Approved in Oregon Short Line, etc., Ry. v. Skottowe, 162 U. S. 494, 40 L. 1049, 16 S. Ct. 869, and Allen v. Texas, etc., Ry., 25 Fed. 514, holding, by consolidation of Federal with State corporation, former loses no rights as such; United States v. Stanford, 70 Fed. 361, 44 U. S. App. 68, holding stockholders of Central Pacific railway not individually liable to government for bonds advanced to corporation; Chicago, etc., Ry. v. Commissioners, 36 Kan. 128, 12 Pac. 596, reaffirming holding; dissenting opinion in Central Pac. Ry. v. California, 162 U. S. 165, 40 L. 928, 16 S. Ct. 794, majority holding property of Federal corporation taxable by State through its franchise.

Removal of causes.— Objection that removal petition was unverlfiled, or to delay in filing it, is waived if not made at the time, p. 17. Approved in Martin v. Baltimore, etc., Ry., 151 U. S. 683, 38 L. 315, 14 S. Ct. 537, holding objection to Federal jurisdiction because removal petition was filed too late, waived if not taken until trial in Federal court.

Removal of causes.- Missouri proceeding before mayor and jury, to ascertain value of land condemned for widening street, is not a suit within meaning of removal acts; hence, petition for removal, filed pending appeal therefrom to State court, is not too late, p. 18. Approved in Delaware County v. Diebold Safe Co., 133 U. S. 487, 33 L. 680, 10 S. Ct. 403, holding claim against county, appealed from commissioners to County Court, removable before trial in latter; Upshur County v. Rich, 135 U. S. 474, 34 L. 199, 10 S. Ct. 653, holding appeal from tax assessment, to court acting as non-judicial commission, not a suit for removal purposes; In re Chicago, 64 Fed. 898, 901, 903, holding assessment proceedings for municipal Improvement, not a suit; Sugar Creek, etc., Ry. v. McKell, 75 Fed. 35, holding proceeding to enforce, between parties, right to condemn lands, not a suit for removal purposes; Hartford, etc., Ry. 35. holding proceeding to enforce, between parties, right to condemn for eminent domain, not a suit for removal purposes.

Distinguished in Searl v. School Dist., 124 U. S. 199, 31 L. 416, 8 S. Ct. 461, holding Colorado proceeding to condemn land for schools, a suit at law; Mineral, etc., Ry. v. Lake Superior, etc., Co., 25 Fed. 517, holding Michigan condemnation proceedings in Probate Court, a suit for removal purposes; Colorado, etc., Ry. v. Jones, 29 Fed. 193, holding, where only question remaining for determination in condemnation proceedings is computation of value of land, cause not removable; Brodhead v. Shoemaker, 44 Fed. 525, 11 L. R. A. 571, and n., holding Georgia proceeding to contest will a suit for removal purposes; In re The Jarnecke Ditch, 69 Fed. 165, holding Indiana proceeding to establish drain a controversy of civil nature:" In re Stutsman County, 88 Fed. 340, holding North Dakota proceedings for collection of delinquent taxes, a suit within removal acts.

Removal of causes.- Controversies between property-owners and city, in Missouri proceeding for widening streets, are distinct and separate; hence, Federal corporation, property-owner, may remove its controversy to Federal court, notwithstanding proceedings as to other owners may be indirectly affected thereby, p. 23.

Approved in Whelan v. New York, etc., Ry., 35 Fed. 863, 1 L R. A. 74, and n., holding action by citizen of Ohio against Ohio and New York corporations, to enforce joint liability, separable for purpose of removal; New York, etc., Ry. v. Cockroft, 46 Fed. 882, holding controversy between railroad and owners of land sought to be condemned, separable from that between railroad and town; Sugar Creek, etc., Ry. v. McKell, 75 Fed. 36, holding controversy between State and non-citizen owner in condemnation proceeding, in which resident lessee of non-resident is made co-defendant, separable for removal purposes; In re Stutsman County, 88 Fed. 342, holding controversy presented by each owner in North Dakota proceeding for collection of delinquent taxes, a separate suit.

