valid; Walcott v. People, 17 Mich. 87, and dissenting opinion, S. C., 94, majority sustaining validity of act requiring express companies to pay a specific tax of 1 per cent. on gross amount of current business within State; People v. Walling, 53 Mich. 269, 18 N. W. 810, where act taxing wholesale importation of liquors from other States was held valid; State v. Welton, 55 Mo. 291, and State v. Harrington, 68 Vt. 628, 35 Atl. 517, 34 L. R. A. 101, sustaining validity of act imposing license tax on peddlers; Montana v. Farnsworth, 5 Mont. 322, 5 Pac. 877, Ex parte Robinson, 12 Nev. 274, 28 Am. Rep. 801, and Ex parte Asher, 23 Tex. App. 672, 5 S. W. 95, all holding an act requiring commercial travellers to obtain a license before carrying on business, is constitutional; Ex parte Martin, 7 Nev. 142, 8 Am. Rep. 706, holding statute requiring revenue stamp on bill of exchange drawn in State upon another State, was legitimate exercise by State of its power of taxation; Gardner v. Hall, Phil. (N. C.) 24, where law imposing tax on "dead-heads," was held valid; State v. Bell, Phil. (N. C.) 85, holding a statute imposing tax on business followed anterior to its passage, is valid and a proper exercise of State's power of taxation; Davis v. Dashiel, Phil. (N. C.) 117, where a statute imposing a tax of 15 per cent. upon spirituous liquors purchased from non-residents and 10 per cent. on that purchased from residents of State, was held valid; Champaign Bank v. Smith, 7 Ohio St. 56, affirming right of State to tax its own bonds; Insurance Co. v. Commonwealth, 87 Pa. St. 183, 30 Am. Rep. 356, sustaining validity of a statute imposing tax upon entire amount of premiums received by insurance companies, whether received from within or without State; Languille v. State, 4 Tex. App. 324, holding statute making it penal offense to practice law without first paying a license tax, is constitutional; W. U. Tel. Co. v. Richmond, 26 Gratt. 23, affirming validity of city ordinance imposing license tax upon foreign telegraph companies doing business in city; Capital City Water Co. v. Board, 117 Ala. 312, 23 So. 973, where statute imposing tax on gross receipts of a particular enterprise, after deducting running expenses, was held to impose an occupation tax, and is valid.

Cited, arguendo, Lott v. Mobile Trade Co., 43 Ala. 582, holding a State tonnage tax on steamboats not repugnant to Federal Constitution; Crow v. Missouri, 14 Mo. 300, 318, 332, Cæsar v. Capell, 83 Fed. 409. See note on State's power of taxation, 59 Am. Rep. 279, where authorities are reviewed; note, 33 Am. St. Rep. 402, as to what are instrumentalities of government.

Distinguished, State Tonnage Tax Cases, 12 Wall. 213, 224, 20 L. 373, 377, where act was held repugnant to that clause in Constitution forbidding States, without consent of Congress, to lay any duty of tonnage; Ward v. Maryland, 12 Wall. 428, 20 L. 452, overruling S. C., 31 Md. 285, 1 Am. Rep. 55, where statute imposing tax discriminated against non-resident traders; Walling v. Michigan,

८

116 U. S. 460, 29 L. 696, 6 S. Ct. 460, where occupation tax discriminated against products of other States; to same effect, State v. North, 27 Mo. 480, dissenting opinion; New York State v. Roberts, 171 U. S. 676, 19 S. Ct. 74, on ground that occupation tax in question operated as a discriminating burden against products of another State.

Miscellaneous. - Cited, arguendo, United States v. Addyston Pipe & Steel Co., 78 Fed. 716, as to power of Congress to regulate commerce. Cited in Stein v. Mobile, 24 Ala. 614, as to department of government on which power of taxation is confined; Lott v. Ross, 38 Ala. 159, and Noble v. Cullom, 44 Ala. 583, not in point. See note, 25 Am. Dec. 79, for definition of "bill of credit."

8 How. 83-107, 12 L. 997, UNITED STATES v. BUCHANAN. Custom cannot be set up against settled rule, and is not binding unless ancient, reasonable, generally known, and certain, p. 102.

Cited and applied in Tilley v. County of Cook, 103 U. S. 163, 26 L. 377, holding an unreasonable custom, observed by Chicago architects, is not binding; United States v. Reindeer, 27 Fed. Cas. 761, an usage which violates an express law, may not protect one who breaks the law; The Sydney, 27 Fed. 127, where evidence to establish a custom in regard to marine insurance, was held too loose, conflicting and conjectural; to same effect, Greenwich Ins. Co. v. Waterman, 54 Fed. 843, 6 U. S. App. 549.

Navy.- The red book did not repeal the blue book, except where specified, p. 103.

Navy.- Purser in, cannot charge commissions for drawing bills of exchange to procure abroad the funds which he disburses, pp. 102, 106.

