proceeds of sales of mortgaged property cannot maintain suit in Federal court if his assignor was not competent to do so; Simons v. Ypsilanti Paper Co., 33 Fed. 194, holding assignee of claim for damages for refusal to accept and pay for merchandise purchased, can only maintain suit in court in which his assignor might have proceeded; Jackson v. Pearson, 60 Fed. 117, where suit was brought by assignee of county, bonds given in aid of construction of railroad, and dismissed because assignor was citizen of same State as defendants; to same effect, Coler v. Grainger County, 74 Fed. 22, 43 U. S. App. 252.

Cited, without special application, Bernards Township v. Stebbins, 109 U. S. 354, 27 L. 961, Mississippi Mills v. Cohn, 150 U. S. 208, 37 L. 1055, 14 S. Ct. 77, Mexican Nat. Ry. Co. v. Davidson, 157 U. S. 205, 39 L. 674, 15 S. Ct. 564, and Farmers' Trust Co. v. McKinney, 6 McLean, 8, F. C. 4,667.

Distinguished, Deshler v. Dodge, 16 How. 631, 14 L. 1088, where assignee of bank notes brought action of replevin for package in Circuit Court, although his assignor could not have done so; White v. Vermont, etc., Ry. Co., 21 How. 576, 16 L. 223, and Keene Bank v. Lyon County, 90 Fed. 530, affirming right of assignee of negotiable instrument under facts in case to maintain suit thereon in Federal court when his assignor could not have done so; Ober v. Gallagher, 93 U. S. 205, 23 L. 831, where assignee had reduced his claim to a judgment in State court before proceeding in Federal; Tredway v. Sanger, 107 U. S. 324, 27 L. 583, on ground that act of 1875 removes the restriction in suits on 'promissory notes, negotiable by the law merchant," to same effect; Mersman v. Werges, 112 U. S. 143, 28 L. 643, 5 S. Ct. 67, reversing S. C., 1 McCrary, 534, 3 Fed. 383; Seckel v. Backhaus, 7 Biss. 357, F. C. 12,599, and Whiting v. Wellington, 10 Fed. 815, ruling similarly.

Chose in action. A debt secured by bond and mortgage is a chose in action, p. 450.

Cited with approval, Emigh v. Chamberlain, 1 Biss. 369, F. C. 4,447, and Thaxter v. Hatch, 6 McLean, 69, F. C. 13,866.

Mortgage.- In equity, the debt or bond is treated as the principal, and the mortgage as the incident, p. 450.

Cited in Willis v. Farley, 24 Cal. 497, where court holds mortgage is barred by statute of limitations when debt is barred.

8 How. 451-470, 12 L. 1151, LE ROY v. BEARD.

Pleading.— Action in New York on Wisconsin deed not sealed as required by New York laws, must be action appropriate to unsealed instruments, p. 464.

Cited in Pritchard v. Norton, 106 U. S. 133, 27 L. 107, 1 S. Ct. 109, and Urton v. Hunter, 2 W. Va. 88, as authority for holding the lex

8 How. 451-470

Notes on U. S. Reports.


fori governs in matters of procedure and remedy; Willard v. Wood, 135 U. S. 313, 34 L. 213, 10 S. Ct. 832, whether remedy of mortgagee against grantee of mortgagor is at law or in equity, is determined by lex fori; Hoadley v. Northern Trans. Co., 115 Mass. 307, 15 Am. Rep. 108, holding lex fori governs as to evidence required to show shipper assented to terms of contract of shipment, when it differs from lex loci contractus; Davis v. Judd, 6 Wis. 88, holding action of covenant cannot be maintained on instrument not under seal. Cited, arguendo, Thomas v. Am. Mort. Co., 47 Fed. 554, 12 L. R. A. 686, and n., without special application.

Deeds - Breach of warranty.— It is not necessary to allege an eviction in an action for breach of covenant of seisin, p. 465.

Cited in Wright v. Phipps, 90 Fed. 567, and Curtis v. Brannon, 98 Tenn. 157, 38 S. W. 1073, as authority for holding covenants of seisin are broken, if at all, by delivery of deed; to same effect, Lowry v. Hurd, 7 Minn. 362; Gale v. Frazier, 4 Dak. 202, 30 N. W. 140, holding covenant of seișin does not run with land and is not assignable.

Power of sale to an agent is to be construed as intending to confer all the usual means or sanction the usual manner of performing what is intrusted to the agent, p. 468.

Cited in Very v. Levy, 13 How. 359, 14 L. 179, holding where words prescribing mode by which power is to be effected are ambiguous, but reasonable attention to same would bear interpretation given by agent and third party, the principal is bound by such interpretation; Reed v. Welsh, 11 Bush, 457, to same effect; Runkle v. Burnham, 153 U. S. 224, 38 L. 697, 14 S. Ct. 840, holding witness may be asked as to relations of parties at time of execution of power, although his answers may have bearing on obligations arising under written contract; Starr v. Stark, 2 Sawy. 625, F. C. 13,317, holding subsequent acts of recognition may be considered as showing construction by parties themselves; Howard v. Munford, 80 Ga. 169, 4 S. E. 909, where bankers were held to be authorized to make payment in question; Waddill v. Sebree, 88 Va. 1016, 29 Am. St. Rep. 769, 14 S. E. 851, holding inquiry as to whether acts done were within powers is not confined to written instrument confirming same. Referred to without special application, Lawrence v. Randall, 47 Ala. 246.

