partnership, maintain a suit in chancery for his share of the profits, р. 141.

Cited in Setzer v. Beale, 19 W. Va. 288, arguendo.

Pleading.- Allegation of complainant in his bill "that he be came interested in a ship and cargo at and from Gibraltar" is decisive of question of time and shows he had no interest until she arrived at Gibraltar, p. 142.

Where a master and supercargo was to receive a certain sum per month as wages, and a certain additional commission and share of profits, he had no right to traffic upon his own account, p. 143.

Maritime contract, - If, after loss of vessel, the master and supercargo charters another, using capital of his partners and informing owners of his willingness to continue upon the same terms, they not objecting, rules regulating transactions in first ship govern, p. 145.

Miscellaneous.- Cited generally in Smith v. Evans, 37 Ind. 532.

6 How. 146-163, 12 L. 380, CURTIS v. INNERARITY.

Damages. - Where a person contracting to pay money upon a certain day, fails to fulfil his contract, he must pay the established rate of interest as damages for non-performance, such is the implied contract of the parties, p. 154.

Cited in Spalding v. Mason, 161 U. S. 395, 40 L. 746, 16 S. Ct. 600, holding interest should be allowed upon money due where defendant refused to account; Mason v. Callender, 2 Minn. 363, 365, 72 Am. Dec. 105, 107, clause in note, stipulating for 5 per cent. per month after due, is not, strictly speaking, a stipulation to pay interest, but an attempt to liquidate damages. Cited, arguendo, in Leach v. Smith, 25 Ark. 253, holding, where party failed to perform contract for payment of Confederate money, the measure of damages was the value of the money at the time it was due; also in note, 6 Am. Dec. 191.

Damages.- The doctrine of the civil law, "that the vendee is not liable for interest where he received no profits from the thing purchased," applies only to executory contracts silent as to interest, p. 156.

Damages.- That a purchaser was put to much trouble and expense to obtain a recognition of his title, is not an objection to the allowance of interest, where payment was not made at agreed time, p. 156.

Principal and agent.- Where vendor gave power of attorney to agent to receive a payment on account, and agent gave receipt in full for certain balances, by way of adjustment and compromise, and vendor disapproved of agent's acts, the payment is not good, even on account, p. 162.

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Cited in Rohr v. Anderson, 51 Md. 215, in the absence of an agreement founded upon a consideration, a payment to an attorney will not satisfy a judgment for a greater sum.

Miscellaneous. - Cited in English v. Helms, 4 Tex. 234, but not in point.

6 How. 163-190, 12 L. 387, SHELTON V. TIFFIN.

Federal courts. The declaration or bill must contain an allegation of the citizenship of the parties; an averment of residence is insufficient, p. 184.

Cited and applied in Cleveland, etc., Ry. v. Monaghen, 140 III. 485, 30 Ν. Ε. 871, holding petition averring that plaintiff was and is a resident of Illinois, would not justify the removal of a cause to United States court.

Citizenship - Residence. - On a change of domicile from one State to another, citizenship may depend upon the intention of the individual, shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is conclusive, p. 185.

Cited and approved in Hairston v. Hairston, 27 Miss. 720, 61 Am. Dec. 534, continued residence for ten years, and the exercise of the right of voting are conclusive as to citizenship; Mowry v. Latham, 17 R. I. 481, 23 Atl. 13, the domicile chosen by a ward was his legal domicile; Kellogg v. City of Oshkosh, 14 Wis. 628, the place where a single man resided most of the time, conducted his principal business, and voted, determines his residence; arguendo, in Dutcher v. Dutcher, 39 Wis. 658, a person removing to a State for the purpose of prosecuting a divorce against husband residing there, is a resident within the statute.

Distinguished in Easterly v. Goodwin, 35 Conn. 285, 95 Am. Dec. 239, where court found that residence of plaintiff in California was temporary, and although he voted there, his citizenship remained in another State.

Citizenship.- An individual who has resided in a State for a considerable time, being engaged in cultivating and improving a large plantation, upon which he lives, is presumed to be a citizen of such State, p. 185.

