ment in proceeding to review decision of board of general appraisers.

Miscellaneous. Cited in Yant v. Brooks, 19 Iowa, 91, to point that repeal of statute by implication is not favored. Cited incidentally in note to 15 Am. Dec. 467.

5 How. 51-52, 12 L. 46, PEPPER v. DUNLAP.

Appeal and error.— Appellate court's decree of reversal, remanding case to lower court for further proceedings, is not final and reviewable in Federal Supreme Court, p. 52.

Cited in Moore v. Robbins, 18 Wall. 588, 21 L. 758, Parcels v. Johnson, 20 Wall. 654, 22 L. 410, and Bostwick v. Brinkerhoff, 106 U. S. 4, 27 L. 74, 1 S. Ct. 16, holding judgments of reversal by highest State courts remanding cases for further proceedings not final and dismissing writs of error thereto. See also note collecting cases, in 60 Am. Dec. 431.

5 How. 53-64, 12 L. 46, MCAFEE v. DOREMUS.

Bills and notes.- In Louisiana, a notary is required to record, in proper book, all protests of bills made by him and the notices given; a certified copy of this record is evidence, without producing the original protest, p. 62.

Cited and followed in Thompson v. Commercial Bank, etc., 3 Cold. 49, 50, holding admissible certified copy of record of protest of bill payable in Louisiana.

Bills and notes.- Federal court in Mississippi having adopted by rule, State law requiring joinder of drawers and indorsers of a bill sued upon, may, in such a suit, permit a nol. pros. against the drawers, the indorsers having pleaded separately, p. 64.

Cited and principle applied in Coffee v. Planters' Bank, 13 How. 189, 14 L. 107, collecting cases, holding dismissal of suit as to certain defendants did not release others from liability.

5 How. 64-69, 12 L. 52, WALKER v. TAYLOR.

Supreme Court has no jurisdiction on error to state appellate court decision, which was adverse to the validity of a State law there in question, p. 68.

Cited and principle followed in Scott v. Jones, 5 How. 375, 12 L. 196, denying jurisdiction of writ of error to highest State court where validity of authority set up under Federal statute sustained.

5 How. 69-72, 12 L. 54, HILDEBURN v. TURNER.

Bills and notes.- Notarial protest of bill for non-payment, should not be admitted in evidence unless it shows plainly that everything required by law to charge the indorser was done, p. 71.

· 5 How. 72-91

Notes on U. S. Reports.


Bills and notes.- Notarial protest of bill payable at bank, stating its presentment there for payment, is sufficient; it need not state the officer to whom presented, p. 71.

Cited and followed in Douglas v. Bank, 97 Tenn. 145, 36 S. W. 877, collecting cases, and Ashe v. Beasley, 6 N. Dak. 196, 69 N. W. 190, holding demand good notwithstanding omission of notary's certificate to designate bank officer on whom made.

5 How. 72-82, 12 L. 55, MILLER v. HERBERT.

Slavery.- Maryland statutes permitting manumission were strictly construed against the manumission, pp. 78, 79, 80, 82.

Cited, arguendo, to this point, in Bloodgood v. Grasey, 31 Ala. 588, reviewing cases, holding two subscribing witnesses necessary to validity of prospective deed of manumission under Maryland statute.

Slavery. In Maryland and Washington county, District of Columbia, a deed of manumission is void unless recorded within six months after its date, pp. 81, 82.

District of Columbia.- Federal courts are bound by construction of Maryland statutes, settled by decisions anterior to the cession of the district, but not by subsequent decisions, although these will be greatly respected, p. 81.

Miscellaneous.- Erroneously cited in Wilkins v. Judge, 14 Ala. 138, for 5 How. (Miss.) 80, upon question of jurisdiction of equity in case of fraud, after judgment at law.

5 How. 83-91, 12 L. 60, THE ALEXANDRIA CANAL CO. v. SWANN.

District of Columbia.- Where a case is removed from Alexandria to Washington county, District of Columbia, whatever defenses might have been made in Alexandria county, or whatever would have barred the action there, may be relied upon in the new forum, p. 87.

District of Columbia.- Procedure in a case removed from Alexandria to Washington county, D. C., is regulated by the law of the court to which the suit was transferred, p. 87.

