as the jurisdiction does not depend entirelying an ex parte appointment of a receiver, as upon citizenship, although a separate suit against subsequent proceedings of attach: against the attachment creditors would have ment and sequestration in a Federal court, come within that section. Sonnentheil v. if determined on grounds which did not in Christian Moerlein Brew, Co.

492 volve Federal questions, is not subject to 16. A suit by a receiver of a Federal court review by writ of error from the Supreme for the collection of assets is merely ancil. Court of the United States. Remington Palary to the suit in which he was appointed, / per Co. v. Watson, so that, if the jurisdiction of the original 25. A claim that a judgment holding a resuit depended on diverse citizenship, an ap-ceiver of a national bank to be a trustee is peal from the decision in the ancillary suit "contrary to law” does not raise a Federal can be taken only to the circuit court of ap- question. Capital Nat. Bank v. First Nat. peals. Pope v. Louisville, N. A. & C. R. Co. Bank,

502 814

| 26. A decision that money in the hands of 17. A decree of the circuit court of appeals a receiver of a national bank is held in trust in a case in which the jurisdiction at the out and has never been part of the assets of the set depended on diversity of citizenship is bank, when rendered on general equitable final, even if another ground of jurisdiction principles, does not involve any Federal was alleged in a supplemental bill by which question which will sustain a writ of error a new defendant was made a party. Third to the state court.

Id. Street & S. R. Co. v. Lewis,

766 27. The fact that a defendant is a receiver Of circuit court of appeals.

appointed by a Federal court does not raise 18. A judgment in an action at law a Federal question which will sustain a writ against the United States under the act of of error to a state court from the Supreme Congress of March 3, 1887, is reviewable by Court of the United States, where the questhe circuit court of appeals on writ of er- tions involved are questions of general law, ror. United States v. Harsha,

including the inquiry whether a receiver is

responsible for the acts of his predecessor in b. Over Courts of Territory or Indians. office. Bausman v. Dixon,


28. An injunction by a state court against See also supra, 3.

interference with the construction or mainte19. An appeal from a decision of the tribal

nance of a sidewalk and curbing in front of authorities in the Indian territory, or of an

defendant's premises, where he has forcibly Indian commission created by Congress, may

interfered, claiming that his property is bebe authorized by act of Congress. Stephens

ing taken without compensation, does not v. Cherokee Nation,

present a Federal question, when the court

assumes his right to damages, but holds that 20. The appellate jurisdiction of a capital he has mistaken his remedy and must resort case from the United States court for thel to another proceeding for damages. Mcnorthern district of the Indian territory, | Quade y. Trenton.

581 given by the act of Congress of March 1, 1895, to the appellate court of the United

| 29. Error in the estimate of the amount of States for that territory, is exclusive, and

capital employed in a state and subject to supersedes the provisions of the acts of Feb

tax therein does not present a Federal quesruary 6, 1889, and March 3, 1891, respecting

tion on writ of error to a state court. New the jurisdiction of the Supreme Court of the York, Parke D. & Co., V. Roberts,

York, Parke D. & Co., v. Roberts, 323 United States. Brown v. United States, 30. The loss of a right under the Constitu

312 |tion of the United States by action or fail. 21. Accrued interest legally due on a claim ure to act does not present a Federal quesat the time of a judgment dismissing the tion for W case is to be included in determining the Pierce v. Somerset Railway,

316 amount in issue for the purpose of jurisdic. 3). A Federal question is presented by the tion on writ of error. Guthrie Nat. Bank determination of a state court as to whether v. Guthrie,

796 | the right given by act of Congress to the

"legal representatives" of a person is for the e Over State Courts.

benefit of his next of kin, to the exclusion of

his creditors, or not. Briggs v. Walker, 22. Error of a circuit court in remanding

243 a case to a state court is not ground of writ 32. A claim that a lien on property was of error to review the subsequent decision of wholly devested by foreclosure proceedings the case by the state court. Nelson v. Mo- in a Federal court involves such an assertion

934 | of a right and title under an authority exerFederal questions.

cised under the United States as gives the 23. There must be a real and substantial Supreme Court of the United States jurisdicdispute as to the effect or construction of the tion to re-examine the final judgment of the Constitution or of some law of the United state court. Pittsburgh, C. c. & St. L. R. States, upon the determination of which the Co. v. Long Island Loan & T. Co. 528 recovery depends, in order to make such | 33. The dismissal of an appeal on the question a ground of jurisdiction in Federal ground that it is prematurely taken does not courts. McCain v. Des Moines, 936 present a Federal question. Chappell Chem. 24. A judgment by a state court sustain-'ical & F. Co. v. Sulphur Mines Co. 520