Questioned in Mineral Range, etc., Ry. v. Lake Superior, etc.. Co., 25 Fed. 518, doubting whether single non-resident owner, whose land, with that of others, is sought to be condemned, may remove. Distinguished in Bellaire v. Baltimore, etc., Ry., 146 U. S. 119, 36 L. 911, 13 S. Ct. 17, holding condemnation proceedings against lessor and non-resident lessee not removable upon ground of separable controversy between city and lessee; In re City of Chicago, 64 Fed. 902, holding no separable controversy in assessment proceedings for municipal improvement, where court determines parties; In re The Jarnecke Ditch, 69 Fed. 169, holding all parties to Indiana proceedings for establishment of drains inseparably interested in main issue.

115 U. S. 25-28, 29 L. 333, HADDEN v. MERRITT.

Customs duties.- Value of foreign coins, as ascertained by estimate of director of mint and proclaimed by secretary of treasury, is conclusive upon custom-house officers and importers, p. 27.

Reaffirmed in Heinemann v. Arthur, 120 U. S. 85, 30 L. 606, 7 S. Ct. 447, Wood v. United States, 72 Fed. 255, 38 U. S. App. 226, and United States v. Knauth, 77 Fed. 600. Approved in United States v. Klingenberg, 153 U. S. 95, 97, 38 L. 648, 649, 14 S. Ct. 791, 792, holding action of collector in fixing value of foreign coins not appealable to board of general appraisers; United States v. Allston Newhall, 91 Fed. 527, 528, 532, affirming rule and holding basis for fixing value in pure metal, not exchange value.

115 U. S. 29-40, 29 L. 341, WHEELER v. NEW BRUNSWICK, ETC., RY.

Appeal and error.- Circuit Court's finding of fact that certain correspondence created contract of sale, is sufficient to establish

L

Contracts. To annul or set aside contract requires meeting of minds and consent of both parties, p. 34.

Approved in The Sappho, 89 Fed. 369, holding substitution of oral for written agreement requires same meeting of minds as original contract; Lanahan v. Heaver, 77 Md. 609, 26 Atl. 866, 20 L. R. A. 760, agreement to submit case to court without jury; Clæs, etc., Mfg. Co. v. McCord, 65 Mo. App. 509, holding, in absence of fraud, rescission must be mutual; Swift v. Pacific Mail S. S. Co., 106 N. Y. 219, 12 N. E. 589, holding, in absence of conclusive evidence of acceptance of bills of lading in place of contract, latter controls; dissenting opinion in Randolph v. Frick, 57 Mo. App. 406, arguendo; Kuriger v. Joest, 22 Ind. App. 645, 52 N. E. 769, arguendo.

Sales.- Agreement to accept from two to six hundred tons of rails, is agreement to accept any number between two and six hundred tons, at vendor's option, p. 38.

Approved in Dingley v. Oler, 117 U. S. 501, 29 L. 987, 6 S. Ct. 853, holding one bound to deliver, has choice of time permitted by contract; Ahrens, etc., Mfg. Co. v. Hoher, Ky., 51 S. W. 198, holding offer to sell different sizes at different prices gave purchaser right to name quantity of each size; Dambmann, etc. v. Lorentz, etc., 70 Md. 382, 14 Am. St. Rep. 365 (see 17 Atl. 389), holding defendants agreeing to deliver three to five hundred tons, may be compelled to deliver five hundred.

115 U. S. 41-45, 29 L. 331, PIRIE ▼. TVEDT.

Removal of causes.- Joint action in tort against several defendants, either of whom could have been sued separately, is not divided into separate controversies for purposes of removal by separate answers, p. 43.