Cited in Anderson v. Watt, 138 U. S. 706, 34 L. 1082, 11 S. Ct. 452, a man living and carrying on business in New York, did not become a citizen of Florida by reason of periodical visits to country home purchased for invalid wife, and residence of husband is residence of wife; Blair v. Western Female Seminary, 1 Bond, 580, F. C. 1,486, where a person went to a State with the purpose of permanently residing there, and did reside there four years, voting in the meantime, he became a citizen of that State, although his family remained at his former domicile; Fitzgerald v. Arel, 63 Iowa, 107, 50 Am. Rep. 735, 16 N. W. 714, and Blair v. Silver Peak Mines, 93 Fed. 335, allegation of citizenship sufficiently established by prima facie proof that complainant has been a resident and property-owner for seventy years, a person renting a house and setting up housekeeping, with design of remaining until he has completed certain work, is a resident of that county; Shaw v. Brown, 35 Miss. 314, where negroes acted as free persons and were so regarded in the community, it must be presumed that their residence was legal; arguendo, in Fremont v. Merced Mining Co., McAll. 268, F. C. 5,095, to the point that an issue as to citizenship, arising in an equity suit, may be tried by the court.

Injunction against judgment. - Where fraud is alleged and relief is prayed against a judgment, and a judicial sale of the property in controversy, complainant is entitled to relief in a court of equity, p. 185.

Cited in Pratt v. Curtis, 6 Bank. Reg. 141, 2 Low. 89, F. C. 11,375, holding United States courts have jurisdiction in equity to set aside a deed in fraud of creditors; Lee v. Hollister, 5 Fed. 757, to the same effect; Harshey v. Blackmarr, 20 Iowa, 179, 89 Am. Dec. 527, decree and sale made under judgment against a non-resident who had no notice or service, and for whom attorneys fraudulently appeared and answered, were nullities; Boro v. Harris, 13 Lea, 43, judgment as ejectment against infant, no bar to suit by him for recovery of land; also in note, 54 Am. St. Rep. 255.

Estoppel - Appeal and error.- An entry in the record that a party to a suit came personally into court and waived process, cannot be controverted, p. 186.

Cited in Logansport Gas Co. v. Knowles, 2 Dill. 423, F. С. 8,467, holding the judgment of a sister State conclusive where the record alleges personal service of summons.

Attorney and client - Voluntary appearance. - Where an attorney appeared for joint defendants and waived process, without being authorized to do so by one of them, such defendant, not being personally served, is not bound by the proceedings, and the judg ment as to him is a nullity, and did not authorize the seizure and sale of his property, p. 186.

This holding has been widely affirmed and followed by citing cases: Ex parte Bryan, 2 Hughes, 282, 14 Bank. Reg. 81, F. C. 2,061, holding an illegal sale by order of a register, does not become valid upon confirmation by the judge; Arnott v. Webb, 1 Dill. 363, F. C. 562, in an action on a judgment, defendant is not estopped from showing that he was never served, and never appeared, nor author ized or assented to the employment of counsel who filed the answer; Lavin v. Emigrant Industrial Bank, 18 Blatchf. 25, 1 Fed. 664, a judicial determination, in another State, that a man is dead, made in his absence and without notice to or process issued against him, is

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not conclusive; De Kraft v. Barney, 30 Fed. Cas. 1071, a personal judgment obtained against a non-resident who was not served with process, and did not appear, is not binding in another State; Nettleton v. Mosier, 3 Fed. 389, the appointment of a guardian for a minor, neither residing nor owning property in the county, may be attacked in a collateral proceeding; Romaine v. Union Ins. Co., 28 Fed. 638, vacating the service of subpœna served outside the district; Mills v. Scott, 43 Fed 455, judgment against a defendant who was not served with process, and whose appearance was entered by an unauthorized attorney, may be enjoined; First Nat. Bank v. Cunningham, 48 Fed. 514, judgment confessed by attorney appearing without knowledge of maker of note, already satisfied, is void; Lapham v. Campbell, 61 Cal. 300, where default judgment was entered in another State upon a false affidavit of service of summons, the same may be shown in an action for relief against judgment; Great West. M. Co. v. Woodmas, etc., M. Co., 12 Colo. 53, 54, 61, 13 Am. St. Rep. 210, 211, 216, 20 Pac. 775, 778, judgment rendered without service and upon the unauthorized appearance of an attorney, is void; Handley v. Jackson, 31 Or. 557, 65 Am. St. Rep. 842, 50 Pac. 917, it is competent to hear evidence aliunde offered for purpose of overcoming presumption of attorney's authority to enter appearance; Sherrard v. Nevius, 2 Ind. 243, 52 Am. Dec. 510, suit upon judgment not sustainable, where attorney appeared for a former member of a partnership, upon whom there was no service, without authority; Reed v. Wright, 2 G. Greene, 37, judgment and sale of property by virtue of unconstitutional laws, is void; Harshey v. Blackman, 20 Iowa, 172, 173, 182, 183, 185, 89 Am. Dec. 522, 523, 530, 531, 532, decree and sale, made under judgment against a non-resident who had no notice or service, and for whom attorneys fraudulently appeared and answered, were nullities; Pollard v. Baldwin, 22 Iowa, 332, in action upon a foreign judgment, defendant may show that he was not, in fact, served with process; Newcomb v. Dewey, 27 Iowa, 390, to the same effect; Mastin v. Gray, 19 Kan. 463, 465, 469, 27 Am. Rep. 152, 155, 158, permitting defendant to impeach deed, judgment and constable's return, by showing that return was false, and proof of non-residence; Reynolds v. Fleming, 30 Kan. 112, 46 Am. Rep. 89, 1 Pac. 65, where attorney appeared for defendant without authority, judgment is void; Eaton v. Hasty, 6 Neb. 427, 29 Am. Rep. 368. evidence that defendant fraudulently obtained judgment of revival in the form it was rendered, should have been received; Keeler v. Elston, 22 Neb. 312, 34 N. W. 892, to the same effect; Price v. Ward, 25 N. J. L. 229, want of authority in attorney who appeared, may be shown in avoidance of judgn nt; Kerr v. Kerr, 41 N. Y. 275, divorce granted in another State, neither party residing there, without service upon defendant or authorized appearance for her, is invalid in New York; Handley v. Jackson, 31 Or. 557, 65 Am. St. Rep. 842,