Power of attorney authorizing agent “to contract for sale in whole or part on terms he deems advantageous, and execute deeds," gives attorney authority to make deed with covenant of seisin, p. 469.

Cited in Keith v. Herschberg Co., 48 Ark. 147, 2 S. W. 779, where contract of drummer not to sell certain class of goods to any other merchant in town except purchaser, was held binding on his principal; Bronson v. Coffin, 118 Mass. 161, and Wilson v. McEwan, 7 Or.

105, where this view was adopted in similar cases, holding principal bound by covenant of warranty made by agent; Carson v. Smith, 5 Minn. 91, 77 Am. Dec. 544, where under power conferred it was held agent was authorized to sell on credit; Schultz v. Griffin, 121 N. Y. 299, 18 Am. St. Rep. 828, 24 N. E. 481, holding a power without restriction to sell and convey real estate gives authority to convey with warranty. Cited, arguendo, Blake v. Pine Mountain Co., 76 Fed. 654, 43 U. S. App. 490, application vague; Backman v. Charlestown, 42 N. H. 132.

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Miscellaneous.- Cited as to definition of word terms as used in contents, in Hutchinson v. Lord, 1 Wis. 313, 60 Am. Dec. 387, Keep v. Sanderson, 2 Wis. 60, 60 Am. Dec. 405, and Cribben v. Ellis, 69 Wis. 347, 34 Ń. W. 158.

8 How. 470-489, 12 L. 160, PRENTICE v. ZANE.

New trial.- Supreme Court will remand cause for venire de novo, where, in special verdict, all essential facts are not distinctly found by jury, p. 484.

Cited and followed, Graham v. Bayne, 18 How. 63, 15 L. 267, while venire de novo was awarded because special verdict did not find facts but stated evidence thereof; Ward v. Cochran, 150 U. S. 608, 37 L. 1198, 14 S. Ct. 233, where judgment founded on special verdict in ejectment proceeding was held erroneous; Holt v. Van Eps, 1 Dak. 212, 46 N. W. 691, a verdict finding on part of issues only is insufficient. Cited, arguendo, Suydam v. Williamson, 20 How. 441, 15 L. 983, dissenting opinion, Stewart v. Salamon, 97 U. S. 364, 24 L. 1045, an exception to general rule that Supreme Court is always bound to affirm, modify or reverse judgments brought up on appeal. Cited, Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 501, 27 L. 342, 1 S. Ct. 592, without special application. Explained in Clement v. Insurance Co., 7 Blatchf. 57, F. C. 2,882.

Appeal and error.- Where cause is submitted to court below, under an agreement that the court may draw inferences of fact not found by the jury, the Supreme Court will presume that facts necessary to judgment were found, p. 485.

Cited and applied, Guild v. Frontin, 18 How. 135, 15 L. 290, where no errors of law appear on face of record judgment of court below will be affirmed. Cited in Ætna Ins. Co. v. Ward, 140 U. S. 91, 35 L. 377, 11 S. Ct. 725, where court holds it has no concern with questions of fact, or weight to be given evidence properly admitted. Cited, arguendo, Lynch v. Grayson, 7 N. Mex. 37, 32 Pac. 152, in construing statute conferring appellate jurisdiction on State Supreme Court.

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Miscellaneous.- Cited, arguendo, Stickney v. Wilt, 23 Wall. 163, 23 L. 54, 11 Bank. Reg. 106, application not clear. Cited in dissenting opinion, Bayne v. State, 62 Md. 119, as to antecedent obligation being good consideration for subsequent contract.


8 How. 490-494

Notes on U. S. Reports.

8 How. 490-494, 12 L. 1168, MAGER v. GIMA


Taxation.- Louisiana statute requiring that an alien entitled as heir, legatee or donee to succession of decedent, shall pay tax to State of 10 per cent. of value, is not repugnant to Federal Constitution, p. 494.

