Rep. 720, cases in which mortgagor in possession continued sales for his own benefit under verbal agreement; Dougherty v. Bogy, Ind. Ter. -, 53 8. W. 549, where mortgage operated to delay creditors, actual purpose was immaterial; McCarthy v. Miller, 41 Mo. App. 205, though valid on face, court of equity declared mortgage fraudulent upon evidence; Leopold v. Silverman, 7 Mont. 275, 276 277, 278, 16 Pac. 582, 583, mortgage void, though mortgagor was to account for sales; Peiser v. Peticolas, 50 Tex. 646, 647, 32 Am. Rep. 623, 625, and Wineburgh v. Schær, 2 Wash. Ter. 334, 335, 6 Pac 800, 301, mortgage void, where sales were continued on belialf of mortgagor by tacit consent; McKibbon v. Brigham, 18 Utah, 83, 84, 55 Pac. 67, mortgage invalid, though net proceeds were to be appled on debt; Byrd v. Forbes, 3 Wash. Ter. 328, 13 Pac. 717, where sales were to be “ for sole use and benefit of mortgagee; ” Blakes lee v. Rossman, 43 Wis. 124, where one-half proceeds were left to mortgagor's disposition; First Nat. Bank v. Knowles, 67 Wis. 387. 28 N. W. 230, trust deed of personalty fraudulent; dissenting opinion in Frankhouser v. Ellett, 22 Kan. 152, majority sustaining mortgage authorizing sale with net proceeds to apply on debt. Cited also in notes in 99 Am. Dec. 550, 31 Am. Rep. 180, and 15 Am. St. Rep. 914, 915.

Distinguished in People's Say. Bank v. Bates, 120 U. S. 561, 30 L. 706, 7 S. Ct. 681, holding terms of mortgage contemplated no such result; Etheridge v. Sperry, 139 U. S. 272, 273, 275, 35 L. 174, 175. 11 S. Ct. 567, 568, mortgage valid where net proceeds of sales were paid to mortgagee; Huntley v. Kingman, 152 U. S. 533, 535, 88 L. 543, 14 S. Ct. 691, reviewing authorities, assignment for beneft of certain of creditors, reserving surplus, valid; Argall v. Seymour, 4 McCrary, 56, 57, 58, 48 Fed. 548, 549, 550, mortgage not void because mortgagee did not at once take possession; Miller v. Jones, 17 Fed. Cas. 323, 324, where mortgage contemplated no such result, retention and sale of goods did not make it fraudulent; Morse v. Riblet, 22 Fed. 502, and Hills v. Stockwell, 23 Fed. 436, under ruling of State court fraud in such case held question of fact; Maish v. Bird, 22 Fed. 577, 578, 579, 580, mortgage sustained where pro ceeds of sales were to be applied on the debt; First Nat. Bank v. Lindenstruth, 79 Md. 139, 47 Am. St. Rep. 368, 28 Atl. 808, mere retention of possession did not render mortgage fraudulent; Eph-. raim v. Kelleher, 4 Wash. 250, 251, 252, 253, 256, 29 Pac. 987, 988, 989, 18 L R. A. 618, 620, 621, 622, 624, 625, and n., reviewing cases, and sustaining mortgage where part of proceeds were to be applied on debt and part to replenishing stock. Criticised in Lister V. Simpson, 38 N. J. Eq. 441, reviewing cases, mortgage, with power to sell in usual course, not per se void. Criticised in note in 15 Am. St. Rep. 915.

Bankruptcy.- A mortgage, void as to other creditors, held void as to assignee of bankrupt mortgagor, p. 526.

Cited in In re Gurney, 7 Biss. 416, F. O. 5,873, where assignee avoided unrecorded bill of sale; Lane v. Innes, 43 Minn. 142, 45 N. W. 6, where assignee maintained action to set aside fraudulent conveyance.

Bankruptcy.- If holder of chattel mortgage, on its face vold as to creditors, seizes the goods within forbidden tine, transaction is in violation of preference clause of bankrupt act, p. 527.

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