sions of third persons cannot be given in evidence under the rule; Underwood v. Hart, 23 Vt. 129; Phelps v. James, 86 Iowa, 402, 41 Am. St. Rep. 499, 53 N. W. 275, and Smith v. Bodfish, 39 Me. 139, nor declarations made by agent after termination of his employment; Franklin Bank v. Stewart, 37 Me. 526, nor after transaction is completed, collecting authorities on general subject of declarations by agent; Corbin v. Adams, 6 Cush. 97, holding declarations of son, made while performing contract made by him as agent for his father, not admissible to prove terms of contract.

Indians Penalties and forfeitures.- Where an Indian trader carries spirituous liquors into the Indian country and they are found among his goods, the burden of proof is thrown upon him to show that he did not violate the act of 1802, regulating trade with the Indians, p. 364.

Cited and principle applied in State v. Cunningham, 25 Conn. 203, holding proof of finding liquors in possession of accused, presumptive evidence that it was kept for sale contrary to the statute; Lincoln v. Smith, 27 Vt. 356, discussing same question; State v. Intoxicating Liquors, 58 Vt. 598, 4 Atl. 231, ruling similarly.

Evidence - Conspiracy.— When persons are associated for an illegal purpose, acts and declarations of one, in reference to the common object, and forming part of the res gestæ, may be given in evidence against all, p. 365.

Cited and principle followed in Nudd v. Burrows, 91 U. S. 438, 23 L. 289, and Walton v. Bank, 13 Colo. 271, 16 Am. St. Rep. 201, 22 Pac. 442, 5 L. R. A. 767, & n., bankrupt's declarations admissible as against preferred creditor, where they were the result of an agreement to give fraudulent preference; Bannon v. United States, 156 U. S. 468, 39 L. 496, 15 S. Cr. 469, where conspiracy is proven, overt acts of individual conspirators may be shown; Wiborg v. United States, 163 U. S. 657, 41 L. 298, 16 S. Ct. 1137, and State v. Soper, 16 Me. 298, 33 Am. Dec. 668, holding similarly; Bloomer v. State, 48 Md. 531, collecting cases, and The Meteor, 17 Fed. Cas. 197, declarations of conspirators admissible against co-conspirators; Farley v. Peebles, 50 Neb. 732, 70 N. W. 234, even where the evidence is such as inter alia, the jury may infer the conspiracy itself from; United States v. Hartwell, 3 Cliff. 228, F. C. 15,318, rule applies as between principal and accessories; Cuyler v. McCartney, 40 N. Y. 245, dissenting opinion, arguendo, rule applicable to all combinations for unlawful purposes, even where technical conspiracy is not shown; State v. George, 7 Ired. 323, rule applies between principal and accomplice. See also notes, 95 Am. Dec. 56, and 3 Am. St. Rep. 487, collecting cases on declarations of conspirators. Cited without particular application, in United States v. Cole, 5 McLean, 553, F. C. 14,832, upon proposition that combination is not ended until its purpose is accomplished.

2

Distinguished in Reid v. State, 20 Ga. 685, declarations of conspirators are not evidence against co-conspirators, when mere narratives of past occurrences; Strout v. Packard, 76 Me. 156, 49 Am. Rep. 605, conspiracy must be proven aliunde; State v. Larkin, 49 N. H. 44, declarations made two weeks after alleged offense was consummated are not part of the res gestæ; State v. George, 7 Ired. 327, dissenting opinion, arguendo, declaration not part of res gestæ, after common enterprise is at an end; Patton v. State, 6 Ohio St. 470, holding similarly; Preston v. State, 4 Tex. App. 200, evidence of threats, made previous to commission of crime, not admissible where agreement to commit the crime had not been made at time of making threats; Fouts v. State, 7 Ohio St. 476, previous declarations by one who commits a crime as to what he intended to do are not admissible against another person charged at the same time for same offense, even where agreement existed to perform the unlawful act previous to the making of the declaration,

Statutory. construction.- Penal laws should not be so strictly construed as to defeat the obvious intention of the legislature, p. 367.