Cited with approval in United States v. Brown, 9 How. 500, 13 L. 233, holding chief clerk of post-office department is not entitled to commissions for negotiating loans for the use of the department.

Navy.- Purser in, cannot be allowed extra compensation for paying mechanics and laborers at a navy yard, pp. 103, 106.

Set-off.- Unliquidated damages claimed, cannot be set-off against United States, in action on purser's bond, p. 105.

Cited to this point, Charnley v. Sibley, 73 Fed. 982, 34 U. S. App. 705, as defining liquidated claim; United States v. N. Am. Com. Co., 74 Fed. 153, as authority for holding statute allowing set-offs, has had liberal construction.

United States is not responsible for wrong done by one of its officers to another, pp. 105, 106.

Cited, arguendo, in Bass v. State, 34 La. Ann. 502, in holding State is not liable for damages sustained by one of its citizens through State exercising its legitimate police powers.

{

Miscellaneous. - Cited in United States v. Potter, 27 Fed. Cas. 604, as authority for holding laches is not imputable to the government.

8 How. 107-113, 12 L. 1007, WILLIAMS v. BENEDICT.

Executors and administrators. - A judgment against administrator of an insolvent estate before adjudication of insolvency, gives such judgment creditor no preference over other creditors, since the adjudication relates back to time of death of insolvent debtor, p.

111.

Lien of judgments of Federal courts, in absence of legislation by Congress, depends on the law of the State in which such courts have jurisdiction, p. 111.

Cited and applied, Dartmouth Bank v. Bates, 44 Fed. 548, and National Bank v. Clark, 55 Kan. 222, 40 Pac. 271, where a judgment of Federal court for district of Kansas was held to be lien on property of judgment debtor in county where rendered only, unless recorded in other counties as required by Kansas statute; Rock Island Bank v. Thompson, 173 III. 601, 64 Am. St. Rep. 142, 50 N. Ε. 1091, holding the lien of judgment of Federal court is co-extensive with territorial jurisdiction of court; to same effect, Lawrence v. Belger, 31 Ohio St. 178. Approved, arguendo, Brown v. Pierce, 7 Wall. 217, 19 L. 137, and Baker v. Morton, 12 Wall. 158, 20 L. 265. Cited, United States v. Hailey, 2 Idaho, 30, 3 Pac. 264, application not clear.

Estates of decedents. - Quære, whether States may compel foreign creditors, in all cases, to seek remedy against the estates of decedents in State courts alone, p. 112.

Jurisdiction - Federal courts. - Where a Probate Court has ordered the property of an insolvent estate sold and proceeds divided among creditors, a creditor holding judgment against the administrator in Federal District Court, prior to the adjudication of Insolvency, will not be granted writ of execution to enforce payment of his debt, p. 112.

The citing cases show that this holding has been extensively relied upon by subsequent authorities: Peale v. Phipps, 14 How. 375, 14 L. 461, holding, where, under State statutes, bank's charter had been declared forfeited and commissioners who had been appointed to audit accounts against it had refused a certain account, the Federal courts have no jurisdiction to entertain bill to compel trustee to pay rejected account; Pulliam v. Osborne, 17 How. 475, 15 L. 155, holding where writ of execution is issued by both State and Federal court against same property, the one first levied gives prior right; Taylor v. Carryl, 20 How. 596, 15 L. 1032, where a vessel had been seized on attachment in State court and motion was pending for order of sale, a libel filed in United States District Court for

