Evidence. Parol evidence is admissible to supply the defect of a written instrument as to the consideration and res gestæ between the parties, p. 501.

Miscellaneous.— Miscited in Johnston v. Straus, 26 Fed. 67; Woodhull v. Wagner, 1 Bald. 302, F. C. 17,975.

1 Pet. 503-510, 7 L. 239, DAVIS v. MASON.

Federal courts State laws followed. On appeal from a judgment in ejectment, the Supreme Court will be governed in deciding on the rights of the parties by the law of the State where the land is situated, p. 505.

Cited in Smith v. Powers, 23 Tex. 33, holding State decisions upon land titles binding upon every court where these titles are drawn in litigation.

Curtesy. A husband may have a good estate as tenant by curtesy in the wild lands of his wife in the absence of evidence of actual seisin, p. 506.

Cited in Vanarsdall v. Fauntleroy, 7 B. Mon. 402, holding that as a general rule actual possession during coverture was necessary to constitute the husband tenant by the curtesy; Mettler v. Miller, 129 Ill. 639, 22 N. E. 531, holding a seisin in fact as distinguished from a seisin in law was not necessary; Forbes v. Sweeny, 8 Neb. 527, when the wife was in actual possession by her tenants; Day v. Cochran, 24 Miss. 276, holding that if the land be in lease for years curtesy may be had without entry or receipt of rent; Wass v. Bucknam, 38 Me. 360, holding a husband was entitled to curtesy in lands of which his wife was seized as co-tenant; McDaniel v. Grace, 15 Ark. 483, and Todd v. Oviatt, 58 Conn. 182, 20 Atl. 441, 7 L. R. A. 696, and n., wild or waste lands may be constructively in wife's possession unless in the adverse possession of another; Borland v. Marshall, 2 Ohio St. 313, 316, holding a husband may have curtesy although the wife was never seized, either actually or constructively, and although the same be adversely held; Wescott v. Miller, 42 Wis. 466, where the adverse possession for twentyfive years was held not to bar ejectment by a husband and wife; Redus v. Hayden, 43 Miss. 635, on the point that a deed of convey. ance of a freehold of itself operates to create a seisin in the grantee, unless in adverse possession of another. Cited generally in Allen v. Hanks, 136 U. S. 310, 34 L. 418, 10 S. Ct. 964, discussing the power to divest a husband of his marital rights in the lands of his wife.

Not followed in Neely v. Butler, 10 B. Mon. 49, where the court said that in Kentucky no distinction was made between cultivated lands and those that remained in a state of nature.

Curtesy. If a right of entry exists it ought to be sufficient to sustain the tenure acquired by the husband where no adverse possession exists, p. 508.

Curtesy. In equity the husband has curtesy of a trust as well as of a legal estate, of an equity of redemption, a contingent use or money to be laid out in lands, p. 508.

Cited in Wells v. Thompson, 13 Ala. 803, 48 Am. Dec. 81, on the point that curtesy applies as well to qualified or conditional as to absolute estates in fee; Robinson v. Lakenaur, 28 Mo. App. 140, on the point that a husband has curtesy in an equity of redemption; McDaniel v. Grace, 15 Ark. 484, holding a husband had no curtesy in a pre-emption right.

Wills. In Kentucky a will with two witnesses is sufficient to pass title to real estate, and the copy of such a will duly proved and recorded in another State is good evidence of execution, p. 508.

Wills. In Kentucky, although more than one witness is required to subscribe a will disposing of lands, the evidence of one may be sufficient to prove it, p. 509.

Cited in Compton v. Milton, 12 N. J. L. 75, holding that if one witness testify expressly to the fulfillment of every ceremony required by the statute, it is sufficient.

1 Pet. 511-546, 7 L. 242, AMERICAN INS. CO. v. THREE HUNDRED AND FIFTY-SIX BALES OF COTTON.

Another appeal in this case is reported in 3 Pet. 307, 316, 7 L. 688, 692.

Constitutional law. The Constitution confers absolutely on the Union the powers of making war and treaties; consequently that government possesses the power of acquiring territory either by conquest or by treaty, p. 542.