Followed in Crump v. Thurber, 115 U. S. 61, 29 L. 329, 5 S. Ct. 1157, Starin v. New York, 115 U. S. 259, 29 L. 391, 6 S. Ct. 32, Sloane ▼. Anderson, 117 U. S. 278, 29 L. 900, 6 S. Ct. 732, Fidelity Ins. Co. v. Huntington, 117 U. S. 281, 29 L. 899, 6 S. Ct. 734, Plymouth Min. Co. v. Amador Canal Co., 118 U. S. 270, 30 L. 234, 6 S. Ct. 1037, Little v. Giles, 118 U. S. 601, 30 L. 271, 7 S. Ct. 35, Thorn Wire, etc., Co. v. Fuller, 122 U. S. 543, 30 L. 1237, 7 S. Ct. 1267, Graves v. Corbin, 132 U. S. 588, 33 L. 468, 10 S. Ct. 202, Louisville, etc., Ry. v. Wangelin, 132 U. S. 601, 33 L. 476, 10 S. Ct. 204, Torrence v. Shedd, 144 U. S. 531, 36 L. 531, 12 S. Ct. 727, Powers v. Chegapeake, etc., Ry., 169 U. S. 97, 42 L. 675, 18 S. Ct. 266, Rumsey v. Call, 28 Fed. 771, Stanbrough v. Cook, 38 Fed. 373, 3 L. R. A. 402, Ames v. Chicago, etc., Ry., 39 Fed. 883, State v. Columbus, etc., Ry., 48 Fed. 628, O'Harrow v. Henderson, 52 Fed. 769, and Arrowsmith v. Nashville, etc., Ry., 57 Fed. 169, all holding separate de. fenses to joint action do not create separate controversies for pur poses of removal.

location entitling him to possession against United States, as well as against defendant; hence admission that portion of claim had been patented to stranger, justified instructions for defendant, p. 50. Approved in Erwin v. Perego, 93 Fed. 612, holding claim based upon discovery within limits of another claim, void; Anthony v Jillson, 83 Cal. 300, 23 Pac. 420, holding each party must establish claim against government, as well as against adversary; Lee v. Stahl, 9 Colo. 211, 11 Pac. 78, holding all rights and equities to premises must be adjusted prior to issuance of patent; Kendall v. San Juan, etc., Co., 9 Colo. 357, 12 Pac. 202, holding location tortiously made on Indian reservation, before extinguishment of Indian title, will not avail against location made after land is opened up; Manning v. Strehlow, 11 Colo. 453, 454, 18 Pac. 626, 627, holding issue in action to determine adverse claims, is whether either party was entitled to patent; Girard v. Carson, 22 Colo. 347, 44 Pac. 509, holding defendant may defeat plaintiff by showing better right to claim in third party; Miller v. Girard, 3 Colo. App. 279, 83 Pac. 69, holding locator permitting adjoining claimant to obtain patent for portion of territory, including discovery shaft, loses title to claim; Lalande v. McDonald, 2 Idaho, 289, 13 Pac. 349, holding plaintiffs must establish valid location; Burke v. McDonald, 2 Idaho, 313, 13 Pac. 353, holding right of possession of claim gist of the action; Burke v. McDonald, 2 Idaho, 651, 33 Pac. 51, holding verdict not finding defendants are entitled to possession against government, bad; Deno v. Griffin, 20 Nev. 252, 20 Pac. 309, holding one whose claim has been dismissed, cannot claim that patent issued to another, is void, because irregularly issued; Inez Min. Co. v. Kinney, 46 Fed. 835, remanding case, because Federal point involved had been settled herein; Upton v. Larkin, 7 Mont. 458, 17 Pac. 732, holding portion of discovery being on adjoining claim will not render location invalid.