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34. The dismissal of a writ of habeas cor- | How raised. pus by the highest court of the state having 42. No particular form of words or jurisdiction of the case is reviewable by the phrases is required for the assertion of a Supreme Court of the United States on writ claim of Federal rights to present a question of error, if it denies the prisoner any right for writ of error from the Supreme Court of specially set up and claimed by him under the United States to a state court, but, if the Constitution, laws, or treaties of the such rights were specially set up or claimed United States. Tinsley v. Anderson, 91 in the state court, in such manner as to bring

35. A decision by a state court as to the them to the attention of that court, it is suffi. title to lands claimed by both parties under cient Green Bay & M. Canal Co. v. Patten

364 patents from the state, and holding that the Paper Co. lands are embraced in one patent but not in 43. An explicit allegation that a claim is the other, does not present a Federal question founded on certain acts of Congress and a for review by the Supreme Court of the Unit- contract with the United States is sufficient ed States. White v. Leovy,

907 to present a Federal question for review by 36. The decision of a state court that the the Supreme Court of the United States, if final determination of title provided for by the alleged right is denied by the state court.

Id. a contract related to pending proceedings in the Land Department, and not to a cancela. 44. A Federal question may be sufficiently tion by the Secretary of the Interior of a presented, although it is not so set up or withdrawal order made before the date of the claimed in a declaration as to be decided in contract, does not present a l'eueras question passing on a demurrer, where it is presented for review by the Supreme Court of the subsequently by a motion to the court, and United States. Allen v. Southern P. R. Co. its denial assigned as error on appeal to the

775 highest court of the state. Meyer v. Rich37. The decision of a state court denying mond,

374 the validity of a statute which was the foun 45. A Federal question sufficiently apdation of a contract, and in reality giving ef-pears, although the complaint does not menfect to subsequent statutes which impair the tion the Constitution of the United States, obligation of the contract, presents a Federal where the whole theory of the case is the question for the purposes of a writ of error impairment by statute of a contract created from the Supreme Court of the United by a prior statute, and the presentation and States, although the state court, in its opin- decision of this question appear from the recion, considers only the act which it holds ord and opinion of the state court. Colum. void and does not discuss the later acts. Mc-bia Water Power Co. v. Columbia Electric Cullough v. Virginia, 382 Street R. Co.

521 Other questions also.

Highest state court. 38. The determination by a state court of 46. A writ of error to the court of appeals a Federal question adversely to plaintiff in of Colorado from the Supreme Court of the error will not sustain the jurisdiction of the United States, in a case involving the valid. Supreme Court of the United States, if an ity of regulations of the Secretary of Agriother question, not Federal, was also raised culture concerning diseased cattle, in which and decided against him and the decision the question of the constitutionality of the thereof is sufficient, notwithstanding the acts of Congress on the subject was raised, Federal question, to sustain the judgment. but the court held that the regulations were Harrison v. Morton,

63 not authorized by the statute, will not lie on Pierce v. Somerset Railway,

316 the ground that the supreme court of the Chappell Chemical & F. co. v. Sulphur Mines state, which has jurisdiction to decide conCo.

517 stitutional questions, would not have taken 39. A Federal question which will support other grounds, when it has not so decided or

jurisdiction because the judgment rested on a writ of error to a state court is not raised had any opportunity to do so.

Mullen v. by a decision of a state court against the va- Western Union Beef Co.

635 lidity of a statute under which bonds were issued, although it had held the statute val

III. TRANSFER OF CAUBE. id before their issue, where its decision is based on the Constitution and laws of the 47. The two years' limitation of time for state. Turner v. Board of Commissioners, taking a writ of error from the Supreme

768 Court of the United States to a state court Time when question must be raised.

is not altered or affected by the provision of 40. A writ of error to a state court will the act of Congress of 1891, § 6, limiting the be dismissed when no Federal right was spe circuit court of appeals to one year. Allen

time for an appeal or writ of error to the cially set up or claimed until after the judy. v. Southern P. R. Co.

