LIST OF EDITORS

CONTRIBUTING TO BOOK FIVE.

W. A. SUTHERLAND,

OSCAR SUTRO,

J. P. BERNHARD,

C. HARDING TEBBS,

CURTIS HILLYER,

J. EARLY CRAIG,

CHARLES J. NEWMAN,

F. S. BRITTAIN,

CHARLES H. SQUIRE,

FRANK D. STRINGHAM,

SHEFFIELD S. SANBORN,

J. E. GARDNER.

NOTES

ON THE

UNITED STATES REPORTS.

XI HOWARD.

11 How. 1-22, 13 L. 579, GRATZ v. COHEN.

Fraudulent conveyances.- A deed will not be set aside for fraud where the grantor, though aged, was capable and intelligent, the deed was executed after due deliberation and upon advice of friends, the consideration was fairly adequate and there was a sufficient motive for its execution, pp. 17, 18, 19.

Cited, arguendo, in Doty v. Hubbard, 55 Vt. 282, holding instructions of court to jury on question of capacity to contract, not

error.

A deed executed by an executrix will not be invalidated for failure to recite that the consideration passed to her in her representative capacity, p. 20.

Wills.— Where an executrix is empowered under a will to change a bequest so as to give the principal instead of the income, such empowering is usually considered as the expression of the testator's wish to have it done, and if omitted, equity will consider it done, p. 21.

11 How. 22-33, 13 L. 587, UNITED STATES v. GIRAULT.

Official bond.- In an action brought against principal and sureties for breach of an official bond, a plea by the sureties that subsequent to the breach complained of, a new bond had been given and accepted in full discharge and satisfaction of the bond sued upon, is bad, as the new bond could be no satisfaction for damages that had accrued as the result of the breach of the first bond, p. 29.

Pleas, which go to the evidence upon which it is assumed that the plaintiff will rely at the trial, and not to breach charged, are bad, p. 29.

7

Cited and followed in Christy v. Scott, 14 How. 293, 14 L. 426, holding pleas bad where they would be appropriate objections to plaintiff's title at trial.

Estoppel. Sureties as well as principal are estopped from setting up the fraud of the principal for the purpose of disproving the evidence of his indebtedness, p. 30.

Cited and followed in Chicago v. Gage, 95 Ill. 630, 35 Am. Rep. 199, holding sureties concluded from showing that amount appearing as treasury balances were fictitious. See note discussing this subject in 37 Am. Rep. 235, 3 Am. St. Rep. 750, 10 Am. St. Rep. S49. See note, collecting cases, in 63 Am. St. Rep. 328.

Distinguished in Supreme Council, etc. v. Casualty, etc., Co., 63 Fed. 53, 54, 22 U. S. App. 439, holding defendant not estopped to show when items charged against principal were received.

Estoppel. Where returns by the principal cover transactions that occurred prior to the time of giving the bond upon which they were liable, sureties are not estopped from denying such returns, p. 30.

Cited and followed in Supreme Council Catholic Knights v. Casualty Co., 63 Fed. 54, 22 U. S. App. 439, holding defendant not estopped to show when items charged against principal were received. See note discussing this subject, in 37 Am. Rep. 235, 3 Am. St. Rep. 750, 10 Am. St. Rep. 849.

A general demurrer is bad if one of the several pleas demurred to is a good bar to the action. In such a case, judgment is properly rendered against the plaintiff, pp. 30, 31.

Cited and followed in Whitenack v. Philadelphia R. R., 57 Fed. 902, overruling general demurrer to several pleas, where one is good.

Judgment - Joint obligation.- In Mississippi, where an action is brought upon a joint note or bond, separate judgments may be taken against the several defendants, or judgments to be taken against some of the defendants and the proceedings discontinued as to others, p. 31.

Cited and followed in Coffee v. Bank of Tennessee, 13 How. 189, 14 L. 107, affirming judgment against one indorser in suit successfully demurred to as to all others.

Judgment Appeal and error.-- Judgment entered against two out of three joint defendants, without disposing of the case as to the third, is irregular and not final, and Supreme Court will dismiss the writ of error or appeal, for want of jurisdiction, and remand case to court below for further proceedings, pp. 31, 32.

Cited and followed in Holcombe v. McKusick, 20 How. 554, 15 L. 1021, refusing to review judgment where material allegations in replication remain undisposed of; Horhorst v. Hamburg-American,

etc., Co., 148 U. S. 264, 37 L. 444, 13 S. Ct. 590, dismissing appeal where record shows suit still pending against co-defendant. Cited, arguendo, in Commonwealth v. Foster, 122 Mass. 322, 23 Am. Rep. 330, holding judgment and sentence upon one count in indictment, disposed of others.

