Distinguished in United States v. Southern Pac. R. R. Co., 117 Fed. 552, holding Southern Pacific Company never acquired any interest in publie lands within thirty-mile limits of grant to Atlantic & Pacific Company in 1870.

Two companies taking land under same act take undivided moiety in overlapping claims.

Approved in United States v. Southern Pacific R. R. Co., 223 U. S. 569, 572, 56 L. Ed. 555, 556, 32 Sup. Ct. 326, under main line grant of 1866, Southern Pacific may select lieu lands within primary limits of grant made to Atlantic and Pacific Railroad by same act and forfeited under act of 1886; United States v. Southern Pac. R. Co., 167 Fed. 514, 93 C. C. A. 146, and United States v. Southern Pac. R. Co., 152 Fed. 312, both holding right of Southern Pacific to select lieu lands within indemnity limit of its grant is not affected by fact that lands were within primary limits of grant to Atlantic and Pacific Company and were restored to public domain by forfeiture of that grant; Southern Pac. R. Co. v. Arnold, 162 Cal. 731, 124 Pac. 832, Southern Pacific Company has general right to select indemnity lands under main line grant within place limits of Atlantic and Pacific primary grant forfeited by act of Congress of 1886; Southern Pac. R. R. Co. v. Bovard, 4 Cal. App. 78, 87 Pac. 203, holding Southern Pacific may select indemnity lands within place limits of forfeited grant to Atlantic and Pacific Railway; Stoneroad v. Beck, 16 N. M. 774, 120 Pac. 906, intervener and appellee holding by same act of Congress have equal, undivided moiety of overlapping lands of Mexican grant.

Distinguished in Jones v. St. Louis Land etc. Co., 232 U. S. 360, 38 L. Ed. 637, 34 Sup. Ct. 419, holding act of 1860 confirming Mexican land grants was in discharge of treaty obligations and not gratuity, as in case of railroad grant acts, and overlapping rights in grants confirmed are not to be shared equally; Southern Pacific R. R. Co. v. United States, 223 U. S. 565, 56 L. Ed. 552, 32 Sup. Ct. 325, Southern Pacific is not entitled under branch line land grant of 1871 to select lieu lands within indemnity limits of grant to Atlantic and Pacific Railroad by act of 1866, forfeited by act of 1886.

Right, question or fact directly in issue cannot be disputed in subsequent suit.

Approved in United States Min. Co. v. Lawson, 134 Fed. 776, 67 C. C. A. 587, grant of patent to owner of one of two overlapping claims does not estop owner of other from asserting priority of location; Southern Pacific Co. v. Lipman, 148 Cal. 489, 491, 492, 494, 83 Pac. 449, 450, 451, on issue involving railroad's right to land, United States Supreme Court decision holding company and United States tenants in common is available on appeal; Dodd v. Pittsburg etc. R. Co., 127 Ky. 784, 16 L. R. A. (N. S.) 898, 106 S. W. 793, in minority stockholders' suit to compel defendant to satisfy judgment against corporation, where defend

939

NOTES ON U. S. REPORTS.

183 U. S. 535-558

ant relies on decision denying relief to stockholders on another judgment in action on contract, reply that recovery is based on tort is available under section 101 of Civil Code of Practice authorizing pleading of estoppel.

183 U. S. 535–545, 46 L. Ed. 315, 22 Sup. Ct. 172, UNITED STATES TRUST CO. v. NEW MEXICO.

Agreed statement of facts must contain ultimate facts.

Approved in Gonzales v. Buist, 224 U. S. 131, 56 L. Ed. 695, 32 Sup. Ct. 463, on appeal from Supreme Court of Porto Rico, agreed statement of facts reciting testimony brings nothing before court to review; Neely Electric Construction etc. Co. v. Browning, 25 App. D. C. 86, dismissing appeal where record in action at law tried to court without jury was merely statement of testimony and proceedings certified by trial court to be accurate with no exceptions or requests for finding of ultimate facts.

Court's adjudication in favor of petition for back taxes establishes validity of assessments.

Approved in Yazoo etc. R. R. Co. v. Adams, 81 Miss. 114, 32 South. 946, holding assessment of back taxes on land which escaped taxes is valid though the property has changed hands.

Distinguished in Trust Co. of America v. Norfolk etc. Ry. Co., 183 Fed. 810, denying injunction to restrain sale of property purchased in foreclosure proceedings against railway for payment of judgment recovered in action by passenger against railroad for assault and battery by conductor.

183 U. S. 545-552, 46 L. Ed. 321, 22 Sup. Ct. 225, EX PARTE WILDER'S STEAMSHIP CO.

Appeals from Hawaiian courts are governed by rules of appeal from courts of States.

Approved in Equitable Life Assur. Society v. Brown, 187 U. S. 309, 47 L. Ed. 191, 23 Sup. Ct. 123, holding under act of April 30, 1900, providing government for Hawaii, jurisdiction of Supreme Court to review territorial decisions is same as that for review of State decisions.