Arbitration and award.- Where reference to arbitrators was made, by rule of court, upon motion of parties, judgment upon award, to which no objection was taken in lower court, will be affirmed, unless substantial objection appears upon face of proceedings or in award itself, p. 88.

Cited in Bond v. Dustin, 112 U. S. 606, 28 L. 836, 5 S. Ct. 297, and Duncan v. Atchison, etc., R. Co., 72 Fed. 811, 44 U. S. App. 427, holding question growing out of evidence not reviewable where

jury walved, unless written stipulation of waiver filed; Roberts v. Benjamin, 124 U. S. 71, 31 L. 336, 8 S. Ct. 396, collecting cases, holding facts found by referee conclusive in Supreme Court, where written stipulation waiving jury not filed; Nolan v. Colorado, etc., Min. Co., 63 Fed. 934, 27 U. S. App. 427, holding writ of error lies to review judgment setting aside award as to questions of law only.

Arbitration and award.- Where action of trespass, to which only the general issue has been pleaded, is referred to arbitrators, no question as to justification is before them, and their omission to consider that offered is not error, p. 88.

Corporations.- Although a corporation's charter does not, in terms, give a power to refer to arbitrators, a power to sue and be sued includes such power, p. 89.

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Cited and principle applied in Brown v. Hartford, etc., Ins. Co., 4 Fed. Cas. 383, holding power of trustee to sue and be sued included power to submit to arbitration; Richards v. Attleborough National Bank, 148 Mass. 192, 19 N. E. 354, 1 L. R. A. 783, sustaining submission to arbitration by directors engaged in winding up bank's affairs, of a claim against bank; Springfield v. Walker, 42 Ohio St. 546, sustaining municipal corporation's power to submit to arbitration. See also valuable note in 30 Am. Dec. 631, and 35 Am. Dec. 592, note.

Trial by arbitrators, with consent of both parties, is one of the legal modes of prosecuting a suit to judgment, p. 89.

Cited and applied in Heckers v. Fowler, 2 Wall. 128, 17 L. 760, sustaining reference of pending suit to arbitrators; Robinson v. Mutual, etc., Ins. Co., 16 Blatchf. 201, F. C. 11,961, holding reference by consent to try issues legal; St. Louis Electric, etc., Co. v. Edison, etc., Electric Co., 64 Fed. 1004, holding reference, with consent of parties, to find facts allowable in action at law. Cited also in Lyons v. Lyons National Bank, 19 Blatchf. 286, 8 Fed. 374, holding, arguendo, trial by referee in suit at law, by consent, permissible in Federal court; 30 Am. Dec. 627, note.

Distinguished in Howe Machine Co. v. Edwards, 15 Blatchf. 403, F. C. 6,784, holding reference to referee for trial not permissible without consent of both parties.

Corporations.- A canal company has power to agree to refer to arbitrators a question of damages for occupation of land, under clause in act of incorporation authorizing an agreement with proprietor of land for purchase, or temporary occupation, p. 89.

Cited and principle applied in Memphis, etc., R. R. Co. v. Scruggs, 50 Miss. 297, holding authorization to corporation's president to receive property at valuation, as provided by contract, authorized submission to arbitration; Springfield v. Walker, 42 Ohio St. 546, VOL. IV— 35

5 How. 91-98

Notes on U. S. Reports.


collecting cases, sustaining municipal corporation's power to submit to arbitration. See also valuable note in 30 Am. Dec. 631.

Attorney and client.-In Maryland and Washington county, D. C., the acts of a corporation's attorney in conducting a suit are presumed to be authorized, whether power to direct the proceedings is in the president and directors, or in the stockholders, p. 89.

Cited and principle applied in Jones v. Horsey, 4 Md. 314, 59 Am. Dec. 84, holding recommendation of trustee for insolvent by plaintiff's attorneys in collection of claim against insolvent, bound plaintiffs; Paret v. Bayonne, 39 N. J. L. 560, sustaining authority of municipal corporation's attorney to submit damages to arbitration if corporation could do so; Coleman v. West Virginia Oil, etc., Co., 25 W. Va. 169, collecting cases, holding counsel employed by corporation's president could bind corporation within ordinary power of counsel. Cited also in Davis v. Memphis, etc., Ry. Co., 22 Fed. 886, collecting cases, holding, as between attorneys employed and the company, president might bind latter, without formal action by directory; National Bank of Guthrie v. Earl, 2 Okl. 623, 39 Pac. 393, holding bank bound by employment by president, and acceptance of services of attorney in conducting litigation.

