Bankruptcy. In order to bring security for debt given within four months of bankruptcy, within prohibition of bankruptcy law, It is necessary that all prescribed conditions should occur, p. 177.

Doctrine relied upon in Harmanson v. Bain, 1 Hughes, 201, F. C. 6,072, dismissing bill to set aside fraudulent transfers for want of necessary parties; Matthews v. Westphal, 1 McCrary, 447, 48 Fed. 665, holding chattel mortgage given more than four months prior to filing of petition not fraudulent; So. Car. Loan, etc., Co. v. McPherson, 26 S. C. 438, 2 S. E. 271, holding failure to record mortgage did not make it fraudulent within meaning of bankruptcy act.

Bankruptcy.—Exchange of securities within four months is not fraudulent preference within meaning of bankruptcy act, if security given up is a valid one when exchange is made, and of equal value with one substituted for it, pp. 177, 178.

Applied in Sawyer v. Turpin, 91 U. S. 121, 23 L. 237, sustaining substitution of chattel mortgage for bill of sale, though latter was never recorded; Douglass v. Vogeler, 6 Fed. 57, holding exchange of mortgages valid as against assignee; Hutchinson v. Murchie, 74 Me. 191, substitution of mortgage for bill of sale affecting same property; Stewart v. Hopkins, 30 Ohio St. 532, holding payment of mortgage by insolvent not a preference where mortgage gave full security; Colt v. Sears Com. Co., 20 R. I. 65. 37 Atl. 312, holding transfer of indebtedness and securities to another not fraudulent preference; Akers v. Rowan, 33 S. C. 474, 12 S. E. 173, 10 L. R. A. 716, and n., where mortgage was merely renewed, held valid.

Distinguished in Morey v. Milliken, 86 Me. 481, 30 Atl. 108, holding replacing of securities already lost not an exchange, and. therefore, fraudulent.

Bankruptcy.-Assignee in bankruptcy takes estate subject to rights, legal and equitable, of all other parties, p. 178.

Cancellation of instruments.- Equity will annul cancellation of notes, etc., and revive securities, where there has been failure of consideration, fraud, or mistake, p. 178.

Usury. If security, fatally tainted with usury, and founded upon prior one free from it, but given up and cancelled, is declared void, prior one will be revived, p. 179.

Approved and followed in Quint v. First Nat. Bank, Kau. App. 58 Pac. 1012, holding usurious interest in renewal notes did not affect legal interest previously charged; Rountree v. Brinson, 98 N. C. 110, 3 S. E. 748, allowing plaintiff to recover on former debt, though bond sued on was usurious; dissenting opinion in Frederick Inst. v. Michael, 81 Md. 508, 32 Atl. 342, 33 L. R. A.

636, and n., majority holding surety's obligation on original note discharged by substitution of securities with knowledge of debtor's financial condition.

22 Wall. 180-198, 22 L. 863, THE ELGEE COTTON CASES.

War. No one is allowed to sue in Court of Claims for proceeds of captured or abandoned property, unless he can prove ownership, his right to proceeds, and that he never gave aid or comfort to the Rebellion, p. 186.

Affirmed in Scudder v. Ames, 142 Mo. 243, 43 S. W. 675, action over same subject-matter.

Sale.— Whether property passes or not is dependent upon intention of parties to contract to be gathered from its language, p. 187.

Cited with approval in Hatch v. Oil Co., 100 U. S. 136, 25 L. 558, holding intention proved that title to staves should pass upon being piled and counted; Byles v. Colier, 54 Mich. 6, 19 N. W. 567, holding title might have passed without delivery, and even though further inspection was necessary; Rail v. Little Falls, etc., Co., 47 Minn. 425, 50 N. W. 472, holding property in logs vested without delivery or payment.

Sale. When by agreement vendor is to do anything to goods to put them into deliverable state, performance of those things shall be taken as condition precedent to vesting of property p. 188. Cited in Commonwealth v. Greenfield, 121 Mass. 41, holding title to liquor did not pass until delivered at L.

Sale. Where anything remains to be done to goods to ascertain price, as by weighing, measuring, etc., performance of these things shall be condition precedent to transfer of property, although individual goods are ascertained, e. g., cotton to be paid for when weighed, pp. 188, 189.