66

Cited in Nelson v. United States, 30 Fed. 115, 12 Sawy. 288, and Stewart v. Kahn, 11 Wall. 507, 20 L. 179, on the point that the war power and the treaty-making power each carries with it authority to acquire territory; Dred Scott v. Sandford, 19 How. 611, 613, 15 L. 786, 787, dissenting opinion, discussing the words territory belonging to the United States;" Gardiner v. Miller, 47 Cal. 575, holding that after acquiring territory congress may pass laws to protect the private rights guaranteed by treaty that are beyond the Interference of State authority.

International law. The usage of the world is if a nation be not entirely subdued by another, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace, p. 542.

Cited in New Orleans v. Steamship Co., 20 Wall. 397, 22 L. 359, sustaining a lease during the military occupation of New Orleans made by the mayor appointed by the general commanding the department; United States v. Huckabee, 16 Wall. 434, 21 L. 464, holding land sold to the Confederate States and captured by the United States became after the Confederacy ended, without further proceeding, the property of the United States.

International law. If territory be ceded by one nation to another the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such terms as its new master may impose, p. 542.

Cited in Holden v. Joy, 17 Wall. 247, 250, 21 L. 535, 536, construing the treaties with the Cherokee Nation ceding land to United States.

International law. On the transfer of territory by one nation to another it has never been held that the relations of the inhabitants with each other undergo any change, p. 542.

Cited and doctrine followed in Leitensdorfer v. Webb, 1 N. Mex. 44, holding that on cession of conquered territory laws then in force remain in full force until repealed; Hart v. Burnett, 15 Cal. 560, on the point that neither military occupation nor complete conquest produces generally any change in private property; Chicago & P. Ry. Co. v. McGlinn, 114 U. S. 547, 29 L. 272, 5 S. Ct. 1007, on the point that laws governing property and to secure good order, etc., are left in force; Palmer v. Low, 98 U. S. 15, 25 L. 64, on the point that the laws regulating private rights continue in force after the conquest; United States v. Lucero, 1 N. Mex. 447, on the point that the right of property of a Pueblo to lands is not affected; Sunol v. Hepburn, 1 Cal. 286, dissenting opinion, on the point that the acquisition of California effected no change in the law regulating the rights of individuals; Pollard v. Kibbe, 14 Pet. 374, 376, 389, 391, 398, 404, 407, 409, 414, 10 L. 501, 508, 509, 512, 515, 516, 517, 520, where the question was as to the title to a lot granted by the Spanish government in territory ceded to the United States under the Florida treaty; First Nat. Bank v. Kinner, 1 Utah, 105, the court saying this doctrine applied in the acquisition of Utah; Crook v. Old Pt. Comfort Hotel Co., 54 Fed. 609, on the point as to what law prevails in places ceded to the United States; Hill v. Boyland, 40 Miss. 634, holding all acts passed in Mississippi during the war and not in conflict with the organic law are valid; Cutting v. Taylor, 3 S. Dak. 13, 51 N. W. 950, 15 L. R. A. 692, holding laws of the Territory of Dakota continue in force as the laws of the new State. Also cited in 31 Am. St. Rep. 838, note.

Referred to in Woodworth v. Fulton, 1 Cal. 314, dissenting opinlon, holding the title of the United States to the land in California

related back to the time of the occupation by the American army, and from that time the Mexican laws ceased to exist. See the authorities cited under the next head.

International law. A transfer of territory by one nation to another transfers the allegiance of those who remain in it; laws in their nature political are changed but those regulating the intercourse and general conduct of individuals remain in force until altered by the newly-created power of the State, p. 542.

Cited and principle followed in Cross v. Harrison, 16 How. 194, 14 L. 904, holding that the civil government in California, formed during the war with Mexicc, continued after the peace until congress legislated otherwise; Murphy v. Ramsey, 114 U. S. 45, 29 L. 57, 5 S. Ct. 764, on the point that the personal and civil rights of the inhabitants are secured to them; State v. Boyd, 31 Neb. 756, 48 N. W. 761, dissenting opinion, holding that the alien inhabitants of Nebraska on its admission did not become citizens of the United States under the acts admitting the State; Tobin v. Walkinshaw, McAll. 192, F. C. 14,068, construing the right of election given to Mexican citizens under the treaty of Guadaloupe Hidalgo; In re Rodriguez, 81 Fed. 351, on the point that Mexicans remaining in the territory after the cession, failing to declare their intention to remain citizens of Mexico, became citizens of the United States; People ex rel. v. De la Guerra, 40 Cal. 342, holding it was no violation of the treaty of Guadaloupe Hidalgo that the Constitution of California excluded some of the inhabitants from certain political rights; Barnett v. Barnett, 50 Pac. 338, holding Mexican law as to acquest property between husband and wife remained in force in New Mexico after its acquisition. See authorities under prior head. Treaty is the law of the land, p. 543.