Jurisdiction of Federal Circuit Court of Appeals to review criminal cases decided in territorial courts. Note, 9 Ann. Cas. 395.

183 U. S. 553-558, 46 L. Ed. 324, 22 Sup. Ct. 238, NUTTING v. MASSANUTTING CHUSETTS.

State may impose fine for negotiating with insurance company not authorized to transact business within State.

Approved in Thames etc. Marine Ins. Co. v. United States, 237 U. S. 25, Ann. Cas. 1915D, 1087, 59 L. Ed. 824, 35 Sup. Ct. 496, taxes under War Revenue Act of 1898, on policies of marine insurance on exports are void, and recoverable under Refunding Act of 1902; New York Life

Ins. Co. v. Deer Lodge County, 231 U. S. 502, 508, 58 L. Ed. 335, 337, 34 Sup. Ct. 167, upholding statute of Montana imposing tax on insurance corporation doing business in State measured by excess of premiums over losses and expenses within State; Delamater v. South Dakota, 205 U. S. 102, 10 Ann. Cas. 733, 51 L. Ed. 730, 27 Sup. Ct. 447, upholding law of South Dakota of 1901 imposing annual license charge on traveling salesmen selling or soliciting orders for intoxicating liquors within State; Danciger v. Stone, 187 Fed. 860, nonresident liquor dealer obtaining orders for liquor in Oklahoma by means of advertisements sent through mail violates law prohibiting advertising or soliciting sale of intoxicating. liquors within State and is not entitled to injunction to restrain State officers from executing search-warrant with reference to liquor shipped into State; Charleston etc. Ry. Co. v. Anchors, 10 Ga. App. 325, 73 S. E. 552, Federal Employers' Liability Act does not apply to action for injuries to foreman of gang engaged in relaying rails of interstate track; Rose v. State, 4 Ga. App. 608, 62 S. E. 126, under provisions of Wilson law of 1890, State statute prohibiting soliciting orders for intoxicating liquors within State is not void as to orders solicited within State, although seller and liquor are both in another State; Swing v. Hill, 165 Ind. 412, 75 N. E. 659, in suit to collect insurance under contract made outside State is no defense that insurance company had not complied. with State statute; State v. J. P. Bass Pub. Co., 104 Me. 295, 20 L. R. A. (N. S.) 495, 71 Atl. 897, statute of 1903 forbidding publication of advertisements of sale or keeping for sale of intoxicating liquors is valid as applied to advertising for sale of liquor kept without State; Stone v. Old Colony St. Ry. Co., 212 Mass. 464, 99 N. E. 220, receiver of insolvent foreign corporation may enforce in this State assessment against holder of policy issued in foreign State, though policy could not have been validly issued within State; Squire v. Tellier, 185 Mass. 21, 102 Am. St. Rep. 322, 69 N. E. 313, upholding Stats. 1903, c. 415, § 1, p. 389, prohibiting, as against creditor, sale of stock of merchandise other than in course of trade; New York Life Ins. Co. v. Deer Lodge County, 43 Mont. 249, 115 Pac. 912, upholding provision of code requiring insurance companies. transacting business within State to pay tax measured by excess of premiums over losses and expenses within State; Williams v. State, 5 Okl. Cr. 209, 114 Pac. 625, and State ex rel. West v. State Capital Co., 24 Okl. 261, 103 Pac. 1025, both upholding statute of 1907-1908 enacted after enactment of Wilson law of 1890 by Congress, prohibiting advertising for sale or soliciting orders for intoxicating liquor within State; Edmanson v. State, 64 Tex. Cr. 428, 429, 142 S. W. 895, upholding act of 31st legislature taxing occupation of taking orders for sale of intoxicating liquors in counties adopting local option law; International TextBook Co. v. Peterson, 133 Wis. 310, 14 Ann. Cas. 965, 113 N. W. 732, contract of Pennsylvania corporation accepted and to great extent performed in Pennsylvania including transfer of articles for use in instruc

941

NOTES ON U. S. REPORTS.

183 U.S. 559-572

tion by correspondence is void for failure of corporation to comply with statute of 1898, relating to foreign corporations.

Location of insured property within State preventing action by foreign insurer on contract made in another. Note, 9 L. R. A. (N. S.) 418.

A contract of marine insurance is not an instrumentality of commerce. Approved in dissenting opinion in Lottery Case, 188 U. S. 370, 47 L. Ed. 506, 23 Sup. Ct. 332, majority holding carriage of lottery tickets between, States by express carrier constitutes interstate commerce which may be regulated by Congress.

Intervention in Federal courts. Note, Ann. Cas. 1913D, 1039.

183 U. S. 559-562, 46 L. Ed. 328, 22 Sup. Ct. 224, MINDER v. GEORGIA. Refusal of State court to continue criminal case on account of absence of nonresident witnesses is not denial of due process of law or of equal protection.