Followed in Blackwood v. Cutting, etc., Co., 76 Cal. 217, 218, 18 Pac. 251, 9 Am. St. Rep. 203, 204, holding no sale until apricots could be identified and weighed or measured; New England, etc., Co. v. Standard, etc., Co., 165 Mass. 329, 52 Am. St. Rep. 518, 43 N. E. 112, collecting authorities, holding title to wool did not pass until separated from larger mass.

Sale. Where buyer is by contract bound to do anything, as a consideration, either precedent or concurrent, on which passing of property depends, title will not pass until condition be fulfilled, though buyer has possession, p. 188.

Applied in Beardsley v. Beardsley, 138 U. S. 266, 34 L. 929, 11 S. Ct. 319, executed contract of sale of stock with reservation of security by vendor: Hull v. Pitrat, 45 Fed. 100, holding conveyance

of land free from incumbrance condition precedent to passing of title to patent; Daugherty v. Fowler, 44 Kan. 632, 25 Pac. 41, 10 L. R. A. 316, holding payment condition concurrent to passing of title to butterine.

Sale.- Property may be in p. 194.

one person and risk in another,

Sale. Earnest money is of small importance in consideration of its effect on transfer of title, p. 195.

Miscellaneous. Cited as res adjudicata in suits over same subJect-matter, Bouchard v. Parker, 32 La. Ann. 539, and Scudder v. Ames, 142 Mo. 240, 43 S. W. 674.

22 Wall. 198-208, 22 L. 769, FRETZ v. STOVER.

Appeal and error.- Objection that there is no replication in record cannot be made for first time on appeal to Supreme Court, p. 204.

Approved in Southern R. R. Co. v. Rhodes, 86 Fed. 424, presuming on appeal that pleadings were complete where part of record was destroyed; Woodward v. Sloan, 27 Ohio St. 597, holding it too late to insist that there was no denial of adverse possession set up in answer.

Equity. No formal replication is required to avoid effect of answer to bill of revivor, for no new defenses set up in such answer can be considered, p. 204.

Approved in Mason v. Hartford, etc., R. R. Co., 19 Fed. 56, allowing bill of revivor without considering merits; Newcombe v. Murray, 77 Fed. 493, determining necessary parties in bill to revive. Cited generally in Mackaye v. Mallory, 79 Fed. 2, 45 U. S. App. 741.

Principal and agent.— Agent in Virginia has no authority to take Confederate paper worthless in Pennsylvania, to discharge debts due his principal, a citizen of Pennsylvania, p. 206.

Approved in Insurance Co. v. Davis, 95 U. S. 430, 432, 24 L. 455, holding tender of premium to one who had ceased to act as agent during war, not good; McBurney v. Carson, 99 U. S. 572, 25 L. 382, and Opie v. Castleman, 32 Fed. 514, holding devisees not bound by act of executor in accepting Confederate money in payment of land; Lamar v. Micou, 112 U. S. 476, 28 L. 760, 5 S. Ct. 232, holding investment in Confederate currency by guardian unlawful; Dorr v. Gibboney's Exrx., 3 Hughes, 386, 390, F. C. 4,006, holding trustee could not pay debt to creditor residing in loyal State with Confederate notes; Bynum v. Barefoot, 75 N. C. 581, holding judgment could not be paid in Confederate money during war. Cited, arguedo, in Hendry v. Benlisa, 37 Fla. 622, 20 So. 802, 34 L. R. A. 286. See notes, 15 Am. Dec. 133, and 47 Am. Dec. 848.

Quailfied and explained in Baldy v. Hunter, 171 U. S. 402, 18 S. Ct. 895, holding, under circumstances of case, investment by guardian in Confederate currency not unlawful; Hyatt v. McBurney, 18 S. C. 221, holding executor legal owner, with full power to receive Confederate money in payment of notes. Limited in Rodgers v. Bass, 46 Tex. 518, holding agent authorized to receive payment of note in Confederate money, his principal being resi dent of Confederacy.

22 Wall. 208-215, 22 L. 727, SWEENEY v. LOMME.

Practice. Supreme Court will adopt ruling of State court on question as to whether obligee in bond, or real party in interest, is proper plaintiff in action on bond, p. 213.

Followed in Parrott v. Scott, 6 Mont. 344, 12 Pac. 765, allowing action by real party in interest without assignment from sheriff; generally in Wise v. Jefferis, 51 Fed. 644, 7 U. S. App. 275, replevin against sheriff.