66

Cited and followed in In re Coy, 127 U. S. 740, 31 Fed. 800, construing penal statute referring to elections; United States v. Lacher, 134 U. S. 628, 33 L. 1083, 10 S. Ct. 626, construing penal statutes relating to mails; United States v. Willetts, 5 Ben. 227, F. C. 16,699, construing revenue laws imposing forfeiture for fraud; United States v. Mattock, 2 Sawy. 151, F. C. 15,744, construing statute prohibiting depasturing of Indian lands; United States v. Stone, 8 Fed. 251, construing words "plunder, steal or destroy," in revised statutes, section 5358; United States v. Ellis, 51 Fed. 810, construing word 'spirituous," in revised statutes, section 2139; In re Moore, 66 Fed. 951, construing order prohibiting introduction of liquors into Alaska; Boyd v. Watt, 27 Ohio St. 275, dissenting opinion, and United States v. One Hundred and Twenty-nine Packages, 27 Fed. Cas. 285, holding rule a fortiori, applicable when statute is not penal but merely civil act imposing penalty; State v. Johnson, 16 S. C. 189, construing "concealed," in statute forbidding carrying of concealed weapons; Crosby v. Hawthorne, 25 Ala. 225, construing "aid," in statute prohibiting alding slaves to run away; Merriam v. Langdon, 10 Conn. 469, construing "trading, dealing and trafficking," in statute for suppression of peddling; Rawson v. State, 19 Conn. 299, construing "otherwise," in statute prohibiting person from keeping "by agent, or otherwise," any house for purpose of selling liquors; State v. Main, 31 Conn. 575, construing "houses," in statute prohibiting keeping houses of bawdry; People v. Sweetser, 1 Dak. 301, 46 N. W. 454, holding words "and" and "or" Interchangeable as statute may require; Keller v. State, 11 Md. 536,

69 Am. Dec. 232, construing statute imposing penalty for failure to secure liquor license; Parkinson v. State, 14 Md. 195, 74 Am. Dec. 529, construing "give," in statute forbidding gift of intoxicants to minors. Cited, without particular application, in Beley v. Naphtaly, 73 Fed. 125, 44 U. S. App. 232, remarking remedial statutes should be broadly construed.

Indian country ceases to be such with the extinguishment of the Indian title to the soil, p. 368.

Cited and rule applied in Bates v. Clark, 95 U. S. 208, 24 L. 473, holding lands to which the Indian title had passed away, no longer Indian lands within the meaning of statute forbidding sales of liquor on Indian lands; United States v. Richard, 1 Ariz. Ter. 37, 40, holding similarly. Cited, arguendo, in United States v. Seveloff, 2 Sawy. 316, F. C. 16,252, holding Alaska not Indian country within act forbidding sales of liquor in Indian country; Moore v. County Commissioners, 2 Wyo. 22, discussing taxation within Indian reservations. See note on Indian relations, 3 McCrary, 516.

Distinguished in United States v. Payne, 2 McCrary, 304, 305, 8 Fed. 895, rule aliter where so provided by treaty, statute or executive order; United States v. Richard, 1 Ariz. Ter. 46, dissenting opinion, arguendo, rule not applicable to territory west of Mississippi.

2 Pet. 370-379, 7 L. 454, DANDRIDGE v. WASHINGTON'S EXECUTORS.

Parties to actions.- All participants in distribution of a fund should be parties to a suit for its distribution, p. 376.

Distinguished in Evans v. Wall, 159 Mass. 169, 38 Am. St. Rep. 407, 34 N. E. 184, holding possible remaindermen not necessarily parties.

Words and phrases.-" Trade" and "profession" are seldom con founded in common language, the former being generally received as denoting one of the mechanical arts, p. 377.

Parties to actions.- Residuary legatee is not a proper party in a suit against executors to fix amount of a prior legacy, p. 377.

Cited and rule applied in Davison v. Rake, 45 N. J. Eq. 772, 18 Atl. 754, holding executor only necessary party in suit by legatee to recover amount of legacy.

Distinguished in Sears v. Hardy, 120 Mass. 530, holding residuary legatee proper party in action to declare resulting trust in bulk of estate; Read v. Patterson, 44 N. J. Eq. 218, 6 Am. St. Rep. 880, 14 Atl. 493, residuary legatees are necessary parties to suit to construe residuary clause in will.

VOL. II — 54

Executor is representative of and guardian of interests of residuary legatees, p. 377.

Cited and rule applied in Ward v. Durham, 134 Ill. 200, 25 N. E. 746, holding judgment against executor allowing claim conclusive on heirs and devisees; Labitut v. Prewett, 1 Woods, 147, F. C. 7,962, holding executor may bring bill to enjoin sale of property of estate without joining legatees; Walsh v. Smyth, 3 Bland, 25, representatives entitled to notice of dissolution of injunction obtained by deceased.

Distinguished in Carey v. Roosevelt, 81 Fed. 610, holding judgment against executor, after distribution, does not bind legatees.

Equity practice.— Dismissal of bill in equity for want of proper parties should be without prejudice, p. 378.

Cited in Durant v. Essex Co., 7 Wall. 110, 19 L. 156, where words "without prejudice," are omitted from decree, it is presumed to be rendered on the merits.

Miscellaneous.- Cited, without particular application, in Bonaparte v. Railroad Co., Bald. 217, F. C. 1,617; Cross v. De Valle, 6 Fed. Cas. 891, holding parties in equity must be served as well as sued.

2 Pet. 380-416, 7 L. 458, SATTERLEE v. MATTHEWSON.

Appeal and error.- Jurisdiction of Supreme Court is acquired on error to the Supreme Court of a State where it appears from the record that the repugnancy of a statute to the Constitution was drawn into question, although the record do not in terms so state, 9. 410.