775 ment in the highest court of the state, when the petition for the writ was filed. Califor: action of the trial court in vacating an at

48. Interveners who did not except to the nia Nat. Bank v. Thomas,


tachment and dismissing the action, and who 41. A Federal question is raised too late were not parties to proceedings in error in a for writ of error to a state court when pre territorial court which decided the case withsented on application to the supreme court out any suggestion that their presence was for a rehearing. Capital Nat. Bank v. First necessary, are not necessary parties on ap; Nat. Bank,

502 ' peal to the Supreme Court of the United

States from a dismissal of the cause for want tration to others and for her own appointof jurisdiction. Central Loan & T. Co. v. ment as administratrix is denied on the Campbell Commission Co.

623 ground that oer divorce in another state

from a former husband was void, must be IV. RECORD AND CASE ON APPEAL. dismissed when the possibility of issuing any

| letters of administration has been superseded 49. A statement of facts not filed within by the probate of a will, although the disthe time required by Ariz. Rev. Stat. $$ 843- missal leaves her bound by the adjudication 845, cannot be considered as part of the rec- that she was not the widow of the deceased. ord on appeal from the supreme court of that

Id. territory. Cohn v. Daley,


57. A writ of error to a state court will 50. A letter of an attorney withdrawing be dismissed when the decision was based on appearance may be brought into the record a local or state question and it is unnecesby bill of exceptions which sets it forth at sary to decide any Federal question. White length and states that it was filed by the v. Leovy,

907 plaintiff in the case. Rio Grande I. & C. Co. v. Gildersleeve,


VII. HEARING AND DETERMINATION. 51. A bill of exceptions may be taken to include all the evidence, although it does not expressly state that fact, if the entries suffi

a. In General. ciently show that all the evidence is included. Gunnison County v. R. H. Rollins & 58. The extent of the review authorized Sons,

i89 on appeal to the Supreme Court of the Unit52. An assignment of error raising a Fed-ed States in citizenship cases from the Uniteral question as to the validity of a personal ed States court in the Indian territory, unjudgment against a nonresident of the state, der the act of Congress of July 1, 1898, is who had no personal notice, in an assessment limited to the constitutionality or validity proceeding, is not sufficient to raise a Fed of the legislation affecting citizenship or the eral question as to the validity of the assess- allotment of lands in the Indian territory. ment with respect to the property assessed. Stephens v. Cherokee Nation,

1041 Dewey v. Des Moines,

665 59. On appeal from the supreme court of 53. The loss of the jurisdiction of a state a territory, if there is no finding of facts or court by the pendency of a petition for re- statement of facts in the nature of a special moval of the case to a Federal court is not verdict, it must be assumed that the judg. shown by a record on writ of error, which ment was justified by the evidence. Mardoes not contain the grounds of the petition shall v. Burtis, for removal or the petition itself, and where 60. It must be assumed that the evidence the fact that this was filed appears only by supports the judgment on appeal from a ter. recital and by the opinion of the court. ritorial court in which there is no statement Chappell Chemical & F. Co. v. Sulphur Mines of facts in the nature of a special verdict Co. (2)

520 | under the act of Congress of April 7, 1874. Cohn v. Daley,

1077 V. EXCEPTIONS; MODE OF RAISING QUES. 61. On appeal from the supreme court of TIONS.

a territory, when no jury was had and there

are no questions as to the admission or exSee supra, IV.

clusion of testimony, the only question to

consider is whether the findings of fact susVI. DISMISSAL. tain the decree. Naeglin v. De Cordoba,

315 See also supra, 40.

62. Questions as to the legal title to lands,

and the right to erect a steam plant for use 54. A dismissal of an appeal when the appellant was the proper party to take the ap-dent of a right to put an electric plant on pellant was the proper marity to take the when water power is unavailable, as an inci. peal and was entitled to hearing cannot be the banks of a canal for the use of water justified by his admission on the appeal as

power, are not reviewable on writ of error to the merits of the case against him, but | from the Supreme Court of the United States the proper judgment in such case is an af. Ito a state court. Columbia Water Power firmance. Bosworth v. Terminal R. Asso. I Co. v. Columbia Electric Street R. Co. 521


Qualification of judge. 55. Laches of parties cannot prevent the 63. A judge who appointed a receiver in dismissal of a writ of error, when the ques. | foreclosure suit and made an order allowing tion involved has become a moot question, I him a monthly sum for services, and also the decision of which cannot affect the re- rendered the final decree of foreclosure and lief to be ultimately granted in the case. I decrees for delivery of possession, is prohibKimball v. Kimball,

