7 How. 738-760

Notes on U. S. Reports.

742

576, F. C. 3,908, holding contribution upon general average may be required under maritime jurisdiction; De Leon v. Leitch, 65 Fed. 1004, holding where bond for salvage is given, Admiralty Court has jurisdiction of libel in personam thereon.

Disapproved in Coast Wrecking Co. v. Phoenix Ins. Co., 7 Fed. 242, declaring principal case overruled in Insurance Co. v. Dunham, 11 Wall. 1, 20 L. 90; San Fernando v. Jackson, 12 Fed. 342, holding general average comes under head of maritime obligations, and is within admiralty jurisdiction; The Gilbert Knapp, 37 Fed. 210, holding the true criterion of admiralty jurisdiction as to contracts is their nature and subject-matter; Fire Underwriters v. Melchers, 45 Fed. 645, declaring principal case overruled; Haller v. Fox, 51 Fed. 299, 300, declaring principal case overruled; Morse v. Pomeroy Coal Co., 75 Fed. 429, holding cargo liable for salvage, whether called general average or not; Wellman v. Morse, 76 Fed. 575, 576, 33 U. S. App. 610, holding lien for general average recognized by admiralty law on the same footing as other maritime liens.

Admiralty jurisdiction.- After goods subject to general average are delivered, courts of admiralty have no jurisdiction of an action to collect the contribution, hence where a vessel was run on shore by the captain in order to save the lives of those on board, and the cargo, whereby the vessel was totally lost, but the cargo saved and delivered to the consignee, a libel in personam, filed by the owner of the vessel against the consignee of the cargo for a contribution by way of general average, cannot be sustained in the Admiralty Courts of the United States, pp. 731, 732.

Cited in Rea v. Cutler, 1 Sprague, 135, 138, n., F. C. 11,599, report of original libel reversed by decision in principal case; Haller v. Fox, 51 Fed. 299, 300, declaring principal case overruled.

7 How. 738-744, 12 L. 894, SMITH v. HUNTER.

Supreme Court has not jurisdiction under the twenty-fifth section of judiciary act, unless it appear from the pleading that some right under the authority of the United States was set up by the party claiming it in the State court, and the decision of such court was against the party claiming such right, pp. 742, 743.

Cited and followed in Doe v. Eslava, 9 How. 444, 13 L. 209, dismissing writ of error upholding decision of State court affirming Spanish grant; Neilson v. Lagow, 12 How. 109, 13 L. 914, holding sufficient where record shows an act of Congress was misconstrued by State court; Rector v. Philadelphia, 20 How. 28, 15 L. 803, holding no question appeared by express averment or necessary intendment sufficient to give jurisdiction.

How. 745-760, 12 L. 897, McDONALD v. HOBSON.

Dismissal.- Where an action is brought to determine a just division of a common fund, a decree dismissing the bill of complainant

with costs does not show that there is anything due from complainant to defendant. It only proved that defendant was not indebted to complainant, p. 758.

Appeal and error.-When the record shows upon its face what decree was given, the appellate court will not presume, even after verdict, that evidence was given at the trial supporting a different decree, p. 758.

Pleading.— Where, by a certain agreement, the rights of the parties to a certain fund were to be determined by an action in chancery, the failure, in an action brought to recover a sum of money claimed to be due, to set forth that a decree had been rendered and that the amount sought to be recovered was found due, is a total omission to state a cause of action in the declaration, a defect which the verdict will not cure either at common law or by statute, p. 758.

See note, discussing this subject, Gay v. Joplin, 4 McCrary, 464. See note, 3 Am. Dec. 457.

Pleading.— Where the record shows that the decree determined nothing in favor of the plaintiff, an averment that in virtue of the decree the plaintiff was well entitled to recover, is insufficient either in law or fact; in law, as no such legal consequence follows from the stated premises; in fact, because it is contradicted by the record, p. 758.

7 How. 760-768, 12 L. 903, MASSINGILL v. DOWNS.

Federal courts Judgment lien.- Jurisdiction of Circuit Courts of the United States being co-extensive with their respective districts, in those States where the judgment of a State court creates a lien only within the county in which the judgment is entered, the lien of the judgment of the United States Circuit Court extends to the limits of its jurisdiction, p. 766.