The following cases cite this case as authority for constitutionality of statutes imposing inheritance tax: Prevost v. Greneaux, 19 How. 7, 15 L. 574, and Frederickson v. Louisiana, 23 How. 447, 16 L. 579, holding further as to article in treaty between United States and king of Wurtemberg relative to disposition of property; United States v. Perkins, 163 U. S. 629, 41 L. 288, 16 S. Ct. 1075, where personal property bequeathed to United States was held subject to inheritance tax under State law; Magoun v. Illinois Trust Co., 170 U. S. 289, 42 L. 1041, 18 S. Ct. 597, where Illinois statute is sustained; Wallace v. Myers, 38 Fed. 185, 4 L. R. A. 172, and n., where New York statute was upheld; Succession of Sala, 50 La. Ann. 1020, 24 So. 678, where act amending principal statute was approved; State v. Dalrymple, 70 Md. 299, 17 Atl. 82, 3 L. R. A. 373, and n., Minot v. Winthrop, 162 Mass. 117, 119, 38 N. E. 513, 514, 26 L. R. A. 262, and Gelsthorpe v. Furnell, 20 Mont. 305, 51 Pac. 268, 39 L. R. A. 173, where Montana statute imposing succession tax at uniform rate on all heirs, dévisees, legatees and distributees, but not applying to estates valued at less than a certain amount, was held valid; to same effect, State v. Alston, 94 Tenn. 680, 682, 30 S. W. 751, 28 L. R. A. 180, holding further, a discrimination in favor of direct heirs of decedent as against collateral is valid. Principle applied also in Union Tow-Boat Co. v. Bordelon, 7 La. Ann. 196, where act empowering tax collector to seize and sell property of defaulting tax debtors was held constitutional.

Cited, arguendo, Pollock v. Farmers, etc., Co., 157 U. S. 578, 39 L. 818, 15 S. Ct. 688, and Thomas v. Gay, 169 U. S. 277, 42 L. 745, 18 S. Ct. 345, as authority for statement that personal allegiance has no necessary connection with right of taxation; Clarke's Appeal, 70 Conn. 211, 39 Atl. 159, holding, whoever takes by succession takes as a privilege conceded by law, and not as a right; State v. Travellers' Ins. Co., 70 Conn. 600, 66 Am. St. Rep. 142, 40 Atl. 467, affirming right of State to exclude aliens from membership in its corporations; State v. Hamlin, 86 Me. 506, 41 Am. St. Rep. 577, 30 Atl. 80, 25 L. R. A. 636, in holding right to dispose of property by will is not a natural right; Northern, etc., Ry. Co. v. Mayor, 21 Md. 104, holding, when State grants a privilege which it has power to withhold, it may annex to grant any conditions which it deems proper; dissenting opinion, Matter of Bronson, 150 N. Y. 16, 44′ N. E. 711, 34 L. R. A. 244, and Moundsville v. Ohio R. R. Co., 37~ W. Va. 107, 16 S. E. 519, 20 L. R. A. 171, and n., without special application. See extended note on "taxation of collateral inheritance,” 41 Am. St. Rep. 582, where cases are reviewed.

Distinguished, Dallinger v. Rapello, 14 Fed. 33, where question presented was whether personal property of deceased inhabitant of State, lying without State, is taxable by State after appointment of non-resident executor; Galveston, etc., Ry. Co. v. Galveston, 90 Tex. 406, 39 S. W. 99, 36 L. R. A. 40, and n., where meaning of court in stating "where State grants privilege which it may deny, it may annex thereto any conditions which it deems proper," is explained.

Miscellaneous.- Cited, Noble v. Cullom, 44 Ala. 583, but not in point. Cited, arguendo, dissenting opinion, Walcott v. People, 17 Mich. 94, as authority for holding alien succession tax does not affect commerce.

8 How. 495-565, 12 L. 1170, WILLIAMSON v. BERRY.

Remainders.- Under devise in trust to pay rents to C. during his life, and at his death to convey in fee-simple to his lawful issue, the first born child of C., at its birth, takes a vested estate in remainder, which opened to let in afterborn children as born, and such estate becomes fee-simple absolute at death of father, p. 532. Approved, Losey v. Stanley, 147 N. Y. 567, 42 N. E. 10, a case similar in facts. Explained in Rivers v. Fripp, 4 Rich. Eq. 298, 299, 300, and Boykin v. Boykin, 21 S. C. 530, where a similar devise is construed. Cited, without special application, Lessee of Poor v. Considine, 6 Wall. 478, 18 L. 875.

Denied in Leroy v. Council of Charleston, 20 S. C. 75, 77.

Trusts. The power rests with the legislature to loose a devised estate from fetters put upon it by unforeseen causes which are defeating the object of the trust, p. 537.

Cited in In re Lyman, 11 R. I. 159, as an instance where legislature authorized sale of trust property; In re Van Horne, 18 R. I. 394, 28 Atl. 343; to same effect, Hoyt v. Sprague, 12 Fed. Cas. 769, as instance where legislature authorized change of instrument by trustee. Cited, arguendo, Powers v. Bergen, 6 N. Y. 368, as bearing on question as to powers of legislature.

Courts. The jurisdiction of a court may be inquired into by any other court in which the proceedings of the former are relied upon and a benefit is claimed thereunder, p. 540.

Cited and principle relied upon in Thompson v. Whitman, 18 Wall. 467, 21 L. 901, affirming right of New York court to inquire into jurisdiction of New Jersey court, to render judgment relied on in former court; Kilbourn v. Thompson, 103 U. S. 198, 26 L. 389, where the jurisdiction of the United States House of Representatives, to punish for contempt, was inquired into; Gray v. Larrimore, 2 Abb. (U. S.) 548, S. C., 4 Sảwy. 644, F. C. 5,721, where United States Circuit Court inquired into proceedings of United States District Court to ascertain whether it had jurisdiction in particular cause;

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