Distinguished in Potter v. Beal, 50 Fed. 863, 5 U. S. App. 49, holding order, directing disposal of papers where suit still pending, appealable; Standley v. Roberts, 59 Fed. 839, 19 U. S. App. 407, allowing appeal from order dismissing interpleaders from suit, though original suit still pending; Salmon v. Mills, 66 Fed. 33, 27 U. S. App. 732, holding orders dissolving attachment and judgment in favor of interpleader, appealable.

Miscellaneous.- Miscited in Bass v. Comstock, 38 N. Y. 22, to point that demurrer lies to general issue pleaded argumentatively.

11 How. 33-47, 13 L. 593, OAKEY v. BENNETT.

Bankrupt laws.- Where the proceedings in bankruptcy are regular and bona fide, the property of the bankrupt within the jurisdiction of the United States becomes vested in the assignee, pp. 43, 44.

Distinguished in Hampton v. Rouse, 22 Wall. 275, 22 L. 758, 11 Bank. Reg. 478, holding decree of bankruptcy did not pro facto take away bankrupt's right to redeem property; Ewing v. Van Wagenen, 6 Wash. St. 47, 32 Pac. 1011, holding property of bankrupt vested in receiver as soon as appointed.

Bankruptcy. A statutable conveyance of property can have no effect outside of the jurisdiction within which the property is situated, save that effect which the comity of nations gives it. Hence an assignment under the bankrupt laws of the United States does not of itself pass title to any property situated within a foreign State, such as Texas, before its admission to the Union, pp. 44, 45.

Cited and followed in Security Trust Co. v. Dodd, 173 U. S. 629, 19 S. Ct. 546, holding assignee of Minnesota corporation took such title to property in Massachusetts as Massachusetts courts choose to respect; In re Bugbee, 4 Fed. Cas. 610, 9 Bank. Reg. 262, holding assignee in bankruptcy might, under comity of nations, take property situated in foreign State; Goodsell v. Benson, 13 R. I. 252, holding debt not discharged by bankruptcy proceedings in England; Barnett v. Pool, 23 Tex. 520, holding title acquired by purchaser not enforceable against property in foreign State. Approved in Moseby v. Burrow, 52 Tex. 404, holding receiver incapable of acting as such outside of jurisdiction of court appointing him.

Every conveyance of real property must be governed by the laws of the State within which it is situated, p. 46.

Cited and followed in Doyle v. McGuire, 38 Iowa, 413, holding rule applicable to rights of parties and capacity to contract with reference to lands; Steevens v. Earles, 25 Mich. 42, holding bankrupt en

titled to residue of property after all debts paid; Barnett v. Pool, 23 Tex. 520, holding title did not pass where conveyance not made in conformity to laws of State where property situated.

Bankruptcy. Any title to property situated without the jurisdiction of the United States, given by assignee in bankruptcy, would be taken subject to the rights of the creditors of the State within which the property was situated, p. 45.

11 How. 47-62, 13 L. 599, UNITED STATES v. GUILLEM.

A neutral, residing in a hostile country, throws off the hostile character impressed upon him and his property when he leaves such belligerent country. From such time he is entitled to the rights and privileges of a neutral, p. 60.

Cited, arguendo, in United States v. One Hundred Barrels of Cement, 27 Fed. Cas. 294, holding Confederate subject estopped from denying lawfulness of captures on high sea.

The property of a neutral is not liable to condemnation when such neutral had not knowledge that the vessel upon which he had embarked was going to attempt to break the blockade, pp. 61, 62. Distinguished in The Hiawatha, Blatchf. Pr. 20, F. C. 6,451, condemning vessels which left port after period of exemption.

11 How. 63-104, 13 L. 605, UNITED STATES v. BOISDORE.

Contracts. A written application made to, and the granting of such application by the government, in an instrument containing restrictions, constitute but one contract, and the facts recited therein must be taken to be true, p. 87.

Cited and followed in Glenn v. United States, 13 How. 256, 14 L. 135, Hemp. 400, F. C. 5,481, stipulation in contract taken as true.

Contracts are to be construed according to the laws and with reference to usages and customs of the place where and when made, p. 88.

Spanish grants.- Federal courts sitting in equity, in passing upon the validity of a grant claimed under Spanish authority, will consider, whether under the rules and laws of Spain, the conscience of the king is so affected as to make him a trustee for the claimant, and to hold the land so claimed as charged with an equity as amounting to a severance of it from the public domain, p. 88.

Spanish survey. The uniform method of surveying Spanish concessions was to establish, first a front line, and then from each corner of said front line, to run lines perpendicular, p. 90.

Evidence. It has been the uniform practice of the Federal courts to hold a deposition, certified to by the surveyor-general of a Span