932 | ited by the act of Congress of March 3, 1891, 56. A writ of error to review a decision by chap. 517, § 3, to sit in the circuit court of a state court on the ground that it denied appeals on an appeal from the decree of anfull force and credit to a decree of divorce other judge concerning the monthly compenrendered in another state, because the petisation of the receiver after a certain com. tion of a woman claiming to be a decedent's promise between him and purchasers on the widow for revocation of letters of adminis. 'foreclosure. Moran v. Dillingham, 930

579 941



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b. Objections Waived or Cured Below. | firmance, notwithstanding error of an inter

mediate court in making a formal order of 64. Merely charging the jury that puni. dismissal instead of an affirmance. Box tive damages cannot be recovered will not worth v. Terminal R. Asso. cure the erroneous admission of evidence, in

74. On reversing a judgment for error as a libel case, of the wealth of one of the de-to'

to some of the defendants, the court hus fendants, when this evidence is not specifi

power to reverse it in toto and grant a new cally withdrawn. Washington Gaslight Co.

trial in regard to all the defendants, if it V. Lansden,


might work injustice if left intact as against

one of the defendants only. Washington c. Decisions on Facts. Gaslight Co. v. Lansden,

543 See also supra, VII. a.

75. An appeal will not lie from a decision

in exact accordance with the mandate on a 65. The relation of a person to the busi- previous appeal. United States v. New York ness of a corporation is one of fact, which is Indians,

769 not open to inquiry on writ of error to a 76. A mandate to the court of claims on state court. New York, Parke, D. & Co., v. reversal of its judgment, directing the entry Roberts,

of a judgment in favor of certain tribes of 66. Alleged errors in the admission or re- Indians for the value of lands granted them jection of evidence cannot be passed upon by by a treaty, does not leave the court at libthe Supreme Court of the United States on erty to redetermine who were the parties to appeal from a territorial court, where this the treaty entitled to the benefit of its procannot be done without examining the visions.

1a. weight of the evidence and disregarding the

77. Denial of motion to amend mandate. facts as found. Young v. Amy,

Central Nat. Bank v. Stevens, 67. The successive decisions of two courts

78. Modification of decree Smyth v. in the same case, on questions of fact, are not | Ames. to be reversed unless clearly shown to be orroneous. Smith v. Burnett,


See ACTION OR SUIT, 4; APPEAL AND ERd. Discretionary Rulings.

ROR, 50. 68. The denial of a motion to set aside a | APPRAISEMENT. judgment will not be reversed unless a mis. See DUTIES, 10, 11. use or abuse of discretionary power plainly appears. Rio Grande I. & C. Co. v. Gilder


1103 1. An agreement to arbitrate, not under 69. The decision of a motion for leave to rule of court or within the terms of a stat discontinue will not be reviewed on appeal ute enacted for such purpose, is a contract. except for abuse of the discretion of the District of Columbia v. Bailey,

119 court. Pullman's Palace Car Co. v. Central 2. A common-law submission of a pendTransp. Co.

108 | ing controversy for breach of contract, to a

referee, is not within the power of the com e. What Errors Warrant Reversal.

missioners of the District of Columbia, up

der the act of June 11, 1878, chap. 180, $ 3. 70. The rejection of pleas is immaterial, I providing that they shall make no contract when the defendant had all the advantages and incur no obligation which is not providthat he could have had under them by virtue ed for and approved by Congress. of another plea. Johnson v. Drew, 88

ARCHIVES. 71. A claim that a jury separated before

See EVIDENCE, 12. the verdict was returned is ineffectual, where that fact does not appear on the record, but ARMY. it does appear that a sealed verdict was re See PRIZE, 2. turned, under agreement of counsel for both parties in open court and in the presence of ARREST. the defendant. Pounds v. United States,

See REWARD. 62

ASSESSMENT. 72. The dismissal of an information

See INJUNCTION, 7, 8; PUBLIO IMPROVEshould be affirmed when there was an ab MENTS; TAXES, 17. sence of proof of material facts raised by the issues, and the case was submitted on the ASSIGNMENT. pleadings, although defenses raised by See CLAIMS, 4; COURTS, 10-12. amended and supplemental answer may have been erroneously deemed by the court below | ASSOCIATIONS. to be sufficient. United States v. One Dis.




STITUTIONAL LAW, 11; COURTS, 2. 73. The cost of appellate proceedings 1. The right to proceed by attachment should be paid by the appellant on final af.' against the property of a nonresident, which



is found within the jurisdiction, is not de- of actual insolvency. George M. West Co. nied by the organic act of Oklahoma terri. v. Lea Bros. & Co.