Approved in In re Finley, 1 Cal. App. 211, 81 Pac. 1046, upholding Pen. Code, § 246, punishing with death any prisoner serving life sentence who commits assault with deadly weapon.

Depositions in criminal cases. Note, Ann. Cas. 1916A, 1067, 1091. Competency, in criminal cases, of former testimony of absent witness. Note, 1 Ann. Cas. 471.

183 U. S. 563-572, 46 L. Ed. 331, 22 Sup. Ct. 84, McKINLEY CREEK MIN. CO. v. ALASKA UNITED MINING CO.

Location of mining claim by alien is voidable and not void.

Approved in Shea v. Nilima, 133 Fed. 215, 66 C. C. A. 263, agreement between two aliens to acquire mining claim for joint benefit enforceable by one subsequently declaring intention to become citizen; Tyee Consol, Min. Co. v. Langstedt, 1 Alaska, 451, miner acquires by location present vested estate in claim which he may defend by ejectment; Hankins v. Helms, 12 Ariz. 181, 100 Pac. 461, holding in action to quiet title to mining claim, citizenship of substituted plaintiff not put in issue in trial court is waived; Matlock v. Stone, 77 Ark. 199, 91 S. W. 555, on appeal in action on adverse in patent proceeding, finding of lower court that locator is citizen is binding where no evidence in record to show contra; Holdt v. Hazard, 10 Cal. App. 443, 102 Pac. 541, question of qualification of locator of mining claims, so far as validity is affected by alienage, cannot be determined in action between private individuals wherein United States is not made party; Riverside Sand etc. Mfg. Co. v. Hardwick, 16 N. M. 485, 120 Pac. 325, in ejectment to recover mining claim to which government is not party, defendant is not entitled to urge defense that claim was located by dummies for plaintiff's benefit; Stewart v. Gold & Copper Co., 29 Utah, 447, 110 Am. St. Rep. 719, 82 Pac. 475, location of claim by alien is cured by grant to citizen as against subse

quent locator; Stolp v. Treasury Gold Min. Co., 38 Wash. 623, 80 Pac. 818, in contest for claim, admission by defendant that at time of making location plaintiff was citizen establishes prima facie case of citizenship.

Distinguished in Duncan v. Eagle Rock Gold Min. etc. Co., 48 Colo. 573, 574, 139 Am. St. Rep. 288, 111 Pac. 590, alien cannot make valid mining location.

Sufficient location of mining claim is made by notices on stump in creek. Approved in Smith v. Cascaden, 148 Fed. 797, 78 C. C. A. 458, upholding sufficiency of notice describing location as "13A below Discovery on Clearly creek," showing Alaska system of locations; Oregon King Min. Co. v. Brown, 119 Fed. 55, 55 C. C. A. 626, holding under Rev. Stats., § 2324, any marking of mining claim from which boundaries can be readily traced is sufficient; Anvil Hydraulic Co. v. Scandia Min. Syndicate, 4 Alaska, 481, where locator of placer mine set upper and lower center stake, placing location notice upon one stake, describing claim by metes and bounds and tying it to No. 4 Creek Claim, location was valid; Overgaard v. Westerberg, 3 Alaska, 187, 188, holding in ejectment to recover placer mining claim, marking of boundaries was insufficient and there was no actual discovery within limits of claim located; Kern Oil Co. v. Crawford, 134 Cal. 301, 302, 76 Pac. 1112, 1113, posting notice of claim to quarter section setting up stakes to mark supposed corners establishes claim to entire section where stake did not include true boundary.

Distinguished in Cloninger v. Finlaison, 230 Fed. 100, certificate of location of placer claim mentioning Bear Creek, but not stating that claim was located on Bear Creek, was insufficient; Worthen v. Sidway, 72 Ark. 223, 79 S. W. 780, notice posted on tree claiming exclusive right to prospect on certain quarter-section without marking boundaries is insufficient.

Location of mining claim. Note, 7 L. R. A. 814, 839.

Findings of fact are conclusion on appeal where evidence is conflicting. Approved in Manley v. Boone, 159 Fed. 637, 87 C. C. A. 197, under Alaska Code, partition of mining property must be made unless it cannot be made without great prejudice to owner.

Distinguished in Shields v. Mongollon Exploration Co., 137 Fed. 547, 70 C. C. A. 123, where defendant pleads equitable title in ejectment, setting up mutual mistake in deed, court's findings not conclusive on appeal.

183 U. S. 572-582, 46 L. Ed. 335, 22 Sup. Ct. 91, MAESE v. HERMAN.

Town and its inhabitants are entitled to patent to land under act of Congress of 1869.

Approved in Priest v. Board of Trustees of Town of Las Vegas, 232 U. S. 614, 618, 58 L. Ed. 756, 758, 34 Sup. Ct. 443, decree in suit to quiet title against owners and "unknown claimants" is not binding upon town