in feeble health was, by fraud and undue influence, induced to make a voluntary deed of his property; Ashton v. Thompson, 32 Minn. 41, 18 N. W. 922, case similar in facts to principal case; Meek v. Perry, 36 Miss. 251, where ward made will in favor of guardian, holding guardian must rebut presumption of undue influence; to same effect, Garvin v. Williams, 44 Mo. 474, 100 Am. Dec. 319; Munson v. Carter, 19 Neb. 300, 27 N. W. 211, where mother, while in feeble health, had made conveyance to her son; Dickerson v. Dickerson, 24 Neb. 532, 8 Am. St. Rep. 214, 39 N. W. 429, where wife induces her husband to make conveyance to her, and afterwards abandons him, conveyance may be set aside; Berkmeyer v. Kellerman, 32 Ohio St. 258, holding equity will examine with jealousy a settlement of a trust made between a minor and one standing in relation of parent to him; Greenwood v. Cline, 7 Or. 29, where large estate was bestowed on one daughter, to exclusion of other children, such daughter being alone present when will was executed, this, with other circumstances, was held to be indicative of fraud and undue influence; Cole v. Getzinger, 96 Wis. 573, 71 N. W. 79, holding conveyance without consideration, made by old man, feeble in mind and body, in which transaction a daughter, with whom he lived, participated and received part of proceeds, will be presumed fraudulent. Cited, arguendo, in Muzzy v. Tompkinson, 2 Wash. 632, 27 Pac. 461. See note, reviewing authorities, 15 Am. Dec. 573. Distinguished in Towson v. Moore, 173 U. S. 21, 25, 19 S. Ct. 333, 335, and Couchman v. Couchman, 98 Ky. 115, 32 S. W. 285, where there was no showing of undue influence, and, further, court holds deed of gift of property from child to parent is not prima facie void; to same effect, Pusey v. Gardner, 21 W. Va. 480; Goar v. Thompson, 47 S. W. 63 (Tex. Civ. App.), holding deed by married sister of decedent, conveying her interest as heir to her brothers, procured on their representations, is not, prima facie, procured by fraud.

8 How. 210-223, 12 L. 1051, MAXWELL v. KENNEDYΥ.

Laches. - A delay of forty-six years is a bar to relief in equity, where creditor believed debtor insolvent, but in fact, for considerable portion of time, he was in condition to pay, and creditor might, by reasonable diligence, have discovered it, p. 221.

Cited and principle followed in United States v. Beebe, 4 McCrary, 16, 17 Fed. 39, where lapse of time was sustained as a defense to a suit brought by the United States, to set aside patents to land, on ground of fraud in procuring, such patents having been issued more than forty years previous; Kittle v. Hall, 24 Blatchf. 188, 29 Fed. 511, and McLaughlin v. People's Ry. Co., 21 Fed. 575, where plaintiff delayed for many years in bringing suit for infringement of patent; Woodmanse Co. v. Williams, 68 Fed. 493, 37 U. S. App. 109, where there was a delay of fourteen years in asserting

rights against an infringement of patent; Hemmick v. Standard Oil Co., 91 Fed. 334, where a delay of ten years was held to bar a claim for an accounting; Coles v. Vanneman, 51 N. J. Eq. 329, 18 Atl. 471, holding a delay of eight years in bringing suit for redress, where defendant had procured surrender of mortgage from complainant's intestate, who was mentally infirm, is inexcusable laches. Approved, without special application, in Swann v. Thayer, 36 W. Va. 54, 14 S. E. 425. See monographic note, reviewing cases, 23 Am. St. Rep. 149.

Distinguished in Pulliam v. Pulliam, 10 Fed. 26, F. C. 11,463a, holding a delay of four years in bringing suit by legatee, against executor, for an accounting, is not such a delay as operates as a bar.

Laches - Demurrer. - Where bill shows plaintiff is not entitled to relief by reason of laches, defendant may take advantage of this objection by demurrer, p. 222.

Cited and followed in National Bank v. Carpenter, 101 U. S. 568, 25 L. 816, Lansdale v. Smith, 106 U. S. 392, 393, 27 L. 219, 1 S. Ct. 350, 351, Speidel v. Henrici, 120 U. S. 387, 30 L. 720, 7 S. Ct. 612, and Credit Co. v. Arkansas Ry. Co., 5 McCrary, 33, 15 Fed. 55, holding further, if cause, as it appears on hearing, is liable to objection, the court will refuse relief, without inquiring whether there is plea setting it up; Markey v. Mut. Ins. Co., 16 Fed. Cas. 761, Ætna Life Ins. Co. v. Middleport, 31 Fed. 876, Rich v. Bray, 37 Fed. 277, 2 L.. R. A. 228, and n., Waldo v. Bardon, 47 Fed. 786, Hinchman v. Kelley, 54 Fed. 66, 7 U. S. App. 481, Woodmanse Co. v. Williams, 68 Fed. 494, 37 U. S. App. 109, Hayden v. Thompson, 71 Fed. 69, 36 U. S. App. 361, and McGehee v. Blackwell, 28 Ark. 30, holding when bill shows on its face cause of action is barred by limitation, the defense may be set up by either demurrer or answer; Kerfoot v. Billings, 160 111. 569, 570, 43 N. E. 806, 807, and Olden v. Hubbard, 34 N. J. Eq. 86, holding presumption of payment of a mortgage from lapse of time may be raised by demurrer. Rule approved, without application, Badger v. Badger, 2 Cliff. 156, F. C. 718, Anderson v. Northrop, 30 Fla. 647, 12 So. 326, Belt v. Bowie, 65 Md. 355, 4 Atl. 298, Perkins v. Lane, S2 Va. 64, and note, 2 Am. St. Rep. 807.