1098 tory, providing that the court cannot acquire jurisdiction of the person of a defendant by BANKS. constructive service by foreign attachment See also APPEAL AND ERROR, 25, 26 ; without its consent. Central Loan & T. Co. BILLS AND NOTES, 4, 6; EQUITY, 2; v. Campbell Commission Co.

623 Taxes, 8–12. 2. An attachment issued before the issue

1. A national bank which itself purance of a summons is void under Ariz. Rev. l chases notes that it holds as collateral seStat. 1887, 140, as amended by the act of curity. when it has been directed to sell March 6, 1891, allowing attachment “at the them to a third party, may be held liable time of issuing the sunmons or at any time for their value as for a conversion. even afterward.” Henrietta Min. & M. Co. v. though it is not within the power of the Gardner,

037 | bank to sell them as the owner's agent. 3. The right to issue an attachment "at First Nat. Bank.v. Anderson,

558 the commencement of the suit, or at any time 2. A secured creditor of an insolvent naduring its progress," as given by Ariz. Rev. tional bank may prove and receive dividends Stat. 1887, tit. 4, chap. 1, | 42, is taken away upon the face of his claim as it stood at the by the provision of the act of March 6, 1891, time of the declaration of insolvency, withauthorizing attachment at the issuance of out crediting either his collaterals or collecsummons, or at any time afterward. Id. tions made therefrom after such declaration,

4. A statute providing that an assignee subject always to the proviso that dividends for creditors shall pay the debts of those must cease when from them and from colcreditors who file releases of their claims laterals realized the claim has been paid in against the assignor, and repay to him any full. Merrill v. National Bank, 640 surplus, is in substance and effect an insol. 3. The bankruptcy rule which requires vent law, which is operative as to property the holder of collateral security to exhaust attached in another state only so far as the it and credit the proceeds on his claim, or courts of that state choose to respect it. Se else to surrender it, before he can prove his curity Trust Co. v. Dodd,

835 claim, is not adopted for national banks by ATTORNEY GENERAL.

U.S. Rev. Stat. § 5236, providing for a rata

ble dividend on claims proved or adjudi. Garland, death of



4. A secured creditor of an insolvent naSee also ACTION OR SUIT, 4.

tional bank is not estopped from claiming

the right to prove his full claim, by tempoA city attorney has no power to bind rarily submitting to an adverse ruling of the the city by a contract that a controversy, as comptroller, when other creditors have not to which no litigation is pending, shall abide been' harmed thereby.

Id. the result of a pending litigation, under Ky. 5. A national banking association has no Rev. Stat. § 2909, making it his duty to give opinions, prosecute and defend suits, and at.

power or authority to purchase with its surtend to other legal business prescribed by the

plus funds as an investment, and hold as

such, shares of stock in another national council. Stone v. Bank of Commerce,

no bank. First National Bank v. Hawkins,


6. An ultra vires contract of a national

bank purchasing as an investment shares in AVERAGE.

another such bank cannot make it liable as a

stockholder on the ground of an estoppel A right to general average contribution for sacrifices made and suffered in sav. ||

against alleging the unlawfulness of its own act.

Ia. ing a vessel, freight, and cargo, after the ves. sel, although seaworthy at the beginning of

7. A shareholder does not withdraw or the voyage, has been stranded by the negli

permit the withdrawal of the capital of a na. gence of her master, cannot be claimed by

tional bank in violation of U. Š. Rev. Stat. · the shipowner by virtue of the Harter act

18 5204, by merely receiving in good faith of February 13, 1893, § 3, which exonerates

dividends which are declared when there him from liability for the master's negli.

are no net profits to divide, but which he gence. Flint, E. & Co. v. Christall,

honestly supposes are declared only out of

profits. McDonald v. Williams, 1022 AWARD.

8. The rediscounting of paper by one See ARBITRATION.

bank with another cannot be held, as a mat.

ter of law, to be out of the usual course of BANKRUPTCY.

business, so as to charge everybody connected Orders in

1189 with it with knowledge that it may be in exForms in


cess of authority. Auten v. United States See also BANKS, 9, Nat. Bank, .

920 A deed of general assignment for cred 9. The mailing of checks and remittances itors constitutes in itself an act of bankrupt- by a bank to another with which its account cy which per se authorizes an adjudication is constantly overdrawn, in accordance with of involuntary bankruptcy under $ 3 of the a general understanding that the proceeds act of Congress of 1898 entirely irrespective of such remittances are not to be returned


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