Arbitration and award.- Where an order of reference provides for appointment of an umpire, it is no error if he is appointed before referees had heard the evidence and discovered that they could not agree, p. 90.

Cited in Leonard v. Cox, 64 Mo. 35, collecting cases, holding it immaterial whether a disagreement preceded appointment of third appraiser.

Miscellaneous.- Referred to in note to Swann v. Canal Co., 23 Fed. Cas. 503, as affirming case there reported.

5 How. 91–96, 12 L. 64, BRIDGES v. ARMOUR.

Evidence.- A party upon the record, although divested of all interest in the event of the suit, is not a competent witness in a cause, pp. 94, 95.

Cited and principle followed in Good v. Martin, 95 U. S. 98, 24 L. 344, excluding parties' testimony in territorial court though statute had changed rule in United States courts; The Zenobia, Abb. Adm. 96, F. C. 18,209, excluding party's deposition; Mobile, etc., Bank v. McDonnell, 87 Ala. 747, 6 So. 707, reviewing cases excluding insolvent defendant's testimony though decree pro confesso rendered against him, Gates v. Nash, 6 Cal. 195, collecting cases, holding codefendant's testimony properly excluded; Good v. Martin, 2 Colo. 224, holding testimony of co-defendant who had suffered default properly rejected; Patterson v. Cobb, 4 Fla. 485, holding party to

record, though without interest, incompetent to testify; Wise v. Patterson, 3 G. Greene, 472, holding stranger to suit could not make party competent witness by releasing and indemnifying him; Pino v. Beckwith, 1 N. Mex. 27, collecting cases, holding party upon the record, though without interest, incompetent witness. See also United States v. Clark, 96 U. S. 44, 24 L. 699, holding, arguendo, rule strictly adhered to before statute passed changing it; Central R. R., etc., Co. v. Hines, etc., 19 Ga. 213, dissenting opinion, majority holding testimony of disinterested party to the record properly admitted.

Distinguished in Snyder v. Fiedler, 139 U. S. 480, 35 L. 219, 11 S. Ct. 584, holding former administratrix competent witness in suit commenced by her as such, after resignation and successor appointed. Denied in Wooten v. Nall, 18 Ga. 623, Central R. R., etc., Co. v. Hines, etc., 19 Ga. 217, and Kincaid v. Purcell, 1 Ind. 325, holding disinterested party to the record a competent witness.

Discharge in bankruptcy while suit is pending to which bankrupt is party, does not release him from liability for costs if judgment is afterwards obtained by adverse party, p. 95.

Cited and applied in Dows v. Griswold, 122 Mass. 440, holding plaintiff's liability for costs in action pending at time of his bankruptcy not barred by certificate of discharge.

Evidence. A party plaintiff who is a bankrupt discharged during pendency of the suit, is not a competent witness because still liable for costs and interested in residuary assets, p. 95.

Cited in Whetmore v. Murdock, 3 Wood. & M. 385, F. C. 17,509, collecting cases, excluding insolvent defendant's admissions affecting rights of assignees who had been admitted to defend.

Miscellaneous.- Erroneously cited in Cutter v. Fanning, 2 Iowa, 584, collecting cases, to point that actual interest in suit necessary to render party incompetent to testify.

5 How. 96-103, 12 L. 66, HALL v. SMITH.

Principal and surety.— Where, with knowledge of original debtor, one agreed verbally to reimburse one who became bail for debtor's surety, all became privies in same contract to secure payment of original debt, p. 102.

Principal and surety.- Where there are privies in a contract, with debtor's knowledge, to secure payment of debt to his creditor, payment by one of them other than debtor, is payment at his request, and an express assumpsit to reimburse the amount, p. 102

Cited in Gibson v. Love, 2 Fla. 620, holding payment by surety upon principal's default compulsory, and action for contribution maintainable; Nichols v. Porter, 2 W. Va. 23, 94 Am. Dec. 506, hold

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