Replevin.- Judgment in replevin in State court is not void because it is not alternative judgment for value or return of property, p. 213.

Applied in Robbins v. Foster, 20 Mo. App. 523, holding judgment ID replevin, for return of property only, not subject to collateral attack.

Distinguished in New England, etc., Co. v. Bryant, 64 Minn. 259, 66 N. W. 975, holding sureties on bond not liable where judgment was for value only.

Replevin.- Surety on replevin bond is liable if property was not returned in accordance with judgment establishing one of the conditions of his undertaking, pp. 213, 214.

Approved in Lee v. Grimes, 4 Colo. 188, holding sureties concluded by judgment in replevin suit.

Replevin.-Where one fails in replevin suit and does not return property, his sureties on replevin bond cannot claim that plaintiff in suit on bond can only recover value of interest of attachment debtor in property; nor is it necessary that execution first issue to retake property, p. 214.

Certiorari - Where, on appeal to Supreme Court of territory, no Judgment is found in record of lower court, court may, at the argument, give parties time to perfect record by certiorari, p. 215.

22 Wall. 215-231, 22 L. 850, BAILEY v. MAGWIRE.

Taxation.- Power to tax rests upon necessity, and is inherent in every sovereignty, p. 226.

Taxation. Unless restrained by State Constitution, legislature may contract to exempt property from taxation, either in per petuity or for limited period, p. 226.

Taxation. There is no presumption in favor of relinquishment of taxing power; reasonable doubts are resolved in favor of State, and language claimed to exempt property from taxation must leave no room for controversy, p. 226.

Cited and applied in Central R. R., etc., Co. v. Georgia, 92 U. S. 675, 23 L. 761, and St. Louis, etc., Ry. Co. v. Berry, 41 Ark. 517, reviewing authorities, where consolidation did not extend exemption to corporation not possessing immunity; Louisville, etc., R. Co. v. Kentucky, 161 U. S. 686, 40 L. 854, 16 S. Ct. 717, reviewing authorities, holding railroad not authorized to purchase competing line; Dauphin, etc., Ry. Co. v. Kennerly, 74 Ala. 589, holding company not exempt from taxation; Kentucky Cent. R. Co. v. Bourbon County, 82 Ky. 502, exemption from State taxation held not to affect taxation by county; Bangor v. Masonic Lodge, 73 Me. 433, 40 Am. Rep. 370, holding Masonic lodge not exempt as charitable institution; Yazoo, etc., Ry. Co. v. Thomas, 65 Miss. 562, where, though exempt after completion, railroad was not so during construction; Boody v. Watson, 63 N. H. 321, statute authorizing exemption for ten years, held not to authorize exemption for second period; Dow v. Railroad, 67 N. H. 48, 36 Atl. 534, reviewing authorities, and applying principle to repealing power; Judge v. Spencer, 15 Utah, 249, 48 Pac. 1100, holding mortgages not exempt.

Taxation. Act granting railroad immunity from taxation for certain period, after which it should "be subject to taxation," etc., did not exempt from any tax whatever, after expiration of that period, pp. 227, 228.

Approved in dissenting opinion in Savannah v. Jesup, 106 U. 8. 571, 27 L. 278, 1 S. Ct. 518, majority holding statutes exempted railroad from municipal tax.

Distinguished in Savannah v. Jesup, 106 U. S. 569, 27 L. 278, 1 S. Ct. 517, holding property of railroad exempt from municipal tax.

Taxation.- Where, in amendment to charter of railroad company, special provision is made for ascertaining tax due State, silence on subject of taxation for other purposes cannot be construed as waiver of State's rights in that regard, pp. 228, 229.

Cited in Railroad Commission Cases, 116 U. S. 327, 29 L. 643, 6 S. Ct. 342, reviewing authorities, authority granted company to fix rates did not deprive State of right to pass on their reasonableness.

Distinguished in Pingree v. Michigan Cent. R. Co., 118 Mich. 329, 76 N. W. 640, reviewing authorities, and holding State had conferred contract right on company to fix tolls.

Taxation. Provision in charter of railroad company requiring president to make sworn statement of cash value of its property, held not to deprive State of right to change manner of assessment. p. 230.