Distinguished, Pierson v. David, 1 Iowa, 32, where bill did not show on its face that cause of action was barred; Sanborn v. Eads, 38 Minn. 211, 36 N. W. 338, mere delay of fifteen years in bringing suit to remove cloud from title does not alone make bill demurrable.

8 How. 223-234, 12 L. 1056, MARSH v. BROOKS, S. C. (second appeal), 14 How. 521, 14 L. 525.

Public lands. - Where land has been once granted nothing can pass by a second patent, unless there has been an escheat, on forfeiture of title by first grantees, p. 233.

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Cited and followed in Dufresne v. Haydel, 7 La. Ann. 663, holding where land is owned by an individual, a subsequent issue of patent by government for same land to another party, inures to benefit of true owner; Talbott v. King, 6 Mont. 108, 9 Pac. 442, holding occupation of mineral lands for purpose of town lot is of no effect as against a valid mining claim location; Grunney v. Denney, 18 Wis. 488, where land was allotted to member of Indian tribe by act of Congress, such Indian took an equitable title, which he could convey, and a patent subsequently issued inured to benefit of his grantee. Cited, arguendo, Sherwood v. Fleming, 25 Tex. Supp. 427, as authority for holding patent issued contrary to law is void; to same effect, Day Co. v. State, 68 Tex. 541, 4 S. W. 871.

Writ of right. - Plaintiff must recover on the strength of his own title, p. 233.

Cited and applied, Pacific Bank v. Hannah, 90 Fed. 80, holding plaintiff cannot maintain ejectment who claims under one who had nothing to convey. Cited, Bryan v. Shirley, 53 Tex. 459, арplication not clear.

Ejectment. - Defendant may set up an outstanding title to show that nothing passed to plaintiff by the paper title, which is the foundation of his claim, p. 233.

8 How. 234-235, 12 L. 1060, WANZER v. TUPPER.

Bills and notes. - In Mississippi, demand and notice only, and not formal protest, are necessary to suit on an inland bill against an indorser, p. 235.

Cited in note, 43 Am. Dec. 219; also, note, 96 Am. Dec. 607.

8 How. 235-251, 12 L. 1061, CLARK v. MANUFACTURERS' INS. Co.

Evidence. In action on policy of insurance originally issued to plaintiff's predecessors in a certain business, parol evidence is admissible to show representations material to the risk, alleged to have been made by party originally insured, p. 246.

Insurance. - The obligation of insured to speak when not inquired of, is greater in cases of marine than in cases of fire insurance, p. 249.

Cited to this point in Penn. Mut. Life Ins. Co. v. Mechanics' Trust Co., 72 Fed. 439, 37 U. S. App. 735, 38 L. R. A. 68, and n.

Fire insurance.- It is the duty of the insured to inform the insurer of any extraordinary or unusual facts which might increase the risk, p. 250.

Cited and applied, Protection Ins. Co. v. Harmer, 2 Ohio St. 473, 59 Am. Dec. 702, where insured failed to inform insurer that build

ing had been on fire several times, and he believed it to have been fired by an incendiary.

Modified, Bebee v. Hartford Ins. Co., 25 Conn. 63, 65 Am. Dec. 554, holding, after making general statement of such facts he is not obliged to go into details, unless requested to do so.

Insurance. - Representations in obtaining original policy that no lamps are used, shown to be adopted by the successors in interest of the original insured in obtaining policy issued to them, will prevent their recovery on proof of use of lamps, p. 250.

Cited and relied upon in Blumer v. Phoenix Ins. Co., 45 Wis. 629, where a statement in application that "one or two hands sleep in mill," was held to operate as an express warranty that mill was not left alone, and the failure to keep it good invalidated policy. Referred to as being misquoted, Hartman v. Keystone Ins. Co., 21 Pa. St. 477, holding a representation that one is a farmer, when in fact he is a slavetaker, avoids policy. Cited, Kelly v. Mutual Life Ins. Co., 75 Fed. 640, as containing discussion of effect of warranty in insurance policy made with reference to future events. See note, 16 Am. Dec. 463, as to distinction between representations and warranties in insurance applications; also note, 41 Am. Dec. 497, and 33 Am. Rep. 832.