Cited in United States v. Reese, 5 Dill. 409, F. C. 16,137, on the point that congress cannot interfere with rights under treaties except in cases purely political.

Constitutional law Territories. The power of governing a territory belonging to the United States which has not by becoming a State acquired the means of self-government belongs unques tionably to the United States to the fullest extent, p. 543.

Cited to this point and holding affirmed and followed in Shively v. Bowlby, 152 U. S. 48, 38 L. 349, 14 S. Ct. 566, holding that the United States has entire dominion, national and municipal, Federal and State, over all territories; Northern Pac. R. R. Co. v. Barnes, 2 N. Dak. 350, 51 N. W. 397, on the point that legislation of congress regarding a territory is the supreme law of the land and cannot be questioned; Franklin v. United States, 1 Colo. 39, on the point that the power is derived from the clause enabling congress to make all needful rules regulating territory; Case v. Loftus, 14 Sawy

217, 39 Fed. 733, 5 L. R. A. 688, and n., in governing territories congress exercises the combined power of the national and State governments; Territory v. Lee, 2 Mont. 133, holding a territory has none of the attributes of sovereignty and is a province over which congress has supreme control; United States v. Gratiot, 14 Pet. 538, 10 L. 578, on the meaning of the word territory, the court saying that congress has the same power as over any other land of the United States; Utter v. Franklin, 172 U. S. 423, holding congress may validate bonds issued by Arizona territorial legislature in aid of a railroad; Dred Scott v. Sandford, 19 How. 501, 15 L. 740, on the point that the government may organize territorial governments with powers of legislation; Baer v. Moran Bros.. 2 Wash. 611, 27 Pac. 471, on the point that land covered by the flow of the tide in a territory, congress can dispose of as it sees fit; Endleman v. United States, 86 Fed. 459, 57 U. S. App. 6; United States v. Nelson, 29 Fed. 204, 205, and Nelson v. United States, 30 Fed. 116, 12 Sawy. 290, all holding congress has power to prohibit the manufacture and sale of liquor in Alaska; Mormon Church v. United States, 136 U. S. 43, 34 L. 491, 10 S. Ct. 803, holding congress had the power to repeal the act of incorporation of the Mormon Church in Utah; United States v. Kagama, 118 U. S. 380, 30 L. 230, 6 S. Ct. 1112, holding an act giving territorial courts jurisdiction over crimes committed by Indians within the territory is constitutional; Reynolds v. People, 1 Colo. 181, where an indictment for selling liquors within a military reservation was held good; Dred Scott v. Sandford, 19 How. 442, 15 L. 716, dissenting opinion, p. 540, 15 L. 757, discussing the power of the Federal government over slavery in territory acquired by it; Treadway v. Schnauber, 1 Dak. Ter. 274, 276, 280, 46 N. W. 473, 474, 475, dissenting opinion, holding a territorial legis. lature has only such powers as are given it by congress and that an extra session was void; Territory v. Scott, 3 Dak. Ter. 395, 20 N. W. 405, dissenting opinion, p. 412, 20 N. W. 417, holding that a legislature of a territory exercised delegated powers and that an act selecting a seat of government was valid, being authorized; Wagner v. Harris, 1 Wyo. 198, holding legislatures of territories may create municipal corporations and grant charters; Territory v. Cox, 6 Dak. Ter. 506, 528, holding an act of the territory, authorizing the governor to fill vacancies, does not conflict with revised statutes, section 1858; Downes v. Parshall, 3 Wyo. 427, 26 Pac. 995, holding a territory could pass a law declaring that any creditor accepting a dividend from property of an assignor shall release him; Koenigsberger v. Richmond S. M. Co., 158 U. S. 48, 39 L. 892, 15 S. Ct. 754, discussing the effect on the jurisdiction of courts of the admission of a territory. Cited generally in Ex parte Bushnell, 9 Ohio St. 228, discussing whether congress had any power to pass a law for the reclamation of slaves.