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8 How. 107-113

mariner's lien for wages could not divest State court of its authority over vessel; Yonley v. Lavender, 21 Wall. 281, 22 L. 538, where a sale of lands under an execution under similar circumstances was held void; Heidritter v. Elizabeth Cloth Co., 112 U. S. 304, 305, 28 L. 733, 5 S. Ct. 139, 140, holding, where proceedings in rem are commenced in a State court and analogous proceedings in rem in Federal court, against same property, exclusive jurisdiction for purposes of its own suit is acquired by court which first takes possession of the res; Porter v. Sabin, 149 U. S. 480, 37 L. 818, 13 S. Ct. 1011, holding, after State court has appointed receiver for property of corporation, stockholders cannot bring suit against officers of, in Federal court, for fraudulent use of its property, without making receiver a party to the suit; Byers v. McAuley, 149 U. S. 615, 617, 37 L. 871, 872, 13 S. Ct. 908, 909, holding a citizen of another State may proceed in Federal courts to establish a debt against an estate, but debt thus established must take its place and share in the estate as administered by the Probate Court; In re Clark, 4 Ben. 98, F. C. 2,798, 3 Ν. B. R. 131, where United States District Court refused to make order affecting matter wholly within jurisdiction of State court; Judd v. Bankers' Tel. Co., 24 Blatchf. 422, 31 Fed. Rep. 183, where motion for receiver and injunction pendente lite was denied because State court had jurisdiction of subject-matter of controversy; Fox v. Hempfield Ry. Co., 2 Abb. (U. S.) 155, F. C. 5,011, where State court has taken control of the property and franchise of a corporation, they cannot be taken in execution by process from another jurisdiction; Wilmer v. Atlanta & Richmond Ry. Co., 2 Woods, 427, 428, F. C. 17,775, where different suits are commenced in courts of co-ordinate jurisdiction and possession of property, which is subject of suit, is necessary to relief asked in each case, that court which first seizes property acquires jurisdiction over it, to exclusion of other, no matter when suits were commenced or process in personam served; Young v. Montgomery Ry. Co., 2 Woods, 619, F. C. 18,166, and Blake v. Alabama Ry. Co., 6 Bank. Reg. 333, 3 Fed. Cas. 587. where court refused to interfere with property in hands of récesver appointed by court of co-ordinate jurisdiction; In re Vogel, 2 Bank. Reg. 139, 28 Fed. Cas. 1243, holding, when property of a bankrupt has passed into custody of Court of Bankruptcy it cannot be taken in replevin suits instituted by creditors of such bankrupt; Phelps v. Sellick, 8 Bank. Reg. 394, 19 Fed. Cas. 465, holding, where mortgagor goes into bankruptcy, mortgagee must obtain permission from Court of Bankruptcy before proceeding to foreclose mortgage, otherwise proceedings will be void; Cohen v. Solomon, 66 Fed. 413, the Federal court having obtained jurisdiction over the res in foreclosure proceedings, subsequent proceedings in State court, in regard to same property, antagonistic to proceedings in Federal court, were held invalid; Lant v. Manley, 71 Fed. 12, holding a bill calling upon Federal court to dispossess an administrator of control over property committed to his charge, bad on demurrer; In re Foley, 80 Fed. 950, where petition for removing administration proceedings to Federal court was denied; Horner v. Hanks, 22 Ark. 586, holding judgments of Circuit Courts against executors and administrators on debts due by deceased persons, can support compulsory satisfaction only by being brought under administration of Probate Courts; Moore v. Withenburg, 13 La. Ann. 23, holding property under seizure by United States marshal is beyond reach of State process; Du Vivier v. Hopkins, 116 Mass. 128, 17 Am. Rep. 144, holding claim against insolvent estate, pending in Supreme Court on appeal from Probate Court, cannot be removed to Federal courts.

Cited, arguendo, in Union Bank v. Vaiden, 18 How. 507, 15 L. 474, holding the effect of a judgment obtained in Federal courts against estate of a decedent is controlled by local law. Explained in Green v. Creighton, 23 How. 107, 16 L. 423, where court holds Federal courts have jurisdiction over executors and administrators, where parties to suit are citizens of different States, and this jurisdiction is not barred by subsequent proceedings in insolvency in State Probate Court. Cited in Ellis v. Davis, 109 U. S. 498, 27 L. 1010, 3 S. Ct. 335, and Geilinger v. Philippi, 133 U. S. 257, 33 L. 617, 10 S. Ct. 269, without special application. Cited, arguendo, in Borer v. Chapman, 119 U. S. 600, 30 L. 537, 7 S. Ct. 349, Burt v. Keyes, 1 Flipp. 67, F. C. 2,212, and Welmer v. Atlanta & Richmond Ry. Co., 2 Woods, 421, F. C. 17,775, where authorities are collected; In re Askew, 3 Bank. Reg. 575, 2 Fed. Cas. 31. Cited in collection of cases on general subject, Wadley v. Blount, 65 Fed. 674, and Smith v. Ford, 48 Wis. 155, 2 N. W. 159, without special application. Cited, arguendo, in Adams v. Mercantile Trust Co., 66 Fed. 620, 621, 30 U. S. App. 204, holding actual seizure is not always necessary in order to give exclusive jurisdiction over property to a court in which suit affecting such is pending; Compton v. Jesup, 68 Fed. 279, 31 U. S. App. 486, and Martin v. Fort, 83 Fed. 24, 54 U. S. App. 326. Cited in Byrne v. McDow, 23 Ala. 410, where court holds a decree of insolvency by State court does not preclude creditor from denying truth of decree in Federal court; Gay v. Brierfield Co., 94 Ala. 308, 313, 316, 317, 33 Am. St. Rep. 126, 131, 134, 136, 11 So. 355, 357, 358, 359, 16 L. R. A. 566, 568, 570, where authorities are reviewed, and exception to general rule that no court can interfere with the proceedings of a court of concurrent jurisdiction, pointed out. See monographic note, 29 Am. St. Rep. 311, where general subject is discussed and authorities reviewed.

Distinguished in Black v. Scott, 9 Fed. 190, holding jurisdiction of United States District Court, to determine rights of parties under mortgage, is not defeated by mortgagor's assignment under State insolvency laws; Ball v. Tompkins, 41 Fed. 490, holding the pendency of a suit in one court is no bar to exercise of jurisdiction in determination of same question in another; to same effect, Briggs v.