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50 Рас. 917, evidence to negative authority of attorney to enter an appearance of an unserved defendant, is competent; Latimer v. Latimer, 22 S. C. 263, a judgment recovered by an attorney without authority or knowledge of plaintiff, may be set aside as void; Bowler v. Huston, 30 Gratt. 275, 32 Am. Rep. 679, in action on judgment rendered in another State, it is competent for defendant to plead and prove that he was not summoned and did not appear in person or by attorney; McEachern v. Brackett, 8 Wash. 655, 40 Am. Rep. 925. 36 Рас. 691, setting aside decree of foreclosure, where defendant was not served and did not appear or authorize the appearance of attorneys; Kaufmann v. Drexel, 56 Neb. 233, 76 N. W. 561, the fact that attorney's appearance was unauthorized, may be shown.

Cited, arguendo, in Melhop v. Doane, 31 Iowa, 400, 7 Am. Rep. 149, action not maintainable upon judgment in rem, obtained in another State against defendant neither appearing nor personally served; Sperry v. Reynolds, 65 N. Y. 188, applying this doctrine to judgments rendered by justices' courts; Ferguson v. Crawford, 70 Ν. Υ. 258, 260, 26 Am. Rep. 592, 594, holding recitals of jurisdictional facts in record of judgment are only prima facie evidence; Weber v. Yancy, 7 Wash. 89, 34 Pac. 474, a void discharge in insolvency proceedings does not bar action obtained on judgment. Cited generally in Osborn v. Michigan A. L. R. R. Co., 2 Flipp. 506, F. C. 10,594.

Approved in Brown v. Nichols, 42 N. Y. 40, in dissenting opinion, per Grover, J., majority holding judgment against defendant, who was not served with process, had no knowledge of suit, nor authorized attorney to appear, cannot be attacked collaterally and is binding; arguendo, in People v. Dowell, 25 Mich. 267, in dissenting opinion. Cited in exhaustive note, 75 Am. Dec. 147, 149, 150; also 5 Am. Dec. 245, 16 Am. Dec. 100, 7 Am. Rep. 136.

Distinguished in Dale v. Redfield, 23 Blatchf. 17, 22 Fed. 515, where merchants employed agents, to appoint attorneys, bring and control suits for the recovery of duties, judgment being given against merchants for failure to serve bill of particulars, they were estopped thereby; Daily v. Doe, 3 Fed. 918, holding seizure and possession of a vessel by marshal under process of the District Court in admiralty proceedings, is notice to all persons interested; Kansas City, Ft. S. & M. R. Co. v. Morgan, 76 Fed. 438, 47 U. S. App. 1, an infant suing by his next friend is bound by the judgment; Horner v. Doe, 1 Ind. 133, 48 Am. Dec. 358, where record showed nothing regarding notice to infant defendants, jurisdiction will be presumed in a collateral proceeding, in the absence of proof showing want of notice; Wiley v. Pratt, 23 Ind. 633, in suit to set aside judgment and sale of property on the ground of fraudulent appearance by an attorney, the complaint not alleging citizenship in another State, and the existence of a defense to the merits, was demurrable; Vilas v. P. & M. R. R. Co., 123 N. Y. 451, 20 Am. St. Rep. 773, 25 N. Ε. 943,