Cited and relied upon in Ward v. Chamberlain, 2 Black, 437, 17 L. 323, holding judgments of United States courts are liens upon defendant's real estate in all cases where similar judgments of State courts are made liens; Cooke v. Avery, 147 U. S. 387, 389, 37 L. 213, 214, 13 S. Ct. 345, 346, and Rock Island Nat. Bank v. Thompson, 173 Ill. 601, 64 Am. St. Rep. 141, 50 N. E. 1091, holding Federal judgments liens where State judgments are such; Prevost v. Gorrell, 19 Fed. Cas. 1297, holding lien extends to all parts of State; Sellers v. Corwin, 5 Ohio, 408, 24 Am. Dec. 308, and Lawrence v. Belger, 31 Ohio St. 178, both holding judgments of United States Circuit Court attached as liens upon the defendant's lands in Ohio. Cited with approval in Byers v. Fowler, 12 Ark. 277, 54 Am. Dec. 278, holding United States Circuit Courts endowed with general jurisdiction coextensive with their districts; Hopping v. Burnham, 2 G. Greene, 53, collecting cases, holding judgment lien will hold against prior un

7 How. 760-768

Notes on U. S. Reports.

744

recorded deed, without actual notice; Smith v. Aude, 46 Mo. App. 636, holding liens of Federal judgments exist only by virtue of State laws.

Distinguished in Metcalf v. Watertown, 153 U. S. 677, 38 L. 864, 14 S. Ct. 950, holding limitation of action upon judgment in Wisconsin is twenty years; Dartmouth Bank v. Bates, 44 Fed. 546, 548, holding under act of Congress 1888, Federal judgment in Kansas a lien only in county where court was held, but might be extended by recordation under State law; First National Bank v. Clark, 55 Kan. 222, 40 Pac. 271, construing act of Congress regulating liens of judgments in courts of the United States.

Statutes. A settled construction of a State statute by its Supreme Court is considered a part of the statute itself, p. 767.

Cited and followed in McLean v. Hamilton Co., 16 Fed. Cas. 249, holding right of commissioners to sue and be sued arises under State statute; Leffingwell v. Warren, 2 Black, 603, 17 L. 262, cited with approval, holding construction given to State statute by courts of that State is binding upon United States courts; Zerega v. McDonald, 1 Woods, 498, F. C. 18,212, holding judicial construction put upon a law must be considered as part of the statute; Mitchell v. Lippincott, 2 Woods, 472, F. C. 9,665, holding detailed construction of State statute is considered as part of it; McClure v. Owen, 26 Iowa, 253, holding settled construction of State statute by Supreme Court of that State is a part of the statute.

A judgment lien on land constitutes no property or right in the land itself, but only a right to levy on the same to the exclusion of other adverse interests subsequent to the judgment; and when the levy is actually made on the same, the title of the creditor for this purpose relates back to the time of the judgment to cut out intermediate incumbrances, but the lien if not an effect of the judgment is inseparably connected with it, and this is the case, whether the lien was created by the judgment and execution, or by statute, pp. 767, 768.

Cited and principle followed in Brown v. Pierce, 7 Wall. 217, 19 L. 138, holding a judgment is a general lien, and constitutes no property or right in the land itself; Baker v. Morton, 12 Wall. 158, 20 L. 265, holding judgment lien is not property; Morsell v. First National Bank, 91 U. S. 360, 23 L. 437, collecting cases and holding lien of certain judgment did not attach to land; Beebe v. United States, 161 U. S. 111, 40 L. 637, 16 S. Ct. 535, holding in Alabama judgment imposes no lien upon the property, but issue of execution is necessary; In re Boyd, 4 Sawy. 264, F. C. 1,746, holding commonlaw judgment was not a lien upon real property; Perkins v. Brierfield, etc., Co., 77 Ala. 410, 411, holding Alabama judgment is not a lien, but lien is created by issue of execution and delivery to sheriff; Whiting v. Beebe, 12 Ark. 571, holding the lien is not an intrinsic

quality of the judgment itself, but a quality added to it; Burwill v. Tullis, 12 Minn. 578, declaring principle of leading case; Ashton v. Slater, 19 Minn. 351, holding action will not lie to enforce lien after time for levy of execution has expired; Thompson v. Avery, 11 Utah, 230, 39 Pac. 834, holding Federal judgments, liens only when judgments are liens by territorial laws; Griffith v. Baltimore, etc., R. R., 44 Fed. 585, holding interest on judgment proper from date of verdict.