Fire insurance. - As to ordinary risks connected with property, if no representations are asked the insured is under no obligations to give any, p. 250.

Cited and followed in Continental Ins. Co. v. Munns, 120 Ind. 36, 22 Ν. Ε. 80, 5 L. R. A. 432, and n., holding applicant for insurance is not bound to disclose that insured property is incumbered, unless requested; German Mut. Ins. Co. v. Niewedde, 11 Ind. App. 627, 39 N. E. 535, where provision in policy that it should be void in case property was incumbered, was held waived by failure of insurer to call attention of insured to same; but contra, Indiana Ins. Co. v. Pringle, 21 Ind. App. 569, 52 N. E. 824; Boggs v. Am. Ins. Co., 30 Mo. 69, holding failure of insured to state portion of building, a store, is used as a dwelling does not avoid policy; Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 270, 15 S. E. 583, when insurer makes no inquiries, insured has a right to assume he is familiar with facts as to risk; Wytheville Ins. Co. v. Stutz, 87 Va. 637, 13 S. E. 80, where instruction as above is approved; Dooly v. Hanover Ins. Co., 16 Wash. 159, 58 Am. St. Rep. 29, 47 Pac. 508, where condition in policy that it should be void in case interest of insured be other than unconditional, was held waived, where application was oral and no questions were asked respecting title of insured. See note, 40 Am. Dec. 350, as to concealment of material facts in application for policy.

Miscellaneous. - Cited, Bigham v. Carr, 21 Tex. 145, and Regan v. Jones, 1 Wyo. 211, not in point.

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8 How. 251-256, 12 L. 1067, LORD V. VEAZIE.

Bringing a fictitious suit is a contempt of court, p. 255.

A judgment, obtained in proceedings where interest of plaintiff and defendant is the same, and there is no real contest, is a nullity, and no writ of error will lie thereon, p. 256.

The citing cases show a number of authorities affirming and relying upon this holding: Cleveland v. Chamberlain, 1 Black, 425, 17 L. 93, where appellant had purchased and taken assignment of all appellee's interest; Wood-Paper Co. v. Heft, 8 Wall. 336, 19 L. 380, S. C. appendix, 131 U. S. xciii, 19 L. 380, where pending appeal appellee had become stockholder in appellant company; Dakota County v. Glidden, 113 U. S. 226, 28 L. 982, 5 S. Ct. 430, where, pending appeal, suit has been compromised so that there was no longer a real contest; Meyer v. Pritchard, appendix, 131 U. S. ccix, 23 L. 961, holding if letters-patent be surrendered pending appeal in action relating to, a substantial controversy no longer remains, and appeal will be dismissed; Little v. Bowers, 134 U. S. 557, 33 L. 1020, 10 S. Ct. 622, 623, voluntary payment of a tax while suit is pending to determine its validity, leaves no existing cause of action, and requires dismissal of writ of error; California v. San Pablo Ry. Co., 149 U. S. 314, 37 L. 749, 13 S. Ct. 878, where, pending appeal in action to determine the validity of an assessment, the taxes were paid, held, writ of error must be dismissed; Mills v. Green, 159 U. S. 653, 654, 40 L. 294, 16 S. Ct. 133, where, pending appeal, without fault of defendant, an event occurs, which renders it impossible for court to grant plaintiff any effectual relief, in case it should decide in his favor, appeal will be dismissed; Allen v. Georgia, 166 U. S. 140, 41 L. 950, 17 S. Ct. 526, where practice of State Supreme Court in dismissing appeal in criminal cause where it appeared appellant had escaped from jail and was a fugitive from justice, was approved; Am. Middlings Purifier Co. v. Vail, 15 Blatchf. 317, 318, F. C. 308, where court refused to decide a motion for preliminary injunction on merits, when defendant withdrew all opposition to motion; Weaver v. Kelly, 92 Fed. 421, where it appeared defendant had purchased plaintiff's interest in suit; People v. Pratt, 30 Cal. 225, where court refused to decide question not arising in due course of litigation; Smith v. Junction Ry. Co., 29 Ind. 551, where it appeared suit was fictitious, appeal was dismissed at cost of real party to action; Roszell v. Roszell, 105 Ind. 80, 4 Ν. Ε. 425, where interest of nominal defendant was same as that of plaintiff, real & defendant was allowed to defend in name of nominal defendant; State v. Westport, 135 Mo. 134, 36 S. W. 667, where collusive suit, brought to obtain opinion of court as to validity of tax bills, was dismissed; State v. McCullough, 20 Nev. 156, 18 Pac. 757, where quo warranto proceedings brought to obtain judicial determination as to who possesses power of appointment to an office, it being apparent defendant will remain in office whatever may