Distinguished in McFeters v. Pierson, 15 Colo. 207, 22 Am. St. Rep. 393, 24 Pac. 1078, holding plaintiff, in civil action for injuries to claim, need not allege citizenship; South End Min. Co. v. Tinney, 22 Nev. 33, 35 Pac. 93 (but see dissenting opinion in 22 Nev. 59, 35 Pac. 103), holding patent fraudulently obtained by locator, after abandonment, invalid against relocator; Wills v. Blain, 4 N. Mex. 383, 5 N. Mex. 250, 20 Pac. 803, holding plaintiff in action merely for possession, need only show better title than defendant's; Silver City, etc., Co. v. Lowry, 19 Utah, 345, 57 Pac. 12, 13, upholding claim developed in good faith, notwithstanding loss of original discovery by allowing adjoining locator to obtain patent covering

same.

Mines and minerals.- No one can have benefit of locator's discovery for purpose of location adverse to him, except as relocator after loss or abandonment of prior right, p. 50.

Approved in Del Monte Min. Co. v. Last Chance Min. Co., 171 D. S. 78, 18 S. Ct. 904, holding second location ineffectual to appropri

Actions. Where defendants' liability is joint as well as several, plaintiff has option to sue individually or jointly, p. 43.

Approved in Little v. Giles, 118 U. S. 602, 30 L. 271, 7 S. Ct. 36, holding defendants cannot object to plaintiffs' election to sue jointly; Woodrum v. Clay, 33 Fed. 898, Kaitel v. Wylie, 38 Fed. 867, Bacon v. Felt, 38 Fed. 871, and Sexton v. Seelye, 39 Fed. 705, all holding, when plaintiff elects to sue jointly, defendants cannot make action several; Ames v. Chicago, etc., Ry., 39 Fed. 884, holding right of removal, on ground of separable controversy, testable by allegations of complaint; Dow v. Bradstreet Co., 46 Fed. 825, holding allegations of complaint true in determining whether cause is separable; Fox v. Mackay, 60 Fed. 6, holding bringing action against part of tortfeasors only, not election to treat it as several; Brown v. Coxe, 75 Fed. 699, and Moore V. Los Angeles, etc., Co., 89 Fed. 78, holding, on plaintiffs' election to sue jointly, neither defendant can treat action as several for removal purposes; Deere, etc., Co. v. Chicago, etc., Ry., 85 Fed. 881, holding plaintiff may sue jointly, although motive is to prevent removal. Malicious prosecution.— Cause of action against several defendants for malicious prosecution is several as well as joint, p. 43. Cited in Anderson v. Appleton, 32 Fed. 859, holding action to establish will not a separable controversy.

115 U. S. 45-51, 29 L. 348, GWILLIN v. DONNELLAN.

Mines and minerals. Valid location of mineral lands, made and kept up in accordance with statutes, has effect of grant by United States of right of present and exclusive possession of lands located, p. 49.

Approved in Manuel v. Wulff, 152 U. S. 511, 38 L. 534, 14 S. Ct. 653. holding qualified locator's deed to allen operates as a transfer, valid against all except government; Gillis v. Downey, 83 Fed. 487, 56 U. S. App. 575, holding owner of valid claim may maintain action to quiet title prior to issuance of patent; McFeters v. Pierson, 15 Colo. 204, 22 Am. St. Rep. 390, 24 Pac. 1077, holding mining claim on public domain subject of complete ownership as a claim; Seymour v. Fisher, 16 Colo. 192, 27 Pac. 241, holding owner of valid location entitled to exclusive use thereof as against all the world; Duffy v. Mix, 24 Or. 268, 33 Pac. 809, holding locator, having merely possessory right, may sue for possession in justices' court; Gorman Min. Co. v. Alexander, 2 S. Dak. 564, 51 N. W. 347, holding alien may acquire title to location, valid against all but government; dissenting opinion in South End Min. Co. v. Tinney, 22 Nev. 57, 35 Pac. 102, arguendo.

Distinguished in Mt. Rosa Min., etc., Co. v. Palmer, 26 Colo. 59, 56 Pac. 177, holding placer patent confers no possession to known lodes or veins within its limit.

Mines and minerals. In proceedings under R. S.. §§ 2325, 2326, to determine adverse claims to mineral location, plaintiff must show