Retrospective laws. While retrospective laws of a remedia} character may be passed, a State has no power by legislation or otherwise to modify or impair a right which has attached in the courts of the United States, hence the Mississippi act of 1841, requiring judgments to be recorded in a particular way in order to make them a lien upon property, did not abrogate the lien which had been acquired under a judgment of 1839 in the United States Circuit Court, although the latter had not been recorded in the manner required by the statute, p. 768.

Cited and followed in United States v. Humphreys, 3 Hughes, 205, F. C. 15,422, holding Federal judgments need not be recorded in Virginia to become liens; Carroll v. Watkins, 1 Abb. (U. S.) 476, 478, F. C. 2,457, holding lien of Federal judgment cannot be restricted by State statutes; United States v. Sturgis, 14 Fed. 811, collecting cases and holding in absence of statute the lien of the judgment is sustained as a necessary incident; Branch v. Lowrey, 31 Tex. 102, holding Federal judgment operates as a lien upon all land within district irrespective of county where judgment was rendered. See valuable note on lien of judgments of United States courts, 24 Am. Dec. 312.

Cited in Dartmouth Bank v. Bates, 44 Fed. 546, 548, but holding under act Congress 1888, Federal judgment in Kansas a lien only in county where court was held, but might be extended by recordation under State law.

7 How. 769-772, 12 L. 907, UDELL v. DAVIDSON.

Supreme Court, upon error to a State court, will not revise the decision of the State court for any cause other than where some right, title or interest is claimed under an act of Congress, and the decision of the State court was against such person claiming such right, title or interest, pp. 770, 771.

Cited and followed in Henderson v. Tennessee, 10 How. 323, 13 L. 439, holding United States Supreme Court has no jurisdiction where party claims the right for third person.

Appeal and error.- Where a trustee, in fraud of the pre-emption laws of the United States, takes a title to certain pre-emption lands in his own name, such trustee cannot, under the twenty-fifth section of the judiciary act, remove a case, in which he was ordered

【 How. 772-784

Notes on U. S. Reports.

746

to hold the property subject to the trust, from a State court to the United States Supreme Court, there being no right, title, privilege or exemption claimed under an act of Congress and decided adversely by State court, p. 771.

Cited and followed in Walworth v. Kneeland, 15 How. 353, 14 L. 727, dismissing writ of error where protection is asked, from consequences of fraudulent contract.

Fraud. The United States Supreme Court will not recognize any right claimed in the pre-emption laws of the United States where it appears that the one claiming the benefit of such right not only admits, but insists that by fraud upon the government and in violation of the terms of his trust, he obtained a deed to certain pre-emption lands, p. 771.

7 How. 772-775, 12 L. 908, NEILSON v. LAGOW.

Supreme Court has jurisdiction on error to a State court of a question involving the validity of an authority alleged to have been exercised by the secretary of treasury on behalf of the United States, where the decision of the State court was against the party claiming the validity of such authority, p. 775.

Cited and followed in Cook Co. v. Calumet, etc., Co., 138 U. s. 653, 34 L. 1116, 11 S. Ct. 441, holding decision of State court presented no Federal question; United States v. Lynch, 137 U. S. 287, 34 L. 703, 11 S. Ct. 117, dismissing writ of error holding question presented merely the erroneous exercise of an authority. Cited, arguendo, in Neilson v. Lagow, 4 Ind. 608, accepting construction of United States Supreme Court as to validity of deed; dissenting opinion, Gill v. Oliver, 11 How. 549, 13 L. 808, majority holding validity or construction of treaty not involved in decision of State court.

7 How. 776-784, 12 L. 909, LEWIS v. LEWIS.

Statute of limitations.—Where a saving clause in the State respecting non-residents is repealed, the statute begins to run only from the time of the repeal, pp. 779, 780.

Cited and followed in Sohn v. Waterson, 17 Wall. 600, 21 L 739, holding statute barring all actions not commenced within two years, runs from time of passage; Sayles v. Richmond, etc., R. R., 3 Hughes, 174, F. C. 12,424, holding action must be brought within five years of passage of act; Pritchard v. Spencer, 2 Ind. 486, holding statute of limitations passed by Indiana legislature, retrospective in its operation; Gillette v. Hibbard, 3 Mont. 417, holding effect of new statute of limitations is to extend the existing statutory period; Parker v. Kane, 4 Wis. 18, 65 Am. Dec. 292, holding statute of limitations not objectionable where reasonable time given to commence action. Oited, arguendo, in Cleveland, etc., Co. v.