Cited to this point in Harris v. Dennle, 3 Pet. 302, 7 L. 687, applying rule where Federal statute misconstrued; McCullough v. Virginia, 172 U. S. 118, and Water Power Co. v. Street Ry. Co., 172 U. S. 488, applying rule and collecting cases. Cited, without particular application, in Stearns v. Lawrence, 83 Fed. 745, 54 U. S. App. 532, referring to practice of examining opinions of courts to ascertain point decided.

Distinguished in Crowell v. Randell, 10 Pet. 396, 9 L. 469, reviewing authorities, and holding it must appear in some manner from the record that Federal question was raised and decided as required by judiciary act; Hamilton v. Kneeland, 1 Nev. 63, holding diverse citizenship no ground for writ of error.

Obligation of contracts.-A retrospective statute making valid a contract previously void impairs no Federal limitations, p. 412.

Cited, approved, and rule applied in Skellinger v. Smith, 1 Wash. Ter. 373, McMasters v. Commonwealth, 3 Watts, 294, Watson v. Mercer, 8 Pet. 110, 111, 8 L. 885, and Randall v. Kreiger, 23 Wall. 140, 147, 23 L. 126, affirming 2 Dill. 448, F. C. 11,554, all holding

valid statutes curing defective acknowledgments; Atwater v. Seely, 1 McCrary, 268, 2 Fed. 137, holding similarly; Gelpcke v. Dubuque, 1 Wall. 204, 17 L. 525, holding valid a statute curing defective bond issue; Beloit v. Morgan, 7 Wall. 624, 19 L. 207, Bridgeport v. Railroad Co., 15 Conn. 497, Bass v. Columbus, 30 Ga. 851, collecting cases, McMillan v. Lee Co., 6 Iowa, 394, all holding similarly; Baugher v. Nelson, 9 Gill, 305, 52 Am. Dec. 698, Andrews v. Russell, 7 Blackf. 475, Welch v. Wadsworth, 30 Conn. 155, 79 Am. Dec. 239, Nichols v. Gee, 30 Ark. 145, Wilson v. Hardesty, 1 Md. Ch. 68, Danville v. Pace, 25 Gratt. 10, 18 Am. Rep. 669, and Ewell v. Daggs, 108 U. S. 151, 27 L. 685, 2 S. Ct. 414, all holding that repeal of law making contract void for usury, validated the contract; State v. Squires, 26 Iowa, 348, upholding statute curing defective organization of school district; Gross v. Mortgage Co., 108 U. S. 488, 27 L. 799, 2 S. Ct. 947, holding valid a statute curing invalidity of previous loans of foreign corporations; Shields v. Land Co., 94 Tenn. 148, 152. 45 Am. St. Rep. 716, 718, 28 S. W. 674, 675, 26 L. R. A. 518, and Cowell v. Col. Sp. Co., 3 Colo. 91, all holding valid, acts curing defective incorporations; Milne v. Huber, 3 McLean, 217, F. C. 9,617, holding valid as to pre-existing contracts, statute creating remedy when none had formerly existed; Bloomer v. Stolley, 5 McLean, 165, F. C. 1,559, arguendo, statute extending patent right is valid; Green v. Collins, 3 Cliff. 506, F. C. 5,755, applying rule holding right of action on contract valid in State where made, revived by repeal of prohibiting statute of State where suit brought; Aycock v. Martin, 37 Ga. 179, dissenting opinion, collecting cases and arguing that stay laws are constitutional; Welborn v. Akin, 44 Ga. 427, upholding retrospective statute requiring affidavit of payment of taxes on claim sued on; Gibson v. Hibbard, 13 Mich. 219, sustaining statute permitting validating of contracts void for want of stamp; Phenix Ins. Co. v. Pollard, 63 Miss. 663, sustaining statute removing bar to recovery on contracts previously barred by failure to pay tax; Mutual Ben. L. Ins. Co. v. Winne, 20 Mont. 40, 49 Pac. 452, sustaining statute curing invalid contracts of foreign corporations; Mercer v. Watson, 1 Watts, 357, holding valid a statute curing defective conveyances by married women; Lane v. Nelson, 79 Pa. St. 410, holding curative statute valid, providing its purpose be to correct what was defective, and not to validate what was void; dissenting opinion, Bronson v. Kingie, 1 How. 330, 11 L. 150, majority holding unconstitutional a law extending time for redemption of mortgages; Reynolds v. Randall, 12 R. I. 531, dissenting opinion, collecting cases and arguing statute changing rule of evidence as to adverse possession is retroactive and constitutional; Blodgett v. Hitt, 29 Wis. 178, semble, statute curing defective administrator's sale is valid and retroactive. See note on laws validating defective contracts by married women, 16 Am. Dec. 519, collecting cases; and note on curative acts, 37 Am. Rep. 398, collecting cases.